The External Context

• Author: Ruth Sullivan
• Pages: 205-211

205

CHAPTER 12

THE EXTERNAL CONTEXT

The external context of legislation refers to its factual and ideological

setting, a setting that includes the historical, social, political, cultural,

and economic conditions in which legislation is enacted and in which it

operates after enactment. The conditions at the t ime of enactment can be

a basis for inferring original legislative intent. The conditions in which

legislation operates from time to time can assist in dynamic interpreta-

tion. In the law of evidence, informat ion about external context is referred

to as “legislative facts” because it is the sort of information a legislature

requires to make sound policy choices and to create effective schemes.

A. PROOF OF EXTERNAL CONTEXT

The facts comprising external context may be brought to the attention

of a court through formal or informal judicial notice, through expert

testimony, through so-called Brandeis briefs (explained below), and

through legislative history materials. 1

In formal judicial notice the court e xpressly indicates that it is tak ing

into account certain facts that are presumed to be true. Because they are

so well-established, evidence verifying their truth is unnecessary.2 In

1 For discuss ion of legislative facts, soci al facts, and judicial notic e, see R v Spence,

[2005] 3 SCR 458.

2 The rules govern ing formal judicial notic e are explained in Chapte r 4.