Thursday Thinkpiece: Drafting, Interpreting, and Applying Legislation

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DRAFTING, INTERPRETING, AND APPLYING LEGISLATION

Authors: John Mark Keyes; Wendy Gordon
Editor: Gregory Tardi
Publisher: Irwin Law Inc.
Imprint: Irwin Law
Series: Understanding Canada
Publication Date: September 1, 2023
EAN: 9781552216811
Page count: 218 pages; 6″ x 9″

Excerpt: “How Is Legislation Understood and Applied?” [Footnotes omitted]

Since courts resolve disputes about the meaning and application of legislation, the methodology they have developed for doing so should be applied by everyone. This methodology not only reflects the functions of legislation discussed above (particularly to achieve the policy goals of the bodies that make it and communicate its terms to those it affects), it is also connected to the role of language and the way legislation has been drafted.

Language

The functions of legislation are best advanced by enacting it in lan- guages that are widely understood by both those who make the legis- lation and those who are subject to it. In Canada, these languages are English and French. In Nunavut, legislation is also enacted in the Inuit language. Indigenous languages are also used in the laws of self-governing Indigenous peoples.1 These are known as natural lan- guages and are recognized as fundamental for the social interaction that defines the linguistic communities that use them. In Re Manitoba Language Rights, the Supreme Court of Canada noted:

DRAFTING, INTERPRETING, AND APPLYING LEGISLATION

[T]he essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Lan- guage bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.2

Legislation is to be understood in the way it is understood by those who use it. This is often referred to as “ordinary meaning,” which depends on the meaning attached to particular words by those who use the language, and the way words function together (grammar or syntax).

English and French have been widely understood in Canada since the country was formed under British rule. However, as natural languages, they evolve over time: many of today’s words (“Wi-Fi”) and usages (“text” as a verb meaning to send a text message) were unknown fifty years ago; and many words (“groovy”) and usages (“far out,” meaning “awesome”) of fifty years ago are no longer current.

Natural languages are also prone to ambiguity (multiple differ- ent meanings) and vagueness (uncertainty about the scope of mean- ing). Ambiguity and vagueness are problems in the application of legislation. But legislation must apply uniformly according to its terms. If it is ambiguous, there must be a way to resolve it to a single meaning; if it is vague, there must be a way to establish the limits of its meaning. This is what interpretive methodology is about.

Drafting Practices

Legislation is not only written (drafted) in natural languages, it is also a unique form of writing. Like other forms, it has its own practices and conventions, which have developed over centuries. These practi- ces and conventions are generally followed in the drafting of federal, provincial, and territorial legislation, but there are also variations. For example, in federal legislation, sections and subsections may be div- ided into “paragraphs,” but in most provinces they are called “clauses.”

How Is Legislation Understood and Applied?

There is a clear connection between legislative drafting and judi- cial interpretation. It emerges when one looks at their history. In England’s earliest stages as a country after the Norman Conquest, it was difficult to say what legislation was. Parliament as we know it today did not exist. The king issued a variety of legal instruments, that might or might not have had legislative effect.3 Some of them resulted from petitions presented to the king by his councils (which eventually developed into the Houses of Parliament). If the king accepted a petition, it would be drafted into an Act by judges of the king’s court. Because the judges had drafted them and considered they knew what they were supposed to say, they adopted a purposive approach, paying less attention to the words and instead focusing on the “mischief ” the legislation was supposed to address.4 A judge during this period is reported to have said, “Do not gloss [interpret] the statute. We know better than you for we made it.”5

Drafting by the king’s judges lasted until the fifteenth century. At this point, the Houses of Parliament had been established and

began to assert greater control over the law-making process by pre- senting draft Acts (bills) to the king rather than petitions.6 They employed land lawyers (conveyancers) to draft the bills, whose draft- ing style was very detailed and verbose. The purposive interpretive approach gave way to what is known as strict or literal interpretation. It put more emphasis on the wording of the legislation, even when it seemed inconsistent with the purposes.7 By the beginning of the nineteenth century, literal interpretation was prevalent, but it was later moderated by what became known as the “Golden Rule” of interpretation.8 It involved applying the “ordinary” or “plain” mean- ing of legislation unless it resulted in an “absurdity.”9

Around the middle of the nineteenth century, the drafting of Acts of the British Parliament was entrusted to specialist drafters called parliamentary counsel. The Office of Parliamentary Counsel was established in 1869 under Lord Thring, who in 1887 published a treatise on legislative drafting entitled Practical Legislation.10 It set out rules for arranging the contents of legislation and for drafting sentences and particular types of provisions. Although it was not

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DRAFTING, INTERPRETING, AND APPLYING LEGISLATION

the first work on drafting legislation, it had considerable influence in England and beyond.

In Canada, the Uniform Law Conference recognized the import- ance of legislative drafting and the need to improve it at the first meeting of the Conference in 1918.11 The Report of the Committee on Legislative Drafting pieced together extracts from seven Brit- ish and American texts on legislative drafting (including Lord

Thring’s), highlighting practices in stark contrast to the prevailing style of the nineteenth century. They advocated consistent word use, brevity, and short sentences in the active voice and present tense; they admonished the use of legalistic words and provisos. After the Second World War, EA Driedger brought greater attention to this approach with law journal articles,12 the publication of The Compos- ition of Legislation in 1957,13 and his influence as a legislative counsel and deputy minister in the federal Department of Justice, and later as a professor at the University of Ottawa.

Today, the publication of texts on legislative drafting continues14 and the Drafting Conventions of the Uniform Law Conference of Canada encapsulate a plainer, simpler approach that aligns with the Plain Language Movement15 of the late twentieth century:

Style
2. AnActshouldbewrittensimply,clearlyandconcisely,withthe required degree of precision, and as much as possible in ordinary language. Simplicity and conciseness of language can be made to exist with precision in a well organized text. It is important not to exaggerate the degree of precision that is required.16

These texts and conventions have largely been followed in draft- ing federal, provincial, and territorial legislation in Canada. The exceptions consist mainly of penal and tax legislation where older drafting practices persist.

How Is Legislation Understood and Applied?

Driedger’s Modern Principle of Interpretation: Text, Context, and Purposes

Driedger not only drafted and wrote about drafting, he also stud- ied the interpretive methodology of the courts in Canada and the United Kingdom. His work on interpretation has had an enormous influence in Canada. In 1976, he published The Construction of Stat- utes, which synthesized the various judicial approaches into his Modern Principle:

[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.17

This principle resonates with modern legislative drafting practices and has been overwhelmingly adopted by Canadian courts, particu- larly since the decision of the Supreme Court of Canada in Re Rizzo

& Rizzo Shoes Ltd.18 It is also incorporated into the Model Interpreta- tion Act of the Uniform Law Conference of Canada:

Enactment remedial
10 (1) The words of an Act and regulations authorized under an Act are to be read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

(2) Acts and regulations are to be construed as being remedial and are to be given the fair, large and liberal interpretation that best ensures the attainment of their objects.19

This rule has now been enacted in section 2-10 of the Saskatchewan Legislation Act.20

The modern principle emphasizes three aspects of interpretation:

1. the words, which are to be read in their grammatical and ordinary sense;
2. their entire context; and
3. the scheme . . . the object, and the intention of Parliament.21

DRAFTING, INTERPRETING, AND APPLYING LEGISLATION

Canadian courts frequently discuss these aspects under the head- ings of text, context, and purpose. The Supreme Court has most recently affirmed this approach in Canada v Vavilov:

[118] This Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legisla- ture in light of the purpose of the provision and the entire relevant context. . . . Those who draft and enact statutes expect that ques- tions about their meaning will be resolved by an analysis that has regard to the text, context and purpose.22

The three aspects of text, context, and purpose are interconnected. The “text” is composed of the words being interpreted (words whose meaning will determine the issues to be resolved by applying legislation). The text cannot be understood without understanding

the linguistic context of the language in which it is drafted. Lan- guages associate meanings with words (lexical) and determine how the words work together (grammar or syntax). But language is so intimately connected with the text that its role is treated as part of textual analysis.

Other contextual features also contribute to understanding the text. For example, words surrounding the text affect their meaning, as indeed do other provisions of the legislation containing the text, and other legislation as well. These and other contextual features affect the meaning of the text.23

Purposes also affect the meaning of the text, much as the con- textual features do. But textual and contextual features also have a bearing on what the purposes are. Purposes are often determined by reading the text and its contextual provisions, or by considering the events surrounding its enactment.24

The interconnection of text, context, and purpose is also signalled in the Driedger principle’s reference to “harmoniously.” Courts have assumed legislators intend their laws to be coherent and consistent, not only internally, but also with each other, with the Constitution, and with generally accepted legal principles, such as natural justice

How Is Legislation Understood and Applied?

in government decision-making. Coherence and consistency are determined using rules of logic as well as the legislative purposes, which are in turn determined by looking at contextual features.25

An important feature about this interpretive methodology is that it does not depend on a single interpretive rule or consideration. It underscores the fact that the so-called rules of interpretation are seldom hard and fast rules (if indeed they are rules at all) and that interpretation is not a matter of applying rules with mathematical precision. Rather, it results from looking at a range of interpretive features and considering them together. It is a way of reasoning, not a calculation.

The discussion that follows adopts the tri-partite structure described above. Text is discussed first since words are the start- ing point for understanding meaning. Purpose is discussed next because it fundamentally orients that meaning—meaning must be consistent with purposes. Finally, context is discussed because it informs the meaning of the text and is used to determine purposes.