CONTEXTUAL ISSUES AND MATERIALS IN STATUTORY INTERPRETATION
Alvin Esau 1995
Last class we looked at the basic issues and approaches involving the interpretation of legislation. Today we focus a bit more directly on the issue of context and the materials that we can look at for purposes of giving context when we are faced with a problem involving the interpretation of legislation.
1. The Importance of Context
The idea that we must look to the context of any communication to understand the meaning given to the words that are written or spoken is obvious. We are reminded of that famous quote made by Humpty Dumpty to the effect, "when I use a word, it means just what I choose it to mean - neither more nor less." But the speaker's "meaning" and the listener's "meaning" do not necessarily coincide.
Of course, we could argue about the total subjectivity of meaning in language, and despair that we can ever have rationality in communication. Looking to the context of communication simply adds a whole new layer of material that is itself subject to interpretation. Without getting into this, it seems to me that when we communicate with each other, we do so generally within a certain amount of shared social context, a context in which words to some degree have been given shared meanings. If not, why bother communicating at all? Why am I speaking to you at all, if I believe it will be unintelligible to you? We do talk to some degree about appropriate meanings, and inappropriate meanings within certain contexts. For example, the following is taken from Hart & Sacks:
A customer in a bar one winter afternoon, having had several drinks, pulled a live lobster out of his over-coat pocket and started playing with him (her?) on the counter. The bartender admired the lobster and said so. The customer, deeply touched, gave the lobster to the bartender. The bartender said, "Thank you very much. I'll take him home for dinner"; to which the customer replied, "Oh, don't do that, he's had his dinner. Take him to the movies."
Clearly here we have a difference of opinion as to what the statement, "I'll take him home for dinner" means. But which is our "socially accepted" meaning; even if we agree that in some cultures it might be different?
Whether ambiguous or not at the margins, we speak with words, put together in sentences, and set in a context determined by the nature and purpose of the communication. Context is essential even if it does not fully solve the problem as indicated in our discussion of the purposive approach last day. Professor Kernochan gives a good example taken from Professor Lieber, writing back in the 19th century:
Imagine the case of a housekeeper handing some money to a domestic and giving him the simple direction to "fetch some soup meat." This comparatively uncomplicated order involves all manner of unstated assumptions, as for instance that the domestic is not to delay, is to go to the usual market, is to buy certain kinds of meat, is not to pay too much for the meat, is not to add anything disagreeable or injurious, and so forth. The addressee of a command must always supply specifications drawn from the context and it is always necessary for the order-giver to rely on the addressee's common sense and good faith in doing so. To carry Professor Lieber's case a step further, suppose that our domestic comes to the market and finds - the hour being late - that there is only spoiled meat left in the stalls. If he followed the plain meaning rule, he would presumably "fetch the meat" anyway, even though it was inedible. Would you not as an employer feel like dismissing such a domestic? He has failed to carry out the simplest obligation of a communication situation. He failed to ask about the purpose of the order, why the order was given - i.e., to secure something to eat - and so he has made a useless expenditure for inedible provisions. The problem is the same with statutes as it is in such a case. A good faith, common sense effort to reconstruct the context and purpose is essential. Literal meaning is a wholly insufficient tool. As Judge Learned Hand said, "there is no surer way to misread any document than to read it literally."
Over the years you probably have seen lots of cartoons which illustrate some aspect of taking a rule literally in a context where the literalism leads to laughter. There is a cartoon in my collection of a man entering a restaurant that has a sign at the door requiring men to wear ties and the man has the tie around his waist and hanging between his legs. He says, of course, “But I am wearing a tie.” You might also consider drawing a cartoon related to a restaurant which happens to be near a nudist colony. The restaurant has a typical sign saying, "No shoes, no shirt, no service." Think of somebody coming in the restaurant with shoes and shirt but nothing else. Anal Retentive, we presume, would let him or her in.
2. Levels of Context
When we talk about various aspects of context in statutory interpretation, we might think about a particular problem word or phrase in the legislation and then, like dropping a stone in a pool, we have various expanding waves of context that circle the epicenter. Remember that the basic approach used will determine both how these various circles of context are dealt with and what aspects will be included.
Historically, the basic distinction in terms of contextual matters has been between material that is said to be Intrinsic Material (Material that is part of the official text or part of official texts related to the text in question); and material that is said to be Extrinsic Material (Material outside the official texts of the law). Historically intrinsic material could be used to aid in interpretation, but extrinsic material could not be used. This distinction is finally showing signs of breaking down, but there is still debate and uncertainty about whether certain kinds of extrinsic material like Hansard, for example, can be used by the courts to aid in the interpretation of legislation.
3. Intrinsic Contextual Material
A. Textual Context
a. Words
By "words" as the first level of context, I mean the actual clause or section or word that must be interpreted. As you know by now, many statutes contain their own definition sections. These may or may not help in a particular situation. As well, a court can use a dictionary - both a general one like Webster's or Oxford's, or a legal dictionary like Black's.
As well, if the statute deals with a particular trade or a special enterprise which has its own particular vocabulary, the court can attempt to find out what that vocabulary is. For example, in Unwin v. Hanson [l89l] 2 Q.B. ll5 (C.A.) the court held that authority to "lop" trees did not include authority to cut the tops off trees because "everyone who lives in the country and has to do with trees ... knows the well-marked difference between "lopping" and "topping." The principle to be applied was stated by Lord Esher in that case to be:
If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.
When it comes to the use of dictionaries and other aids in the interpretation of a word, one might cynically conclude that the court is choosing a meaning from a dictionary and pretending that it is a "plain meaning."
Remember that for both Federal legislation and Manitoba legislation the official text of legislation involves two texts and not just one. Both the English and French text are equally authoritative. The French text is not secondary to the English text. If a dispute arises as to the meaning, you cannot just prefer the English text. Both texts are equally authoritative. The basic rule is that the court must attempt to find the meaning, if possible, that is shared in the two texts. This means that it is important to read both language versions of legislation, because the one text may significantly modify the scope of a provision as read in the other text. If the harmonization principle does not work, the court will have to pick a preference for one text over the other on the bases of a variety of arguments. The bottom line, however, is that unlike Quebec where the French text prevails in the case of discrepancy, we have an equal authoritative rule.
b. Immediately Surrounding Words
The court sometimes invokes certain grammatical "rules", usually expressed as latin maxims. The first is noscitur a sociis translated roughly to mean that words are known by the company they keep [R. v. Markin (l969) 68 W.W.R. 6ll (B.C.C.A.); R. v. Goulis (l98l) 20 C.R. (3d) 36 (Ont. C.A.)].
One principle evolved by the courts, based on the noscitur idea, is the principle ejusdem generis, roughly translated to mean that general words may be restricted to the same genus as the specific words that precede them. For example, if you have: specific word, specific word, specific word, and then general word, the general word may be interpreted more narrowly to fit into the character of the specific words. For example, suppose you have a provision relating to "automobiles, trucks, vans, or other vehicles." Does "other vehicles" include airplanes? Arguably not, because of we limit the general term “other vehicles” by the specific items preceding it.
Professor Willis gives another example of a statute which makes it a crime "to shoot, cut, stab, or wound somebody." If I throw acid on you, and you suffer severe burns, have I violated the statute? Not necessarily if you invoke ejusdem generis. For example, there is a case dealing with this precise matter - R. v. Harris (l836) 7 C. & P. 4l6, where the court invoked the ejusdem doctrine and said that to "wound" did not include biting off someone's nose. Why? (This is not to say that some other legislative provision might provide a penalty for your behavior in biting off a nose or throwing acid.) Sometimes it seems sensible to invoke the maxim, and at other times it may not be. The uncritical use of ejusdem has been widely condemned by those who argue for a purposive approach to statutory interpretation.
Many cases have cited the ejusdem generis principle. Note that it applies only when you have a class into which the specific words fall. Imagine that you have the words "fruit, fodder, farm produce, insecticides, pumps, nails, tools, weapons, and all kinds of merchandise." The court in Heatherton Co-Op [l930] l D.L.R. 975 said that we don't have a common class here, and thus ejusdem cannot apply to limit what might fall into "all kinds of merchandise." Note also that even if we have a class, how do we define it? Imagine "boots, shoes, stockings, and other articles." Are we dealing with only footwear, or could we include wearing apparel generally?
Another maxim related to noscitur a sociis, is the maxim expressio unius est exclusio alterius. Roughly translated, expressio stands for the proposition that if you expressly include something, you impliedly exclude everything else. The "men" sign on a bathroom door impliedly excludes women and vice versa. This maxim too should not be used uncritically. If several matters are listed in the legislation, it is important to determine if the list is meant to be exhaustive. Arguments about the "silence of the legislature" should be dealt with very carefully.
c. The Act as a Whole: The Rest of the Statute
Miller J. of the Alberta Queen's Bench in Re Maguire (l980) ll6 D.L.R. (3d) 268 stated at 273:
In seeking to uncover this intention certain principles must be kept in mind even where the words are apparently unambiguous. One of these principles is stated in the Lincoln College's Case (l595), 3 Co. Rep. 58B, 76 E.R. 764. The conclusion reached there, at p.767, is that construction of an Act of parliament is to be made "... on all the parts together, and not of one part only by itself… An Act of a Legislature is to be treated as a unit and therefore must be read as such in attempting to ascertain the meaning of a portion of such ..." It is never sufficient to take a part of a statute and construe it without regard to its context.
When dealing with the legislation as a whole, you should be aware of both the Federal and Provincial Interpretation Acts. For example, these statutes provide some rules about the authoritativeness or lack thereof of various parts of the statute, including the title, the preamble if any, purpose statements if any, schedules, headings and marginal notes.
In Manitoba, the Interpretation Act S. l2 states:
The marginal notes, and the notes and headings in the body of an enactment, and the references to former enactments, and the tables of contents printed following the long title, form no part of the enactment but shall be deemed to be inserted for convenience of reference only.
If you look at the following provisions from the Water Rights Act, what matters are not officially part of this enactment?
Riparian owner has no rights without licence.
Riparian rights abolished
11(2) Except as to applications presented by companies, persons, or riparian owners, pursuant to this Act before the first day of January, l932, no right to impound, divert, or use, water for any purpose, except domestic purposes, or to construct or operate works for the impounding, diverting or utilization, of water exists by virtue only of a riparian ownership of land; and no claim shall be entertained saving only the general right of the public to the temporary use for domestic or industrial purposes of water to which there is lawful access, subject, however, to the rights of any licensee. (Am. S.M., l954, c.38, s.11. R.S.M., c. 289, S.9; am.)
This does not mean that the headings and marginal notes can't be looked at for the purpose of helping to interpret those parts that are part of the enactment. The point is that the marginal notes and headings are not part of the official text, and you might want to argue in a particular case that they are misleading or wrong or should be disregarded for whatever reason. I would argue, for example, that the marginal note and the heading in this case are misleading, but to explain this to you would take us too deeply into water law.
The Federal Interpretation Act is very much the same on this issue. It states:
13 Marginal notes and references to former enactments in an enactment after the end of a section or other division thereof form no part of the enactment but shall be deemed to have been inserted for convenience of reference only. (l967-68, c.7, s.l3)
However, in Insurance Corporation of B.C. v. Registrar of Trade Marks [l980] 1 F.C. 669 (T.D.), Cattanach J. stated at 673:
In modern times a statute passed by Parliament is as recorded in the copy printed by the Queen's Printer. That being so, the rule which treats the title of an Act, the marginal notes, and the punctuation not as forming part of the Act, but merely as temporanea expositio ought not to be applied with its former rigidity. These were formerly appendages useful to a hasty enquirer but in my view, they are no longer merely appendages and as such may be useful in construing a statute or a section. (even if they are not formally a part of the statue.)
B. Legal Context
a. Amendment History
The next circle of context is the amendment history of the Statute. One matter that you probably are not required to do in law school, but would be a useful exercise, is to take a statute and do a legislative history, tracing the development of the Act through its revisions. We are too used to going to the continuing consolidation and seeing only the statute as consolidated to this point, rather than how it developed through time.
It is permissible for a court to look at a provision of a statute and note that it used to read "so and so" before it was amended, and before that it read "so and so," and so forth. This can be helpful if the wording is unclear because you can see how the wording was changed and perhaps even that a word was left out by the draftsperson. The amendment history is still classified within the category of intrinsic material in terms of context. We are still looking at the official texts of the law, past and present.
b. Statutes in pari materia
The next circle of legal context includes statutes in pari materia. That is, we are looking at other legislation that relates to the same subject matter as the legislation we are interpreting. It would make sense to attempt to harmonize the interpretation of legislation as a whole.
In Sidmay v. Wehttam [l967] l O.R. 507, Laskin as he then was, and other members of the Ontario Court of Appeal, used the purposive approach in interpreting the Loan & Trust Corporation Act, and part of their arguments were based on looking at that Act in relationship to the Corporations Act, the Mortgage Brokers Registration Act, and several British statutes, which had similar provisions. That this willingness to look at substantially similar provisions in other statutes can be abused, however, is pointed out by Zander at 60-6l:
A phrase used in one Act can be construed by reference to the same or a similar phrase used in earlier Acts - at least if the Acts deal with the same subject-matter. But the qualification about the similarity of the subject-matter is not always made. The Betting and Gaming Act l960, for instance, required an applicant for a betting shop to insert a notice 'in a newspaper circulating in the authority's area.' It was held that an advertisement in Sporting Life was sufficient and that the Act did not require an advertisement either in a local paper or in a national paper circulating in the area. The court drew a distinction between the l960 Act and S.l2 of the Highways Act l959 which specifically referred to 'a local newspaper circulating in the area' (R. v. Westminster Betting Licensing Committee, ex p. Peabody Donation Fund [1963] 2 Q.B. 750).
The last case cited is an example of the court inferring that the draftsman of one piece of legislation is aware of the use of similar phrases in earlier Acts and that a difference in wording between one Act and another is conscious and intentional. This theory, based on the omniscience of parliamentary draftsmen, is often carried to improbable lengths. It may be that the draftsman of say the latest Rent Act will be aware of the use of language in previous Rent Acts - though given the extreme length and complexity of such legislation even that maybe assuming a good deal too much. But it is hardly reasonable to assume that the draftsman has in mind the language used in a mass of other prior statutes which have no direct connection with the one he is presently engaged in drafting.
c. Case Law
Finally, part of the legal context would be any case law previously interpreting the sections in question. Just as you go to "cases judicially considered" before you rely on any common law case, so you go to "statutes judicially considered," to see if any case law exists on a statutory matter.
Included in case law would be prior cases on the common law, if any, before the statute was passed and the contextual case law related to the general areas that the statute deals with. If you take the purposive approach, this case law is particularly important. Later, we will discuss the interaction of common law and statute at some length. I treat case law as "intrinsic" in the sense that it too is an official text of the law.
4. Extrinsic Contextual Material
A. Legislative Context
Now we get to the difficulty. The rise of formalism led the courts to adopt exclusionary rules for extrinsic material.
What I call "Legislative Context" may usefully be divided into pre-parliamentary material and parliamentary material. Pre-parliamentary material relating to the statute in question might include the reports of various committees or Royal commissions or law reform agencies. These bodies review existing law and recommend changes to the law, and sometimes even draft recommended legislation. Often the draft bill will explain section by section what the committee, commission, or body intends by the Act, both in regard to the meaning of provisions and the general aims sought to be accomplished with the legislation. Next we have parliamentary materials relating to the statute. These would include the successive drafts of a bill, explanatory memoranda accompanying a bill, minutes of the proceedings of the parliamentary committees dealing with the bill, and finally, Hansard- that is the written record of the debates in the House.
a. English Approach
What then is the English position on the admissibility of either 1) pre-parliamentary material or 2) parliamentary material?
Until fairly recently it was clear in England that as to the second class of legislative history, that is parliamentary materials like Hansard and Committee minutes, these were not admissible and could not be used to find the intention or purpose of parliament, or to interpret the meanings of the specific provisions in question. Leading cases for this proposition included: Miller v. Taylor (l769) 4 Burr. 2303; South Eastern Rail v. Railway Commissioners (l88l) 50 L.J.Q.B. 20l; Escoigne Properties Ltd. v. I.R.C. [l958] A.L. 549; Beswick v. Beswick [l968] A.C. 58 in the House of Lords.
As to pre-parliamentary material, for a long period of time the English courts said that you couldn't use them for purposes of interpretation either. However, in Black-Clawson [l975] A.C. 59l, the House of Lords said you could look at these materials, but only in a limited way. You could look at them to help clarify what the problem was that needed to be dealt with by legislation, but you could not look at them in regard to what they said about the specific solution provided in the legislation. A Law Reform Report, for example, could be cited in court to provide evidence as to what the mischief was that faced Parliament. However, you could not use the Report to provide evidence of how Parliament dealt with the mischief in its statute. You couldn't use it for purposes of finding specific evidence as to the intention that parliament might have had with regard to meaning of the words as applied to the case before the courts. This was so presumably even if the Law Reform Report provided a draft of proposed legislation and that draft was enacted word for word in legislation. Recall our discussion last day about textualism- it is the text of the statute, like a message in a bottle, that we confine ourselves to, not extra-textual musings about meaning.
Lord Denning took a stand against the exclusionary rule for both types of material. For example, in Davis v. Johnson [l978] l All E.R. 84l, Lord Denning was faced with the interpretation of the Domestic Violence and Matrimonial Proceedings Act of l976 which appeared to give women, even in common law relationships, the right to get an injunction to exclude the man from the house or flat if the man was abusing the woman. However, there was a difficulty in interpretation as to whether the statute applied if the man had a proprietary interest in the property. Did parliament intend this statute only to apply when a woman owned l00% of the property interest, a rare situation, or did it apply to all cases of domestic violence, even if the man had a proprietary interest in the dwelling? Denning used the purposive approach and did refer to parliamentary materials. He referred to the report of a House of Commons Select Committee on Domestic Violence which preceded the legislation, and then he looked at Hansard, and quoted both of these sources in his judgment. This is what he said at 850. (In saying this Lord Denning was fighting against established authority.):
The proceedings in Parliament
So in my opinion, the reasons given by the judges in those two cases were erroneous. But I wish to go further. I notice that in neither case were the judges referred to the Report of the Select Committee, nor to the proceedings in Parliament. If the judges had been referred to those, they would have discovered the intention of Parliament in passing this Act; and they would, I am sure, have given effect to that intention. This shows how important it is that a court should, in proper cases, have power to refer to the report of a Select Committee or other travois preparatoires. It will enable the court to avoid an erroneous construction of the Act; and that will be for the good of all. So I will proceed to consider them in this case.
First, the House of Commons appointed a Select Committee on Violence in Marriage. They heard much evidence and presented a very informative report on 30th July l975. It formed the basis of the l976 Act. There is clear authority, that the court can read it so as to ascertain the 'mischief' which the Act was intending to remedy. Such is plain from the decision of the House of Lords in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG. The House there overruled this court. The decisive factor was that they were referred to the report of a committee under the chairmanship of Greer L.J. and we had not been. If we had seen it we should not have fallen into error. Whilst all the Law Lords agreed that judges could read the report so as to ascertain the 'mischief' there was a difference of opinion as to whether they could read the 'recommendations' that it contained. I must say that it seems to me the whole of such a report should be open to be read…
Second, the Parliamentary debates on the Domestic Violence Bill. Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. In such cases I think the court should be able to look at the proceedings… And it is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statement made in committee disposed completely of counsel for the respondent's argument before us. It is just as well that you should know of them as well as me. So I will give them…
What do you think of the Denning admission that he has looked at Hansard even behind the backs of counsel? Well, when this got to the House of Lords on appeal "you know what" hit the fan! Viscount Dilhorne, one of the most soft-spoken members, put it rather kindly, but unmistakably:
There is one other matter to which I must refer, it is a well and long-established rule that counsel cannot refer to Hansard as an aid to the construction of a statute. What is said by a Minister or by a member sponsoring a Bill is not a legitimate aid to the interpretation of an Act. As Lord Reid said in Beswick v. Beswick:
'In construing any Act of Parliament we are seeking the intention of Parliament, and it is quite true that we must deduct that intention from the words of the Act ... For purely practical reasons we do not permit debates in either House to be cited; it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reporters of debates in select committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable would throw no light on the question before the court ...'
If it was permissible to refer to Hansard, in every case concerning the construction of a statute counsel might regard it as necessary to search through the Hansards of all the proceedings in each House to see if in the course of them anything relevant to the construction had been said. If it was thought that a particular Hansard had anything relevant in it and the attention of the court was drawn to it, the court might also think it desirable to look at the other Hansards. The result might be that attention was devoted to the interpretation of ministerial and other statements in Parliament at the expense of consideration of the language in which Parliament had thought to express its intention. While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.
Lord Scarman added:
There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of parliamentary and ministerial utterances can confuse by its very size. Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes.
Thus, as to parliamentary materials, the House of Lords in Davis, made it clear again that in England you could not refer to them to find the intention of Parliament or to help you clarify the meaning of the words of a Statute. As well, Lord Scarman also affirmed the limited rule as to the use of pre-parliamentary materials. He stated:
In Black-Clawson International Ltd. v. Paperwerke Waldhof-Aschaffenburg AG this House clarified the law on the use by the courts of travois preparatories. Reports such as are prepared by the Law Commission, by royal commissions, law reform bodies and select committees of either House which lead to legislation may be read by the courts to identify the mischief, including the weaknesses in the law, which the legislation is intended to remedy or reduce. The difficulty, however, remains that one cannot always be sure, without reference to proceedings in Parliament which is prohibited, that Parliament has assessed the mischief or understood the law in the same way as the reporting body.
In the end, like so much else, Denning lived to see the day when his views would be adopted. In Pepper v. Hart [1993] A.C. 593 the House of Lords finally held that in limited circumstances reference might be made to parliamentary material as an aid to statutory construction. The new position was most concisely stated by Lord Browne-Wilkinson:
...subject to any question of Parliamentary privilege… the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.
In the last two years there has been considerable discussion about how to interpret and apply these new guidelines. Notice, however, that this rule is designed to open the door only slightly. Statements in Parliament are not the law. Citizens should rely on the statute book, rather than extra-textual material. The statements in the legislature can be completely wrong and unreliable as to what the law means. Parliament as a body may not have any one collective intention as to meaning or purpose. Once the statements are admissible in the courts, parliamentary speakers may in fact act strategically with a view to how their statements might be used in court, which creates further unreliability for the interpreter or indeed stifles frank discussion in the House.
Thus, the narrow door in the Pepper v, Hart case. We look only to the statements of the Minister or promoter, who might have more authority to provide evidence of intent, and then those statements themselves must be clear. We do not look to unclear statements of context to help us with an unclear text. But if we have ambiguity in the text and the “authority” in Parliament clearly states what was intended, we might use that evidence to support the interpretation that supports that intention. As to the prudential reasons dealing with inconvenience, cost, inaccessibility and so forth, supposedly we do not routinely run to the extrinsic material in every case, but rather only when we first have a real problem with alternative plausible solutions and we need to choose between them.
Doors that open a little usually end up open all the way. When a Minister is asked if a provision Y applies to situation X and then the Minister replies that provision Y is meant to cover situation X we may use that statement. But when the Minister tells the House, this statute is intended to achieve the following aim Z, supposedly we can’t use it as evidence of purpose. Does this make sense? Indeed, we might argue that the specific statements as to intention of meaning are actually more dangerous because they flirt with making the specific words of the Minister into law. The statements about purpose are more general, as to the aim of the provision, and arguably should be admissible for whatever light they shed.
b. Canadian Approach
The significant distinction in terms of comparing Canada to England is the difference between ordinary statutory interpretation on one hand and constitutional interpretation on the other. In terms of constitutional interpretation, our courts have long since opened the door to a wide variety of extrinsic material. However, in terms of ordinary statutory interpretation our approach to legislative context historically followed that of England. We did not allow such material to be used. However, even before the Pepper case in England, various Canadian courts deviated from the exclusionary rule, and finally it is now clear that, subject to considerations of reliability and weight, Canadian courts may resort to legislative materials. While the Supreme Court has not extensively discussed the doctrine, I would argue that we are not limited to Pepper guidelines. Indeed, we have the reverse of Pepper. It is much more likely that Canadian courts will look at statements from Parliament as to what was intended in terms of purposes or aims of the legislation, as compared to finding specific statements about the specific meanings intended in specific circumstances. Thus far, at least at the Supreme Court level, the use of this material is simply confirmative- that is, the court has reached a conclusion using all sorts of traditional methods and then the statements from Hansard are thrown in to confirm the interpretation already chosen as the correct one. There does not yet appear to be a case where the extrinsic material played the decisive role in leading the court to choose one meaning over another plausible meaning because of evidence of legislative intent found in the parliamentary material.
Now we back up to give a bit of historical detail as to these developments in Canada. We might start tracing the history with the constitutional case of Reader's Digest [l96l] S.C.R. 775. Reader's Digest was trying to show that a Federal Excise Tax on non-Canadian products was not really in relationship to the Federal power of taxation, but an unconstitutional infringement on "property and civil rights," a matter of provincial power. To do so, Reader's Digest wanted to introduce statements made by various Cabinet Ministers about what their intention was as to the provision. The Supreme Court of Canada said this was inadmissible. The Reader's Digest case, even though it was a Constitutional division of powers case- laid down the precedent that Parliamentary material was not admissible. As to pre-Parliamentary material the case was unclear - some Judges tended to the English view, later to be adopted in Black-Clawson that such material could be admitted for a limited purpose, while the majority suggested it should be excluded if objected to.
This state of affairs continued unabated until the famous Anti-Inflation Reference Case (l976) 9 N.R. 54l (S.C.C.). In its argument, the Federal Attorney-General submitted to the court a Federal White paper, entitled Attack on Inflation, which was tabled in the House of Commons in October l975 as a prelude to the Act, and also a bulletin from Statistics Canada about prices. Other interested parties filed "extrinsic" materials as well. For example, the Canadian Labour Congress filed a study by an Economics professor from Queen's University.
Now the court had to decide if any of this was admissible in this constitutional case. Laskin said that when dealing with the constitutionality of statutes we have to look at the effect of the statute so we can see what the statute is really about - whether it is unconstitutional because it really is about a provincial matter, for example. Laskin said however that we are not dealing with the interpretation of the Anti-Inflation Act because it is clear. We are not even dealing with the purpose of the Act because that is clear. What we are dealing with is a question of fact. Is there an emergency situation so that the Government can legislate under the peace, order and good government clause? So extrinsic evidence was admitted not to find the "intention of Parliament," but to determine if the Act was constitutional according to a constitutional criteria. Laskin said at p.556, "Extrinsic materials were addressed not to the construction of the terms of the Anti-Inflation Act, but to its constitutional characterization..."
So, you still have a limited use of extrinsic materials at this stage, not to find object or purpose of an Act, but rather to answer questions of fact in constitutional interpretation. In the Anti-Inflation case, however, the dissenting judgment of Beetz goes even further. Mr. Justice Beetz agreed that for the limited purpose of constitutional characterization fact-finding, pre-parliamentary material could be looked at, but he said we can also look at Hansard for this reason. And he did so. The Anti-Inflation case did not really change matters much in terms of ordinary statutory interpretation, but opened up the door for the use of legislative context in constitutional adjudication.
Since that time, and particularly after the Charter of Rights came into force, the courts have considered all sorts of legislative material and other so called "extrinsic materials" in constitutional cases. For example, as to division of powers issues, the Supreme Court looked at what was said in the Nova Scotia legislature as to the dominant purpose of legislation that prohibited a list of medical procedures from being performed outside of a hospital. Mostly on the bases of this evidence, the court concluded that the dominant purpose was to stop an abortion clinic, which was really a matter of the criminal law power outside of provincial jurisdiction. R. v. Morgentaler [1993] 3 SCR 463. We have to be mindful that when governments introduce legislation that is of questionable constitutionality, they now may speak strategically, knowing that their words may well be used in court.
When legislation is judicially reviewed under the Charter, the courts also look at the purposes and effects of the legislation especially if the court gets to s. 1 considerations as to whether the legislation is nevertheless a reasonable limit. But another issue is simply the use of extrinsic material to interpret the Constitution itself, rather than the ordinary legislation that is being tested for constitutional compliance. Americans have long debated the use of the Federalist papers or whatever other evidence is available as to the so-called original intent of the framers of the constitution. Can we look at all the committees and debates that went into the drafting of the Charter of Rights, or go back to the history of the BNA Act in 1867? The answer is yes, but the courts may give it little weight given our “living tree” dynamic approach to interpretation. See the Motor Vehicle Reference [1985] 2 SCR 486. The Canadian courts have already departed from the original meaning that the authoritative drafters and sponsors of the Charter had in mind as to s. 7 (the “due process” clause) and s. 15 (the equality provisions.)
But what about ordinary statutory interpretation? In Laidlaw v. Municipality of Toronto, 1978, the Supreme Court of Canada, dealing not with the constitutionality of an Act, but with the interpretation of an Act, namely the Ontario Expropriations Act, said that the Ontario Law Reform Commission Report was admissible for a limited purpose. Spence said for the whole court on page l65:
The Ontario Law Reform Commission submitted a report on the "Basis for Compensation on Expropriation." It has been established that such report may be considered not by seeking to interpret the statute in accordance with the recommendations made in the report but to determine the problem which faced the legislators and which they must have sought to meet in the new statute: The Expropriations Act, l968-69 (Ont.), c. 36, now R.S.O. l970, c. l54. Much authority may be cited for such proposition, but I refer only to Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [l975] l All E.R. 8l0 (H.L.), per Lord Reid at p. 8l4...
But in Crown Zellerbach v. The Queen (l978) 92 D.L.R. (3d) 459, a B.C. Supreme Court Judge without reference to authority appeared to go further by using a B.C. Law Reform Commission Report to find the purpose of an Act, not just as background on the "mischief." However, in Morquard Properties v. The City of Winnipeg (1983) 3 DLR 1, the Supreme Court of Canada reaffirmed that pre-parliamentary materials could only be looked at to give you evidence of the external context of the legislation- the problem or “mischief” to be dealt with, but could not be looked at for purposes of giving direct evidence of what the solution was- what the provisions of the legislation meant.
As to parliamentary material, in Stevenson v. R. (l980) l9 C.R. (3d) 74 (Ont. C.A.), a hint at a new approach to the use of Parliamentary materials was made. The court said at 80:
We turn now to the matter of parliamentary debates relating to the predecessor of s.l26(b). We shall deal with this issue quite briefly. Undoubtedly the great weight of authority is against the use of parliamentary debates as an aid to the interpretation of statutes. However, we would note that Lord Reid, although he more than once affirmed this general rule, suggested in Warner v. Metro. Police Commr., [l969] 2 A.C. 256 at 279, 52 Cr. App. R. 373, [l968] 2 All E.R. 356 (H.L.), that there might be some scope for an exception "where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other." In the present case the parliamentary debates were filed with us, together with the other appeal papers, without objection (although the respondent did not concede that they were legally admissible), and we have read them. It is fair to say that they fall short of showing that the proponent of the bill in question intended it to be confined to affidavits which "would be relied upon in a judicial, administrative or business proceeding" (appellants' statement, para. 20). Even if Lord Reid's suggested exemption were to be resorted to in this case, the debates do not meet the standard enunciated by him, and they are therefore of no assistance in resolving the issue before us.
This idea of evidence of "specific intent" found fruition in Babineau v. Babineau (l98l) l22 D.L.R. (3d) 508 (Ont. H.Ct.) - affirmed by the Ontario Court of Appeal, where the court quoted excerpts from Hansard to see if they would "certainly settle the matter one way or the other."
Despite the Babineau decision and the use of very old legislative history in Vasil (l98l) 58 C.C.C. (2d) 97 (S.C.C.), the whole matter was thrown into doubt by Dickson's judgment in Re Residential Tenancy's Act of Ontario (l98l) 37 N.R. l58 (S.C.C.). The case was a constitutional case, but Dickson chose to also comment on the use of both pre-parliamentary and parliamentary material in regular statutory interpretation matters. While opening up the door for legislative history in constitutional characterization matters, Dickson might be interpreted to slam it shut on statutory interpretation matters. He said at l66:
A constitutional reference is not a barren exercise in statutory interpretation. What is involved is an attempt to determine and give effect to the broad objectives and purpose of the Constitution, viewed as a "living tree," in the expressive words of Lord Sankey in Edwards v. Attorney General for Canada, [l930] A.C. l24. Material relevant to the issues before the court, and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction. See Laidlaw v. The Municipality of Metropolitan Toronto, [l978] 2 S.C.R. 736, at p. 743; 20 N.R. 5l5, …
While other cases could be mentioned, we might jump ahead to a point where the Supreme Court was divided on this issue. In the case of Findlay v. Canada (1993) 101 D.L.R. 4th 567 the court split 5 to 4. The majority of the court refused to use statements by the Minister in the House of Commons to aid in interpretation, while the minority of 4 used such statements in their dissent. It is noteworthy that for the majority, Sopinka did not slam the door on the use parliamentary material, but rather stated at 575:
Given my resolution of this question of statutory interpretation on the basis of the wording of the provision read in light of the overall scheme and object of the Act, I do not find it necessary to resort to less reliable guides to statutory interpretation such as legislative debates.
For the dissenting judges, McLachlin J said at 596:
Recognizing that reference to legislative debates has sometimes been said to be of limited assistance and that it is the wording of the statute which must prevail..., the debates may nevertheless serve to confirm the appropriateness of a particular statutory interpretation...
She then went on to quote from several statements made by the Minister responsible for the legislation in the House of Commons.
The case of Findlay in 1993 proved to be a turning point and subsequently the Supreme Court has frequently looked at parliamentary materials to confirm the choice that the court has justified on more conventional grounds.
5. CONCLUDING REFLECTIONS
This is but an overview of some important matters having to do with the ascertainment or assignment of meaning to legislative texts. There are a host of presumptions that you need to learn. One of the most important is the presumption against retroactivity which we will talk about in class. But by way of conclusion to what we have covered here, you may ask yourself, “Why do we have such fundamental disagreements about statutory interpretation in terms of methodology?” Is it possible that the heart of the disagreement is really a matter of the attitude that we bring to the task? One attitude is that we must interpret the text with the emphasis on the public reader of the text. What is the “objective” meaning of the text as conveyed to the ordinary reader? Another attitude is that we must interpret with the emphasis on the “subjective” intention of the maker of the text. We want to be faithful to the supremacy of Parliament and work cooperatively in implementing the policy choices of our lawmakers. Another attitude is that we must interpret the text with an emphasis on the real-world consequences that we want to advance. When you have choice, do what you think results in the best consequence in terms of justice. This indeterminacy should not be taken too far. There may be a range of possible choices in interpretation, but within a legal community of widely shared linguistic and legal conventions, the words of the legislation constrain interpretation.
Alvin Esau 1995
Last class we looked at the basic issues and approaches involving the interpretation of legislation. Today we focus a bit more directly on the issue of context and the materials that we can look at for purposes of giving context when we are faced with a problem involving the interpretation of legislation.
1. The Importance of Context
The idea that we must look to the context of any communication to understand the meaning given to the words that are written or spoken is obvious. We are reminded of that famous quote made by Humpty Dumpty to the effect, "when I use a word, it means just what I choose it to mean - neither more nor less." But the speaker's "meaning" and the listener's "meaning" do not necessarily coincide.
Of course, we could argue about the total subjectivity of meaning in language, and despair that we can ever have rationality in communication. Looking to the context of communication simply adds a whole new layer of material that is itself subject to interpretation. Without getting into this, it seems to me that when we communicate with each other, we do so generally within a certain amount of shared social context, a context in which words to some degree have been given shared meanings. If not, why bother communicating at all? Why am I speaking to you at all, if I believe it will be unintelligible to you? We do talk to some degree about appropriate meanings, and inappropriate meanings within certain contexts. For example, the following is taken from Hart & Sacks:
A customer in a bar one winter afternoon, having had several drinks, pulled a live lobster out of his over-coat pocket and started playing with him (her?) on the counter. The bartender admired the lobster and said so. The customer, deeply touched, gave the lobster to the bartender. The bartender said, "Thank you very much. I'll take him home for dinner"; to which the customer replied, "Oh, don't do that, he's had his dinner. Take him to the movies."
Clearly here we have a difference of opinion as to what the statement, "I'll take him home for dinner" means. But which is our "socially accepted" meaning; even if we agree that in some cultures it might be different?
Whether ambiguous or not at the margins, we speak with words, put together in sentences, and set in a context determined by the nature and purpose of the communication. Context is essential even if it does not fully solve the problem as indicated in our discussion of the purposive approach last day. Professor Kernochan gives a good example taken from Professor Lieber, writing back in the 19th century:
Imagine the case of a housekeeper handing some money to a domestic and giving him the simple direction to "fetch some soup meat." This comparatively uncomplicated order involves all manner of unstated assumptions, as for instance that the domestic is not to delay, is to go to the usual market, is to buy certain kinds of meat, is not to pay too much for the meat, is not to add anything disagreeable or injurious, and so forth. The addressee of a command must always supply specifications drawn from the context and it is always necessary for the order-giver to rely on the addressee's common sense and good faith in doing so. To carry Professor Lieber's case a step further, suppose that our domestic comes to the market and finds - the hour being late - that there is only spoiled meat left in the stalls. If he followed the plain meaning rule, he would presumably "fetch the meat" anyway, even though it was inedible. Would you not as an employer feel like dismissing such a domestic? He has failed to carry out the simplest obligation of a communication situation. He failed to ask about the purpose of the order, why the order was given - i.e., to secure something to eat - and so he has made a useless expenditure for inedible provisions. The problem is the same with statutes as it is in such a case. A good faith, common sense effort to reconstruct the context and purpose is essential. Literal meaning is a wholly insufficient tool. As Judge Learned Hand said, "there is no surer way to misread any document than to read it literally."
Over the years you probably have seen lots of cartoons which illustrate some aspect of taking a rule literally in a context where the literalism leads to laughter. There is a cartoon in my collection of a man entering a restaurant that has a sign at the door requiring men to wear ties and the man has the tie around his waist and hanging between his legs. He says, of course, “But I am wearing a tie.” You might also consider drawing a cartoon related to a restaurant which happens to be near a nudist colony. The restaurant has a typical sign saying, "No shoes, no shirt, no service." Think of somebody coming in the restaurant with shoes and shirt but nothing else. Anal Retentive, we presume, would let him or her in.
2. Levels of Context
When we talk about various aspects of context in statutory interpretation, we might think about a particular problem word or phrase in the legislation and then, like dropping a stone in a pool, we have various expanding waves of context that circle the epicenter. Remember that the basic approach used will determine both how these various circles of context are dealt with and what aspects will be included.
Historically, the basic distinction in terms of contextual matters has been between material that is said to be Intrinsic Material (Material that is part of the official text or part of official texts related to the text in question); and material that is said to be Extrinsic Material (Material outside the official texts of the law). Historically intrinsic material could be used to aid in interpretation, but extrinsic material could not be used. This distinction is finally showing signs of breaking down, but there is still debate and uncertainty about whether certain kinds of extrinsic material like Hansard, for example, can be used by the courts to aid in the interpretation of legislation.
3. Intrinsic Contextual Material
A. Textual Context
a. Words
By "words" as the first level of context, I mean the actual clause or section or word that must be interpreted. As you know by now, many statutes contain their own definition sections. These may or may not help in a particular situation. As well, a court can use a dictionary - both a general one like Webster's or Oxford's, or a legal dictionary like Black's.
As well, if the statute deals with a particular trade or a special enterprise which has its own particular vocabulary, the court can attempt to find out what that vocabulary is. For example, in Unwin v. Hanson [l89l] 2 Q.B. ll5 (C.A.) the court held that authority to "lop" trees did not include authority to cut the tops off trees because "everyone who lives in the country and has to do with trees ... knows the well-marked difference between "lopping" and "topping." The principle to be applied was stated by Lord Esher in that case to be:
If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.
When it comes to the use of dictionaries and other aids in the interpretation of a word, one might cynically conclude that the court is choosing a meaning from a dictionary and pretending that it is a "plain meaning."
Remember that for both Federal legislation and Manitoba legislation the official text of legislation involves two texts and not just one. Both the English and French text are equally authoritative. The French text is not secondary to the English text. If a dispute arises as to the meaning, you cannot just prefer the English text. Both texts are equally authoritative. The basic rule is that the court must attempt to find the meaning, if possible, that is shared in the two texts. This means that it is important to read both language versions of legislation, because the one text may significantly modify the scope of a provision as read in the other text. If the harmonization principle does not work, the court will have to pick a preference for one text over the other on the bases of a variety of arguments. The bottom line, however, is that unlike Quebec where the French text prevails in the case of discrepancy, we have an equal authoritative rule.
b. Immediately Surrounding Words
The court sometimes invokes certain grammatical "rules", usually expressed as latin maxims. The first is noscitur a sociis translated roughly to mean that words are known by the company they keep [R. v. Markin (l969) 68 W.W.R. 6ll (B.C.C.A.); R. v. Goulis (l98l) 20 C.R. (3d) 36 (Ont. C.A.)].
One principle evolved by the courts, based on the noscitur idea, is the principle ejusdem generis, roughly translated to mean that general words may be restricted to the same genus as the specific words that precede them. For example, if you have: specific word, specific word, specific word, and then general word, the general word may be interpreted more narrowly to fit into the character of the specific words. For example, suppose you have a provision relating to "automobiles, trucks, vans, or other vehicles." Does "other vehicles" include airplanes? Arguably not, because of we limit the general term “other vehicles” by the specific items preceding it.
Professor Willis gives another example of a statute which makes it a crime "to shoot, cut, stab, or wound somebody." If I throw acid on you, and you suffer severe burns, have I violated the statute? Not necessarily if you invoke ejusdem generis. For example, there is a case dealing with this precise matter - R. v. Harris (l836) 7 C. & P. 4l6, where the court invoked the ejusdem doctrine and said that to "wound" did not include biting off someone's nose. Why? (This is not to say that some other legislative provision might provide a penalty for your behavior in biting off a nose or throwing acid.) Sometimes it seems sensible to invoke the maxim, and at other times it may not be. The uncritical use of ejusdem has been widely condemned by those who argue for a purposive approach to statutory interpretation.
Many cases have cited the ejusdem generis principle. Note that it applies only when you have a class into which the specific words fall. Imagine that you have the words "fruit, fodder, farm produce, insecticides, pumps, nails, tools, weapons, and all kinds of merchandise." The court in Heatherton Co-Op [l930] l D.L.R. 975 said that we don't have a common class here, and thus ejusdem cannot apply to limit what might fall into "all kinds of merchandise." Note also that even if we have a class, how do we define it? Imagine "boots, shoes, stockings, and other articles." Are we dealing with only footwear, or could we include wearing apparel generally?
Another maxim related to noscitur a sociis, is the maxim expressio unius est exclusio alterius. Roughly translated, expressio stands for the proposition that if you expressly include something, you impliedly exclude everything else. The "men" sign on a bathroom door impliedly excludes women and vice versa. This maxim too should not be used uncritically. If several matters are listed in the legislation, it is important to determine if the list is meant to be exhaustive. Arguments about the "silence of the legislature" should be dealt with very carefully.
c. The Act as a Whole: The Rest of the Statute
Miller J. of the Alberta Queen's Bench in Re Maguire (l980) ll6 D.L.R. (3d) 268 stated at 273:
In seeking to uncover this intention certain principles must be kept in mind even where the words are apparently unambiguous. One of these principles is stated in the Lincoln College's Case (l595), 3 Co. Rep. 58B, 76 E.R. 764. The conclusion reached there, at p.767, is that construction of an Act of parliament is to be made "... on all the parts together, and not of one part only by itself… An Act of a Legislature is to be treated as a unit and therefore must be read as such in attempting to ascertain the meaning of a portion of such ..." It is never sufficient to take a part of a statute and construe it without regard to its context.
When dealing with the legislation as a whole, you should be aware of both the Federal and Provincial Interpretation Acts. For example, these statutes provide some rules about the authoritativeness or lack thereof of various parts of the statute, including the title, the preamble if any, purpose statements if any, schedules, headings and marginal notes.
In Manitoba, the Interpretation Act S. l2 states:
The marginal notes, and the notes and headings in the body of an enactment, and the references to former enactments, and the tables of contents printed following the long title, form no part of the enactment but shall be deemed to be inserted for convenience of reference only.
If you look at the following provisions from the Water Rights Act, what matters are not officially part of this enactment?
Riparian owner has no rights without licence.
Riparian rights abolished
11(2) Except as to applications presented by companies, persons, or riparian owners, pursuant to this Act before the first day of January, l932, no right to impound, divert, or use, water for any purpose, except domestic purposes, or to construct or operate works for the impounding, diverting or utilization, of water exists by virtue only of a riparian ownership of land; and no claim shall be entertained saving only the general right of the public to the temporary use for domestic or industrial purposes of water to which there is lawful access, subject, however, to the rights of any licensee. (Am. S.M., l954, c.38, s.11. R.S.M., c. 289, S.9; am.)
This does not mean that the headings and marginal notes can't be looked at for the purpose of helping to interpret those parts that are part of the enactment. The point is that the marginal notes and headings are not part of the official text, and you might want to argue in a particular case that they are misleading or wrong or should be disregarded for whatever reason. I would argue, for example, that the marginal note and the heading in this case are misleading, but to explain this to you would take us too deeply into water law.
The Federal Interpretation Act is very much the same on this issue. It states:
13 Marginal notes and references to former enactments in an enactment after the end of a section or other division thereof form no part of the enactment but shall be deemed to have been inserted for convenience of reference only. (l967-68, c.7, s.l3)
However, in Insurance Corporation of B.C. v. Registrar of Trade Marks [l980] 1 F.C. 669 (T.D.), Cattanach J. stated at 673:
In modern times a statute passed by Parliament is as recorded in the copy printed by the Queen's Printer. That being so, the rule which treats the title of an Act, the marginal notes, and the punctuation not as forming part of the Act, but merely as temporanea expositio ought not to be applied with its former rigidity. These were formerly appendages useful to a hasty enquirer but in my view, they are no longer merely appendages and as such may be useful in construing a statute or a section. (even if they are not formally a part of the statue.)
B. Legal Context
a. Amendment History
The next circle of context is the amendment history of the Statute. One matter that you probably are not required to do in law school, but would be a useful exercise, is to take a statute and do a legislative history, tracing the development of the Act through its revisions. We are too used to going to the continuing consolidation and seeing only the statute as consolidated to this point, rather than how it developed through time.
It is permissible for a court to look at a provision of a statute and note that it used to read "so and so" before it was amended, and before that it read "so and so," and so forth. This can be helpful if the wording is unclear because you can see how the wording was changed and perhaps even that a word was left out by the draftsperson. The amendment history is still classified within the category of intrinsic material in terms of context. We are still looking at the official texts of the law, past and present.
b. Statutes in pari materia
The next circle of legal context includes statutes in pari materia. That is, we are looking at other legislation that relates to the same subject matter as the legislation we are interpreting. It would make sense to attempt to harmonize the interpretation of legislation as a whole.
In Sidmay v. Wehttam [l967] l O.R. 507, Laskin as he then was, and other members of the Ontario Court of Appeal, used the purposive approach in interpreting the Loan & Trust Corporation Act, and part of their arguments were based on looking at that Act in relationship to the Corporations Act, the Mortgage Brokers Registration Act, and several British statutes, which had similar provisions. That this willingness to look at substantially similar provisions in other statutes can be abused, however, is pointed out by Zander at 60-6l:
A phrase used in one Act can be construed by reference to the same or a similar phrase used in earlier Acts - at least if the Acts deal with the same subject-matter. But the qualification about the similarity of the subject-matter is not always made. The Betting and Gaming Act l960, for instance, required an applicant for a betting shop to insert a notice 'in a newspaper circulating in the authority's area.' It was held that an advertisement in Sporting Life was sufficient and that the Act did not require an advertisement either in a local paper or in a national paper circulating in the area. The court drew a distinction between the l960 Act and S.l2 of the Highways Act l959 which specifically referred to 'a local newspaper circulating in the area' (R. v. Westminster Betting Licensing Committee, ex p. Peabody Donation Fund [1963] 2 Q.B. 750).
The last case cited is an example of the court inferring that the draftsman of one piece of legislation is aware of the use of similar phrases in earlier Acts and that a difference in wording between one Act and another is conscious and intentional. This theory, based on the omniscience of parliamentary draftsmen, is often carried to improbable lengths. It may be that the draftsman of say the latest Rent Act will be aware of the use of language in previous Rent Acts - though given the extreme length and complexity of such legislation even that maybe assuming a good deal too much. But it is hardly reasonable to assume that the draftsman has in mind the language used in a mass of other prior statutes which have no direct connection with the one he is presently engaged in drafting.
c. Case Law
Finally, part of the legal context would be any case law previously interpreting the sections in question. Just as you go to "cases judicially considered" before you rely on any common law case, so you go to "statutes judicially considered," to see if any case law exists on a statutory matter.
Included in case law would be prior cases on the common law, if any, before the statute was passed and the contextual case law related to the general areas that the statute deals with. If you take the purposive approach, this case law is particularly important. Later, we will discuss the interaction of common law and statute at some length. I treat case law as "intrinsic" in the sense that it too is an official text of the law.
4. Extrinsic Contextual Material
A. Legislative Context
Now we get to the difficulty. The rise of formalism led the courts to adopt exclusionary rules for extrinsic material.
What I call "Legislative Context" may usefully be divided into pre-parliamentary material and parliamentary material. Pre-parliamentary material relating to the statute in question might include the reports of various committees or Royal commissions or law reform agencies. These bodies review existing law and recommend changes to the law, and sometimes even draft recommended legislation. Often the draft bill will explain section by section what the committee, commission, or body intends by the Act, both in regard to the meaning of provisions and the general aims sought to be accomplished with the legislation. Next we have parliamentary materials relating to the statute. These would include the successive drafts of a bill, explanatory memoranda accompanying a bill, minutes of the proceedings of the parliamentary committees dealing with the bill, and finally, Hansard- that is the written record of the debates in the House.
a. English Approach
What then is the English position on the admissibility of either 1) pre-parliamentary material or 2) parliamentary material?
Until fairly recently it was clear in England that as to the second class of legislative history, that is parliamentary materials like Hansard and Committee minutes, these were not admissible and could not be used to find the intention or purpose of parliament, or to interpret the meanings of the specific provisions in question. Leading cases for this proposition included: Miller v. Taylor (l769) 4 Burr. 2303; South Eastern Rail v. Railway Commissioners (l88l) 50 L.J.Q.B. 20l; Escoigne Properties Ltd. v. I.R.C. [l958] A.L. 549; Beswick v. Beswick [l968] A.C. 58 in the House of Lords.
As to pre-parliamentary material, for a long period of time the English courts said that you couldn't use them for purposes of interpretation either. However, in Black-Clawson [l975] A.C. 59l, the House of Lords said you could look at these materials, but only in a limited way. You could look at them to help clarify what the problem was that needed to be dealt with by legislation, but you could not look at them in regard to what they said about the specific solution provided in the legislation. A Law Reform Report, for example, could be cited in court to provide evidence as to what the mischief was that faced Parliament. However, you could not use the Report to provide evidence of how Parliament dealt with the mischief in its statute. You couldn't use it for purposes of finding specific evidence as to the intention that parliament might have had with regard to meaning of the words as applied to the case before the courts. This was so presumably even if the Law Reform Report provided a draft of proposed legislation and that draft was enacted word for word in legislation. Recall our discussion last day about textualism- it is the text of the statute, like a message in a bottle, that we confine ourselves to, not extra-textual musings about meaning.
Lord Denning took a stand against the exclusionary rule for both types of material. For example, in Davis v. Johnson [l978] l All E.R. 84l, Lord Denning was faced with the interpretation of the Domestic Violence and Matrimonial Proceedings Act of l976 which appeared to give women, even in common law relationships, the right to get an injunction to exclude the man from the house or flat if the man was abusing the woman. However, there was a difficulty in interpretation as to whether the statute applied if the man had a proprietary interest in the property. Did parliament intend this statute only to apply when a woman owned l00% of the property interest, a rare situation, or did it apply to all cases of domestic violence, even if the man had a proprietary interest in the dwelling? Denning used the purposive approach and did refer to parliamentary materials. He referred to the report of a House of Commons Select Committee on Domestic Violence which preceded the legislation, and then he looked at Hansard, and quoted both of these sources in his judgment. This is what he said at 850. (In saying this Lord Denning was fighting against established authority.):
The proceedings in Parliament
So in my opinion, the reasons given by the judges in those two cases were erroneous. But I wish to go further. I notice that in neither case were the judges referred to the Report of the Select Committee, nor to the proceedings in Parliament. If the judges had been referred to those, they would have discovered the intention of Parliament in passing this Act; and they would, I am sure, have given effect to that intention. This shows how important it is that a court should, in proper cases, have power to refer to the report of a Select Committee or other travois preparatoires. It will enable the court to avoid an erroneous construction of the Act; and that will be for the good of all. So I will proceed to consider them in this case.
First, the House of Commons appointed a Select Committee on Violence in Marriage. They heard much evidence and presented a very informative report on 30th July l975. It formed the basis of the l976 Act. There is clear authority, that the court can read it so as to ascertain the 'mischief' which the Act was intending to remedy. Such is plain from the decision of the House of Lords in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG. The House there overruled this court. The decisive factor was that they were referred to the report of a committee under the chairmanship of Greer L.J. and we had not been. If we had seen it we should not have fallen into error. Whilst all the Law Lords agreed that judges could read the report so as to ascertain the 'mischief' there was a difference of opinion as to whether they could read the 'recommendations' that it contained. I must say that it seems to me the whole of such a report should be open to be read…
Second, the Parliamentary debates on the Domestic Violence Bill. Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view. In some cases Parliament is assured in the most explicit terms what the effect of a statute will be. It is on that footing that members assent to the clause being agreed to. In such cases I think the court should be able to look at the proceedings… And it is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statement made in committee disposed completely of counsel for the respondent's argument before us. It is just as well that you should know of them as well as me. So I will give them…
What do you think of the Denning admission that he has looked at Hansard even behind the backs of counsel? Well, when this got to the House of Lords on appeal "you know what" hit the fan! Viscount Dilhorne, one of the most soft-spoken members, put it rather kindly, but unmistakably:
There is one other matter to which I must refer, it is a well and long-established rule that counsel cannot refer to Hansard as an aid to the construction of a statute. What is said by a Minister or by a member sponsoring a Bill is not a legitimate aid to the interpretation of an Act. As Lord Reid said in Beswick v. Beswick:
'In construing any Act of Parliament we are seeking the intention of Parliament, and it is quite true that we must deduct that intention from the words of the Act ... For purely practical reasons we do not permit debates in either House to be cited; it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reporters of debates in select committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable would throw no light on the question before the court ...'
If it was permissible to refer to Hansard, in every case concerning the construction of a statute counsel might regard it as necessary to search through the Hansards of all the proceedings in each House to see if in the course of them anything relevant to the construction had been said. If it was thought that a particular Hansard had anything relevant in it and the attention of the court was drawn to it, the court might also think it desirable to look at the other Hansards. The result might be that attention was devoted to the interpretation of ministerial and other statements in Parliament at the expense of consideration of the language in which Parliament had thought to express its intention. While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.
Lord Scarman added:
There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of parliamentary and ministerial utterances can confuse by its very size. Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes.
Thus, as to parliamentary materials, the House of Lords in Davis, made it clear again that in England you could not refer to them to find the intention of Parliament or to help you clarify the meaning of the words of a Statute. As well, Lord Scarman also affirmed the limited rule as to the use of pre-parliamentary materials. He stated:
In Black-Clawson International Ltd. v. Paperwerke Waldhof-Aschaffenburg AG this House clarified the law on the use by the courts of travois preparatories. Reports such as are prepared by the Law Commission, by royal commissions, law reform bodies and select committees of either House which lead to legislation may be read by the courts to identify the mischief, including the weaknesses in the law, which the legislation is intended to remedy or reduce. The difficulty, however, remains that one cannot always be sure, without reference to proceedings in Parliament which is prohibited, that Parliament has assessed the mischief or understood the law in the same way as the reporting body.
In the end, like so much else, Denning lived to see the day when his views would be adopted. In Pepper v. Hart [1993] A.C. 593 the House of Lords finally held that in limited circumstances reference might be made to parliamentary material as an aid to statutory construction. The new position was most concisely stated by Lord Browne-Wilkinson:
...subject to any question of Parliamentary privilege… the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.
In the last two years there has been considerable discussion about how to interpret and apply these new guidelines. Notice, however, that this rule is designed to open the door only slightly. Statements in Parliament are not the law. Citizens should rely on the statute book, rather than extra-textual material. The statements in the legislature can be completely wrong and unreliable as to what the law means. Parliament as a body may not have any one collective intention as to meaning or purpose. Once the statements are admissible in the courts, parliamentary speakers may in fact act strategically with a view to how their statements might be used in court, which creates further unreliability for the interpreter or indeed stifles frank discussion in the House.
Thus, the narrow door in the Pepper v, Hart case. We look only to the statements of the Minister or promoter, who might have more authority to provide evidence of intent, and then those statements themselves must be clear. We do not look to unclear statements of context to help us with an unclear text. But if we have ambiguity in the text and the “authority” in Parliament clearly states what was intended, we might use that evidence to support the interpretation that supports that intention. As to the prudential reasons dealing with inconvenience, cost, inaccessibility and so forth, supposedly we do not routinely run to the extrinsic material in every case, but rather only when we first have a real problem with alternative plausible solutions and we need to choose between them.
Doors that open a little usually end up open all the way. When a Minister is asked if a provision Y applies to situation X and then the Minister replies that provision Y is meant to cover situation X we may use that statement. But when the Minister tells the House, this statute is intended to achieve the following aim Z, supposedly we can’t use it as evidence of purpose. Does this make sense? Indeed, we might argue that the specific statements as to intention of meaning are actually more dangerous because they flirt with making the specific words of the Minister into law. The statements about purpose are more general, as to the aim of the provision, and arguably should be admissible for whatever light they shed.
b. Canadian Approach
The significant distinction in terms of comparing Canada to England is the difference between ordinary statutory interpretation on one hand and constitutional interpretation on the other. In terms of constitutional interpretation, our courts have long since opened the door to a wide variety of extrinsic material. However, in terms of ordinary statutory interpretation our approach to legislative context historically followed that of England. We did not allow such material to be used. However, even before the Pepper case in England, various Canadian courts deviated from the exclusionary rule, and finally it is now clear that, subject to considerations of reliability and weight, Canadian courts may resort to legislative materials. While the Supreme Court has not extensively discussed the doctrine, I would argue that we are not limited to Pepper guidelines. Indeed, we have the reverse of Pepper. It is much more likely that Canadian courts will look at statements from Parliament as to what was intended in terms of purposes or aims of the legislation, as compared to finding specific statements about the specific meanings intended in specific circumstances. Thus far, at least at the Supreme Court level, the use of this material is simply confirmative- that is, the court has reached a conclusion using all sorts of traditional methods and then the statements from Hansard are thrown in to confirm the interpretation already chosen as the correct one. There does not yet appear to be a case where the extrinsic material played the decisive role in leading the court to choose one meaning over another plausible meaning because of evidence of legislative intent found in the parliamentary material.
Now we back up to give a bit of historical detail as to these developments in Canada. We might start tracing the history with the constitutional case of Reader's Digest [l96l] S.C.R. 775. Reader's Digest was trying to show that a Federal Excise Tax on non-Canadian products was not really in relationship to the Federal power of taxation, but an unconstitutional infringement on "property and civil rights," a matter of provincial power. To do so, Reader's Digest wanted to introduce statements made by various Cabinet Ministers about what their intention was as to the provision. The Supreme Court of Canada said this was inadmissible. The Reader's Digest case, even though it was a Constitutional division of powers case- laid down the precedent that Parliamentary material was not admissible. As to pre-Parliamentary material the case was unclear - some Judges tended to the English view, later to be adopted in Black-Clawson that such material could be admitted for a limited purpose, while the majority suggested it should be excluded if objected to.
This state of affairs continued unabated until the famous Anti-Inflation Reference Case (l976) 9 N.R. 54l (S.C.C.). In its argument, the Federal Attorney-General submitted to the court a Federal White paper, entitled Attack on Inflation, which was tabled in the House of Commons in October l975 as a prelude to the Act, and also a bulletin from Statistics Canada about prices. Other interested parties filed "extrinsic" materials as well. For example, the Canadian Labour Congress filed a study by an Economics professor from Queen's University.
Now the court had to decide if any of this was admissible in this constitutional case. Laskin said that when dealing with the constitutionality of statutes we have to look at the effect of the statute so we can see what the statute is really about - whether it is unconstitutional because it really is about a provincial matter, for example. Laskin said however that we are not dealing with the interpretation of the Anti-Inflation Act because it is clear. We are not even dealing with the purpose of the Act because that is clear. What we are dealing with is a question of fact. Is there an emergency situation so that the Government can legislate under the peace, order and good government clause? So extrinsic evidence was admitted not to find the "intention of Parliament," but to determine if the Act was constitutional according to a constitutional criteria. Laskin said at p.556, "Extrinsic materials were addressed not to the construction of the terms of the Anti-Inflation Act, but to its constitutional characterization..."
So, you still have a limited use of extrinsic materials at this stage, not to find object or purpose of an Act, but rather to answer questions of fact in constitutional interpretation. In the Anti-Inflation case, however, the dissenting judgment of Beetz goes even further. Mr. Justice Beetz agreed that for the limited purpose of constitutional characterization fact-finding, pre-parliamentary material could be looked at, but he said we can also look at Hansard for this reason. And he did so. The Anti-Inflation case did not really change matters much in terms of ordinary statutory interpretation, but opened up the door for the use of legislative context in constitutional adjudication.
Since that time, and particularly after the Charter of Rights came into force, the courts have considered all sorts of legislative material and other so called "extrinsic materials" in constitutional cases. For example, as to division of powers issues, the Supreme Court looked at what was said in the Nova Scotia legislature as to the dominant purpose of legislation that prohibited a list of medical procedures from being performed outside of a hospital. Mostly on the bases of this evidence, the court concluded that the dominant purpose was to stop an abortion clinic, which was really a matter of the criminal law power outside of provincial jurisdiction. R. v. Morgentaler [1993] 3 SCR 463. We have to be mindful that when governments introduce legislation that is of questionable constitutionality, they now may speak strategically, knowing that their words may well be used in court.
When legislation is judicially reviewed under the Charter, the courts also look at the purposes and effects of the legislation especially if the court gets to s. 1 considerations as to whether the legislation is nevertheless a reasonable limit. But another issue is simply the use of extrinsic material to interpret the Constitution itself, rather than the ordinary legislation that is being tested for constitutional compliance. Americans have long debated the use of the Federalist papers or whatever other evidence is available as to the so-called original intent of the framers of the constitution. Can we look at all the committees and debates that went into the drafting of the Charter of Rights, or go back to the history of the BNA Act in 1867? The answer is yes, but the courts may give it little weight given our “living tree” dynamic approach to interpretation. See the Motor Vehicle Reference [1985] 2 SCR 486. The Canadian courts have already departed from the original meaning that the authoritative drafters and sponsors of the Charter had in mind as to s. 7 (the “due process” clause) and s. 15 (the equality provisions.)
But what about ordinary statutory interpretation? In Laidlaw v. Municipality of Toronto, 1978, the Supreme Court of Canada, dealing not with the constitutionality of an Act, but with the interpretation of an Act, namely the Ontario Expropriations Act, said that the Ontario Law Reform Commission Report was admissible for a limited purpose. Spence said for the whole court on page l65:
The Ontario Law Reform Commission submitted a report on the "Basis for Compensation on Expropriation." It has been established that such report may be considered not by seeking to interpret the statute in accordance with the recommendations made in the report but to determine the problem which faced the legislators and which they must have sought to meet in the new statute: The Expropriations Act, l968-69 (Ont.), c. 36, now R.S.O. l970, c. l54. Much authority may be cited for such proposition, but I refer only to Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [l975] l All E.R. 8l0 (H.L.), per Lord Reid at p. 8l4...
But in Crown Zellerbach v. The Queen (l978) 92 D.L.R. (3d) 459, a B.C. Supreme Court Judge without reference to authority appeared to go further by using a B.C. Law Reform Commission Report to find the purpose of an Act, not just as background on the "mischief." However, in Morquard Properties v. The City of Winnipeg (1983) 3 DLR 1, the Supreme Court of Canada reaffirmed that pre-parliamentary materials could only be looked at to give you evidence of the external context of the legislation- the problem or “mischief” to be dealt with, but could not be looked at for purposes of giving direct evidence of what the solution was- what the provisions of the legislation meant.
As to parliamentary material, in Stevenson v. R. (l980) l9 C.R. (3d) 74 (Ont. C.A.), a hint at a new approach to the use of Parliamentary materials was made. The court said at 80:
We turn now to the matter of parliamentary debates relating to the predecessor of s.l26(b). We shall deal with this issue quite briefly. Undoubtedly the great weight of authority is against the use of parliamentary debates as an aid to the interpretation of statutes. However, we would note that Lord Reid, although he more than once affirmed this general rule, suggested in Warner v. Metro. Police Commr., [l969] 2 A.C. 256 at 279, 52 Cr. App. R. 373, [l968] 2 All E.R. 356 (H.L.), that there might be some scope for an exception "where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other." In the present case the parliamentary debates were filed with us, together with the other appeal papers, without objection (although the respondent did not concede that they were legally admissible), and we have read them. It is fair to say that they fall short of showing that the proponent of the bill in question intended it to be confined to affidavits which "would be relied upon in a judicial, administrative or business proceeding" (appellants' statement, para. 20). Even if Lord Reid's suggested exemption were to be resorted to in this case, the debates do not meet the standard enunciated by him, and they are therefore of no assistance in resolving the issue before us.
This idea of evidence of "specific intent" found fruition in Babineau v. Babineau (l98l) l22 D.L.R. (3d) 508 (Ont. H.Ct.) - affirmed by the Ontario Court of Appeal, where the court quoted excerpts from Hansard to see if they would "certainly settle the matter one way or the other."
Despite the Babineau decision and the use of very old legislative history in Vasil (l98l) 58 C.C.C. (2d) 97 (S.C.C.), the whole matter was thrown into doubt by Dickson's judgment in Re Residential Tenancy's Act of Ontario (l98l) 37 N.R. l58 (S.C.C.). The case was a constitutional case, but Dickson chose to also comment on the use of both pre-parliamentary and parliamentary material in regular statutory interpretation matters. While opening up the door for legislative history in constitutional characterization matters, Dickson might be interpreted to slam it shut on statutory interpretation matters. He said at l66:
A constitutional reference is not a barren exercise in statutory interpretation. What is involved is an attempt to determine and give effect to the broad objectives and purpose of the Constitution, viewed as a "living tree," in the expressive words of Lord Sankey in Edwards v. Attorney General for Canada, [l930] A.C. l24. Material relevant to the issues before the court, and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction. See Laidlaw v. The Municipality of Metropolitan Toronto, [l978] 2 S.C.R. 736, at p. 743; 20 N.R. 5l5, …
While other cases could be mentioned, we might jump ahead to a point where the Supreme Court was divided on this issue. In the case of Findlay v. Canada (1993) 101 D.L.R. 4th 567 the court split 5 to 4. The majority of the court refused to use statements by the Minister in the House of Commons to aid in interpretation, while the minority of 4 used such statements in their dissent. It is noteworthy that for the majority, Sopinka did not slam the door on the use parliamentary material, but rather stated at 575:
Given my resolution of this question of statutory interpretation on the basis of the wording of the provision read in light of the overall scheme and object of the Act, I do not find it necessary to resort to less reliable guides to statutory interpretation such as legislative debates.
For the dissenting judges, McLachlin J said at 596:
Recognizing that reference to legislative debates has sometimes been said to be of limited assistance and that it is the wording of the statute which must prevail..., the debates may nevertheless serve to confirm the appropriateness of a particular statutory interpretation...
She then went on to quote from several statements made by the Minister responsible for the legislation in the House of Commons.
The case of Findlay in 1993 proved to be a turning point and subsequently the Supreme Court has frequently looked at parliamentary materials to confirm the choice that the court has justified on more conventional grounds.
5. CONCLUDING REFLECTIONS
This is but an overview of some important matters having to do with the ascertainment or assignment of meaning to legislative texts. There are a host of presumptions that you need to learn. One of the most important is the presumption against retroactivity which we will talk about in class. But by way of conclusion to what we have covered here, you may ask yourself, “Why do we have such fundamental disagreements about statutory interpretation in terms of methodology?” Is it possible that the heart of the disagreement is really a matter of the attitude that we bring to the task? One attitude is that we must interpret the text with the emphasis on the public reader of the text. What is the “objective” meaning of the text as conveyed to the ordinary reader? Another attitude is that we must interpret with the emphasis on the “subjective” intention of the maker of the text. We want to be faithful to the supremacy of Parliament and work cooperatively in implementing the policy choices of our lawmakers. Another attitude is that we must interpret the text with an emphasis on the real-world consequences that we want to advance. When you have choice, do what you think results in the best consequence in terms of justice. This indeterminacy should not be taken too far. There may be a range of possible choices in interpretation, but within a legal community of widely shared linguistic and legal conventions, the words of the legislation constrain interpretation.