Chapter-13 Modern --Part-2

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

However, in R. v. Creighton, [1993] 3 S.C.R. 3, Lamer C.J. came around to an interpretation based on the "modern" method, that is, an interpretation that rejected the "plain meaning" of the term "unlawful act" under s. 222(5)(a) of the Criminal Code. That interpretation is part of a line of decisions that originated with R. v. Larkin (1942), 29 Cr. App. R. 18: see R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 958-59. Although in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 14, Lamer C.J. stated that his support for the "modern" method was based on the presumption of constitutionality, that presumption is not actually the basis for the line of decisions in question. Moreover, in Ontario v. Canadian Pacific Ltd., Gonthier J., writing for the majority, used the "modern" contextual interpretation method

This Court subsequently used the "modern" interpretation method again: in R. v. Lewis, [1996] 1 S.C.R. 921, at para. 68, that method, as formulated by Professor Sullivan, was cited with approval by my colleague Iacobucci J.:

In order to arrive at the correct interpretation of statutory provisions, the words of the text must be read in context: see Driedger on the Construction of Statutes [3rd ed. 1994], at p. 193, and Côté, supra, at p. 257.

The "modern" method was also used by this Court in McIntosh, supra, at paras. 58-59, where my colleague McLachlin J. stated the following in dissent:

But even if the words were plain, the task of interpretation cannot be avoided. As Driedger on the Construction of Statutes (3rd ed. 1994) puts it at p. 4, "no modern court would consider it appropriate to adopt that meaning, however "plain", without first going through the work of interpretation".

The point of departure for interpretation is not the "plain meaning" of the words, but the intention of the legislature. . . . To quote Driedger, supra, at p. 3: "The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences". . . . The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator.

However, this Court now seems to have returned to the former "plain meaning" method in Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550, at paras. 21-22:

While the parties' use of these various interpretive techniques is adept, a full discussion of these techniques is unnecessary to the resolution of this appeal. This is so because the language and context of the provisions in question make their meaning clear.[1]

To state the obvious, the first step in a question of statutory interpretation is always an examination of the language of the statute itself. As E. A. Driedger wrote in his text, Construction of Statutes (2nd ed. 1983), at p. 87:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something . . . to show that they were used in a special sense different from their ordinary grammatical sense.

Legal scholars and practitioners have long been critical of the failure of Canadian courts to adopt a consistent and coherent approach to statutory interpretation.[2] However, beginning with the recent case of Rizzo & Rizzo Shoes Ltd. (Re) [3]a majority of the Supreme Court has applied, with varying degrees of elaboration, the "modern contextual approach" advocated by L'Heureux-Dubé J. This approach has gained wide acceptance. It has been adopted by Supreme Court[canada][4] Perhaps the best-known statement of the contextual approach is found in Driedger on the Construction of Statutes:

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[1] Please Refer Qubec.[supra]

[2] See, for ex., R. Sullivan, "Statutory interpretation in the Supreme Court of Canada" (1998-99), 30 Ottawa L. Rev. 175; and Geof R. Hall, "Statutory Interpretation in the Supreme Court of Canada: The Triumph of a Common Law Methodology" (1998), 21 Advocates' Q. 38. Both authors offer persuasive rejections of limited or formulaic approaches to interpretation. Instead, they both favour a pragmatic and contextual approach which mirrors the approach taken by the courts in making common law rules. See also W. N. Eskridge and P. P. Frickey, "Statutory Interpretation as Practical Reasoning" (1990), 42 Stan. L. Rev. 321, an article which influences the thinking of both Sullivan and Hall.

¹⁶ [1998] 1 S.C.R. 27, at paras. 21-23.

[4] Merck & Co. v. Nu-Pharm Inc. (2000), 5 C.P.R. (4th) 138 (F.C.A.), at paras. 36-37.