Dynamic Statutory Interpretation: Connotation, Denotation and Judicial Updating
In my factum for the Telus case (noted here), I discussed two ways in which courts can engage in dynamic statutory interpretation. I represented the Canadian Telecommunications Association. I thought it might be helpful to reproduce the relevant portions of the factum here.
Commonwealth courts manage the difficult task of applying statutory provisions to changing circumstances in two different ways. First, courts distinguish between the “connotation” (textual meaning) and “denotation” (purposive application) of statutory terms. Second, in appropriate circumstances, courts apply the principle of dynamic interpretation to statutory language to give effect to the legislature’s purpose, especially in situations characterized by social change where achievement of that purpose would otherwise be thwarted.
Both techniques use text, context and purpose to ensure courts can reconcile static language with a dynamic society.
Distinguishing between connotation and denotation
When considering text, courts accept that language evolves to mean different things over time. The textual meaning of a term (its connotation) is constant. But the application of a term (its denotation) may change in response to society’s evolution, consistent with statutory purpose. As Lord Bingham explained, “[i]f Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now”.[1]
Where the text of a statutory term admits of a level of generality, it can be applied to contemporary circumstances not in the legislature’s contemplation at the time of enactment and consistent with statutory purpose. It is only where a statutory provision has a narrow, technical meaning that connotation and denotation will be coextensive. Otherwise it is presumed that the legislature intended its meaning “to be fleshed out on a case-by-case basis”,[2] with close attention to the connotation/denotation distinction and statutory purpose.[3]
Lord Steyn, in R v. Ireland,[4] wisely commented that “[b]earing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes” before going on to state that “generally” statutes will be interpreted as being ‘always speaking’. Hence in Ireland, the House of Lords held that “bodily harm” in an 1861 statute now encompassed recognizable psychiatric illness. And in Aubrey the High Court of Australia held that the transmission of HIV could constitute the infliction of grievous bodily harm.[5]
Technological change has also been a factor in the application of the connotation/denotation distinction. For instance, in Lake Macquarie Shire Council v. Aberdare County Council,[6] the High Court of Australia had to decide whether the term “gas” meant coal gas or also included liquified natural gas. Coal gas was the only type of gas known to the legislator at the time of enactment. Nonetheless, Barwick CJ held that “although the connotation of the word ‘gas’ was fixed, its denotation could change with changing technology”.[7] Similarly, in Muin v. Refugee Review Tribunal, where the issue was whether a “document” includes information stored electronically and that is capable of being printed, McHugh J held that no distinction should be made “between information stored on paper and information stored in the electronic impulses of a computer that can be printed on paper by pressing a key or keys on the computer’s keyboard”.[8]
In each of these instances, the text of the statutory provision at issue was general enough to require attention to the connotation/denotation distinction. Whether a new matter fell within the ambit of the statutory provision was then determined by reference to the purpose of the particular statutory provision. In this way, the connotation/denotation distinction is an integral part of the modern approach to statutory interpretation, requiring consideration of statutory text and purpose.
In Canada, the federal Interpretation Act makes this “always speaking” rule a principle of statutory interpretation.[9] This makes an appreciation of the connotation/denotation distinction fundamental to the task of divining statutory meaning and applying it to a particular set of facts, as this Honourable Court has recognized: “The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day”.[10]
Professor Sullivan, too, appreciated the importance of the connotation/denotation distinction. As she commented in her oft-cited text, “[i]f the new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force, the courts have no difficulty in applying the legislation to the new facts” – and she pointed out that “[t]his is so whether the new facts have arisen because of changes in social attitudes or institutions or because of new technology.[11]
In short, the connotation/denotation distinction favoured by courts in the Commonwealth is already an integral part of the modern Canadian approach to statutory interpretation.
Dynamic updating of statutory provisions
There may be circumstances in which it falls to the courts to update statutory provisions, where necessary to give effect to statutory purpose. Again, this Honourable Court has acknowledged that this is an appropriate exercise of the judicial function: “Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities”.[12]
The fundamental question, in determining whether to judicially update a statute, is whether doing so would be consistent with the purpose the legislature was seeking to achieve.
The United Kingdom Supreme Court faced this issue in Yemshaw v. Hounslow LBC.[13] Here, the question was whether the word “violence” in s. 177(1) if the Housing Act 1996 should be construed as including non-physical violence. This was highly consequential, since a woman who left the marital home because of “violence” would be considered unintentionally homeless, and be thereby eligible for municipal housing. For Lady Hale, “violence” in contemporary society needed to be construed as encompassing non-physical action, because of the purpose of the statute:
[Violence] is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. There is no comprehensive definition of the kind of conduct which it involves in the Housing Act 1996: the definition is directed towards the people involved. The essential question…is whether an updated meaning is consistent with the statutory purpose – in that case providing a secure home for those who share their lives together. In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere.[14]
This does not, as some might suggest, permit a court to adopt any interpretation it deems desirable or to engage in reverse engineering.[15] Any interpretation must conform to statutory text, purpose and context. The point is neatly and explicitly made in Ireland’s Interpretation Act:
In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit.[16]
Professor Sullivan suggests that when interpreting statutory language dynamically courts should not second-guess the legislature or make policy choices: courts should avoid “decisions that involve the balancing of competing interests or the allocation of resources among competing needs”.[17] But Yemshaw was just such a case, where the United Kingdom Supreme Court made a highly consequential, policy-infused decision to update the meaning of “violence” to account for social change. Comparative jurisprudence thus teaches that where the legislature has already considered the balancing of competing interests or the allocation of resources, judicial restraint would be inappropriate if dynamic interpretation would give better effect to legislative purpose.
[1] R. (Quintavalle) v. Secretary of State for Health, [2003] UKHL 13; [2003] 2 AC 687, at para. 9.
[2] Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555, at para. 22, per Miller JA.
[3] It is unnecessary, with respect, for Professor Sullivan to treat “discretion” as a stand-alone factor in respect of dynamic statutory interpretation (Sullivan, at § 6.03[4]). Statutory text can be relatively broad or relatively narrow: Vavilov, at para. 110. Sometimes, it will be so broad as to amount to a “discretion”. But unless the text has a narrow, technical meaning the interpreter must focus attention on the connotation/denotation distinction: this is inherent to the statutory interpretation analysis, not a stand-alone quest for “discretion”.
[5] Aubrey v. The Queen, [2017] HCA 18 (“Aubrey”).
[6] [1970] HCA 32 (“Lake Macquairie”).
[7] Aubrey, at para. 29; Lake Macquairie, at paras. 12-15. This is subject to a sensible exception in the area of criminal law: The Queen v. A2, [2019] HCA 35, at para. 141.
[8] [2002] HCA 30, at para. 104.
[9] RSC 1985, c I-21, s. 10. See also New Zealand’s Legislation Act 2019, s. 11: “Legislation applies to circumstances as they arise”.
[10] R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 SCR 575 (“974649”), at para. 38.
[11] Sullivan, at § 6.03[3].
[13] [2011] UKSC 3, [2011] 1 WLR 433 (“Yemshaw”).
[14] Ibid. at para. 27. Emphasis added. See also ibid. at para. 44 (Lord Rodger); Fitzpatrick v. Sterling Housing Association Ltd., [2001] 1 AC 27, at para. 16.
[16] Interpretation Act 2005 (Ireland), s. 6. Emphasis added.
[17] Sullivan, at § 6.03[7].
This content has been updated on April 30, 2025 at 13:43.