Legislative Intent and Ordinary Meaning

Andy Yu

Statutes are “always speaking”. That’s “trite law”, or so it’s been said (by Andrew Burrows, before he joined the UK Supreme Court). But the metaphor has also been described as “arresting but enigmatic” (Lord Leggatt (concurring), in the recent UK case of News Corp [2023] UKSC 7). What does it mean to say that statutes are “always speaking”? Curiously, many people haven’t heard of this “always speaking” principle of statutory interpretation, although it’s long been part of the law in Commonwealth jurisdictions. And those who have heard of it wonder what it means. In this blog post, I’ll introduce readers to the principle and try to demystify it.

Let’s start with the history of the principle. The principle originated as a drafting principle. Drafters once used the future tense to refer to things that, from their perspective, are in the future, as in “Whoever shall assault another person shall beguilty of a felony.” But this was awkward, so the English barrister George Coode, in his influential drafting manual from 1845, recommended using the present tense, as in “Whoever assaults another person is guilty of a felony.” In using the present tense, one might worry that the language only applies to facts occurring at the time of enactment, even though legislative language typically targets facts occurring at later times too. Coode responded to this worry by suggesting that by taking legislative language to be “always speaking”, the language applies to facts whether they occur at or after the time of enactment. Soon, the drafting principle became a principle of statutory interpretation. Courts recognized the principle in the common law, and legislatures codified the principle. Canada was the first to codify the principle, in interpretation statutes from as early as 1859 and 1867, and today the principle remains codified in both federal and provincial statutes. Section 10 of Canada’s Interpretation Act, for example, reads: “The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.”

Although the “always speaking” principle has been around for a while, it’s only been in the last few decades and especially the last few years that lawyers, judges and scholars have started paying more attention to it. Judges don’t often discuss the principle in much depth, but scholars have been debating what exactly the principle is and whether we’re better off with or without it.

So, what does it mean to say that statutes are “always speaking”? The doctrine associates the “always speaking” principle with “dynamic” (or “ambulatory” or “progressive” or “updating”) interpretation: the principle entitles courts to interpret statutes given legal, social, scientific or technological change. A leading case is Tataryn v Tataryn Estate, [1994] 2 SCR 807, in which the Supreme Court of Canada interpreted statutory language providing for an “adequate, just and equitable” provision from a testator’s estate given social change. The Court invoked the “always speaking” principle to conclude that what mattered was what was thought to be adequate, just and equitable at the time of the case, in the 1990s, rather than what was thought to be so at the time of the statute’s enactment, in the 1920s. Although the narrower 1920s approach was based on what was required to support or maintain the testator’s spouse and children, the broader 1990s approach was based on the testator’s marital and parental duty. On the facts, the Court awarded the applicant wife the bulk of the testator husband’s estate, this being what was “adequate, just and equitable” based on the 1990s approach. More recent apex court cases in Canada, the UK and Australia have affirmed the identification of the “always speaking” principle as entitling dynamic interpretation (see R v 974649 Ontario Inc, 2001 SCC 81; Telus Communications Inc v Federation of Canadian Municipalities, 2025 SCC 15; Burstow R v Ireland, R v [1997] UKHL 34; News Corp UK & Ireland Ltd v Revenue and Customs [2023] UKSC 7; Aubrey v The Queen [2017] HCA 18). Statutory interpretation treatises do the same (see Bennion, Bailey and Norbury on Statutory Interpretation, Craies on Legislation and Chad Jacobi’s Interpretation Acts).

What should we make of this doctrinal understanding? Much of the scholarly criticism is to the effect that it’s somehow mistaken. One version of this criticism, articulated by Dan Meagher and Jeffrey Goldsworthy, is that the doctrinal understanding improperly entitles courts to change the meaning of a statute, contrary to constitutional principles involving legislative sovereignty, the separation of powers and the rule of law. A different version of this criticism, articulated by Martin David Kelly, is that the doctrinal understanding improperly departs from Coode’s understanding of the principle and improperly conflates the “always speaking” label with distinct principles. (Kelly recently wrote his PhD thesis on the principle and is developing his careful, sophisticated and extensive work on the topic into a book and multiple articles. I’ve learned a great deal from Kelly’s work, and a fascinating interview with him on the topic first got me interested in the topic.)

My own view is that, for better or for worse, we should try to make sense of the doctrinal understanding. It’s one thing for a court in an isolated case to have an “erroneous” understanding of the principle; it’s quite another for apex courts in multiple jurisdictions across the Commonwealth to converge over time on an understanding. In draft work, I’ve been developing an account of the “always speaking” principle that tries to make sense of the principle and of the doctrinal understanding of it. On the account, statutory language is generally “always speaking”, and statutory language that’s “always speaking” expresses what I call a “live” concept rather than what I call a “frozen” concept. The account incorporates insights from the philosophy of language by employing the distinction between a concept’s intension, or criterion of application, and the concept’s extension, or range of application. While a frozen concept must have constant extensions and intensions, live concepts can have variable extensions across time.

Although I can’t go into the details of the account here (feel free to email me for a draft!), I’ll conclude this post by mentioning some lingering questions about the “always speaking” principle and how my account offers answers to those questions.

First, what if anything does the “always speaking” principle have to do with the much better known “modern” principle of statutory interpretation? One criticism, made by Jacinta Dharmananda, of the “always speaking” principle is that it’s redundant given the modern principle, which holds that we are to interpret statutory language given the entire context. On my account, the “always speaking” principle works together with the modern principle: applying the modern principle in some context may lead to the conclusion that the statutory language is, or alternatively isn’t, “always speaking”.

Second, is the “always speaking” principle consistent with the arguably equally well established “original meaning” principle, which holds that statutory language has the meaning it had at the time of enactment? Some judges and scholars suggest that each principle applies to the exclusion of the other, while others suggest that they’re compatible. I suggest distinguishing between a weaker and a stronger version of the “original meaning” principle: the weaker version holds only that the meaning of statutory language depends on the meaning or concept that the language expressed at the time of enactment, while the stronger version adds that the concept that the language expressed at the time of enactment was a frozen one. On my account, the “always speaking” principle is consistent with the weaker but not the stronger version of the “original meaning” principle.

Third, to what extent does the “always speaking” principle embrace conceptual change? On my account, courts can properly invoke the principle to recognize conceptual change, as the Supreme Court of Canada in Tataryn did to recognize the changed concept of what’s adequate, just and equitable. But the entitlement to recognize conceptual change is consistent with constitutional principles involving legislative sovereignty, the separation of powers and the rule of law. Courts must give effect to the concept expressed by statutory language at the time of enactment (consistently with the weaker version of the “original meaning” principle). The “always speaking” principle entitles courts to give effect to that concept as it exists at the time of interpretation rather than as it existed at the time of enactment, where the concept remains that very concept (as opposed to another) but may have changed in some respects.

There’s much more to say, of course, but lest I be “always speaking”, I’ll end here. Whether or not you agree with my commentary, I hope you’ll agree that the “always speaking” principle is as interesting as I think it is. For the interested reader, I’ll close by recommending an excellent recent article on the topic by Martin David Kelly: “Applying Laws Across Time: Disentangling the ‘Always Speaking’ Principles”.