Legislative Intent and Ordinary Meaning

Mark Mancini

The modern approach in statutory interpretation requires courts to consider the text, context, and purpose(s) of the enactment. That much is clear. But alongside this instruction, there is another: courts should start with the text (CISSS A, 2024 SCC 43, at para 27). This instruction is ambiguous because, as Vanessa MacDonnell says, there is a difference between starting with the text and seeing it as a dominant consideration.  

In Telus Communications Inc  v Federation of Canadian Municipalities, 2025 SCC 15 the Supreme Court provides detail on what it means to “start with the text.” In so doing, it provides a deeper perspective on a suite of recent Supreme Court cases emphasizing that the text is the “anchor” of interpretation: see CISSS A, 2024 SCC 43 at para 24; see also MediaQMI v Kamel, 2021 SCC 23; Piekut v Canada (National Revenue), 2025 SCC 13). As Telus v FCM implies, the text anchors interpretation by revealing how Parliament intended to achieve broader legal change. If it is true—as the Supreme Court has said time and time again—that legislation inevitably involves compromises, then any interpretation of the text must give effect to these tradeoffs, often represented through drafting choices (see The King v Dubois, [1935] SCR 378 at 381; R v Archambault, 2024 SCC 35 at para 66). Starting with the text prevents interpretive “arguments or rationalizations” that distort these tradeoffs (see The Honourable Justice Malcolm Rowe and Michael Collins, “Methodology and the Constitution” (2021) 42 Windsor Rev Legal Soc Issues at 7).

Telus addressed the meaning of “transmission line” in the Telecommunications Act. The statute grants telecommunications carriers a qualified right of access to construct transmission lines situated on public property, and the Canadian Radio and Telecommunications Commission [CRTC] adjudicates disputes when a carrier cannot obtain consent from a public authority. The question in Telus v FCM was whether the qualified right of access and CRTC jurisdiction applied to 5G wireless antennae, technology unknown at the time of the Telecommunication Act’s enactment.

For a majority, Moreau J concluded that 5G antennae did not fit in the ambit of the statutory term. Her conclusions rests on several premises. First, evaluating whether the term “transmission line” encompasses 5G technology involves determining the original meaning of the term, but doing so involves the application of the normal tools of statutory interpretation (see Andy Yu, “What Does it Mean to Say that Statutes are ‘Always Speaking’?”). In this sense, there is “no contradiction” between the original meaning canon and the normal tools of interpretation, keyed to the intent of the legislature. Second, Moreau J concluded that the ordinary and original meaning of the term “transmission line” encompassed a requirement of physicality, capturing “wireline” technology, whereas 5G antennae “do not transmit intelligence along physical pathways” (Telus v FCM, at para 45).  Finally, Moreau J disagreed that the access regime’s purposes could supplant the text’s ordinary meaning, stating that general statutory purposes do not permit interpretations inconsistent with text and context. She emphasized respecting Parliament’s calibrated balancing of competing interests within the access regime (Telus v FCM, at para 71).

Moreau J’s opinion reveals how courts should “start with the text” in the modern approach. Key to the argument is the Telecommunications Act’s complex balancing of policy concerns, reflected in Parliament’s textual choices. The starting point is the text of “transmission line” itself.  For Moreau J, that term was semantically narrow, bound to a definition that required physical connection. That would be different from a term that was general or open-ended, which might invite greater specification by statutory purpose. This boundedness played an important role in the statutory plan, because the context showed a clear distinction between wireline and wireless technologies (Telus v FCM, at para 73). Importantly, the Radiocommunication Act—a related statute— established specific procedures for antennae installation, whereas the Telecommunications Act did not. Moreau J viewed this institutional design choice as balancing various policy objectives. For example, allowing a qualified right of access to public property for 5G technology would ignore specific risks that the installation of wireless technologies pose for municipalities (Telus v FCM, para 73).   These include the interaction of antennae with other electronic equipment and potential environmental concerns not necessarily present with wireline technology. Moreau J viewed this distinction as striking a balance between these competing interests.

Moreau J then relied on the tradeoffs evident in the text to reject the proposition that the policy objectives of the Telecommunications Act could stretch the ordinary and original meaning of the term “transmission line.” The carriers contended that treating wireless and wireline infrastructure separately would lead to an inconsistent regulatory approach that regulates technologies differently while undermining the orderly rollout of new telecommunications technology. This argument engaged the purposes of the Telecommunications Act which included (1) the “orderly development” of telecommunications in Canada; and (2) technological neutrality.

Legislative purpose is a slippery concept. As Reed Dickerson wrote in his work on statutory interpretation, legislative purpose “provides a strong temptation to perform the bootstrap operation of formulating a ‘legislative purpose’ with one eye on the situation to which it is to be applied.” The bootstrapping line of argument was well-represented in the opinion of Judge Keen in Lon Fuller’s famous “Speluncean Explorers”:

The process of judicial reform requires three steps. The first of these is to divine some single “purpose” which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called “the legislator,” in the pursuit of this imagined “purpose,” overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill in the blank thus created. Quod erat faciendum.

A strand of the carriers’ argument mirrored this “bootstrapping.” They first identified the purposes of the access regime, then suggested that a wireline interpretation of “transmission” line would lead to a gap or absurdity, undercutting a cohesive, technologically neutral regulatory approach (Telus v FCM, at para 75).  Specifically, Côté J’s dissent noted that “[c]arriers would have the possibility of resorting to CRTC adjudication to obtain access to install the wired component of 5G small cells, with no such possibility for the installation of the other component” (Telus v FCM, at para 140).  This “absurdity” required an ambulatory approach to the term “transmission line” to encompass 5G technology.

Moreau J is right to reject this bootstrapping by starting with the text. For one, it is not clear that the purposes of the statute lead inexorably to the carriers’ proposed interpretation. Indeed, it could be just as supportive of the “orderly development” of telecommunications for Parliament to distinguish between wireless and wireline technologies. In addition, the semantically-bound term “transmission line” is narrow and defined, limiting CRTC jurisdiction and supporting a difference in regulatory approach between wireless and wireline technology. These two institutional design and drafting choices: (1) a defined term; and (2) a legal distinction between wireline and wireless technology are not sufficiently accounted for in the carriers’ argument on purpose.

Côté J contended that another statute’s existence doesn’t imply an intent to exclude antennae from the access regime (Telus v FCM, at para 128). However, Moreau J viewed the Radiocommunications Act‘s specific procedures for wireless antennae as significant, indicating Parliament’s distinct treatment of them. As a result, she took a deferential approach to the ordinary meaning of Parliament’s scheme, seeing not a “gap” but a reasoned—if imperfect—choice. As Groberman JA of the British Columbia Court of Appeal recently said, some statutory texts do not perfectly capture their higher-level purposes (see 1164708 BC Ltd v British Columbia, 2025 BCCA 76 at para 28). Rather than proceeding from a normative assessment of what Parliament’s purposes require, Moreau J asked if and how the textual scheme achieves the purposes of orderly communication and technological neutrality.

This is a meaningful difference in approach. But in the end, it is the text through which Parliament achieves its objectives that the court must interpret: MediaQMI, at para 39. Starting with the text prevents the interpretive approach that Judge Keen warned against. And it serves the valuable role of preserving the legislative work product, a product of several tradeoffs in a situation of regulatory complexity. ■

MARK MANCINI is an Assistant Professor at the Thompson Rivers University, Faculty of Law. He studies administrative law and statutory interpretation.