Permissive v. Restrictive (Assumptions)

[66] Subsection 126(1) begins as follows: “The Minister ... may disclose or communicate personal information ...” [emphasis added]. Under s 28(2)(c) of the Interpretation Act,

In an enactment, ...

(c) “may” shall be construed as permissive and empowering.

[67] Paragraph 28(2)(c) is compelling. However, s 3(1) of the Interpretation Act qualifies its application: “This Act applies to the interpretation of every enactment except to the extent that a contrary intention appears in this Act or the enactment” [emphasis added]. Professor Sullivan has cautioned that “may” language is not determinative. Statutory context may dictate that what might appear to signal a discretion is actually an obligation. “Both conceptually and in practice, permission and obligation are overlapping categories. An official who is obliged to do a thing is implicitly permitted to do it; an official who is permitted to do a thing may, in addition, be obliged to do it:” Construction of Statutes, §4.57. “The interpreter must determine whether there is anything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power:” Construction of Statutes, §4.62. See Alberta v Sykes at paras 24 and 31.

[68] It is not that the word “may” can ever itself be transformed to mean “shall.” Rather, the authority or power denoted by “may” could be coupled with a duty. The duty would be inferred from statutory purpose and other aspects of the Act or (as in the SKD case) from legislative or constitutional sources outside the Act.