Interpretation and the Value of Law II

This post is written by Leonid Sirota and Mark Mancini.

We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.

Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.

The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.

Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.

  1. The Rule of Law and the Concept of Law, Again

For our interlocutors, “it is clear” that when we say that interpretation must strive for neutrality in order to enable law to guide the members of a pluralistic society, we are “operating within a positivist legal framework”. At the same time, they suspect us of wanting to smuggle a substantive agenda of expanding pluralism into our interpretive views. Respectfully, they are simply mistaken about this. To be sure, as they suggest, the idea of law as a guide for citizens, and hence of the importance of the law’s compliance with the requirements of Rule of Law that make its guidance effective, is an important feature in the work of some positivists, such as Joseph Raz. But its not the positivists’ exclusive preserve.

Consider Professor Waldron’s argument that we need “to overcome casual positivism―to keep faith with a richer and more discriminating notion of law” (19) ― and further, that “[i]t is a mistake to think that a system of rule could be a legal system if there is no publicly accessible way of identifying the general norms that are supposed to govern people’s behavior” (26). Guiding behaviour, including by enabling and encouraging self-application of publicly available rules by those subject to them, and so upholding human dignity, is a key feature of the Rule of Law discourse, but also, Professor Waldron urges, of the very concept of law. This argument was as much on our minds as Professor Raz’s.

And if Professor Waldron might still be regarded as a positivist, trying to merely formulate a better version of that school’s doctrine, Lon Fuller is, alongside John Finnis and Ronald Dworkin, the epitome of Anglo-American non-positivism. And the idea of law as a guide is perhaps best represented in his famous parable of King Rex, the hapless legislator who repeatedly failed to make laws that his subjects could follow. For Fuller too, the requirement that law be framed so as to outline the state’s expectations of its citizens is a matter of respecting human dignity. It is also a matter of what he describes as reciprocity between those in power and those subject to their decisions. The former can expect compliance if, and only if, they frame their demands in such a way that the latter can make sense of them.

The real issue between our interlocutors and us, we suspect, is not a conflict between positivism and natural law, to which one of us (Sirota) is rather sympathetic. Nor is it our commitment to some nihilistic form of neutrality or, conversely, pluralism. As to the former, substantive legislation is of course not neutral―it embodies the commitments of its makers. The task of an interpreter is to ascertain and give effect to these commitments. To do so well, the interpreter must try to bring both established semantic, contextual, and substantive interpretive tools, and (most importantly) an equanimous disposition to his work―precisely to give effect to the commitments made by those with the authority to enact legislation and avoid imposing his own. A judge interpreting the law will never be perfectly neutral in fact, but an interpreter has no business abusing his position to advance pluralism in law, anymore than he is free to make the law more conservative, more progressive, or anything in between (this point was put eloquently by Justice Stratas in Kattenburg, at para 45). 

Lastly, the issue between our interlocutors and us is not a disagreement about whether law should be infused with reason rather than being a matter of raw power. What we disagree about is how reason matters. For us, as for Fuller, what matters is “the inner morality of law”, or its “artificial reason” as Coke put it ― the morality or reason of legal craft and technique, which ensures that law is intelligible to all those subject to it, simply because they are thinking, reasoning human beings, and which is inherent in the enterprise of governing through law, properly understood, rather than emanating from some benevolent ruler whom the  “[s]ubjects will come to thank”. Our interlocutors’ focus is less on form and more on the content of the law; the reason they appeal to is more substantive than the one on which we focus. We turn now to the substance of their argument.

2. The Motte and Bailey of the Common Good Approach

As we note above, the second broad point we wish to make relates to the ambiguities, whether studied or inadvertent, in our interlocutors’ arguments. We outline three areas where our interlocutors’ positions are confusing. In each, our interlocutors could, on one hand, be advancing controversial propositions about the way texts are interpreted—propositions which could run against the need to avoid outcome-based reasoning. On the other hand, our interlocutors’ position could be wholly uncontroversial, simply relating to the relative place of various interpretive tools (like purpose). If it is the former, our interlocutors should say so clearly. If it’s the latter, our interlocutors should disclaim some of the more controversial purposes for which their arguments could be used.

(A) The Natural Law Motte-and-Bailey

Our interlocutors spend a lot of time talking about natural law. They see it as reflected in the legislative process itself—to them, the natural law tradition asks us to “construe the law itself as permeated by reason.” In a passage bound to feel rather opaque to non-aficionados of the tradition, our interlocutors argue that “[n]atural law reflects an idea of reason immanent in the positive law and lends it intelligibility; while in making its general precepts more specific, the positive law realizes and makes concrete the otherwise abstract elements of the natural law.” More specifically, our interlocutors suggest (putatively relying on Justice Miller in Walsh) that all legislation is designed for the “common good.” So, for our interlocutors, it appears that a reflection on the natural law and the “common good” is inherent in the activity of legislating itself. Even the Constitution, they claim, is influenced by the idea of the “common good.”

We question whether the “common good” can mean the same thing in all these contexts. Hand-waving towards Aquinas or a “model opinion” does not adequately answer this question. Our interlocutors seem to assume that the “common good” as a theoretical matter has been stable across time—from the Angelic Doctor to Justice Miller in 2021. This seems intuitively wrong. Even according to those who subscribe to the natural law tradition, there are debates about what the natural law prescribes.

But ultimately, what we are interested in is how this all bears on legal interpretation; how jurists have applied this idea of the “common good” in relation to real cases and current circumstances. Here, we notice that our interlocutors’ suggestion that appeals to natural law and to the common good are nothing more than reminders of the law’s rationality and pursuit of ascertainable purposes is by no means the only view. Adrian Vermeule, for his part, argues for a “substantively conservative” approach to interpretation designed to support the rulers in endeavours—as Vermeule describes it—to “legislate morality” and to support “the traditional family.” This seems to be a fundamentally different use of the term “common good” than our interlocutors propose.

These two radically different approaches are deployed in typical motte-and-bailey fashion. When outlining their own agenda, the latter-day promoters of the “common good” and natural law support Vermeule’s project to use interpretation to stop the “urban-gentry liberals” from prioritizing their own “financial and sexual” satisfactions, on the basis of external values that exist outside of constitutional and statutory texts. When pressed, however, they retreat to the seemingly innocuous claims about law’s rationality, made to appear rooted in legislation and the Constitution.

These two positions are incompatible. If our interlocutors wish to claim that the pursuit of the “common good” is inherent in the act of legislating, that is a proposition we would be prepared to entertain within the context of deciding what a particular text means, although at least some (and perhaps a good deal of) legislation is demonstrably directed at the private benefit of the law-makers or their constituents, or at entrenching outright bigotry, with appeals to the common good nothing more than a smokescreen. But if our interlocutors wish, instead, to impose an “illiberal legalism,” as Vermeule does, that does not “play defensively within the procedural rules of the liberal order,” than that is a different matter entirely. The former deals with matters of interpretation. The latter concerns itself with the culture wars of the day. Our interlocutors should either disclaim Vermeule’s use of their “common good” or accept it.

(b) The Purposivism Confusion

Our interlocutors’ position on interpretation itself is also equivocal. The language of the “common good”, as used by our interlocutors, seems to invoke one rather uncontroversial argument with which we completely agree: text cannot be understood without understanding its abstract and particular purposes. That is a proposition that textualists and non-textualists alike accept (see A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts, at 20), and which is hornbook law in Canada. But at the same time, that basic argument raises more questions than it does answers.

Our interlocutors claim that there is “one truth” in the idea of “purposive interpretation”—the premise that law is designed to fulfill an “end” that is “intelligible to reason.” Our interlocutors embrace a “teleological outlook on the essential nature of legislation.” This seems right so far as it goes. As Max Radin notes in his famous article “A Short Way with Statutes,” “the legislature that put the statute on the books had the constitutional right and power to set [the statute’s] purpose as a desirable one for the community” (398). We agree that texts must be read in light of their purposes if we wish to understand why a legislature used certain words in creating a particular rule ― though again we caution that the legislature’s motives may not have been at all noble or reasoned.

If this is all our interlocutors are suggesting, their use of the “common good” phraseology is benign and probably a distraction. Like Asher Honickman in his response to our interlocutors, we do not see these invocations as adding anything to current debates about understanding legal texts. But we take our interlocutors to be saying something, and so simply saying that law is a teleological enterprise is incomplete without specifying how text drives the interpretive process. What needs to be decided is how we choose what purposes are relevant to interpretation. Here, we could speak of “ulterior” purposes—à la “mischief”—or “implementational purposes”—the legal rules (such as rules, standards, or delegations) that legislatures use, in text, to enact particular ulterior purposes (see, for a discussion of these different purposes, Max Radin, “Statutory Interpretation” at 863, 876). At the highest level of abstraction, one could say that laws are designed to achieve “justice and security” or the “common good” or the “public interest.” This does not tell us much about how a legal instrument should be interpreted, because legislatures do not implement ulterior purposes at all costs or in totality, and courts err when they interpret statutes with this assumption, as one of us has argued here based on the Supreme Court’s decision in West Fraser. Interpreters must work between purposes, keeping a clear eye on the text and the way it enacts particular legal rules (see Sullivan, Statutory Interpretation, at 187).   

At times our interlocutors seem to agree with this position. They say that courts cannot “override the terms or the finitude of a statute” and that “no human law-giver can conceivably grant benediction to the common good across the whole of human affairs.” We agree. And yet, we note that an assumption that the legislature’s “reasoned choice is rendered intelligible by the idea of the common good” ignores that language may only imperfectly capture that aim.  Our interlocutors’ position is similar to the old “strong purposivist” view represented in the Hart & Sacks Legal Process materials: legislatures consist of reasonable people pursuing reasonably purposes reasonably. If one takes this view, then it is possible to claim that the idea of the “common good” contains within it substantive aims that could and should override the terms of a statute. If this is what our interlocutors argue, we must disagree, simply because the implementational means employed by legislatures will always be over- and underinclusive in relation to purposes stated at a high level of abstraction. Overriding the text of a statute in favour of a court’s appreciation of purpose risks ignoring the means the legislature chose.

Lest this discussion seem abstract, let us conclude with a reminder of what this “strong purposivist” view means in practice: the early-20th century Holy Trinity case of the Supreme Court of the United States. The Alien Contract Labor Law prohibited the immigration to the US of “foreigners and aliens under contract or agreement to perform labor or service of any kind in the United States”. It was intended to ban the immigration of Chinese workers―but did not specifically say so. The language of the statute also covered an Anglican priest engaged to work in the United States. Yet the Court held that it did not apply to him, because the United States was a “Christian nation,” and hence the law could not have been meant to exclude Christians as well as minorities. Here, we see that the court took a highly abstract background principle and used it to supplement the terms of a statute. This appears to be fine under at least one reading of the “common good” interpretive idea. And yet, this is an outrageous violation of the Rule of Law’s requirement that law be publicly stated and applied in accordance with its enacted terms. It is also, and not coincidentally, an example of intolerable partiality and bigotry.

We conclude this section by restating the point: our interlocutors’ embrace of teleology in law is interesting and welcome, but not helpful by itself. This is because it does not answer fundamental questions about the relationship between text and purpose; and, at best, a perspective focused on “the common good” adds no conceptual heft to relevant and current interpretive debates. We are left wondering whether our interlocutors simply believe in purposive interpretation, or whether they are advancing some other case.  

(C) The Political Confusion

Last but not least, it is important to emphasize that the idea of the “common good”, which our interlocutors present as having a consistent, definite meaning over time, has been put to very different uses by very different people. Our interlocutors claim, for example, that Josh Hammer’s idea of “common good originalism” is perfectly within the tradition of textualism and positivism.Our interlocutors want to reassure us that interpretation drawing on the “common good” does not pursue external policy goals, but rather seeks to determine the meaning of the law from within.

This is a valiant effort, but it flies in the face of the expressly political valence of Hammer’s essay. Hammer makes the following points about his proposed method:

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.

[…]

Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

Indeed, the entire first part of Hammer’s essay (and another more recent one) trades in politics. The point for Hammer seems to be the development of a certain type of conservative interpretive method that is an adjunct to a political project. One wonders why Hammer needed or wanted to include expressly political statements in a piece that is—our interlocutors tell us—wholly about interpretation. Do our interlocutors disclaim this part of Hammer’s essay, and more generally, how do they distinguish between legitimate and illegitimate uses of the concept of the “common good”?

That the “common good conservative” movement is a political project is clear from the reaction to the US Supreme Court’s Bostock case. As one of us wrote here, in that case, Gorsuch J decided that Title VII protected against discrimination on the basis of sexual orientation and gender identity, despite their not being expressly listed in the statute, because such discrimination necessarily and logically involves discrimination on the basis of sex. In all likelihood, the framers of Title VII did not foresee that the statute would protect sexual orientation and gender identity. Indeed, as Alito J pointed out in dissent, Congress had declined to add sexual orientation and identity to Title VII in the past.

Now, what divided the majority and the dissent in Bostock was a question of pure textual interpretation. As Tara-Leigh Grove argues, Bostock is representative of “two textualisms.” And as Asher Honickman points out, there are reasons to debate the respective roles of social context, expectations, and semantic context in Bostock. This debate has nothing to do with the political valence of one or the other interpretation.

And yet the conservative meltdown over Bostock focused squarely on the results of the case. Here we see the worry about “economic, social, and cultural liberationism.” For Hammer, Bostock was not a mistaken application of textualism, but a showcase of its fundamental faults, laying “bare the moral and intellectual bankruptcy of the conservative legal movement.” Hence Hammer’s proposal of common good originalism, designed to solve this very “failure.”

Bostock raises many questions about the aims of the “common good” movement more generally, and its relationship to interpretive method. One is hard-pressed to find how the concept of “the common good” solves any legal problems in Bostock that cannot be solved by robust debate among textualists about the role of expectations, intentions, and purpose. While one of our interlocutors seems to suggest that the result in Bostock was wrong because judges should take account of the underlying “metaphysics” of words, we view this perspective as a distraction for judges working through real cases—and this is clearly not what Hammer et al seem to be getting at. They have identified a “failure” in interpretive method—a result that they, for one reason or another, do not like. They have designed an interpretive method to solve that problem. Without Gorsuch J’s political “mistake” in Bostock, “common good originalism” was unlikely to ever enter the conversation as it has (which is all the odder since Bostock is a statutory case). As a result, we cannot endorse this fundamentally political project.

Conclusion

Those who subscribe to the “common good” in interpretation are on the horns of a dilemma. There are those who seek to use the concept for expressly political ends, through the task of interpretation as a sort of “living tree” for conservatives. And then there are our interlocutors, who appear to defend the concept as limited, well-understood, and innocuous. We hope our interlocutors can determine which of these options is theirs—and if they simply wish to change emphasis in textual interpretation, then they can join the ongoing debate on that question.

One of the Institutions of the Land

More mixed feelings about John A. Macdonald

Some time ago, I posted my impressions on reading the first volume of Richard Gwyn’s biography of Sir John A. Macdonald. I came away from it with admiration for Macdonald’s role in creating Canada and its institutions, but not much love for the man. I have now finished reading the second volume, which covers the period from Confederation until Macdonald’s death in 1891. Here are some further thoughts on the man who continues to generate frantic hatred, determined admiration, and weary exasperation.

My dislike of Macdonald’s nationalism has only been reinforced, although this may be as much Gwyn’s fault as his own. My assessment of the first volume was mostly positive ― I said it was “serious but no less engaging for that, and written with both sympathy for its subject and honesty about his flaws”. These comments, so far as they go, apply to the second volume too. However, the biographer’s nationalist convictions ― already evident in the first volume ― really appear to overwhelm the narrative at times, and leave me wondering whether he does not attribute his own thoughts and purposes to his subject.

In this post, I will address three themes that stood out to me (and ignore any number of other aspects of Macdonald’s life: the Canadian Pacific scandal, for example, or his doting on a disabled daughter). First, nationalism and especially Macdonald’s National Policy, so iconic that my friend Asher Honickman and Ben Woodfinden have sought to recycle its label, if not also its substance, for contemporary purposes. Second, constitutional law and especially the jurisprudence of the Judicial Committee of the Privy Council. And third, Macdonald’s relationship with Aboriginal Canadians and other minorities.


The National Policy, which Macdonald first proposed in the 1870s in response to a global economic crisis and pursued through the remainder of his life and career, imposed high tariffs on most imports. The hope was to spur Canadian manufacturing and improve the prospects of the growing numbers of industrial workers. Gwynn does his best to write warmly of this policy, proceeding from what he takes to be the axiom that having stuff made in Canada by Canadians is a Good Thing. We are supposed to admire Macdonald’s nation-building instincts for seeking to bring about this result.

But why exactly? Gwynn recognizes that the National Policy was no great economic success. To be sure, the protected manufacturers initially did well. But it’s not clear that overall employment improved. What is clear is that the years of the National Policy were also the years during which, as Gwynn notes, Canada lost population: thousands upon thousands of its people left for the better prospects in the United States, while the hoped-for immigrants from Europe mostly did not come. I take it that this a complex story: many francophone Quebeckers left for reasons that might have been peculiar to their situation and beyond the power of federal politicians to remedy. But certainly the National Policy failed to achieve its economic objectives. And despite its protectionist policy, Canada’s economic fortunes remained tied to those of the world beyond its borders. Things went better when the global economy improved, and worse when it deteriorated.

But economic nationalism is not merely futile, or even counter-productive; it is also deceitful and, , despite its name, more divisive than truly national. While benefitting the manufacturers and perhaps their workers, the National Policy hurt farmers, who increasingly depended on manufactured implements, for which they had to pay more, and who were hit by retaliatory tariffs on their exports. In the name of the nation, a minority reaped the profits, while a majority paid the price. Macdonald knew this of course. But from the beginning of the policy, he misrepresented it as more or less cost-free and avoided using the language of protectionism, knowing that it would be unpopular. In his last election campaigned, he made thinly veiled insinuations of treason to discredit the pro-free trade Liberals.

To my mind, there is nothing admirable in any of this. The history of the National Policy is one of grift and lies. It ought to count against Macdonald on any assessment of his merits ― but even for people who do not admire him like Gwynn, it seldom does. That certainly says more about us than about Macdonald.


In contrast to the first volume’s relative lack of interest in the shaping of the text of what we now call the Constitution Act, 1867, the second volume of Gwynn’s biography devotes some attention to that text’s interpretation by the courts and Macdonald’s reaction to it. Or rather, from Gwynn’s perspective, the courts’ ― and specifically the Judicial Committee of the Privy Council’s misinterpretation and Macdonald’s failure to respond. Gwynn adopts entirely the view, which has long been ascendant in the progressive English-Canadian legal discourse, that confederation was meant to be highly centralized, and that blundering or outright malevolent British judges remade it into something almost, but not quite, entirely unlike its true self.

Macdonald, in Gwynn’s telling, is a victim of this process, suffering from a sort of Stockholm syndrome if not permanent false consciousness. Due to his longstanding admiration for the British legal system and the men running it, he never does much of anything to try countering the step-by-step perversion of his constitutional design. Power-hungry provinces and haughty, stupid jurists doing their bidding in London run the show, while the Prime Minister, so wily, so ambitious, and so determined in just about every aspect of politics, keeps a stoic, resigned silence.

As the reader may have guessed, I find this picture quite implausible. Granted, I also happen to think that the cases which Gwynn and his predecessors in the Canadian legal academy find so offensive were correctly decided. Perhaps that makes me biased here ― but at least it is not, as was often their case, a partisan bias. I dislike and fear both the federal and the provincial governments, roughly equally. They have a clear preference for federal power. But be that as it may, is it not simply more logical to think that, if Macdonald never seriously protested, and never sought to have the UK Parliament revise Canada’s constitutional balance, it is because he did not find the Privy Council’s jurisprudence so out of kilter with his own views of Confederation?

More precisely, is it not more consistent with everything else we know about Macdonald to suppose that he understood that, whatever his personal preferences ― which were, to be sure, for greater centralization ― these preferences weren’t shared even by his political allies (in Québec and, say, Nova Scotia), let alone his opponents. He knew that the constitution that was enacted in 1867 was not quite as centralized as he might have wished. He would also have known that the way in which it was interpreted was not an aberration or an usurpation, but a plausible application of what had been enacted. It’s likely enough that he would have preferred the courts to rule differently. But there is quite a gap between such a preference and a regret that things turned out the way they did, and the picture of pathetic impotence presented by Gwynn.


I turn now to the issue on which Macdonald’s reputation now seems be foundering, at least in some circles: his relationship to the non-white-male sections of society. It’s complicated. One thing to note is that Gwynn’s book, published less than a decade ago, already seems somewhat dated. It barely even mentions residential schools, if it mentions them at all. That seems like a gap. At the same time though, this does suggest that there is a lot more to judge Macdonald by, for the better and for the worse, than this one issue.

Gwynn does devote a great deal of attention to Macdonald’s policy and views toward the Métis (including, but not only, Louis Riel and his companions) and the Prairie First Nations. Macdonald seems to have been somewhat inconsistent, and often the issue did not attract as much of his attention as it deserved. By today’s standards he could be utterly heartless, and the people whose way of life was crumbling in the face of advancing white settlement were often left to suffer without aid or sympathy. As Gwynn points out, the principle that people should not be counting on the state’s help was not only applied to Aboriginals ― but he doesn’t note, in this connection, that the National Policy was a welfare policy of sorts, albeit a destructive one, as welfare policies tend to be. And generally, Gwynn writes that Macdonald ― despite flashes of recognition of the priority of Aboriginal presence in Canada ― didn’t believe that First Nations could truly be part of the Canadian society. (It was a more complicated story with the Métis.)

And yet. It may be daft to point out that, if nothing else, the Canadian state under Macdonald (or later) didn’t physically exterminate its Aboriginal population ― unlike its neighbour across the 49th parallel. But it mattered then. And there is more than just that. How many people tearing down his statutes know that in 1885 Macdonald pushed through electoral legislation that enfranchised (some) First Nations men? They were then disenfranchised by legislation enacted by Wilfrid Laurier’s Liberals. I have to admit, I did not know that either. One can certainly object that the franchise is pretty useless when you are starving. That’s fair enough. But if we are interested in assessing Macdonald’s views and record, I still think that his choice to expend political capital on this legislation, from which he did not stand to benefit much at all, has got to count for something. Towards the end of his life, Macdonald was a man increasingly behind the times, a mid-19th century man surviving in the century’s closing decade. As it happens, though, attitudes towards Indigenous peoples were more benevolent ― not, to be sure, egalitarian ― in the middle of the century (not just in Canada ― this was true in New Zealand also), and Macdonald’s views reflected this.

Just as strikingly, to me, Macdonald sought to include women’s suffrage in the same bill that enfranchised First Nations Canadians for the first time. He failed. Despite the fact that this measure would likely have benefitted his party ― Macdonald being very popular with women, apparently ― there was more determined opposition to it, and Macdonald did not get his way. If he had, Canada would have beaten New Zealand to egalitarian bragging rights and, more importantly, enfranchised women a generation before it eventually did (under another self-interested Conservative government). Again, I did not know this, and I suspect that many of Macdonald’s critics ― and perhaps more than a few of his boosters ― don’t either.

The last point I will mention here concerns immigration. Here too, Macdonald’s record is better than Laurier’s. But it’s not great. Macdonald’s government made an effort (not always successful, but real) to recruit immigrants in Europe, including (and even especially) within minority groups persecuted in their home countries. But things were very different where non-white immigration was concerned. Macdonald himself seems to have had little sympathy for the anti-Chinese feelings growing in Canada, especially in British Columbia, towards the end of his life. But he eventually went along with them and brought in legislation that imposed a tax on Chinese immigrants, and so sharply reduced their numbers, although it wasn’t yet set at the prohibitive levels that Laurier’s government would bring in. It was, if I understand correctly, the first immigration restriction in Canadian history, and there is no question that it was motivated by racism, even if not personally felt racism.


So what are we to make of Macdonald? Much depends of course on how we go about making the judgment. The common assumption seems to be that Macdonald was a great man and blameless of any particularly great sins by the standards of his time, and also that he deserves clear condemnation if judged by our contemporary views of political morality. I’m not sold on either view.

Even against the standards of his own time, the National Policy and, more generally, Macdonald’s nationalism, especially in its ugly partisan aspects deserved condemnation. Macdonald knew that the policy was benefitting a section of the nation at the expense of others ― and did his best to hide this and deceive the voters. And the advantages of free trade had been understood for a century by the time he deluded the voters into thinking that he found a weird trick for economic prosperity. Similarly, Macdonald knew that the restrictions on Chinese immigration were an unprincipled sop to populist feeling, even though he wouldn’t have thought about them in terms of racial equality as we do now.

And then, of course there is the matter of the Canadian Pacific scandal, and government corruption more generally. I haven’t focused on that, partly because, to be honest, I’m still not sure I understand what happened, and partly to save space. But mostly, I think this is not the most interesting or important part of Macdonald’s legacy. If, however, we think about him from the perspective of his own time, this issue should probably assume the importance it had for his contemporaries. And this is not to Macdonald’s advantage.

Conversely, though, looking back at Macdonald from today’s vantage point need not lead to unreserved condemnation. As I argued in my post on Gwynn’s first volume, for all his failings on an egalitarian standard, he has had a decisive influence in securing Canada’s independence, and sovereignty in the West. This was not, to put it mildly, an unmitigated blessing for the West’s Indigenous peoples, but it beat the alternative, which was not ― by 1870 ― the preservation of the Indigenous peoples’ freedom and way of life, but colonization by the United States. Macdonald’s enfranchisement of First Nations’ men and even his failed attempt to secure women’s suffrage also deserve a great deal more credit by our standards than by those of his own time.

Wilfrid Laurier eulogized his late rival by observing that “his stesmanship … is written in the history of Canada” and that

the life of Sir John Macdonald, form the date he entered Parliament, is the history of Canada, for he was connected and associated with all the events, all the facts which brought Canada from the position it then occupied―the position of two small provinces, having nothing in common but their common allegiance, united by a bond of paper, and united by nothing else―to the present state of development which Canada has reached.

Laurier also compared Macdonald to “one of the institutions of the land”. All this was accurate, and remains relevant. Ultimately, one’s judgment on Macdonald is one’s judgment on Canada itself. Many people see the very real flaws and sins, and judge negatively. But, for my own part, I compare to the alternatives, and judge―not without sorrow and reproof―but with gratitude.

Against Pure Pragmatism in Statutory Interpretation III: A Way Forward and Walsh (ONCA)

About a month ago, I wrote two posts attacking the concept of “pragmatism” in Canadian statutory interpretation. So my argument goes, the seminal Rizzo case, while commonly said to herald a “purposive” approach to interpretation, is actually methodologically pragmatic This is because the famous paragraph from Rizzo, which contains a list of things an interpret must take into account, does not assign ex ante weights to these factors. That is, it is up the interpreter to choose, in the circumstances of particular cases, which factors will be most relevant. In short, while everyone in theory agrees on what the goal of interpretation is, that agreement rapidly breaks down in the context of particular cases.

In these circumstances, methodological pragmatism is attractive because it permits interpreters to use an entire array of tools as they see fit. So the story goes, this freedom leads to “flexibility.” But it can also lead to a number of pathologies in interpretation that should be avoided. In this final post of the series, I outline these pathologies, sketch a path forward, and then highlight a recent example case (Walsh) from the Ontario Court of Appeal that demonstrates why methodological pragmatism unleashes judges to an unacceptable degree. The point here is that interpretation is designed to determine what the legislature meant when it enacted words. Purpose is important in ascertaining that meaning, but ascertaining purpose is not the point of interpretation. This leads to an approach that prefers some ordering among the relevant interpretive tools (for want of a better phrase), rather than a flexible doctrinal standard motivated by methodological pragmatism.

The Pathologies of Pragmatism

By now, and as I have outlined above and in my previous posts, Canada’s approach to statutory interpretation is oddly enigmatic. On one hand, everyone (seems) to agree on the goal of the enterprise: when courts interpret statutes, they are seeking to discover what Parliament intended when it enacted a particular provision or provisions. Putting aside thorny issues of what “legislative intent” might mean (and see here Richard Ekins’ important work), in practical terms, we are seeking to discover the legal meaning and effect of language enacted by Parliament; we are, put differently, seeking to discover what change has been effected in the law (either common law or existing statute law) by Parliament’s intervention (see Justice Miller’s opinion in Walsh, at para 134).

When a law is adopted, one can speak of ends and means, and it’s this framework that guides the discussion to follow. It would be strangely anodyne to claim that Parliament speaks for no reason when it legislates. We presume, in fact, that every word enacted by Parliament means something (represented in canons like the presumption against surplusage, see also Sullivan at 187). And so it only makes sense to take account of a particular provision’s purpose when considering interpretation. Those are the ends for which Parliament strove when adopting the legislation. Selecting the proper ends of interpretation—at the proper level of abstraction, bearing on the actual text under consideration—is an integral part of interpretation. To avoid a strictly literal approach, text must be read in this context.

But, importantly, this is not the end. What about means? In some ways, and as I will show through the example case, means are the real subject of debate in statutory interpretation. Parliament can achieve an objective in many different ways. In general, Parliament can enact broad, sweeping, mandatory language that covers off a whole host of conduct (within constitutional limits). It could leave it at that. Or it could enact permissive exceptions to general mandatory language. It can enact hard-and-fast rules or flexible standards. Administrative schemes can delegate power to “independent” actors to promulgate its own rules. The point here is that Parliament can decide to pursue a particular, limited purpose, through limited or broad means. This is Parliament’s choice, not the court’s.

While free-wheeling pragmatism can lead to all sorts of pathologies, I want to focus here on the relationship between ends and means, between purpose and text. Pragmatism can distort the proper ascertainment of ends and means. In some cases, the problem will be that the court, without any doctrinal guidance, chooses a purpose at an unacceptably high level of abstraction (see, for example, the debate in Telus v Wellman, and Hillier), perhaps even to achieve some pre-ordained result. The courts can do so because, if one simply follows Rizzo, there is no requirement that a judge seek textual evidence for the establishment of a purpose. Yet we know that, as a descriptive matter, it is most common that purpose is sourced in text (see Sullivan, at 193): an interpreter can usually glean the purpose of the legislation, not from legislative history, subsequent legislative enactments, or even the judge’s own imagination, but from the text itself.

This descriptive state of affairs is normatively desirable for two reasons. First, the point of interpretation is not to establish the purpose or mischief the legislature was intending to solve when it legislated (despite Heydon’s Case). The point is to discover the intent of the legislature as represented in the meaning of the words it used. The words are the law. Purpose assists us in determining the meaning of those words, but it cannot be permitted to dominate the actual goal of the enterprise. A pragmatist approach permits, at least in some cases, for that domination to exist: if purpose is better evidence of intention than text, in some cases, then it can be permitted to override text. But this undermines the point of interpretation.  

Secondly, for all we might say about legislative intentions, the best practical evidence of intention is what has been reduced to paper, read reasonably, fairly, and in context. Since statutory interpretation is not a theoretical exercise but a problem solving-one, the practicality of doctrine is central. For this reason, purpose can best assist us when it is related and grounded in text; when the text can bear the meaning that the purpose suggests the words should carry. To the extent pragmatism suggests something else, it is undesirable.

  Sometimes, however, the problem will lie in the means; while the relevant purpose may be common ground between the parties, there may be a dispute over the meaning of language used to achieve those ends. Such disputes tend to focus on, for example, the choice between ordinary and technical meanings, the role of particular canons of interpretation, and (importantly for our purposes) the relationship between the properly-scoped purpose and the language under interpretation. It is the job of the interpreter to work among these tools synthetically, while not replacing the means Parliament chose to accomplish whatever purpose it set out to accomplish. But with pragmatism, no matter the means chosen by Parliament, there is always the chance that the court can dream up different means (read: words) to accomplish an agreed-upon purpose. Often, these dreams begin with a seemingly benign observation: for example, a court might simply conclude that it cannot be the case that a posited interpretation is the meaning of the words, because it would ineffectually achieve some purpose.

These pathologies can work together in interesting ways. For example, an expansive purpose can cause distortions as the means selection stage of the analysis; a court entranced by a highly abstract purpose could similarly expand the means chosen by the legislature to achieve those means. But even in absence of a mistake at the sourcing stage, courts can simply think that Parliament messed up; that it failed to achieve the purpose it set out to achieve because the means it chose are insufficient, in the court’s eyes.

A Way Forward

When constructing doctrine, at least two considerations to keep in mind pertain to flexibility and formality, for want of better words. Flexibility is not an inherently good or bad thing. Being flexible can permit a court to use a host of different tools to resolve disputes before it, disputes that sometimes cannot be reduced to a formula. Too much flexibility, however, and the judicial reasoning process can be hidden by five-part factorial tests and general bromides. Ideally, one wants to strike a balance between formal limits on how courts must reason, with some built-in flexibility to permit courts some room to react to different interpretive challenges.

The point I have made throughout this series is that Rizzo—to the extent it is followed for what is says—is pragmatic, methodologically. Whatever the benefits of pragmatism, such a model fails to establish any real sequencing of interpretive tools; it does not describe the relationship between the interpretive tools; and leaves to the judge’s discretion the proper tools to choose. While subsequent Supreme Court cases might have hemmed in this pragmatic free-wheeling, they have not gone far enough to clarify the interpretive task.

The starting point for a way forward might begin with the argument that there must be some reasons, ex ante, why we should prefer certain interpretive tools to others. This starting point is informed by a great article written by Justice David Stratas, and his Law Clerk, David Williams. As I wrote here:

The piece offers an interesting and well-reasoned way of ordering tools of interpretation. For Stratas & Williams,  there are certain “green light” “yellow light” and “red light” tools in statutory interpretation. Green light tools include text and context, as well as purpose when it is sourced in text. Yellow light tools are ones that must be used with caution—for example, legislative history and social science evidence. Red light tools are ones that should never be used—for example, personal policy preferences.

In my view, this sort of approach balances formalism and flexibility in interpretation. For the reasons I stated above, the legislative text is really the anchor for interpretation (this is distinct from another argument, often made, that we “start with the text” in interpretation). That is, the text is the best evidence we have of intention, often because it contains within it the relevant purpose that should guide us in discovering the meaning of the text. For this reason, legislative text is a green light consideration. Purpose is also a green-light consideration, but this is because it is sourced in text; if it was not, purpose would be misused in a way that might only be recognizable to a methodological pragmatist. Other tools of interpretation, such as legislative history and social science evidence, can be probative in limited circumstances.

The key innovation here is the Stratas & Williams approach does not rule out so-called “external sources” of meaning, but it does structure the use of various tools for interpretation. For example, the approach does not raise a categorical bar to the consideration of legislative history. But it does make some ex ante prediction about the value of various tools, reasoning for example that purpose is most relevant when it is sourced in text.

This is an immediate improvement over the pragmatist methodology, at least when it comes to my core area of concern, the relationship between purpose and text. In the pragmatist model, purpose can be erroneously sourced and then used to expand the means chosen by the legislature; in other words, it can be used to override the language chosen by the legislature. Under the Stratas & Williams model, such a situation is impossible. Any purpose that is helpful and relevant to the interpretive task will be contained within the language Parliament chose, even if that language is limited, imperfect, or unclear.

An Example Case: Walsh

Much of this can be explained by a recent case, Walsh, at the Ontario Court of Appeal. While Walsh is a very interesting case for many reasons, I want to focus here on a key difference between the majority decision of Gillese JA and the dissent of Miller JA. Gillese JA seems to implicitly adopt a pragmatic approach, arguably making purpose rather than text the anchor of interpretation—presumably because the case called for it. Miller JA, instead, makes text the anchor of interpretation. The difference is subtle, but immensely important, because each opinion takes a different view of the “means” chosen by Parliament.

At issue in Walsh was s.162.1(1) and (2) of the Criminal Code. Section 162.1(1), in short, “makes it an offence for a person to knowingly disseminate an ‘intimate image’ of a person without their consent” [61]. An “intimate image” is defined by s.162.1(2), and relates to a “visual recording of a person made by any means including a photographic, film or video recording.”

Stripping the dispute down to brass tacks, the issue in this case was whether a FaceTime call that displays certain explicit content could constitute a recording. The problem, of course, is that FaceTime video calls cannot be conventionally saved and reproduced, like a photo (putting aside, for a moment, the possibility of recording a FaceTime video call). The Crown, at trial, argued that the language of the provisions are written broadly, and must be read “in the context of the harm that s.162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn” [23, 55]. For the Crown, the answer was found by reasoning from this general “mischief” that the statute was designed to address: the harm would still exist even despite “the recipient’s inability to further share or preserve the moment…” [23]. The defense, on the other hand reasoned from the ordinary meaning of the word “recording,” concluding that “recording” alludes to the “creation of an image that can be stored, viewed later, and reproduced” [57].

Gillese JA for the majority agreed with the Crown’s argument. She listed five reasons for her agreement, but one is particularly relevant on the issue of the relationship between text and purpose. Gillese JA writes, at paras 68 and 70:

[68] Fourth, restricting the meaning of “recording” to outdated technology—by requiring that it be capable of reproduction—would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s.162.1 and the intention of Parliament in enacting it.

[…]

[70] …Giving “visual recording” a broad and inclusive interpretation best accords with the objects of s.162.1 and Parliament’s intention in enacting it.

As we will see, this is precisely backwards.

Miller JA’s dissent should be read in whole. It is a masterclass in statutory interpretation, and it is particularly representative of the approach I favour. But most importantly, Miller JA outlines why the majority’s approach demonstrates a means problem, as described above. For Miller JA, there is no purpose-sourcing problem here, since, as he says, there is common ground about the mischief that these provisions were designed to address [179]. However, for Miller JA, a proper application of the various tools of interpretation counselled an approach that did not rewrite the terms of the statute; the means chosen by the legislature. This approach is supported by a number of considerations. First, as Miller JA says, the term “recording” must be given its ordinary meaning. This is the going-in presumption, absent good reasons otherwise. But for Miller JA, the Crown offered no objective support for its assumption that the term “recording” must encompass the FaceTime video at issue. While dictionary meaning and ordinary meaning are two different things, dictionary meaning can shed light on ordinary meaning, and Miller JA noted that there was no instance of the term “recording” being used to describe a “visual display created by any means” [159].

This might have been enough, but the Crown offered another argument: that the term “recording” must be understood as encompassing new forms of technology [162]. Of course, because of the original meaning canon, it could not be said that any linguistic drift in the term “recording” is legally relevant in this case [166]. However, it is a common application of the original meaning rule that where words are written in a broad and dynamic manner, they could capture phenomena not known to drafters at the time of enactment. For Miller JA, however, this argument failed when it comes to the word “recording.” For him, FaceTime was clearly a phenomenon that existed at the time these provisions were drafted, and in fact, the context of the provisions indicated that Parliament had actually distinguished, in other places, recordings versus “visually observing a person…” [174-176]. The term “recording,” then must rely on the concept of reproducibility, as distinguished from other sorts of displays that cannot be saved and reproduced. This latter category of displays was known by Parliament when it crafted these provisions, but it is conspicuously absent from the provisions themselves.

Miller JA, having disposed of these arguments, then clearly contrasts his approach to Gillese JA’s:

[171] What the Crown is left with is the proposition that a reauthoring of the provision would better achieve s.162.1’s purpose….But where Parliament chooses specific means to achieve its ends, the court is not permitted to choose different means any more than it would be permitted to choose different ends. The interpretive question is not what best promotes the section’s purpose, such that courts can modify the text to best bring about that result, but rather how Parliament chose to promote its purpose

[172] …Although the Crown’s argument is framed in ascertaining the conventional, ordinary meaning of language, it is actually an argument about what meaning ought to be imposed on s.162.1, so as to best achieve the purposes of this section.

These paragraphs are remarkable because they clearly set up the difference between Gillese JA’s approach and Miller JA’s approach; the difference between a methodologically pragmatic approach, and an approach that roots ends in means, purpose in text. For Gillese JA, one of her five reasons for accepting the Crown argument pertained to the fact that the defense’s offered interpretation would fail to achieve the agreed-upon purpose of the provisions. This sort of reasoning is only possible under a pragmatic approach, which permits courts to prioritize different interpretive tools as they see fit. The result is a Holy Trinity abomination: where purpose is the anchor for interpretation, and the text is massaged to achieve that purpose, in the court’s view.

Miller JA’s approach is better, if one follows the argument in this post. His approach clearly sees text as an interpretive “tool” that is prior to all the others, in the sense that it is (1) what the legislature enacted to achieve some goal (2) it, practically, is the best evidence we have of what the purpose of the legislation is. Under this formulation, it is not up to the courts to decide whether better means exist to achieve the purpose of the legislation. If this were the case, the point of interpretation would be to identify the meaning of purpose, rather than the meaning of language as evidence of intention. Miller JA explicitly assigns more weight to the text in cabining the purposive analysis.

The Walsh case illustrates the problem that pragmatism has created. While all agree on the point of interpretation, that agreement tends to break down when we begin to apply the tools we have to determine the meaning of the text. Methodological pragmatism offers no hope for solving this problem, because it fails to take a stand on which tools are best. The Stratas & Williams approach, and the approach offered by Miller JA in Walsh, envisions some ranking of the interpretive tools, with text playing a notable role. This approach is better. It moves us away from the endless flexibility of pragmatism, while still leaving the judge as the interpreter of the law.

Interpretation and the Value of Law

Why the interpretation of law must strive for objectivity, not pre-determined outcomes

This post is co-written with Mark Mancini

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.


When law as enacted or articulated is not self-explanatory, it must be interpreted, ultimately by judges. The orthodox view, which we regard as correct, however old-fashioned it may seem, is that judges must do this by applying legal tools and techniques. Ideally, these must themselves be well-known, certain, and stable, although we acknowledge that the law of interpretation has often failed to live up to this ideal, even if the strongest critiques of legal interpretation as radically indeterminate have always been overstated. Judges will sometimes develop legal doctrine beyond what is apparent on the face of a constitutional or statutory text, engaging in the activity American scholars describe as construction. They may also distinguish or even overrule precedents. In doing so, however, judges must remain faithful to the principles and purposes of the law as they have found it enacted or articulated by the institutions―above all, the democratic institutions―our polities have authorized to resolve, for the time being, disagreements among their members.

Those who have come to reject the value of the law as law often regard legal interpretation as the weakest link which they can break to subvert the law’s function as the common guide and reference for people who disagree with one another. They want, instead, to use interpretation to impose values and policies that are not in the law as enacted or articulated, and which are, instead, those of the parasiti curiarum who seek to give the courts this inflated, and fatally distorted, sense of their role.

These parasiti belong to schools of thought―and political factions―that are, ostensibly, fiercely opposed to one another. On the one hand, there are those who favour “living tree” interpretation in constitutional law and freewheeling pragmatism in statutory interpretation, aiming to keep up with ever-changing notions of social justice by means of “progressive” and “modern” interpretations that update the law from time-to-time. On the other, there are those who demand that constitutions and statutes be read so as to promote a religiously-infused “common good”. The substantive political commitments of these schools are far apart.

Yet the two camps share one key belief: they both see law as merely an instrument with which to achieve their preferred political aims. Both are firmly convinced that it is legitimate to impose their respective hierarchy of values on society through judicial and administrative fiat, and urge judges and administrators to do just that, regardless of whether the constitutional and statutory texts being interpreted in fact embody these values. Indeed, they also share a certain legal and linguistic nihilism that causes them to deny that a legal text can have a meaning independent of its interpreter’s will. As a result, they are quite happy to use interpretation to reverse-engineer the meaning of laws in accordance with their preferences, regardless of these laws’ text or history and of the longstanding interpretive techniques.


For our part, we maintain that the judges’ interpretive role is not to impose some pre-determined set of values onto the law but to seek out the moral and policy choices that are embedded in the law as they find it. Judges do so by—to the extent possible—making the law’s text the object of interpretation. Even in the “construction zone”, where they apply legal texts to new situations or develop doctrine to apply vague textual commands, judges must seek, in good faith, to implement the choices made by those who made the law. At all times, they must strive to put aside their own moral and policy views about what the law should be, because they are not the ones charged with resolving moral and policy disagreements in our constitutional systems.

This is a pragmatic as well as a dogmatic position. Judges lack not only the legitimacy but also the ability to make moral and policy choices. Living constitutionalism, for example, asks judges to interpret the Constitution to take account of the moral views or practical needs of a particular political community at a particular point in time. This is impossible, even putting to one side the difficulties in defining the relevant community (especially in a federation such as Canada!), and even if members of political communities did not, in fact, sharply disagree with one another. Even politicians, with their access to pollsters, constant communication with their constituents, and the incentives provided by regular elections are not especially good at assessing the voters’ values and needs. Judges could not succeed at this, and should not try.

More importantly, though, living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.   

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

Indeed, not only the substance but the language and specific proposals of the two anti-liberal camps resemble one another. In a striking parallel with Justice Abella’s embrace of the courts as the “final adjudicator of which contested values in a society should triumph”, the reactionaries want judges to exhibit “a candid willingness to ‘legislate morality’ because one of if its core premises is that ‘promotion of morality is a core and legitimate function of authority’ given its link to securing the common good.” And, just as  Justice Abella  wants to upturn settled jurisprudence (except, of course, when she doesn’t) and “give benediction” to new constitutional doctrines, common good constitutionalism is skeptical about aspects of constitutional law that have been taken as a given for generations, including fundamental freedoms and structural limits on the accumulation of power within a single institution. Perhaps especially salient is the embrace by both the progressives and the reactionaries of the administrative state, and the corresponding rejection of the separation of powers. In other words, for both camps, established limits on actors in the system are of no moment if they stand in the way of certain political goals.

Now, to be charitable, it is possible that the illiberal thinkers are simply seeking to discover whether certain values are embedded in particular texts. Maybe it is true, for example, that the “peace, order, and good government” power reflects certain values that coincide with the political preferences of those on the right, or for that matter on the left. But this cannot be stipulated: those making such claims must demonstrate that general constitutional language―cabined and explained as it is by enumerated and limited grants of power―really carries the meaning they ascribe to it. Such demonstrations tend to be lacking, and the claims are often implausible. The “peace, order, and good government” language, for example, is only relevant when it comes to the federal heads of power; is it possible that the federal, but not the provincial, powers in the Canadian constitution reflect a “common good” view of government? Such questions abound, and in truth we suspect that the project pursued by the majority of those for whom concepts such as the “common good” or the “living tree” must guide legal interpretation has little to do with objective analysis and discovery.


Before concluding, a few words are in order about what we do not argue here. First, we do not claim that law and politics, or law and morality, are entirely separate realms. Obviously, law is shaped by politics: the making of constitutions and of legislation is a political process. It involves heated debate about moral and policy considerations, with which―one hopes―constitutional framers and legislatures wrestle. The outcome of these political processes is then subject to political critique, which again will feature arguments sourced in morality and policy. In a democracy, the legal settlements are only ever provisional, although some require greater degrees of consensus than others to displace.

And even at the stage of interpretation, it would be impossible to say that judges are merely robots mechanically following prescribed algorithms. Judges are influenced by their own experiences, which is perhaps to some extent for the better; they aren’t always able to shed their pre-dispositions, though this is surely generally to the worse. Indeed, it is important to recall that constitution-makers and legislators often invite judges to engage in moral and practical reasoning by appealing to concepts such as reasonableness in the provisions they enact. This is not always an appropriate legislative choice, but it is not the judges who are to blame for it.

That said, when it comes to interpretation, there should be a separation between law and politics. That is, interpretation must be guided by rules and doctrines that help judges to avoid, as much as humanly possible, making decisions on their own say-so, arrogating to themselves the roles of legislators to decide what laws should be under the pretense of declaring what they mean. This is admittedly a matter of degree. No one should insist that judges unduly fetter the natural import of words they are asked to interpret by insisting on so-called “strict constructions,” or read appeals to their own moral and practical reasoning as having been fully determined by the law-maker. Nonetheless, the judicial task should not be unbounded, with no restriction on the sorts of moral considerations judges are equipped to take into account.


In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.

Against Pure Pragmatism in Statutory Interpretation II: Evaluating Rizzo

Part II in a 3 part Double Aspect series

Please read Part I of this series before reading this post.

In the first post of this series, I set out to explain the concept of pragmatism in statutory interpretation, as explained by Ruth Sullivan. My contention was that Rizzo, arguably Canada’s seminal statutory interpretation judgment, is a pragmatic judgment. Relatedly, I argued. that a purely pragmatic approach to statutory interpretation, while providing interpreters with maximum flexibility, also fails in two potential ways: (1) it permits judges to assign weights to interpretive tools that may run counter to the point of statutory intepretation: to discern what this particular text means; and (2) it could lead to methodological unpredicability–a problem that I will outline in Part III of this series.

In this post, I will address why Rizzo is a fundamentally pragmatic judgment. It is pragmatic because it leaves open the possibility, particularly in the use of purpose, for text to be supplanted if other interpretive tools point in another direction. In other words, it does not make a claim that some interpretive tools are more appropriate than others in the abstract. In the pragmatic approach, it is up to the judge to assign the weights; rather than the methodological doctrine guiding this selection, the judges themselves have unbridled discretion to mould statutory interpretation methods to the case in front of them, based on factual contexts, contemporary values, or otherwise. As I will note in Part III, this sounds good in theory—but in practice is less than desirable.

Rizzo was a garden-variety statutory interpretation case, and I need not go deep into the facts to show what is at stake. Basically, the key question was whether employees of a now-bankrupt company could  claim termination and severance payments after bankruptcy [1]. The key problem was whether the relevant legislation permitted the benefits to accrue to the employees, even though their employment was terminated by bankruptcy rather than by normal means. The relevant provisions of the Bankruptcy Act and the Employment Standards Act, on a plain reading, seemed to prevent the employees from claiming these benefits if their employment was terminated by way of bankruptcy [23].

The Supreme Court chastised the Court of Appeal for falling into this plain meaning trap. To the Supreme Court, the Court of Appeal “…did not pay attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized” [23]. The Supreme Court endorsed this now-famous passage as the proper method of interpretation in Canada:

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Using this approach, the Court reasoned that the provisions in questions needed to be interpreted with their objects in mind—specifically, the relevant provisions were designed to “protect employees” [25]. For example, section 40 of the Employment Standards Act, one of the provisions in question, “requires employers to give their employees reasonable notice of termination based upon length of service” [25]. Such a notice period (with termination pay where the employer does not adhere to the notice period), is designed to “provide employees with an opportunity to take preparatory measures and seek alternative employment” [25]. Ditto for the provisions governing severance pay [26].

The Court also relied on a number of other interpretive factors to reach the conclusion that the severance and termination pay provisions governed even in cases of bankruptcy.  Two are important here. First, the Court relied on the absurdity canon: where possible, interpretations of statutes that lead to “absurd results” should be avoided. Particularly, the Court, endorsing Sullivan, notes that “…a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile…” [27]. In this case, the fact that an employee could be terminated a day before the bankruptcy—and receive benefits—and another employee could be terminated after bankruptcy—and not receive benefits—was an absurdity that ran counter to the purpose of the statute to provide a cushion for terminated employees [30].  The Court also focused on legislative history, which it acknowledged can play a “limited role in the interpretation of legislation” [35].

All of this to say, Rizzo is, to my mind, a pragmatic judgment for statutory interpretation. This is because, when it endorses the classic Driedger formula at paragraph 21, it does not venture further to show which of the interpretive tools it relies on are to be given the most weight in interpretation; and accordingly, Rizzo could lead to courts assigning weights to interpretive tools that could distort the process of interpretation. For example, the Rizzo Court does not say—as later Supreme Court cases do—that purpose cannot supplant text in interpretation (Placer Dome, at para 23). In other words, when courts source purpose, text is given more weight in interpretation because it is the anchor for purpose (see, for example, the Court’s analysis in Telus v Wellman, at paras 79, 82-83). This can be seen as the Court saying that text is assigned the most weight in interpretation, and that purpose is parasitic on text. When sourced in this way, then, there is no reason to assume that there will ever be a conflict between purpose and text, because purpose is merely one way to understand text. But Rizzo does not say this, instead suggesting that in some cases, purpose can supplant text.

This is the product of pragmatism. Taken on its own, Rizzo’s endorsement of Driedger permits “…each judge [to take advantage] of the full range of interpretive resources available….and deploys those resources appropriately given the particularities of the case” (see here). The possibility for highly abstract purposes to, in appropriate cases, subvert text is a function of the failure of Rizzo to assign clear weights to the interpretive tools in a way that reflects Canada’s fundamental constitutional principles, including the task of courts to discover what the text of statutes mean. I should note, though, that this is not a bug of pragmatism to its adherents; rather, it is a feature. The pragmatists conclude that text should have no special role in interpretation if other factors push against giving effect to text. As I will point out in my next post, this liberates judges to an unacceptable extent when measured in relation to the basic task of interpretation.

Against Pure Pragmatism in Statutory Interpretation I

The first post in a three-part Double Aspect series.

Rizzo & Rizzo, arguably Canada’s leading case on statutory interpretation, has now been cited at least 4581 times according to CanLII. Specifically, the following passage has been cited by courts at least 2000 times. This passage, to many, forms the core of Canada’s statutory interpretation method:

21                              Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This paragraph has reached the status of scripture for Canadian academics. To many, it stands as a shining example of how Canadian law has rejected “plain meaning,” or “textualist” approaches to law (though these are not the same thing at all, scholars as eminent as Ruth Sullivan have confused them).  Most notably, as Sullivan argues, the practice of the Supreme Court of Canada under the auspices of the modern approach could be considered pragmatist. In many ways, pragmatism is considered by many in related fields to be an implicitly desirable good. Pragmatism in statutory interpretation, to its adherents, pulls the curtain back on judicial reasoning in statutory cases, asking courts to candidly weigh the factors they think are most important to reaching the proper result.

Pragmatism can be seen as a sliding scale—where one factor (such as text) is most persuasive, other factors (such as extrinsic evidence) will need to be stronger to overcome the text. In other cases, the opposite may be true. Notably, as championed by people like Richard Posner, pragmatism is focused on achieving sensible results. Therefore, the methodological approach used to achieve those results matters less than the results themselves.

While I am not sure proponents of pragmatism would classify Rizzo, particularly its leading paragraph, as a pragmatic judgment, in my view, Rizzo alone illustrates the key problem with pragmatism as an organizing and standalone theory of statutory interpretation. The Rizzo formula simply presents a laundry list of factors which should guide judicial decision-making, but fails to prescribe weights ex ante to those factors. It seems to assume that, in each case, the weights to the various factors are either (1) equal or (2) assigned by the judge in a given case. This is the key virtue of pragmatism. But it is also its vice, because “…without an advance commitment to basic interpretive principles, who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law?” (see here, at 820). In other words, in a pragmatic approach “[e]verything is up for grabs” (820). Specifically, pure pragmatism has a number of potential issues:

  • It ignores that, in our legal system, the text of the statute (read in light of its context and purpose, sourced in text) is what governs, and for that reason, should be given the most weight in all interpretation, even if the text is open-textured. Courts must do the best they can to extract meaning from the text, read in light of its context. Call this formalism, call it textualism, call it whatever. The Supreme Court has said that the task of interpretation cannot be undertaken in order to impeach the meaning of text with extra-textual considerations (Telus v Wellman, at para 79).
  • Aside from the in-principle objection, there is a practical problem. While pragmatists claim that they are bringing the judicial reasoning process into the open, forcing judges to justify the weights they assign to various interpretive factors, in truth a fully-discretionary approach permits judges to reach any result they might wish, especially if they take into account broad “values-based” reasoning, as Sullivan advocates, or source purpose at some high level of abstraction, untethered to text.
  • Finally, the invitation to consider all factors in statutory interpretation, invited by Rizzo and the pragmatists, seems to assume that each interpretive factor will have something to say in a range of cases. But there are inherent problems with each interpretive factor, including text. The question for statutory interpretation methodology is, in the run of cases, which factors are more persuasive and controlling? By failing to provide an ex ante prediction about this question, pragmatists run close to abridging the idea that courts are supposed to develop norms—guiding principles—for statutory interpretation (see 2747-3174 Quebec Inc, at 995-996).

In order to develop these arguments, and address powerful (and some not-so-powerful) counter-arguments, I will be launching a series on Double Aspect on statutory interpretation, designed around the idea of pragmatism. The second post in the series will summarize Rizzo and why it is indicative of a pragmatist approach. The third post in the series will point out, using Rizzo itself, the flaws of pragmatism. It will also laud the Supreme Court and lower courts for, in recent years, blunting the edge of the pragmatist approach. Overall, this series will be designed to show that while text, context, and purpose are relevant interpretive factors, the task of interpretation is one that must be guided by ex ante guiding principles, not an “anything goes” approach. To this end, a recent attempt by Justice David Stratas and David Williams to assign ex ante weights to statutory interpretive factors is laudable and desirable. It should be followed.

A note of caution: the point of this series is not to advocate for a purely text-based approach, or a “plain-meaning approach.” Many have fallen into the trap of simply labelling arguments that highlight the primacy of text as being “textualism” or “plain-meaning.” Many resist the idea of text as a governing factor in interpretation because they believe it is equal to a literal reading, or because it does not take context into account. Virtually no one advocates for this line of thinking anymore. It is a strawman.

Additionally, the point of this series is not to impugn pragmatism wholesale. Instead, the point of this series is to point out that while pragmatism and flexibility have their place in interpretation, those things cannot come at the expense of an interpretive methodology that guides judges according to the core tenets of our legal system, including the separation of powers, as understood by the Supreme Court (see again Telus v Wellman, at para 79).

Stay tuned.

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.


Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.


As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

Mere Liberalism

A response to a common caricature of liberal beliefs

There is a rhetorical trope in contemporary critiques of liberalism and libertarianism, especially those coming from the political right, that holds it for fundamentally flawed because it conceives of individuals as “atomized”, isolated, a- or even anti-social creatures moved by no higher emotion than crass self-interest. We have even hosted one critic who made this argument as a guest on this blog.

A recent post on Law and Liberty, in which Luma Simms “reviews” Ilya Somin’s book Free to Move: Foot Voting, Migration, and Political Freedom, encapsulates this argument very neatly. I put “review” in scare quotes because, as Professor Somin points out, it misrepresents his book. But the exact same caricature is used to attack not only Professor Somin’s work, but liberalism and libertarianism more broadly; nor is it used by Mrs. Simms alone. So I think that a general response is warranted.


Mrs. Simms writes, summarizing the worldview that ― according to her ― underpins Professor Somin’s arguments in favour of greater freedom of movement and of personal choice more generally:

Man is a rational being; his actions are based on individual choice, guided only by reason; his judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture); if he acts with others it is by his choice alone; he must live by his own achievements, for his own happiness and self-interest; he has no moral duty to others. As such, man must have the political freedom to follow his self-interest to achieve his happiness. It is autonomous individualism through and through.

As a summary of the liberal worldview ― and, to repeat, many critics of liberalism use descriptions like this one in just this way ― every one of these statements is grossly exaggerated or outright false.

Man is a rational being

Liberalism ― and for that matter conservatism or socialism ― does presuppose a measure of rationality in human beings. There would be no point in advocating for, say, freedom of speech, the Rule of Law, or democracy if human beings weren’t rational in the sense of thinking, making and carrying out plans, responding to incentives, and seeking to act on their (physical and social) environment in ways calculated to produce consequences.

But liberalism doesn’t require or depend on complete rationality. Liberals and libertarians can acknowledge failures of rationality: Bryan Caplan is no less of a libertarian for having explored at length The Myth of the Rational Voter. Liberals and libertarians can recognize that human beings are emotional, too. Love of freedom is an emotion, and no less than love of God or love of hearth and home.

His actions are based on individual choice, guided only by reason

As I have just noted, liberals and libertarians know that human beings can emotional or irrational. Needless to say they also know that their choices are constrained and their actions are shaped by the circumstances ― familial, economic, cultural, environmental ― in which they find themselves. Perhaps Mrs. Simms means that liberals want, as a normative matter, to create a state of affairs where humans are free to act exactly as they choose; but they do not. On the contrary, liberals respect property rights and the autonomy of individuals, families, and voluntary associations (including businesses, churches, NGOs, etc.), which means that they will uphold private arrangements that may diminish individuals’ choices.

Now, there are difficult questions that liberals and libertarians can struggle with about private choices that radically deny individual autonomy: self-enslavement is perhaps a silly example best left to philosophy seminars, but, say, parents who refuse to provide a minimum of education or healthcare to their children are a grim reality. But of course liberals recognize that interference with the freedom of some to secure some core of autonomy to others is still interference.

His judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture)

I don’t think that any liberal or libertarian believes this. Yes, liberalism values independent judgment; yes, liberalism wants individuals to be free from legal compulsions of their judgment: hence its insistence on freedoms of conscience, thought, opinion, and so on. If this is what Mrs. Simms derides as liberalism’s rejection of “obligations and constraints that come from … country”, there’s something to the charge. If the critics of liberalism want “country” to introduce indoctrination and state ideology, let them say that clearly; better yet, let them spell out what they are going to indoctrinate us in (beyond platitudes about the common good), and give us a chance to decide whether we want to drink their particular kool-aid.

But as for other kinds of duties and compulsions, not only do liberals not reject them ― on the contrary, leading liberal thinkers have specifically insisted that the point of freedom is to have the ability to do one’s duty, as one sees it. Hence Lord Acton’s definition of “liberty”, in The History of Freedom, as “the assurance that every man will be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion” (3). Hence Hayek writing, in The Road to Serfdom, that

[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name.

Liberals regard obligations to family and friends, to God if one so believes, and even to country and “culture”, whatever that might be, as matters of conscience. The claim they reject such obligations is preposterous calumny. What they reject is the claim of “authority and majorities, custom and opinion” to interfere with an individual’s conscience to impose obligations of this sort when they are not felt.

If he acts with others it is by his choice alone

Again, it’s a bit difficult to say whether this is supposed to represent what liberals believe is the case or what liberals believe ought to be the case. But neither representation is accurate. Liberals neither deny the existence of social ties, such as those of kin, in which individual autonomy is far from complete, nor wish to abolish them. Liberals also do not deny nor, except for anarchist libertarians, wish to rid themselves entirely of collective political action, which is also involuntary as to many individuals who are forced to go along with the decisions of the authorities.

Liberals do want to provide exit opportunities for people who may find themselves bound by social ties that are or become abusive. They also want to limit the ability of majorities to impose on dissidents through the political process. But they want to do these things precisely because they recognize that human beings belong to groups, associations, and communities which they have not freely chosen and because they have no wish to abolish such groups, associations, and communities.

He must live by his own achievements, for his own happiness and self-interest

I don’t know many, if any, flesh-and-blood liberals or even libertarians who believe this. It sounds like a paraphrase of Randian objectivism, but I must confess that I’ve never read Rand, so I don’t know if it’s an accurate representation of her views. What I think I can assert with a good deal of confidence is that these views, if indeed she held them, are not at all representative. There just isn’t anything in classical liberalism or (non-Randian?) libertarianism that says that people must be navel-gazers, hedonists, and egotists.

To be sure, liberals acknowledge the fact that human beings are generally pretty self-interested. They have their altruistic impulses too, but they are often selfish. Liberalism’s response is to try to channel self-interest through institutions that can turn it to the greater good. The market is one such institution, as Adam Smith explained by pointing out, famously, that “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest”. And liberals try to use politics in this way too: hence Madison’s insistence that “ambition must be made to counteract ambition”.

But, to repeat, none of that precludes or condemns altruism. In trying to channel selfish behaviour for the benefit of society, liberalism certainly does not say that unselfish behaviour should somehow be disapproved of. What liberalism does insist on is that there are limits ― depending on one’s version of liberalism, perhaps very stringent limits ― on the degree to which people can be coerced into acting and living for the sake of others. But liberalism has a better opinion of human nature than those theories that apparently say that human beings will be navel-gazing hedonistic egotists (or, all manner of other unedifying things, as other critics of liberalism claim) unless forced to be virtuous by the government. (Liberalism asks: how is government going to be more virtuous than the governed?)

He has no moral duty to others

I won’t repeat what I’ve already said about Lord Acton’s and Hayek’s championing of freedom as the space in which individuals can understand and discharge their obligations ― not one where they have none. Let me, instead, remind you of the Lockean argument for the state. In a nutshell: individuals have inherent natural rights and a moral duty to respect the rights of others; unfortunately, left to their own devices, they are not very good at complying with this duty even when they earnestly try; an authority that can clarify the scope of individual rights and corresponding duties, and impartially adjudicate allegations of breach is necessary. A concern with moral duty is that at the foundation of liberal politics.

Again, what liberals deny, with greater or lesser vigour depending on their preferred flavour of liberalism or libertarianism, is the claim of the state to create moral duties incumbent on those subjects to their jurisdiction. If they subscribe to the doctrine of natural rights, they will say, with Jefferson, that governments are instituted in order to secure these rights, and that, therefore, the creation of duties not tending to secure natural rights is beyond their just powers. But it does not follow, and liberals do not believe, that moral duties to others cannot arise otherwise than through the state.


Let me make just two additional points. One, which follows directly from the foregoing is that critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life. Liberal political institutions (understood broadly, to include things like constitutions, laws, and courts) serve to preserve the space in which individuals ― either alone or in community with others ― seek to live a good life, as they understand it. Some liberal thinkers such as Adam Smith or even, to an extent, Lord Acton, had ideas about the good life. Being a liberal doesn’t mean taking no interest in moral questions. It only means renouncing the imposition of one’s own answers to such questions by force on others whose answers might be quite different.

The second point I’ll make here is that while I have responded to a critique of liberalism coming from the right, this critique would need only minimal adjustments to its language to be embraced by the illiberal left. The view that liberalism is nothing more than a smokescreen for egoism and selfishness is a staple of socialist doctrines going back a century and a half. The criticism of liberalism as denying social ties, and the limitations that community and belonging impose on individuals might seem newer. Indeed, many right-wing critics of liberalism are convinced that it is no different from socialism in this regard. But real-life socialist regimes were actually quite nationalistic themselves. More importantly in 2021, the ascending left considers human beings to be largely shaped by their intersecting identities, and bound by the resulting sums of privilege and oppression. They use a different vocabulary from the one that appeals to the right-wingers, but their message, and their critique of liberalism, is much the same. And, of course, it is wrong for much the same reasons.


Left and right alike criticise liberalism for its commitment to respecting the autonomy of individuals in ordering their own moral universe, based on their understanding of their place in the world and their relationships with family, community, and perhaps God. They think they can do better: give people a purpose in life and a morality which, left alone, they sometimes fail to find. But there is, and can be, no agreement on an all-encompassing morality that is not imposed by force, and as difficult as it may be to find one’s purpose without coercion, it is more difficult still to accept a purpose imposed on us by others. The others, after all, are still our fellows, albeit that an accident of birth, or the privilege of education, or the fortune of an election, or the force of a coup has elevated them to a higher social ― not moral ― station.

Thus the illiberal right and left alike are doomed to failure in their quest for a better world. As Hayek wrote, they have “nothing to put in … place” of the individualist, liberal virtues ― “independence, self-reliance, and the willingness to bear risks, the readiness to back one’s own conviction against a majority, and the willingness to voluntary cooperation with one’s neighbors”. In their place, they can only make a “demand for obedience and the compulsion of the individual to do what is collectively decided to be good”. And because they know that they cannot persuade people to abandon liberalism with such demands, they try to caricature and defame it. Do not believe them.

The Top Statutory Interpretation Cases of 2020

A banner year for interpretation

Introduction

To say that one believes in “purposive interpretation” has been the calling card of Canadian legal scholars for some time. Saying this, as some do, is radically incomplete. That is because competing schools of thought also look to purpose. Textualists, for example, look to the context in which words are used, as well as the purpose evident in those words (Scalia & Garner, at 20). To say that one is a purposivist might as well mean nothing, because everyone—even textualists—“routinely take[] purpose into account…” (Scalia & Garner, at 20).

Far from just being a lazy turn of phrase, though, the routine deployment of the term “purposivism” as a distinct school of thought blocks us from a clearer conversation about what should matter in statutory interpretation. For example, the real division between textualists and others is how purpose is sourced in statutory interpretation: textualists are wary of importing some abstract purpose to subvert a “close reading” of the text (see Scalia & Garner, at 20; see also the opinion of Côté Jin West Fraser), while others might source purpose differently. Saying that one is a “purposivist” also does not answer an important question: which purpose should count more in interpretation, since statutes often pursue multiple purposes at different levels of abstraction? (see, for an example of this, Rafilovich). These are real interpretive questions that are only now receiving any sort of sustained attention in the case law.

I should not hide my priors here. I too think that purpose is a relevant consideration in statutory interpretation, because it assists in the task of reading text to mean all it fairly encompasses. But purpose can be abused: indeed, “[t]he most destructive (and most alluring) feature of purposivism is its manipulability” (Scalia & Garner, 20). Because purposes can be stated in all sorts of ways, it is up to the judge, in many cases, to choose the most appropriate purpose to assist in interpreting the text. Sometimes, purpose can subvert text—which, of course, is problematic if the purpose is not sourced in text (McLachlin CJC’s opinion in West Fraser is a classic example of this).  Put simply: purpose informs text, it does not supplant it (Placer Dome, at para 23).

For that reason, we must come to sound and principled ways of sourcing purpose, rather than simply stating that we look to purpose. It is this theme that defined, in my view, the task for judicial interpreters in 2020. The following three cases are, to my mind, exemplars of dealing with some of these deeper questions in statutory interpretation. Rather than simply reciting the Rizzo & Rizzo formula and taking an “anything goes” approach to interpretation, these cases delve deeper and answer some knotty interpretive questions in a way that furthers a discussion about statutory interpretation in Canada—particularly with reference to the so-called “purposive” approach. Because these cases start a conversation on these issues (and because I happen to agree with the methodology employed by the judges writing the lead opinions in each case), these are the top statutory interpretation cases of 2020, in no particular order:

Michel v Graydon, 2020 SCC 24

In this case, the Supreme Court of Canada dealt with the question whether it is “possible to vary a child support order under the [Family Law Act] after the order has expired, and after the child support beneficiary ceases to be a “child” as defined in the [Family Law Act]” [2]. This seemingly technical question of family law, however, gave rise to all sorts of interpretive problems: the role of social science evidence in statutory interpretation, the problem of unbridled consequential analysis in statutory interpretation, and the problem raised when judges invoke both “liberal” and “purposive interpretation” in the same breath.

For Brown J, the answer to question in the case was found relatively confined to the legislative text and scheme. Starting from the text of the provision, Brown J concluded that the relevant text of the Family Law Act “creates an avenue for courts to retroactively change any child support order, irrespective of the beneficiary’s dependent status and irrespective of whether the order is extant at the time of the application” [20]. This was because of the placement of the relevant statutory scheme. Among other things, s.152 contained no textual restriction on the courts—for example, s.152(1) “contains no reference to the defined term ‘child’ that might serve to qualify the authority of a court to vary child support” [22]. The scheme of the Family Law Act supported this conclusion [23].

For Brown J, this textual conclusion was basically the end of the story (see also schematic considerations at paras 24, 26, 27). Importantly, though, Brown J’s textual conclusion was supported by a properly-scoped purpose. Brown J identified that one of the dominant features of the Family Law Act—given the statute it replaced—was a desire to “expan[d] on the circumstances under which a court may vary a child support order” [28]. Read in light with the text, the result was clear.

Martin J concurred in the result, but conducted a policy analysis to support her concurrence. In Martin J’s view, child support cases called for (that old standard) of a “fair, large, and liberal construction” [40]. For Martin J, this sort of construction required a “contextual and purposive reading of s.152” that looks to “its wider legislative purposes, societal implications, and actual impacts” [40] in a way that “takes into account the policies and values of contemporary Canadian society” [70]. Martin J concluded that “a jurisdictional bar preventing these cases from being heard not only rests in unsound legal foundations, it is inconsistent with the bedrock principles underlying child support and contributes to systemic inequalities” [40].

I agree with both judges that the text and context in this case supports this reading of s.152. But while both judges agreed on the ultimate result, the method they used to reach the result differs in important ways. While Brown J focuses largely on a contextual reading, Martin J incorporates other information, statistics, and an evaluation of the consequences of the interpretation to the result. As I will note, in this case, these approaches do not lead to dramatically different conclusions, because the tools all pointed to a certain result: text, social science, context, consequences. But where text and such other factors conflict, Martin J’s opinion raise a number of problems, in my view.

There are three comments to make about this case, and why it is important. First, Brown J’s opinion avoids the pitfalls that might be associated with external aids to interpretation.  Specifically, Martin J looked to various social science data related to poverty, family relationships, and marginalization. These are important topics, and in this case, the evidence supported the interpretation that Brown J undertook on the text. But the question arises: what to do when current social science evidence contradicts an analysis undertaken on the text? Put differently, if the text points in one direction, and that direction exacerbates problematic trends in social science evidence, which governs?

It is one thing to suggest that where the text is ambiguous, an interpretation which solves the supposed “mischief” the statute was aimed to solve should be preferred. One could make a case for that argument. But where the text and the evidence are directly contradictory, courts must follow the text because that is what the legislature enacted. This may sometimes lead to interpretations that do not make sense to contemporary society, or are unjust in face of empirical evidence, because the text was enacted at a particular time. But this is simply a function of the task of statutory interpretation, which is to determine what the legislature meant at the time of enactment (as I note below, this itself is a rule of interpretation). It must be remembered that external aids can be used to assist in interpreting the text. They cannot be used to subvert it. Martin J’s approach could lead to that result—though, as I note, the problem does not arise in this case because the text and evidence pointed to the same interpretive result.

Secondly, both opinions could be read as cabining the role of pure policy or consequential analysis in statutory interpretation, which could be an invitation for results-oriented reasoning. It is true that evaluating the competing consequences of interpretive options is a fair part of statutory interpretation (see Sullivan at 212 et seq; see also Atlas Tube, at para 10; Williams, at para 52). But there is a caveat: consequences cannot be used to dispense with the written text. This most arises in the context of the absurdity canon, where absurd interpretations of statutes are to be avoided. However, an overapplication of the absurdity canon can lead to many “false-positives” where consequences are labelled absurd in the judge’s opinion, even if those consequences are arguably a product of the text. This undermines the legislature’s role in specifying certain words. Instead, consequences can only be used to determine which of various “rival interpretations” are most consistent with the text, context, and purpose of the statute (see Williams, at para 10). In this way, consequences are not used to determine which interpretation is just or unjust in an abstract sense, but which interpretations are most consistent with the statute’s text, context, and purpose.

Brown J clearly used this sort of justified consequential analysis in his opinion. In connecting his preferred interpretation to the properly-scoped purpose of s.152(1), it was clear that his interpretation furthered that purpose. This is a proper use of consequences consistent with the text as the dominant driver of purpose.

On the other hand, Martin J’s opinion could be read in two ways: one undesirable, one not. First, it could be read as endorsing a wide-ranging assessment of consequences, at a high level of abstraction (for example, justifying her consequential analysis with reference to the need to abolish systemic inequalities: see paras 40, 70, 101).  This might be a very good thing in the abstract, but not all legislation is designed to achieve such lofty goals. If interpreted in such a way to reach a result the statute does not reach, statutes can be conceived as addressing or solving every societal problem, and therefore as resolving every unjust consequence—and this could lead to overextensions of the text beyond its ordinary meaning (see Max Radin, “Statutory Interpretation” 43 Harv L Rev 863, 876 (1930)).  This reading of Martin J’s opinion is not desirable, for that reason.

Another reading of Martin J’s opinion is that she roots her consequential analysis in the purpose of the statute as she sees it. For example, Martin J notes that her approach interprets s.152 with its “underlying purposes in mind” which includes the best interests of the child [76]. Martin J also notes that her interpretation favours access to justice, under-inclusivity, and socio-economic equality [72]. These factors may or may not be rooted to the statute under consideration.

If Martin J’s opinion is rooted in the recognized purpose of the best interests of the children, one can make the case that her opinion is justified as Brown J’s is. However, if read more broadly, Martin J could fairly be seen as addressing issues or consequences that may not fall within the consideration of the text. In the circumstances, I prefer to read Martin J’s opinion as consonant with Brown J’s. If that is done, there is no warrant to look to consequences that fall outside the purpose of the statute. But note: much will depend, as I note below, on how the purpose of a statutory provision is pitched.

Finally, Brown J’s opinion is tighter than Martin J’s in the sense that it does not raise conflicts between statutory interpretation principles. Martin J’s opinion arguably does so in two ways. First, it is well-known (despite the controversy of this practice in constitutional interpretation) that statutes must generally be interpreted as they would have been the day after the statute was passed (Perka, at 264-5). While there is some nuance on this point (see Sullivan, at 116-117), words cannot change legal meaning over time—but note that broad, open-textured terms can be flexibly applied to new conditions if the words can bear that meaning (see here). The key is that words can only cover off the situations that they can fairly encompass. But the injunction—repeated throughout Martin J’s opinion—that statutes must be interpreted in light of the “policies and values of contemporary Canadian society” [72] at least facially conflicts with the original meaning canon. To Martin J’s defense, she is not the first to say this in the context of family law and child support (see Chartier, at paras 19, 21). But nonetheless, the court cannot have it both ways, and Martin J’s opinion cannot be taken to mean that the legal meaning of texts must be interpreted to always be consistent with contemporary Canadian society.

At best, it might be said that Martin J’s opinion in this respect permits the taking into account of contemporary considerations where the text clearly allows for such considerations, or perhaps where the text is ambiguous and one interpretation would best fit modern circumstances in a practical sense. But these modern circumstances cannot be shoehorned into every interpretation.

Secondly, there is a conflict in Martin J’s opinion, in a theoretical sense, between her invocation of a “fair, large and liberal” interpretation (see paras 58, 71) and her invocation of a “purposive” interpretation  (see para 71). As Karl Llewellyn pointed out long ago, it is not unheard of for tools of interpretation to conflict. But as much as possible, judges should not invite such conflicts, and I fear Martin J did this in her opinion by conflating liberal interpretation with purposive interpretation. As I have written before, these things are not the same—in fact they are opposites. The Interpretation Act does instruct a “large and liberal” interpretation, but only as the objects of a statute permit. The Supreme Court continues to insist on an approach to statutory interpretation that uses text to ground the selection of purpose (see here). As such, text and purpose read synthetically governs—not some judge-made conception of what constitutes a “large and liberal interpretation.” This statement cannot be used to overshoot the purposes of a statute, properly scoped.

Perhaps in this case the purposes permit a large and liberal interpretation, in which case Martin J can use both of these tools interchangeably. As I said, the problem isn’t this case specifically, but what would happen if Martin J’s approach is used in the general run of cases. But it is far from clear that purposive and generous interpretation will always–or even often–lead to similar results. More likely, purpose will limit the ways in which text can be read—it will not liberate the judge to take into account any policy considerations she wishes.

Michel v Graydon raises all sorts of interesting issues. But taking Brown J’s opinion on its own terms, it is a clinic in how to clearly interpret a statute in light of its properly-scoped purpose. While Martin J’s opinion could also be read in this way, it could be read to permit a more free-flowing policy analysis that subverts legislative language. In this sense, Martin J’s opinion should be affixed with a “caution” label.

Entertainment Software Association, 2020 FCA 100

ESA will stand, I think, for some time as the definitive statement in the Federal Courts on how to conduct statutory interpretation, and the role of international law in that endeavour.

In this case, the facts of which I summarized here,  the Copyright Board offered an interpretation of the Copyright Modernization Act that arguably placed extraneous materials ahead of the governing text. Here is what I wrote about the Board’s conduct at the time:

The Board’s chosen materials for the interpretive exercise were stated, according to the Court, at a high level of generality (see paras 53-54). For example, the Board focused on the preamble to the Copyright Modernization Act to divine a rather abstract interpretation that supported its view on international law (paras 53-54). It also invoked government statements, but the Court rightly noted that these statements construed s.2.4(1.1) as a “narrow, limited-purpose provision” [56], not as an all-encompassing provision that permitted the collection of tariffs in both instances. The use of these materials was used by the Board to herald a different, broader interpretation than what the text and context of the provision indicated. 

The Court rebuffed the Board’s effort in this regard. By noting that the provision under interpretation was a “narrow, limited-purpose provision,” the Court rejected attempts by the Board to drive the interpretation higher than the text can bear.  This is a worthy affirmation of the importance of text in the interpretive process, and a warning about the malleability of purposive interpretation.

Why is this opinion so important? It makes a now oft-repeated point that purposive interpretation is not conducted “at large.” That is, it matters how judges state the purposes they hope to use in the interpretive task. As the Supreme Court noted in Telus v Wellman, courts cannot use abstract purposes to “distort the actual words of the statute” (see Telus, at para 79). This counts as an endorsement of the traditional separation of powers, under which “…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts” [79].

ESA is important because it implements what the Supreme Court has now repeated in Telus, Rafilovich, and other cases. It is now clear law that purposes cannot be used to subvert text; that text is the starting point in legislative interpretation, and that in sourcing purpose, text confines the scope of the exercise. In my view, ESA (expertly written by Justice Stratas) makes the clearest case yet for a sort of text-driven purposivism in the context of Canadian statutory interpretation.

Canada v Kattenburg, 2020 FCA 164

One underlying theme of much of what I have written thus far is a worry about results-oriented reasoning in statutory interpretation. To some, this might not be a risk at all. Or it might be a desirable feature: after all, if all law should simply be an adjunct of politics, then the policy preferences of judges are fair game. Of course, I readily admit that no legal system can reduce the risk of subjective policy-driven interpretation to 0; nor should it. But the Rule of Law, at its most basic, means that the law governs everyone—including judges. Part of the law judges must apply are the rules of statutory interpretation. Those rules are designed not to vindicate what the “just” result is in the abstract, what is “just” at international law (except where international law and domestic legislation meet in defined ways), or even what is “just” to the judge at equity or common law–except, of course, when statutes implicate common law rules. Statutory interpretation is a task that requires determining what the legislature thought was just to enact. As such, the rules of interpretation are guided towards that goal, and are necessarily designed to limit or exclude the preferences of judges or others, even if we reach that goal only imperfectly.

This important theoretical point was made in relation to the ascertainment of legislative purpose and international law in Kattenburg by Stratas JA. In Kattenburg, the underlying substantive issue was simple and narrow, as I wrote in my post on the case:

The Canadian Food Inspection Agency decided that certain wine imported to Canada from the West Bank are “products of Israel” (see the Federal Court’s decision in 2019 FC 1003 at para 3). The judicial review, among other issues, concerned whether the wine could be labelled as “products of Israel.” That’s it. Under ordinary administrative law principles, the court will assess whether the decision of the CFIA is reasonable. A typical legal task.

However, on the intervention motions in Kattenburg, Stratas JA noted that some intervenors ttempted to further bootstrap the record with “hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank” (Kattenburg, at para 32). Stratas JA rejected such efforts.

Stratas JA’s rejection of these intervenors, and his strong words in denouncing them, raised the ire of some on law twitter. But anything worth doing won’t be easy, and Stratas JA said what needed to be said, particular when he noted that, with respect to the intervenors “[s]o much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences” (Kattenburg, at para 44). 

 There’s no denying Stratas JA is pointing to an important methodological problem that is deserving of our attention. One way that purposes can be misstated, or used to subvert clear text, is by advancing broad understandings of international law to expand the purpose. As I’ve noted before, it is true that “international law can…be relevant to the interpretation of Canadian law where it is incorporated in domestic law explicitly, or where there is some ambiguity” (see here). But in many cases, international law will simply not be relevant to the interpretation of legislative texts, or the ascertainment of legislative purposes.

The attempt in Kattenburg to cast the legislative purpose to encompass some statement—any statement—on the legality of Israel’s conduct in the Middle East is a classic end-run around legislative text. While some of the intervenors may have wanted the Court to interpret the legislation in a particular way to encompass substantive policy goals encompassed in international law not only runs afoul of fundamental principle—international law only enters the task in defined, narrow ways—but it is contrary to precedent (see Vavilov, at para 121 and the litany of Federal Court of Appeal and Supreme Court cases on this point). Such efforts should be rejected.

Conclusion

In many ways, the three cases I have chosen as important for interpretation in 2020 are all representative of a broader theme of which lawyers should be aware. That is, there is much more happening behind the curtains in Canadian statutory interpretation than might appear at first blush. “Purposive interpretation” is not the end of the story. What matters is how we source purpose, the sources we assess to assist the interpretive task, and the role of text in grounding the interpretive process. These cases all come to defensible conclusions on these questions. The insights of these cases can be distilled into a few key propositions:

  1. Purpose must be sourced in relation to the relevant text under consideration. In this way, we are interpreting text as the legislature enacted it, and we are not using purpose to subvert that authentic reading of the text.
  2. There are reasons to be worried about consequential analysis, to the extent it could permit an expansion of legislative purposes beyond text.
  3. There are reasons to be worried about international law, to the extent it could permit the expansion of legislative purposes beyond text.

All for the better.

A Happy New Year for interpretive nerds!

Would That I Could Love You

My mixed feelings about Sir John A. Macdonald

Sir John A. Macdonald has been much attacked of late; despising him is a reliable signal of progressive virtue, and a symptom of a broader pattern of contempt for people and institutions that have created the most prosperous, freest, and most egalitarian societies the world has ever known. The Faculty of Law at Queen’s has decided to remove Macdonald’s name from its building; his statues have been vandalised or removed; and so on.

For my part, I have been sufficiently provoked by all this to finally, and belatedly, read the late Richard Gwyn’s biography of the man. I have now finished the first volume, which runs from Macdonald’s birth in 1815 to Confederation. Having gone into it with a great deal of sympathy for Macdonald, I come out with very mixed feelings ― but not for the reasons that motivate his progressive critics. What diminishes Macdonald in my eyes is his nationalism ― and, if anything, I wonder that it does not raise his stature in theirs.

Before I explain myself, I should say something about the book itself. Mostly this: you should read it, if you haven’t yet. It’s a breezy read despite being fairly long. It is serious but no less engaging for that, and written with both sympathy for its subject and honesty about his flaws ― and I say this despite not being fully persuaded by Gwyn’s assessment of Macdonald. From a constitutional history perspective, the discussion of Confederation feels a little thin, but this is unfair reproach to level at a book meant for a general audience, and really doesn’t take away from Gwyn’s achievement.


Gwyn’s thesis regarding Macdonald (at least Macdonald as a politician and up to Confederation) is that, other than the enjoyment of the political game and of the power that it brought him thanks to his supreme ability at it, Macdonald’s motivation was above all to preserve Canada as a non-American, and if possible as a British, political community. He sought, first, to make the Province of Canada work, and then to build a strong, centralized federation as a means to prevent what seemed to many ― in Canada itself, but also in the United States and even in Britain ― like the inevitable annexation of the British North American colonies to the American republic.

Loyalty to Britain and opposition to America was both Macdonald’s inner spring and his go-to rhetorical trope. One of the book’s chapters is named “Canada’s First Anti-American”. Macdonald seized on opponents’ flirtations with annexationism or simply on hesitations and accused them of treason. He did not have a very definite view of what his Canada ― first the province, then the Dominion ― ought to be like; he was (to his credit!) no religious zealot or bigot, and ideologically he insisted on leading a broad, perhaps even a shapeless, party, which he cheerfully persuaded erstwhile opponents to join. But on Canada’s distinctiveness, he was unflinching and ruthless.

Gwyn further makes the case, and he makes it convincingly, that Macdonald’s political talents were absolutely necessary to pull it all off. Of course we cannot know how an alternative history without him would have turned out. But it seems fair to take the widespread belief of politicians and journalists of the time that Canada must in due course ― and sooner rather than later ― become American as indicative of something. Macdonald wasn’t alone in making sure that this did not happen, but, as Gwyn argues, the others ― Cartier, Brown, Galt, McGee, Tupper ― wouldn’t have done it without him. Confederation happened when he accepted that it ought to, and it happened because he put his boundless skill and energy into it. And it seems plausible, quite likely even, that had it not happened then, annexation to the United States would indeed have been inevitable.

For this reason, at the risk of concern-trolling, I would suggest that those who are all about pulling down Macdonald’s statues wherever they can still find them may want to reconsider. Much as they are keen to condemn Canada, the one polity they like still less is the United States. On the specific issue of the treatment of Aboriginal peoples, which most exercises them, shameful though Canada’s record is, would things have been better if the prairies, and then the rest of Canada, had become part of America? And of course on any number of other issues also, the Canadian left has long seen the border as demarcating, if not the good, then at least the tolerable from the evil. That border is Macdonald’s doing. It is the monument to him that they neither can nor, in their brightest nightmares, would want to pull down.


But my own reaction to Gwyn’s argument is not so enthusiastic. Something is missing from it: namely, any clear sense of why Macdonald’s anti-Americanism is something for us to admire. Macdonald himslef was moved, so far as I can tell from Gwyn’s book, by little more than a small-c conservative sensibility and consequent gut reactions. Macdonald believed in Britsh institutions and distrusted, perhaps even despised, American ones, but Gwyn insists that he did not know America well, and was not interested in understanding it. He was horrified by the Civil War, but his absolute rejection of an American future for Canada long pre-dated that conflict. He wasn’t actively rejecting American expansionism (except as it affected Canada), or slavery, or acting on some other grand moral belief. He was a nationalist, driven not by principle but by identity.

The closest Gwyn’s Macdonald comes to articulating a rational argument for his nationalism is his criticism of the US Constitution. As Alastair Gillespie details in his essay on Macdonald for the Macdonald-Laurier Institute (at 29), he equated American presidential system with despotism, and American federalism with anarchy. The president, he said, was unconstrained by his cabinet, while the States were sovereign and the federal government too weak, which he claimed was a cause of the Civil War. These complaints fit poorly together, and Macdonald’s interpretation of the Civil War’s causes is puzzling. I struggle to see what additional federal powers would have prevented the slave States’ rebellion, and it’s not clear that Macdonald ever explained this. I am inclined to think that he either misunderstood the American system (even the pre-1868 American system), or perhaps even gave a tendentious account of it the better to justify his own vision of highly centralized federalism.

To me, Macdonald’s nationalism, as described by Gwyn, is thoroughly unattractive. Like all nationalism, it is essentially negative, fueled by ignorance and incomprehension, which results in distrust and perhaps even contempt. Nationalism, as Macdonald’s fondness for rhetoric of treason shows, also provides easy means for rhetorical escalation, and for divisiveness under the banner of unity. Other forms of identity politics provide similar examples of intolerance in the name of diversity and inclusion.

Now, Macdonald was no ignoramus and no bigot. Quite the contrary! He was intelligent and well read, not only in history, politics, and law, but in literature too; he got on well with Catholics ― far too well for some of his more bigoted critics ―, and with French and Irish Canadians. He helped create a country where some of these differences could eventually be all but forgotten, while other, more enduring ones, have been peacefully accommodated. This is no accident: the accommodation and eventual diminishment of sectional, linguistic, and religious differences was both a motivation for and a consequence of the structure of government the Fathers of Confederation designed. But this is the tragedy of nationalism: it causes otherwise intelligent and open-minded people to act in thoughtless and petty ways. This is also, of course, the tragedy of other forms of identity politics, including those fashionable in progressive circles.

You might be wondering where rejecting nationalism ― Macdonald’s nationalism of all things, a civic-minded version of the doctrine and the sentiment that begat Confederation ― leaves me. Does it mean, for instance, that I must recant all the good I have said of Confederation and of the Constitution Act, 1867?

I don’t think so. I approach this question from an individualist position, expressed as well as anywhere else in Thoreau’s defence of civil disobedience: “Government is at best but an expedient”, he wrote, and “most governments are usually, and all governments are sometimes, inexpedient”. The American government, the one Macdonald looked down upon without ever having seen it very clearly,

what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? … It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have.  

But of course the Canadian government, whether that of the Province of Canada or the one set up in 1867, is not much different. It too is at best an expedient, and often not even that. It too is a tradition ― much older now than it, or even its American counterpart, was back then ― and a sort of wooden gun to the people themselves, and a piece of din-making machinery. There is nothing about it to be revered.

Now, thinking this does not prevent me thinking that, as governments go, the one contrived by the Fathers of Confederation under Macdonald’s leadership is more expedient than most, and while that is a low bar to clear, it is a real, and meaningful, accomplishment. We can, and should, measure existing institutions against the requirements of our principles, to see how they can be improved. But we can, and should, also measure existing institutions against plausible alternatives. By the first measure ― the one on which the left tends to focus, and of which the right often loses sight ― Canada certainly falls short in important ways. By the second ― which is of more interest to the right, and which the left tends to ignore ― Canada does well enough.

Confederation, moreover, was a real improvement over the system it predated on both measures. It got closer to at least some ideals, by implementing a meaningful federal system and thus advancing the principle of subsidiarity, and was about as good a system as, realistically, one might have conceived of given the facts on the ground and the state of minds in 1860s Canada. As Gwyn makes clear, its achievement was by no means a given; indeed it is quite remarkable. I have no hesitation in admiring it, and the fact that Macdonald’s motivations, and those of the other Fathers of Confederation for that matter, do not strike me as admirable has nothing to do with it. The intent of their creators is not a useful metric by which to assess institutions.


When it comes to individuals, though, motivations and intentions are more appropriately part of what we should base our judgments on. So of course are deeds and consequences. My own judgment on Macdonald ― based on the first part of Gwyn’s biography and of course on my perspective as a constitutional lawyer ― is thus very ambivalent. He helped create institutions that, on the whole, I admire, although they are not without their flaws. But he acted for reasons that are, from my perspective, quite unadmirable.

Indeed, I’m left with the impression that Macdonald, for all his political talent, for all his ability to achieve the seemingly impossible feat of confederation, was rather less wise than I would have liked him to have been. Whatever may be the case in other disciplines, I think it is very true that, in history, he who increaseth knowledge increaseth sorrow. Gwyn tells of an opposition MP rather pathetically telling Macdonald “I love you so! Would that I could trust you!” My feelings are the reverse. From my ― very different ― vantage point, I trust Macdonald, or at least I trust his accomplishment. Would that I could love him!