Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Since Telus v Wellman, the Supreme Court of Canada has moved towards a sort of “textually constrained” purposivism in statutory interpretation cases. To my mind, textually constrained purposivism involves two parts: (1) a focus on the text over abstract purposes in determining the meaning of text and (2) if there are conflicting purposes at the same level of abstraction, choosing the purpose most local to particular provisions, rather than abstract purposes of statutes. Telus v Wellman involved (1). The Supreme Court’s recent opinion, R v Rafilovich, addressed (2). It teaches that courts should not look to abstract, overall purposes of a statute in place of more particular, local purposes. The latter purposes actually shed light on the text at issue, rather than using abstract (perhaps unenacted) purposes to divine text.

In this comment, I briefly address the setup of Rafilovich. Then I address why Rafilovich demonstrates a sort of textually constrained purposivism, threading together Telus v Wellman and Rafilovich.

Setup

Rafilovich involved the proceeds of crime provisions of the Criminal Code and the provisions in the Criminal Code for the return of seized property for the purposes of legal fees. The issue was whether property that was returned to the accused to pay for “reasonable legal fees” could later be subject to a fine by the Crown, if the property was not available for forfeiture (because it was already spent). Martin J wrote the opinion for the majority, in which she outlined the process by which these two sets of provisions worked (para 22 et seq):

  • The accused is charged with a “designated offence,” under s.462.3(1) of the Criminal Code.
  • Property is seized under Criminal Code provisions that allow the state to take property from an accused on the basis of reasonable and probable grounds that the property may eventually be proven to be proceeds of crime.
  • The accused makes an application for the return of the seized property for the purpose of paying for reasonable legal fees (s.462.34(4) to (6) of the Criminal Code). Seized property can only be returned “if the judge is satisfied that the applicant has no other assets or means available” to pay for legal expenses (s.462.34(4)(c)(ii)).
  • The onus shifts to the Crown to prove that certain property meets the statutory definition of proceeds of crime. Only property determined to be “proceeds of crime” is subject to forfeiture or a fine in lieu of forfeiture.
  • If the property which=proceeds of crime is no longer available for forfeiture, the judge may order a fine instead of forfeiture (s.462.37(3) and (4)).

Martin J then outlined the purposes of the proceeds of crime provisions, including the “return for the purposes of legal fees” provisions. The overall purpose of the proceeds of crime section of the Criminal Code is to ensure that “ ‘crime does not pay’ and to deter offenders by depriving them of their ill-gotten gains” (at para 2). But this overall purpose did not run through, at full force, all provisions of the section. Martin J outlined purposes particular to the legal fees provisions, including (1) ensuring access to counsel and (2) upholding the presumption of innocence (at para 53). To Martin J, these particular provisions must be “balanced with the primary objective of the proceeds of crime regime” (ibid). Permitting the Crown to take a fine amounting to the cost of legal fees spent during the course of the proceedings would run counter to these two objectives.

Moldaver J, in dissent, took a different view of the statute. He would have prioritized the “crime does not pay” overall purpose of the statute: “…I am of the view that the statutory regime’s primary objective of ensuring that crime does not pay need not and should not be sacrificed on the altar of the ‘secondary purposes’ relied on by my colleague” (at para 92). Moldaver J went to pains to note that all of the primary and secondary purposes of the statute could be achieved by prioritizing the primary purpose (ibid).

Analysis

In my view, Martin J’s majority opinion gives effect to explicit text in the Criminal Code that sets out “safety valve” provisions from the general proceeds of crime provisions governing reasonable legal expenses. These provisions, setting out different text, must emanate from a different purpose. In other words, these provisions on a plain reading have little to do with ensuring crime does not pay. For that reason, the provisions must reflect a different purpose than the overall one. Giving effect to Parliamentary meaning in language means recognizing this different purpose.

The starting point for this argument is a description of the general problems that plague Canadian statutory interpretation. As I wrote in my piece “Statutory Interpretation from the Stratasphere,” there are two basic problems in statutory interpretation: vertical abstraction and horizontal frequency. Vertical abstraction is the problem of, in one particular statutory provision, choosing the appropriate level of abstraction for the purpose which governs in relation to particular text. Horizontal frequency involves choosing the purpose most local to the dispute/legislative provision at hand among purposes at the same level of abstraction. Telus v Wellman involved the former issue, but Rafilovich involves the latter: do we choose the “primary” purpose of “crime does not pay” to resolve the dispute, or the more local purposes of access to justice and the presumption of innocence?

The Federal Court of Appeal has already dealt with this problem in the context of the Williams case, in which Justice Stratas sensibly isolated the horizontal frequency issue. As I wrote in “Statutory Interpretation from the Stratasphere”:

Williams shows a way to properly select the purpose. In that case, Justice Stratas identified the different purposes bearing on the interpretive difficulty; under s.3, the Act was aimed at “keeping track of cross-border flows” of currency, which fulfills larger public safety concerns. However, under s.13, the Act was directed at concerns of privacy. Those concerns were manifested in specific statutory text aimed at this “very limited” function.

There is a duelling tension between these statutory provisions, but Justice Stratas resolved the issue by focusing on the statutory purpose which bore most heavily on discovering the meaning of the statute. It would do no good to discovering the meaning of the provision at issue in Williams to frame the purpose at the level of public safety and end the matter. Instead, Justice Stratas sensibly isolated the purpose bearing on the problem by referencing specific statutory text supporting that purpose.

Applying this sort of thinking to Rafilovich, Justice Martin is clearly in the right. In this case, the most local purposes to the dispute at hand were the purposes speaking of access to justice and the presumption of innocence, assuming these purposes were identified correctly. Why must these purposes be prioritized over the general purpose? Because of the principle of democracy. The use of different language to express Parliament’s law in the legal fees provisions should lead to different interpretive outcomes. By this, I mean that ensuring crimes does not pay may be an overall purpose of the proceeds of crime provision, but Parliament clearly used different language and a different approach in the legal fees provisions. This different approach must, consequently, reflect different legislative purposes, as the legislative history in the case outlines (see para 39 et seq—though I cringe at the reliance on legislative history writ large). The court must give “purpose and meaning to each provision” (at para 20).

Moreover, ensuring crime does not pay is an odd purposive fit for the language under interpretation here. The availability of a fine for money spent on legal fees hinges on the fact that the money spent on legal fees is no longer available—it was spent. One could hardly say that an accused is benefitting from crime because of the mere fact that he paid for his legal defense with fees that, at the time of their spending, have not been shown to be proceeds of crime definitively. Furthermore, as Martin J notes, an accused may simply forego counsel, fearing a fine—which would undermine the so-called “secondary purposes” of the legal fees provisions. Instead, it is more natural to read the legal fees provisions as meaning something different and reflecting different purposes of access to justice and the presumption of innocence. These purposes, as in Williams, bear most heavily on discovering the meaning of the particular legislative provisions under interpretation—in other words, they are the most helpful to solving the interpretive difficulty. “Crime does not pay” does not, practically, get us any closer to solving the interpretive difficulty.

True, it would be right to note that money returned for legal fees could later be determined to be proceeds of crime; from this perspective, the accused “benefitted” from crime because he used tainted money to pay for his legal fees. But there are two responses to this position. First, at the time the accused spends the money on legal fees, one does not know whether the fees constituted “proceeds of crime”; “the accused may never be convicted, or the property may never be proven to be proceeds of crime. Thus, when accused persons spend returned funds on reasonable legal fees, they are spending their own money on their legal defence” (at para 45). Secondly, when balanced with the local purposes—access to justice and the presumption of innocence—it is more likely that Parliament intended a carve-out from the general “crime does not pay” principle in the distinct circumstances of legal fees. This is because of the centrality of counsel in our constitutional system. It is not absurd to suggest that when Parliament enacted these provisions, it had the backdrop of the important role of counsel in mind, as a limited carveout from the general crime does not pay principle (see the legislative history at paras 40-41). With that role in mind, coupled with the important role of the presumption of innocence, it is not a far leap to suggest that Parliament wanted different purposes to drive these particular sections of the Criminal Code.

Overall, and as I mentioned above, textually-constrained purposivism has two parts. Telus v Wellman focused on the importance of text vis-à-vis purpose. Rafilovich solves the other problem associated with purposivism: how do we decide which purpose governs? Martin J’s opinion selects the most local purposes to the interpretive dispute, explicitly giving meaning to Parliament’s language in the legal fees provisions. This, to my mind, is a positive step.

Author: Mark Mancini

I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I am the National Director of the Runnymede Society, a national law student organization dedicated to debate on issues relating to the Rule of Law, constitutionalism, and individual liberty. I clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in administrative law broadly, with specific interests in substantive review of administrative interpretations of law. I am also interested in law and economics. Any views expressed on Double Aspect are mine, and do not represent the views of the Runnymede Society.

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