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.
Double Aspect 
I think this is a little over the top, and an unfair reading of what Gillese actually said. A large part of her decision is based in ordinary meaning, too. They just disagreed about what the ordinary meaning was. I personally think Gillese is right and Miller is wrong about ordinary meaning. Of course a FaceTime is a recording! How else do you transmit video to someone, but by recording it first? So what if it can’t be stored? The video has still been “recorded”. This is what Gillese says:
[63] My plain reading of these provisions begins with the observation that with traditional technology, such as a camera, the capture and display of the visual image are separate acts. But, with a livestream application such as FaceTime, the two are simultaneous. Livestream transmissions enable a caller to capture visuals (i.e. record intimate images) and share them simultaneously. Thus, a FaceTime call in which the caller’s iPhone is pointed at a person is a visual recording of that person, within the meaning of s. 162.1(2), because that person’s image is captured on the caller’s phone and transmitted to the recipient’s screen where it is displayed. How could the recipient observe the person if that person’s image had not been recorded and transmitted to them? It matters not whether the recipient reproduces the person’s image or could reproduce it; the recipient has seen the person’s image because the caller recorded it and sent it to them. Thus, the FaceTime call is the visual recording of the person.
Disagree with the analysis, fine, but calling it an “abomination” which disregards text and rewrites the statute to serve her subjective understanding of the law’s purpose is just …. wrong, and not what she did at all.
The purposive analysis Gillese then undertakes only reinforces why her ordinary meaning analysis is to be preferred. It’s just common sense that dissemination of an intimate FaceTime recording is exactly the kind of harm this provision exists to prevent. If reliance on any “common sense” is too much of a subjective, amorphous interpretation, well, then, I don’t know what to tell you.
Hi Henry,
I doubt we will agree on this.
If this is simply a dispute over ordinary meaning (“plain” as Gillese JA calls it) that is fine. And to be clear, I certainly don’t think it is a matter of Gillese JA imposing her own “subjective understanding” of the purpose itself. As I say, there is common ground on what the purpose is. Instead, as I say, this is a dispute over what the language means.
The difference is in the acknowledgment is that, sometimes, means (language) will imperfectly capture–or only track to some extent–the purpose(s) of the statute. Your assertion of common sense might be common or sensible to you, but Parliament evidently made different choices (if you look at Miller JA’s analysis of the context).
I wouldn’t worry too much about the abomination language. I just don’t like Holy Trinity. As much as the Crown wanted to make this about the meaning of the words, the result was a reasoning from purpose to fill gaps in the text.
Thanks for your reply. I don’t think you are addressing the main thrust of my comment though.
My point is that your article is based in a straw man. Its primary thesis is that Gillese and Miller use two distinct methodological approaches, and one is better. I’m not arguing with you about which approach is better, I’m saying that your basic premise is incorrect because Gillese doesn’t actually use the method you say she does – they *both* used the ordinary meaning method, which is the one you advocate for, and she just arrives at a different result. Her result did not also *require* any application of “pragmatism” to get to her conclusion, even if she did *also* apply some purposivism to reach the same result. And it just so happens that I think Miller is dead wrong in his application of the ordinary meaning method, but that’s a secondary matter.
I don’t agree.
First some terminological issues: I am not sure what you mean when you say I prefer the “ordinary meaning method.” If you mean to say that I prefer an approach that uses the ordinary meaning of words as opposed to some technical meaning, then that is correct. But this isn’t a “method” as much as it is the going-in presumption that most interpreters use, always rebuttable based on the context and the text to-be-interpreted. In other words, and as I will point out, agreeing on the use of ordinary meaning does not clarify very much in today’s law of interpretation in Canada.
Secondly, as I said, I acknowledge this is a dispute about the language. Simply saying that Gillese and Miller used the “ordinary meaning method” (again, some terminological confusion here, but that aside) is really not the point you think it is, because agreeing that one must adopt the “ordinary meaning” is the tip of the iceberg. As most lawyers will tell you, the real confusion comes when we determine what the relationship between text and purpose(s) is in a particular case. I think it is fairly evident that both judges used the purpose differently in relation to the text. As I mentioned, it is in the Crown’s benefit to spin this as a dispute over ordinary meaning rather than a dispute about the use of purpose.
Finally, my argument is not that pragmatism *requires* anything. Actually, it’s the exact opposite. It doesn’t *require* anything, and that’s the problem. A judgment based on methodological pragmatism might sometimes be well-justified with reference to the tools of interpretation. But it need not be, and that’s my worry–it permits uses of purpose that, for the reasons I’ve raised, could be troublesome.
I hope you are working these posts into a paper. It would be a useful contribution.
I don’t find the red light-yellow light-green light thing very helpful. There is an unexamined liberal (in the classical sense) assumption that substantive “policy” values are “preferences.” That is just what the people you disagree with are denying. They are saying substantive values are just as objective (or just as subjective) as the communicative meaning of the text. Of course, if the policy “preference” is truly “personal”, then it is not legitimate as a basis for a decision, but the policy that criminal laws that are unclear should go to the accused is not obviously of a different status than the policy that sexual privacy should be protected from abuse. I don’t think either of these are “personal” or absent from the legal order.
There is something about the rhetoric of “personal policy preference” that is unnecessarily polarizing, since it seems to suggest that the judge who uses that language has a more direct access to the truth than the one who disagrees. I think they both have to acknowledge that they are constrained, as interpreters, by what the legislature decided to do and to good faith readings of what that was.