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.

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!

An Oddity in Strom

In October, the Saskatchewan Court of Appeal released its much-anticipated decision in Strom. Strom raised a number of important issues: “ “at the intersection between professional regulation, Ms. Strom’s private life, and the s.2(b) Charter guarantee of freedom of expression in the age of social media.”  

Strom was a registered nurse. Her grandfather tragically passed at a long-term care facility. Strom took to Facebook to criticize the care her grandfather received at the facility. The facility’s employees reported the comments to the Saskatchewan Registered Nurses’ Association (SRNA). The SRNA charged Strom with professional misconduct, and the SRNA Discipline Committee found her guilty.

The Court ultimately overturned the Discipline Committee’s decision. For many reasons that I cannot explore here, I think this is the right decision, in law and in principle. But one aspect of the decision is of particular interest to me: the Court’s standard of review discussion as it related to the freedom of expression arguments raised by Strom.

Of course, in such a case, the framework that governs the standard of review analysis is Doré. Doré holds that the standard of review when a court reviews an administrative decision is reasonableness (Doré, at para 7). Doré also introduces a proportionality framework for assessing whether a decision-maker has struck a reasonable balance between the Charter right at hand and the statutory objective. Post-Vavilov, it is at least an open question about whether Doré is still good law. This is because Vavilov reaffirms that, when litigants challenge a law under the Constitution, the standard of review is correctness (Vavilov, at para 56). I, for one, have questioned why it is that different standards of review should apply, especially since the Court in Vavilov recognized that  legislatures cannot “…alter the constitutional limits of executive power by delegating authority to an administrative body” (Vavilov, at para 56).

Enter Strom.  In that case, both parties agreed that the standard of review is correctness on the Charter issue (Strom, at para 133). The Court also agreed, but only because the case came to court via a statutory right of appeal, and under Vavilov, statutory rights of appeal invite the appellate standards of review (correctness on questions of law, palpable and overriding error on questions of fact/mixed fact and law) (see Strom, at para 133). The Court noted, though, the following, at para 133:

It is not necessary to consider the question left unanswered by Vavilov, at paragraph 57; that is, what is the standard of review when the issue of whether an administrative decision has unjustifiably limited Charter rights is raised on judicial review, rather than on appeal?

This, in itself, is not really problematic. Given the fact that, for now, Doré lives another day, it would not be appropriate for an appellate court to apply the correctness standard to Doré-type situations. It is defensible—and proper—to simply classify a constitutional issue as a question of law that falls under the scope of an appeal right. And at the end of the day, it does not matter much for a results perspective, because the standard will be correctness either way.

However, in choosing the correctness standard, the Court then did something that is difficult to understand. It said the following, at para 140:

What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right? In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness. The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.

The Court went on to describe the question raised by the case, at para 166:

The question as to whether it has imposed excessive limits is the proportionality question. Here, it is whether the Discipline Committee advanced its statutory objective in a manner that is proportionate to the impact on Ms. Strom’s right to freedom of expression. One aspect of that question is whether the impact on her freedom of speech in her private life was minimal or serious.

The Court then went on to apply the Doré framework, though made reference to some parts of the Oakes test (see para 153).

This strikes me as an oddity. Let’s take what the Court describes its task to be. When courts apply the correctness standard, courts focus on “the conclusion the court itself would have reached in the administrative decision maker’s place” (Vavilov, at para 15). The proportionality analysis advanced in Doré, however, seems to have deference built-in to it. While Doré notes that the Oakes test and the Doré framework “exercise the same justificatory muscles,” (Doré, at para 5), Doré deference asks courts to give some weight to the statutory objective being advanced by the decision-maker. This was, indeed, a bone of contention for the dissent of Brown and Côté JJ in Trinity Western. But when a court conducts correctness review, at least in theory, the court should not give any weight to what the decision-maker’s reasons are for making

That said, there are no perfect Platonic forms in law. It is true that Oakes itself has developed to contemplate deference in its application. And it is also true that courts, post-Vavilov, have applied what I call “light correctness review” (see Planet Energy, at para 31), where a certain amount of weight is given to the decision-maker’s “…interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.” This could be seen as a sort of Skidmore-like deference, under which courts give non-binding weight to an administrative interpretation.

That said, the inherently deferential idea of Doré review seems inconsistent with a stringent application of the correctness standard. This, to me, is a theoretical oddity, even if its effect is blunted on the edges.

Constitutional Law Ruins Everything. A (sort of) response to Mancini’s “Neutrality in Legal Interpretation.”

This post is by Andrew Bernstein.

No! I am not an academic nor was meant to be.
Am a mere practitioner, one that will do
To settle a dispute, argue an appeal or two
When advising clients, the law’s my tool.
Deferential, if it helps me sway the court
Argumentative, and (aspirationally) meticulous.
Case-building is my professional sport
Trying my hand at theory’s ridiculous!
But I’ll dip a toe into this pool.

(With apologies to T.S. Eliot and anyone who appreciates poetry)

Also, this is a blog post, so no footnotes or citations. Sorry!

As a lawyer whose most enduring interest for the last 30 years has been Canada’s constitutional arrangements, it gives me great pains to confess to you that I have concluded that constitutional law ruins everything. Or, perhaps put more judiciously, the kinds of debates that we have about constitutional interpretation are not especially instructive in dealing with other types of legal questions, such as statutory or common-law interpretation. There are many reasons for this, but the central one, in my view, has to do with the fact that while reasonable people may disagree on the outcome of a statutory interpretation, or a question of common law, those people will largely agree on the method of conducting those analyses. In constitutional interpretation, we don’t have consensus on “how” so it’s no wonder that the outcomes can be so radically different.

What are we really asking courts to do when we ask them to resolve a dispute? There are no doubt some high-minded theoretical answers to this (“do justice between the parties,” “ensure that capitalism is never threatened,” “enforce institutional sexism, racism, ageism, ableism and homophobia”) but from a practitioner’s perspective, the answer is actually straightforward: sort out the facts and apply a set of legal rules to those facts. Overwhelmingly those rules come from a variety of legal instruments, such as statutes, regulations, by-laws, and other “outputs” of political institutions such as Parliament, legislatures or municipal councils. If these institutions they don’t like the judicial interpretation of what they have passed, they can change the instrument accordingly. Moreover, these institutions are democratically elected, so if citizens do not agree with the laws that get made, they can replace them at the next election. Although this “feedback loop” suffers from many inefficiencies and obstacles in practice, it is essential to maintaining the concept of self-government by majority rule. What this means is that courts know what they are supposed to be doing when they interpret statutes: they look for legislative intention, as expressed by the words of the document. While courts are entitled to employ whatever clues they might be able to find in things like the legislative history, they appreciate that those clues must be used judiciously, as one speech by one MP does not a legislative intention make. And courts appreciate that the words of the document ultimately govern – although compliance is less than perfect, courts generally understand that they are not to circumvent the meaning of legislation with some kind of analysis based on the instrument’s supposed “purpose.”

While it is frequently accepted that the objective of statutory interpretation is to discern legislative intent, the question of why we would want to do so is not frequently interrogated. After all, while it may make eminent sense to give effect to a law that was passed a week ago, why would a self-governing people want to be governed by legislation that was passed by a legislature that is no longer in session? Perhaps by a different political party? The answer is partially pragmatic (it would be awfully cumbersome to have to re-enact every law each time a legislature was dissolved) but the real reason is the existence of the democratic feedback loop. Statutory interpretation operates on the presumption that, if no legislature has repealed or amended the statute, the people (as represented by the legislature) are content with it as it stands. In fact, this is the reason why no legislature can bind a future one to things like supermajority requirements. Because it is the people’s current intention – and not their past intention – that governs.

Constitutional law is designed to be immune to the democratic feedback loop. At least some aspects of the constitution are specifically intended to limit democratic institutions. The essence of that aspect of constitutionalism is the protection of vulnerable and/or minority groups from the potential for ill-treatment by the majority. Sometimes these protections take the role of institutional structures (such as federalism, regional representation in central institutions, and, according to some, a separation of powers) and other times they are specific guarantees of rights that specifically limit government action: freedom of expression, equality, or even “life, liberty and security of the person.” Cumulatively, this constitutional architecture is supposed to create a balance between self-government and limited government, ensuring that Canadians can govern ourselves, while not permitting the majority to oppress minorities.

This sounds great in theory, but immediately creates a dilemma: who gets to decide on the limits of “limited government?” Someone has to, and (if the constitution is going to be effective at curbing democratic excess) it has to be a different “someone” than the majoritarian institutions that actually do the governing. And although there are different models around the world, in Canada (like our American neighbours), we entrust that job to the Courts. This is not an uncontroversial decision, for a number of reasons. First, it is not clear that courts are institutionally well-suited to the job, with their adversarial model of fact-finding and decision-making. Second, courts are presided over by judges, who are just (as Justice Stratas recently said) lawyers who have received a judicial commission. There is no reason to think they are especially well suited to weighing the interests that a complex society needs to achieve an ideal balance between, for example, liberty and security, or equality and religious freedom. Third, judges are famously unrepresentative: they are whiter, richer, more male, more Christian, older and more conservative than the population. Nowhere is this more apparent than the apex of judicial decision-making, the Supreme Court of Canada, which got its first female judge in the 1980s and has never had an indigenous or any type of non-white judge or a judge from the LGBTQ community. Eighty five of Canada’s ninety Supreme Court judges have been Christian, the other 5 have been Jewish. No Muslims, Hindus, Sikhs, or even (admitted) atheists . Nevertheless, these 9 judges get to make significant decisions that have a major impact on social policy. Since the Charter was enacted, the Supreme Court has had a major role in liberalizing access to abortion, permitting medical assistance in dying, liberalizing prostitution laws, freeing access to cannabis, prohibiting the death penalty, enhancing public employees’ right to strike, and many other social policy decisions that were different from the democratic choices made by legislatures. In Canada, most decisions to strike down legislation have tilted towards the liberal side of the political spectrum, but there have also been decisions (most infamously, relating to private health care in Quebec) that tilt more towards the conservative side. This is not inherent to the process of adjudicating rights: the United States Supreme Court has grown increasingly conservative in the last 20 years, striking down liberal legislation relating to campaign finance, voting rights, and only yesterday striking down pandemic limitations on gatherings in houses of worship.

The combination of anti-democratic process and anti-democratic outcomes that constitutional adjudication creates has been subject of concern and criticism since judicial review was created in Marbury v. Madison. This, in turn, has led to the development of theories that are designed to constrain judicial decision-making. While some of this may be results-oriented, at its core, the goal of all “court-constraining theories” of constitutional interpretation is to give constitutional decision-making a touchstone by which decisions can be evaluated. Readers of this blog will no doubt be familiar with these theories, such as textualism, or public-meaning originalism, which stand in contrast to what is sometimes referred to as “living tree constitutionalism” or (in Leonid’s catchy turn of phrase “constitutionalism from the cave”). While I will undoubtedly not do them justice, the “touchstone theories” posit that the meaning of constitutional rights are more-or-less fixed (although may need to be applied in novel situations) and it’s the job of the courts to find and apply those fixed meanings, while “living tree constitutionalism” allows the meaning of these rights to evolve over time, and it’s the job of the courts to decide when and how to permit that evolution to take place.

To use an over-simplified example, imagine a constitutional guarantee of “equality,” which (it is agreed) was understood to mean “equality of opportunity” at the time it was enacted. And imagine that 40 years later, it is established that the historical and systemic disadvantages suffered by certain groups means that merely providing equal opportunity proves insufficient to providing those groups with a fair outcome. Touchstone constitutionalists could suggest that although what constitutes “equality of opportunity” may have to change to meet changing social circumstances, but does not permit courts to go further and use the constitutional guarantee of “equality” to impose equality of outcomes. Living tree constitutionalists could posit that the guarantee of equality was intended to ensure that people do not suffer disadvantage because of their immutable characteristics, and if we now recognize that this can only be done by providing equality of outcome, then this is what courts should do.

What’s important to appreciate is that our protagonists on both sides are not disagreeing just on the outcome. They are disagreeing on the fundamental nature of the exercise. Touchstone constitutionalists believes that the courts’ job is essentially to be the “seeker” in a game of hide and seek, while the living tree constitutionalists believe that the courts are playing Jenga, carefully removing blocks from the bottom and building the tower ever higher, with its ultimate height limited only by how far they can reach.

Who is right and who is wrong in this debate? No one and everyone. In fact, as I read Mark’s post to which I am (ostensibly) responding, I understand his plea to be not that touchstones – regardless of how old they may be – are normatively a fantastic way to adjudicate modern problems but rather that the alternative to touchstones is anarchy (or Kritarchy), and that has to be worse. Similarly, critics of touchstone constitutionalism are concerned about being forever bound by the past, without providing a particularly good explanation of what could or should reasonably replace it without ultimately resorting to the idea that we have to trust our judges to make good decision. This of course, begs the question “if we are relying on someone’s judgment, why is it the judges and not the people’s through their democratically elected representatives?”

What am I saying? I’m saying that the “touchstone vs. tree” debate is actually a normative question, that people like to dress up as one that has an objectively ascertainable answer. But in truth, where you stand on this will really depend on your own personal value system, as informed by your own experiences. If you value predictability and stability, and/or the idea of judges making decisions about what is right, fair or socially appropriate is offensive to you, you may be inclined towards touchstone constitutionalism. If you value substantive outcomes, and see the judicial role as guaranteeing and enforcing rights as they evolve, you will be inclined towards the living tree. Of course, this is to some degree all a false dichotomy. There are many places available between either end of this spectrum and everyone ultimately ends up tends towards one of the more central positions. For example, it is difficult to find anyone who seriously doubts the correctness of Brown v. Board of Education, even though there’s at least an argument that certain touchstones informing the meaning of equal protection in the United States’ 14th amendment contemplated segregation. On the other hand, no matter how alive one’s tree might be, respect for a system of precedent is necessary if you are going to continue to call what you are doing “law” as opposed to policymaking by an unaccountable institution that has only faint markings of democratic accountability.

So why does constitutional law ruin everything? As I see it, is that this unresolvable dilemma in constitutional law has a tendency to bring its enormous baggage to other areas, and leave it there. But it’s not clear that these oversized duffles filled with decades of counter-majoritarian sentiment are really going to assist what I would consider to be the very different exercise of statutory interpretation (I’m well aware of the argument that the constitution is just an uber-statute and should be interpreted accordingly, but that’s really just an argument for touchstone constitutionalism so I will conveniently ignore it). Why? Because unlike in constitutional interpretation, we have broad consensus on how to go about the exercise of statutory interpretation entails: it entails trying to determine what the legislature intended by the text that it enacted. And although this exercise can be difficult at times, and reasonable (and unreasonable) people can often disagree, they are disagreeing on the outcome and not the process. No one truly suggests that the courts should play Jenga when interpreting statutes; they are always the seeker in a game of hide-and-seek, using well-understood tools and rules. Of late, we have been describing those as “text, context and purpose” but long before that catch phrase existed, we had the lawyer’s toolbox of logic, common sense, experience, and approximately 400 years of common-law jurisprudence on canons of statutory construction (well-defended by Leonid in his recent post). It’s true that these rules are convoluted and it’s not always straightforward to apply them. Some judges and courts give more weight to (for example) the purpose of statute and the presumption against absurdity, while others might be more interested in the intricacies of grammatical structure. But these are matters of emphasis, and the degree of variation relatively modest. In fact, there is a pretty strong consensus, at least among Canadian courts, about how the exercise of statutory interpretation ought to be conducted, and, in the main, it is done with amazing regularity.

OK so we have covered the constitution (where there is no agreement on the game, much less the rules) and statutes (where everyone is singing from the same hymnbook). What remains is common law, and it is probably the strangest of all these creatures because it is, by necessity, hide-and-seek but what you are looking for is Jenga blocks. There is, of course, an important touchstone courts and judges look to: precedent. But if you stretch far back enough, the touchstone itself has no touchstone other than “what judges think is best.” In many ways, it’s “law from the cave” but the cave is extremely old, dark, and you probably can’t see the exit, so you are stuck inside unless or until the legislature “rescues” you and replaces the common law rules. This leads to a fascinating problem: because it’s based on precedent, common law derives its authority from consistency. But because it’s judge-made, judges feel relatively free to remake it in appropriate circumstances. In many ways, it’s the worst of both theoretical worlds: it is bound by (some may say stuck in) the past and also readily changeable by judges. But somehow it works anyway, and with much fewer lamentations from the theorists who worry about either of these things (excluding, of course, administrative law, which by unwritten constitutional principle must be comprehensively re-written every ten years to keep a group of frustrated practitioners on their toes).

So in short, I endorse Mark’s sentiment that we need neutral principles in adjudication. But I disagree that they are in short supply. We have neutral principles in statutory interpretation, and they work as well as any system that is administered by a few hundred people across the country possibly could. We have essentially one neutral governing principle in common law analysis, which is “mostly follow precedent.” So what we are really talking about is constitutional law, where the debate between the touchstone cops and the living tree arborists is essentially unresolvable because when you scrape to the bottom it asks “what do you value in a legal system” and it’s no surprise that there isn’t universal agreement on this. But there is a strong consensus on how to engage in interpretation outside the constitutional context, and we should not let the constitutional disagreements obscure that.

In other words, constitutional law ruins everything. But I told you that at the beginning.

Declarations of Unconstitutionality as Judgments In Rem: A Response to Professor Daly

This post is written by Marc-Antoine Gervais, and a larger paper on the subject will appear in the McGill Law Journal (vol. 66).

Canada’s model of judicial review of legislation is unusual. On the one hand, it is “diffuse” in that all courts of law (and many administrative tribunals) may decide constitutional questions. On the other hand, declaratory judgments of unconstitutionality issued by superior courts under s. 52 of the Constitution Act, 1982 “establish the general invalidity of a legislative provision for all future cases.”[1] As Professor Daly’s comment on R v. Sullivan reveals, there is still much uncertainty regarding the true nature and scope of s. 52 declarations rendered by provincial superior courts.

Professor Daly contends that “[t]he effect of a declaration of unconstitutionality, just as with a declaration of invalidity of a regulation, is that it no longer exists.” He further suggests that “res judicata has no application here […]: the matter has been decided but not because the requirements of res judicata are met, rather because a declaration with erga omnes force has been issued by a superior court.” With respect, it is submitted that the judiciary cannot literally invalidate or nullify laws, and that the general or erga omnes effect of s. 52 declarations may instead be explained by the doctrine of res judicata.

Courts cannot literally invalidate laws

Judges and commentators commonly assert that superior courts “strike down”, “nullify”, or “invalidate” unconstitutional laws.[2] These statements, however, should not be interpreted literally. Nothing in the Constitution of Canada empowers courts to exercise such a “negative act of legislation”, as Kelsen described it.[3] In fact, the power to annul laws has only been vested in the Queen in Council, although it has fallen into desuetude.[4]

Unconstitutional laws are “of no force or effect” by virtue of s. 52 of the Constitution Act, 1982. Courts merely declare, but cannot render laws invalid, as Justice Gonthier stressed in Martin: “the invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1).”[5] Authoring a powerful dissent espoused in subsequent Supreme Court jurisprudence,[6] Justice McLachlin, as she was then, left no doubt as to the judicial nature of declarations of unconstitutionality in Cooper:

It is common to speak of courts or tribunals “striking down” or invalidating laws […].  This view of the Charter is, with respect, inaccurate.  The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982, however, provides that all laws are invalid to the extent that they are inconsistent with the Charter.  Laws are struck down not by judicial fiat, but by operation of the Charter and s. 52 of the Constitution Act, 1982.[7]

Justice La Forest’s opinion in Kourtessis further confirms that declaratory judgments are no different in constitutional matters: “the declaration [of unconstitutionality] by its nature merely states the law without changing anything” — that is, it does not literally extinguish the provision deemed unconstitutional.[8] Proponents of the judicial nullification theory will have a hard time justifying the application by the Supreme Court of Canada of provisions that had been declared unconstitutional in prior cases.[9]

Res judicata and the general effect of s. 52 declarations of unconstitutionality

How, then, can a declaration of unconstitutionality generate erga omnes effects? The Supreme Court of Canada gave a hint in Ravndahl by describing s. 52 declarations as “in rem remed[ies]”.[10] A judgment in rem determines the legal status of a person or a thing independently from the context; it has erga omnes effects because it is “binding not only upon the parties but as against the whole world.”[11] The in rem determination is protected by the doctrine of res judicata, which estops anyone from challenging that legal status in other procedures.

Usually, judgments have inter partes effects because they only bind the parties to the litigation. However, in public law, it has been accepted for a long time that some types of determinations — such as declarations of nullity of regulations — are binding in rem.[12] In fact, the first constitutional law judgment in rem dates back to the famous 1637 Ship Money case, in which the court held that the tax levied by King Charles I was legal despite Parliament’s opposition.[13] Shortly thereafter, another litigant was estopped from challenging the same tax on the basis that the determination on the legality of the tax was no longer up for debate, even by non-parties to the Ship Money case.[14]

In modern Canadian constitutional law, the doctrine of judgment in rem may explain the general effect of s. 52 declarations issued by superior courts, as the apex court suggested in Ravndahl. Nonetheless, some difficulties remain. What is the territorial scope of declarations of unconstitutionality concerning federal legislation? In principle, judgments in rem bind the whole world, but this position is inapposite in the constitutional law context. Mark Mancini convincingly argues that it cannot be reconciled with the principle of federalism:

It would be an affront to the principled federalism balance established by the Constitution Act, 1867 to argue that section 52 declarations should extend throughout the country when issued by one judge in a province. The fact that there may be different findings between one province and another is a feature, not a bug, of the federalist system.

Moreover, a nationwide declaration of unconstitutionality issued by a single provincial superior court would have the very unfortunate effect of circumventing constitutional notice requirements to the attorneys general of other provinces.[15] It is thus submitted that judgments in rem should not run across provincial lines in constitutional matters until the Supreme Court — the only national court in Canada[16] — decides the issue.

In practice, superior courts have refused to automatically give effect to s. 52 declarations pronounced in other provinces.[17] In most cases, constitutional decisions are consistent throughout the country, but not always.[18] For example, the mandatory minimum sentence under s. 153 of the Criminal Code was declared unconstitutional by the Nova Scotia Court of Appeal,[19] but subsequently upheld by the Court of Appeal of Alberta.[20] The Supreme Court of Canada dismissed the application for leave to appeal the Alberta decision.

Not the final word on the constitutional matter

The doctrine of res judicata is flexible in common law, and it should not bar the reopening of a constitutional debate under certain exceptional circumstances.[21] Indeed, when the preconditions to the operation of the estoppel are established, the court possesses a discretionary power to refuse to apply it.[22]

Inconsistent superior court pronouncements on the constitutionality of a law in different provinces engender untenable jurisprudential uncertainty. In such circumstances, the controversy should be allowed to make its way to the Supreme Court of Canada, thereby allowing the “percolation” of diverse lower-court perspectives.[23] It must be stressed that this discretion to refuse the application of the estoppelshould only be exercised in order to foster the integrity and coherence of constitutional law, one of the central goals of the doctrine.[24]

Res judicata is thus distinct from, but operates in tandem with, stare decisis. Within a province, a mere disagreement with the underlying reasoning is not a sufficient ground for a court of appeal to neuter the estoppel barring the parties to challenge a judgment of unconstitutionality in rem issued by a superior in a prior case. Nonetheless, if the court elects to allow relitigation of the constitutional question, stare decisis applies as usual — either in its horizontal or vertical form, depending on the context.

Since courts cannot annul or invalidate legislation, it follows that the law once declared unconstitutional remains capable of “reviving” in the future, unless it is repealed. For example, the minimum sentence under s. 153 of the Criminal Code would “revive” in Nova Scotia if the Supreme Court of Canada holds that the provision passes constitutional muster in a subsequent case. The apex court has repudiated multiple declarations of unconstitutionality issued in earlier decisions,[25] and it would be inappropriate to blindly follow such controverted s. 52 declarations. Canadian[26] and American[27] courts have rightly “revived” laws once declared unconstitutional. Res judicata should not prevent the judiciary from revisiting declarations of unconstitutionality that rest on precarious legal grounds.

In the final analysis, courts cannot literally “strike down” laws or “remove [them] from [their] proper place among statutes.”[28] Rather, declarations of unconstitutionality are in rem determinations that generally establish the judicial ineffectiveness of provisions within the court’s territorial jurisdiction, subject to rare exceptions. The main qualification to the general binding effect of s. 52 declarations is that res judicata should not be applied where the estoppel entrenches inconsistencies in the judicial interpretation and application of the Constitution. The rule of law depends on it.


[1]        Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54 at para 31 [Martin].

[2]        See Schachter v Canada, [1992] 2 SCR 679 at 715; Ontario (Attorney General) v G, 2020 SCC 38 at paras 114, 237; Vancouver (City) v Ward, 2010 SCC 27 at 1.

[3]        Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution” (1942) 4:2 J Politics 183 at 187.

[4]        The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, s 56.

[5]        Martin, supra note 1 at para 28. See also R v Ferguson, 2008 SCC 6 at 35.

[6]        See ibid at para 29; Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55 at para 36; R v Conway, 2010 SCC 22 at paras 20, 64–82.

[7]        Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 at para 83.

[8]        Kourtessis v MNR, [1993] 2 SCR 53 at 86.

[9]        See R v Malmo‑Levine, 2003 SCC 74 and R v Loewen, 2011 SCC 21. The marijuana prohibition under s 4 of the Controlled Drugs and Substances Act had been declared unconstitutional by the Ontario Court of Appeal in R v Parker (2000), 49 OR (3d) 481), and the government adopted a new regulation to solve the constitutional lacuna. However, no legislative amendment was made. See also R v J-LJ, 2000 SCC 51 and R v Lamy, 2002 SCC 25. The Quebec Court of Appeal had declared s 159 of the Criminal Code unconstitutional in R c Roy, supra note 17, but its constitutionality was not challenged in both Supreme Court cases.

[10]      Ravndahl v Saskatchewan, 2009 SCC 7at para 27.

[11]      See Barry L Strayer, The Canadian Constitution and the Courts, 3rd ed (Toronto: Butterworths, 1988) at 193.

[12]      See Dilworth et al v Bala (Town) et al, [1955] SCR 284 at 289 [Dilworth]; Corporation du Village de Deschênes v Loveys, [1936] SCR 351; Emms v The Queen et al, [1979] 2 SCR 1148 at 1158–62 [Emms];

[13]      Rex v Hampden (1637), 3 How St Tr 826.

[14]      Lord Say’s Case (1638), Cro Car 524.

[15]      See Strayer, supra note 11 at 193–95.

[16]      See TA Cromwell, “Aspects of Constitutional Judicial Review in Canada” (1995) 46:5 SCL Rev 1027 at 1042.

[17]      See R v Pete (1998), 119 BCAC 161 (BC CA); Reference re Same-Sex Marriage, 2004 SCC 79 at 70; R v EJB, 2018 ABCA 239 at paras 72–75; Parent c Guimond, 2016 QCCA 159 at paras 11–18; R c Roy, [1998] RJQ 1043 (Qc CA); R v Scofield, 2019 BCCA 3 at paras 75–89; R v Boutilier, 2016 BCCA 24 at para 45 (Nielsen J); R v Graham and Parks, 2003 BCPC 369 at paras 12–16; R v Nicholls, 2003 BCPC 132 at 74–76.

[18]      See infra notes 19–20; s 151(a) of the Criminal Code was deemed constitutional in British Columbia twice in 2015 and 2017, but declared unconstitutional in multiple other provinces. In 2019, the Court of Appeal for British Columbia eliminated this inconsistency by overruling prior cases in the province and declaring the provision unconstitutional. See R v Scofield, 2019 BCCA 3 at paras 11–12, 75–88.

[19]      See R v Hood, 2018 NSCA 18.

[20]      See R v EJB, supra note 17 (leave to appeal dismissed).

[21]      See Emms, supra note 12; Dilworth, supra note 12 at 289–90.

[22]      See Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 33.

[23]      See Han-Ru Zhou, “Erga Omnes or Inter Partes? The Legal Effects of Federal Courts’ Constitutional Judments” (2019) 97 R du B Can 276 at 296–98.

[24]      See R v Mahalingan, 2008 SCC 63 at 38.

[25]      See eg R v Turpin, [1989] 1 SCR 1296 at 1333–34; Libman v Quebec (Attorney General), [1997] 3 SCR 569 at paras 55, 79.

[26]      See Saltspring Island Water Preservation Society v Rockliffe, [1993] 4 WWR 601 (BCCA).

[27]      See Legal Tender Cases (1870), 79 US (12 Wall) 457, in which the US Supreme Court upheld a law that it had declared unconstitutional two years earlier in Hepburn v Griswold (1868), 75 US (8 Wall) 603. See also West Coast Hotel Co v Parrish (1937), 300 US 379, rejecting Adkins v Children’s Hosp (1923). The law’s validity was later confirmed in Jawish v Morlet (1952), 86 A2d 96 at p 97 (DC Mun Ct App). See also Pait v Ford Motor Co (1987), 500 So 2d 743 (Fla Dist Ct App); Pullum v Cincinnati, Inc (1985), 476 So 2d 657 (Fla Sup Ct) at pp 659–60; State ex rel Gillespie v County of Bay (1933), 112 Fla 687 at p 722 (Fla Sup Ct); Pierce v Pierce (1874), 46 Ind 86 at p 95.

[28]      Allison v Corker (1902), 67 NJL 596 at p 601.

Guest Post: Marc-Antoine Gervais

It is my pleasure to announce a guest post today by Marc-Antoine Gervais, on the subject of declarations of invalidity as in rem judgments. The post is a response to Paul Daly’s recent post on declarations of invalidity in the aftermath of the Sullivan decision.

Marc-Antoine has a larger paper coming out in the McGill Law Journal on this subject (vol 66).

Neutrality in Legal Interpretation

Nowadays, it is unfashionable to say that legal rules, particularly rules of interpretation, should be “neutral.” Quite the opposite: now it is more fashionable to say that results in cases depend on the “politics” of a court on a particular day. Against this modern trend, not so long ago, it was Herbert Wechsler in his famous article “Towards Neutral Principles of Constitutional Law” who first advanced the idea of neutral principles. He wrote that, because courts must not act as a “naked power organ,” they must be “entirely principled” (Wechsler, at 19). They are principled when they rest their decisions “on reasons with respect to all the issues in the cases, reasons that in their generality and their neutrality transcend any immediate result that is involved” (Wechsler, at 19). The goal of these so-called “neutral principles” was to avoid “ad hoc evaluation” which Wechsler called “the deepest problem of our constitutionalism” (Wechsler, at 12). While Wechsler did not put it this way, I think textualism—particularly in statute law—is the closest thing to neutrality we have, and should be defended as such.

Wechsler’s idea of neutral principles, and textualism itself, are subject to much controversy. But, in my view, it is without a doubt that a deep problem in Canadian law remains “ad hoc evaluation,” otherwise known as “results-oriented reasoning.” Some judges are starting to recognize this. In constitutional law, Justices Brown and Rowe in the recent s.15 Fraser case noted that “substantive equality”—while a laudable doctrinal goal—has been ill-defined in the cases, and “has become an open-ended and undisciplined rhetorical device by which courts may privilege, without making explicit, their own policy preferences” (Fraser, at para 146). The same potential problem attends statutory interpretation, where results-oriented reasoning is possible (Entertainment Software Association, at para 76), and administrative law, where Vavilov was concerned with provides a rules-based framework for the application of deference. All of this is positive, because it provides a guide for judges in applying rules, ensuring that the reasoning process is transparent, bound, and fair to the parties.

But, in many ways, neutrality as a principle in our law is under attack. A common adage has become “law=politics,” and this broad, simple statement has elided the nuances that must apply when we speak of interpretation. This is true on both sides of the “political aisle” (a reference I make not out of any desire to do so, but out of necessity). Some who believe in notions of living constitutionalism or unbounded purposivism would tie the meaning of law to whatever a particular political community thinks in the current day, ostensibly because the current day is more enlightened than days past. In some ways this might be true as a factual matter (putting aside questions of legitimacy). But, as we are learning in real time, we have no guarantee that the present will be any more enlightened than the past.  Still others now advance a novel idea of “common good constitutionalism,” under which the meaning of constitutional text—whatever it is—must align with a “robust, substantively conservative approach to constitutional law and interpretation.” The goal is a “substantive moral constitutionalism…not enslaved to the original meaning of the Constitution.” These views have something in common: they purport to view the interpretation of law as a means to an end, reading in to legal texts contentious, political values that may or may not be actually reflected in the laws themselves.

The attack on neutrality from these camps—that span the spectrum—follow a familiar path, at least implicitly. They reason from an end. In other words, the argument assumes that some end is coextensive with moral justice, whatever that is. It assumes that the end is a good thing. It then says that the law should encompass that end because it is good.

Legal interpretation should not work this way. Laws, whether statutes or Constitutions, embody certain value choices and purposes. They have an internal meaning, quite apart from what other people want a particular law to mean. In this way, it is true that law is a purposive activity, in that law does pursue some end. But, as is well known, law is not co-extensive with justice, nor is it helpful to the interpretation of laws to say they pursue the “common good” or some other bromide. Even if one could come to some stable definition of such terms (a tall task indeed) that could guide the task of legal interpretation, it isn’t clear that all of the goals associated with some external philosophy are co-extensive with the law as adopted.   Laws do pursue purposes, but they do not do so at all costs—they often pursue limited or specific goals that are evident only when one reads the text (see the debate in West Fraser between the opinions of McLachlin CJC and Côté J on this point). This is why purpose is usually best sourced in text, not in some external philosophy.

If we accept that law is indeed a purposive endeavour, and that the words used by legislatures and drafters are the means by which purposes are enacted, then textualism is a defensible way of discovering those purposes. Textualism is simply the idea that we must read text to discover all that it fairly encompasses. Textualism is really a family of tools that we can use to discover that text. There are the linguistic canons—ejusdem generis, and the like—that are generally based on the way humans tend to speak in ordinary terms. There are contextual canons, such as the rule that statutes must be interpreted holistically. There are substantive canons of construction (which I will get to later). And there are other tools, like purpose, which can guide textualist interpretation so long as it is sourced properly. Unlike other theories of “interpretation,” these tools are designed to find the meaning of the law from within, rather than imposing some meaning on it without.

I can think of at least three (and probably more) objections to the point I am making here. First, one might say that textualism and its family of tools are not themselves neutral. For example, some of the substantive canons of construction might be said to be imbued with presuppositions about the ways laws must be interpreted. For example, there is the rule that statutes altering the common law require a clear statement in order to do so.  This is not a value-neutral tool, it could be said, because it makes it difficult for statutes to override what one might call a generally “conservative” common law. I do see the merit of this argument, which is why I (and some other textualists) may wish to assign a lesser role to substantive canons. Indeed, since I believe in legislative sovereignty, the legislature should be able to change the common law without a clear statement. Of course, these canons could be justified on other grounds that I do not have space to explore here. For example, they could be justified as a matter of precedent, or as a matter of “stabilizing” the law.

Second, one might trot out the familiar canard that textualism as a general matter leads to “conservative” outcomes. To put this argument in its most favourable light, one might say that textualism leads to cramped interpretations of statutes, robbing them of their majestic generalities that could serve to achieve certain political aims. It’s worth noting three responses to this position. First, the “cramped interpretation” argument tends to conflate strict constructionism and textualism. Indeed, textualism may sometimes lead to “broad” interpretation of statutes if text and purpose, working synthetically, lead to that conclusion. A great recent example is the Bostock decision from the United States Supreme Court, which I wrote about here. There, textualism led to a result that was actually more protective of certain rights.  Second, the use of political labels to describe legal doctrines is a pernicious trend that must come to an end. Even if these labels were actually stable in meaning, and not themselves tools of cultural warfare, it is unfair to assume that any one legal theory is always something. I understand the need to box everything, these days, into neat categories. But sometimes, law can mean many different things. And tools used to interpret those laws, as much as possible, should remain apart from the political aims those laws wish to pursue.

Third, it might be said that true neutrality is not of this world. That is, it could be argued that a Solomonic law is impossible, and no matter what, the act of interpretation is a fundamentally human activity that will be imbued with traditionally human biases. I accept this point. Because judges are humans, no system of rules will always remove the human aspect of judging, nor should it. The best we can do is design a system of rules, in mind of the tradeoffs, that limits the pernicious forms of biases and political reasoning that could infect the law. We won’t always get it right, but we should not take the nihilistic view that the entire enterprise of law as something separate from politics is not worth pursuing.

Finally, one might argue that law is inextricably political. It is cooked up in legislatures made up of thoroughly political individuals, with agendas. It is enforced by people who have biases of their own. I also accept this point. But this argument, to me, runs up against two major problems that limit its force. First, while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be. Not at all. In fact, one might say that the rules of interpretation should be used to discover the meaning of the law, whatever political result it encompasses. Second, there is a major is/ought problem here. Just because the making of law is political does not mean we should not be concerned with a system of rules designed to limit biases that might infect the judging process. All people, regardless of ideology, should find this goal laudable.

I close with this. I understand that we live in sclerotic times in which there are passionate political views on many sides. There is a natural tendency to impose those views into law. We lose something when this happens. While perhaps not a sufficient condition for legitimacy, it is central to the Rule of Law that laws be promulgated and interpreted in a fair way. Generality, as Wechsler notes, is one guarantee of fairness. If we give up on generality and neutrality in interpretation, then we must admit that judges are simply political actors, agents of politicians, without any need for independence. It is self-evident that this is undesirable.

Linguistic Nihilism

One common line of attack against textualism—the idea that “the words of a governing text are of paramount concern, and what they convey, in their context, is what the text means (Scalia & Garner, at 56)—is that language is never clear, or put differently, hopelessly vague or ambiguous. Put this way, the task of interpretation based on text is a fool’s game. Inevitably, so the argument goes, courts will need to resort to extraneous purposes, “values,” social science evidence, pre or post-enactment legislative history, or consequential analysis to impose meaning on text that cannot be interpreted.

I cannot agree with this argument. For one, the extraneous sources marshalled by anti-textualists bristle with probative problems, and so are not reliable indicators of legislative meaning themselves. More importantly, an “anything goes” approach to interpretation offers no guidance to judges who must, in tough cases, actually interpret the law in predictable way. In this post, I will explore these arguments. My point is that a sort of linguistic nihilism that characterizes anti-textualist arguments is not conclusive, but merely invites further debate about the relative role of text and other terms.

**

Putting aside frivolous arguments one often hears about textualism (ie: “it supports a conservative agenda” or “it is the plain meaning approach”), one clear criticism of textualism is that interpretation is not self-executing. Jorge Gracia, for example, writes:

…texts are always given in a certain language that obeys rules and whose signs denote and connote more or less established meanings. In addition, the audience cannot help but bring to the text its own cultural, psychological, and conceptual context. Indeed, the understanding of the meaning of a text can be carried out only by bringing something to the text that is not already there…

Gracia, A Theory of Textuality: The Logic and Epistemology, at 28

Sullivan calls this situation the “pervasive indeterminacy of language” (see here, at 206). Put this way, as Sullivan notes, it is impossible to interpret text in its linguistic context:

It is not possible for judges  who interpret a provision of the Criminal Code or the Income Tax Act to wipe out the beliefs, values and expectations that they bring to their reading. They cannot erase their knowledge of law or the subject of legislation. They cannot case aside legal culture, with its respect for common law and evolving constitutional values…Like any other readers, if they want to make sense of a text, judges must rely on the context that they themselves bring to the text (see 208).

This form of linguistic nihilism is highly attractive. So goes the argument, if texts cannot be interpreted on their own, judges should and must bring their own personal biases and values to the text, as a desirable or inevitable result of the unclear text. And if that’s the case, we should adopt another type of interpretive record—perhaps one that centres what a judge in a particular case thinks the equities ought to be.

**

This argument aside, I find it hard to accept. First, the tools that are inevitably supposed to resolve these ambiguities or vagueness themselves are ambiguous and vague; so it is hard to hold them up as paragons of clarity against hopelessly clear text.

Let’s consider, first, the tools often advanced by non-textualists that are supposed to bring clarity to the interpretive exercise. Purpose is one such tool. In Canadian statutory interpretation, purpose and context must be sourced in every case, even when the text is admittedly clear on first blush (ATCO, at para 48). Put together, text, context, and purpose must be read together harmoniously (Canada Trustco, at para 47). But sometimes, purpose is offered by anti-textualists as an “out” from ambiguity or vagueness in the text itself. The problem is that sourcing purpose is not self-executing either. Purpose can be stated at various levels of abstraction (see here, and in general, Hillier). In other words, purpose can be the most abstract purpose of the statute possible (say, to achieve justice, as Max Radin once said); or it could be the minute details of particular provisions. There can be many purposes in a statute, stated in opposite terms (see Rafilovich for an example of this). Choosing purposes in these cases can be just as difficult as figuring out what words mean. This is especially so because the Supreme Court has never really provided guidance on the interaction between text and purpose, instead simply stating that these things must be read “harmoniously.” What this means in distinct cases is unclear. This is why it is best to source purpose with reference to text itself (see here).

Legislative history also presents well-known problems. One might advance the case that a Minister, when introducing a bill, speaks to the bill and gives his view of the bill’s purpose. Others may say differently. In some cases, legislative history can be probative. But in many cases, legislative history is not useful at all. For one, and this is true in both Canada and the US, we are bound by laws; not by the intentions of draftspeople. What a Minister thinks is enacted in text does not necessarily equate to what is actually enacted (see my post here on the US case of Bostock). There may be many reasons why bills were drafted the way they were in particular cases, but it is not probative to think legislative history (which can be manipulated) should be some cure-all for textual ambiguity or vagueness.

Finally, one might say that it is inevitable and desirable for judges to bring their own personal values and experiences to judging and interpreting statutes. This is a common refrain these days. To some extent, I agree with those who say that such value-based judging is inevitable. Judges are human beings, and are not robots. We cannot expect them to put aside all implicit value judgments in all cases. But one of the purposes of law, and of the rules of interpretation, is to ensure that decisions are reasoned according to a uniform set of rules applicable across the mass of cases. We have to limit idiosyncratic reasoning to the extent we can/ If we give up on defining with clarity such rules—in order to liberate judges and their own personal views—we no longer have a system of interpretation defined by law. Rather, we have a system of consequences, where judges reach the results they like based on the cases in front of them. This might sound like a nice idea to some, but in the long run, it is an unpredictable way to solve legal disputes.

**

If all of the tools of interpretation, including text, are imperfect, what is an interpreter to do? One classic answer to this problem is what I call the “anything goes” approach. Sullivan seems to say that this is what the Supreme Court actually does in its statutory interpretation cases (see here, at 183-184). While I question this orthodox view in light of certain cases, I take Sullivan’s description to be indicative of a normative argument. If the Supreme Court cannot settle on one theory of interpretation, perhaps it is best to settle on multiple theories. Maybe, in some cases, legislative history is extremely probative, and it takes precedence over text. Maybe, in some cases, purpose carries more weight than text. This is a sort of pragmatic approach that allows judges to use the tools of interpretation in response to the facts of particular cases.

This is attractive because it does not put blinders on the interpreter. It also introduces “nuance” and “context” to the interpretation exercise. All of this sounds good. But in reality, I am not sure that the “anything goes” approach, where judges assign weight on various tools in various cases, is all that helpful. I will put aside the normative objections—for example, the idea that text is adopted by the legislature or its delegates and legislative history is not—and instead focus on the pragmatic problems. Good judicial decisions depend on good judicial reasoning. Good judicial reasoning is more likely to occur if it depends less on a particular judge’s writing prowess and more on sourcing that reasoning from precedential and well-practiced rules. But there is no external, universal rule to guide the particular weights that judges should assign to various tools of interpretation, and even further, what factors will guide the assignment of weights. At the same time, some people might argue that rules that are too stringent will stymie the human aspect of judging.

In my view, an answer to this was provided by Justice Stratas in a recent paper co-authored with his clerk, David Williams. 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.

I think this is a sound way of viewing the statutory interpretation problem. The text is naturally the starting point, since text is what is adopted by the legislature or its delegates, and is often the best evidence of what the legislature meant. Context is necessary as a pragmatic tool to understand text. Purpose can be probative as well, if sourced in text.

Sometimes, as I mentioned above, legislative history can be helpful. But it  must be used with caution. The same goes with social science evidence, which might be helpful if it illustrates the consequences of different interpretations, and roots those consequences back to internal statutory tools like text or purpose. But again, social science evidence cannot be used to contradict clear text.

Finally, I cannot imagine a world in which a judge’s personal views on what legislation should mean should be at all probative. Hence, it is a red light tool.

In this framework, judges are not asked to, on a case-by-case basis, assign weights to the tools that the judge thinks is most helpful. Instead, the tools are ranked according to their probative value. This setup has the benefit of rigidity, in that it does assign objective weight to the factors before interpretation begins. At the same time, it keeps the door open to using various tools that could deal with textual ambiguity or vagueness.

The point is that textualism cannot be said to be implausible simply because it takes some work to squeeze meaning out of text. The alternatives are not any better. If we can arrange text at the hierarchy of a list of other tools, that may be a solid way forward.