“Purposive” Does Not Equal “Generous”: The Interpretation Act

It is often said in Canada that statutes must be interpreted “purposively” and “generously.” Many cite the federal Interpretation Act’s s.12, which apparently mandates this marriage between purposive and generous interpretation:

12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The Supreme Court has also accepted this general principle in the context of the judge-made rule that benefits-conferring legislation should be interpreted liberally (see Rizzo, and more recently, Michel v Graydon).

Putting aside the judge-made rule itself, which raises similar but somewhat separate questions, I write today to make a simple point: this injunction in the Interpretation Act cannot be read so as to render purposive interpretation the same as a “generous” interpretation. Doing so could violate the Supreme Court’s statutory interpretation jurisprudence, which promotes an authentic determination of purpose according to the legislative language under consideration (see my post on Rafilovich). Indeed, as is clear in the constitutional context, purposive interpretation will often lead to the narrowing of a right, rather than a generous interpretation of that right (see, for a recent example, R v Poulin). Similarly, a purposive interpretation in statute law will lead to a narrowing of the meaning of a particular statutory provision to its purposes. Those purposes will best be reflected in text (see Sullivan, at 193; see also here). For that reason, the Interpretation Act can only mandate a simple canon of interpretation: “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). Words should be interpreted fairly but only insofar as purpose reflected in text dictates.

One cannot read the Interpretation Act to mandate a generous interpretation over a purposive one. The text of the provision in question says that “fair, large and liberal construction” must be rendered in a way that “best ensures the attainment of the [enactment’s] objects.” This means that purpose is the anchor for a “generous” interpretation within those purposes. Put differently, we should read words to mean all that they can fairly mean, but we cannot use some injunction of “generosity” to supplant the words or the purposes they reflect.

Prioritizing “generosity” over the natural reading of text in its context would lead to all sorts of practical problems. For one, it is difficult to determine what a “generous” interpretation of a statute would mean in practical terms (see Scalia & Garner, at 365). Does this simply mean that “[a]ny doubt arising from difficulties of language should be resolved in favour of the claimant”? (see Rizzo, at para 36). This could be defensible. But the risk is that using the language of “generosity” could invite judges to expand the scope of language and purpose to suit policy outcomes/parties they prefer.

We should be careful of this language for this reason. More importantly, if “generosity” means that the legitimately-sourced purpose of legislation can be abrogated, the language is quite inconsistent with the Supreme Court’s actual approach to interpretation in recent cases (see Telus v Wellman and Rafilovich).

Rather, the reading of the relevant section of the Interpretation Act must be taken to conform with the Supreme Court’s governing approach to statutory interpretation.  In this sense, the “fair, large, and liberal” interpretive approach mandated by the Interpretation Act might be explained by contrasting it to an old form of interpretation that virtually no one adopts now: strict constructionism. Strict constructionism, most commonly adopted in the adage that “statutes in derogation of the common law were to be strictly construed” (Scalia & Garner, at 365) was unjustified because it violated the “fair meaning rule”; the text, in its context, must be interpreted fairly. No one today—not even textualists—are strict constructionists, because everyone accepts the idea that text must be interpreted fairly. If the Interpretation Act is a response to strict constructionism, its language could perhaps be forgiven. But it should be taken no further than the fair-meaning rule, which rests on identifying relevant purposes in text and using those purposes to guide textual interpretation.

An example of a party attempting to use the Interpretation Act is a manner I consider impermissible occurred in Hillier. There, Ms. Hillier relied on the Interpretation Act and the general canon of interpretation that benefits-conferring legislation is to be liberally interpreted. Putting aside this canon (dealt with in Hillier, at para 38), the Interpretation Act was marshalled by Ms. Hillier to suggest that the court should rule in her favour. Stratas JA rejected this erroneous reliance on the Interpretation Act, concluding (at para 39):

[39]  To similar effect is the interpretive rule in section 12 of the Interpretation Act. It provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Section 12 is not a licence for courts and administrative decision-makers to substitute a broad legislative purpose for one that is genuinely narrow or to construe legislative words strictly for strictness’ sake—in either case, to bend the legislation away from its authentic meaning. Section 12 instructs courts and administrative decision-makers to interpret provisions to fulfil the purposes they serve, broad or narrow, no more, no less.

This is an accurate description of the function of the Interpretation Act, which finds agreement with the Supreme Court’s statutory interpretation jurisprudence, such as I can discern it. Purpose—usually sourced in text—guides textual interpretation. Purpose and text should be read synthetically together to render a fair meaning of the language at hand. But broad notions of “generosity” or “fairness” should be not be used to supplant the authentic purpose(s) of legislation, derived in text. And “generosity” is not an end-round around the language the legislature actually uses.

What Needs to Be Said

Sometimes people say things that need to be said. These things may make us uncomfortable. They may force us to look in the mirror. They may ask us to really sit and think about our conduct. We might not like to hear these things, but they might start a discussion. Or maybe they will force us to change our ways.

Enter Stratas JA in Canada v Kattenburg, 2020 FCA 164. Here, Stratas JA says what needs to be said. In the decision, Stratas JA shines a light on two increasing tendencies in Canadian law: (1) the tendency of some intervenors, contrary to governing jurisprudence, to insert international law or policy preferences in the interpretation of legislation, particularly in the discernment of legislative purpose and (2) the tendency for some judges, in extra-judicial speeches or otherwise, to weigh in on matters of public policy, typically left to the political branches. Stratas JA has launched an important conversation that we should embrace, tough as it is.

International Law and Statutory Interpretation

Let me start with the basic facts of 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.

Here’s where it gets hairy. Sometimes, international law can enter the act of legal interpretation. If you want to know more about how this is the case, see my post on Stratas JA’s decision in Entertainment Software. The point is that international law can only be relevant to the interpretation of Canadian law where it is incorporated in domestic law explicitly, or where there is some ambiguity. Parliament remains sovereign because it controls the international law it adopts; indeed, “[s]ometimes it is clear…that the purpose of a legislative provision is to implement some or all of  an international law instrument” (Kattenburg, at para 25) (see Gib Van Ert, here, for some nuance on this). Other times, there is ambiguity that permits the consideration of international law (Kattenburg, at para 25). But other times, probably most times, international law plays no role in the interpretation of legislation, where there is no indication that the governing law explicitly or by implication incorporates international law. That was the case here.

Yet many of the intervenors in this case were motivated to bootstrap international law into the authentic interpretation of legislation. For many, the argument was that the Israeli occupation of the West Bank is illegal under international law principles. This was despite the fact that nothing in the governing law was designed “to address state occupation of territories and, in particular, Israel’s occupation of the West Bank” (Kattenburg, at para 20). To make this point, some of the interveners attempted 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).

There are many problems with what’s going on here, and Justice Stratas rightly rejected the efforts to make the case about the West Bank issue rather than the reasonableness of a regulatory decision. First, at the level of fundamental principle, judicial review of administrative action is about policing the boundaries of the administrative state, at the level of a particular regulatory decision. Some times these decisions can have major consequences, for the party subject to the decision or for the legal system on the whole. But the focus is not the at-large determination of major issues like the Israeli-Palestinian conflict. The focus is on the decision under review. And so the attempts by the moving parties to buttress the record, to force the Court’s hand into saying something, anything, about the Israeli-Palestinian conflict is inappropriate, to say the least. Justice Stratas rightly, and humbly, rejected the call to enter this fraught political territory.

Another problem is the attempt to use international law to guide, where it is inappropriate to do so, the ascertainment of legislative purpose. When courts interpret statutes, they do not do so with the aims of achieving a result that the judge thinks is “just,” “right,” or even “fair.” The goal is to interpret statutes authentically, so that we can plausibly determine what the legislature meant when it used certain words in enacting a law. Contrary to fashionable legal realism, courts and decision-makers must do their best not to reverse engineer a desired outcome through interpretation (see Vavilov, at para 121, but also see the litany of Federal Court of Appeal and Supreme Court cases on this point). Here, the intervenors clearly tried to use international law to reach a desired policy outcome. But all of the intervenors, piled up together, shouldn’t be able to encourage courts to engage in this pure policy reasoning. Indeed, as Justice Stratas notes, “[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). And to the extent that doing so is contrary to established Supreme Court precedent, Justice Stratas was right to call out this pernicious behaviour.

None of this is to suggest that intervenors do not play an important role in Canadian law. None of this is to suggest that international law cannot, in appropriate circumstances, play a role in the interpretation of legislation. But a new Canadian textualism is emerging that rebuffs policy reasoning and at-large international law arguments. All for the better.

The Role of the Courts

In Kattenburg, Justice Stratas also made a number of comments that, I think, needed to be said about the activities of some Canadian judges. Here is the gist of his comments:

[45]  As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever. Increasingly, they wander into the public square and give virtue signalling and populism a go. They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and “fair”. They do these things even though cases are under reserve and other cases are coming to them.

This comment raises the important question of the difference between the legal world and the political world. It has become increasingly common to hear that law=politics. In some sense, this is true. Law is the product of political deliberation. And because judges are only humans, there is always a risk that a judge’s experiences and personal views may guide the interpretation of legislation. No legal system can reduce this risk to zero, and perhaps it is unwise to do so.

But this is a completely different proposition from the normative question: should the political views of judges affect the interpretation of laws or judicial review of administration action? Obviously the answer is no. So, in legislative interpretation, we create a series of rules to guide legal interpretation. We ask courts and decision-makers to focus on text, context, and purpose—authentically. In other words, while law is the product of politics, that fact does not give judges the right to interpret laws as they wish.

There are a number of examples of prominent judges who have, extrajudicially, blurred the lines between law and politics. At least two judges of the Supreme Court have suggested that their job is to decide what is best for Canadians, for example (see Justice Moldaver here and then-Chief Justice McLachlin here). This is a real misapprehension of the judicial role. Judges aren’t tasked with making the best normative decisions for Canadians. That is Parliament’s job. Of course, the problem is that politics can be slow and frustrating. But that is no reason to bypass the legislature for a quick judicial resolution.

Another example, but by far not the only one, is Justice Abella. Justice Abella frequently enters the public fray to provide her views on certain legal issues. Quite separate from the content of these interjections, it is typically not the role of a Supreme Court judge to write popular columns, putting their thumbs on the scale of pressing public issues that might make their way to the Court. It is one thing to set out one’s view of the law in reasons for decision. We can agree or disagree on that reasoning, in the legal academy. It is another to take to the streets, as a judge, and participate in the political process by setting out one’s view of the law—whatever it is–in the context of popular publications. On a related note, in fact, this is not just an affliction of judges that might be considered “progressive.” As I wrote here, in the United States, conservatives are increasingly looking at the courts as an instrument of power, rather than as neutral and objective arbiters of the law.

I could go on and on. The point is that Justice Stratas is on to something in Kattenburg. The comments come as we see, increasingly, the veneration of judges as heros, who are celebrated when they enter the political fray by many in the bar. RBG on the left, with the action figures and paraphenalia. Scalia on the right, to a somewhat lesser extent. In Canada, the “stanning” of judges like Justice Abella as if they were celebrities. Judges are just “lawyers who happen to hold a judicial commission” (Kattenburg, at para 41). When put that way, it seems remarkably odd that we celebrate certain judges the way we do. We should celebrate judges for applying the law and following precedent to the best of their ability. We should refrain from celebrating the results of cases over the reasoning. And judges, themselves, should generally stay out of political debates. Indeed, lawyers are just lawyers, and law school confers no special insight on issues of moral or political weight, compared to the rest of the population.

Sad for some lawyers to hear, I am sure. But it needed to be said.

On Canadian Statutory Interpretation and Recent Trends

I have had the pleasure of reading (for the first time front-to-back) the legal interpretation classic, Reading Law by Justice Scalia and Bryan Garner. For Canadian courts struggling with how to source and use purpose when interpreting statutes, Reading Law provides valuable assistance. It does so by outlining two schools of thought on how to source purpose, schools of thought that are prevalent in Canadian debates and recent decisions over statutory interpretation. On the one hand is purposivism; on the other hand is textualism. While these schools do not actually differ about whether purpose should form part of the interpretive exercise, they do differ about how to actually determine what purpose governs. Canada’s recent statutory interpretation cases point to the textualist direction.

The first school of thought, broadly known as purposivism, is apparently Canada’s leading approach to statutory interpretation.  Purposivism “acknowledges that the meaning of language is imprecise and measures words against contextual, schematic, and purposive considerations” (see Hutchison, here, at 8). Aharon Barak claims that:

[a]ccording to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose) (Barak, Purposive Interpretation, at 110).

The motivation behind purposivism is a sort of legal realism that queries whether text can ever truly be clear enough to be a dominant force in legal interpretation (see, for a characteristic example of this line of thinking, the opinion of Breyer J in FCC v NextWave Personal Communications Inc, 537 U.S. 293, 311). Purpose is thus a way to deal with latent ambiguities that may naturally arise in text. And importantly, purpose is focused on the “ends” a statute is designed to achieve, perhaps at a high level of abstraction or generality. On a radical purposive account, the goal of interpretation is to effectuate whatever the court determines the purpose(s) to be; text is merely a means to the end of purpose. Put differently, text is derived from purpose under the purposive account.

On the other hand is “textualism.” Textualism receives a bad rap in Canada, but that is probably more due to caricature than a real appraisal of the merits and demerits of the textualist method. Here Scalia & Garner have much to say. While the central feature of textualism is the idea that “if the text…is clear, interpreters should not impeach the text using extrinsic evidence of statutory purpose…” (Manning & Stephenson, Legislation and Regulation, at 94), textualism does not ask a court to “put on blinders that shield the legislative purpose from view” (Scalia & Garner, at 20; see also William Popkin, “An ‘Internal’ Critique of Justice Scalia’s Theory of Statutory Interpretation,” 76 Minn L Rev 1133, 1142 (1992)).  Instead, purpose is “deduced from a close reading of the text” (Scalia & Garner, 20).  Put differently, purpose is derived from text on the textualist account.

Why are textualists concerned about purposes achieved without reference to the text? First, textualists are concerned about the generality problem (see Max Radin, “Statutory Interpretation,” 43 Harv L Rev 863, 876 (1930)). A court motivated by its own results-oriented reasoning could choose a purpose that is barely represented in text, or is otherwise quite abstract in relation to text. Indeed, at the highest level of generality, every statute could be said to pursue “justice and security” (see Radin). But choosing that purpose could distort the means used by the statute chosen to achieve its ends by “enabling…crabbed interpretations to limiting provisions and unrealistically expansive interpretations to narrow provisions” (Scalia & Garner, at 20). This particular problem also has resonance in administrative interpretations of law, where an expansive purposive interpretation of enabling provisions could actually result in more deference to decision-makers than what the text itself allows.

Second, textualists are concerned with the realities of the legislative process and the fact that legislatures are imperfect. The takeaway from the Legal Process school, which influences purposivism, is that legislatures pursue reasonable purposes reasonably. But textualists understand that legislation, especially in the US, is a result of legislative compromise. While purposes may be clear, text pursues purposes in different ways. In this way, textualists are more concerned with the implementational rather than the ulterior purposes of legislation. Legislation can implement purposes in text in various ways.  A generalized example here is instructive:

For example, a statute providing a specific protection and a discrete remedy for purchasers of goods can be said to have as its purpose “protecting the consumer.” That would not justify expansive consumer-friendly interpretations of provisions that are narrowly drawn (Scalia & Garner, at 57).

What does this dispute between textualists and purposivists have to do with Canada? From a descriptive perspective, it describes perfectly what is happening in Canadian courts right now with regards to purpose. Normatively, Scalia & Garner’s text explains why a textualist-purposive approach is well-justified.

On the descriptive account, the Supreme Court in the past has fallen victim to the “level of generality” problem. West Fraser is a classic example. There, the dispute was whether a British Columbia statute permitted fines to be levied for workplace safety violations against owners of land on which accidents occurred. The relevant provision under which West Fraser was fined was, by its text, only applicable to “employers.” But Chief Justice McLachlin, for the majority, held that the ultimate purpose of the statute was to “promote workplace safety in the broadest sense” (see West Fraser, at para 17). This allowed her to conclude that the particular text of the section under interpretation should be interpreted to cover off West Fraser’s conduct. But here is a classic example of the purposive approach: purpose was used to interpret the text under consideration, rather than the other way around.

Justice Côté in dissent, in my view, had much better of the argument. Her view was that the relevant provision had chosen the means by which to pursue the purpose of workplace safety. The text had chosen “limited means” to pursue that purpose—by limiting fines to employers (see West Fraser, at para 107). This is a classic dispute between ulterior and implementational purposes.

Justice Côté’s view has recently been picked up in recent Supreme Court cases and in cases in the Federal Court of Appeal. I cite two examples here. First is Telus v Wellman, which I wrote about here. There, the dispute was what purpose should be chosen: for the majority, the purpose of the Arbitration Act, as directly reflected in the relevant statutory provisions, was that the Act ensures that parties abide by their agreements. But in dissent, Abella and Karakatsanis JJ would have pitched the purpose of the statute at the level of “access to justice.” Moldaver J in majority rejected the dissent’s characterization, holding that this purpose could “distort the actual words of the statute” (Telus, at para 79). The access to justice purpose was not rooted in statute. Moldaver J, then, could be said to adopt a position closer to Cote J in West Fraser, and closer to the textualist position identified by Scalia & Garner.

Similarly, in Hillier, Justice Stratas rejected the Attorney General’s attempt to cast a statute at the high level of abstraction of “administrative efficiency.” Rather, he concluded that not “every section in the Act is aimed at furthering efficiency” (Hillier, at para 35). Rather, the relevant provision under interpretation “pursues a different, more limited purpose” (Hillier, at para 35). That limited purpose governed, not the abstract purpose chosen by the Attorney General.

In these cases, the Supreme Court and the Federal Court of Appeal corrects the error in West Fraser. And here is a good point to say why it is that the textualist approach adopted by Moldaver J and Stratas JA is preferable. First, as noted above, a liberal application of the purposive approach could lead to high error costs. By prioritizing ulterior motive over implementational purpose (abstract versus specific purposes), the court could fail to understand how and why a statute achieves a particular goal. In other words, reasoning backwards from purpose (as McLachlin CJ did in West Fraser) could lead to ignoring what the text actually says, and how the text decides to pursue a particular goal. For McLachlin CJ in West Fraser, it was of no moment that the relevant provision only applied to employers. But this was the interpretive dispute at hand. The interpretive approach in West Fraser, in this sense, ignores the import of the text.

Secondly, and pragmatically, choosing more abstract purposes of statutes over more implementational ones does not actually help the interpretive task. To say that the purpose of a statute is “access to justice” will rarely do anything to determine how the text is actually supposed to be interpreted. This is because there are many different ways that a statute can methodologically choose to pursue access to justice. More likely, abstract, ulterior purposes can be used to distort text to achieve policy outcomes the interpreter likes. This is profoundly violative of the Rule of Law.

And finally, as Scalia & Garner note, perhaps the most important interpretive canon is that one which says that “[t]he 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). This sentiment has been expressed by the Supreme Court of Canada, particularly where text is “clear” (see Celgene, at para 21). It is as old as Justinian’s Digests (“A verbis legis non est recedendum”). A powerful principle of democracy justifies the canon. It is, after all, text which is enacted by our democratic institutions. Purpose should revolve around text, such that the purpose with the most reflection in text should govern. Sourcing text from purpose risks prioritizing an ideal with little democratic pedigree over the specific and finely-wrought means by which the text enacts that purpose.

Overall, and while no Canadian court will probably ever describe itself as textualist, courts in Canada are increasingly looking to text to discern purpose. In my view, this is a salutary development.