Tag: textualism

Interpretation and the Value of Law II

This post is written by Leonid Sirota and Mark Mancini.

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

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

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

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

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

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

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

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

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

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

2. The Motte and Bailey of the Common Good Approach

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

(A) The Natural Law Motte-and-Bailey

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

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

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

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

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

(b) The Purposivism Confusion

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

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

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

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

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

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

(C) The Political Confusion

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

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

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

[…]

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

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

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

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

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

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

Conclusion

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

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

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

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

The Pathologies of Pragmatism

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

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

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

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

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

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

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

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

A Way Forward

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

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

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

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

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

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

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

An Example Case: Walsh

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

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

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

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

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

[…]

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

As we will see, this is precisely backwards.

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

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

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

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

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

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

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

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

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!

Textualism for Hedgehogs

Why substantive canons belong in textualist interpretation, and what this tells us about neutral interpretive principles

I hope that you have read co-blogger Mark Mancini’s post on “Neutrality in Legal Interpretation“. In a nutshell, Mark argues for the application of politically neutral principles to the interpretation of legal texts, and against the fashionable view that it is inevitable, or indeed desirable, that interpreters will seek to fashion texts into instruments for the advancement of their preferred policy outcomes. It is a superb essay, and I agree with almost everything Mark says there.

Almost. In this post, I would like to explore one point of disagreement I have with Mark. Although it concerns a minor issue and does not detract from Mark’s overall argument at all, I think it helps us clarify our thinking both about legal interpretation and also about the meaning and purpose of legal neutrality. This point of disagreement concerns, of all things, “substantive canons of construction”.

Mark argues that textualism is a set of morally-neutral interpretive techniques that allow an interpreter to (my words, but Mark’s meaing, I think) serve as a faithful agent of the body enacting the legal text. (Mark focuses on statutes, but the same considerations apply to constitutional texts.) Other approaches allow or even require the interpreter to impose a certain set of substantive commitments, which may or may not be shared by the authors of the legal texts, on them. Textualism seeks to avoid doing so by asking the interpreter to focus on the text itself, relying on its letter and its spirit alone, rather than on any external commitments. In this context, Mark notes a possible (and indeed common) objection:

[O]ne 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. 

Mark appears to grant this objection to the use of substantive canons in statutory interpretation, while denying that it undermines his broader argument:

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. 

But then Mark walks back the concession to some extent, writing that “these canons could be justified on other grounds” , for example “as a matter of precedent, or as a matter of ‘stabilizing’ the law.”

By my lights, Mark’s initial concession is a mistake, and the walk-back too half-hearted. Substantive interpretive canons ― interpretive presumptions such as those requiring clear statements for statutes to derogate from common law or statutory rights, to change the law retroactively or to create exorbitant powers (for example Henry VIII clauses), or calling for narrow constructions of penal or taxing statutes ― deserve a more robust defence, which I will offer here. Most of them are not only “justified on other grounds” but are actually closely connected to the reasons for endorsing textualism and neutral interpretation more broadly.

These reasons include the separation of powers and democracy, which, taken together, mean that law should be changed in consequence of the choices of democratically elected legislatures and of such other actors to whom legislatures have properly delegated their law-making powers (assuming that such delegation can ever be proper). But they also include the Rule of Law, notably the idea that the law ought to be sufficiently public and certain to guide the subject. Textualism gives effect to the separation of powers and democracy by asking judges to give effect to legislatures’ choices and warning them not to override these choices by applying their own subjective preferences or substantive values not endorsed by the legislature. It also gives effect to the Rule of Law by ensuring that subjects, or at least their legal advisors, have access to the same information that will be used by those who interpret and apply the law. They can thus anticipate the law’s application better than if it can be given a meaning based on unenacted values available only to judges or administrators at the point of application.

Consider now how substantive canons serve the same ends. Their contribution to upholding the Rule of Law values of notice and guidance is perhaps most obvious. When courts refuse to read unclear or ambiguous statutes as imposing criminal or tax liability, they are ensuring that people are warned before their liberty and property are put in jeopardy, and can guide themselves accordingly. Similarly, when courts apply the principle of legality, which requires clear statutory language to over-ride or oust established common law rights, be they the right to access court (as in Justice Cromwell’s concurring opinion in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 or property rights in Wells v Newfoundland, [1999] 3 SCR 199, they ensure that people are given warning before these rights are abrogated. Justice Major, writing for the unanimous court in Wells, explained this:

In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to.  In the absence of a clear express intent to abrogate rights and obligations – rights of the highest importance to the individual – those rights remain in force.  To argue the opposite is to say that the government is bound only by its whim, not its word.   In Canada this is unacceptable, and does not accord with the nation’s understanding of the relationship between the state and its citizens. [46]

The argument about the relationship between textualism and separation of powers and democracy is perhaps somewhat less straightforward. But I think it’s not unfair to say that the obverse of insisting that it is the prerogative of legislatures, as the bodies representing the electorate, to have the law reflect their choices is that the law should reflect their choices. Textualism does this by emphasizing the primacy of text, which the legislature actually enacted, as the object of interpretation. Substantive canons are nothing more than an insistence that certain choices clearly appear to have been made in the text. Mark writes that “legislative sovereignty” means that “the legislature should be able to change the common law without a clear statement”, but I’m not sure that legislative supremacy requires deference to sotto voce or accidental legal change.

On the contrary, I think that for an interpreter to insist that the legislature spell out the consequences of its enactments rather than let them be inferred promotes legislative authority by requiring the democratic sovereign to squarely address the issues instead of leaving them to be worked out by unelected officials and judges. At the same time, however, it also promotes the more “negative” aspect of the separation of powers by freeing judges from becoming the legislatures’ accomplices is abuse of power. Subject to constitutional constraints, it is wrong for the courts not to give effect to legislation, but they are not, I think, under a duty to add to legislated iniquity of the legislature itself has not dared require it.

To be sure, it is possible for judges to misapply substantive interpretive canons so as to make them into instruments for refashioning legislation in accordance with their own preferences and values. Judges can be skillful practitioners of Nelsonian blindness and refuse to see in a statute that which is clearly there ― just as, on other occasions, they can see there that which is not. But I do not think that this necessarily makes substantive canons anathema to textualism. As then-Judge Amy Barrett has explained in a lecture devoted largely to a defence of textualism (which I summarized here), textualist adjudication is not mechanical. It requires judgment. A sparing ― judicious ― application of substantive canons calls for good judgment, but in this it is no different from other aspects of textualist interpretation or judicial decision-making more generally.

All that having been said, the impulse to disclaim and renounce the use of interpretive techniques that seem to bias adjudication in favour of particular outcomes is understandable as part of a broader appeal for neutrality. But here, I think, an appeal to precedent is relevant. Judges applying established substantive canons (or any other established interpretative techniques) is not introducing their own values into the law. They are not ― again, assuming they are not abusing their power ― wielding discretionary authority to bring the law into alignment with their policy preferences. They are not springing a surprise on the legislature (or the litigants). They are following established conventions for reading legal texts, which legislatures (or least the people drafting bills for them) can and ought to know.

Now, perhaps there is a further point of subtle disagreement between Mark and me here. Mark writes that “while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be”. I think this a little imprecise. Like other legal rules, the established conventions of interpretation are not, themselves, value-free; I don’t think they could be. The conventions of textualism promote democratic authority, the separation of powers, and the Rule of Law. These are political values, in a broad sense, and I think that a defence of textualism should proceed on the basis that these are good values, not that that textualism has nothing to do with them. What should indeed be apolitical, to the extent possible for human beings, is the application of interpretive rules, not their content. However, an interpretive rule whose content is such as to make apolitical application impossible, is of course flawed from this standpoint.

What we should be looking for, then, are interpretive rules that can be applied impartially ― not mechanically, to be sure, but without the interpreter drawing on his or her subjective values, preferences, and beliefs about good policy. At least some forms of purposivism, as well as living constitutionalism and its analogues in statutory interpretation fail this test. Textualism, as Mark argues, is a more promising approach. But at the same time ― and not coincidentally ― textualism promotes important constitutional values: the Rule of Law, democracy, and separation powers.

Substantive interpretive canons, I have argued, promote the same values, and thus have a place in textualist interpretation. Indeed, I would go so far as to say that substantive canons are pre-eminently textualist interpretive tools, rather than those of some other interpretive approach. Like other kinds of interpretive canons, to which Mark refers, they are rules about reading texts ― albeit more than the other kinds, perhaps, they are rules for reading legal and, even more specifically, legislative texts. Their use has little to with legislative purpose, for example, and they may sit uneasily with a pragmatist or evolutionist approach to interpretation. They are not attempts to devine a legislature’s intentions hidden between textual lines, but rather rules about the legal meaning of enacted texts. Textualists should embrace substantive canons, not just as a grudging concession to precedent, but as a set of tools to wield with discernment, but also with confidence.

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.

Still Keeping It Complicated

The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.

As mentioned in my last post, Justice Abella insists that her approach to interpretation is “contextual” and, above all, “purposive”. In truth, it might be better described as authorizing constitution-making by the Supreme Court. It is “the Court” ― following an American usage, Justice Abella does not bother specifying which one ― that “has, over time, decided who and what came within the Charter’s protective scope”. [49] The Supreme Court does not simply decide cases in which the question arose. No, it apparently ruled, as a matter of discretion, on whom the Charter will protect going forward.

Judicial rulings in constitutional cases are not, for Justice Abella, mere workings out of the constitution’s meaning. Indeed, the constitutional text plays no special role in interpretation for her. This is unsurprising, because Justice Abella embraces the view that co-blogger Mark Mancini recently described as “linguistic nihilism” ― the idea “that language is never clear, or put differently, hopelessly vague or ambiguous”, so that “the task of interpretation based on text is a fool’s game”. (Of course this is of a piece with Justice Abella’s commitments in administrative law.) It is also unsurprising, then, that her discussion of international materials suggests that text does not really matter at all, and a variety of differently-worded provisions all stand for the exact same principles, without any meaningful inquiry into the relevance, if any, of their language. In fact, Justice Abella is openly disdainful of the possibility that textual nuance ― such as “the presence of a comma” [75] ― might make a difference in interpretation.

Another reason for Justice Abella’s refusal to be bound by constitutional text is that this ” could unduly constrain the scope of [constitutional] rights”. [75] This reflects the conviction, common among living constitutionalists, that judicial re-writing of constitutions is a one-way ratchet unfailing causing rights to expand. This view is belied by experience. But, quite apart from that: “unduly” by what standard? If not by reference to text, how do we know what is the due scope of constitutional rights? This ambiguity is of a piece with Justice Abella’s insistence that section 12 “is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.” [51] Is meant… by whom? Intended… by whom? And how do we know?

As Mr. Oliphant and I noted in the paper linked to above, “[m]arks on paper have no will or agency and thus can have no ‘purposes’ or ‘intentions’ that are independent of willful actors”. (537) One possibility, as we suggested, is that this language becomes an opening for an inquiry into the intentions of the Charter‘s framers. But Justice Abella isn’t very interested in that. Unlike the Supreme Court in some cases, she doesn’t consider the Charter‘s drafting history or the views of its framers, beyond a passing reference to Pierre Trudeau’s general comments about the Charter‘s raison d’être.

Justice Abella’s use of ambiguous language and the passive voice, like her refusal to be bound by text or to commit to any hierarchy of interpretive sources, suggest that she believes herself to have has complete discretion in deciding what the Charter is to mean. Her own sense of justice is the only standard of who is “due” protection under the constitution, and what protection they are “due”. This is unsurprising, of course, from someone who professes impatience with the Rule of Law and prefers a “rule of justice”. Constitutional purposes, as she conceives of them, are Platonic abstractions, which the wise ― she the wisest ― must interpret for the rest of us.

As I have said a number of times in the past, “constitutionalism from the cave” is not real constitutionalism. It is antithetical to the Rule of Law. Ultimately, it undermines the foundations of judicial review: if the constitution means whatever unelected judges preoccupied with international approval more than with the law or the commands of the constitution’s framers say it means, there is no particular reason why the political branches would comply with these judges’ musings. It is good that this view is dealt a defeat by the Supreme Court’s majority.

In contrast to Justice Abella, Justices Brown and Rowe emphasize the importance of constitutional text. It is not, I think, merely a matter of the text being chronologically the first consideration for a court engaged in constitutional interpretation: “constitutional interpretation” is “the interpretation of the text of the Constitution”. [9] The text is its focus and overriding constraint; it has “primacy” over other considerations. [10, citing Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511 at [36]]

One way in which the text matters is, of course, through the ordinary meaning of its words and the inferences that can be drawn from it. Here, since the word “cruel” refers to the infliction of human suffering, it stands to reason that section 12 does not protect corporations. But the significance of the text goes further. The history of the text and the changes it underwent are relevant too, as Justices Brown and Rowe show by pointing ― in language that, as I noted in my last post, closely mirrors that of my comment on the Court of Appeal’s decision in this case ― to the contrast between the language of section 12 and that of its predecessors in Magna Carta and the Bill of Rights 1688. Other provisions on the text are relevant too.

To my mind, this ― so far as it goes ― is a sound approach to constitutional interpretation, and I am happy to see it forcefully stated by a majority of the Supreme Court. If I were to put a label on it, it would be “textualism”. Consider the definition of textualism given by then-Judge, now Justice Amy Coney Barrett in a lecture I reviewed here:

Textualism … insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

This is what Justices Brown and Rowe are doing: insisting that the object of interpretation is words, text, and focusing on their ordinary meaning, which is a hard constraint on interpretation.

Yet Justices Brown and Rowe reject the label of textualism. To their mind, what they are doing is purposive interpretation. Judge Barrett, as she then was, saw purposivism as the opposite of textualism, though in my post I cautioned that “many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive”. Perhaps this is what Justices Brown and Rowe are advocating ― a sort of “purposivism”, if that’s what they prefer to call it, but one that has a great deal more in common with textualism as defined by Judge Barrett than with “purposivism” as defined by Justice Abella.

So maybe the moral of the story here is that we all should be less hung up on labels. But in my view there is a real cost to the lack of clarity that the labels used by the Supreme Court generate. I wrote about this here when I commented on R v Stillman, 2019 SCC 40. In that case, similarly to here, the majority and the dissent both claimed to be engaged in purposive interpretation. But the majority, I argued, was in effect following a public meaning originalist (and hence textualist) approach, while the dissent was doing constitutionalism from the cave. As I said then, to pretend that textualist interpretation is really purposive generates unnecessary detours. Here, the majority’s references to human dignity as the purpose of section 12 do no real work, and unnecessarily burden the reasoning with what is, by the Supreme Court’s own well-known admission in R v Kapp, 2008 SCC 41, [2008] 2 SCR 483, “an abstract and subjective notion”. [22] And, as I also said in my comment on Stillman, mislabeling an originalist or textualist interpretation as purposivist makes it possible for the partisans of an entirely different version of purposivism to invoke cases that go directly against their views as support for them. Justice Abella does precisely that here (at [73]).

Worse still, from my perspective, than the mere confusion about labels is the seeming rejection by Justices Brown and Rowe of the substance of public meaning originalism, under the label of “new textualism” which they borrow from Aharon Barak’s Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, where it stands as a shorthand for Justice’s Scalia’s interpretive approach. This is the idea, as President Barak put it, “that that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment”. (82; reference omitted) Justices Brown and Rowe claim that this approach is “not remotely consistent” [12] with theirs. If they are right, this would be the first rejection of public meaning originalism by the Supreme Court. As Mr. Oliphant and I have shown, until now, the only versions of originalism that had been clearly rejected were those, disfavoured by originalists themselves, that focus on original expected applications and outcomes.

Yet it will take more than this opinion of Justices Brown and Rowe to make me give up on originalism. Let me note, first, that Justice Brown himself was a co-author of the Stillman majority opinion (and that its other co-author was Justice Moldaver, who agrees with Justices Brown and Rowe here). I described that opinion as “perhaps the most originalist, and specifically public-meaning originalist, in a constitutional case since that of the majority in Caron“. And yes, Caron ― which Justices Brown and Rowe repeatedly cite ― was a public-meaning originalist judgment, as I explained here. Both Stillman and Caron focused on ascertaining the meaning of the constitutional provisions at issue there by reference to how they would have been understood by “a reasonable reader at the time of enactment”, over dissents that favoured, respectively a more policy-infused approach and one based on the alleged intent of the framers. If Justices Brown and Rowe really meant to reject public meaning originalism, would they be relying on these cases? That seems implausible.

No less importantly, consider what Justices Brown and Rowe say elsewhere in their opinion. When they discuss the use of international and foreign materials, they draw an “important distinction … between instruments that pre‑ and post‑date the Charter“. [41] The former “clearly form part of the historical context of a Charter right and illuminate the way it was framed”, whether or not they were binding on Canada. The latter, only matter if they bind Canada, and even then subject to only a presumption that Canadian constitutional law conforms to them, and to the principle that international law does not automatically become part of Canadian law. This isn’t quite originalism: an originalist would be warier still of materials that post-date the Charter, although, as I am about to explain, without necessarily rejecting their relevance in all cases. But it’s pretty close. Originalists believe that constitutional text must be interpreted in context as of the date of its enactment, and reference to international materials available to Canadian framers is certainly a legitimate part of ascertaining the context in which the Charter‘s original meaning should be established. The fact that Justices Brown and Rowe draw a dividing line at the moment of the Charter’s enactment suggests that they are, in fact, open to something like originalist thinking.

All in all, my point is not that Justices Brown and Rowe are originalists. However, they are textualists, which is a big part of originalism, and their approach has at least some significant affinities with public meaning originalism. It is unfortunate that their self-misunderstanding muddies the waters. But if we focus on what they do rather than on what they say about what they do we can see that their opinion, despite its flaws, is an important step in the right direction, and by far preferable to Justice Abella’s.

I turn, finally, to the issue of international and comparative materials. I agree with the majority’s calls for care and discernment in the way such materials are used. Partly this is a matter of legal and intellectual rigour. Partly, as Justices Brown and Rowe say, of “preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty”. [23] Justice Abella’s concerns about whether foreign scholars and courts will pay attention to Canadian constitutional law are beside the point. Ultimately, the Canadian constitution means what it means, and not what some international treaty, let alone foreign constitutional text, might mean ― a matter on which Canadian courts often could not pronounce. I would, however, add two further observations, which I already made here in discussing similar issues that arose in the Supreme Court’s decision in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3.

First, international and foreign materials may be more relevant and persuasive to courts engaged in constitutional construction, and in particular (but not only) in the demarcation of reasonable limits on rights under section 1 of the Charter, than in cases such as this one, which concern the interpretation of the Charter‘s text. When courts develop legal doctrine, they have more reason to look to international experience ― including international experience post-dating the Charter‘s enactment ― than when they seek to discern the meaning of the Charter‘s words ― an exercise to which, as Justices Brown and Rowe recognize, international and foreign materials post-dating the Charter are unlikely to be relevant. The majority’s unwillingness to seriously engage with public meaning originalism causes it to seemingly lump all constitutional questions together and so to lose sight of this nuance.

Second, when and to the extent that international and foreign law is relevant, judicial consideration of it should, as I wrote in my comment on Frank, “not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete”. I’m not quite sure what Justices Brown and Rowe mean by saying that such materials should be kept to “providing support and confirmation for the result reached by way of purposive interpretation”. [22; emphasis in the original] But it would not be intellectually honest for a court to only consider materials that agree with its conclusions and deliberately discard others. If the court considers foreign and international sources, it should address those that it does not find persuasive.

The court should also be careful not to misunderstand or mischaracterize these sources. Justice Abella’s invocation of the “judges in the majority” in Furman v Georgia, 402 US 238 (1972), as having “definitively discussed” the purpose of the Eighth Amendment is an example of such dangers. There was no unified majority in Furman; the two judges whom Justice Abella quotes, Justices Marshall and Brennan, were in fact the only ones who took the position they took, which was that the death penalty was necessarily cruel and unusual punishment. Three others took a more limited view that opened the door to the re-imposition of the death penalty, which was given the green light in Gregg v Georgia, 428 US 153 (1976), in effect reversing Furman. If judges are to refer to foreign law, they need to understand and be honest about it.

Overall, the Supreme Court, and specifically the majority opinion of Justices Brown and Rowe, brings a welcome dose of rigour to the task of constitutional interpretation in Canada. The primacy of constitutional text as the object of interpretation is affirmed, while freewheeling discretion to make the constitution the best it can be in a judge’s opinion is rejected. There is also a more rigorous approach to the use of international and foreign materials in constitutional interpretation. Compared to the alternative vividly illustrated by Justice Abella, this is all very welcome (and all the more so if, as I hypothesized in my last post, Justice Abella’s opinion was originally intended to be the majority one).

But the majority opinion is very far from perfect, and it will perpetuate much of the confusion that afflicts constitutional interpretation in Canada. Even as it adopts the methods of textualism and is largely compatible with public meaning originalism it disclaims the former and purports to reject the latter. This messiness is the sad consequence of a lack of serious thought about constitutional interpretation in Canada. One can only hope that this gap will be filled in the years to come.

You Read It Here First

The Supreme Court holds that the Charter does not protect corporations against cruel and unusual punishment

Can corporations avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “any cruel and unusual treatment or punishment”? In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 the Supreme Court unanimously holds that it cannot. The question excited some debate, both for its own sake and also for its implications for constitutional interpretation more broadly, in the wake of the Québec Court of Appeal’s decision in this case, 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales, 2019 QCCA 373. I argued against the position of the Court of Appeal’s majority and in favour of the one now adopted by the Supreme Court (here and then here); others, however, disagreed.

The narrow issue of the scope of section 12 is now decided, at least as a matter of positive law. But the splits among the Supreme Court’s judges and the ambiguities of the majority opinion delivered by Justices Brown and Rowe (with the agreement of the Chief Justice and Justices Moldaver and Côté) mean that the broader question of how Canadian courts should interpret the constitution remains unsettled. Although both the majority and Justice Abella, who concurs (with Justices Karakatsanis and Martin) claim for themselves the mantle of purposivism, the majority moves in a textualist direction, even as it denies doing so, while the concurrence defends an approach under which the constitution means whatever the Supreme Court thinks it should mean, though it does not quite admit it. Justice Kasirer, meanwhile, concurs in the result and pointedly refuses to step into his colleagues’ interpretive debate.

In this post, I summarize the opinions. I will follow up with comments, mostly on constitutional interpretation, in a separate post tomorrow. Benjamin Oliphant will also have comments in the coming days, dealing with both constitutional interpretation generally and the use of international law in particular.

The respondent (we’re not actually going to refer to it ― or to the case as a whole ― by the number, are we? what are supposed to call this case though?) was charged with having undertaken some construction work without the requisite license. It argued that the fine it would have to pay would be excessive, and thus in violation of section 12 of the Charter. All three judgments made short work of this view. All commended the dissenting reasons of Justice Chamberland at the Court of Appeal and, like him, all pointed to the fact that cruelty referred to the infliction of suffering in body or mind, of which human beings were capable, and legal persons were not. Justice Kasirer’s concurrence, which limits itself to making these points, is all of five paragraphs long.

But, for whatever reason, the other eight judges do not think this is enough. They debate the general principles of constitutional interpretation, focusing on two main issues: first, the primacy, or lack thereof, of the constitutional text; and second, the role of international materials. The subject of this debate is unusual for a Supreme Court of Canada decision: constitutional interpretation is seldom addressed at such length even in cases that actually turn on it, which this one doesn’t really. So is the debate’s vehemence. The perennial talk of the differences between the mean, originalism-debating US Supreme Court and its kinder, gentler Canadian counterpart was always overwrought, but it feels especially out of place now.

Another oddity of the debate between the majority opinion and that of Justice Abella is that the former seems to have been written entirely in response to the latter. It is a rare majority opinion that is introduced by a disclaimer that “[d]espite our agreement in the result, we find it necessary to write separately”. [3] I wonder whether the decision was originally assigned to Justice Abella, but some judges (starting presumably with Justices Brown and Rowe), being dissatisfied with her treatment of the interpretive issues, wrote separately, and ended up peeling off others, forming a new majority. Be that as it may, it is perhaps useful to start with Justice Abella’s reasons, since the majority responds to them more than the other way around.

Justice Abella describes her interpretive approach as “contextual” and “purposive”. The text has no special role to play in determining the Charter’s import: “examining the text of the Charter is only the beginning of the interpretive exercise, an exercise which is fundamentally different from interpreting a statute”, [71] and “elevating the plain text” of the Charter’s provisions “to a factor of special significance” is a mistake. [72] Due to its often “vague, open-ended language … [t]he text of those provisions may … be of comparatively limited assistance in interpreting their scope”. [74] Indeed, attaching too much importance to constitutional text

could unduly constrain the scope of those rights, or even yield two irreconcilable conclusions leading, for example, to the interpretive triumph of the presence of a comma in expanding gun-owners’ rights under the Second Amendment of the United States Constitution in District of Columbia v Heller, 554 US 570 (2008) [75]

Insisting on the primacy of the plain text of Charter rights” also undermines the constitution’s ability of to develop and “creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold”. [76] Finally, “[a] textualist approach would also make Canadian constitutional law more insular”, [78] by which Justice Abella means both less inclined to consider foreign authority and less attractive as a reference point to foreign jurists.

Rather, purpose has to be inferred from a variety of contextual indicia, there being no “rigid hierarchy among these interpretative guides”, [80] although elsewhere Justice Abella suggests that “the principles and values underlying the enactment of the Charter provision are the primary interpretive tools”. [70] Justice Abella refers to dictionary definitions of the word “cruel”, the textual context of section 12 (notably the fact that almost no other “legal rights” protected by the Charter have been held to extend to corporations), and the historical context of its enactment (with respect to which Justice Abella briefly refers to the Bill of Rights 1688, the comments of some judges in  Furman v Georgia, 408 US 238 (1972), and the Canadian Bill of Rights).

Justice Abella also refers, copiously, to contemporary interpretations of section 12’s equivalents in foreign and international instruments. This is justified, she argues, by the fact that “Canada’s rights protections emerged from the same chrysalis of outrage” about Nazi crimes “as other countries around the world”. [98] It also ensures that Canada maintains a “leading voice internationally in constitutional adjudication”. [106] Unlike the majority, she wants to avoid creating a “hierarchical sliding scale of persuasiveness” [104] among these sources and “thereby transform[] the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers”. [61] Textual differences among these sources do not matter, because “a common meaning can be ascribed to their various formulations”. [108] These sources include international treaties, both those to which Canada is a and those to which it is not (like the American Convention on Human Rights), as well as the interpretations of these treaties by the relevant adjudicative bodies, as well as the jurisprudence of foreign domestic courts.

All these sources tend to the same conclusion:

In line with the global consensus, [section 12’s] purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. … Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12’s scope. [135-36]

The majority, as already noted, strongly disagrees with Justice Abella’s approach. Like Justice Abella, Justices Brown and Rowe purport to interpret the Charter in a purposive manner. However, they accuse Justice Abella of “minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation”. [4] They insist that

within the purposive approach, the analysis must begin by considering the text of the provision … because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text”. [8-9; emphasis in the original]

They add that “[g]iving primacy to the text” [10] is also the way to avoid framing the purpose of a provision too narrowly or too broadly.

Justices Brown and Rowe reject the charge that they are favouring a narrowly textualist approach. What Aharon Barak’s described, in his Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, as “new textualism”, a “‘system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment’ and in which ‘[r]eference to the history of the text’s creation . . . is not allowed’” [12], is “not remotely consistent with [the approach] which we apply and which our law demands”. [12]

Analyzing section 12, Justices Brown and Rowe first note that “the words ‘cruel and unusual treatment or punishment’ refer to human pain and suffering, both physical and mental”. [14; emphasis in the original] They mostly endorse Justice Abella’s historical analysis, although they “add that an examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors”, [16] going back to Magna Carta, because “the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(e) of the Charter”, while “[e]ven more significantly, the protection against ‘excessive fines’ was not retained at all”. [16] All “this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional”. [17]

Readers may have seen these arguments before: in part, of course, in Justice Chamberland’s dissent at the Court of Appeal, but the reference to both Magna Carta and to section 11(e) of the Charter first appeared right here, in my comment on the Court of Appeal’s decision. Here’s what I wrote:

The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained. These drafting choices ought to matter. In particular, the Charter’s text means that excessive fines are not, without more, unconstitutional. (Paragraph break removed, emphasis added)

I’ll let the reader judge how likely the similarity ― not only of ideas, of course, but of the way in which they are presented and even of the words used, especially the passage quoted above from paragraph 17 and the italicized sentence from my post ― is to be coincidental.

Justices Brown and Rowe then move on to discussing the use of international materials. This discussion, though, is still relevant to a more general consideration of constitutional interpretation. It begin with an assertion that “[a]s a constitutional document that was ‘made in Canada’ … the Charter and its provisions are primarily interpreted with regards to Canadian law and history”. [20] International and foreign materials can “support or confirm an interpretation arrived at through the Big M Drug Mart approach”, but not “to define the scope of Charter rights”. [28] Different types of instruments should also be treated differently: those that are binding on Canada are entitled to a presumption that the Charter is consistent with them; others are not. The date on which the international instruments came into being matters too:

International instruments that pre‑date the Charter can clearly form part of the historical context of a Charter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important … As for instruments that post‑date the Charter, … [i]t can readily be seen that an instrument that post‑dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. [41-42]

Foreign judicial decisions, meanwhile, must be invoked with “[p]articular caution” [43] and subject to an explanation as to the “way they are instructive, how they are being used, or why the particular sources are being relied on”. [44]

I am happy to see such extensive debate of constitutional interpretation taking place at the Supreme Court, though like Justice Kasirer I am a bit mystified by the reasons why it took place in this case. As co-blogger Mark Mancini and I argued just recently, Canadian law will benefit from more and better conversations about constitutional interpretation. A discussion of the use of international and comparative materials is also welcome, though again I wonder if this was the case in which it had to happen.

At the same time, by way of a preview of my next post, I will say that the treatment of constitutional interpretation in this case is not altogether satisfactory. To be sure, the majority opinion is a step in the right direction, as the contrast with Justice Abella’s concurrence makes clear. Yet although a substantive improvement on the alternative, this opinion engages in some misdirection and perpetuates the confusion that all too often characterize discussions of constitutional interpretation in Canada.

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.

Just Hook It to My Veins

Judge Amy Coney Barrett’s excellent lecture on statutory and constitutional interpretation

Justice Scalia’s 1989 Lecture on “Assorted Canards of Contemporary Legal Analysis” is well known; indeed it has featured in a post by co-blogger Mark Mancini. Judge Amy Coney Barrett of the US Court of Appeals for the 7th Circuit revisited that lecture last year, and her remarks have been published recently, as “Assorted Canards of Contemporary Legal Analysis: Redux“. They are a short and profitable read, including for Canadian lawyers, to whom almost everything Judge Barrett says is relevant. Judge Barrett’s comments have mostly to do with statutory and constitutional interpretation, but they also touch on the issue of “judicial activism”. And I agree with just about every word.

The main topic Judge Barrett addresses is textualism. She defines it as the approach to interpretation that

insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

Judge Barrett contrasts textualism, so understood, with the view that “statutory language isn’t necessarily a hard constraint. … Sometimes, statutory language appears to be in tension with a statute’s overarching goal, and … a judge should go with the goal rather than the text”. (856) Judge Barrett labels this latter approach “purposivism”, but that is perhaps not ideal, since many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive.

With this in mind, the first three of Judge Barrett’s canards are “textualism is literalism” (856); “[a] dictionary is a textualist’s most important tool” (858); and “[t]extualists always agree”. (859) She notes that

[l]anguage is a social construct made possible by shared linguistic conventions among those who speak the language. It cannot be understood out of context, and literalism strips language of its context. … There is a lot more to understanding language than mechanistically consulting dictionary definitions. (857)

The relevance of context to interpretation is an important reason why textualists (and originalists) don’t always agree. If it were simply a matter of consulting the dictionary and the grammar book,

one could expect every textualist judge to interpret text in exactly the same way. Popping words into a mental machine, after all, does not require judgment. Construing language in context, however, does require judgment. Skilled users of language won’t always agree on what language means in context. Textualist judges agree that the words of a statute constrain—but they may not always agree on what the words mean. (859)

The example of such disagreement that Judge Barrett provides concerns the interpretation of the provisions of the US anti-discrimination statute ostensibly directed at discrimination “because of sex” as applying, or not, to sexual orientation and gender identity. Judge Barrett describes what happened at the US Court of Appeals for the 7th Circuit, but a similar disagreement arose when the matter was decided by the Supreme Court in Bostock v Clayton County, 140 S.Ct. 1731 (2020). Mark wrote about it here.

Judge Barrett then turns to another issue, this one concerned specifically with constitutional interpretation: should the constitution be interpreted differently from other legal texts? The idea that it should ― for which Chief Justice Marshall’s well-known admonition in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) that “we must never forget, that it is a constitution we are expounding” (407) is often taken to stand ― is Judge Barrett’s fourth canard. For her, “the Constitution is, at its base, democratically enacted written law. Our approach to interpreting it should be the same as it is with all written law.” (862) To be sure, the Constitution contains “expansive phrasing and broad delegations of congressional and executive authority to address unforeseen circumstances”. (862; footnote omitted) (One might do an interesting comparison of the US and Canadian constitutions on this point: as a very superficial impression, I am tempted to say that the delegations of legislative power are more precise in the Constitution Act, 1867, but those of executive power are even more vague.) But while constitutional language differs from that of an ordinary statute, the ways in which it should be interpreted do not: “[t]he text itself remains a legal document, subject to the ordinary tools of interpretation”. (862) Indeed, as Justice Scalia already argued, this the only reason for having installing courts as authoritative interpreters of the Constitution: were it not an ordinary law, why would we allow ordinary lawyers to have anything to do with it?

In particular, the principle that “the meaning of the law is fixed when it is written”, which is “a largely, though not entirely, uncontroversial proposition when it comes to statutory interpretation”, (863) applies to the Constitution too. This principle is indeed recognized, in statutory interpretation, even by the Supreme Court of Canada: R v DLW, 2016 SCC 22, [2016] 1 SCR 402 is a recent example. In the constitutional realm, however, our Supreme Court buys into the canard denounced by Judge Barrett ― or at least says it does. (Reality is often different.) As Judge Barrett explains, “as with statutes, the law [of the Constitution] can mean no more or less than that communicated by the language in which it is written” (864) ― and what that language communicates must of course be understood with reference to what it meant when it was communicated, not what it would come to means at some future date.

Judge Barrett makes an additional point which requires some clarification in the Canadian context, so far as statutes are concerned. It concerns the importance of compromise to the drafting of legal texts. For Judge Barrett, since laws reflect arrangements reached by representatives of competing or even conflicting interests, their interpreters should seek to give effect to these agreements and compromises, notably through “reading the text of the statute at the level of specificity and generality at which it was written, even if the result is awkward”, (863) and even when it might seem in tension with the statute’s purpose. The Canadian caveat is that our statutes are, at least to some extent, less the product of compromise than those of the US Congress. Especially, but not only, when they are enacted by Parliaments and legislatures where the executive has a majority, they reflect the executive’s policy, and are primarily drafted by officials executing this policy. But one should not make too much of this. As I pointed out here, statutes ― including in Canada ― often reflect compromises between a variety of purposes and values, even if these compromises are the product of a cabinet’s disucssions or even of a single politician’s sense of what is right and/or feasible. It follows that statutes should indeed be read carefully, with text rather than any one among these purposes being the interpretive touchstone. And as for constitutional interpretation, Judge Barrett’s point applies with full force. It was nowhere better expressed than by Lord Sankey in the  Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

After briefly passing on the idea that “judicial activism is a meaningful term” (865) ― she notes that, actually, “there is no agreed-upon definition of what it means to be an activist” (865) ― Judge Barrett turns to the view that a legislature’s failure to overrule a judicial decision interpreting an enactment can be taken as assent to the interpretation. For one thing, since the meaning of a statute is fixed at the time of its enactment, “what a later Congress” ― or Parliament or legislature ― “thinks is irrelevant”. (867; footnote omitted) But further, “even if we did care, there is no way to reliably count on congressional silence as a source of information”. (868) Silence might just mean that the legislature is unaware of the decision, or it might mean that the legislature finds intervention inexpedient, or not enough of a priority, though desirable in the abstract. Judge Barrett does not quote Sir Humphrey Appleby, but she reminds us that we ought not to mistake lethargy for strategy. Judge Barrett also refers to the bicameralism-and-presentment legislative procedures of the US Constitution, but that discussion is probably less relevant to Canadian readers.

Indeed I am not sure how salient this issue of acquiescence-by-silence is in Canada, as a practical matter. I don’t seem to recall decisions invoking this argument, but I may well be missing some. Judge Barrett’s attention to it is still interesting to me, however, because it is one of the possible justifications for the persistence of adjudicative (or as Bentham would have us say “judge-made”) law (not only in statutory interpretation but also in common law fields) in democratic polities.

In that context, I think that Judge Barrett is right that we cannot draw any concrete inferences from legislative silence. My favourite example of this is the issue of the admissibility of evidence obtained in “Mr. Big” operations, where suspects are made to believe that confessing to a crime is the way to join a powerful and profitable criminal entreprise. Such evidence was largely admissible until the Supreme Court’s decision in  R v Hart, 2014 SCC 52, [2014] 2 SCR 544, which made it presumptively inadmissible, except when tight safeguards are complied with. This was a major change, framed in almost explicitly legislative language. Yet Parliament ― with, at the time, a majority ostensibly focused on law-and-order issues ― did not intervene in response to the Supreme Court’s decision, just as it had not intervened before it. Does this mean Parliament agreed with the law as it stood before Hart, and changed its mind as a result of Justice Moldaver’s reasons? Probably not. What does its silence mean, then? Who knows. As Judge Barrett suggests, this does not really matter.

I wouldn’t have much to write about, I suppose, if I always agreed with the courts. I should be more grateful than I tend to be to judge who make wrongheaded decisions ― they may be messing up the law and people’s lives, but they are helping my career. Still, at the risk of depriving myself of future material, I call upon Judge Barrett’s Canadian colleagues to read her remarks and to take them on board. They are smart and show a real commitment to the Rule of Law. And, on a more selfish note, it really is nice to agree with a judge for a change.

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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.