textualism – Double Aspect

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.

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.

Abellian “Law”

It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.

But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. Here are the comments in a release from Fordham:

“Our judges don’t draw lines over whether to follow a linguistic word approach or an intentionalist approach,” she said. “We just look at how we think this provision should be interpreted in light of all the things you worry about: what did the legislature mean, what do the words say, what was the purpose of the statute, all of that.”

Justice Abella discussed the importance of the Edwards v Canada case, more commonly known as the Persons Case, which concluded that women were eligible to sit in the Senate of Canada. In the 1929 decision, Lord Sankey stated that the British North America Act is “a living tree capable of growth and expansion within its natural limits.” Justice Abella spoke about this idea, the living tree doctrine, as a basic guiding principle.

“[The living tree doctrine] is constitutional but it’s also philosophically foundational,” she said. “It’s how we approach not only the constitution but also our statutes. What is the fair, appropriate, and just meaning of the phrase? We read it in the most reasonable way possible.”

I need not repeat yet again, from the constitutional perspective, why Justice Abella’s comments are wrong as a normative matter respecting the living tree. I want to concentrate on the seemingly more mundane matter of statutory interpretation, and Justice Abella’s statements that we apply a “living tree” methodology in that context. She is flat-out, embarrassingly wrong as a positive law matter; but as a normative matter, the view is dangerous.

On positive law grounds, it is completely untrue that courts in Canada apply a “living tree” approach to the interpretation of statutes as a matter of course. The Supreme Court has held, time and time again, that statutes should given the meaning they had at the time they were adopted. This was the definitive statement of Dickson J in Perka, at 264-265, citing authorities noting that “The words of a statute must be construed as they would have been the day after the statute was passed…” and “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held.” Most recently, as co-blogger Leonid Sirota stated on Twitter, this was the approach adopted by the Supreme Court in R v DLW where the Court cited Perka, noting that while broad terms might be afforded a more flexible interpretation, the original meaning governed in that case. Justice Abella dissented. So, contrary to her belief, the general rule is that the original meaning of a statute applies.

This makes sense. No matter what one thinks the strengths of living constitutionalism are in the constitutional context, the argument loses force in the statutory world. At a formal level, constitutions are restrictions on the legislature, and one could argue that they are developed by the judicial branch through strong-form judicial review, in Canada. But statutes are clearly the product of the legislative branch (or their delegates). Judges have no warrant–at least since 1688–to legislate. At a functional level, it could be true that Constitutions are not easily amended, and so judges should develop their meaning to new facts. But that same argument is so clearly wrong in the statutory context, where statutes are passed and amended by legislatures all the time.

One might try to steel-man Justice Abella’s comments by relying on the comments in R v DLW and other general interpretive principles. It is true that “dynamic interpretation” is indeed a distinct method of interpretation, recognized in Canada: see Ruth Sullivan on the Construction of Statutes at 175 (2014). While it is true that the Court in R v DLW and other cases have noted that statutory terms can take on a “dynamic meaning,” this is far from the ordinary rule, generally only applicable in defined circumstances given defined statutory language: see Sullivan, at 177. And even if it was, the dynamic approach is not inconsistent with original meaning, and it does not support Justice Abella’s broad misunderstanding of textualism. One can speak of two types of original meaning:

Situations in which statutory terms should be statically applied to the same situations that were in their contemplation at the time of enactment.
Situations in which statutory terms are broad and must be applied to new facts as they arise.

Both of these situations are consistent with original meaning. In the first case, both meaning and application are largely frozen at the time of enactment. Sullivan says an interpretation of this sort is justified when “…new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force” (Sullivan, at 179), for example. In the latter case, though, the legislature has spoken more broadly, and this is where a “dynamic” approach enters the fray. But this does not mean that the statute receives a new meaning according to some Abellian idea of an unbridled living tree: it just means that its contours are applied to new facts. We constrain the meaning–the scope of application– using text, context, and purpose. I always use the example of the Kyllo decision in the US, in which the Court endorsed the proposition that the 4th Amendment (protecting against searches and seizures) applied to infrared searches of the home. The scope of the 4th Amendment always protected the home, and it applied to the new facts of infrared searches.

The situation, then, is much more subtle and sophisticated than Justice Abella suggests, and the subtletly does not work in her favour.

Undeterred, she goes on to suggest that courts in Canada take an “anything goes” approach to statutory interpretation, seemingly rejecting textualism. This mistake is even more bizarre, considering the very recent decision in Telus v Wellman, which I wrote about here. Justice Abella, in her Fordham talk, suggests that courts do not draw lines between “textualism” and “intentionalism” in Canada. But she herself attempts to do so (wrongly) in her dissent, at para 107 of the decision:

The debate between those who are “textualists” and those who are “intentionalists” was resolved in Canada in 1998 when this Court decided that “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. We do not just look at the words.

Not only that, but the majority in decision in Wellman comes down on the side of text over abstract, judicially defined purposes. Justice Abella was in dissent–she did not win the argument, for very good reasons. So, again, Justice Abella finds herself claiming that the law is something when it is not.

Two normative conclusions can be drawn about Justice Abella’s odd talk at Fordham, one about the merits of what she says the law is and one about the role of a judge in Canada. Take the latter first. It would be one thing if what Justice Abella said was an honest, innocent mistake. But I find it that hard to believe in these circumstances. Wellman just happened, and Justice Abella lost the argument she now claims she won. Why a judge in our democracy would say this—especially to an international audience—is unclear. We should expect better

The merits of the suggestion that courts in Canada apply a living tree approach to statutes are also lacking. First, as Craig Forcese said on Twitter, the suggestion would amount to a complete reversal of the ordinary structure of our Constitution. The judicial function is, to state what I thought was the obvious, completely separate from the legislative. Justice Abella seems to have much in common with the old English judge who told an unfortunate lawyer trying to give his best interpretation of the statute: “Do not gloss the statute, for we know better than you, we made it.” We’ve moved far beyond these days, and it is odd for a “progressive” judge like Justice Abella to suggest we go back in that direction. Parliamentary sovereignty should stand for something.

The suggestion that judges should make up statutory meaning as they go along would have positively corrosive effects in many areas of law. Criminal law is an obvious example, but administrative law is another. Judges, rather than Parliament, would be the master of agencies if they could expand or narrow the scope of delegated power exercised by these agencies depending on the judges’ particular worldview. Not only does this stand inconsistently with the Court’s own professed idea of deference, it is dangerous to subvert Parliament’s laws in service of a judge’s ideology.

And this, I suppose, is the point. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.

The “Return” of “Textualism” at the SCC[?]

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is dominant in the interpretive process (see Placer Dome, at para 21; Canada Trustco, at para 10), but at the same time, the Court has often adverted to the role of purpose in interpretation, to the extent that purpose or policy considerations could override clear text (see the opinion of then-Chief Justice McLachlin in West Fraser Mills, at paras 40, 43). And, even if one could work out what the proper relationship is between text and purpose ,there is no guidance from the Court about what purpose, at what level of abstraction, should be relevant in the analysis. I have written about these issues before.

Luckily, the Supreme Court has provided some guidance to answering these questions in Telus Communications v Wellman, 2019 SCC 19. While the approach advanced in the case is not strictly textualist, it does represent the important idea that text dominates in the interpretive process, and that overall policy goals should not be permitted to override that text. While the Supreme Court is a laggard to these important conclusions (see the opinions of Stratas JA in Williams, Cheema, and Hillier), they come better late than never.

Facts

The case involved an important question of statutory interpretation under Ontario’s Arbitration Act and Consumer Protection Act. Wellman filed a class action against Telus, consisting of both “consumers and non-consumers” [2]. The action alleged that Telus “engaged in an undisclosed practice of ‘rounding up’ calls to the next minute such that customers were overcharged…” [2]. All of the contracts binding the class provided that any claims “arising out of or in relation to the contract, apart from the collection of accounts by Telus, shall be determined through mediation, and failing that, arbitration” [3].

The problem for Wellman et al, though, was that not all of the members of the class were “consumers.” Under the Consumer Protection Act, the arbitration clauses in the contracts are invalid, because “it would otherwise prevent class members who qualify as ‘consumers’ from commencing or joining a class action of the kind commenced by Mr. Wellman” [4]. The Consumer Protection Act “shields consumers from a stay of proceedings under the Arbitration Act” [4]. Telus conceded this point as regards the consumers. But there were non-consumer, business customers included in the class. The core question was whether they could escape the effect of a stay sought by Telus.

Wellman said that, under the Arbitration Act, s.7(5), the court had discretion to refuse Telus’ request for a stay against the business customers, so that the business customers could continue in the class. Section 7(5) says the following:

7 (5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

Telus, though, fundamentally disputed this claim, arguing that under other provisions of the Arbitration Act, exceptions are set out that are exhaustive of all the legislative exceptions in the Arbitration Act scheme. Accordingly, to Telus, the Consumer Protection Act does not apply to the business consumers, and instead, the business claims should be stayed under the Arbitration Act [7].

Analysis in the Case

Moldaver J wrote for the majority, accepting Telus’ argument. After citing the general modern approach to statutory interpretation of text, context, and purpose, he first grounded his view of the statute in its purpose. One of the principles of the Arbitration Act, appearing in the legislative history, was the need to ensure that parties “abide by their agreements,” and that the law was designed to enshrine this idea [50]. Subsequent cases in courts across the country, to Moldaver J, accepted this idea [54].

Turning to the text, specifically s.7(1) of the Arbitration Act, Moldaver J wrote that it established a general rule: “where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement….the court “shall,” on the motion of another party to the agreement, stay the court proceeding in favour of arbitration” [63]. This is, obviously, a mandatory statutory rule. Wellman, though, argued that s.7(5) excerpted above is an “independent, standalone” exception to s.7(1) [74]. This provision, which permits a “partial stay”—meaning that the court has a discretion to stay some of the claims for arbitration—is available if certain statutory preconditions are met and if the court exercises its discretion in favour of the stay. Wellman argued that s.7(5) could be read so that the court “may refuse to stay” the business customers’ claims. But Moldaver J rejected this proposition, focusing on the text of s.7(5) in its statutory context. The text of s.7(5) says nothing about a court “refusing to grant a stay,” and to him: “…where the legislature intended to authorize the court to refuse a stay, it did so through the words ‘may refuse to stay’” [73]. Those words did not appear in s.7(5). And, with this text and context in mind, Moldaver J turned to purpose: allowing Wellman’s argument would “reduce the degree of certainty and predictability associated with arbitration agreements,” permitting the business customers to escape the effect of a stay [76].

Wellman also relied on certain policy considerations to support his preferred interpretation of the text [77]. One of these was a general principle of “access to justice,” which “[removes] barriers to seeking relief in court” [77]. But there were two problems with importing this idea as a decisive principle for the case: (1) a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation [79]; and (2) the Ontario regime pursues access to justice by “shielding consumers from potentially harsh results of enforcing arbitration agreements…” by exempting consumers “and only consumers” from “otherwise freely negotiated agreements” [80]. This is in conjunction with the Arbitration Act’s pursuit of the overall principle that parties should abide by their agreements. Access to justice, as a general idea, should not “be permitted to overwhelm the other important objectives pursued by the Arbitration Act…” [83].

While I do not have space to recount the minority opinion of Abella and Karakatsanis JJ, I want to note a particularly fiery charge that they chose to level at Moldaver J: “The majority’s approach, with respect, in effect represents the return of textualism. The words have been permitted to dominate and extinguish the contextual policy objectives of both the Arbitration Act and the Class Proceedings Act [citations omitted]…” [109]. To the minority, the “overall purpose” of the Arbitration Act “was to promote access to justice” [137].

Evaluation

I want to say three things about this case. First, the minority’s charge of “textualism” against Moldaver J is inaccurate and sloppy; (2) Moldaver J’s approach, while not textualism, represents a defensible “textually constrained purposivism,” that guards against a court aggrandizing to itself the power to “read-in” language to a statute; (3) both of the opinions show why relying on legislative history is such a fraught enterprise.

Consider first the minority’s textualism charge. I can only imagine that Abella and Karakatsanis JJ were trying to make a rhetorical point, because I cannot believe that they—learned judges of our Supreme Court—could so misunderstand an entire school of interpretive thought. Textualism is directly opposite to “purposivism,” which is primarily concerned with the ends a statute pursues. To the textualist, purpose is encompassed in the means the statute pursues. It is not concerned with an overall statement of purpose, per se: consider Scalia J’s opinion in MCI and WVUH v Casey, and also Judge Easterbrook’s article, “Statutes’ Domains.”

But Moldaver J’s opinion does not just focus on means. It considers the ends of the Arbitration Act, including the overall “purpose” of respecting the agreement reached by parties in their contracts. Moldaver J’s approach is much more realistic than the minority’s approach, which chooses the “access to justice” purpose as the “overall purpose”—with no justification other than, apparently, judicial fiat. Moldaver J’s approach recognizes that there are other purposes of the statute at play. This is not textualism.

That said, Moldaver J’s approach does recognize that purposes do not exist in the abstract. They must be tied to statutory means. What is relevant is not the court’s appreciation of what access to justice means, but what the legislature thinks it means, and the words the legislature used to represent that idea. And that legislative instantiation is existent in the Arbitration Act and Consumer Protection Act, working in pari materia. As Moldaver J noted, the Ontario regime is focused on permitting access to justice for “consumers,” by allowing them to pursue claims in court. When we are talking about business customers, though, the legislation does not speak in abstract terms about access to justice writ large–the Arbitration Act has defined means to grant a partial stay, not means to refuse to grant a stay. It pursues the goal with limited means, in conjunction with other fairly discernible statutory purposes. Abella and Karakatsanis JJ—poets, apparently—say that “a provision must be assessed in all its textures — language, purpose, effect — to prevent the suffocation of its meaning by a technical literal reading of the words” [130]. But here, poetry suffocated prose, because the language of the statute works in symbiosis with purpose. Purpose does not override text. And in this respect, to my knowledge, it is not hornbook law that the Canadian approach is “intentionalist,” as Abella and Karakatsanis JJ say [107], understood in the sense that intentions should override text. Intentionalism would mean taking a psychologist’s armchair and determining what a legislator meant to say; not what was said.

This makes sense from a democratic perspective. Legislators, in their heads, may think of purposes when they enact laws. These purposes may range from “the public good,” on one hand, to minute, technical considerations on the other. Because a court cannot discern which purpose ended up becoming law, we have to think about what the best evidence of the law could be in the circumstances. Usually, text is that best evidence. While it is not always definitive and clear—because language is not always definitive and clear—it is better than unexpressed intentions or abstract, tangential purposes.

I want to raise a final note about the use of legislative history. Both sides of the case relied on different aspects of the legislative history to support their particular interpretation. Because various statements existing in the legislative history are not ranked by importance, it is difficult for any court or observer to put more or less weight on various statements. So, like Judge Leventhal once said, legislative history is like looking over a crowd and picking out your friends. A judge predisposed to one interpretation will use legislative history to support his own view of the matter. If we are going to allow legislative history to be a valid part of statutory interpretation, it should only be relied on with severe caution, as an afterthought, and with the idea that its probative value is exceedingly low.

Notwithstanding the quibble about legislative history, Moldaver J’s opinion is worthy of note because it finally recognizes that judges, under the guise of judicially divined “purposes,” cannot override a contextual interpretation of the text. The text is what the legislature enacted. It should govern.

The Empty Canard of the Living Tree “Doctrine”

In 1989, Justice Scalia gave a speech entitled “Assorted Canards of Contemporary Legal Analysis.” These “canards,” are “certain oft-repeated statements…” that, while having “little actual impact upon the decision of the case” are “part of its atmospherics, or of its overarching philosophy…” Justice Scalia gave the example of the old adage that “remedial statutes should be liberally construed,” a canard because it is difficult to determine what a “remedial statute” is, and then because it is not a judge’s role to pick and choose statutes to be interpreted liberally and strictly.

In the last few days, both the Stereo Decisis podcast and my co-blogger Leonid have focused on a case out of Quebec in which our own Canadian canard was put to work: the idea that the Charter of Rights and Freedoms should be interpreted as a “living tree.” In the context of the case at issue, Leonid received flack from the Stereo Decisis podcast hosts for suggesting a textualist approach to the interpretation of s.12 of the Charter, while the hosts were focused on determining the normative commitments that should influence constitutional interpretation, having concluded that the language of the Charter is written in open-ended and ambiguous language. Lurking in the background of this debate between textualism (properly understood) and the openness of language is the idea that the Constitution should evolve to encompass certain normative commitments, whether or not they are discernible in the text. This is the core of the living tree approach.

But no one has ever described—with real precision—how a living-tree “doctrine” would work in practice, and so it is simply unconvincing to state, without more, that the Charter should or could encompass evolving normative commitments not fairly implicated by the text. Until the proponents of the living tree suggest some way—any way—that the doctrine should actually operate, it should be resigned to the dustbin of history. My point here is not to point out the flaws of the living tree methodology; others have done that. Instead, I want to suggest that for the living tree doctrine to become an actual doctrine, it should answer a number of fundamental questions. None of these questions are new, but they come into stark relief, requiring urgent answers, if the living tree is going to remain even a part of the Canadian constitutional atmosphere.

Why, for example, has the Supreme Court rarely applied the doctrine in any substantial way, despite it being a favourite among legal academics? One would be hard pressed to think of a case where the living tree was a decisive factor in favour of one party or another, or where it was applied to some distinct substantive end. In fact, in Comeau, the interprovincial beer case, while the Court mentioned the living tree doctrine, it was quick to point out that the metaphor is not an open invitation to constitutionalize modern policy outcomes [83]. So much for a leading interpretive theory of constitutional interpretation, especially when it appears that, on least some occasions, the Court has endorsed the opposite of a living tree approach.

Even if the living tree stood tall in the pantheon of constitutional interpretation, no one can answer how the doctrine should actually operate. In the United States, some attempts have been made by leading scholars to cloak living constitutionalism in the credentials of an actual interpretive theory. David Strauss, for example, links living constitutionalism to a sort of common law constitutionalism. To my knowledge, few if any in Canada have attempted to “steel-man” the living tree doctrine to turn it into something resembling an interpretive doctrine. The lack of effort is telling in the unanswered questions: should the living tree apply to expand the actual scope of rights, or should it just apply to new applications unknown to the framers? If the latter, how is this distinguishable from originalism, properly applied? After all, the dominant school of originalism is public meaning originalism, not original expected applications originalism. If this is all the living tree approach denotes, then it is a duplicative piece of atmospherics that is better left to the pages of poets rather than the law books.

Most strikingly—and this was laid bare in the Stereo Decisis podcast episode—how should a living tree “doctrine” mediate between different normative considerations? If the text gives us no answers, how we are to determine which values should be granted the imprimatur of constitutional protection? How do we determine whether society has evolved, such that a certain value is now constitutionally cognizable? How do we define “society?” These questions have never been answered in Canada.

Even if they could be answered, as Leonid points out in his post on the matter, there is nothing to suggest that courts are institutionally or normatively capable of getting to even defensible answers on these questions. These are not questions that are based on evidence, facts, or even legal norms. They are philosophical, involving inquiries into the mind of the cultural zeitgeist. Are we certain—or even confident—that judges can answer these questions?

If the proponents of the living tree want it to be a serious doctrine of constitutional law, these are all questions that should be answered. Until then, the status quo position should be that the living tree is a turn of phrase, taken out of context, that has no real substantive quality.

N.B. A reader has commented that Wil Waluchow has written about a sort of common law constitutionalism in Canada. I cannot speak with confidence as to whether Waluchow’s work is similar to the Straussian view, but at first blush it appears relevant. Whether it answers the legal questions posed in this post is another question.

Does the Constitution Mean Anything?

In defence of textualism in constitutional interpretation

The Stereo Decisis podcast recently devoted an episode to a discussion of a case that I have covered here, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373, in which the Québec Court of Appeal held that corporations could avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “cruel and unusual treatment and punishment”. While the hosts Robert Danay, Oliver Pulleyblank, and Hillary Young disagreed on the merits of the issue before the court, they were, I take it, agreed on one thing: the approach to interpreting section 12 on which my post relied is not compelling. And indeed my post was pointedly textualist, and intended as a bit of a provocation to the adherents to Canadian consensus approach to the constitution, which is anything but. I am glad that it worked, and that we are, as a result, having a bit of a debate on constitutional interpretation; and all the more so since, in the course of this discussion, my critics nicely expose the weakness of their position.

Briefly, I had argued that section 12 does not apply to corporations because the word “cruel” refers to the wilful infliction of or indifference to pain or suffering, and pain or suffering is something that corporations are not capable of. I added a discussion of the evolution of the provisions intended to limit punishments from the Magna Carta, to the Bill of Rights, 1688 and the Eighth Amendment to the US Constitution, to section 12, during the course of which the prohibition on “excessive fines” (to use the language of the Bill of Rights) fell by the wayside and was left out of the Charter. Considerations about whether it would have been a good idea for the Charter’s framers to have made a different choice and included a protection against excessive fines, which in effect is what the Québec Court of Appeal decided, are in my opinion irrelevant.

The hosts of Stereo Decisis took issue with that. We just can’t interpret the Charter simply by looking at what it says. Mr. Pulleyblank insisted that “‘[c]ruel and unusual’ is a bad phrase. It doesn’t really mean cruel and it doesn’t really mean unusual.” And beyond this particular provision, Professor Young said that the Charter is written in “rather loose language”, so that answers to questions about its meaning “can’t be found in the words”. Rather, they can only be obtained by asking what the Charter ought to mean. “You have to look beyond the words”, to “normative” considerations, such “how you feel about the Charter versus legislative authority”. The Québec Court of Appeal, for instance, had to decide whether “this particular right should apply to corporations”. (Emphasis mine) And that decision can yield, as Mr. Pulleyblank put it, “a norm that is different than either of those words [cruel and unusual] or both of those words together”.

Normative considerations are what caused the hosts to disagree about the outcome of the case. Mr. Danay said that “[w]e ought not to try to limit Charter rights. … If the Charter seems like it could protect something, probably a better reading … would be to protect that thing.” Professor Young, by contrast, saw a greater role for deference “to legislation enacted by elected legislatures”, and added that “[i]f we were talking about human beings’ rights, I would be less inclined to interpret so narrowly but I’m not super sympathetic about arguments for corporations’ rights against cruel and unusual treatment”. It was, as Mr. Pulleyblank summed it up, “just a disagreement” about “the impact on the democratic process”.

In my view, the hosts’ criticism of my textualist interpretation are weak, and their own approach grounded in vague normative considerations, unattractive. Now, it’s important to understand what textualism is not, and what it is. No textualist, for example, would say that answers to all constitutional questions can be found in the words alone. Sometimes, it is indeed necessary to go beyond the words of a provision. Some words that the Charter‘s framers used are vague. Context can clarify what at first glance appears to vagueness; in other cases, it might tells us that the most straightforward reading of a word whose import at first seems clear is not the most accurate one. Thus, contrary to what Mr. Pulleyblank rather derisively implied, my “going beyond the text” to look at section 12’s historical antecedents does not make me a bad textualist. Textualism is, in short, the idea that constitutional text, read in its proper context, binds ― insofar as it has an ascertainable meaning; it is not the view that text alone will always answer all constitutional questions. (In any case though, my ultimate commitment is to public meaning originalism, which starts, but does not always end, with textualism.)

So textualism can acknowledge the vagueness of a constitutional provision, but it will insist on not merely stipulating that its language is “bad” or “loose”, or that, if it is somewhat vague, it is incapable of providing any real guidance to the interpreter. The word “cruel”, in section 12, is a nice illustration. Of course, it is vague to a considerable extent. No amount of looking at dictionaries will tell us whether, say, a parole ineligibility period longer than an offender’s life expectancy is cruel (the main question in R c Bissonnette, 2019 QCCS 354) and, as a public meaning originalist, I do not think that knowing how the Charter‘s framers would have answered that particular question tells us much about the meaning of section 12 either. But it doesn’t follow that the word cruel is poorly chosen or that it has no real import at all. In the case before the Québec Court of Appeal, looking at the word’s ordinary meaning was helpful, indeed sufficient to dispose of the dispute (which an examination of the context confirmed).

The Stereo Decisis hosts never actually disputed this ― they did not refer to definitions of the word “cruel” that contradicted the claims that Justice Chamberland (who dissented at the Court of Appeal) and I made about it. (At least that’s how I understood them; as I was writing this post, Benjamin Oliphant suggested that “the hosts raise a worthwhile challenge to [my] interpretation of section 12. What if the words ‘cruel and unusual’ are properly understood to mean “grossly disproportionate’ … ?” I don’t think the hosts said that section 12 actually means this ― only that it has been read in this way by the Supreme Court. And I don’t think that “cruel” actually means “grossly disproportionate”. Again, dictionary definitions tend to emphasize wilful infliction of pain. Moreover, section 12 applies not only to “punishment” but to other “treatment” of the individual by the state. While it makes sense to speak of cruel treatment, I don’t think that “grossly disproportional” works here; disproportional to what?)

As I understood the Stereo Decisis hosts, they took what I can only describe as a dogmatic position that a word like “cruel” must be so vague as to provide no guidance. I don’t think that going into an interpretive exercise with a pre-determined view of this sort is right. Vagueness is not an all-or-nothing thing; a word, or a provision, can be vague as to some questions but not others. The interpreter needs to make a reasonable effort to glean what guidance can be had from the text and context before concluding that they “run out” and that the question facing him or her must be answered by looking at other considerations.

And then, the interpreter needs to face the question of what considerations should be looked at when, and to the extent that, a constitutional provision does run out. (In originalist terms, this is the question of what theory of construction one must adopt for those cases that interpretation does not settle.) The Stereo Decisis hosts suggest that we must go straight to very general normative views about the Charter and legislative power. As their discussion shows, however, this approach is not especially fruitful, in that it promptly leads to stark normative disagreement between those who would maximize the scope of the Charter‘s limits on government power and those who would reduce it in the name of preserving legislative authority. The two sides of this dispute have little to say to one another; both argue that the case should simply be decided by following their normative priors; they can only count heads to see who wins on any particular panel. Adjudication along these lines is not readily distinguishable from a legislative power struggle.

I do not mean to deny that cases where a court can do no better may arise from time to time. Still, I think that we should be uneasy about this prospect. Telling judges that it’s normal, rather than exceptional and worrying, for them to decide constitutional cases by reference to their own normative commitments produces nefarious consequences, as judges come to think that their personal understanding of right and wrong is more important than the law. From constitutional cases, this belief bleeds into other areas of the law ― into cases of ordinary statutory interpretation and even common law ones. This destroys the Rule of Law and removes the most important constraint on judicial power, which is the requirement to (normally) follow the law, be it constitution, statute, and precedent, that someone else has first set out.

Moreover, if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. (This is, of course, especially true of cases that involve individual rights; federalism disputes arguably require a neutral arbiter, but even there, it is not quite clear why the arbiter should be judicial in character.) And, as a descriptive matter, those who hold to the view that constitutional texts are more or less meaningless don’t even have access to the positive law argument I have made here that, as a textual matter, our constitution actually requires judicial supremacy. They must attempt to answer the question of whether it does so with normative arguments alone, and are unlikely to convince anyone not predisposed to agree with them.

It is much better, as well as more consistent with our Rule of Law tradition and with the positive law of our constitution, to insist that judges ascertain the meaning of the law given them, and if the meaning does not resolve the dispute they have to settle, that they endeavour to implement this law, not on the basis of their predilections, but of the law’s purposes. A judge who happens to share my distaste for most economic regulation can and should nevertheless conclude that, while an additional obstacle to such regulation’s excesses in the shape of an extension of the scope of section 12 to corporations would be normatively desirable, the constitution that we actually have does not raise this obstacle in the grasping legislatures’ way. But for him or her to be able so to conclude, that judge must be committed to elucidating and applying the law, instead of believing that judicial office gives one carte blanche to implement one’s own preferences.

Constitutional interpretation isn’t discussed enough in Canada. A general lack of interest, caused by overconfidence in a living constitutionalist orthodoxy, has meant that when Canadian lawyers confront questions of constitutional interpretation they are liable to reason in ways that are not compelling. Sadly, the Stereo Decisis discussion of the question whether section 12 of the Charter extends to corporation was illustrative. It relied on a mistaken assumption that constitutional language is infinitely malleable, with the result that, as Mr. Pulleyblank put it, “[i]f you want to go one way you can probably get there. If you want to go the other way you can probably get there.” Descriptively, this mischaracterizes our constitutional documents, which are rather less vague than is sometimes said. Normatively, a state of affairs in which constitutional law dissolves in competing assertions about the appropriate relationship between courts and legislatures, has little to recommend itself.

These two defects feed into each other. The less faith one has in the capacity of constitutional texts to guide their interpreters, the more power one is inclined to grant judges (even if only to seek to claw it back through free-floating doctrines of deference). The less one accepts limits on judicial power, the more one is tempted to see vagueness in every text, without seriously examining it. Still, I hope that, by discussing constitutional interpretation and calling into question beliefs about it whose truth has too long simply been assumed we will make much needed progress.