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Published online by Cambridge University Press: 06 February 2018
The current approach to statutory interpretation in Canada, viz., the ubiquitous “modern principle,” is an empty rhetorical gesture that masks the contingent, subjective nature of language and naturalizes institutionally sanctioned definitions. Since the late-nineties, virtually every relevant decision cites the same passage as methodology, positing the discoverability of objective textual meaning by looking to things like the “ordinary sense” and “intention of Parliament.” This is theoretically incoherent and incompatible with most credible understandings of language and interpretive subjecthood. This paper begins with a critical reading of each directive in the “modern principle” to demonstrate the normative force of its outdated approach. After discussing the legitimizing function of an ostensibly consistent method that elides the difficulties of linguistic meaning, I conclude with a preliminary discussion on the possibility of progress—or the idea of (literally) a postmodern principle of statutory interpretation.
1. Driedger, Elmer, The Construction of Statutes, 2nd ed (Butterworths, 1983)Google Scholar at 87.
2. Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed (LexisNexis Canada, 2014)Google Scholar at 1.
3. Supra note 1.
4. While truly proving this negative would involve reference to the hundreds of relevant Canadian decisions, this phenomenon can be more succinctly explicated in two parts. First, an analysis of the formative cases demonstrate complete indifference to the apparent singularity of the modern principle. In Rizzo Shoes, for instance, Iacobucci J transgresses this rhetoric, suggesting the presence of hermeneutical alternatives: “Although much has been written about the interpretation of legislation … Elmer Driedger in Construction of Statutes … best encapsulates the approach upon which I prefer to rely” ([1998] 1 SCR 27 at para 21). The second part of this examination reviews the post-Rizzo jurisprudence, where the courts have—virtually without exception—justified the modern principle through appeals to stare decisis. These decisions generally fail to engage with even the interpretive efficacy of the doctrine—much less its apparent place as the “only” approach. See, e.g., Rooney v ArcelorMittal SA, 2016 ONCA 630 at para 13; Diamond Estate v Robbins, 2006 NLCA 1 at para 48.
5. This is submitted as one central feature of postmodern thought in Frederic Jameson’s influential “Postmodernism and Consumer Society” in Vincent Leitch et al, eds, The Norton Anthology of Theory & Criticism (Norton, 2010) 1846 at 1847.
6. See, e.g., Litowitz, Douglas, Postmodern Philosophy and Law (University Press of Kansas, 1997)Google Scholar at 5-6, 156-73.
7. IUOE Local 793 v Sarnia Cranes Ltd, [1999] OLRD No 1282 at para 220.
8. That is, for the purposes of this preliminary argument, I will not take Roland Barthes’ famous assertion as a given (see: Roland Barthes, “The Death of the Author” in Image-Music-Text, translated by Stephen Heath (Noonday Press, 1988) at 172). Nor will I presume familiarity (much less acceptance) of the term popularized in Rorty’s, Richard The Linguistic Turn (University of Chicago Press, 1992).Google Scholar
9. See, e.g., Deely, John, Four Ages of Understanding: The First Postmodern Survey of Philosophy from Ancient Times to the Turn of the Twenty-first Century (University of Toronto Press, 2001).CrossRefGoogle Scholar
10. Ferdinand de Saussure, Course in General Linguistics, translated by Wade Baskin (Columbia University Press, 2011).
11. Supra note 2 at 32.
12. Ibid at 19.
13. This argument, pushed to its limits, is perhaps most concisely demonstrated by Vern Krishna, “The ‘Modern Rule’ of Statutory Interpretation” (2013) 29:9 Bottom Line 23.
14. For an account that is mindful of the postmodern difficulties at play, see Valerio Nitrato Izzo, “Beyond Consensus: Law, Disagreement and Democracy” (2012) 25:4 Int’l J Sem L 563 at 566.
15. Alexander Platt, “Debiasing Statutory Interpretation” (2012) 39:1 Ohio NUL Rev 275.
16. It is, of course, possible to imagine definitional conflict that gives way to consensus, which is arguably an important tenet of deliberative democracy (see, e.g., Maria Barbaros, “Matters of Deliberative Democracy: Is Conversation the Soul of Democracy?” (2015) 7:1 Meta: Research in Hermeneutics, Phenomenology and Practical Philosophy 143). However, given the ubiquity of disputes concerning esoteric legislative provisions, it is unlikely that we can effect the reasoned, representative deliberation that lends this construct its legitimacy.
17. 2014 SCC 60.
18. RSC 1985, c C-46.
19. Here, the relevant distinction concerned the scope of “consent.” A willingness to treat someone once resources become available was one formulation; the other side adopted a version of “consent” that required all “material elements” to be accepted before the threshold was satisfied. This latter reading arguably imports criteria that go beyond the bare meaning of the word, but both definitions are defensible, which exemplifies a central problem.
20. Michel Foucault, “What is an Author?” in James Faubion, ed, Aesthetics, Method, and Epistemology (The New York Press, 1998) 205 at 206.
21. The concept of subjectivity—and its sibling, idiosyncrasy—is essential to my critique of statutory interpretation. By this, I mean that we approach constructed language in a state of “not-knowing,” to use Donald Barthelme’s phrase. In his eponymous text, he observes a “rage for final explanations” in language which can never be satisfied, since any answer can only signify within the imperfect language that created the uncertainty. While there is a rich body of literature on textual subjectivity in a variety of disciplines, Barthelme’s observations hew closest to my use of the term here. The process of interpretation is profoundly personal, and assigning meaning to language imports experiential knowledge that cannot easily be shared. This, I submit, impels idiosyncratic results, which are as individualized as the interpreting subjects.
22. See, e.g., Love v Flagstaff (County of) Subdivision and Development Appeal Board, 2002 ABCA 292; Mersey Seafoods Ltd v The Minister of National Revenue, 85 DTC 731.
23. Stephane Beaulac & Pierre-André Côté, “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization” (2006) 40 Revue Juridique Themis 131.
24. On this point, it is instructive to recall Jean Baudrillard’s epigram to Simulacra & Simulation: “The simulacrum is never what hides the truth—it is truth that hides the fact that there is none” (University of Michigan Press, 1994).
25. Guy Debord, Society of the Spectacle (Black & Red, 1970) at 76.
26. See generally: Lyotard, Jean-François, The Postmodern Condition: A Report on Knowledge (University of Minnesota Press, 1984).Google Scholar
27. Noam Chomsky, “What is the Common Good?” in What Kind of Creatures Are We (Columbia University Press, 2016) 59 at 63
28. The impossibility of linguistic objectivity is perhaps most effectively glossed in Wallace Steven’s masterful “The Idea of Order at Key West” in The Collected Poems of Wallace Stevens (Vintage, 1990) at 128. His mythic artist stands next to the ocean, interpreting stimuli and creating song, but “[t]he sea was not a mask. No more was she. / The song and water were not medleyed sound / Even if what she sang was what she heard, / … The grinding water and the gasping wind; / But it was she and not the sea we heard.”
29. Supra, note 1 at 87.
30. John Keyes, “Judicial Review and the Interpretation of Legislation: Who Gets the Last Word?” 19:2 Can J Admin L & Prac 119 at 130
31. Supra note 2 at 9.
32. Ibid at 8.
33. For an interesting argument on the impossibility of objective rationality, see Daniel Epstein, “Rationality, Legitimacy, & the Law” (2014) 7:1 Wash U Jur Rev 1.
34. 2012 SCC 16 [Tse]. See also: Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology” (1986) 36:4 JL & Educ 518.
35. Tse, supra note 34 at paras 20-21.
36. These oft-cited contextual factors are concisely set out at Halsbury’s Laws of Canada, Legislation (LexisNexis Canada, 2008) at HLG-55 “Meaning, intention and consequences.”
37. This has been repeated innumerable times in trial level decisions, but these cases most commonly refer to a set of Supreme Court judgments: Rizzo Shoes, supra note 4; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53; and Merk v International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70.
38. Despite the dissonance between this idea and contemporary hermeneutics, the legislator as an intentional actor pervades the popular account of our legal system. See, for instance, Library of Parliament, Guide to the Canadian House of Commons, online: https://lop.parl.ca/About/Parliament/GuideToHoC/pdf/guide_canadian_house_of_commons-e.pdf.
39. (Clarendon Press, 1999).
40. See, e.g., “Stare Decisis and the Rule of Law: A Layered Approach” (2012) 111:1 Mich LJ 1.
41. For a concise survey of this argument, see Andrei Marmor, “Law and Disagreement/The Dignity of Legislation” (2002) 112:2 Ethics 410 at 411.
42. Keizer v Slauenwhite, 2012 NSCA 20 at para 18.
43. William Eskridge, Dynamic Statutory Interpretation (Harvard University Press, 1994) at 18.
44. Ibid at 20.
45. 2007 BCSC 1755.
46. RSBC 1996, c 294.
47. Supra note 45 at para 89.
48. Supra note 43 at 20.
49. This is among the most pronounced examples of historicization in the current approach to statutory interpretation. The evocation of historical progress as a legitimizing ideological trope was first noted by Marx, and has been summarized as “ideological structures appear[ing] to be the logical conclusion to an historical development” (John Lye, “Ideology: A Brief Guide” online: www.brocku.ca/english/jlye/ideology.php).
50. Ludwig Wittgenstein, The Blue Book in Gertrude Margaret et al, eds, The Collected Works of Ludwig Wittgenstein (InteLex, 1998) at 17.
51. Ibid.
52. 2005 SCC 62.
53. Ibid at para 17.
54. This is discussed in greater detail below, but the explicit postulation of purpose as the logical outcome of interpretive reasoning is, if nothing else, preferable to the current approach in which legislative objective appears predominantly rhetorical.
55. Dragan Milovanovic, Postmodern Law and Disorder: Psychoanalytical Semiotics, Chaos and Juridic Exegeses (Deborah Charles Publications, 1992) at 105.
56. Ibid at 114.
57. Ludwig Wittgenstein, Tractatus Logico-Philosophicus, translated by DF Pears & BF McGuiness (Routledge Classics, 2001) at 89.
58. As Michel Foucault memorably remarks in Discipline & Punish, “disciplinary power appears to have the function not so much of deduction as of synthesis, not so much of exploitation of the product as of coercive link with the apparatus of production” (translated by Alan Sheridan (Vintage Books, 1995) at 153). For a contemporary empirical analysis, see Jonathan Kastellec, “Racial Diversity and Judicial Influence on Appellate Courts” (2013) 57:1 American J Political Science 167.
59. Pharmascience Inc v Binet, 2006 SCC 48 at para 30 citing Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Butterworths, 2002) at 21.
60. Côté, Pierre-André, The Interpretation of Legislation in Canada, 4th ed (Carswell, 2011)Google Scholar at 15-16.
61. Cass Sunstein, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Brookings Institution Press, 2006).
62. Ibid at xiv.
63. Bourque v Janzen, 2007 SKQB 297 at para 9.
64. Pierre Schlag, “Anti-intellectualism” (1995) 16:3 Cardozo L Rev 1111 at 1115. For the definitive account of how law becomes state-sanctioned violence, see Robert Cover, “Violence and the Word” (1986) 95:8 Yale LJ 1601.
65. Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind (New York University Press, 1996) at 18.
66. Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles” in Allan Hutchinson, ed, Critical Legal Studies (Rowman & Littlefield, 1989) 157 at 157.
67. Jean Baudrillard, Simulacra & Simulation, translated by Sheila Glaser (University of Michigan Press, 1994) at 9.
68. Chris Hedges, Wages of Rebellion: The Moral Imperative of Revolt (Vintage Canada, 2016) at 36.
69. The background conditions for any interpretive act are brilliantly set out in George Saunder’s pastiche of a recent Presidential speech: “He’s a man who has just dropped a can opener into his wife’s freshly baked pie. He’s not about to start grovelling about it, and yet he’s sorry—but, come on, it was an accident. He’s sorry, he’s sorry, O.K., but do you expect him to say it? He’s a good guy. Anyway, he didn’t do it” (George Saunders, “Who are All these Trump Supporters?”, The New Yorker (18 July 2016), online: www.newyorker.com/magazine/2016/07/11/george-saunders-goes-to-trump-rallies).
70. Sacvan Bercovitch, The American Jeremiad (University of Wisconsin Press, 1978) at 12.
71. Jacques Derrida, Writing and Difference, translated by Alan Bass (University of Chicago Press, 1980) at 278.
72. See, e.g., Zacharias v Zurich Insurance Co, 2012 ONSC 4209 at para 37.
73. Mans Svensson, “Norms in Law and Society: Towards a Definition of the Socio-legal Concept of Norms” in Matthias Baier, ed (Ashgate, 2013) at 39.
74. See, e.g., R v Lewandowski, 2010 NSPC 37 at para 25.
75. Ruth Sullivan, “Statutory Interpretation in a New Nutshell” (2003) 82:1 Can Bar Rev 51 at 61.
76. Ibid at 62.
77. See, e.g., Kenora (Town) Police Services Board v Ontario (Civilian Commission on Police Services), [2008] OJ No 3920 at para 27.
78. CED 4th (online), Statutes, “Interpretation of Statutes: Duty of Court” (III.1) at §40.
79. Richard Risk, “Here be Cold and Tygers: A Map of Statutory Interpretation in Canada in the 1920s and 1930s” (2000) 63:1 Sask L Rev 195 at 202.
80. Pierre Schlag, “The Empty Circles of Liberal Justification” (1997) 96:1 Mich L Rev 1 at 7.
81. John Willis, “Statute Interpretation in a Nutshell” (1938) 16:1 Can Bar Rev 1 at 4.
82. Ibid at 15.
83. In a recent decision, the Supreme Court held that “[t]he cardinal values of certainty and predictability … are themselves core principles of the rule of law.” Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 at para 86.
84. Daniella Murynka, “Some Problems with Killing the Legislator” (2015) 73:1 UT Fac L Rev 11 at 14.
85. Ibid at 32.
86. Paul de Man, “Semiology and Rhetoric” in Vincent Leitch et al, eds, The Norton Anthology of Theory & Criticism (Norton, 2010) 1365 at 1367.
87. Blackpool Corp v Locker, [1948] 1 All ER 85 at 87.
88. Stamatina Dimakopoulou, Christina Dokou & Efterpi Mitsi, The Letter of the Law: Literature, Justice and the Other (Peter Lang, 2013) at 1.
89. Sandra Gilbert & Susan Grubar, The Madwoman in the Attic: The Woman Writer and the Nineteenth-Century Literary Imagination, 2nd ed (Yale University Press, 2000) at 46.
90. Nicole Power, “The Problem of False Comparisons: Animal Welfare Discourse and the Anti-Choice Movement” (2016) 25 Dal J Leg Stud 105 at 121.
91. Allan Hutchinson, Toward an Informal Account of Legal Interpretation (Cambridge University Press, 2016) at 124.
92. Ronald Dworkin, Law’s Empire (Belknap Press, 1986).
93. While Jeremy Waldron provides the most obvious (and eponymous) example, see also: Michael Bryan, Private Law in Theory and Practice (Routledge-Cavendish, 2007) at 44. In his discussion of tort policy, Bryan argues that “managing disagreement” should not be reductively characterized as producing agreement. Instead, he submits that courts should earn public legitimacy to the point where citizens accept decisions with which they disagree.
94. Supra note 92 at 45.
95. 2013 MBCA 46 at para 109.
96. Ibid at para 142.
97. Dale Smith, “Agreement and Disagreement in Law” (2015) 28:1 Can JL & Jur 183 at 188.
98. Ibid.
99. See, e.g., supra note 60 at 16-18.
100. Since this is generally regarded as the ur-case for the modern principle, it serves as a familiar example, though nothing in particular turns on its factual matrix.
101. RSO 1980, c 137.
102. [1995] OJ No 586 at para 37.
103. [1992] 1 SCR 986.
104. Supra note 27.
105. Supra note 92 at 313-14.
106. Supra note 67 at 1.
107. Stanley Fish, “Working on the Chain Gang: Interpretation in Law and Literature” in Lenora Ledwon, ed, Law and Literature: Text and Theory (Garland, 1996) at 55.
108. Supra note 43.
109. Ibid at 58.