HomeTag Archives: statutory interpretation

Tag Archives: statutory interpretation

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 ...

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Unearthing Canadian Originalism: Reflections on my Conversation with Justice Stratas

Earlier this month, I had the true privilege of taking part in a discussion with Justice David Stratas of the Federal Court of Appeal, who is one of Canada’s most prominent jurists, on the subject of statutory and constitutional interpretation. The conversation was part of the Runnymede Society’s annual Law & Freedom Conference. Justice Stratas and I covered a lot ...

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Statutory Interpretation in Canadian Administrative Law

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of ...

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Why ARL is Seeking Leave to Intervene in the Standard of Review Appeals

On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows: The ...

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The Original “Living Tree”

One of the main arguments in Canada in favour of the “living tree” is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.”[1] The argument goes something like this: beginning with the famous ...

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Statutory Interpretation from the Stratasphere

Statutory interpretation presents problems of judicial subjectivity.[1] Though it is well-established that courts and advocates must look to the “text, context, and purpose” of a particular statutory provision to determine its meaning, little work has focused on what courts should do when purposes are stated at different levels of abstraction, or where the statute has multiple purposes which are seemingly ...

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Canon to the Right of Them, Canon to the Left of Them, Canon in Front of Them

The Ontario Court of Appeal’s recent decision in Schnarr v. Blue Mountain is significant for two reasons. First, it provides much needed clarification to the law of occupiers’ liability, and to waivers of liability in particular. Second,  it includes a detailed discussion of some of the principles of statutory interpretation. In this brief article, I discuss the Court of Appeal’s ...

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The Dark Art of Deference: Dubious Assumptions of Expertise on Home Statute Interpretation

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in ...

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The Perils of the Purposive Approach

The Supreme Court of Canada has repeatedly said that, in interpreting statutes, courts should undertake a unified textual, contextual and purposive approach. Under this approach “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 ...

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“Clear and Definitive”: The Offence of Bestiality and the Rules of Statutory Interpretation

Last month, the Supreme Court of Canada heard oral arguments in the case R. v. D.L.W.  The issue for appeal is not exactly garden variety. The Supreme Court has been asked to determine whether the offence of “bestiality” in the Criminal Code requires penetration.   Background The facts are not in dispute and are disturbing to say the least. The accused respondent ...

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