HomeTag Archives: textualism

Tag Archives: textualism

A Matter of Deductions: Resolving Uncertainty in MVA Litigation

As any Ontario personal injury lawyer knows, the common law of damages has been modified significantly in the context of motor vehicle accidents, to the benefit of defendants and their insurers. The legislature has enacted various measures to limit the ability of plaintiffs to recover in tort. It has done so for two reasons: 1) to help limit the number ...

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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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Why the Appeal to Charter Values Denies the Rule of Law

Barry W. Bussey is Director Legal Affairs, Canadian Council of Christian Charities.  He blogs at: lawandreligion.org. The following is an excerpt of his article, “The Charter is Not a Blueprint for Moral Conformity,” (2017) 79 S.C.L.R.(2d) 367, 393-400   It may be trite to say that a liberal democracy must respect the rule of law.[1] Lord Bingham described the core ...

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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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Vriend v Alberta Revisited: A Road to Constitutional or Judicial Supremacy?

The Supreme Court of Canada  has on numerous occasions insisted upon the primacy of the written text of the Constitution.[1] In the Reference Re Secession of Quebec, the Supreme Court explained that the recognition of underlying constitutional principles “could not be taken as an invitation to dispense with the written text of the Constitution”. It noted that “[a] written constitution ...

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Reaffirming the Case for Constraint: A Reply to Léonid Sirota

Leonid Sirota has written two excellent articles in response to my essay, “The Case for a Constrained Approach to Section 7.” I am grateful for these pieces, firstly, because Mr. Sirota takes the view that my position is “largely misguided,” meaning that he endorses at least some of my views (though perhaps I am channelling Lloyd Christmas a bit on ...

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How to Do Constitutional Adjudication: A Response to Asher Honickman’s Take on the Judicial Role

This is the secondof two articles Mr. Sirota has written in response to Asher Honickman’s essay entitled “The Case for a Constrained Approach to Section 7.”  Mr. Honickman’s reply to follow.  This article was originally published at Double Aspect, Mr. Sirota’s award winning blog.   As I mentioned in my previous post, I would like to respond to a number of points ...

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The Case for a Constrained Approach to Section 7

This article will appear in the upcoming edition of Law Matters, a publication of the Canadian Bar Association Introduction The consensus in the academic community when it comes to interpreting the Charter is that more is better. There is little debate that the Charter is a “living tree,” such that its meaning must “evolve” over time so that it “accommodates ...

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Reviving Originalism in Canada

Originalism posits that the content of a constitution is determined partly by the intentions and purposes of its founders and the understandings of the founding generation. This essay calls for the (re)introduction of originalism, which has an important place in American politics, legal academia, and courts,1 into Canadian constitutional law. First, I explain the importance of the methodology of constitutional ...

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Justice Rothstein Casts Doubt on the Living Tree

I recently learned that, back in October, recently-retired Justice Marshall Rothstein gave a speech at the University of Saskatchewan, in which he criticized the “living tree” doctrine, which holds that the meaning of the Constitution may evolve over time – in most cases, beyond what the text can reasonably bear.  The original living tree metaphor comes from the Privy Council’s decision in Edwards ...

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