Legal Interpretation in Canada: Opening Up Legislative Language as a Means to Internationalisation

Abstract

The hypothesis at the centre of the paper is that the type of legal language favoured in legislation has a direct impact on the methodology of interpretation. The contemporary experience in Canada, with both civil law and common law traditions, is used to show that opening up legal language justifies greater judicial participation in the realisation and actualisation of the law. This problematics is then examined in relation to the interaction between international law and domestic judicial decision-making, in particular as regards the interpretation of the Canadian Charter of Rights and Freedoms. The argument is that the operationalisation of international normativity is done through the methodology of interpretation - the argument of contextual interpretation or by means of the presumption of conformity with international law (i.e. Charming Betsy rule) - and that its impact, in turn, depends to a large measure on the type of language used in the written legislative instrument, as the Canadian Charter illustrates inter alia.

Keywords: Legal Interpretation, Interlegality, International Law, Open Texture, Herbert Hart, Canadian Charter of Rights and Freedoms, Contextual Interpretation, Presumption of Conformity