Statutory Interpretation in the Supreme Court of Canada
54 Pages Posted: 30 Jan 2016
Date Written: 1999
This article explores the discrepancy between the way the Supreme Court of Canada does statutory interpretation and the way it explains what it does. The Court currently relies on two theories of interpretation: textualism (often referred to as the plain meaning rule), and intentionalism (embodied in Dreidger's modern principle).
The author is critical of both theories. She relies on studies in psycholinguistics to show that the plain meaning rule depends on false assumptions about language and communication. She claims that, in practice, reliance on the plain meaning rule is inconsistent and arbitrary. The author approves of intentionalism as far as it goes, but points out that knowing the intention of the legislature is often not enough to solve statutory interpretation problems. In her view, textualism and intentionalism are inadequate theories of interpretation because they are incomplete and encourage the courts to hide, rather than explain, what they are doing.
The author endorses a theory of interpretation grounded in pragmatism which emphasizes the importance of the text and of legislative intention but also acknowledges the role played by judge made principles, presumptions and values. A pragmatic approach is preferred because, instead of trying to resolve interpretation disputes, it invites judges to justify their exercise of discretion through analysis, argument and appeal to legal norms.
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