Constitutional Interpretation: On Issues of Ontology and of Interlegality
N. Des Rosiers P. Macklem & P. Oliver (eds.), Oxford Handbook of the Canadian Constitution, Oxford: Oxford University Press, 2017, p. 867
25 Pages Posted: 12 May 2017 Last revised: 29 Oct 2017
Date Written: 2016
The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law – i.e. interlegality – also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.
From a theoretical viewpoint, two contemporary dimensions of constitutional interpretation are of particular interest in Canada. First is a purely ontological issue: whether or not, by its nature, the interpretation of a constitution is fundamentally different than legal interpretation or, more specifically, statutory interpretation. The second is the problematics of interlegality, or the domestic use of international law, which has caused much ink to flow as of late, here and elsewhere in liberal democracies.
Keywords: interpretative methodology, construction of constitutions and statutes, purposive interpretation, Driedger’s modern principle, international/national divide, interlegality, domestic use of international law, operationalization of international normativity
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