Textualism (the Plain Meaning or Literal Rule)

Textualism (aka literalism) is the theory that underlies the plain meaning or literal rule, which Lamer CJ defines as follows in Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1028 at 1049-50:

[T]he first task of a court construing a statutory provision is to consider the meaning of its words in the context of the statute as a whole. If the meaning of the words when they are considered in this context is clear, there is no need for further interpretation. The basis for this general rule is that when such a plain meaning can be identified this meaning can ordinarily be said to reflect the legislature’s intention. [. . .] [T]he best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what it says, when this can be clearly ascertained.

Ruth Sullivan, however, notes that judges may differ concerning the plain meaning of a text. There also isn’t a precise legal definition of ‘plain meaning,’ which usually comes down to whatever is ‘plain’ to the judge(s) (2005, p. 40).

“Plain meaning” is a legal term of art that should not be confused with the meaning in Queen’s English. In fact, courts aren’t bound by history, the rules of grammar or dictionaries for statutory interpretation. The Persons Case, for example, asks whether the Constitution’s use of the term “persons” includes women. Historically, it didn’t. However, the Supreme Court interpreted the Constitution as a “living tree” whose meaning can change as it evolves. See Edwards v AG Canada [1930] 1 DLR 98 (JCPC). Tiersma and Solan observe that North American judges don’t always consider language expert evidence to interpret legislation. Some judges admit the testimony of language experts while others believe it is their exclusive role to interpret legislation (2002, p. 234). It is true, however, that language experts are no help to interpret legal terms of art.

Intentionalism

Intentionalism is the theory that the meaning of a statute is determined by the “legislator’s intent,” that is, the purpose the people who enacted the law meant it to achieve. Elmer Driedger (p. 87) distinguishes between four types of intention, which can be inferred from the words or actions of the legislator(s) or legislation, viz.

    • express
    • implied
    • presumed
    • declared

Justice McLachlin explains the intentionalist position in R v McIntosh [1995] 1 SCR 686 at para. 59:

The point of departure for interpretation is not the “plain meaning” of the words, but the intention of the legislature. The classic statement of the “plain meaning” rule, in the Sussex Peerage Case [. . .] makes this clear: “the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act” [. . .] As Lamer C.J. put it in R. v. Z.(D.A.) [. . .], “the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation.” The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator. If the words admit of only one meaning, they may indeed “best declare the intention of the lawgiver” as suggested in the Sussex Peerage Case [. . .], but even here it is the intention, and not the “plain meaning”, which is conclusive.

In short, intentionalism does not depart from the plain meaning except where it defeats the purpose of the legislation.

Ruth Sullivan (1999) notes that the key distinction between literalists and intentionalists is that literalists see interpretation as amendment, whereas intentionalists see interpretation as ensuring that legislation conforms to the legislator’s intent, and therefore part of legislation. For instance, in McIntosh  (op. cit.) Justice McLachlin argues that the court should correct an error in the legislation to bring it in line with its obvious intention. The intention is gleaned from reading the legislation and studying its history, such as parliamentary debates (the Hansard) and the mischief it is supposed to correct (according to the mischief rule).

Pragmatism

Pragmatists hold an interpretation to be correct to the extent that it solves an interpretation dispute in an appropriate way. According to Ruth Sullivan (1999), an appropriate solution must:

    • conform to the legislative text
    • carry out the intention of the legislature
    • produce an outcome that is just and reasonable according to the public

The better interpretation better satisfies these criteria. An example of a pragmatist legal scholar is Paul Michel who writes:

[C]ritical pragmatism is concerned to get the job done, not to equivocate or temporize. Seen from this perspective, the essential problem of statutory intepretation is to apply a general, abstract statutory provision to a concrete factual situation. Circumstances often arise which the enacting legislation did not or could not have contemplated. Interpreters, on this account, must do what works best, by reference to the “web of beliefs” that surround a statute (1996, p. 731).

Sullivan observes there are no consistent proponents of the pragmatic approach on the Supreme Court of Canada, although the Modern Approach bears some similarities to this approach.

The Modern Approach (One Rule to Rule Them All)

The Modern Contextual Approach, also known as the Modern Approach, consists of interpreting legislation according to its text, context and pretext (or purpose), that is, according to both the letter and spirit of the law. In 1983, Elmer Driedger wrote (p. 87):

Today there is only one principle or approach, namely, 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 of Parliament.

Geoff Hall explains that in the late 90’s the Supreme Court settled on a single method of statutory interpretation, which is meant to supplant the plain meaning rule. In Manulife Bank of Canada v Conlin, [1996] 3 SCR 415, Justice L’Heureux-Dubé introduced the Modern Approach based on the 3rd ed. of Driedger’s Construction of Statutes:

There is only one rule in modern interpretation, namely the courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one which can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

The Modern Approach is a two-step approach, which asks two questions:

1. Does Context Require a Departure from the Plain Meaning?

Departure from the plain meaning is possible if the context requires. The plain meaning rule thus acts as a “methodological estoppel” that stops the analysis at the outset if there’s no reason to depart from the plain meaning.

2. If so, Does the Interpretation Satisfy the Manulife Bank Criteria?

The next step is to ask if the proposed interpretation is “appropriate,” which depends on whether it satisfies the criteria set out in Manulife Bank (op. cit.), viz. the proposed interpretation:

    • plausibly complies with the legislation
    • effectively promotes the purpose of the legislation
    • is acceptable insomuch as the outcome is reasonable and just

Critiques of the Modern Approach

While the Modern Approach may make statutory interpretation less ‘literal’ (whatever that means), it doesn’t necessarily make it more predictable. For instance, Stéphane Beaulac and Pierre-André Côté argue that the Modern Approach is basically just a new way for judges to justify creative interpretations of law, not a way of predicting how judges will actually interpret the law (cit. Hall, 1998, p. 52).

This recalls the observation of Sullivan and Llewellyn (2005):

these doctrines do not fully or accurately reflect what judges must do to resolve interpretation disputes, they generate a reassuring rhetoric. If we can’t have simple messages and certain outcomes, reassuring rhetoric is the next best thing.

Principles of Bilingual Interpretation

Equal Authority

The rule of equal authority says that laws published in both official languages are equally authoritative. The rule of equal authority stems from s. 18 of the Charter, which states that “both language versions are equally authoritative.” S. 133 of the Constitution Act, 1867 also says:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

While other provincial legislations also establish the rule of equal authority, the Constitution (notably ss. 16 to 22 of the Charter) only requires the Parliament of Canada and the legislative assembly of New Brunswick to publish laws in both official languages. Provincial legislatures have the authority not to publish laws in both official languages.

Bilingual Court Proceedings

The Charter doesn’t require any province besides New Brunswick to provide court proceedings in both official languages.

Process of Bilingual Interpretation

Bilingual interpretation is a method based on R v Daoust[2004] 1 SCR 217 at paras. 27-31. Hall and Bastarache describe it as a two-step process. In the first step, the court finds an interpretation of the legislation that is common to both French and English versions. In the second step, it tests this interpretation against the context and purpose of the legislation using the Modern Approach.

1. Identify Inconsistency or Ambiguity

The first step seeks to find an inconsistency or ambiguity between the two versions of the legislation. (Ambiguity means the legislation is “reasonably capable of more than one meaning.”) Bastarache explains:

(i) If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions. The common meaning is the version that is plain and not ambiguous. It must be borne that some principles of interpretation may only be applied in cases where there is an ambiguity in an enactment. Other principles of interpretation—such as the strict construction of penal statutes and the ‘Charter values’ presumption—only receive application where there is ambiguity as to the meaning of a provision.

(ii) If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version. For instance, if one version has a broader meaning than the other, then the shared meaning is the narrower of the two.

2. Identify the Common or Dominant Meaning

The second step is to identify a common or dominant meaning. A common meaning refers to a meaning which is common to the English and French versions of the legislation. The dominant meaning, on the other hand, refers to the meaning that best satisfies the criteria of the Modern Approach.

Hall says this approach is ‘confirmatory’ for two reasons, viz.

    • it’s used to verify an interpretation rather than come up with one and
    • it applies only to legislation that has been enacted in English and French

Special Application to the Constitution and Other Legal Texts

Bastarache explains that the method of bilingual interpretation in Daoust (op. cit.) doesn’t apply to certain cases, such as the interpretation of the Constitution, unofficial translations of legal texts and their translations into non-official languages. The Constitution has not been completely translated and most questions regarding the wording of the Charter have been resolved. Moreover, a distinctive approach is needed to interpret the Constitution, since it’s an organic instrument.

If a legal text is published in both official languages, then both texts are legally significant. However, certain legal texts may be more or less precise than others. For instance, it’s important to check which version of a judgment is translated. Since judgments express more or less precise legal reasoning, unlike statutes which are supposed to express precise rules, inconsistent expressions will play a less significant role in the interpretation of judgments than statutes.

References

Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87.

Geoff Hall, “Statutory Interpretation in the Supreme Court of Canada: The Triumph of a Common Law Methodology” (1998) 21 Advocates Quarterly 38 at 52.

Paul Michel, “Just do It! Eskridge’s Critical Pragmatic Theory of Statutory Interpretation” (1996) 41 McGill L J 713 at 731.

Peter Tiersma and Lawrence Solan, “The Linguist on the Witness Stand: Forensic Linguistics in American Courts” (June 2002) 78:2 Language 221 at 234.

Ruth Sullivan, “Statutory Interpretation in the Supreme Court of Canada” (1999) 30:2 OLR.

Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation” (Legal Drafting, 2005).