Legal Certainty, Legal Coherence and Judicial Politics
There is an interesting piece today in the Globe and Mail — Canada’s paper of record — about fundamental disagreement between the judges of the Supreme Court of Canada about the interpretation of the Charter. The nine judges are “more divided than ever” on fundamental legal questions. There is certainly a divide there, but it runs deeper than the Charter. Indeed, it is not a Canada-only phenomenon. I have been considering this issue in my work on the presumption of constitutionality (see here, here and here). To me, lawyers generally fall into one of two camps (or somewhere between the two): Type A and Type B. In what follows, I explain the characteristics of the two camps and identify areas of interpretation where the characteristics matter.
Type As believe that following the authentic meaning of statutes is fundamental and, as such, seek to give effect to legislative intent as manifested in statutory language understood in its whole context and with due regard to the purposes revealed by the text. For Type As, constitutions and statutes owe their normative force to the authoritative status of the bodies which enacted them. In addition, Type As tend to conceive of the legal system as a logically ordered hierarchical system composed of clear interpretive rules: if the statute is ‘clear’, then its constitutionality must be assessed, with a declaration of invalidity (and, potentially, a subsequent legislative response) to follow. In general, Type As place a premium on legal certainty and thus seek to ensure that interpretation is conducted by applying a limited set of rules.
Type Bs, by contrast, believe that statutory language must be woven into the fabric of the constitutional order, in a way which contributes to the ongoing creation and maintenance of a coherent pattern in the common law tradition. The capacity of a constitutional or statutory provision to bind depends on there being good reasons to justify the provision, by reference to its place in a coherent normative pattern: it does not depend on its enactment by an authoritative body. For Type Bs, the legal system is not a neatly ordered collection of rules: recognizing that language is open textured leads them to consider that interpretation cannot be conducted by applying a limited set of hierarchical rules but must instead be responsive to context, which is eminently variable. As such, interpretation is infused, if the circumstances permit, by values drawn from constitutional norms (and, for that matter, the common law). In general, Type Bs favour legal coherence over legal certainty.
A resulting difficulty is fundamental divergence as to the methodological approach to statutory interpretation. The divergence is implicit in the differing interpretations of the scope of the “presumption of constitutionally conforming interpretation”. On one view, what matters is infusing the statute book with Charter values (and, one might also add, federalism values) in the search for legal coherence. On another view, what matters is the presence of statutory ambiguity as a “prerequisite” for a court to engage in constitutionally conforming interpretation, and in the absence of ambiguity to proceed to an analysis of whether the legislation properly interpreted complies with the Charter: an analysis based fundamentally on neatly ordered hierarchical rules.
At root, this is a disagreement about legal interpretation. On the one hand, there is the Type A view that the goal of the interpreter is to discover the true meaning of the words used in legislation:
Absent a successful argument that legislation is inconsistent with the Constitution, judges—like everyone else—are bound by the legislation. They must take it as it is. They must not insert into it the meaning they want. They must discern and apply its authentic meaning, nothing else.
On the other hand, one finds the Type B view:
By interpreting statutes on the assumption that the legislature intends to respect basic legal values, the court not only protects these values but effectively requires the government and the legislature to explain why those values should construed differently, or even disregarded altogether. So, even in a legal order without a justiciable bill of rights, courts can go a long way towards protecting basic legal values, including basic individual rights, by being slow to interpret legislation as infringing those values, indeed by insisting on clear statutory statements of the legislature’s intention to do so.
These disagreements surface regularly on the Supreme Court of Canada. In TELUS Communications Inc. v. Wellman, the majority relied on “a careful reading of the statute, considered in its full context” to limit judicial discretion to refuse to stay private-law claims addressed by an arbitration agreement, but in dissenting reasons, Abella and Karakatsanis JJ decried a “return of textualism” and preferred the view that “words matter, policy objectives matter, and consequences matter”.
A similar dispute occurred in Michel v Graydon. Here, the question was whether a court can retroactively vary an order for child support if the beneficiary is not a “child” at the time of the application. For the majority, Brown J held that s. 152 of the Family Law Act, authorizes such retroactive variation. In her concurring reasons, Martin J drew on “wider legislative purposes, societal implications, and actual impacts”. Martin J’s methodology therefore involved “weav[ing] the fundamental principles of child support law into the interpretation” of the relevant statutory provisions. Her “fair, large and liberal reading of s. 152 of the Family Law Act” led to the conclusion that courts “may hear variation applications for historical child support”.
Conformity with international law has led to similar divides, in constitutional and statutory interpretation. In Quebec (Attorney General) v. 9147-0732 Québec inc., the members of the Supreme Court debated the relevance of international law to the interpretation of the Charter: at particular issue was whether a corporation could claim the right against the imposition of “cruel and unusual treatment or punishment” protected by s. 12. Unanimously, the Court found that the corporation could not rely on s. 12. But there was sharp methodological divergence. The majority held that reference could only be made to international law to support or confirm an interpretation of the Charter reached on application of the Court’s principles of Charter interpretation; in this process, the analysis must be “dominated” by these “traditional” principles. In dissent, by contrast, Abella J thoroughly canvassed sources of international law – seeking, in essence, to weave s. 12 of the Charter into a multi-national tapestry of human rights law – and warned against “narrowing the significance of international and comparative sources”.
These two disagreements are relatively recent, but they have a respectable pedigree. Perhaps the best-known Canadian example is Baker v. Canada (Minister of Citizenship and Immigration). One of the issues here was whether the best interests of children should have been taken into account by an immigration officer in determining Ms. Baker’s application for a waiver of immigration rules on humanitarian and compassionate grounds. For the majority, L’Heureux-Dubé J accepted that the Convention on the Rights of the Child could not have direct application in Canada because the treaty had never been implemented legislatively. Nonetheless, she held, “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. Accordingly, the values are “central” to determining whether the officer’s decision was lawful. Iacobucci J disagreed:
…the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
Again, the fundamental point of distinction is between lawyers in different camps: Type As seeing legislation as an authentic expression of sovereign will to which judges are bound to give effect (only considering international law in the case of a statutory ambiguity); versus Type Bs viewing legislation and international agreements as instantiations of moral principles which exist autonomously of statute.
Lurking in many of these cases is the idea that recourse to “values” – be they international, constitutional or something else entirely – is dangerous because it inherently increases judicial discretion and augments uncertainty. What is a Charter value after all? Any critique based on this idea is unlikely to gain much traction with Type Bs, however, as they are committed to providing the most plausible interpretation of a statutory or constitutional provision given the “background scheme of political morality”. And they can always respond that the values are given expression by their application in particular cases, where they might be balanced against statutory text and purpose.
Ultimately, unless Canadian lawyers identify a means of arbitrating
between Type A lawyers, with their laserlike focus on legal certainty, and Type
B lawyers, with their heartfelt desire for legal coherence, the debates about
constitutionally conforming interpretation will remain intractable. The
disagreement is, fundamentally, about the nature of legal interpretation and
does not admit of an easy resolution.
 R. v. Clarke, 2014 SCC 28,  1 SCR 612, at para. 15, per Abella J.
 See also Andrew S Butler, “A Presumption of Statutory Conformity with the Charter” (1993) 19 Queen’s LJ 209, at p. 225.
 Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252,  4 FCR 174, at para. 50, per Stratas JA.
 See also Hamish Stewart, “A Defence of Constitutionalized Interpretation” (2016) 36 NJCL 195, at p. 198. See generally Stéphane Beaulac, “Constitutional Interpretation: On Issues of Ontology and of Interlegality” in Peter Oliver, Patrick Macklem and Nathalie des Rosiers eds., The Oxford Handbook on the Canadian Constitution (Oxford University Press, Oxford, 2017).
 2019 SCC 19,  2 SCR 144, at para 47, per Moldaver J.
 Ibid., at para 109.
 Ibid., at para 108.
 2020 SCC 24.
 SBC 2011, c 25.
 2020 SCC 24, at para 40.
 Ibid., at para 71.
 Ibid., at para 105.
 2020 SCC 32.
 Ibid., at para. 28.
 Ibid., at para. 47.
 Ibid., at para. 102.
  2 SCR 817.
 Ibid., at para. 70.
 Ibid., at para. 71.
 Ibid., at para. 80.
 See further David Dyzenhaus, “Baker: the Unity of Public Law?” in David Dyzenhaus ed., The Unity of Public Law (Hart, Oxford, 2004), p. 1, at pp. 3-5.
 See e.g. Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 67 Supreme Court Law Review (2d) 361.
 Andrew S Butler, “A Presumption of Statutory Conformity with the Charter” (1993) 19 Queen’s LJ 209, at p. 215.
 Cf Steven J Burton, “Normative Legal Theories: The Case for Pluralism and Balancing” (2013) 98 Iowa Law Review 535, at p. 551.
This content has been updated on January 15, 2022 at 21:49.