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01/09/2021

Mark Mancini on Textualism and Purposivism in Canada
Michael Ramsey

At Double Aspect, Mark Mancini: The Top Statutory Interpretation Cases of 2020.  From the introduction:

To say that one believes in “purposive interpretation” has been the calling card of Canadian legal scholars for some time. Saying this, as some do, is radically incomplete. That is because competing schools of thought also look to purpose. Textualists, for example, look to the context in which words are used, as well as the purpose evident in those words (Scalia & Garner, at 20). To say that one is a purposivist might as well mean nothing, because everyone—even textualists—“routinely take[] purpose into account…” (Scalia & Garner, at 20).

Far from just being a lazy turn of phrase, though, the routine deployment of the term “purposivism” as a distinct school of thought blocks us from a clearer conversation about what should matter in statutory interpretation. For example, the real division between textualists and others is how purpose is sourced in statutory interpretation: textualists are wary of importing some abstract purpose to subvert a “close reading” of the text (see Scalia & Garner, at 20; see also the opinion of Côté Jin West Fraser), while others might source purpose differently. Saying that one is a “purposivist” also does not answer an important question: which purpose should count more in interpretation, since statutes often pursue multiple purposes at different levels of abstraction? (see, for an example of this, Rafilovich). These are real interpretive questions that are only now receiving any sort of sustained attention in the case law.

I should not hide my priors here. I too think that purpose is a relevant consideration in statutory interpretation, because it assists in the task of reading text to mean all it fairly encompasses. But purpose can be abused: indeed, “[t]he most destructive (and most alluring) feature of purposivism is its manipulability” (Scalia & Garner, 20). Because purposes can be stated in all sorts of ways, it is up to the judge, in many cases, to choose the most appropriate purpose to assist in interpreting the text. Sometimes, purpose can subvert text—which, of course, is problematic if the purpose is not sourced in text (McLachlin CJC’s opinion in West Fraser is a classic example of this).  Put simply: purpose informs text, it does not supplant it (Placer Dome, at para 23).

For that reason, we must come to sound and principled ways of sourcing purpose, rather than simply stating that we look to purpose. It is this theme that defined, in my view, the task for judicial interpreters in 2020. The following three cases are, to my mind, exemplars of dealing with some of these deeper questions in statutory interpretation. Rather than simply reciting the Rizzo & Rizzo formula and taking an “anything goes” approach to interpretation, these cases delve deeper and answer some knotty interpretive questions in a way that furthers a discussion about statutory interpretation in Canada—particularly with reference to the so-called “purposive” approach. Because these cases start a conversation on these issues (and because I happen to agree with the methodology employed by the judges writing the lead opinions in each case), these are the top statutory interpretation cases of 2020, in no particular order ...