(a.) “Today there is only one principle or approach…”

(b.) Interpretation in a Post-Textual Landscape; Or, What do Definitions Mean?

Perhaps the most striking aspect of the clause that begins the modern principle lies in its evocation of neutrality and truth. The authoritative thrust of “only one principle or approach” is both overt and disingenuous. At first glance, one wonders whether an approach that depends on pure subjectivity can be said to apply uniformly, but such an inquiry is largely semantic. ^{Footnote 21} More importantly, while it is undeniably odd that judges introduce a singular principle and proceed to reach irreconcilable conclusions, there is a far more insidious function of this statement that begins to elucidate the implications of a “correct” methodology for interpreting legal texts.

In the absence of judicial commentary on this prefatory clause, it is instructive to consider the rationale behind its continued use. Certainly, the interpretive framework of the modern principle has nothing to do with its status as the “only approach”; unlike the remainder of the principle, these words do not direct—they justify. At this point, it is important to recall that the case law in this area is consistently at pains to differentiate between the “discovery” of textual meaning—i.e., the valid exercise that courts undertake to give effect to democratically enacted legislation—and “construction,” which evokes tyrannical notions of so-called judicial legislation. ^{Footnote 22}

If, as we have seen, textual interpretation is necessarily subjective, the notion that a clear legal meaning resides in a text, waiting to be found, is incoherent. While this is a commonplace observation in various other disciplines, the impossibility of objective exegesis has not yet taken hold in Canadian jurisprudence. It has been argued that the modern principle exists predominantly for rhetorical effect; it justifies the conclusion that the decision-maker prefers. ^{Footnote 23} While this will be discussed at length below, it is important to note that this legitimizing function is necessarily overdetermined given the impossibility of its mandate. The modern principle does not simply bolster the credibility of judicial interpretation; rather, it obscures the fact that this methodology is illusory. ^{Footnote 24} It is productive, then, to consider how the introductory clause frames the modern principle as axiomatically legitimate and appropriately disinterested.

While the persuasive effect of positing “only one” interpretive approach is largely intuitive, these words embody a subtle—but sophisticated—appeal to naturalization and historicization. The aphoristic “only one principle” is taken up by courts post-critical engagement; this phrase is never omitted from Driedger’s formulation, but judges invariably accept that “only one” principle exists. Ostensibly, there is some unstated justification for such a strong endorsement; we know, however, that the modern principle was composed as a summation of relevant case law and, while Driedger is undoubtedly a learned authority on statutory interpretation, courts have not generally made even that modest claim for the modern principle’s doctrinal monopoly. Instead, the choice to begin quoting with this memorable introduction simply distracts from the stark absence of principled vindication.

The temporal aspect of this claim—i.e., “[t]oday”—suggests an implicit trajectory, reminiscent of Guy Debord’s conception of “[t]he paradox which consists of making the meaning of all reality depend on its historical completion, and at the same time of revealing this meaning as it makes itself the completion of history.” ^{Footnote 25} In other words, this interpretive mandate makes an implicit claim to the metanarrative of history: Our current epoch is the culmination of benevolent historical forces that have led us to this inevitable and legitimate state of knowledge. ^{Footnote 26} By importing the notion of progress, the authoritative voice of legal doctrine presents itself as self-evidently preferable to relatively undeveloped alternatives.

Understood this way, the modern principle functions as a self-perpetuating trope of legitimization. The prefatory clause is instructive in its refusal to engage with why there is only “one principle” for something so replete with subjectivity. In a recent paper, Noam Chomsky makes an apposite remark: “A broad tendency in human development seeks to identify structures of hierarchy, authority and domination … and then subject them to a very reasonable challenge: Justify yourself.” ^{Footnote 27} In contrast, the introductory words of the modern principle serve as a form of analytical misdirection. Never mind, it suggests, that the project of textual interpretation is demonstrably idiosyncratic; ^{Footnote 28} “today,” and, indeed, for several decades, “there is only one principle or approach” ^{Footnote 29} —but this formal consistency eschews the uncomfortable recognition that interpretive claims are necessarily external to the text.

Turning, then, to the implications of this subordinated notion of subjectivity, an important threshold question emerges: What does it mean for judges to assert definitional claims with the rhetorical force of objectivity? As alluded to earlier, the judicial expression of textual meaning is a necessarily ideological proposition. Statutory interpretation, after all, “is to discern meaning without many of the aids at our disposal in ordinary discourse.” ^{Footnote 30} The artificiality of our sign/signified relationship is omnipresent, but exacerbated in the “hard cases” that animate this area of the law. ^{Footnote 31} Accordingly, the analytical space between legal texts and court-sanctioned meaning is both ill-defined and centrally important.

When decision-makers move from the impugned provision to its ultimate meaning, they must account for something that is external to the text. This is not, in itself, an unacknowledged feature; in parsing the tension between the traditional textualist approach and the burgeoning awareness of competing extra-textual values, Sullivan observes that “judges are concerned by violations of rationality, coherence, fairness and other legal norms.” ^{Footnote 32} While these are, of course, normative criteria, the relevant case law does not acknowledge the majoritarian resonance of, for instance, “rationality.” ^{Footnote 33} Instead, statutory interpretation is invariably conceptualized as the search for meaning that predates interpretation—the impugned definition is, on this view, always already in the text itself. My opposition to this reading is not simply that it ignores the vast majority of contemporary theory (though, for most contemporary thinkers, it would be seen as laughably naive to assert inherent textual meaning); rather, the current approach is objectionable because it refuses to engage with the ideological components of meaning.

For nearly every interpretive dispute, there are powerful considerations militating in opposite directions. In R v Tse, for instance, the Supreme Court employed the modern principle toward a determination of the constitutional validity of wiretapping. ^{Footnote 34} In construing the relevant Criminal Code provision, the Court explicitly weighed the conflicting hallmarks of privacy and public security; the eventual holding, however, was decided on the basis of latent bias in interpretive doctrine. ^{Footnote 35} Whether or not this decision constitutes a principled balancing of important ideals—an issue that extends well beyond the scope of this paper—there is a significant analytical elision embodied in this form of reasoning. The citation of Driedger does nothing to engage with the political components of the holding. This is the danger and seductiveness of “only one principle”: An ostensibly neutral method not only legitimizes ideological conclusions—it effectively immunizes them from sustained critique.

Under the current application of the modern principle, judges are imposing legal change without expressly reconciling the competing interests at play. The act of defining our textual laws necessarily involves making a claim to the ascendancy of one reading over others; the democratically elected legislature can render law in text but cannot infuse that text with a universal meaning. Instead, judges are called upon to navigate the political space of definitional claims and resolve the attendant disputes. This space, properly construed, is the site of ideological conflict—which is not resolved by the words Driedger wrote several decades ago. Through its silence, the relevant case law allows this prefatory clause to implicitly legitimize the following interpretive stipulations. As we have seen, “only one principle” cannot be defended in light of semiotic uncertainty, but these words are instructive in spite of their inaccuracy. This rhetoric underscores the macrocosmic function of the current law of statutory interpretation; as we turn to consider the discrete mandates in the modern principle, it is important to remain mindful of the self-perpetuating legitimation at play, which obscures judicial reasoning while it asserts fairness and neutrality.

(c.) “…the words of an Act are to be read in their entire context…”

The first explicit directive in the modern principle is essentially meaningless. While subsequent jurisprudence has asserted definitional clarity, the decision to read an impugned provision in light of, say, the entire statutory instrument or Hansard debates cannot be supported on the basis of this clause alone. ^{Footnote 36} The “entire context” of legislation is, after all, virtually limitless; judges have, in turn, circumscribed this mandate but have done so with characteristic silence. While there is an undeniable ideological component to the ensuing analytical partition—this judicial conception of the “entire context” has not yet, for instance, engaged disproportionate legislative impacts on marginalized peoples—there is also a degree of necessity in their task. At a certain point, the sociolegal context of an enactment will exceed the interpretive relevance of any given dispute. There is, however, a marked lack of critical scrutiny surrounding the considerable discretion involved in, quite literally, defining the applicable context in the face of textual ambiguity. In this way, the clause under consideration performs an immunizing function; the courts assign meaning to this broad mandate but act as though their definition is somehow implicit in the words of Driedger’s observation.

Most commonly, the “entire context” of a provision includes legislative history—both in terms of political debates and relevant amendments. ^{Footnote 37} By privileging these textual aspects, statutory instruments are framed as self-enclosed vessels of meaning. At the outset, it is important to note that this ostensible deference to the legislators advances two interdependent ideas: First, that legislative intent is possible and, second, that it will manifest in the historical lineage of each statutory instrument. On this reading, law cannot be enacted without the benefit of observable motive from our elected representatives. ^{Footnote 38}

Much has, of course, been written concerning the unique formal character of statutory instruments. Perhaps most notably, Jeremy Waldron asserts—both in his famous Law and Disagreement ^{Footnote 39} and several ancillary texts ^{Footnote 40} —that law commands respect based on the deliberate, dialogic compromise embodied in our legislative texts. ^{Footnote 41} For our purposes, this insight suggests that authorial intent cannot be understood as a singular assignation of meaning but rather as the resolution of conflicting interests rendered in language. As a necessary implication, Waldron posits the observability of disagreement—and, more importantly, compromise—in legislative texts.

If we accept this contention that the ideal statutory text is imbued with political conflict, there is still some question regarding the interpretive project. The judicial treatment of the “entire context”—that it involves “a review of legislative evolution and history” ^{Footnote 42} —presumes the judicial capacity to discern this unique form of intent. On this point, the work of William Eskridge is particularly apposite. He observes that, “[g]iven the epistemic, vote-counting, and aggregation problems with any inquiry focusing on the precise intentions of legislators, what intentionalists usually mean by the term is conventional rather than actual legislative intent.” ^{Footnote 43} This qualification is, of course, necessary; no one can reasonably expect judges to discern the actual intent of legislators in the course of rendering a decision. Instead, we accept a construction of intent that is “created by agents trying to push legislation through the [House].” ^{Footnote 44} We settle on a necessary fiction.

As a result, the object of interpretation changes. While the judicial treatment of the mandated “entire context” posits the elucidation of idealized democratic intent, there is a complete absence of engagement with the epistemic impossibility of this exercise. Despite the burgeoning recognition that courts interpret statutes in the necessary subjectivity of our constructed language, this observation has been inadequately directed at lawmakers. One of the foundational tenets of modern textual theory is the impossibility of understanding how language signifies to other people, and, if we cannot presume to understand how the legislators interpret a bill, we can hardly claim knowledge of their creative intent. Unfortunately, the jurisprudence surrounding this aspect of the modern principle ignores this challenge.

The case of Imasco Minerals Inc v Vonk ^{Footnote 45} exemplifies the disconnect between textual subjectivism and claims to legislative intent. In the process of determining whether a provision of the Mining Right of Way Act ^{Footnote 46} included private roads, the Court presumed intent from the words of the Act, read in concert with the Hansard debates. In response to the losing party’s submissions, it was held that legislative silence indicated an intentional omission; if the impugned road was covered under the Act, “the Legislature could have easily made that clear.” ^{Footnote 47} This typifies another important aspect of judicially constructed intent: namely, that both words and silences constitute the outer limits of an internally coherent legal plan. The fact that ambiguities and omissions are often characterized as convenient political mechanisms for avoiding controversy is essentially ignored. ^{Footnote 48}

While any interpretive work necessarily begins with the reader’s claim to definitional meaning, the judicial treatment of statutory context is marked by both (requisite) subjectivity and heightened artificiality. With the invocation of context, there is an implicit shift from legislative text as the result of our lawmaking process to a text (which can include relevant debates and amendments) that contains its own history. The process of reading a statute in its “entire context” presumes a historical progression toward a coherent, defined end. ^{Footnote 49} This preliminary move is charged with idiosyncratic choice—but, crucially, without accountability. By engaging with the dominant approach to the “entire context,” the layers of arbitrary construction become manifest. Statutory interpretation that insists on both coherent legislative intent and the discoverability of the same has entered into a constructed language game, which can be productively unpacked using the work of the poststructuralists.

This concept—the “language game”—requires some discussion of Ludwig Wittgenstein’s famous coining of the phrase. While this may appear as a digression from the poststructural discussion in progress, his insights offer a valuable starting point for navigating the textual system of legislative intent. For Wittgenstein, the language game is a form of linguistic primitivism; as he put it in The Blue Book, these are

The reductive tendency to distil and presume to discover intent in a statutory instrument embodies this form of analytical helpfulness. Unlike the complex, political nature of lawmakers’ inner states and motivations, the courts have imposed a relatively simple interpretive regime. Generally, these linguistic structures demonstrate a “craving for generality,” which erroneously assume that “the meaning of a word is an image, or a thing correlated to the word.” ^{Footnote 51}

This is perhaps most clearly set out in Montréal (City) v 2952-1366 Québec Inc, ^{Footnote 52} which is frequently cited in cases that turn heavily on the “entire context” stipulated in the modern principle. In determining the content of a noise pollution by-law, the Supreme Court held that “[t]he context of legislation involves a number of factors. The overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose.” ^{Footnote 53} The suggestion that purpose and history are mutually informing is persuasive at first glance. Even if we refute the possibility of fixed textual meaning, the notion of a legislator working toward a defined purpose—which, presumably, would manifest in the historical account of enactment—is at least theoretically possible. An approach to statutory interpretation that begins with a claim to legislative purpose and organizes the ensuing historical analysis around this point is likely to render justifiable conclusions. ^{Footnote 54} In contrast, this step in the modern principle typically locates intent within a set of texts and then works backwards to the purpose. In the end, the finding of legislative intent approximates the mise-en-abîme postulated in postmodern thought: We understand the text in light of the purpose, which we presume on the basis of the text.

The implications of this self-enclosed language game are important for an understanding of how our current interpretive regime disappears the inherent subjectivity of interpretation. The application of the modern principle requires an assertion of self; the decision-maker must become an “I-subject,” to use Lacan’s phrase, within a system of textual signification. As a result, “the subject can only take up a relatively stable discursive subject-position within the Symbolic order.” ^{Footnote 55} Given that, as Wittgenstein points out, this order will be marked by a set of reductive rules about how words signify, the outcome of examining the “entire context” is largely predetermined by these latent guidelines that animate the relevant symbolic order. In this way, the process of “doing law can be seen as a highly rationalized … enterprise whereby affectively and sensory charged data are stripped of their intensities as the phenomenal experience (the “what happened?”) undergoes translation into legal thought acceptable in a court of law.” ^{Footnote 56} Ultimately, the judicial treatment of this step in the modern principle eschews the responsibility of selecting an appropriate—and inherently political—context from which to impose meaning. It is certainly possible to imagine a progressive iteration of the “entire context” of interpretation—one that takes its task seriously and engages with the experiential realities of those most affected by the relevant statute—but the modern principle fails on a far more fundamental level. The application of this step in the modern principle elides any account of how context was determined while expounding on the unknowable phenomenon of legislative intent. Returning once more to Wittgenstein, the problem here is perhaps most eloquently stated in the closing sentence of his Tractatus Logico-Philosophicus: “What we cannot speak about we must pass over in silence.” ^{Footnote 57}

(d.) “…in their grammatical and ordinary sense…”

Once context has been judicially constructed and the historical record coheres with legislative intention, the modern principle mandates an “ordinary” reading of the impugned text. It is difficult to imagine a more overtly normative stipulation; the grammar of ordinariness reads as an impressively concise repudiation of subjectivism and sociocultural difference. The assertion of normalcy necessarily imports a central perspective, which is an almost trite criticism to direct at the judiciary. The privileged sphere of legality has long been decried as exclusionary and patriarchal; ^{Footnote 58} an accepted and ubiquitous doctrine that imposes a euphemistic “ordinary sense” is unlikely to alleviate such concerns.

With the critical deck stacked decidedly against the decision-making elite, judicial engagement with ordinary grammar ultimately conforms to the highly normative approach anticipated by the words of the modern principle, but does so in a manner that is both unexpected and illuminating. The ideological workings of the modern principle—which, as discussed, are largely obscured by its rhetorical function—evoke false neutrality while legitimizing haphazard judicial decision-making. Its remarkable efficacy in rendering the simulacrum of objectivity (which it has done, with scarcely a critical comment, for nearly two decades) depends on the combined force of each interpretive stipulation. The modern principle has not simply been employed in virtually each relevant case since Rizzo Shoes—it has also never deviated from the initial formulation. Despite the incredible diversity of interpretive disputes since the late nineties, decision-makers have never expanded the contours of their quotation from Driedger. The invocation of ordinary grammar serves these ends in a very specific way. This aspect of the modern principle explicitly posits a dominant legal perspective, which implicitly makes a claim to communal consensus as the source of definitional certainty. There is not, of course, any recognition of the exclusionary bent within this project; the argument that legislative language has simply become the language of (probably white male) judges is simply ignored. Instead, the jurisprudence of ordinary grammar harnesses many of the hallmarks of anti-intellectualism and establishes an inherently conservative analytical structure.

In a particularly direct judgment on the subject, the Supreme Court held that this stage of interpretation discerns “the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context.” ^{Footnote 59} This is perhaps the clearest deviation from hermeneutical criticism that exists even within the mainstream legal literature. Pierre-André Côté, for instance, observes that “[t]he official doctrine presents interpretation as an activity devoid of any creative dimension … This being so, it is impossible to explain the interpretation of statutes without acknowledging that it may require the interpreter to make choices based on his or her personality, beliefs or values.” ^{Footnote 60} Such an intuitive approach clearly privileges a dominant set of experiences to render legal meaning as the product of something approaching a judicial Rorschach test. In many ways, this strange practice—wherein the judiciary overtly valorizes uncritical reflection—can be understood through Cass Sunstein’s notion of the judicial ideology triad.

In Are Judges Political?, ^{Footnote 61} he examines decision-making behaviour from the bench, specifically as it manifests in discourse. The performative language within court proceedings offers an insight into how the appropriate contours of political coercion are perceived by the judiciary. He writes,

There is, in other words, considerable scope for unexamined judicial authority within the amorphous boundaries of legal ideology. With statutory interpretation, there is an explicit bifurcation between law and politics; it is important to remember that—ostensibly—the legal interpretive process seeks to discover the (fictitious) intent of the legislature. In the process, this arbitrary demarcation is observed and presented as an implicit justification for unfettered decisional autonomy. This paper does not seek to expound upon the appropriate interplay between branches of state power; rather, my interest lies in how these respective functions are conceptualized in the course of interpreting statutes. Under our current regime, it is democratic (and, thus, immunized) policy to enact an ambiguous legislative instrument; it is appropriately legal to decide what that instrument means with recourse to, inter alia, reflexive sign/signified association. The outcome of the interpretive analysis—backed, as it is, by the “everyday ideologies of control”—cannot be logically separated from political action. Whether legal force is imposed at the time of enactment or at the time of judicial pronouncement on linguistic meaning, the result is the same. The ordinary grammar stipulation in the modern principle disguises the politics of interpretation by normalizing and prioritizing the judicial perspective, but these ideological workings can be refuted by recognizing their anti-intellectual character.

The framework of anti-intellectualism is instructively set out in Richard Hofstadter’s classic Anti-Intellectualism in American Life, where he posits a subtle analytical binary between critical thought and majoritarian values. This is not to suggest that these apparent poles are inherently incongruous; rather, there is a pervasive distrust of intellectualism, which is understood in relation to its opposition: “common sense.” There is a latent, but barely contained, distrust of theory within dominant culture and institutions, and this notion of “common sense” is said to embody an appropriately democratic bent; it is readily available to everyone and fundamentally aligns with the status quo. The academic project of rethinking foundational assumptions is, after all, uncomfortable and destabilizing; in the context of institutions that enjoy substantial power and legitimacy based on social presumptions, the hostility toward intellectualism is (perhaps logically) pronounced.

There is relatively little scholarship on a specifically legal ethos of anti-intellectualism, but the characteristic distrust of critical reevaluation and abstraction is pervasive in several unique ways. When a decision-maker is pronouncing that, for instance, testimony is simply “book learning with no street-sense,” ^{Footnote 63} there can be little doubt that the judicial function does not depend on a classically intellectual penchant. Again, this is largely unsurprising given the danger that social theorizing about power relations poses to hegemonic institutions such as courts; however, it embodies significant implications for how judges construe linguistic meaning. Anti-intellectualism helps explain the presence of an “ordinary sense” and elucidate its untenable underpinnings.

It is telling that judicial recourse to ordinary grammar under the modern principle frequently invokes “common sense.” While this phrase is ubiquitous in some contexts, it seems to elide any specific content, which is perhaps its greatest rhetorical strength. Content, in other words, can be assigned by the reader in a manner that conforms to their uncritical perspective. “Common sense,” after all, has long been recognized as a vessel for unexamined majoritarian values; much like using ordinary grammar as an interpretive lens, the valorization of “common” intuition is explicitly normative. These two related concepts skew interpretive results toward the status quo while effectively obscuring this ideological function.

In his critical account of judicial reasoning, Pierre Schlag submits that the “‘law of judges’ is a law designed to deny and legitimate the violence necessarily implicit in the act of judging … law [is given shape by its] desire to hide from itself its own violent and destructive character.” ^{Footnote 64} If we understand the interpretive process as a creative action that must necessarily assert subjective values, there is a degree of unease surrounding the state sanctioned authority of the judicial perspective. The impulse to “hide” the interplay between idiosyncrasy and legal force is understandable but destructive to hermeneutical clarity and defensibility. Moreover, the anti-intellectual character of ordinary grammar impels an inherently conservative approach, which is antithetical to aligning exegetical practice with our current understandings of how language works. In his influential treatise on conventional modes of legal thought, Schlag observes the ambivalence of movements against the entrenched presumptions of the law:

The current state of statutory interpretation exemplifies the legal perpetuation of pre-established and -sanctioned modes of thought, and it does so at the foundational level of language.

When the Supreme Court makes sweeping, reductive statements such as “for all issues of statutory interpretation, the basic question is what Parliament intended,” without even the most rudimentary engagement with the attendant difficulties of textual transmission and linguistic signification (to say nothing of the distinct and complex nature of the statutory text), the interpretive outcome is largely predetermined. As Schlag concisely puts it, “this habit of thought can be counted on to produce … law that is in a state of arrested development … a law that cannot do anything except reaffirm itself as always already the same.” The false neutrality of the modern principle comes at the cost of analytical proficiency; the stipulations in Driedger’s observation must assume “that the words … are stable [and] the only coherent basis for the requisite continuities of history and meaning is found in the communitarian assumptions of conservative social thought.” ^{Footnote 66} As a result, the play of language is ignored and the interpretive monopoly is retained—largely through judicial silence.

The ordinary grammar that features prominently in modern principle jurisprudence embodies a virtual absence of inherent content. It valorizes the reflexive perspective of the bench and subordinates alternative experiential understandings of language. The “ordinary sense” analysis is an overt imposition of power and privilege; an inquiry into kneejerk judicial meaning is “a dead and circular response to a dead and circular interrogation.” ^{Footnote 67} This allows meaning to be imposed based on the preferences and biases of the decision-maker. As I have argued, this result is inevitable given the current approach to statutory interpretation, but endorsing the “grammatical and ordinary sense” as a hermeneutical tool explicitly accepts the validity of such a strange proposition. The generalized anti-intellectualism that pervades this area of the law helpfully obscures this celebration of decision-making impunity and perpetuates a logic of conservatism and “common sense.” In our current epoch, where “the words used in everyday discourse … no longer make sense” because of the manifest stupidity that characterizes mainstream political discourse, ^{Footnote 68} the project of identifying anti-intellectual tropes of judicial reasoning becomes crucial. ^{Footnote 69} As we have seen, the thoughtless ideals of “common sense” can justify virtually anything—but, more often, this is a shorthand for reflexive prejudice, for rendering those outside of the common experience literally nonsensical.

(e.) “…harmoniously with…”

The requirement that legislative text must exist “harmoniously with” often unrelated interpretive criteria is perhaps the least coherent aspect of the modern principle. When words align with parliamentary intent—and the modern principle presumes that they can—there would appear to be little use for exegetical discussion. Conversely, when there is tension between how the words signify to legal thinkers and the apparent aims of the legislature—which, of course, is usually the case—it is difficult to imagine the utility of insisting on a harmonious reading. While the analytical helpfulness of this transitional clause is negligible, the forced reconciliation of disparate content is a well-known trope of legitimizing rhetoric.

Although his comments arise in a markedly different context, the work of Sacvan Bercovitch is instructive on this point. The language of over-determination makes frequent recourse to ideational harmony; he observes that, for the rhetorical advancement of an ideological position, the language of conflict will appear as “not either/or but both/and.” ^{Footnote 70} There is currently no recorded judicial comment on the illogic of forced reconciliation, and the political benefits of this are considerable. The invocation of a simplistic structure—here, the mandated coherence between governmental objectives and the statutory text—serves “above all to make sure that the organizing principle of the structure would limit what we might call the freeplay of the structure.” ^{Footnote 71} This is important because, as Ruth Sullivan notes, this interpretive step is deeply problematic in so-called “hard cases.” Given the subjectivity of textual signification, one would expect divergences between the ostensible purpose of an enactment and its words would merit a reconsideration of the assumptions underlying either of these conceptions; presumably, few would argue that the best course of action is to impose harmony and ignore dissonance.

Interestingly, the (sparse) case law on this point suggests that such a reading is informed by “established legal norms.” ^{Footnote 72} While this assertion would be unsurprising—and, indeed, redundant—in relation to the ordinary grammar stipulation, it serves an almost latent naturalizing function within the (il)logic of forced reconciliation. There is, of course, some content that can be given to Canadian “legal norms,” but these necessarily operate at a level of abstraction. ^{Footnote 73} The normative qualities of our legal system cannot be factual given the diversity of circumstances giving rise to adjudication; instead, these are overarching concepts such as Charter values. ^{Footnote 74} This generality may be necessary in some contexts, but it also lends a significant degree of malleability to reading texts “harmoniously with” legislative intent et al. We are left with an interpretive step that literally disclaims the points of inconsistency that likely gave rise to the dispute rather than frank engagement with them. As a result, the aims of the legislature are presented as natural and inevitable—and already contained within the text itself. The “both/and” approach to statutory interpretation allows the passage of politically convenient legislation—with its attendant ambiguities and gaps—and abnegates the logical scrutiny that should arise when tension between words and purpose comes before the courts.

(f.) “…the scheme of the Act, the object of the Act, and the intention of Parliament…”

While the foregoing analysis has suggested latent content within the modern principle based on a close reading of each discrete mandate, the final three considerations—scheme, object, and intention—are largely indivisible. According to Sullivan, the “scheme analysis … explores how the legislation is intended to operate so as to bring about desired goals.” ^{Footnote 75} This, of course, informs the heuristic conception of the “object of the Act,” particularly since the decision-maker must presume that “the legislature has devised a coherent … implementation plan.” ^{Footnote 76} Notably, the invocation of “object,” which refers to the text, and “the intention of Parliament” formally acknowledges the possibility of language and authorial intent as separable, but there is, to date, no judicial explication on this subject. In fact, courts have sometimes endorsed Driedger’s clarification of the interplay between the scheme, object, and intent: The proper approach to this final interpretive triad, he suggests, is to inquire into the expressed intent, the implied intent, the presumed intent, and the declared intent. ^{Footnote 77} In other words, the foregoing analysis must exist in harmony with the stated goals of Parliament, which signify both within and outside of the impugned text.

This final grouping of interpretive mandates embodies a significant deferential bent, which is arguably appropriate. In its most classical formulation, statutory interpretation is a very narrow exercise: “In every case, the duty of the court is to endeavour to ascertain the intention of the legislature by reading and interpreting the language the legislature has selected for the purpose of expressing its intention.” ^{Footnote 78} As discussed above, there is no logical basis for criticizing the judicial response to the linguistic turn while ignoring many of the same difficulties that inhere to the legislative task. The act of interpreting from the bench, however, takes place in a markedly different context; as Richard Risk puts it, “society’s basic commitment to democracy impose[s] an obligation to respect the purpose of the legislature.” ^{Footnote 79} Language depends, after all, on (a functional appearance of) consensus for communicative meaning—a consensus that is arguably achieved through Parliament’s representative function. Waldron (among others) convincingly argues that the inefficiencies and ambiguities that culminate in legislative text are an expression of the democratic process; despite the play of language, Parliament either passes a set of signifiers or it does not—definitional certainty is simply unnecessary. In contrast, when there is controversy regarding this democratic language, courts make a claim to meaning in virtual isolation. The profound difficulty of contemporary hermeneutics is mitigated by the communal and representative nature of the legislature; it is exacerbated by the elite status of the judiciary.

There is, then, a disconnect between the understandable calls for interpretation that gives effect to the directives and objects of Parliament and the circumstances of (post)modern judging. It is important not to conflate the recognition of legislative intent as a necessary fiction with further latitude for the exegetical monopoly enjoyed by the judiciary. Much like the poststructuralists who problematize the reality/fiction binary, we must avoid subordinating the fictive character of legislative intent as infinitely pliable. Given our understanding of psycholinguistic subjectivity, statutory instruments cannot benefit from a coherent purpose—we will never know how the texts signified to MPs or why they were supported on an individual basis—and, while it may be far from perfect, the bare act of democratic assent is enough to meaningfully distinguish these words (with their attendant instability) from the context in which they are assigned meaning when disputes arise.

With its inquiry into the scheme, object, and intention, the modern principle evokes both governmental and logical legitimacy. The latter makes its first appearance in this closing triad of interpretive stipulations, suggesting a relationship between a desire, a plan to effect it, and the means of doing so. This is hardly a novel project; in “The Empty Circles of Liberal Justification,” Schlag observes that “it is the hallmark of liberalism to seek reconciliation of authority, reason, and freedom in terms that are consonant with each.” ^{Footnote 80} Accordingly, while the final section of the modern principle is ostensibly deferential, it also depends on this invocation of the legislative process for greater legitimacy. Unfortunately, the circumstances that merit such deference cannot be replicated through an interpretive model that denies its own role in creating meaning.

(g.) Conclusion

In 1938, John Willis mused that, when it comes to statutory interpretation, “[y]ou should not be too much impressed by this heartening phenomenon of judicial uniformity, or by the amount of space which judges devote to it in their opinions. No technique has much effect on final result.” ^{Footnote 81} While he was writing about an entirely different doctrinal approach—the predecessor to the modern principle: the “plain meaning rule”—these words remain an apt summary of hermeneutical jurisprudence in Canada. His conclusion, too, could be validly raised in our current “modern” epoch: Courts use interpretive “rules” to “achieve a desired result.” ^{Footnote 82} Perhaps the greatest difference between this (further) outdated approach and the modern principle is the sophistication of the latter’s rhetorical function. Statutory interpretation in (post)modernity is profoundly complicated by our burgeoning awareness of the instability of language. The enthusiastic and consistent endorsement of Driedger’s observation in The Construction of Statutes exists in fundamental tension with—and denial of—contemporary hermeneutics.

Today, and since the late-nineties, there is only one principle or approach to judicial interpretation; this clause is as instructive as it is nonsensical. Given the inherent subjectivity of language, a single methodology is pointless unless it serves as a formal checklist that must be expounded upon, creating accountability and transparency in an area necessarily rife with value judgments. This, of course, has not happened, but the instructiveness of this clause lies in its status as an obvious trope of legitimization; the fact that it asserts a monopoly that has not been challenged since its inception nearly two decades ago speaks to its remarkable efficacy. The subsequent discretion afforded to the judiciary in defining the “entire context” of the linguistic dispute and the invocation of an “ordinary” perspective builds on the introductory rhetoric by creating an unabashedly normative regime of interpretation. If we understand definitions as claims to (contested) meaning, the modern principle ensures that these claims issue from the dominant perspective while the presentation of neutral doctrine masks the unequal distribution of authority.

These amorphous categories of hermeneutical inquiry are further legitimized by the harmony requirement and the ostensible deference to the democratic process. Although cases arise where the text and the apparent intent conflict and the decision-maker must necessarily choose a side, it is disingenuous to suggest that this process is a matter of harmonious reading. Indeed, transparency requires the opposite; an interpretive approach that seeks both a democratic basis and (relative) textual certainty should be preoccupied with this tension whenever it arises. Similarly, the implicit relationship between respect for the legislative function and the current approach to reading statutes eschews the important differences between these contexts. Judicial interpretation cannot approximate the Parliamentary imposition of meaning when the latter is understood in light of its predominantly representative importance. It is possible, in other words, to accept the semiotic divide of postmodernism and view legislative text as legitimate insofar as it depends on democratic will for its enactment. Legislative text—like language in general—signifies differently for each reader and the fictitious nature of Parliamentary intent arises because it is impossible to know (a.) what individual MPs understood the texts to mean and (b.) why these individuals voted the way that they did. Democratic legitimacy does not depend on the stability of language but on the representative nature of Parliament. This is not to suggest that Canada has actualized perfect representative politics but rather to show that poststructuralism is theoretically coherent with a written system of laws. In contrast, the modern principle depends on discoverable, universal meaning within the text to justify the unilateral imposition of definitional meaning under the guise of “the scheme of the Act, the object of the Act, and the intention of Parliament.”

It is worth noting, however, that the law of statutory interpretation does not exist without a purpose. While it is possible to imagine a form of governance that does not depend on judicial exegesis, the Canadian legal system would be unrecognizable without the availability of dispute resolution on questions of legislative meaning. Just as we must presume that “legislation is intended to operate so as to bring about desired goals,” we must also presume that valid enactments will affect the lives and behaviour of virtually everyone. Further, if we accept the inherent subjectivity of language—and, by all contemporary accounts, we should—there will often be uncertainty surrounding the operation of statutory instruments, which must be mitigated to attain the basic predictability required by (what judges call) the rule of law. ^{Footnote 83} It appears, then, that our reliance on textual laws requires an interpretive monopoly held by decision-makers, but the modern principle erodes, rather than advances, the metanarratives of certainty and predictability. When interpretive doctrine serves a predominantly rhetorical function, there can be little predictability regarding how language will signify, or even what questions will be asked. The problem of textual interpretation in (post)modernity is complex and defies any singular answer, but it also provides the basis for meaningful change. By engaging with what the modern principle obscures—that is, the inherent instability of language and the ideological nature of claims to meaning—it is possible to imagine an approach that foregrounds linguistic subjectivity and the perspective of the decision-maker to produce transparent results that do not assume the legitimacy of the speaking subject.

(a.) Introduction

Given the marked divergence between the Canadian approach to statutory interpretation and the study of hermeneutics, the project of dismantling the modern principle from the latter perspective is relatively straightforward. This is not to suggest that various scholars have wasted their talents by holding up the law to a foreign theoretical frame; rather, critical insights often provide foundational starting points for aligning our legal system with important sociocultural movements. It is, however, one thing to criticize the lacuna of constraint and coherence in the modern principle, and quite another to fill the ensuing interpretive gaps. On this point, Catharine MacKinnon poses a pertinent challenge: “It is common to say that something is good in theory but not in practice. I always want to say, then it is not such a good theory, is it?” To the extent that the foregoing postmodern critique serves as a repudiation of the modern principle, it must do so in both theory and practice. More specifically, we can (rightly) claim that the linguistic turn severely problematizes the current regime of statutory interpretation, but the practical force of this observation turns on its ability to suggest a viable alternative. Our current legal system would be unrecognizable without both written laws and judicial interpretation. If the theoretical force of contemporary hermeneutics displaces the usefulness of the modern principle, it should also serve a progressive function—toward (literally) a postmodern principle of statutory interpretation.

In one of the most thoughtful pieces of Canadian scholarship on the problem of statutory interpretation, Daniella Murynka writes, “[t]hose who insist or imply that legislative intent is incommunicable take an unhelpfully postmodern view of statutory language, particularly in an era of plain-language writing.” ^{Footnote 84} Her argument, in brief, posits the dangers associated with the “distrust of statutes as communicative tools.” Although she is mindful of the difficulties surrounding the discovery of this intent, Murynka characterizes intent—specifically as embodied in the text—as the only legitimate means of constraining judicial activism. ^{Footnote 85}

Admittedly, this embodies a degree of practical persuasiveness. If the legislature and judiciary conceded that, say, “the entire question of meaning can be bracketed,” ^{Footnote 86} it is difficult to imagine any written system of laws. Even as communicative language breaks down in our postmodern over-saturation of signs, the vast majority of Canadians would likely prefer the continued subsistence of many textual laws. Arguments concerning the semiotic divide that separates our word for “assault” in the Criminal Code from the historical events that are typically adjudicated under the relevant section are likely to be nonsensical from a legal standpoint. Moreover, beyond the clear societal interest in prohibiting certain activities—and, indeed, promoting others—it is essential to advance informational accessibility as a function of our legal system. As one classical English case put it: “There is one quite general question affecting all sub-delegated legislation and of supreme importance to the continuance of the rule of law under the British Constitution, namely, the right of the public affected to know what the law is.” ^{Footnote 87} Accordingly, one can agree language constitutes and constrains us as speaking subjects—that we are locked in the “prison-house of language”—while accepting the necessity of a “right” interpretation vested in the court of last word.

While the project of rethinking interpretive practice is imbued with considerable difficulties, it also has the potential to subvert the legal subjugation of difference. It has been said that law is “always-already intertwined with the Other,” which includes “the traditional connotation of the marginalised, the oppressed, the subaltern, the minorities as represented … before the law.” ^{Footnote 88} This is, of course, a sweeping statement about the nature of legality in its current iteration, but this theme is particularly pronounced in the workings of statutory interpretation. If we acknowledge the creativity of interpretation—i.e., the notion that meaning is not within a text to be neutrally discovered—then we must also be mindful of the ideology of authorship. The application of the modern principle, properly construed, invokes the “metaphor of literary paternity” ^{Footnote 89} with its attendant anxieties. Here, the decision-maker who claims definitional authorship must assert their (but, statistically, probably his) speaking position. This involves both the adoption and refutation of conventional narratives, since the judicial author is simultaneously constrained by traditional form (if not in any substantive ways) and required to make a subjective pronouncement with the force of legal authority.

Conversely, those addressed by judicial language occupy a form of otherness which is particularly marked in the context of historically disadvantaged groups. Although it functions as a synecdoche, statutory interpretation should be understood in relation to “the law’s systematic backgrounding, devaluation, and instrumentalization of the other.” ^{Footnote 90} For the purposes of this argument, it is worth noting that judicial claims to meaning issue, by definition, from the privileged sphere of legal authority. As discussed, the tremendous flexibility of signifiers extends considerable scope for judges’ biases and experiences, which cannot be unpacked when they are left unstated. In his recent treatise on legal interpretation, Allan Hutchinson writes, “it is no longer acceptable or feasible to talk about facts as something that exist entirely outside of the disciplinary or theoretical paradigm within which they are apprehended and through which they are supposed to be validated.” ^{Footnote 91} It is therefore essential, in conceptualizing a postmodern principle of interpretation, to effect a self-conscious theoretical paradigm as the basis of validation; that is, we cannot rely on the metanarrative of legal fact but should instead render interpretive moves within the framework that gives rise to their legitimacy.

The indeterminacy of language concurrently problematizes and necessitates statutory interpretation. If we cannot render objective textual meaning then someone must have the last word on legal hermeneutics; however, that final pronouncement cannot logically claim neutrality or even legitimacy outside of the necessity of its task. In many ways, the linguistic turn of postmodernism facilitates a methodology that is aware of its contingent nature and the political aspects of linguistic meaning. If a postmodern principle is possible, it is also more equitable for its recognition of sociocultural difference embodied in language construction and more justifiable for its explicit engagement with the problem of inescapable subjectivity.

(b.) Agreeing to Disagree

While it may appear counterintuitive to an argument dependent upon the refutation of outdated modes of thought, many of the insights from Ronald Dworkin’s Law’s Empire provide an insightful starting point toward a postmodern principle. ^{Footnote 92} At the outset, it is important to be mindful of the overarching challenge of this discussion: Navigating the linguistic turn without drifting too far into absolute skepticism (if not outright nihilism) is a delicate balancing exercise. To this end, a close reading of Dworkin’s most famous treatise suggests a productive alternative to definitional agreement which, in turn, helps to identify the political interests at play.

While it forms a relatively minor part in the construction of his “semantic sting”—an anti-positivist refutation of Hart’s rule of recognition—Dworkin’s account of empirical disagreement provides a logical introduction to the interpretive act. Much of the foregoing discussion takes issue with the unstated presumptions of the modern principle. Accordingly, productive work toward a postmodern principle should explicitly render each posited analytical step. It is important to remember, then, that statutory interpretation arises out of disagreement—a concept that is ubiquitous in legal scholarship ^{Footnote 93} while remaining largely ignored in the context of interpretive doctrine.

A framework for hermeneutical disagreement should ideally elucidate the specific points of contention. In this way, Dworkin’s hypothetical empirical disagreement is instructive: “We can disagree over borderline cases,” he writes, referring to a scenario in which the number of books on his shelf are discussed, “[b]ut we cannot disagree over what I called pivotal cases. If you do not count my copy of Moby-Dick … any disagreement is bound to be senseless.” ^{Footnote 94} In other words, meaningful resolution (or compromise) requires a preliminary discussion concerning the specific scope of the disagreement. Although this is surely an uncontroversial and transferable point, it is markedly incongruous with contemporary interpretive jurisprudence. In Manitoba v Russell Inns Ltd, for instance, the Court of Appeal submits that “[a]ny decision dealing with statutory interpretation must begin with the modern principle.” ^{Footnote 95} After a perfunctory quotation of Driedger, the Court immediately shifts to a discussion of relevant legislative principles, ultimately rendering a definitional decision as the necessary outcome of stare decisis in action. ^{Footnote 96}

An interpretive mandate that engages with the indeterminacy of language requires more than this disingenuous evocation of doctrinal certainty. The discussion of empirical disagreement in Law’s Empire accommodates postmodern skepticism because it foregrounds the incoherence that arises when presumptions fail to signify at a communal level. To continue the foregoing metaphor, a judgment that claims definitional certainty based on the presumed universality of a language effectively begins counting books before discussing the status of Melville’s cetacean masterpiece. This is not, of course, to suggest that a prefatory interpretive step, wherein the judiciary clarifies the exact point(s) of disagreement, is likely to be uncomplicated and sufficient; rather, moving beyond the modern principle requires—but is not limited to—consistency in rendering linguistic disagreement.

As Dale Smith notes in his discussion of Law’s Empire, judges can employ different principles while arriving at the same result. ^{Footnote 97} Conversely, nominally identical principles may impel divergent results; ^{Footnote 98} indeed, to the extent that the modern principle conforms to this (titular) designation, its multifarious outcomes are discussed at length above. In the interpretive context, the disputes that provoke adjudication arise from the profound malleability of language. The discrete points of disagreement are eminently variable. Identical signifiers can, of course, invoke different meanings—but so, too, can issues regarding appropriate context, methodologies, and syntax. ^{Footnote 99} As a result, identifying disagreement helpfully acknowledges the profound subjectivity of language while rendering the competing, individualized interpretations at play.

Consider, for instance, the analytical advantages of a postmodern Rizzo Shoes. ^{Footnote 100} Here, rather than quoting extensively from the Employment Standards Act, the Employment Standards Amendment Act, and the Interpretation Act, we begin by making a claim about the dispute. Both parties agree that the dispositive question is whether or not bankruptcy triggers severance pay obligations under the Employment Standards Act. ^{Footnote 101} It stands to reason, then, that the disagreement centres on the meaning of s 7(5):

Every contract of employment shall be deemed to include the following provision:

More specifically, the competing views diverge on the question of whether bankruptcy constitutes termination in the foregoing statute. On one side, as the Court of Appeal put it, bankruptcy is an operation of law rather than a positive act of termination; ^{Footnote 102} however, as the Supreme Court ultimately decided, the purpose of this legislation is the protection of workers’ rights and the provision of economic stability during times of unemployment. The theoretical framework for unpacking the modern principle is helpful here: If we take contemporary hermeneutics seriously and accept the contingency of language, we cannot refer to the above concepts as though they have objective, stable content.

The relevant jurisprudence consistently presumes the universal signification of, e.g., “purpose”—to say nothing of how the ephemerality of something like “workers’ rights” or “economic stability” can accommodate endlessly diverse meanings. In the Supreme Court’s judgment in Rizzo Shoes, these issues are elided with commonplace invocations of stare decisis and interpretive principles. While the modern principle has nothing useful to say about whether “termination” should include bankruptcy, a more progressive interpretive principle does not seek to answer this uncertainty. Instead, just as Dworkin highlights in his empirical disagreement example, interpretation in (post)modernity should frankly engage with the contours of potential divergence. A postmodern reworking of Rizzo Shoes, for instance, does not raise Machtinger to justify a broad reading of the ESA; ^{Footnote 103} rather, it sets out a clear position on how “termination” signifies in light of the conflicting, subjective readings proffered by both sides. This mode of interpretation necessarily issues from the justificatory register. By problematizing the presumption of universal linguistic or ideational meaning, the postmodern principle begins with a framework for hermeneutical disagreement. Claims can and should be made to principles such as workers’ rights, but should also conform to Chomsky’s reasonable demand, set out above: “Justify yourself.” ^{Footnote 104} Ultimately, the careful identification of the precise linguistic dispute at issue foregrounds the uncertainty of language in a manner that is respectful of difference. Those who must interpret legislation cannot claim access to an objective meta-language, but they can set out their understanding of the dispute and the analytical processes that produce their subjective linguistic understanding. While this is an undeniably modest proposal, when it comes to language, we can only ever disagree with varying levels of transparency. When much turns on an individual’s exegetical act, it should accordingly embody as much of this openness as linguistic communication will allow.

(c.) Interpretation as Creation

As discussed above, claims to meaning bear no particular relation to their linguistic object. The interpretive act is not only subjective; it is fundamentally—and literally—creative. Gendered pronouns aside, Dworkin makes an insightful observation on this point; when his idealized judicial Hercules is confronted by a statute,

In other words, Dworkin anticipates the impossibility of objective interpretation; even his hypothetical legal superhero can only develop meaning based on subjective value judgments.

This is a difficult foundation upon which to build an interpretive mandate. Given the certainty demanded by oft-cited legal principles, judicial discomfort with explicitly relying on personal value judgments is understandable. The alternative, however, simply assumes the pervasive signifying power of the dominant perspective. When judges render objective truths, they impose their elite legal perspective upon the infinitely varied “desert of the real itself.” ^{Footnote 106} Conversely, understanding the implications of creative interpretation provides a principled basis for proceeding with this daunting interpretive task without disappearing alternative perspectives.

In his engagement with Dworkin’s “chain” of textual meaning, Stanley Fish makes an instructive comment: “The distinction between explaining a text and changing it [cannot] be maintained … To explain a work is to point out something about it that had not been attributed to it before and therefore to change it by challenging other explanations that were once considered changes in their turn.” ^{Footnote 107} Of course, the creation insight means relatively little in the abstract; Fish provides a concise summation of a relatively clear product of the linguistic turn. Statutory interpretation does not need to address postmodern skepticism to create meaning—this happens each time a definitional claim is made—but this conceptualization does provide a novel means of postmodernizing judicial hermeneutics.

If we understand interpretation as a creative process that superimposes itself upon both the text and the relevant history of definitional claims, we begin to see definitions as the act of bringing something new to the signifiers in question. This anticipates the practice of dynamic statutory interpretation, which is most convincingly set out in William Eskridge’s eponymous text. ^{Footnote 108} On this reading, the text is not assigned any inherent meaning; rather, it “ensures that statutes will evolve because the perspective of the interpreter will be different” over time. ^{Footnote 109} This may present as a fairly commonplace observation, but it is diametrically opposed to the current regime of judicial exegesis, where objective meaning is presumed to exist within the legislative enactment. The recognition that individuals and context impose meaning on a text brings us far closer to contemporary understandings of language.

What, then, does this mean for the reconciliation of hermeneutics and a basic commitment to legal predictability? The theory shows that judges navigate the political space of definitional claims, and this space, properly construed, is the site of ideological conflict. Displacing the modern principle as an interpretive crutch would require the courts to engage with the context and subjectivity that animate creative interpretation—they would need to justify their (necessarily contingent) interpretations. This explicit recognition of linguistic play would promote predictability because it would render the determinative social context in each judgment. This is not, of course, to suggest faith in contextual diversity from the bench; however, an approach that requires the articulation of linguistic biases is preferable to one that actively obscures them.