Some problems with killing the legislator.

Author:Murynka, Daniella
Position::Ontario
 
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I INTRODUCTION II THE FACTS III A PRIMER IV THE PROBLEM V MORE PROBLEMS VI THE BEGINNING OF A SOLUTION VII CONCLUSION Or, in other words, this "meaning" stuff is interesting and sometimes relevant, but when all is said and done, we have to get on with the job ... (1) I INTRODUCTION

In this article I come to terms with the idea that we cannot abandon the search for legislative intent in statutory interpretation. I begin with this conclusion and also with an apology for it, having hoped that the legislator, like the author, (2) could indeed be snuffed out. Such a death promised to be a triumph of literary criticism in an area of law rife with fictions. (3) Sadly, statutes are not poems and cannot usefully be liberated from that old tyrant--the author. (4)

But the backdrop of literary criticism remains important to my task. (5) Much of the language we use to evaluate and understand the role of legislative intent in statutory interpretation flows from literary discourse. And the uncertainty of any text's capacity to transmit meaning has motivated most literary theories in the last half-century. In this article, the analogue of literary criticism and theory clarifies and helps articulate my expectations of statutes and those who write and apply them.

What follows is essentially an analysis of an interpretation. In the close-reading style of the New Critics, (6) I interpret Hare v. Hare, (7) which itself is two interpretations of the Ontario Limitations Act. (8) Hare neatly exemplifies how two judges can both use "legislative intent" to justify opposite conclusions. I hope to show that the Hare majority relied on "legislative intent" misleadingly, by hiding behind extratextual interpretive aids instead of engaging seriously with the statutory text. I am emboldened in this analysis by the 2008 amendment to the Limitations Act, (9) which transformed the Hare dissent into the current law of Ontario. (10)

The duplicitous use of "legislative intent" in Hare and cases that feature similar reasoning could destroy our faith in intent-based statutory interpretation. But if things were that simple, this article would be far more pointed. In spite of its difficulties, legislative intent is the most defensible of the interpretive approaches advanced in the last century--there are simply no sensible alternative constraints on judicial interpretive discretion. My position is that Hare exposes no essential hopelessness in looking for legislative intent--rather, it demonstrates the problem with treating statutes as though the textual transmission of meaning were an intrinsically defective act. (11) The majority judgment in Hare pays lip service to legislative intent but refuses to engage with what the statutory text says. Those 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. (12) Thus my aim in this article is twofold: to reiterate why legislative intent cannot be divorced from the task of statutory interpretation, but also to discuss the dangers of looking for legislative intent with an attitude of distrust towards the communicative capacity of statutes.

Yes, merely declaring legislative intent to be the object of statutory interpretation is hardly useful; doing so sets the scavenger hunt in motion but tells the interpreter nothing about where or how intention might be found. (13) And in this article I do not propose, because I do not know, how to best tether statutory interpretation to legislative intent. But my suspicion is that good statutory interpretation at least depends on judicial transparency. Transparency would begin with the acknowledgment that statutes can communicate authorial meaning, and would require clear and candid explanation for departure from that meaning in applying legislation. Legislative intent is essential to defensible interpretation and it can be expressed through the statutory text. If, as in Hare, a court does not really engage with the text before turning to canons of construction, the legislator is not only lost--her death is hushed up. The result is an adherence to statutory intent in name only, and a masking of the real judicial impulses behind a judgment.

II THE FACTS

The facts in Hare are far from exciting. (14) In 1997, Ms. Hare loaned her son $150,000. By promissory note dated February 10, 1997, her son promised to pay her, on demand, with interest. The last interest payment was made on October 26, 1998. On November 10, 2004, Ms. Hare made a demand for repayment. Her son did not comply. On February 17, 2005, she brought an action against her son claiming all sums due. At issue was whether the claim was statute barred under the new Limitations Act, 2002 (the "New Act"). (15) The New Act had replaced the Real Property Limitations Act (16) (the "Former Act"), and created a general, two-year limitation period that began to run when a claim was "discovered". (17) At the time Hare was decided, the New Act did not specifically address demand notes in the context of basic limitation periods. (18)

Under the Former Act, Ms. Hare's limitation period would have been six years from "the date the cause of action arose." (19) "Cause of action" meant "a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." (20) Because a demand loan is repayable when it is made, at common law a cause of action to collect on a demand note arises as soon as the note is delivered (in other words, as soon as a demand loan is made, the lender is entitled to a remedy against the indebted party). (21) Under the Former Act, Ms. Hare's claim would have been statute barred, as the running of the limitation period would have begun at the time the note was delivered, expiring in 2004.

However, the transitional provisions of the New Act stated that the Former Act only applied to claims "discovered" before January 1, 2004.22 Therefore Ms. Hare's case turned on whether she "discovered" her claim at the time the demand note was made, or at the time that her son refused to repay the loan. Gillese J.A., writing for the majority, held that Ms. Hare had "discovered" her claim at the time the demand note was made, and Juriansz J.A. dissented. Both justices defended their opinions on the basis of "legislative intent".

III A PRIMER

Legislative intent--the search for it, or the death of it--is at the heart of all statutory interpretive theories. This is evident in the following "modern principle", which dominates statutory interpretation in Canada: (23)

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. (24) The Supreme Court of Canada has repeatedly approved this principle, 25 which is known for its author as "Driedger's modern principle". The modern principle is remarkable for collecting in a single phrase the mandates of distinct and often oppositional theories of statutory interpretation: an interest in the ordinary meaning of words, as sought by plain meaning proponents and textualists, is paired with the intentionalist/originalist concern for legislative intent.

Originalism is the interpretive theory that a statute means what its drafters intended it to mean at the time it was drafted. (26) Explanations of originalism draw on the metaphors of discovery (27) and archeology, (28) casting the interpreter as an "historian" whose task is to unearth the legislature's intention. (29) Statutes are "containers" that store the law, (30) capable of being opened up to find meaning. Originalism depicts legislative intent as fully formed, preceding and distinct from the actual text enacted.

The language of originalism has historically been attractive to judges. The metaphor of "discovery"--as opposed to metaphors of "construction" or "creation"--preserves a certain conception of the (constitutionally-mandated) separation between the judiciary and the legislature: only Parliament makes law, and only judges apply it. (31) As these metaphors suggest, it is not possible to separate theories of statutory interpretation from theories of proper judicial function. (32) Thus, attempts to deviate significantly from or totally disregard intent-based models of interpretation, such as dynamism (33) and presentism, (34) must reconcile law creation by a non-elected judiciary with the political values of democratic societies.

But beyond safeguarding the rule of law during statutory interpretation, the metaphor of discoverability also carries with it important assumptions about language and its ability to transmit meaning. Intrinsic to discoverability is the idea that authorial intent, intact and unaltered, exists behind and before the text. This point is one of originalism's most attractive qualities, in that discoverability conforms to the idea of statutes as tools of communication. (35) If, on the contrary view of textualism, a statute does not have meaning until it is judicially interpreted, then a member of the public may have no hope of relying on the text prior to beginning litigation. Originalism thus deals with the "lag" that precedes a statute's judicial exposure by positing that meaning exists independently of (judicial) interpretation and is thus available to the public. (36) The structuralist (sometimes poststructuralist) literary theorist Roland Barthes may as well have been describing the temporal conviction of statutory originalists when he wrote, satirically, "[t]he Author, when we believe in him, is always conceived as the past of his own book...he lives before it, thinks, suffers, lives for it." (37) Barthes here critiques typical conceptions of the author-figure as prefiguring the work and thus superior to it, and instead depicts the author as a mere scriptor--one who writes with a hand "detached from any voice" and is "borne...

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