Evolutionary analysis: originalism and the impact of interpretive theory.

Date01 December 2010
AuthorGraham, Randal N.M.

INTRODUCTION

Ivan Cleveland Rand changed the shape of Canadian law. Owing to judgments that he rendered as a justice of the Supreme Court of Canada, Justice Rand has been praised as "Canada's greatest civil libertarian in an era when our constitutional theory was still bounded by the British legacy of parliamentary supremacy". As other essays in this volume clearly demonstrate, Justice Rand's remarkable legal legacy reverberates through modern jurisprudence. Indeed, "more of [Justice Rand's] judgments remain alive and quoted today than those of all of his thirty-four predecessors at the Court combined", (1) During his tenure on the Supreme Court of Canada, Justice Rand consistently acted with wisdom, logic, and justice, resolving disputes in a principled manner marked by intellectual rigor. There is little more that one can ask of a jurist.

My present task is to evaluate Justice Rand's impact on the world of statutory interpretation. More specifically, I ask whether Justice Rand followed any particular method of interpreting legislation. Was he an originalist, devoting his mental resources to the task of unearthing historical, static legislative intention, or a dynamist who ignored historical views in favor of progressive ideals? Was he a textualist, bound to apply a statute's literal terms whatever havoc they might wreak, or a purposivist who breathed meaning into texts by reference to the original author's motivations? While I believe that questions of this nature are important, there are many legal scholars who disagree. Indeed, many theorists contend that statutory interpretation is nothing more than a matter of unconstrained discretion, with each judge's personal prejudices controlling interpretive decisions. (2) Whether a judge is an originalist, a dynamist, or something in between, the judge's adherence to a specific interpretive theory has no bearing on the results that judge will reach. On the contrary, a judge's personal politics govern the substance of that judge's interpretive holdings, and interpretive theories become no more than ethereal forms of rhetoric used to justify political decisions.

Given the controversy surrounding the constraints imposed by theories of construction, I will not confine myself to an exploration of Justice Rand's jurisprudential impact on the world of interpretive theory. Instead, I will turn this subject on its head and consider interpretive theory's impact on Justice Rand's jurisprudence. Did interpretive theory govern the meanings that Justice Rand found when interpreting the text of legislation, or was his jurisprudence governed entirely by his personal biases and beliefs? Did interpretive theory constrain Justice Rand to reach interpretive holdings that conflicted with his personal ideologies, or did he simply use interpretive theory as a mode of justifying the injection of his personal views into the text of legislation? Can interpretive theory ever provide meaningful constraints in the interpretation of legislative language? These questions are explored throughout this article.

JUSTICE RAND'S INTERPRETIVE APPROACH

(a) Introduction

Like many of his colleagues on the Supreme Court of Canada, Justice Rand had an impressive arsenal of interpretive methods at his fingertips. (3) He frequently made reference to interpretive techniques rooted in obscure, Latin maxims of statutory interpretation: in District Registrar Land Titles, Portage La Prairie v. Canadian Superior Oil of California Ltd. and Hiebert (1954), (4) for example, Justice Rand relied on leges posteriores priores contrarias abrogant as well as generalia specialibus non derogant, dealing with the interplay of apparently inconsistent statutory texts; (5) in Minister of National Revenue v. Great Western Garment Company Ltd. (1948) (6) he relied on the presumption that there were no extraneous words in legislation; (7) in cases such as The King v. Williams (1944), (8) Williams, et al. v. Aristocratic Restaurants Ltd. (1951), (9) and Workmen's Compensation Board v. C.P.R. and Noell (1952), (10) Justice Rand relied upon the presumptions against absurdity and legislative nullity; (11) and in many of his decisions (including City of Toronto v. Olympia Edward Recreation Club Ltd. (1955) (12) and The King v. Assessors of the Town of Sunny Brae (1952), (13) Justice Rand made admirable use of consequential analysis. Despite the presence of a diverse array of interpretive methods in his writing, Justice Rand's interpretive jurisprudence was remarkably consistent. While other jurists floundered between conflicting interpretive canons with no commitment to an over-arching theory, Justice Rand displayed unswerving reliance on a single school of statutory construction. His theory of choice was a unique brand of originalist construction. The particular brand of originalism found throughout Justice Rand's judgments is described and evaluated in the following section of this paper.

(b) Originalism

Most judges of Justice Rand's vintage adhered to the originalist school of statutory construction. According to originalists, interpretation is a process of discovery whereby the interpreter merely unearths the intention of the statute's author. The role of the originalist is not to create law, but to ensure that the law is interpreted in a manner that is consistent with the author's expectations.

The meaning revealed by originalist construction "is that which was sought by the legislator at the time of [the Act's] adoption". (14) In other words, the goal of originalist construction is to ferret out the historical intention that existed in the authors' collective mind at the time of the Act's creation. As Cote noted:

This historical intention is permanently set, and can never be changed with the passage of time. The interpreter's role resembles that of an historian, or an archaeologist, in quest of an ancient thought of which the enactment may contain traces. (15) Through the process of statutory archaeology, the originalist sifts through the statute's text in search of clues regarding the authors' historical will. The authors' will controls the meaning of the statute, and the interpreter's only role is to reveal and implement the authors' original expectations.

For the originalist, a statute's "true meaning" is said to reside within the Act from the moment of its creation, awaiting discovery and application by the courts. Meaning is something to be discovered through an historical inquiry, rather than something to be created by the judge. The interpreter's personal views regarding what the statute ought to mean are wholly irrelevant: the only relevant views are the historical expectations of the legislative author. As a result, the interpreter's goal is never to make law or "create" statutory meaning, but merely to give effect to the static, historical will of the relevant legislative body. The statute's meaning can neither change in response to the interpreter's personal preferences nor evolve in response to changing social conditions. On the contrary, the Act's original (and therefore "true") meaning remains constant over time, changing only when amended by a duly elected legislative authority. (16)

A typical example of originalist construction can be found in Justice Rand's decision in Quebec Railway Light & Power Co. v. Town of Beauport (1945). (17) In that case, the Supreme Court of Canada was asked to interpret section 323 of the Railway Act, 1919, (18) which prevented transport companies from collecting "any toll or money for any service as a common carrier except under and in accordance with the provisions of this Act". The primary purpose of this law was to govern the fares that could be charged to railway passengers. The question before the Court in Quebec Railway was whether the relevant text applied to tolls collected for bus services as well.

The literal language of section 323 appeared capable of embracing toils collected in respect of bus transportation. As noted above, section 323 expressly applied to any tolls that were levied "for any service as a common carrier", and buses were widely regarded as "common carriers" in 1945 (when Quebec Railway was heard). The difficulty was that the relevant text had been passed twenty-six years earlier, at a time when (according to Justice Rand) bus transportation didn't exist. While the statute's "plain meaning" was certainly broad enough to encompass bus services, it was difficult to attribute to the legislative authors an intention to regulate vehicles that were yet to be invented at the time that the relevant statute was enacted.

True to his originalist perspective, Justice Rand held that despite their current, literal meaning, the words "service as a common carrier" could not apply to bus operations. According to Justice Rand:

... precise language would be necessary to bring within [the Act's] scope transportation operations by means of power and vehicles unknown when the legislation was first enacted.... That enactment cannot, therefore, be held to embrace the regulation of tolls for autobus transportation, either alone or in conjunction with the tramway. (19) As an originalist, Justice Rand believed that the meaning of statutory text was established by the unchangeable, historical expectations of the authors of the relevant legislation. When the legislators had used the phrase "service as a common carrier" in section 323, they could not (according to Justice Rand) have envisioned a form of transport that had yet to be invented. (20) Simply stated, one could not attribute a "1945 intention" to legislators who acted in 1919. In accordance with originalist doctrine, Justice Rand felt that the Court was powerless to expand the scope of the phrase "common carrier" beyond the meaning that was specifically envisioned by the statutory authors at the time that the relevant statute had been passed. He therefore held that the statute's meaning was confined to forms of...

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