Legal Policy Analysis
Author | Ruth Sullivan |
Pages | 223-250 |
223
CHAPTER 14
LEGAL POLICY ANALYSIS
A. JUSTIFICATION FOR POLICY ANALYSIS
In determining the meaning of a provision in relation to particular
facts, courts inev itably engage in policy ana lysis. That is, they take into
account extra-textual values or norms that tend to favour one outcome
over another. Although this aspect of interpretation is often played
down by the courts, it is a normal and appropriate part of the inter-
pretive process.1
There are several ways in which extr a-textual values and norms are
introduced into interpretation. As part of the legal context, they assist
in inferring the meaning and purpose of legislation in textual and pur-
posive analyses and in distinguishing good from bad consequences in
consequential analysis. In these types of analyses the appeal to policy
is usually implicit and intuitive rather than formal and self-conscious.
However, policy enters interpretation in more formal and direct ways
as well: through the doctr ine of strict and liberal construction, through
presumptions of legislative intent, th rough distinct approaches to some
types of legislation, and, on occasion, through direct appeals to policy.
These are not rigid or tidy categories. The values are expressed in vari-
ous ways, and there is a good deal of overlap. For example, respect for
private property rights figures largely in the strict construction doc-
trine and is also reflected in the presumptions that the legislature does
1 For an account of legal context a s a source of values, see Chapter 3.
STATUTORY INTER PRETATION224
not intend to expropriate land without compensation and does not in-
tend to interfere with vested rights.
Although policy analysis i nvolves an appeal to values or norm s that
are external to the text, it is a legitimate part of statutory interpreta-
tion insofar as the values and norms relied on are rooted in legislation
or the common law or in the evolving legal tradition. Such reliance is
legitimate because t hese values and norms make up the legal culture in
which legislatures and courts both operate. It is appropriately assumed
that the legislature has them in mind when it enacts legislation and
that interpreters will take them into account when determining the
meaning of a legislative text.
Objections to policy analysis in statutory interpretation are gen-
erally grounded in fear that judges will reach conclusions based on
their own subjective preferences instead of giving effect to the inten-
tion of the legislature. However, when properly done, policy analysis
is not grounded in subjective preference; rather it is grounded in what
the Supreme Court of Canada in R v Labaye has called “objectively de-
fined norms.”2Labaye dealt with a prosecution under subsection 210(1)
of the Criminal Code, making it an offence to keep a common bawdy
house. In subsection 197(1), “bawdy house” was defined to include a
place resorted to for “the practice of acts of indecency.” It was up to the
courts to give meaningful content to the vague and value-laden notion
of indecency. The court held that for an act to be criminally indecent it
must create a risk of harm incompatible with the proper functioning of
society.3 Chief Justice McLachlin wrote:
Two general requirements emerge from this description of the harm
required for criminal indecency. First, . . . the harm must be ground-
ed in norms which our society has recognized in its Constitution or
similar fundamental laws. This means that the inquiry is not based
on individual notions of harm, nor on the teachings of a particular
ideology, but on what society, through its laws and institutions, has
recognized as essential to its proper functioning. Second, the harm
must be serious in deg ree.4
In Labaye the court clearly recognizes that a vague term in a pro-
vision obliges the interpreter to complete the law-making process by
giving specific content to the term in the context of particular cases.
Interpreters give content to terms by relying on (among other things)
“objectively defined norms.” There is no bright-line distinction between
3 Ibid at paras 23–24.
4 Ibid at para 29.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
