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

2 2005 SCC 80 at para 2 [Labaye].

3 Ibid at paras 23–24.

4 Ibid at para 29.