Policy Analysis

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 218-246

CHAP TER 12

POLICY ANALYSIS

A. JUSTIFICATION FOR POLICY ANALYSIS

In determining the meaning of a provision in relation to particular

facts, courts inevitably engage in policy analysis. That is, they take

into account extratextual values or preferences that tend to favour one

outcome over another. Although this aspect of interpretation is often

played down by the court s, it is an essential and appropriate part of the

interpretive process.

There are many ways in which extratextual values and preferences

are introduced into interpretation. They form part of the ba sis for infer-

ring the meani ng and purpose of legislation in textual and purposive

analyses and for distinguishing good from bad consequences in con-

sequential 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 doct rine of strict and l iberal constr uction, through

presumptions of legislative intent, through direct appeal s to policy and

through non-appl ication ru les.1 These are not rigid or tidy categories.

The values and policies are expressed in various way s, and there is a

good deal of overlap. For example, respect for private property r ights f‌ig-

ures largely in the strict construction doctr ine and is also ref‌lected dir-

ectly and indirectly i n several of the presumptions of legislative intent.

1 Non-application r ules are described and d iscussed in Chapter 13.

218

Policy Analysis 219

Although policy analysis involves an appeal to values and prefer-

ences that are external to the text, it is a legitimate part of statutory in-

terpretation in so far as t he values and preferences relied on are rooted

in legislation or the common law or in the evolvi ng legal tradition.

Such reliance is legitim ate because these va lues and preferences 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 t ake them into account

when determining the mean ing of a legislative text.

Objections to policy analysi s in statutory interpretation are gener-

ally grounded in fear th at judges will reach conclusions ba sed on their

own subjective preferences instead of giv ing effect to the intention of

the legisl ature. However, when prope rly done, policy an alysis is not

grounded in subjective preference; rather it is grounded in what the

Supreme Court of Canada has c alled “objectively def‌ined norms.”2 This

concept was elaborated in R. v. Labaye, which dealt with a prosec ution

under section 210(1) of the Criminal Code making it an offence to keep

a common bawdy house. In section 197(1), bawdy house was def‌ined

to include a place resorted to for “the practice of acts of indecenc y.” It

was up to the courts to give mea ningful content to the vague and value-

laden notion of indecency. In Labaye the court held that for an act to be

cri minall y indecent it must cre ate a risk of ha rm incomp atible with t he

proper functioning of society.3 McLachlin C.J. wrote:

Two general requirement emerge from this description of the harm

required for crim inal indecenc y. First, … the harm must be g round-

ed in norms whic h our society has re cognized i n its Constitution or

similar f undamental l aws. This mean s that the inqui ry is not bas ed

on individual not ions of harm, nor on the te achings of a par ticular

ideology, but on what society, through its laws and i nstitutions, h as

recognized a s essentia l to its proper function ing. Second, the har m

must be serious in de gree.4

In Labaye the court clearly recognizes that a vag ue term in a provi-

sion obliges the interpreter to complete the legislative process b y giving

specif‌ic content to the term in the context of par ticular cases. Interpret-

ers give content to terms by relying on (among other things) “object-

ively def‌ined norms.” There is no bright-line distinction between ter ms

that are vague or value-laden and those th at are not. Rather, there is a

2R. v. Labaye, 2005 SCC 80 at para. 2.

3Ibid. at paras. 23–24.

4Ibid. at para. 29.