The Era of Concealed Underlying Premises Is Over: L'Heureux-Dube J.'s Contribution to Statutory Interpretation
| Author | Ruth Sullivan |
| Pages | 49-80 |
Five
The Era of
Concealed
Underlying
Premises
Is
Over: L'Heureux-Dube
J/s
Contribution
to
Statutory
Interpretation
RUTH
SULLIVAN
Introduction
In
2000
Justice
L'Heureux-Dube delivered
the
Rubin Lecture
at the
Louisiana
State University
Law
Center
on the
topic
of
bijuralism.
She
began
by
quoting
some remarks
of
John
Sexton,
the
dean
of New
York
University
Law
School,
on the
merits
and
implications
of
intellectual self-examination:
Discovering
a
premise
that
unconsciously shaped one's
thinking
is
a
dramatic
moment
intellectually,
and the
repetition
of
such
discoveries
should
instill
intellectual
humility
and a
reluctance
to
assume
that
there
is a
single
right
answer.1
It is not
surprising that L'Heureux-Dube
J.
opened
her
presentation with
a
reference
to
unconscious premises that shape one's thinking,
for
drawing
attention
to
such premises
and
their impact
on
interpretation
is one of her
most important contributions
to
Canadian law.
As she
notes
in R. v.
Seaboyer,
the
impact
of
unconscious premises
can be
pernicious:
Whatever
the
test
[of
relevance],
be it one of
experience, com-
mon
sense
or
logic,
it is a
decision particularly vulnerable
to the
application
of
private beliefs. Regardless
of the
definition
used,
49
50
ADDING FEMINISM
TO
LAW
the
content
of any
relevancy decision
will
be
filled
by the
partic-
ular
judge's experience, common sense and/or logic.
For the
most part there
will
be
general agreement
as to
that which
is
rel-
evant
and the
determination
will
not be
problematic.
However,
there
are
certain
areas
of
inquiry where experience, common
sense
and
logic
are
informed
by
stereotype
and
myth
...2
In
a
report prepared
for the
Ontario Women's Directorate
in
1988,
by
Informa Inc., "Sexual Assault: Measuring
the
Impact
of the
Launch
Campaign",
the
prevalence among Ontario residents
of
a
number
of
stereotypical
and
discriminatory
beliefs
was
meas-
ured.
The
results indicate that similar stereotypes
are
held
by a
surprising number
of
individuals,
for
example: that
men who
assault
are not
like normal men,
the
"mad rapist"
myth;
that
women often provoke
or
precipitate sexual assault; that women
are
assaulted
by
strangers; that women often agree
to
have
sex
but
later complain
of
rape;
and the
related
myth
that
men are
often convicted
on the
false
testimony
of the
complainant;
that
women
are as
likely
to
commit sexual assault
as are men and
that when women
say no
they
do not
necessarily mean
no.
This
baggage
belongs
to us all
...3
The
Seaboyer
case
was not
about
statutory
interpretation;
it
involved
a
Charter
challenge
to
Criminal
Code
provisions
that
excluded
certain
types
of
evidence
in
trials
for
sexual
assault.
The
passage
set out
above
is
nonetheless
relevant,
because
it
draws
attention
to the
hazards
of
establishing
factual con-
clusions
through
inference,
an
activity
that
lies
at the
heart
of all
interpreta-
tion.
Interpreting
a
perceived
event
is not
very
different from
interpreting
a
text.
Both
are
responses
to
sensory
inputs
that
the
mind
strives
to
organize
in
a
meaningful
way by
drawing
on its
knowledge
of the
world.
This
knowledge
constitutes
the
context
in
which
legislation
is
read.
Here
is
what
Dan
Sperber
and
Deidre
Wilson,
two
leading
scholars
in
linguistics,
have
to say
about
the
concept
and
role
of
context
in
interpretation:
The set of
premises used
in
interpreting
an
utterance
...
consti-
tutes what
is
generally known
as the
context.
A
context
is a
psy-
chological construct,
a
subset
of the
hearer's
assumption
about
FIVE
* THE ERA OF
CONCEALED
UNDERLYING
PREMISES
IS
OVER
the
world.
It is
these assumptions,
of
course, rather than
the
actual
state
of the
world,
that affect
the
interpretation
of an
utter-
ance.
...
[Expectations
about
the
future, scientific hypotheses
or
religious
beliefs,
anecdotal
memories,
general
cultural
assump-
tions, beliefs about
the
mental state
of the
speaker,
may all
play
a
role
in
interpretation.
While
it is
clear
that members
of the
same linguistic community
converge
on the
same language,
and
plausible that they con-
verge
on the
same inferential abilities,
the
same
is not
true
of
their assumptions about
the
world
...
Differences
in
life history
necessarily
lead
to
differences
in
memorised information.
Moreover,
it has
been repeatedly shown that
two
people wit-
nessing
the
same
event—even
a
salient
and
highly memorable
event like
a car
accident—may
construct dramatically
different
representations
of it,
disagreeing
not
just
on
their interpretation
of
it, but in
their memory
of the
basic physical facts. While gram-
mars
neutralise
the
differences between dissimilar experiences,
cognition
and
memory superimpose differences even
on
com-
mon
experiences.
... A
central problem
for
pragmatic theory
is to
describe how,
for
any
given utterance,
the
hearer finds
a
context which enables
him to
understand
it
adequately.4
At
the
heart
of
Justice
L'Heureux-Dube's
work
is the
recognition
that
people
construct
different
representations
of the
world
from
their
experience
and
different
meanings
from
texts.
All
interpretation
depends
on
context,
and
the
context
an
interpreter
brings
to an
experience
or a
text
inevitably
varies
with
his or her
cultural
and
personal
"baggage."
As a
francophone
and
civilist
in
an
English-speaking,
common
law
continent
and as a
woman
in a
patriar-
chal
society,
Justice
L'Heureux-Dube
was
well
placed
to
notice
the gap
between
the
underlying
premises
of the
dominant
group
and the
underlying
premises
of an
outsider,
rooted
in a
different
cultural
and
personal
experience.
Dominant
groups
dominate,
in
part
at
least,
by
equating
their
underlying
premises
with
truth,
common
sense,
and
logic.
It
follows
that
their
premises
must
be
accepted
by
anyone
who is
truthful,
sensible,
and
logical.
Because
51
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