Below is an excerpt from the introduction of my new book that will be published by LexisNexis on November 30. More information about this book can be found here.
There are times when judges interpret statutes in ways that defy common sense. A notorious example was raised during the Senate confirmation hearings of eventual U.S. Supreme Court appointee Neil Gorsuch in which he was pressed by Democratic members to defend his dissent in Trans Am Trucking. In what is known as the “frozen trucker case”, he denied a trucker the benefit of protective legislation permitting an employee to refuse to operate a vehicle in unsafe conditions. In particular, Judge Gorsuch determined that the trucker had not “refused to operate” a vehicle since, in fact, he had driven it to avoid an unsafe condition. It did not matter that he his truck was stranded because of a defective trailer and the only way to avoid freezing to death in subzero conditions seemed to be to unhitch the trailer and drive away to safety. This did not matter because the language of the statute stated that the benefit of the protection extended to refusals to drive a truck, and not positive acts of driving, in unsafe conditions.
Most would have a visceral discomfort with this result, and the reason given, though it might be difficult to articulate exactly why. One of the goals of this book is to explain why. Rather than describing the miscellany of approaches, techniques and tools of statutory interpretation, my hope is that this book provides a contribution both in the perspective taken to the subject as well as the analytical framework it offers for arriving at satisfactory interpretations. The perspective taken is diagnostic in the sense that a satisfactory solution must acknowledge the existence and nature of the problem. In other words, we cannot prescribe an appropriate interpretative response in difficult cases of statutory interpretation without knowing what makes that case problematic. The fact that most interpretive problems arise from the incomplete formulation of rules crafted by the Legislature is well articulated in jurisprudential literature yet somehow goes unnoticed in the study of statutory interpretation and its practical application.
Understanding the reasons why rules are incomplete (and just as importantly where there a rule is clear in its application) sets us on a path where we know not just when courts are to exercise interpretive judgement but also how do go about doing so. Returning to the frozen trucker case, it is obvious that these facts were unanticipated. The legislature envisioned, as it often does, a paradigm situation in which worker safety is implicated by the operation of vehicle that, for example, is overloaded or has faulty brakes. The reason we are uncomfortable with Judge Gorsuch’s decision is that there is no material difference between operating or refusing to operate a vehicle when the goal, or purpose, is to protect the employee. To place so much emphasis on the literal wording of the statute, when real life offers so many variations that depart from the usual case anticipated by the legislature, is formalistic and shallow. The rule was incomplete, and required interpretive judgment, because the case was unanticipated. As such a court would be well justified to include the driving of a vehicle to avoid an unsafe condition since that fits squarely within the purpose of the law and it would be absurd not to include it.
While this book offers reasons for why courts are enabled to develop law in cases like Trans Am Trucking, it also demarcates boundaries that constrain interpretive judgement. There are times when the legislative intent is clear, e.g. certain cases that clearly fit within the scope of a rule. There is no doubt that a car or truck are standard instances of a “vehicle” for the purpose of the rule “no vehicles in the park.” One would think these are (perhaps the only) straightforward cases of statutory interpretation. But in a couple of recent cases discussed in this book, the Supreme Court of Canada (or some members thereof) has ignored such obvious constraints of legislative intent. In one case (University of Calgary), “privilege of the law of evidence” was held by a majority of the court to not include solicitor-client privilege, even though it made absolutely no sense to exclude this standard instance relative to other kinds of evidentiary privilege. In yet another (Wilson), the dissent eviscerated a scheme of the Canada Labor Code that protected employees against arbitrary dismissal. Much like ignoring a standard instance case that is an obvious manifestation of a rule, rendering an entire remedial scheme meaningless exceeds the legitimate discretion of the judiciary.
While reducing criticisms of these cases to simple propositions may sound reductionist, it actually is not. Despite lengthy reasons, fundamental issues of legislative intent are inadequately accounted for in these judgements. Why would the legislature create a remedial regime to protect employees from unjust dismissal if they could simply fire them with adequate notice? Why would the legislature specify “privilege of the law of evidence” and not intend to include solicitor-client privilege particularly when it is not demonstrably worthy of greater protection compared with the other handful of existing privileges, e.g. police informant? The reasons provided skirt around, and are often a distraction from, these core issues. Readers of these judgements (even lawyers) may be overwhelmed by elaborate and sometimes arcane reasoning that masks a superficial account of legislative intent. The law then becomes unwieldy, inaccessible and, worst of all, irrational.
Poor decisions are rendered, and inadequately critiqued, at least in part because statutory interpretation is viewed as a largely indeterminate exercise that usually permits different, and more or less equally valid interpretations. Judges have virtual free reign to employ the tools and techniques of their choosing and (perhaps even more disturbing) lawyers, lacking benchmarks to criticize these decisions, defer to them. Judges also engage in a rhetoric buttressing the legitimacy of their role as merely giving effect to will of the legislature (as opposed to making law) that usually masks a paucity of analysis as to why their approach to interpretation connects us to a legislative intent, or what to do when it does not. In this book, I reject the hopeless relativism of statutory interpretation and argue that good interpretive practices can in many cases offer a persuasive account of legislative intent in specific cases.
Until now, I have presented statutory interpretation in its worst light. I have done so to highlight some fundamental problems that I hope this book in some modest way will help to remedy. To be sure, there are many excellent examples of statutory interpretation. These usually flow from a robust application of the modern principle, which is the official approach to statutory interpretation in Canada, and is a sound and wise methodology. The modern principle embraces various singular approaches to statutory interpretation in that it focuses on the language of a statutory provision in light of its purpose, intent, and context. This book not only endorses the modern principle, it is structured around it. Much of this book is dedicated to analyzing the various, and specific, facets of the modern principle that help to identify more convincing interpretations of legislative intent.
At the same time, this book presents some analytical refinements to the modern principle. The most notable of these is the unpacking of the facets of the principle into one of two streams: as either probative of legislative intent, on the one hand, or better facilitating the resolution of cases of ambiguous legislative intent, on the other. This is a departure from the modern principle which currently combines all facets into a single analysis. The refinement acknowledges that the primary goal of the interpretive exercise is to uncover a convincing account of legislative intent but when this fails, courts should pragmatically resolve the case to best develop the law. By more clearly defining the elements of the modern principle and how they connect with legislative intent (and what courts should do when they do not), it is my hope that this book will offer a more probing methodology for crafting persuasive interpretations.