The big fight over how to interpret legislation has produced another battle.
For some years Canada has endured a contest between those who see the words of legislation as a very important aspect of how to interpret the legislation, and those who find the words an unimportant technicality. This dispute impacts the difference between case law and legislation, and has implications for democracy.
Driedger’s original textbook and P.-A. Côté’s textbook favor the legislation’s wording, whereas Sullivan’s text regards the wording as a narrow restraint on what the judge wants the legislation to mean. Upwards of one hundred Supreme Court of Canada decisions recite the basic rule of interpretation. All cited the second edition of Driedger’s textbook, not the later editions by Sullivan.
Maybe you have fallen behind in reading cases which seem merely to be about Quebec’s Code of Civil Procedure. In that event, here is a very recent Supreme Court of Canada decision. It is general and not confined to procedural topics.
The Supreme Court reaffirms that a judge cannot deviate from intent clearly expressed by the wording of legislation, not even because of Charter principles or values. (Unless unconstitutionality is pleaded, proved, and found.) Only where legislation remains ambiguous even after using a contextual approach, can judges make Charter values or principles govern the statute’s meaning. (Nor can parliamentary debates be used that way, especially as courts implement wording, not intent). Still less can the court ignore the statute’s language or the intent expressed in such language.
See MédiaQMI v. Kamel 2021 SCC 23.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
