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Stratas JA - Statutory Interpretation. Le-Vel Brands, LLC v. Canada (Attorney General)
In Le-Vel Brands, LLC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Stratas JA) cites and responds to recent criticism of the role of intervenors, here with respect to an appeal of a judicial review case:[31] The Court is aware of recent criticism concerning recent judicial comments about the proper limits to intervention: see, e.g., R. v. McGregor, 2023 SCC 4 at paras. 98-115. This criticism is misplaced. It calls for response.
[32] At the root of the criticism is a view held by some — a wrong view — about how courts should decide cases.
[33] To some, courts should inject their view of what is right, just and reasonable into any case that comes before them. For example, some see legislative interpretation as an open-ended task where courts are free to do "“the right thing”", adopt the "“good ideas”" of academics and experts, and express what "“most”" would think is "“right”" or "“reasonable”". Others feel that interveners, with their "“valuable perspectives”", should be able to place before the Court academic articles full of untested social science assertions that are "“right”". Still others think that courts should wade in where legislatures fear to tread in order to correct "“injustices”".
[34] Often we see this in cases about legislative interpretation. When interpreting legislation, courts must identify the legislature’s purpose behind the text it adopted. But on occasion, interveners divert courts from that task by proffering their preferred policies as the purpose. This is heresy: see generally Mark Mancini, "“The Purpose Error in the Modern Approach to Statutory Interpretation”" (2022) 59:4 Alta L Rev 919. Some interveners go even further: they offer untested new evidence, make submissions without evidence, and commandeer cases that directly affected parties have prosecuted and defended for years at great cost and stress: Right to Life at para. 13; Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 14; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120, [2019] D.T.C. 5062 at para. 8; Canadian Council for Refugees at para. 27.
[35] Interveners admitted into our proceedings usually are those who have shown an understanding of the judiciary’s proper role. They advocate legal positions consistent with that role. The key is to understand the nature of that role.
[36] In our democracy, three branches of government—the legislative branch, the executive branch and the judiciary—share in our governance, each playing different and distinct roles. The judiciary decides legal disputes in accordance with legal doctrine. Over decades, the judiciary has shaped, settled and revised that doctrine based on the judiciary’s practical experience in real life cases, not based on the personal feelings, free-standing policy preferences or values of individual judges: Frederic R. Kellogg, "“Law, Morals, and Justice Holmes”" (1986), 69 Judicature 214; Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 22 and 23. Guarantees of freedom from interference by other branches together with a commitment to apply time-honoured doctrine allow the judiciary to resist result-oriented reasoning or populist pressures of the moment. See Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, [2016] 1 F.C.R. 686.
[37] In the case of judge-made law, the judiciary follows settled legal doctrine. Where the doctrine is underdeveloped or in need of revision, the judiciary develops it incrementally through accepted pathways of legal reasoning in accordance with sensible, widely accepted underlying principles: R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289; Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446, at paras. 116-117.
[38] In the case of statute law, the judiciary interprets it—exactly as drafted by those we elect—to ascertain and implement its authentic meaning, not to amend it: see TELUS, Rafilovitch, Michel, Williams, Cheema, Hillier, all above.
[39] And in the case of the Constitution, the judiciary fearlessly gives it force and effect but should follow precedent, moving incrementally, avoiding any temptation to treat the Constitution as just "“an empty vessel to be filled with whatever meaning [it] might wish from time to time”": Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 at para. 151.
[40] In all these areas, the judiciary, acting within its proper sphere, strives to make legal doctrine stable, simple and clear. This furthers freedom: it gives us certainty and predictability, it arms us with knowledge of what we can do, and it warns us about what we cannot do.
[41] In short, freestanding policy-making and law-making is not for the judiciary. Judges are nothing more than cloistered, well-off, tenured lawyers who happen to hold a judicial commission. Freestanding policy-making and law-making is for the politicians we elect. If we do not like their policies and laws, we can vote them out of office.
[42] What is the take-away here for those bringing motions to intervene? Those who understand the proper role of the judiciary and show how they can help the Court on the real issues in a case are more likely to be admitted. And once admitted, their submissions can be decisive.
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