A UNIFIED APPROACH TO CONSTITUTIONAL AND STATUTORY INTERPRETATION

Abstract

As a jurisdiction with a written constitution, in Canada, questions arise about whether constitutional interpretation should be and is the same as ordinary statutory interpretation. Should the Supreme Court of Canada interpret constitutional and ordinary statutes in the same way? Does the Court do so? Although the jurisprudence and the scholarship hint at diverging answers to these questions, there has been little sustained attempt to answer them. In this article, I aim to fill that lacuna. I argue that the Court should adopt the same approach to constitutional and statutory interpretation. Then, I suggest that although the Court has purported to adopt different approaches to constitutional and statutory interpretation, its practice has been to adopt what is in substance and effect a unified approach. In short, I suggest that there is both a normative case and a descriptive case for a unified approach to constitutional and statutory interpretation in Canada. On the unified approach, the interpretation of a statute, whether the statute is constitutional or ordinary, considers the text and the entire context, including the purpose and history. Constitutional interpretation is a special case of statutory interpretation, given the distinctive text and context.