Interpretive Methodology: Is Anything Ever Really Settled?

Recently, I observed that the Supreme Court’s majority opinion in Taylor reaffirmed its commitment to living tree-ism and large, generous interpretations of Charter provisions. This has temporarily cooled hopes (by some) and fears (by others) that the Court might be prepared to abandon the interpretive methodology articulated in Hunter and Big M in favour of something like “purposive textual interpretation”. The Court is in a volatile state at the moment, especially given Justice Martin’s impending departure. Who knows how the next appointment could alter the dynamics and balance of power on the Court? Still, Taylor (and now Kanyinda) suggest that living tree-ism is now in full flight, and that Justice Rowe is currently providing the only consistent headwind.¹

The majority decision in Taylor has led me to think more about the extent to which a (constitutional) interpretive methodology can really be up for reappraisal. Is it legitimate even to try to displace living tree-ism? And, if such an attempt succeeded, what would make the methodology that replaced it any more stable in the long term?

These are relatively new questions for Canadian constitutional lawyers. Recent skirmishes aside, there has been vanishingly little debate about what interpretive methodology should be adopted because, for most of the Charter era, it has largely been assumed that originalism and textualism are non-starters. That is a function of the widespread (if implicit) assumption that the SCC not only can but did bind lower courts (and itself) to a single constitutional interpretive methodology. Against that backdrop, suggestions that Canadian courts should adopt alternative methodologies were, for a long time, not taken as seriously as they should have been - often dismissed as merely academic (in the pejorative sense of being impractical or fanciful); or vaguely unlawyerly (insofar as they threatened to unsettle doctrines that had seemed long-settled).

Yet I believe we have reached a kind of tipping point in Canadian constitutional discourse. No matter what the majority in Taylor said, the idea that alternative constitutional methodologies are inherently implausible or beyond-the-pale or unworthy of attention by constitutional scholars in Canada is simply not a serious intellectual position in 2026. There has been enough jostling over constitutional methodology - within the Supreme Court of Canada (see my discussion of Frank); on lower courts (see my discussion of Drover); in extra-judicial writings and presentations by sitting and retired judges; in addition to substantial academic scholarship engaging with ideas borrowed from the United States - that our horizons over what might have been, and what is possible, have changed forever. The Overton window (sorry) has moved. The bell cannot be unrung. To some, Yeats’ Second Coming will spring to mind, and I am sorry to bring them bad news. But the case for living tree constitutionalism must now be made - not assumed.

I am not sure about the extent to which notions of stare decisis can resolve debates over interpretive methodology, especially at the level of constitutional methodology. In large part, this is because I am not sure about the extent to which the choice of constitutional methodology was, is, or could be driven by strictly “legal” considerations - meaning considerations that are distinct and distinguishable from other normative factors (like political morality).

The Charter was arguably something altogether new in Canada’s constitutional order. No authoritative instrument told the SCC how to read it - perhaps could have told the Court how to read it. The SCC in Hunter and Big M had to decide how to read it; had to decide whether reading the Charter was basically like reading a statute or not; had to decide whether its constitutional character weighed in favour of treating it like something ‘living’ or ‘dead’; had to decide whether principles of constitutional interpretation used in a federalism dispute could be extended to a dispute over the meaning of a ‘bill of rights’; had to decide what factors warranted consideration when ascertaining its provisions. (On the array of choices to be made, consider Francisco Urbina’s wonderful paper: “Choices in Interpretation”.) It is not obvious that there was any pre-existing body of Canadian law that could truly resolve those ‘technical’ questions - not, at least, without presupposing the answers.

In this important respect, Hunter and Big M are tubs that stand on their own bottom. Their authority is not obviously or transparently drawn from anything legally prior, but fundamentally rests on the extent to which one finds them persuasive on their own account and in light of the 40+ years that followed. We now know, moreover, that there were (and are) options other than living tree constitutionalism - options that were not obvious to anyone at the time of Hunter and Big M. That being the case, there is surely room to hold Hunter and Big M up for reappraisal: what the Supreme Court can make from whole cloth, relying ultimately upon nothing but its own institutional authority, it can unmake or refashion.

This is tied to a problem I raised several months ago: is the decision to adopt one constitutional interpretive methodology rather than another meaningfully constrained by law; or is it really just up to judges to decide, drawing upon their own moral and political beliefs and values, what methodology will produce the ‘best’ legal and constitutional order?² The latter idea makes critics of the Supreme Court of Canada nervous - and the nervousness, I will say in a moment, is not altogether unwarranted - but I want to stress for now that this way of thinking about the “choice” of methodology arguably has a clarifying, demystifying effect on cases like Hunter, Big M, and (yes) Taylor. For accepting that view means that these cases, and the constitutional interpretive methodology for which they stand, are fundamentally based on bedrock ideas of political morality and philosophy; on what judges must do and be allowed to do in a constitutional democracy; on how and to whom they can/must defend their decisions; on the relationship between rights and the community; and on what vision of justice should be pursued (both within the courts through litigation, but also through other avenues). The same would be true for any alternative methodology.

The idea that interpretive methodologies are normative ‘all the way down’ arguably undercuts any claim that any one methodology can simply be imposed by fiat; i.e., through nothing more than a brute assertion of institutional authority. People disagree on basic matters of political morality and the nature of constitutionalism. This includes Canadian lawyers and judges to a far greater degree than we once appreciated. If the SCC (or a majority thereof) wishes to impose a methodology on the legal profession, it must offer a normative justification for that methodology that resonates. Insofar as it fails to do so - and some degree of failure, practically speaking, seems baked in - questions of interpretive methodology will inevitably remain unsettled, whether the Supreme Court likes it or not.

Tara Leigh Grove, in an excellent³ piece that will shortly appear in the Yale Law Journal, has argued that the United States Supreme Court has limited authority to impose an interpretive methodology on itself and lower courts. Her argument is largely based on Article III of the US Constitution, which confines the judicial power to “cases or controversies”, and the distinction between ratio and obiter dicta. Since the USSC has no authority under Article III simply to set out broad rules of general application, untethered to discrete cases or controversies, it can only issue methodological guidance on a piecemeal basis. This limits its ability to sweep away old methodologies and replace them en masse by sheer fiat - and effectively allows for a kind of methodological pluralism. In Grove’s view, this is all to the good inasmuch as we want proponents of dominant interpretive methodologies to have to defend those methodologies on normative grounds, sometimes refining them; not rest on arguments from authority and stare decisis. (Grove is interviewed by Samuel Moyn and David Schleicher on their Digging A Hole podcast here.)

In Canada, this type of argument would seem to be on shakier footing. It is generally accepted that, unlike the USSC, the Supreme Court of Canada can issue advisory opinions; and the Court has adopted approaches to standing and justiciability that are difficult to reconcile with an understanding of the judicial power tethered to discrete cases or controversies. (I note in passing that the majority’s opinion in Taylor also endorses a decidedly flexible approach to mootness.) Furthermore, the Court has taken a generous (though by no means unbounded) view of its power to bind through obiter dicta. Finally, Hunter, Big M, and now Taylor are not cautious in suggesting that living constitutionalism is an appropriate methodology - insofar as it can be described as one - across the Charter landscape. And traditionally, lower courts and practitioners have certainly acted as if the Supreme Court has the power to impose this view upon them.

Now, one can say that this is not interpretive hegemony in any important sense, precisely because living constitutionalism is so unstructured and open in what can be considered that it effectively forecloses nothing. Grove argues that internecine debates over what is and isn’t ‘allowed’ by a given methodology - say, ‘textualism’ - represents a further qualification on the US Supreme Court’s ability to truly (as opposed to nominally) impose an interpretive methodology on the bench and bar as a whole. If that is true for textualism, there is surely a sense in which it is all the more true for living tree-ism - especially given the vast range of factors that a judge may, depending on his or her particular values and proclivities, include or exclude; and given the absence of any guidance whatsoever on how to resolve ‘level of abstraction’ problems. For its part, the majority in Taylor strenuously denied that it is so formless - so lacking in “rigour” - as a methodology. In any event, it suffices to say for now that, inasmuch as there is a discernible method, it is a fundamentally rights-inflationary one; one that critics maintain should be replaced with something significantly more grounded. I do not think we can call this ‘methodological pluralism’ in any serious sense.

Grove doesn’t take issue with the idea that (again, in the American context) there can be (with significant qualifications) methodological stare decisis. This is, however, disputed. Randy Kozel, to take a prominent example, has said:

Though it is reasonable to urge a justice to subordinate her personal views within the context of particular cases, it is unreasonable (and unrealistic) to request that she adopt, for all intents and purposes, an interpretive methodology that is not her own. …. Asking a justice to interpret all constitutional provisions using a methodology of which she disapproves - be it originalism, living constitutionalism, or otherwise - is asking too much. It requires extraordinary sacrifice without sufficient return. No justice would make such a pledge, and no justice should.

One can fairly say that, as a descriptive matter, this goes a bit far - even in the United States, where judges do appear to regard themselves as bound to at least try or purport to use interpretive methodologies that they do not endorse. In Canada, it sounds unreal. But Kozel, I think, is appealing to an intuition that, given the normative stakes of adopting one interpretive methodology rather than another, judges and lawyers should try to keep those normative debates going, rather than rush to treat them as closed. This returns me to my earlier suggestion that, when it comes to choosing interpretive methodologies, we may have no choice but to fall back upon ‘thick’ normative reasons - reasons of morality and political philosophy. (See Cass Sunstein and (even more forcefully) Francisco Urbina.) Positive law by itself simply may be unable to resolve anything.

If we were to get ‘more pluralism’ in Canadian interpretive methodology, would that be a good thing? Many would say no. It would undoubtedly introduce disruption and some uncertainty into Charter analysis and litigation. This is precisely why I argued in an early post that the Supreme Court would be unlikely to abandon Hunter and Big M. Such a shift would throw into doubt many constitutional precedents. There is also a flipside: ‘more pluralism’ would make any reformist victories in Canada’s ‘interpretation wars’ - if it is possible yet to speak of such a thing here - wholly provisional.⁴ Nonetheless, in light of Taylor, now is a good time to reflect upon the extent to which the Supreme Court even can, practically speaking, unilaterally impose an interpretive methodology on itself and lower courts.

Comments and thoughts welcome.

1. Justice Rowe’s opinion in Kanyinda features many general reflections on Charter interpretation and methodology. It is well worth reading.

2. I promised a follow-up post on that question, and it is on its way… sometime; hopefully soon.

3. When Lawrence Solum describes it as “deep, important, and illuminating”, you know it’s good.

4. I set aside the question of whether this is a stand-off that.could be resolved legislatively or even through a constitutional amendment. But it is on my mind.