Driedger's 'Modern Principle' at the Supreme Court of Canada: Interpretation, Justification, Legitimization

Abstract

In the last 20 years, Elmer Driedger’s “modern principle” has emerged as THE expression of the Supreme Court of Canada’s preferred approach to statutory interpretation. The authors examine this fundamental development in Canadian law, including the variable relations between Driedger’s quote and the Court’s use of it, the different circumstances in which the principle is invoked and its influence on the caselaw of other superior courts in the country. Follows an appraisal of the impact of the “modern principle” on Canadian law. The principle is shown to serve three clearly different functions. It is used in the interpretation of statutes, it provides judges with a justification framework for interpretive decisions, and it is also instrumental in the legitimization of the judicial function in statutory interpretation. No doubt, the “modern principle” has brought about some advances in the law relating to statutory interpretation in Canada. However, the author reckon that it constitutes an over-simplified reflection of the actual practice of Canadian jurists, including judges. As a result, Driedger’s principle provides neither a valid method for interpreting statutes nor a suitable structure for the courts’ justification of interpretive decisions. One should not see in it more than a good starting point for statutory interpretation.