Mark Mancini (Thompson Rivers University – Faculty of Law) has posted “Text as Anchor” in Statutory Interpretation (Forthcoming, Canadian Bar Review) on SSRN. Here is the abstract:
This article offers a doctrinal elaboration and defense of the Supreme Court’s recent emphasis on the text as the “anchor” of the modern approach to statutory interpretation. Drawing on recent jurisprudence, including CISSS A and Kosicki, the paper argues that the concept of relative generality explains how the text controls judicial interpretation. Through the design of rules that are more or less general, legislative language functions as a deliberate signal of the degree to which courts can enrich the written law with potentially unwritten sources of law. Taking the text as anchor approach seriously suggests that statutory purpose can be deployed: (1) as an interpretive tool to select among plausible meanings of a text where the language is capable of multiple semantic interpretations; and (2) as a constructive tool to narrow specific statutory language to better align with the overall statutory scheme and the “domain” to which it applies.
Ultimately, this paper contends that clarifying these functions resolves tensions in the application of the modern approach, while centring the distinct contribution of statutory texts–the “writtenness” of statute law–to our legal order.