Ontario Superior Court Case Study

The key to understanding why the ruling by the Ontario Court of Appeals is more convincing lies in understanding textualism and its various shortcomings. As stated above textualism is a school of statutory interpretation that focuses heavily on analysing the actual text of the statute. To go deeper, textualism utilizes what is called the “plain meaning rule.” Under the plain meaning rule, if the words of a statue are clear and unambiguous, then other factors (like legislative intent, legislative history, compliance with public norms, avoiding absurd outcomes) are not considered at all by the court. Under a textualist approach, the only way those other factors can be considered is when the wording of a statute is unclear. Proponents of textualism …show more content…
Intentionalism as a school puts forth the idea that the role of the courts is to discover what the legislature intended to accomplish by passing a statute (their intent) and rule accordingly. Of course, the immediate issue is how can courts actually go about determining legislative intent? In the case of A.A. V. B.B. there is some clear evidence of legislative intent in the form of the Family Law Report, but such evidence will not always exist. Legislatures are made up of hundreds of individuals, and each one may have various reasons for supporting or voting for a bill. The confusion becomes even greater when dealing with older statutes, since it is more difficult for judges to discern the legislative intent behind a statute decades after said statute was passed. These troubles with determining legislative intent mean that judges can often use the broad umbrella of “legislative intent” to justify really any decision they choose to make. Consider the case of Harvard College V. Canada, where the court had to decide whether one could patent a genetically modified mouse under the Patent Act; eventually ruling that no, you could not patent a genetically modified mouse. In the decision, the justice writing on …show more content…
V. B.B. On the surface, Justice Rosenberg’s decision may seem intentionalist in nature, he argued that there was a legislative gap, and that he was justified in using the court’s parens patriae authority to fill that gap. What makes Justice Rosenberg’s decision pragmatic, is that Rosenberg does not simply default to the argument that he is following legislative intent in order to justify his decision. Justice Rosenberg references how society’s values and attitudes with regards to same-sex parentage have changed since the passage of the Children’s Law Reform Act. However, despite attitudes changing, the Children’s Law Reform Act did not recognize same-sex parentage, meaning that children with same-sex parents were not being accorded the same considerations as children with opposite-sex parents. As discussed earlier, one of the legal norms pragmatists consider when making their decision is fairness, and it would hardly be fair to make a ruling that disadvantages children with same-sex parents because the law failed to account for the existence of same-sex parentage. Justice Rosenberg also points to the fact that earlier decisions gave courts broad discretion when it comes to exercising their parens patriae authority; including using it in response to “changing social