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Quebec (AG) v. 9147-0732 Québec inc. is out and there's a lot of interesting guidance from the majority on constitutional interpretation and the use of international law. And I actually think they go quite far to counter some of the recent claims that a genuinely "textualist"...
or "originalist" approach is gaining favour on the bench. At the end of the day, what the majority says here is actually very modest: words matter. Words have to be the starting place for understanding the scope of a right. Their meaning can evolve, can be contested, can be...
informed by other sources (yes! even international sources, of all kinds!), but methodologically they are the point of departure. This is not a conservative position, originalist position, or a textualist position. It's basically a restatement of the status quo. In fact, if you
read what Brown and Rowe JJ say they're doing, versus what Abella J says she's doing, the gap is actually not that extraordinary. The real divide is what they seem to think the other is *actually* doing, or how they characterize it in practice. (and, much like in administrative
law when we talk about "*doing* reasonableness review," how a judge actually applies a given approach is much more interesting and telling than whatever they say about that approach in the abstract.
Addendum — I think part of what I'm trying to say is that Abella J's reasons actually make the majority's position look way more conservative and novel that what they are actually saying or doing here, and while I'm sure that was not her intention I worry it may be the result.
