Thank you very much for your comments. I think that, at least here, your dispute with the Court comes down to this. You say that the was no room for any meaning other than that which you say was the clear meaning. The Court didn't agree. You say, then, that the purposive dancing dance is not appropriate in this case because, in the broad sense, what it does to the Rule of Law. I agree, if you are right about how the statute had to be interpreted.
One of the reasons this decision bothers me so much is that the language at issue references a small and closed list of legal privileges including most prominently SCP. Statutory language rarely gets that specific. Rather, courts usually struggle when with vague open ended language and/or unforeseen cases, and they then must determine whether a case fits under the rule or not, e.g. Does a imperceptible copy of a work made on a computer constitute a copy under the Copyright Act? While I have a definite view on this question using a purposive analysis, I can at least grudging respect the legitimacy of a literal analysis suggesting the opposite result. I can not say the same thing for an analysis that says privilege of the law of evidence (think "vehicles") does not include SCP ("cars") but implicitly includes a handful of other privileges ("trucks, motorcycles") only because it did not specifically reference SCP ("cars"). Or to use another example, it is like saying that the crime of murder does not include choking someone to death because it is not specifically mentioned.
It seems to me that your point is could be either this:
1. You accept that a purposive analysis could have been used to support a purposive analysis even for this statute, the result of which could support the Court's conclusion. However, if we assume that that is what the Court did, the justification provided by the court is not sufficient for the use of that analysis and the conclusion of the Court. The Court's reasons are not even straw.
2. There is no room, given the wording of this statute and this section, for a valid purposive analysis which produces a result opposite to what you say the clear wording means. Put another way, you say the clear meaning of clear wording told the Court what the purpose was. No solicitor-client privilege. FULL STOP.
You can probably guess one one response a practitioner might make: even if could be right in principle as to what ought to have been the meaning, you don't have the last word (in this life.) I appreciate that that amounts to defining your concerns of existence: moving the Rule of Law closer to the "Rule of Man": to whim and whimsy and away from the principle that like cases be treated alike so that the citizenry have the opportunity, in a meaningful way, of assessing whether what they produce to do is lawful by existing law (where lawful means not illegal).
On your other point about judicial economy, I think we should expect our SCC judges to more fully construe the language of a provision. As I illustrate in my slaw piece, had they done that, I.e. What does privilege mean if not SCP? It would have seen the absurdity of its interpretation. Finally if you are suggesting that we never know the specific intention behind the language used so one plausible interpretation is as good or legitimate as the next, then I think that is a radical and ultimately unsatisfactory way to view this case.
My next paragraph was initially the past paragraph of my response to the first part of you comment. I've moved it here because I think this part of your comment continues the issue canvassed in the earlier part of your comment.
I don't know there's any answer beyond what I've said above. You are saying "these words necessarily mean X: meaning can have no valid meaning other than X". The Court said "no they don't mean X; they mean Y. If you are right and we assume the judges on the Court are at least as able as you are - well, at least one of them: I'm assuming you are the equivalent of Dworkin's Hercules for the present purposes - then what choices do we have to explain the Court's mistake in this case. The most tolerable of the explanations is a collective "brain fart" in this instance; that is; somehow, all of the Red Nine missed the point that you say is obvious. I suppose that's plausible. After all, you'll point out, I've been making versions of that argument for at least the past decade. Just bear in mind that one problem with that argument is what happened, apocryphally, to Cassandra or Socrates.
I will leave it there for now. Look forward to you next post. Btw, your fears about what I might do if you came to Alberta are unwarranted...I am not a cruel man :)
I will still get a full set of goalie equipment, just in case. And a full case of good Scotch.
Purposive Dancing With The Stars - Part 4 will contain the next part of my article.