The Purpose Error in the Modern Approach to Statutory Interpretation

26 Pages Posted: 25 Oct 2021 Last revised: 29 Nov 2021

See all articles by Mark Mancini

Mark Mancini

University of British Columbia (UBC), Faculty of Law

Date Written: October 21, 2021

Abstract

This modern approach to statutory interpretation holds that courts must use text, context, and purpose "harmoniously" to ascertain legislative intent. Otherwise, the modern approach provides little guidance on how to use these tools of interpretation. As a result, this paper argues that courts can commit a "purpose error" under the modern approach, where courts give too much weight to abstract primary purposes of a statute at the expense of rules, standards, and delegations incorporated in text. The result is an interpretation that is far from "harmonious"--such an interpretation maximizes one tool of interpretation over others. The paper endorses recent attempts by the Supreme Court to recognize and avoid this error, and it provides insights into avoiding the purpose error in an upcoming Supreme Court case, Entertainment Software Association.

The paper outlines what the purpose error is and how it can come to pass. It then describes how the Supreme Court in Telus v Wellman and R v Rafilovich avoided the purpose error by rooting abstract statutory purposes in the textual scheme under interpretation. Next, it outlines the reasons why an approach that avoids the purpose error is desirable: (1) It is consistent with the dominant theory of legislative interpretation that views courts as "faithful agents"; (2) it is consistent with the theory of "purposvism" endorsed by the Supreme Court, and the idea of "harmonious interpretation"; (3) it leads to a more consistent and predictable application of the modern approach.

Keywords: statutory interpretation, purpose, text

JEL Classification: K10

Suggested Citation

Mancini, Mark, The Purpose Error in the Modern Approach to Statutory Interpretation (October 21, 2021). Alberta Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3947396

Mark Mancini (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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