Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation

(2021) 47:1 Queen’s Law Journal 78

34 Pages Posted: 16 Feb 2022

Date Written: February 10, 2022

Abstract

Both the Supreme Court of Canada and Canadian scholarship often treat debates about constitutional interpretation as settled. This articles shows that this is not so. While it is commonly assumed that purposivism is the authoritative interpretive method, originalism and textualism continue to influence the Supreme Court's decision-making. This article demonstrates their decisive influence on three recent cases interpreting the Canadian Charter of Rights and Freedoms.

After an overview of the main interpretive approaches present in the Supreme Court's eclectic jurisprudence―pursposivism, living constitutionalism, and originalism―the article critically assesses the majority and minority reasons in R v Stillman, R v Poulin, and Quebec (Attorney
General) v 9147-0732 Québec Inc. While all the opinions profess fidelity to purposivism, they are sharply divided about interpretive questions. A close examination of the majority opinions shows that they were, in fact, more textualist or even originalist than they acknowledged. Their endorsement of purposivism and even the ostensible rejection of textualism in Québec Inc are hollow.

Suggested Citation

Sirota, Leonid, Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation (February 10, 2022). (2021) 47:1 Queen’s Law Journal 78, Available at SSRN: https://ssrn.com/abstract=4032100

Leonid Sirota (Contact Author)

School of Law ( email )

Foxhill House
Whiteknights Campus
Reading, Berkshire RG6 6BA
United Kingdom

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