The Enduring Wisdom of the Purposive Approach to Charter Interpretation
forthcoming in Kerri Froc, Howard Kislowicz & Richard Moon, eds, The Suprising Constitution (Vancouver: UBC Press, 2023)
26 Pages Posted: 29 Mar 2022 Last revised: 6 Feb 2023
Date Written: February 11, 2022
The purposive approach to Charter interpretation has proven to be one of the most enduring aspects of the Supreme Court of Canada’s Charter jurisprudence. The approach, which has remained largely unchanged since it was first articulated in Hunter v Southam and Big M Drug Mart, calls for an examination of the “interests” a Charter right “is meant to protect.” This requires the Court to consider a range of factors, from “the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.” It comes as somewhat of a surprise, then, that as the Charter nears its 40th anniversary, a recalibration of that approach is underway. In a series of recent decisions, a majority of the Supreme Court has employed a version of the purposive approach that tilts more heavily in favour of text and history. The consequence of this shift has been a notable contraction of the judicial role and the scope of individual rights.
For the moment, the precise contours of this re-calibration remain unclear. It is nonetheless a good moment to revisit the core interpretative doctrine that has dominated the Charter landscape for the last 40 years, and to examine why some judges have recently found it wanting. My own assessment is that the purposive approach has served Canada well. That is not to say that courts have gotten every case “right” or that the formulation is without its complexities. But it is an approach that sensibly requires courts to have regard to the demands of the text, the context of the case, and the deeper values that underlie the Charter. This is an approach that fits well with the constitution we have: a constitution that is a hybrid of law and politics, of written and non-written elements, of pragmatic elements and normative demands.
Keywords: Canadian Charter of Rights and Freedoms, Charter interpretation, constitutional interpretation, originalism, textualism, purposive approach, Supreme Court of Canada
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