Interpretative Rules and the Canadian Charter

Benjamin J. Oliphant, University of Toronto, is publishing Taking Purposes Seriously: The Purposive Scope and Textual Bounds of Interpretation Under the Canadian Charter of Rights and Freedoms in a slightly altered form in the University of Toronto Law Journal. Here is the abstract.

In order for judicial review under the constitution to be compatible (sic) the rule of law, there must be some tangible constraints on judicial interpretation. The author puts forward an account of interpretation under the Charter of Rights and Freedoms that views both the text and purposes underlying it as meaningful constraints on the range of meanings available to interpreters. In particular, the author seeks to demonstrate that ‘purposivism’ as a method of interpretation can, and frequently has in the Canadian context, operated to narrow the scope of vague and under-determinate constitutional guarantees. The author criticizes more expansive forms of purposivism, which seek not only to inform the meaning of the words included in the Charter, but also to give those purposes said to animate the guarantees independent legal force. This point is illustrated with particular reference to the Supreme Court of Canada’s right to vote jurisprudence. The author concludes that these more aggressive approaches to purposivism risk elevating judicially-ascertained purposes to the same legal status as the language enacted into law, and undermine the defence frequently offered in support of the legitimacy of judicial review under the Charter – that it stems from the deliberate choices of the people. 

Download the draft of the article from SSRN at the link.