Purposive Analysis

• Author: Ruth Sullivan
• Pages: 185-204

185

CHAPTER 11

PURPOSIVE ANALYSIS

A. INTRODUCTION

To achieve a sound interpretation of a legislative text, interpreters must

identify and take into account the purpose of the legislation. This in-

cludes the purpose of the provision to be interpreted as well as larger

units — parts, divisions, and the Act as a whole. Once identif‌ied, the

purpose is relied on to help establish the meaning of the text. It is

used as a standard against which proposed interpretations are tested:

an interpretation that promotes the purpose is preferred over one that

does not, while interpretations that would tend to defeat the purpose

are avoided.

Purposive ana lysis h as become a staple of modern interpretation. It

is used not only when the language of a text is found to be ambiguous

but in every case and at every stage of interpretation. This reliance

is justif‌ied by the interaction between language and purpose that is

present in all communication. The listener or reader infers the purpose

from what is being said and the circumstances in which it is said, and

at the same time understands what is being said in light of the pur pose.

A strong emphasis on purpose is also justif‌ied by a number of legal

considerations. First, a purposive approach has been mandated by the

legislature. There is a provision in every Canadian Interpretation Act

directing interpreters to give to every enactment “such fair, large and

liberal construction and interpretation as best ensures the attainment

of its objects.” Second, much modern legislation is written in a form

STATUTORY INTER PR ETATION186

that lends itself to purposive analysis. Provisions are often drafted in

general terms and may confer a broad di scretion on off‌icials. For courts

to discern the proper scope of such provisions, they must know their

purpose. A third factor is the Canadian Charter of Rights and Freedoms,

which came into force in 1982. In its earliest Charter decisions, the

Supreme Court of Canada emphasized the need for purposive analysis

both to give def‌inite meaning to the broad language and complex ideas

found in the Charter and to test whether legislation found to violate

its provisions might be justif‌ied under section 1. In working with the

Charter, Canadian courts have become accustomed to the techniques

of purposive analysis.

B. WHAT IS MEANT BY LEGISLATIVE PURPOSE

“Legislative purpose” can refer to a number of things. First, it may

refer to the primary aim or object of an enactment — that is, the ef-

fect the legislature hopes to produce through the operation of its rules

or scheme. This objective could be a social or economic goal, such as

job creation, reducing carbon emissions, or f‌inding a cure for a dis-

ease. It could be the promotion of specif‌ic values or policies, such as

multiculturalism or respect for privacy. Many statutes and individual

provisions have two or more primary objects that may complement or

conf‌lict with one another. In analyzing multipurpose legislation, the

courts often have to rank or str ike a balance between competing goals.1

“Legislative purpose” may also refer to various secondary consider-

ations. These are principles or policies th at the legi slature w ishes to ob-

serve, or considerations it is obliged to take into account, in pursuing

its primar y goals. The legislature never pursues a goal single-mindedly,

without qualif‌ication, and at all costs. There are always additional or

competing factors to be taken into account.2 These show up in legis-

lation in a variety of ways:

• in words of restriction, qualif‌ication, or exception that limit the

reach or effectiveness of the main goals

• in provisions that confer discretion on off‌icials, permitting them to

respond to a range of factors

1 See, for example, R v Steel e, 2014 SCC 61 at paras 25–29 and 35 –36; Merck Frosst

Canada Ltd v Cana da (Health), 2012 SCC 3 at paras 2 –4; R v Katigbak, 2011 SCC

48 at para 38.

2 This point is m ade in Sun Indalex Finance, LLC v United Steelworkers, 2013 SCC

6 at para 174.