Purposive Analysis

• Author: Ruth Sullivan
• Pages: 185-204

185

CH AP TER 11

PURPOSI V E A NALYSIS

A. INTRODUC TION

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

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

cludes the purpose of the provi sion to be interpreted as well as larger

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

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

used as a standa rd against which proposed interpretations are tested:

an interpretation that promotes the pur pose is preferred over one that

does not, while interpretations t hat 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 i s 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 t hat 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 i s also justif‌ied by a number of legal

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

legislature. There is a provision in ever y Canadian Interpretat ion Act

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

liberal construction and interpretation as best ensure s the attainment

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

STATUT ORY INTER PR ETATION186

that lends itself to pur posive 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 provi sions, 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 Charte r 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 h ave become accustomed to the techniques

of purposive analysis.

B. WHAT IS MEAN T BY LEGISLATIV E 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 res pect for privacy. Many statutes and individual

provisions have two or more primar y 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 legislat ure never pursues a goal single-mindedly,

without qualif‌ication, and at all cost s. 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 mai n goals

• in provisions that confer di scretion 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.