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

• Author: Sirota, Leonid
• Position: Canada

Introduction

1. Defining Terms

2. The Supreme Court of Canada's Jurisprudence of Interpretive Eclecticism

3. The Purposivist Trilogy

   1. Stillman

   2. Poulin

   3. Quebec Inc

4. Purposivism Prevails--but Which One?

   1. Originalism and Textualism in the Purposivist Trilogy

   2. Is It Purposivism After All?

   3. Does the Quebec Inc Majority Reject Textualism--and Why Would It Try?

   Conclusion

   Introduction

   Constitutional interpretation has tended to attract comparatively little attention, and even less debate, in Canada. In contrast to the United States, where debates about it continue unabated, a few leading cases are often taken to have settled the important questions, (1) and scholars who question whether they do so are branded as "revisionist". (2) Indeed, the lack of debate about competing approaches to interpretation is sometimes taken to be a defining, and positive, characteristic of the Canadian legal culture. (3)

   On their surface, recent cases where the Supreme Court of Canada addressed the interpretation of the Canadian Charter of Rights and Freedoms (4) confirm this trend. They strongly or even unanimously affirm the preeminence of a single interpretive approach: purposivism. This is the view, articulated by Dickson J, in R v Big M Drug Mart, that "[t]he meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood, in other words, in the light of the interests it was meant to protect." (5) In turn,

   the purpose of the right or freedom in question is to be sought by reference to 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. (6) Nevertheless, I shall argue that there has long been less consensus about constitutional interpretation than is often assumed, and that the apparent recent triumph of purposivism masks ongoing disagreements. Indeed, I shall contend that, just below the purposivist surface, we may be seeing the ascendancy of quite different interpretive methodologies, which are best understood as textualist and even originalist. While in my view such an ascendancy would be a welcome development, a defence of these methodologies would be beyond the scope of this article. I will, however, suggest that the Supreme Court should be transparent about the evolution of its approach to interpreting the Charter, which at present it is not.

   I begin, in Part I, with a (necessarily summary) review of three general approaches to constitutional interpretation, to which I shall refer throughout the rest of the article: purposivism, originalism, and textualism. Next, in Part II, I describe the longstanding interpretive eclecticism in Charter cases decided by the Supreme Court. One line of cases did, indeed, embrace purposivism, but another, which seldom overlapped with the first, preferred "living tree" interpretation, while other cases still fit into neither of these lines and are best understood as originalist. In Part III, I turn to three recent decisions: R v Stillman, (7) R v Poulin, (8) and lastly Quebec (Attorney General) v 9147- 0732 Quebec Inc? All three endorse purposive interpretation, but each is divided over the correct application of this methodology. I then, in Part IV, consider the interpretive methodology deployed by the three majority judgments in Stillman, Poulin, and Quebec Inc. I argue that these opinions are more textualist, and perhaps even originalist, than purposivist as this term is often understood. Their endorsement of purposivism and even the ostensible rejection of textualism in Quebec Inc are hollow. I conclude by highlighting some questions left unaddressed here.

1. Defining Terms

   Although they are frequently used in debates concerning constitutional and statutory interpretation, the terms purposivism, originalism, and textualism lack universally accepted, let alone authoritatively defined, meanings. They are hotly debated by both those who subscribe to the interpretive theories to which they refer and by those who reject them. Moreover, in Canada, originalism and textualism are both ostensibly disfavoured, and the terms used, if they are used at all, primarily in derision, which does not help with establishing generally acceptable understandings. Nevertheless, core definitions can be usefully identified.

   For a definition of purposivism, I turn to the work of Benjamin Oliphant, (10) who, drawing on Jeffrey Goldsworthy's analysis, describes a range of related but different interpretative approaches that can be presented under this label. (11) The most expansive of these, "abstract principles purposivism", would have the courts enforce and see to the achievement of constitutional purposes they themselves identify "regardless of their compatibility with or grounding in the text as written". (12) An example, given by Mr. Oliphant, is the Supreme Court's decision in Figueroa v Canada (Attorney General), (13) where the majority proclaimed that " Charter analysis requires courts to look beyond the words of the section" invoked by the claimant. (14) As a result, a citizen's right to vote or run for election in a general election (15) became a "right of participation [that] embraces a content commensurate with the importance of individual participation in the selection of elected representatives in a free and democratic state" (16) and from there a right of all political parties to access benefits previously offered to some. The Supreme Court of Canada's jurisprudence giving "constitutional benediction" to the rights of organized labour (17) is another example of this approach.

   The more narrowly circumscribed "necessary implications purposivism" still uses purpose to add to constitutional text, but only--at least in its disciplined form--"[w]here a constitutional provision can make no sense whatsoever in the absence of the implication drawn, or where the clear purpose sought to be achieved would be not only undermined or imperfectly realized but actually eviscerated" should the interpreter not draw the implication. (18) To take up another example given by Mr. Oliphant, an implication that ballots cast at an election must be fairly counted rather than arbitrarily thrown away is arguably necessary to make sense of section 3 of the Charter, even though its text says nothing of counting procedures. (19)

   Most narrowly, "definitive document purposivism" (20) "takes language that might plausibly support a range of possible meanings and picks from among them through an investigation into the purposes underlying the guarantees". (21) As Mr. Oliphant explains, this form of purposivism typically serves to narrow underdeterminate constitutional language rather than expand the import of a text. (22) One example is the Supreme Court's delineation of the right to liberty in section 7 of the Charter. Drawing on the nature and purposes of the Charter as a whole, the Supreme Court excluded the extreme (but textually possible) readings whereby this right would have referred either to "unconstrained freedom" or "mere freedom from physical restraint" (notably by way of imprisonment). (23)

   Turning to originalism, I adopt a definition proposed by one of its foremost exponents, Lawrence Solum. He argues that, at its core "[o]riginalism is based on two ideas: (1) the meaning of the constitutional text was fixed at the time each provision was framed and ratified; and (2) courts and officials should be bound by that fixed meaning." (24) This definition allows for the existence of insignificant differences among originalists, while marking out a shared set of commitments that distinguishes originalists from their critics and opponents. (25) Claim (1), the "fixation thesis", is "the idea that meaning is determined by the original communicative context and linguistic facts at the time of writing". (26) Put differently, the "communicative content" of a constitutional text--that is, "the linguistic meaning communicated by [this] text in context" (27)--stays the same once the text has been given its authoritative form. This emphasizes the importance of the way in which language was used and the context in which it was used when the provisions of the constitutional text were enacted.

   Many non-originalists will accept that these factors are relevant, perhaps even important, to constitutional interpretation. Originalists, however, go further in that they also accept claim (2), the "constraint principle", and "argue that the role of original meaning is not simply that of one factor among many; originalists typically believe that original meaning should constrain constitutional practice", notably the interpretation of the constitutional text by the courts. (28)

   A reminder of what originalism is not may also be useful. Contrary to common caricature, originalism is not "a form of transgenerational mind reading, where the hypothetical subjective beliefs of the departed are considered the sole sources of constitutional meaning", (29) or even significant sources. Originalists are not interested in divining what James Madison, or Jean Chretien, might have thought about the import of a provision they helped draft, or how they would have expected them to apply. They understand that such an inquiry is necessarily speculative. (30) A hypothetical form of originalism focused on original expected applications has no significant scholarly support. (31) Although the forms of originalism in contemporary scholarship are many, the most popular ones focus on the original public meaning of the constitutional text. (32) Others think that the meaning of the constitutional text is to be determined with reference to the intentions of its framers as to meaning (not applications)...