Leonid Sirota: Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation
Michael Ramsey
Leonid Sirota (University of Reading Law School [U.K.] and Double Aspect blog) has posted Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation ((2021) 47:1 Queen’s Law Journal 78) (34 pages) on SSRN. Here is the abstract:
Both the Supreme Court of Canada and Canadian scholarship often treat debates about constitutional interpretation as settled. This articles shows that this is not so. While it is commonly assumed that purposivism is the authoritative interpretive method, originalism and textualism continue to influence the Supreme Court's decision-making. This article demonstrates their decisive influence on three recent cases interpreting the Canadian Charter of Rights and Freedoms.
After an overview of the main interpretive approaches present in the Supreme Court's eclectic jurisprudence ― purposivism, living constitutionalism, and originalism―the article critically assesses the majority and minority reasons in R v Stillman, R v Poulin, and Quebec (Attorney General) v 9147-0732 Québec Inc. While all the opinions profess fidelity to purposivism, they are sharply divided about interpretive questions. A close examination of the majority opinions shows that they were, in fact, more textualist or even originalist than they acknowledged. Their endorsement of purposivism and even the ostensible rejection of textualism in Québec Inc are hollow.