Statutory Interpretation of the Charter

From Criminal Law Notebook
Jump to navigation Jump to search

General Principles

The goal of Charter interpretation to secure for all people "the full benefit of the Charter's protection".[1]

Purposive Interpretation

This requires a judge to interpret a Charter right using a "purposive approach"[2] (or sometimes called "purposive analysis").[3] This mean that a right is to be understood "in light of the interests it was meant to protect".[4] It should be interpreted in "a manner that best ensures the attainment of its objects".[5]

It is important that the right be "generous" and not "a legalistic one", while at the same time not to "overshoot" the "actual purpose" of the right.[6] The effect of a purposive interpretation should "normally ... be to narrow the scope of the right".[7]

Similarly the interpretation of any Charter right must not "second-guess" and instead should "respect proper choice[s]" of the government.[8]

The right must be "placed in its proper linguistic, philosophic and historical contexts".[9]

In interpreting the Charter judges must avoid "adjudicati[ng] the merits of public policy".[10]

Living Tree Doctrine

The Charter is to be interpreted using the "living tree" doctrine, which requires the meaning of the text to be capable of "growth and expansion".[11]

"Historical materials" such as legislative history should not be used to "stunt [the Charter's] growth".[12]

Legislative History

Speeches and statements of public servants and minutes of the parliamentary committees who assisted in drafting the Constitution are of limited weight for reasons including that it would freeze the rights as they were at the time of drafting.[13]


When applying purposive interpretation it requires that remedies be interpreted in a way to provide "a full effective and meaningful remedy for Charter violations".[14] A Charter remedy must crafted to be responsive and effective.[15]

United States

In the US constitutional interpretation of the Eighth Amendment (similar to our s. 8 of the Charter) the provision "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[16]

  1. R v Morgentaler, 1988 CanLII 90 (SCC), per Dickson CJ, at p. 51
    R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J, at p. 344
  2. R v Brydges, 1990 CanLII 123 (SCC), per Lamer J
  3. Hunter v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J
    R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J, at para 29 - re s. 11(i)
    R v Rodgers, 2006 SCC 15 (CanLII), per Charron J, at paras 61 and 63 - re s. 11(i)
  4. Big M Drug Mart, supra, at p. 344
    Morgentaler, supra, at p. 52
    Hunter v Southam, supra
    R v Therens, 1985 CanLII 29 (SCC)
  5. R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), [2001] 3 SCR 575, 159 CCC (3d) 321, per McLachlin CJ (9:0), at para 18
  6. Big M Drug Mart, supra, at p. 117
  7. R v Stillman, 2019 SCC 40 (CanLII), 36 DLR (4th) 193, per Moldaver and Brown JJ, at para 21
    Hogg, Peter W., Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1) ("In the case of most rights ... the widest possible reading of the right, which is the most generous interpretation, will “overshoot” the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. The effect of a purposive approach is normally going to be to narrow the scope of the right. Generosity is a helpful idea as long as it is subordinate to purpose.")
  8. Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory and Iacobucci JJ, at para 136
  9. Big M Drug Mart, supra, at p. 117
  10. Re BC Motor Vehicles, ibid., at p. 499
    Morgentaler, supra, at p. 53
  11. Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486, per Lamer CJ, at para 53
    Law society of Upper Canada v Skapinker, 1984 CanLII 3 (SCC), [1984] 1 SCR 357, per Estey J
  12. Re B.C. Motor Vehicle Act, ibid., at para 53
  13. Re B.C. Motor Vehicle Act, ibid., at para 53
  14. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 25
  15. Doucet-Boudreau, ibid., at para 25
  16. Trop v Dulles 356 U.S. 86 (1958) [1]