Supreme Court Law Review
purpose, legislative purpose, statutory purpose, purpose construction, Supreme Court of Canada, statutory interpretation, Charter of Rights and Freedoms, judicial activism, Charter adjudication, overbreadth, proportionality, equality, constitutional law, criminal law
The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the legislative object is compared with legislative means, effects, etc.; (3) It prescribes overarching parameters that clarify what kind of “purpose” the construction seeks; and (4) It delineates the authoritative sources and analytical procedure to be employed in construing the purpose. The result is a “Rigorous Approach” in that it is structured and systematic, clear and capable of consistent application, and solicitous of disciplined adversarial debate and in-depth judicial justification. A salutary impact may be expected on the adjudication of claims emphasizing statutory purpose, including prominent Charter doctrines such as overbreadth, discrimination, and proportionality. This important advance will help strengthen the rule of law and shelter courts from unwelcome accusations of policymaking.
Marcus Moore, "R. v. Safarzadeh-Markhali: Elements and Implications of the Supreme Court's New Rigorous Approach to Construction of Statutory Purpose" (2017) 77 Sup Ct L Rev (2d) 223.