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Purposive Interpretation: Loyola and The Forgotten Orphan of Canadian Constitutionalism

1. Purposive Interpretation

 

Purposive interpretation is missing, wandering the distant and desolate streets of the Constitution.

The purposive approach to constitutional interpretation was once the favourite son of Charter of Rights and Freedoms[1] interpretation. The purposive approach asks courts to interpret the boundaries of specific Charter rights with reference to the Charter’s larger purposes, relevant text, and the historical basis of the right in question.[2] The approach will generally limit the scope of a particular right, confining it to its particular purpose.[3] We can think of purposive interpretation as a four-sided fence surrounding a piece of property. The right is what is in the confines of the fence, surrounded and limited by the fence of purposive interpretation. Though Justice Elena Kagan of the Supreme Court of the United States once opined that “we are all originalists now,”[4] I sense, in Canada, that we have taken great pride in calling ourselves constitutional purposivists—in contrast, of course, to those originalist Neanderthals.

 

Despite our pride, purposive interpretation has not been given its due. In some ways, it has been forgotten. It seems, at present, the favourite son of constitutional interpretation is “living tree” constitutionalism.[5] Case in point, in common constitutional parlance, purposive interpretation is often used in conjunction with “generous interpretation,” (living tree constitutionalism) which would seemingly be an oxymoron. In case law, we do not see faithful discussion of the exact scope of our Charter rights in constitutional interpretation anymore. Instead we see expansions of the scope of protection offered by constitutional rights.[6] In other words, purposive interpretation seems to have become a buzzword.

 

It is no surprise, then, that purposive interpretation was discarded in the field of the judicial review of administrative decisions for their constitutionality. In this field, purposivism has been orphaned at the altar of administrative law. Unhelpfully, the Supreme Court did not explain its pivot away from purposive interpretation, or why it was necessary. In this short piece, I want to explore the relationship between purposive interpretation and administrative law and why a second look at purposive interpretation might yield sound doctrinal results.

 

2. From Doré to Loyola: Why Purposive Interpretation Matters

       

The Supreme Court has a uniquely important role in the development of constitutional doctrine. Through the provision of clear and consistent reasons, the Court can ensure that the public has faith in the judicial system and the Constitution. Purposive interpretation is an integral part of doctrinal development, because once a right’s purpose has been ascertained, it does not change with the winds. It is set in stone.[7] If purposive interpretation is applied correctly, judicial interpretation should be quite predictable.

 

On the other hand, when purposive interpretation is abandoned, standards for constitutional interpretation are out the window, and the judge indeed becomes “a knight errant.”[8] This is especially true in judicial review of administrative action.

 

A case in point is Doré.[9] That case settled an ongoing controversy in another line of cases, beginning with Slaight Communications[10] and proceeding through to Multani.[11] Doré has a simple holding: when an administrative decision is challenged for its constitutionality, the Charter values implicated in the exercise of a particular statutory discretion must be balanced with the particular statutory objectives at play to determine if the decision was reasonable.  The decision-maker and a court on judicial review “should ask how the Charter value at issue will best be protected in view of the statutory objectives.”[12] This said, two issues are of note in Doré.

 

First, the question under Doré is not whether the Charter right and its connected purpose is infringed. Instead, Doré asks us to consider the Charter “values” associated with the right to determine whether a discretionary decision has infringed a Charter right. This “administrative law approach” lacks the same degree of rigour and structure as purposive interpretation.[13] More importantly, the focus on Charter values diverts attention away from the actual judicially-ascertained purpose of the right. Do we know if Charter values are the same as Charter purposes? The truth is, no one can tell.[14] If we are to pursue consistent and coherent doctrine when it comes to constitutional interpretation, the answer matters.

 

Second, Doré simply does away with the Oakes test.[15] This is but one more nail in the coffin of the traditional s.1 justification exercise.[16] Without conducting the Oakes test, the Court resorted to a similar proportionality test which, in their view, “exercise[s] the same justificatory muscles.”[17] This so-called proportionality test lacks the step by step structure and developed jurisprudence associated with the Oakes test. This matters because of the protection it denies to constitutional claimants. Purposive interpretation as described above works “in perfect harmony” with the stringent standard of justification under s.1 and the Oakes test.[18] This is because “Once a right has been confined to its purpose, it seems obvious that a government ought to have to satisfy a stringent standard of justification to uphold legislation limiting the right.”[19] They are matters of doctrine, painstakingly ascertained after years of litigation. Yet, Doré does not seem to recognize this. It trusts administrative decision-makers to “balance” complex constitutional values, and it also trusts courts to know, without any undergirding doctrine, whether the balance struck is constitutionally sound.

 

For believers of purposive interpretation, Doré is wholly underwhelming. Administrative decisions which implicate Charter rights present obvious constitutional problems. Claimants who seek to vindicate their rights with respect to a particular decision should have the benefit of the structured and stringent purposive-Oakes combination. Yet, Doré does not consider what the consequences of dispatching purposive interpretation are.

 

The first case after Doré to reassess the question is Loyola,[20] which begins to turn a watchful eye towards purposive interpretation. The case concerned a private, Catholic school in Quebec which challenged the decision of the Minister of Education, Recreation and Sports. Quebec established a program of secular education which required schools in the province to teach world religion from a neutral and objective perspective. The Minister could grant exemptions under the legislation for “equivalent programs.” Loyola proposed such a program. The Minister, under the statute, denied an exemption because the proposed program was not sufficiently secular.

 

At the Supreme Court, both the majority and concurrence found a violation of freedom of religion.[21] However, the doctrinal paths which the majority and concurrence took were quite different. The majority opinion, written by Justice Abella, adopted the Doré approach. She balanced the values underlying the freedom of religion (whatever those are) with the statutory purpose of the secular education scheme, without explaining what happened to purposive interpretation. On the other hand, Chief Justice McLachlin, concurring in part, did not apply Doré. She simply applied the traditional bifurcated Charter analysis.

 

Loyola is a perfect experiment. On one hand, the majority repeats the worst flaws of Doré, applying amorphously defined Charter values and forgetting purposive interpretation and Oakes. The only saving grace of Loyola is its illustration of a possible division in the Court. The concurrence reverted back to the pre-Doré approach, analyzing whether Loyola’s claim for organizational religious freedom rights was consistent with the right’s purpose,[22] and subjecting the Minister’s order to the Oakes test. This application led them to a different result than the majority based on something resembling purposive interpretation—a result which was more protective of Loyola’s right to freedom of religion.

 

This goes to show that purposive interpretation matters. As mentioned above, the Court should decide cases based on consistent doctrine. To the extent that Doré and its brethren do away with purposive interpretation, perhaps the Court should go to the drawing board, and bring purposive interpretation back into the family fold. If Loyola means anything, it is a promising sign.

 

 

 

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter].

 

[2] R v Big M Drug Mart [1985] 1 SCR 295 at paras 116-117 [Big M Drug Mart Ltd.]

 

[3] Peter Hogg, “Interpreting the Charter of Rights: Generosity and Justification,” (1990) 28 Osgoode Hall LJ at 819 [Hogg, “Generosity and Justification”].

 

[4] Justice Kagan made this remark at her nomination hearing for the Supreme Court of the United States.

 

[5] Perhaps the most famous use of the living tree metaphor occurred in Reference Re Same Sex Marriage, 2004 SCC 79, but there is an argument to be made that the Supreme Court implicitly relied on the living tree metaphor to justify its decision in Carter v Canada (Attorney General), 2015 SCC 5.

 

[6] See, for example, Justice Rothstein’s dissent in Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1.

 

[7] Peter Hogg, Constitutional Law of Canada Student Edition, 5th ed (Toronto: Carswell, 2014) at 36-30[Hogg, “Constitutional Law”].

 

[8] Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 141.

 

[9]  Doré v Barreau du Quebec, [2012] 1 SCR 395  [Doré].

 

[10] Slaight Comunications v Davidson, [1989] 1 SCR 1038 [Slaight Communications]

 

[11] Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256 (SCC) [Multani].

 

[12] Doré , supra note 9 at para 56.

 

[13] See Slaight Communications, supra note 10 at 1049.

 

[14] See Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) SCLR (2d).

 

[15] Doré, supra note 9 at para 5.

 

[16] See Christopher D. Bredt and Heather K. Pessione, “The Death of Oakes: Time for a Rights-Specific Approach?” (2013) 63 SCLR (2d).

 

[17] Doré, supra note 9 at para 5.

 

[18] Hogg “Generosity and Justification,” supra note 3 at p.821.

 

[19] Ibid.

 

[20] Loyola High School v Quebec (Attorney General) 2015 SCC 12.

 

[21] The majority found only found a violation of Loyola’s freedom of religion in part—the majority concluded that Loyola could teach its own religion from its own perspective. However, it reasoned that Loyola could teach other world religions from a neutral perspective without compromising the freedom of religion. The concurrence found a wholesale violation of Loyola’s freedom of religion.

 

[22] Loyola, supra note 20 at para 100.

 

 

About the Author

 

Mark Mancini is a second year law student at the University of New Brunswick, Faculty of Law. Originally from Sudbury, Ontario, he is a summer student at the Constitutional Law Branch of the Ontario Ministry of the Attorney General. He wishes to thank Professor Aloke Chatterjee, with whom the author had many conversations regarding the topics discussed in the piece. He also wishes to thank Professor Howard Kislowicz, who was a fantastic administrative law professor. The views of the author do not represent the views of his employer.

 

Suggested Citation

 

Mark Mancini, "Purposive Interpretation: Loyola and The Forgotten Orphan of Canadian Constitutionalism" (2016) eDiscoveries, online: <http://www.ediscoveries.org/#!Purposive-Interpretation-Loyola-and-The-Forgotten-Orphan-of-Canadian-Constitutionalism/cjds/572b840d0cf26d4f7c1e1d39>.

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