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Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This essay formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.
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Between 2006 to 2008, no less than three public inquiries recommended that, absent a reasonable likelihood of re-prosecution, prosecutors should allow the wrongfully convicted to be acquitted and not be subject to prosecutorial stays. Prosecutorial stays are an exercise of prosecutorial discretion under. 579 of the Criminal Code that can only be challenged with evidence of flagrant impropriety. They do not provide protection against double jeopardy. They can amount to a third “legal limbo” verdict between guilty and not guilty. Only two prosecutorial services in Canada have adopted the three inquiry recommendations in their guidelines or deskbooks. This failure has real world consequences: namely at least five cases involving seven accused in four different provinces since 2016 where convictions were overturned because of new evidence relevant to guilt or innocence only to be the subject of a prosecutorial stay which deprived the previously convicted person of a verdict on the merits. In addition to being at odds with the three inquiry recommendations, such uses of prosecutorial stays promote continued suspicion of the wrongfully convicted and create two classes of the wrongfully convicted: those who are acquitted and those who only receive a prosecutorial stay.
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How intimate partner violence (IPV) is conceptualized affects what we see when we look at situations involving IPV and what we think the solutions to the problem of IPV are—either in individual cases or in the development of broader legal and policy responses. In this article, it is suggested that while conceptualizing IPV as coercive control is an improvement over previous understandings, it does not go far enough. Coercive control must be located within a broader conceptualization of IPV as a form of social and systemic entrapment if it is not to operate in a harmful manner for victim-survivors.
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The norm against overbreadth—a law should not be overbroad in relation to its own purposes—is well established as a principle of fundamental justice under section 7 of the Charter. But the Supreme Court of Canada’s case law contains two competing formulations of this norm. According to the strict version of the norm, a law is overbroad if it applies in even one (actual or hypothetical) case that is not directly necessary to the achievement of its purpose. According to the relaxed version of the norm, a law is overbroad only if it applies in cases beyond those that are reasonably neces-sary to its operation. The strict version of the norm is unworkable because it relies on two un-tenable assumptions: first, that a law is always an instrument for achieving a purpose that can be fully specified apart from the idea of legal order; second, that a law can be drafted and applied so that it never goes beyond that pur-pose. The result is that, on a proper application of the strict version of the norm, all laws are overbroad. The relaxed version of the norm shares the first assumption but not the second. With respect to those laws that are properly characterized as instrumental, it would be bet-ter to abandon the strict version of the norm and adopt the relaxed version