Worlds Apart on Words Apart: Re-examining the Doctrine of Shifting Purpose in Statutory Interpretation
SCOTT G. REQUADT
ABSTRACT
Statutes that are obsolete or out of phase with contemporary social context present a unique interpretative problem to courts. On one hand, courts can adhere strictly to the tenet of originalism in statutory interpretation by seeking to discern, and follow, the legislature's intent at the time that the particular statute was enacted. On the other hand, courts may turn to the non-originalist school of statutory interpretation, which would have them look to, and seek to further, the "values" implicit in a particular statute. The doctrine of shifting purpose is a non-originalist approach to statutory interpretation which recognizes that a statute's purpose may shift or be transformed over time by changing social conditions. Although this doctrine has been formally rejected by the Supreme Court of Canada, this paper argues that the approach has since manifested itself in other forms, and by other names, in subsequent case law. The reasons and assumptions upon which the court originally rejected this doctrine are set out and critically examined under the lens of selective contemporary legal and hermeneutic theory. It is asserted that interpretation, even within an originalist framework, is an inherently subjective exercise which betrays much of the objectivity and certainty which the court attributed to it in its rejection of the shifting purpose doctrine. This article, therefore, urges a re-examination of the shifting purpose doctrine for statutes which are obsolete or out of phase. Such a conclusion is consistent with the tendency in other fields to dispute the traditional dichotomy between legislative and adjudicative roles, and permits courts to assume the more dynamic role demanded by situations involving significantly changed social circumstances.
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Citation: (1993) 51(2) U.T. Fac. L. Rev. 331.
Copyright © 1993. University of Toronto Faculty of Law Review.
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