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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. [ABSTRACT FROM AUTHOR]

The Charter's notwithstanding clause makes exception to something, but what is that something? Received readings of the notwithstanding clause err in assuming that the clause makes exception to rights or to judicial review. It is argued, instead, that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms. That remedy is the one outlined in the Constitution's supremacy clause: legislation is of 'no force or effect' to 'the extent of the inconsistency' with such rights and freedoms. By reviewing how the expression 'no force or effect' is equivalent to the expression 'inoperable,' it is argued that the notwithstanding clause empowers a legislature to affirm that legislation 'shall have such operation as it would have but for' targeted rights and freedoms. Such affirmation does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms. It follows that legislation invoking the notwithstanding clause may be challenged in judicial review and that a court may declare such legislation to be inconsistent with targeted rights and freedoms. [ABSTRACT FROM AUTHOR]

Interim remedies are granted before the court has been able to come to a final determination of the issues raised by the case. Canadian courts are reluctant to grant interim remedies that would restrain the application of a constitutionally challenged law. Ordinarily, the public interest in the orderly administration of duly enacted laws has been found to prevail over the claimant's right to interim protection of a claimed constitutional right. This article examines the reasons used to justify this cautious approach and argues that it is not entirely consistent with the Charter's promise of effective remedies. The rule limiting consideration of the merits of the claim on interim applications should be relaxed, especially where refusing an interim remedy will cause the immediate and irretrievable loss of a constitutional right. This would bring Canadian law into line with English, American and international law and would better protect fundamental rights and freedoms. Greater use should be made of interim remedies that exempt litigants from constitutionally challenged laws rather than suspend the operation of the law entirely. [ABSTRACT FROM AUTHOR]

Instead of a public law fragmented into discrete departments, we should envisage a unified scheme of constitutional rights and legal standards, expressing a coherent moral theory of the rule of law. That moral theory underpins all legitimate legal orders, properly respectful of human dignity; and common law adjudication is best understood as the working out, according to context, of the practical implications of the theory. An initial focus on more local legal tradition ultimately leads to a broader inquiry about the true demands of human rights and civil liberties, offering the prospect of a larger vision of democratic constitutionalism. While Jeremy Waldron has doubted the similarity between legal analysis and moral reasoning - rejecting an analogy with Rawlsian reflective equilibrium - his view may be contested. A common law judge who attempts to reason morally in the name of the whole society, in the manner suggested by Ronald Dworkin's theory of integrity, must take account of those legal texts and precedents that political morality makes pertinent. Legal reasoning is simply moral reasoning, attentive to historical and political context. [ABSTRACT FROM AUTHOR]