Statutory Interpretation in the Post R. v. Jordan World


 The modern framework for statutory interpretation is well established. It requires that the words of a provision be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:

Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

In addition, courts make a number of idealized assumptions about the way legislation is drafted which influence the way the legislation is interpreted.

                For more see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th Edition. 

R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27 (CanLII), was meant to challenge the status quo in the criminal justice system:  the legal doctrine that emerged from it was designed to encourage conduct and the allocation of resources that promote timely trials. 

While Jordan dealt with one’s right under section 11(b) of the Canadian Charter of Rights and Freedoms, it is becoming obvious that the influence of R. v. Jordan extends far beyond that particular right.

 An example of the long reach of Jordan is found in R. v. Alex, 2017 SCC 37, released today.

In determining the particular issue of whether the Crown needs to prove that a breath demand is lawful in order to take advantage of the evidentiary shortcuts provided in section 258 of the Criminal Code, a majority of Supreme Court of Canada (albeit, a slim majority) resorted to the principles of statutory interpretation.

The majority had this to say on the issue of how the legislation should be interpreted:

[W]e should avoid an interpretation that forces the Crown to call unnecessary witnesses and promotes an outcome not based on the merits, but rather on the limitations of an overburdened criminal justice system. Indeed, such an approach would be antithetical to this Court’s recent jurisprudence emphasizing the importance of participants in the criminal justice system working together to achieve fair and timely justice: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 2-3 and 19-28.

In the wake of R. v. Jordan, a commitment to the efficiency of the judicial system, it appears, is now not only a social value, but also an interpretive norm that may inform our understanding of the law.



              Stuart O’Connell, O’Connell Law Group, www. leadersinlaw.ca


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