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Charter - Purpose of Impugned Law. R. v. Sharma [purpose and extrinsic evidence]
In R. v. Sharma (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Ontario Court of Appeal ruling that allowed an appeal, that from a Superior Court sentencing ruling "that a conditional sentence was unavailable, and dismissed Ms. Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms".
The court focusses on the determination of the impugned statutory provision's 'purpose', here while considering Charter s.7:B. Section 7
(1) Introduction
[84] Section 7 states:7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ....
[86] Arbitrariness and overbreadth both consider the connection between the purpose of the impugned law and the limits it imposes on life, liberty, or security of the person (Bedford, at paras. 114-19). A law is arbitrary when it imposes limits on these interests in a way that bears no connection to its purpose ⸺ that is, when it “exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law” (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83). And it is overbroad when it imposes limits on these interests in a manner that is not rationally connected to the purpose of the law (Bedford, at para. 112; Carter, at para. 85).
[87] As the law’s purpose is the principal reference point, its proper identification is crucial to the s. 7 analysis (R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 24; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24). Indeed, identifying a law’s purpose may be determinative of its constitutionality (R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at p. 279). It is important to characterize the purpose of a law at the appropriate level of generality (Safarzadeh‑Markhali, at para. 27; Moriarity, at para. 28). At one end of the spectrum lies an abstract purpose akin to the animating social value. At the other extreme is a “virtual repetition of the challenged provision, divorced from its context” (Safarzadeh‑Markhali, at para. 27). A proper framing of purpose lies somewhere between these two poles, and is precise and succinct (Moriarity, at para. 29).
[88] The most significant and reliable indicator of legislative purpose would, of course, be a statement of purpose within the subject law. Beyond that, generally, courts seeking to identify legislative purpose look to the text, context, and scheme of the legislation and extrinsic evidence, which can (subject to the caution we offer below) include Hansard, legislative history, government publications and the evolution of the impugned provisions (Safarzadeh‑Markhali, at para. 31; Moriarity, at para. 31; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37).
[89] Extrinsic evidence should be used with caution. Statements of purpose in the legislative record may be rhetorical and imprecise (Safarzadeh‑Markhali, at para. 36; R. Sullivan, The Construction of Statutes (7th ed. 2022), at p. 293). Decontextualized statements by members of Parliament can be poor indicators of parliamentary purpose (see, e.g., Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at paras. 67‑68). What is to be identified is the purpose of Parliament, being that of its collective membership as expressed in its legislative act, and not the purposes of its individual members. As this Court has recognized in R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, at p. 788, “the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole”.
[90] Warnings of imprecision aside, legislative history can be useful in determining legislative purpose (Safarzadeh‑Markhali, at para. 36). Two stages in the legislative process are of particular assistance (and this is true both of Parliament and of provincial legislatures). At second reading, the Minister who introduces the legislation sets out, usually in a formal and structured way, what the legislation is intended to achieve and the means by which it seeks to do so. Second reading is approval in principle. Following such approval, legislation is referred to committee for detailed, clause‑by‑clause consideration. Explanations provided to the legislative committee by the Minister, the Minister’s Parliamentary Secretary or departmental officials can provide further authoritative statements regarding intent. At the federal level, procedures in the Senate parallel those of the House of Commons. Thus, the second reading speech by the Senator who introduces the legislation, as well as the explanations by departmental officials at committee hearings, can also be useful.
[91] Having reviewed whatever sources are available, courts should strive to arrive at a precise and succinct statement that faithfully represents the legislative purpose of the impugned provision (Safarzadeh‑Markhali, at para. 28; Moriarity, at para. 29). Overly broad, multifactorial statements of purpose can artificially make impugned provisions unassailable to arguments of overbreadth or arbitrariness. In Safarzadeh‑Markhali, the Court defined the purpose of denying enhanced credit for pre‑sentence custody as “enhanc[ing] public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs” (para. 47 (emphasis deleted)). In R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, the purpose of the law was “to combat people smuggling” (para. 34; see also Moriarity, at para. 29). Courts must then use this same precise and succinct statement of purpose within the subsequent analysis. The statement of the purpose should be maintained and not change throughout the analysis.
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