Presumptions of Constitutionality in Canada
I am working on a paper for an edited collection to be published by Hart Publishing (Matthias Klatt ed.) on constitutionally conforming interpretation. I have been considering the various ways in which this and related principles operate in Canada. Here are some early reflections. Comments are very welcome, as this is a very complex area…
The label ‘presumption of constitutionality’ has been applied to a variety of interpretive practices in Canada.
I distinguish these practices in the interests of analytical clarity. For further illumination, I will describe these practices in light of an example. Imagine a Canadian province passes legislation which provides that “all workers shall speak French in any workplace”. Such a law would be vulnerable to challenge on federalism and Charter grounds.
First, there is a “presumption of regularity”. Statutes (as well as regulations and administrative decisions) are presumed to be constitutional, in the sense that the individual or entity seeking to challenge a statute bears the initial onus of demonstrating unconstitutionality. This is an “elementary rule of legal procedure”, pursuant to which the burden is on the moving party.
For example, neither a provincial legislature nor Parliament may pass legislation which is a ‘colourable’ attempt to regulate an area outside its jurisdiction, say, a provincial restriction on the provision of abortions which is in reality an attempt to create a criminal prohibition (an area of federal jurisdiction). But the “presumption is for the validity of a legislative enactment” and, as such, “in the absence of evidence to the contrary”, a court will not make a finding that legislation is a colourable attempt to regulate outside the enacting body’s powers.
In respect of the example of a workplace language law, there would be a presumption that the legislature intended to act within its sphere of constitutional competence (most likely the regulation of “property and civil rights in the province”), and that the law does not represent a colourable attempt to intrude on federal jurisdiction.
Notice, however, that in respect of Charter challenges which are properly before a competent court, this presumption of regularity does not hold. The initial onus is on the challenger to demonstrate that a Charter right has been infringed, at which point the burden shifts to the state to demonstrate that the infringement survives the proportionality test.
Second, there is a “presumption of validity”. Statutes are presumed to fall within the powers of the enacting legislature. Courts are to approach constitutional challenges “on the assumption” that the statute challenged was “validly enacted”:
There is a presumptio juris as to the existence of the bona fide intention of a legislative body to confine itself to its own sphere and a presumption of similar nature that general words in a statute are not intended to extend its operation beyond the territorial authority of the Legislature.
The presumption of validity has two consequences. On one level, it has led Canadian courts to adopt a flexible approach to the interpretation of constitutional provisions setting out the federal division of powers between the federal Parliament and provincial legislatures. There is the ‘double aspect’ doctrine: some areas of regulation have both a provincial and federal ‘aspect’ (such as securities regulation, which is primarily a provincial matter but may in some regards need national action) and therefore both provincial and federal legislation can co-exist. When considering federal and provincial statutory regimes in respect of matters with a double aspect, there is usually little reason “to kill one and let the other live”. Hence the ‘double aspect’ doctrine functions at the level of the Constitution itself to define the scope of the legislative powers of Parliament and the provincial legislatures. In the workplace language law example, the specification of the language workers should use has both a federal and provincial aspect, as both levels of government have the authority to regulate this issue from their different perspectives.
On another level, meanwhile, the doctrines of paramountcy and interjurisdictional immunity provide the operational rules for addressing conflicts between federal and provincial legislation. Here, the interpretive principle of ‘cooperative federalism’ comes into play so as to favour the “the ordinary operation” (or constitutionality) of legislation made “by both levels of government”. This is so because the “dominant tide” of Canadian federalism has been to “allow for a fair amount of interplay and indeed overlap between federal and provincial powers”. In concrete terms, this may mean reading legislation narrowly so as to reduce the scope for the operation of the doctrine of paramountcy, restricting the so-called ‘core’ federal matters protected by the doctrine of interjurisdictional immunity. As far as the hypothetical workplace language law is concerned, a court would probably read it as applying only to provincially regulated workplaces, narrowing the general language so as to focus on a specific matter of provincial concern.
More controversially, the presumption of validity might cause courts to interpret the Constitution to accommodate legislatures’ understandings of constitutional norms:
In our constitutional framework, the courts are responsible for making the final decisions on constitutional interpretation. They are duty-bound to strike down legislative and executive actions and practices that are wrong, even where they are longstanding and consistently followed. But we must recognize that these other branches of government do try, as they must, to keep their actions and practices within the limits of the powers given to them under the Constitution. This involves making judgments, implicitly or explicitly, regarding the limits in the Constitution. Other branches of government are interpreters of the Constitution. Constitutional interpretation is not our exclusive preserve. It would be arrogant for us to ignore others’ constitutional interpretations as manifested in their practices and actions. In my view, there is nothing wrong for us to consider and critically assess, without deference, the constitutional interpretations of other branches of government, as manifested in their practices and actions, especially where those practices and actions are consistent and longstanding… Before we say that Parliament has been wrong for most of Canada’s history – before we say that we alone are right and all others for most of Canada’s history have been wrong – we must be convinced that we are driven to that result by objective, sound constitutional analysis.
This arguably occurred (albeit not explicitly) in R. v. Comeau, where the Supreme Court interpreted a constitutional provision relating to inter-provincial trade (s. 121 of the Constitution Act, 1867)so as to validate the many provincial restrictions on such trade.
Third, there is a “presumption of constitutional conformity”. Where a statute is ambiguous or vague, such that it lends itself to more than one interpretation, the courts should prefer a constitutionally conforming interpretation. An early statement of this presumption was made in the federalism context:
[I]f an enactment, whether of Parliament or of a legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly. An alternative form in which the rule is expressed is that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the contrary result the former is to be adopted.
As we will see below, there is significant dispute about the scope of this principle as it applies to the Charter.The hypothetical workplace language law helps to illuminate some aspects of this dispute. One aspect relates to the relationship between this interpretive principle and the proportionality test. Forcing employees to speak French at work is a violation of their right to freedom of expression: but should a court force a constitutionally conforming interpretation on the statute (reading “shall” as “may”, as in “all workers may speak French in any workplace”); or should the court conclude that there is a violation of the Charter and proceed to analyze whether the violation is justifiable under the proportionality test, weighing the public interest in the strengthening of the French language against the effects on individuals and assessing whether the legislature could have identified minimally impairing alternative means of achieving its objectives. Another aspect relates to the appropriate way in which to interpret statutes. Imagine that the workplace language law comes up in litigation between a fired employee and their former employer: the employer relies on the law to justify firing an employee who refused to speak French; the employee urges a narrower reading on the court, without challenging the constitutionality of the law; and the question for the court is therefore the extent to which it can interpret the law in such a way as to respect the Charter rights of the employee.
In addition, it is worth emphasizing that this presumption may also be operative in determining the remedy to grant for a violation of the Constitution: under the supremacy clause, legislation is invalid only to the extent of its inconsistency with the Constitution; accordingly, the offending pieces can sometimes be severed, leaving the constitutionally conforming pieces in place. Similarly, if legislation can be given a constitutionally conforming construction, it may nonetheless be possible to conclude that an individual’s Charter rights were violated and grant an individualized remedy against the state actor responsible for the violation.
Fourth, there is a “presumption of constitutionally conforming administration”. Where there is a constitutional challenge to a legislative regime which is administered by an administrative decision-maker, the courts will presume that the regime will be administered in a constitutionally compliant manner.
Where the decision-maker has an “imprecise discretion” and exercises it in such a way as to produce a constitutional violation, the violation is traceable to the decision, not the discretion, and any constitutional challenge should be directed at the decision, not the statute according the discretion. Moreover, where there is a “safety valve” in the legislative regime, which would allow it to operate without violating the Constitution, there is no basis for invalidating the whole legislative regime on constitutional grounds. Challenges should instead be directed at the validity of the administrative decision. This ensures that a sufficiently ample record will be developed to test any constitutional claims, as it may become clear in the course of determining the validity of the administrative decision that the violation is in fact attributable to the legislative regime. In both cases, of course, the challenger would be wise to challenge both the decision and the legislative regime (and there is no reason in principle not to do so). This is best described as a hybrid of the presumption of regularity and the presumption of constitutionally conforming interpretation: the starting point is that the legislative regime will be administered constitutionally, and the onus of proving a constitutional violation attributable to the legislative regime rests on the shoulders of the challenger.
For example, if we were to add to
our hypothetical language law either a discretionary power to enforce the law
(say, “all workers shall speak French in any workplace where the administrator
considers it is necessary to preserve the French language”) or a discretionary
power to exempt individuals from the requirement of the statute (“all workers shall
speak French in any workplace unless, on application to the administrator, an
individual demonstrates an inability to learn French”), the challenger should challenge
the exercise or non-exercise of discretion and may also challenge the legislative
regime in its entirety.
 This provision is loosely based on s. 4 of Bill C-11, which is currently wending its way through the Quebec legislature.
 Manitoba (A.G.) v. Metropolitan Stores Ltd.,  1 SCR 110, at p. 124, per Beetz J, citing Dale Gibson, The Law of the Charter: General Principles (Carswell, Toronto, 1986), pp. 56 and 58.
 See e.g. R v Morgentaler,  3 SCR 463.
 Kruger v. The Queen,  1 SCR 104, at p. 112, per Dickson J. See also Canadian Industrial Gas & Oil Ltd v Government of Saskatchewan,  2 SCR 545, at pp. 573-574.
 Nova Scotia Board of Censors v. McNeil,  2 S.C.R. 662, at pp. 687-688, per Ritchie J.
 Reference re The Farm Products Marketing Act,  S.C.R. 198, at p. 255, per Fauteux J.
 Multiple Access Ltd. v. McCutcheon,  2 SCR 161, at p. 182.
 Canadian Western Bank v. Alberta, 2007 SCC 22,  2 SCR 3, at para. 37.
 OPSEU v. Ontario (Attorney General),  2 S.C.R. 2, at p. 18, per Dickson CJ.
 See e.g. Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53,  3 SCR 419, at para. 23 (on reading the purposes of federal legislation narrowly); Husky Oil Operations Ltd. v. Minister of National Revenue,  3 SCR 453, at para. 3 (on reading provincial legislation narrowly so as to avoid its coming into conflict with federal legislation).
 See especially Canadian Western Bank v. Alberta, 2007 SCC 22,  2 SCR 3.
 Felipa v. Canada (Citizenship and Immigration), 2011 FCA 272, at paras. 159-162, per Stratas JA, dissenting.
 2018 SCC 15,  1 SCR 342.
 McKay v. The Queen,  SCR 798, at pp. 803-804.
 See e.g. the discussion in Osborne v. Canada (Treasury Board),  2 SCR 69, at pp. 102-105, per Sopinka J.
 Schachter v. Canada,  2 SCR 679, at pp. 719-720.
 Slaight Communications Inc. v. Davidson,  1 SCR 1038, at p. 1078, per Lamer J. See also Eaton v Brant County Board of Education,  1 SCR 241, at para. 3.
 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,  3 SCR 134, at paras. 113-114.
 See e.g. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69,  2 SCR 1120.
 Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at paras. 58-59.
 By contrast, if the legislative regime is challenged, but the administrative decision is not challenged, there may be inadequate evidence to support the challenge, as in Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, where Stratas JA observed, as para. 90:
Based on the record before us, to the extent that detrimental effects are being suffered by persons being returned to the United States, the legislative scheme as a whole is not to blame. Rather, if anything, … administrative conduct may be to blame. But because the Claimants chose not to attack any administrative conduct, we have neither the ability nor the evidence before us to assess it.
 I leave aside some admittedly complex questions here about statutory provisions and/or rules of court which may require challenges to administrative decisions and challenges to legislative regimes to be bifurcated.
This content has been updated on December 2, 2021 at 16:28.