What is the Presumption of Constitutionally Conforming Interpretation in Canada?
Here is another post on the theme of the presumption of constitutionality. The first one is here.
An initial difficulty is that there is disagreement even about the content of the presumption of constitutionally conforming interpretation. The presumption of constitutional conformity “acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada”. However, the presumption has been expressed in ways that are subtly but importantly different. The courts have vacillated between a narrow approach and a broad approach.
Often, the presumption is identified as “the rule of construction under which an impugned statute ought to be construed, whenever possible, in such a way as to make it conform to the Constitution”, noting that “[i]f a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted”. The canonical statement of the presumption is to the same effect:
[W]hen a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not” (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.
Indeed, it has also been suggested that the presumption is simply an interpretive principle that may tip the balance in favour of one reading rather than another:
[M]erely invoking the presumption of constitutionality does not give a court complete freedom to depart from the terms of a statute employed by the legislature. Rather, the presumption is simply a factor that on some occasions tips the scales in favour of one interpretation over another construction that, in the absence of this consideration, would appear to be the most strongly supported by the rules of statutory construction. If the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt this meaning, even if this means that the legislation will be struck down as unconstitutional.
However, the presumption has been expressed more broadly, in terms of constitutional “values”, especially since the introduction of the Charter in 1982: “where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted”, or “if there are two possible interpretations of a statutory provision, one of which embodies the Charter values and the other does not, that which embodies the Charter values should be adopted”. In addition, even when ambiguity is stated to be a pre-condition for engaging in constitutionally conforming interpretation, what ambiguity means is obscure, with judges often disagreeing amongst themselves.
Relatedly, in Doré v. Barreau du Québec, the Supreme
Court held that a deferential approach on judicial review is appropriate where
an administrative decision-maker has allegedly infringed upon a Charter right.
But the Supreme Court also held that decision-makers when exercising discretion
have an obligation to consider Charter values.
Does this principle apply also to statutory interpretation? There is no clear
guidance from the Supreme Court on this issue, but one Court of Appeal has
taken the view that there is no logical difference between Charter values
infusing exercises of discretion and infusing interpretations of law.
This view is consistent with the rationale underlying Doré, which is
that administrative decision-makers should take an informal rather than overly
formalistic approach to matters of constitutional and statutory interpretation.
Whether this rationale should apply to judicial interpretations of legal
norms has been a matter of debate.
 Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42,  2 SCR 248, at para. 35.
 Manitoba (A.G.) v. Metropolitan Stores Ltd.,  1 SCR 110, at para. 26, per Beetz J.
 R. v. Lucas,  1 S.C.R. 439, at para. 66. Cf Law Society of British Columbia v. Mangat, 2001 SCC 67,  3 SCR 113, at para. 66, where a constitutionally conforming interpretation would have been “repugnant” to the text and context of the legislation at issue.
 Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,  2 SCR 559, at para. 62.
 Ontario v. Canadian Pacific Ltd.,  2 SCR 1031, at para. 15, per Lamer J.
 Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42,  2 SCR 248, at para. 35. See also Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038, at p. 1078.
 R. v. Nova Scotia Pharmaceutical Society,  2 S.C.R. 606, at p. 660.
 See further John Mark Keyes and Carol Diamond, “Constitutional Inconsistency in Legislation—Interpretation and the Ambiguous Role of Ambiguity” (2017) 48:2 Ottawa Law Review 315, at pp. 335-343.
 2012 SCC 12,  1 SCR 395, at para. 57.
 Ibid., at paras. 55-56.
 Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, at para. 57.
 Paul Daly, “The Inevitability of Discretion and Judgement in Front-Line Decision-Making in the Administrative State” (2020) 2 Journal of Commonwealth Law100.
 Compare John Mark Keyes and Carol Diamond, “Constitutional Inconsistency in Legislation—Interpretation and the Ambiguous Role of Ambiguity” (2017) 48:2 OLR 315, at pp. 343-353 with the dissenting reasons of Huscroft JA in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148, at paras. 135-138.
This content has been updated on December 22, 2021 at 15:42.