Debates about the Presumption of Constitutionally Conforming Interpretation in Canada

Here is another post in my series on constitutionally conforming interpretation. The first two posts are here and here.

Judges and commentators have made structural, institutional and intentionalist arguments about the presumption of constitutionally conforming interpretation. Whilst it is impossible to avoid some form of a presumption of constitutionally conforming interpretation, given the Constitution’s supremacy clause, these arguments militate in favour of a stronger or weaker presumption. To complicate matters somewhat, the force of these arguments depends on the context of the area under discussion: arguments about the Charter may not carry over into the area of federalism; and arguments about the Charter and federalism do not always meet their mark when discussing the presumption of constitutionally conforming administration.

This aside, these arguments simply mask a deeper disagreement about the methodology of statutory interpretation, on which lawyers divide into two camps, Camp A and Camp B. Those in Camp A believe that following the authentic meaning of statutes is fundamental and, as such, seek to give effect to legislative intent as manifested in statutory language understood in its whole context and with due regard to the purposes revealed by the text. Those in Camp B, by contrast, believe that statutory language must be woven into the fabric of the common law, in a way which contributes to the ongoing creation and maintenance of a coherent pattern.[1] There is no way to arbitrate between these camps, however, making debates about the content of the presumption of constitutionally conforming interpretation quite intractable.

Considering the arguments in turn will allow me to demonstrate that they mask this intractable disagreement. I will also highlight areas in which the arguments seem to me to fail on their own terms.

Structural Argument

First, the structural argument has been advanced in the area of the Charter.[2] The view that courts should not engage in constitutionally conforming interpretation was forcefully put by Sopinka J:

[T]o consult the Charter in the absence of [statutory] ambiguity is to deprive the Charter of a more powerful purpose, namely, the determination of a statute’s constitutional validity.  If statutory meanings must be made congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than simply consult, the values of the Charter.  Furthermore, it would never be possible for the government to justify infringements as reasonable limits under s. 1 of the Charter, since the interpretive process would preclude one from finding infringements in the first place.[3]

Here, Sopinka J expresses two points, one about constitutional supremacy, the other about the relationship between Charter infringements and justifications of Charter violations by reference to the proportionality test.[4]

The latter point applies only to the Charter.[5] To begin with, there is no proportionality test in federalism cases; rather, a judge must determine whether legislation is, in pith and substance, within the constitutional competence of the enacting body.[6]

Furthermore, the latter point does not take account of the possibility that legislation will be considered in determining the scope of Charter rights. To take the view set out in the quote, Sopinka J must stand on the premise that a Charter analysis requires two distinct steps – the court determines (i) if a right has been infringed before (ii) determining whether the legislation passes a proportionality test – and that justifications provided by governments can only be considered at the second step. This is largely true of Canadian constitutional jurisprudence. But it is not inherently true. Professor Webber has argued, for instance, that legislative interpretations of Charter rights can legitimately influence the content courts give to those rights.[7] As we have seen, indeed, there is authority from the federalism area for the proposition that legislative interpretations of the Constitution can influence judicial analysis. What applies to the “presumption of validity” could apply to the “presumption of constitutionally conforming interpretation” too.

The former point about constitutional supremacy also rests on unexpressed premises: it posits a binary choice between upholding and invalidating legislation. But there is no such binary choice. To begin with, where a legislative regime contains discretion, the Charter can be “applied” (not merely “consulted”) in granting an individualized remedy. Moreover, there is a range of remedial options at the disposal of judges who have found that a legislative provision violates the Constitution: they can suspend the declaration of invalidity[8] (which could, in turn, have retroactive or prospective effect[9]); they can ‘read in’ terms to the legislation to bring into compliance with the Constitution; or they can ‘sever’ constitutionally offensive terms.[10] More fundamentally still, Sopinka J begs the question of what it means to apply the Constitution: it could mean, as he thought, invalidating legislation which does not conform to the Constitution, but it could also mean permeating the statute book with constitutional norms so as to bring the corpus juris into harmony.

Institutional Argument

In BellExpressVu, Iacobucci J offered an institutional argument to support the structural argument:

[The] Court [has] described the relationship among the legislative, executive, and judicial branches of governance as being one of dialogue and mutual respect.  As was stated, judicial review on Charter grounds brings a certain measure of vitality to the democratic process, in that it fosters both dynamic interaction and accountability amongst the various branches.  “The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter)” … [But] if courts were to interpret all statutes such that they conformed to the Charter, this would wrongly upset the dialogic balance.  Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had.  In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status.  Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society.  Before long, courts would be asked to interpret this sort of enactment in light of Charter principles.  The patent unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance.[11]

The most obvious difficulty with Iacobucci J’s argument is that it relies on a dialogical model which itself has been strongly criticized, not least because the model is centred on courts’ interpretations of the Constitution and facilitates more of a judicial monologue than a dialogue between equal partners who can each contribute to the meaning of the Constitution.[12] Beyond this, for any dialogic model to work, it must fulfil various conditions, which may not always be present.[13] This is ultimately an empirical matter, making the argument contingent on the existence of factual predicates such as the quality of the engagement between the legislature and judiciary.

Furthermore, workability is very much in the eye of the beholder. What Iacobucci J sees as unworkable might be perfectly workable from the point of view of a legislator or minister: if Charter justifications were set out in legislation, judges could use them (rather than lawyerly pre-conceptions of what the Charter means) to interpret statutory provisions elsewhere in the legislation. There is no inherent reason to object to such an approach. Indeed, legislatures could engage in dialogue even without changing their general approach to law-making. The practice of ‘declaratory legislation’, which has the effect of changing a judicial interpretation with which the legislature is dissatisfied, is well established in Canadian law.[14] There is simply nothing to preclude a Canadian legislature from disagreeing with a judicial interpretation of any statute.[15]

Again, therefore, Iacobucci J’s argument is subject to the same fundamental objection as Sopinka J’s: maybe constitutional norms should permeate the statute book, regardless of whether there is statutory ambiguity.

Intentionalist Argument

There is, then, the intentionalist argument. The issue here is whether Parliament or a provincial legislative assembly can be taken to have intended to legislate in a constitutionally compliant manner. If so, then the argument for constitutionally conforming interpretation is all the stronger, for the courts would simply be giving effect to the enacting body’s intention to make constitutionally compliant legislation. If not, however, the argument would be somewhat weaker: without a general legislative intention to make constitutionally compliant laws, it would only be in situations of statutory ambiguity that recourse to constitutional norms would be appropriate.

There are some practical difficulties with an intentionalist approach.[16] One, very simply, is that much legislation pre-dates the Charter (and some even pre-dates the Constitution Act, 1867). Is there to be a presumption constitutionally conforming interpretation for one set of statutes but none for others? This would hardly be a recipe for clarity.[17] Another is that there are statutory and non-statutory requirements to ensure that legislative proposals are Charter compliant[18] – but there are no such requirements in respect of compliance with the Constitution Act, 1867. Again, is there to be a presumption of constitutionally conforming interpretation for the Charter but not for the Constitution Act, 1867? Moreover, as an empirical matter, it is very difficult to judge the influence of these statutory and non-statutory requirements; indeed, different governments have treated them very differently.[19] And there is, in addition, the age-old problem of ascribing intentions about specific matters to those who draft and adopt legislation: the intentionalist approaches to interpretation which focus on what was in the hearts and minds of legislators have long since fallen out of fashion.

Of course, more sophisticated accounts of legislative intent do not rely on looking into hearts and minds. Rather, they insist that the object of interpretation should be the output of the legislative process, given that legislators agreed on a set of procedures for making laws.[20] Again, however, this does not resolve the intractable disagreement between Camp A and Camp B. Someone in Camp A can say that the judge’s role is to search for the authentic meaning of the output of the legislative process. But an antagonist from Camp B can counter as follows. The idea is that legislators have the intent to act upon an agreed set of procedures for producing law; an intent “held in common amongst legislators and [which] structures how they act together”[21] before they set to work in the legislative chamber. But there is no reason that these legislators could not also be said to act with the knowledge that purpose, context and relevant constitutional principles will be brought to bear on the interpretation of the statutes they create through these procedures. This, however, is simply another way of observing that an intentionalist approach supports both a search for the authentic meaning of legislation and an approach which seeks to weave new laws into the common law.

[1] David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?” in Christopher Forsyth ed., Judicial Review and the Constitution (Hart Publishing, Oxford, 2000), p. 141.

[2] See Spence Colburn, “Presumed Compliant: Charter Review of Statutory Grants of Discretion & the Presumption of Constitutionality” (2021) 79:1 U Toronto Fac L Rev 1, at pp. 13-15.

[3] Symes v. Canada, [1993] 4 S.C.R. 695, at p. 752.

[4] See also Kent Roach, “Constitutionalized Interpretation, Reading Down/In and the Wisdom of Schachter” (2016) 26 National Journal of Constitutional Law 211.

[5] Asher Honickman, “The Paradoxical Presumption of Constitutionality” (2017) 46:4 Adv Q 421.

[6] A judge might also be required to interpret other provisions of the Constitution Act, 1867, such as s. 53, which memorializes the principle that there shall be no taxation without representation; s. 96, which protects core powers of superior courts from interference; and s. 125, which exempts public lands from taxation.

[7] The Negotiable Constitution (Cambridge University Press, Cambridge, 2009). See e.g. Bracken v. Niagara Parks Police, 2018 ONCA 261, at para. 33.

[8] Ontario (Attorney General) v. G, 2020 SCC 38.

[9] R. v. Albashir, 2021 SCC 48.

[10] See also Hamish Stewart, “A Defence of Constitutionalized Interpretation” (2016) 36 NJCL 195.

[11] BellExpressVu, at paras. 65-66.

[12] See e.g. Christopher Manfredi, Judicial Power and the Charter. Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Oxford University Press, Oxford, 2001).     

[13] Hamish Stewart, “A Defence of Constitutionalized Interpretation” (2016) 36 National Journal of Constitutional Law 195, at pp. 204-210.

[14] Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 SCR 125, at paras. 26-35.

[15] It is appropriate here to note Professor Roach’s objection that a broad approach to constitutionally conforming interpretation risks inducing readers of the statute book into error, as the reinterpreted provision must be read in light of the jurisprudence (to which the reader might not have access): Kent Roach, “Constitutionalized Interpretation, Reading Down/In and the Wisdom of Schachter” (2016) 26 NJCL 211, at p. 224-225. Whatever about the premise that people read statutes (and statutes alone) to guide their conduct, the alternative preferred by Professor Roach, of declaring statutes invalid, would not respond to the harm he identifies. For Canadian courts do not ‘strike down’ statutes: invalid laws remain on the statute book; and there are examples of individuals being prosecuted for non-compliance with ‘Zombie’ laws. See generally Paul Daly et al, “The Effect of Declarations of Unconstitutionality in Canada” (2021) 42 NJCL25, at pp. 28, 43-44. See also Marc-Antoine Gervais, <<Les impasses théoriques et pratiques du contrôle de constitutionnalité canadien>> Revue de droit de McGill (forthcoming).

[16] See also Andrew S Butler, “A Presumption of Statutory Conformity with the Charter” (1993) 19 Queen’s LJ 209, at pp. 222-224 (arguing the empirical case in favour of a presumption of constitutionally conforming intentions).

[17] Dale Gibson, The Law of the Charter: General Principles (Carswell, Toronto, 1986), at pp. 57-58.

[18] See e.g. Department of Justice Act, RSC 1985, c J-2, s. 4.1.

[19] See the discussion in Schmidt v. Canada (Attorney General), 2016 FC 269, [2016] 3 FCR 477, affirmed 2018 FCA 55, [2019] 2 FCR 376.

[20] Richard Ekins, The Nature of Legislative Intent (Oxford University Press, Oxford, 2012).

[21] Ibid. at p. 231.

This content has been updated on December 22, 2021 at 15:45.