Constitutionally Conforming Interpretation in Canada
I have posted “Constitutionally Conforming Interpretation in Canada” to SSRN. Here is the abstract:
The presumption of constitutionally conforming interpretation is an important part of Canadian constitutional law. But that there is fundamental disagreement about the presumption. This fundamental disagreement reveals the existence of two different camps of lawyers, which I label Type A and Type B.
Type A lawyers are committed to legal certainty and see the legal system as a neat set of limited, hierarchically ordered interpretive rules. By contrast, Type B lawyers place a premium on legal coherence, seeking to weave statutory provisions into a normatively attractive pattern by infusing them with values drawn from constitutional norms. Unless and until one of these camps gains hegemony in the methodology of statutory interpretation, Canada’s presumption of constitutionally conforming interpretation will remain the subject of debate.
To situate the presumption of constitutionally conforming interpretation, I begin in Part I with a discussion of Canada’s constitutional architecture, explaining the circumstances in which Canadian courts conduct judicial review for constitutional compliance. Canada is a federal, Westminster-style liberal democracy with a written Constitution and entrenched bill of fundamental rights. Questions of federalism and fundamental rights are central to judicial review of constitutional issues; in the fundamental rights area, there is express provision for legislatures to impose limitations on rights, via passing a proportionality test or legislating ‘notwithstanding’ rights. These structural considerations shape the practice of constitutionally conforming interpretation in Canada.
I proceed in Part II to analyze the various presumptions of constitutionality applied by Canadian courts. Four can be identified: a presumption of regularity; a presumption of validity; a presumption of constitutionally conforming interpretation; and a presumption of constitutionally conforming administration. Each is important to the practice of judicial review for constitutionality in Canada; debates about constitutionally conforming interpretation can only be appreciated once the other presumptions of constitutionality are understood.
Part III is the core of this contribution. I begin by explaining the uncertain scope of the presumption of constitutionally conforming interpretation. I then introduce the debates about the presumption of constitutionally conforming interpretation. In essence, the crux of the issue is whether the presumption applies only in cases of statutory ambiguity or whether constitutional values permeate the statute book and the interpretive process. I describe structural arguments about the relationship between the rights-protecting and rights-limiting features of the Canadian constitutional order; institutional arguments about the relationship between Canada’s different branches of government; and intentionalist arguments about legislatures’ desires to engage in constitutionally compliant law-making. None of these arguments is powerful enough on its own to justify a particular approach to constitutionally conforming interpretation. Indeed, I note that underlying these arguments is intractable methodological disagreement: in reality, debates about constitutionally conforming interpretation are debates about the proper approach to statutory interpretation.
On this issue, unfortunately, Canadian lawyers are locked in a pitched battle. Unless and until this disagreement is resolved – and there is no reason to think it will be – Canadians will continue to debate the presumption of constitutionally conforming interpretation.
Download it here.
This content has been updated on January 21, 2022 at 20:00.