Simon's Megalomaniacal Legal Resources

Constitution (Non-Charter) - Presumption of Constitutionality

. Canada (Attorney General) v. Canadian Civil Liberties Association ['reading-down']

In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.

Here the court considers the constitutional technique of 'reading down', a derivative of the 'presumption of constitutionality' principle:

[247] A third, and most important, reason to require a robust justification for the finding of a national emergency rests with the constitutional underpinning of the Act itself. While the AGC is correct that no party has challenged the constitutional validity of the Act per se on division of powers grounds, the interpretation (especially with respect to the definition of "“national emergency”" in section 3 of the Act) must still be informed by and consistent with the distribution of legislative powers as found in the Constitution Act, 1867. An interpretation of the Act or of one of its provisions that would bring it outside the confines of the "“national emergency”" branch of the introductory part of section 91 must be rejected and could certainly not be found to be a reasonable exercise of the powers conferred on Cabinet by Parliament.

[248] This is a well-established principle of Canadian constitutional law, and it has often been referred to as the "“reading down”" doctrine. It derives from the presumption of constitutionality, to the extent that the enacting legislative body is presumed to have meant to enact a statute which does not transgress the limits of its constitutional powers. For example, the Federal Courts Act has been read down to exclude from the jurisdiction of the Federal Court cases that are governed by provincial law; that interpretation was mandated by section 101 of the Constitution Act, 1867, pursuant to which the Federal Courts Act was enacted, which authorizes the establishment of federal courts only for the purpose of deciding cases governed by federal law: see Quebec North Shore Paper v. C.P. Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054. For other examples, see: Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285; Clark v. Canadian National Railway Co., 1988 CanLII 18 (SCC), [1988] 2 S.C.R. 680; Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3. See also: P.W. Hogg and W. Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2021), section 15.15.

[249] In Re: Anti-Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, Justice Beetz (writing for himself and Justice de Grandpré) characterized the dramatic impact that the use of the emergency power has on the normal distribution of powers as "“a temporary pro tanto amendment of a federal constitution by the unilateral action of Parliament”" (at p. 463). As a result, he expressed the view in his dissent that courts cannot decide that a suspension of the Constitution is legitimate unless Parliament has expressly invoked that power, despite there being no such requirement in the WMA. Without going as far, Justice Ritchie (writing on behalf of three other judges) shared Justice Beetz’s view with respect to the use of the emergency power. Significantly, he was of the opinion that the conditions required to declare a national emergency existed "“where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament”" in the exercise of its emergency power (at p. 436).

[250] Interestingly, the wording of the definition of a "“national emergency”" at section 3 of the Act closely tracks the language used by Justices Ritchie and Beetz in Re: Anti-Inflation Act. This is further indication, in our view, that Parliament intended that power to be used sparingly and in the most exceptional circumstances. Because the Act authorizes Cabinet to intrude into core areas of provincial jurisdictions, it must only be used as a last resort if the federal nature of the Constitution is to be preserved. This is consistent with the addition, at the Committee stage, not only of a statutory definition of a "“national emergency”", but also of the requirement that the urgent and critical situation be of the sort that cannot be effectively dealt with under any other law of Canada (the "“last resort”" clause). These amendments came about as a response to those who were of the view that the original Bill C-77 did not include adequate safeguards to circumscribe the declaration of an emergency. At the Third Reading of the Bill, Mr. Bud Bradley (Parliamentary Secretary to the Minister of National Defence) explained that clause in the following terms:

The definition of “national emergency” as now formulated captures the four elements common to all the proposals put to the committee. It represents the distilled consensus of the collective wisdom of the highly qualified people whose advice we were fortunate to receive. The four elements incorporated in a new definition of national emergency are: first, the notion of urgency; second, the temporary character of the abnormal situation; third, the inadequacy of the normal legal framework; and finally, the presence of a serious threat, either to the security of the country as a whole, or to public safety in circumstances which exceed provincial capabilities.

. Sanis Health Inc. v. British Columbia

In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].

Here the court considers the 'presumption of constitutionality':

[45] The court will approach the question of a law’s validity under the interpretive presumption of constitutionality, assuming that the legislature did not intend to exceed its authority if the law can be read to limit it within its proper jurisdictional bounds (Reference re Impact Assessment Act, 2023 SCC 23, at para. 72). This presumption is especially strong when the attorneys general of the jurisdictions affected by the law support its validity (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 73; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 33; OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at pp. 19-20). That said, the court’s role is to adjudicate constitutional compliance and not simply defer to an Attorney General’s opinion of a law’s validity.

. Reference re Impact Assessment Act

In Reference re Impact Assessment Act (SCC, 2023) the Supreme Court of Canada considers the 'presumption of constitutionality':

(3) The Presumption of Constitutionality

[69] The presumption of constitutionality “remains a cardinal principle of our division of powers jurisprudence” (Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, at para. 79; Reference re The Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198, at p. 255; Nova Scotia Board of Censors v. McNeil, 1978 CanLII 6 (SCC), [1978] 2 S.C.R. 662, at pp. 687‑88; Reference re Firearms Act, at para. 25; see also Severn v. The Queen (1878), 1878 CanLII 29 (SCC), 2 S.C.R. 70, at p. 103; Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467, at para. 81). Several consequences flow from the application of the presumption of constitutionality in federalism cases. Two of these consequences are germane for our purposes.

[70] First, according to this presumption, “every legislative provision is presumed to be intra vires the level of government that enacted it” (Murray-Hall, at para. 79; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 15:13). In other words, a court should approach any question as to the validity of legislation “on the assumption that it was validly enacted”, unless the party challenging the validity of the legislation demonstrates otherwise (McNeil, at pp. 687-88; Reference re The Farm Products Marketing Act, at p. 255; Murray-Hall, at para. 80).

[71] Second, the presumption of constitutionality functions as a principle of statutory interpretation. It directs a court to assume that “a legislative body does not intend to exceed its powers under the Constitution” (Osborne v. Canada (Treasury Board), 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69, at p. 103). As this Court explained in McKay v. The Queen, 1965 CanLII 3 (SCC), [1965] S.C.R. 798, at pp. 803-4:

. . . if 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.

[72] Therefore, when characterizing a challenged law, a court faced with “competing, plausible characterizations . . . should normally choose that one that would support the validity of the law” (Hogg and Wright, at § 15:13; see also Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 33; Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228, at para. 28). And “where a law is open to both a narrow and a wide interpretation, and under the wide interpretation the law’s application would extend beyond the powers of the enacting legislative body, the court should ‘read down’ the law so as to confine it to those applications that are within the power of the enacting legislative body” (Hogg and Wright, at § 15:13).

[73] I emphasize, however, that the presumption of constitutionality is not an impermeable shield that protects legislation from constitutional review by courts. Nor can courts employ the presumption of constitutionality to rewrite legislative text as they see fit in order to bring it into compliance with the Constitution. Courts cannot rely on the presumption of constitutionality to disregard a statute that speaks clearly and is ultra vires its enacting body. As Justice Gonthier held in Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 66, the presumption of constitutionality “only applies when both competing interpretations are reasonably open to the court”. In that case, Justice Gonthier declined to interpret the impugned provisions as being consistent with constitutional norms because doing so “would be repugnant to the text and context of the federal legislation” (para. 66; see also McKay, at pp. 803-4; J. M. Keyes and C. Diamond, “Constitutional Inconsistency in Legislation — Interpretation and the Ambiguous Role of Ambiguity” (2017), 48 Ottawa L. Rev. 313, at pp. 321-22). Thus, while the presumption of constitutionality is a “cardinal principle” that must be borne in mind, it does not displace the duty of courts to meaningfully review the constitutionality of legislation.

[74] Similarly, a court cannot circumvent its duty to meaningfully review the constitutionality of legislation by suggesting that, insofar as an administrative decision maker applies a law unconstitutionally, the application of that law may be judicially reviewed. The constitutional validity of a law and its administrative application are distinct concepts. Where a constitutionally valid law grants a decision maker broad and imprecise discretion, that discretion must be exercised reasonably and in accordance with the purpose for which it was given (References re GGPPA, at para. 73). But where a law is ultra vires and therefore unconstitutional, it cannot be saved by the prospect of administrative judicial review. As Justice La Forest explained in Hydro-Québec, at para. 73:

. . . the constitutional validity of a statute cannot depend on the ebb and flow of existing government practice or the manner in which discretionary powers appear thus far to be exercised. It is the boundaries to the exercise of that discretion and the scope of the regulatory power created by the impugned legislation that are at issue here. It is no answer to a charge that a law is unconstitutional to say that it is only used sparingly. If it is unconstitutional, it cannot be used at all. [Emphasis in original.]