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Statutory Interpretation - Presumption of Constitutionality (Intra Vires)

. 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.]


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Last modified: 19-10-23
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