Constitutional Inconsistency in Legislation: Interpretation and the Ambiguous Role of Ambiguity.

AuthorKeyes, John Mark


The rule of law eschews ambiguity. And yet, ambiguity abounds in legislative texts and its resolution consumes considerable interpretive energy. This is not surprising given the limitations of natural languages as vehicles for communicating the law. But ambiguity is not just a problem to be resolved. It also plays a role in the interpretative process itself. It is a threshold for embarking on particular lines of inquiry in the search for meaning. Without ambiguity, certain matters cannot be considered. These matters include the Constitution. This is startling in a constitutional democracy where the Constitution is the supreme law, prevailing over all other laws. This article addresses this conundrum.

The interpretive implications of the Constitution have received attention from time to time, but far more attention has been focused on its remedial dimensions, which are encapsulated in subsection 52(1) of the Constitution Act, 1982:

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (1) This fundamental constitutional rule is augmented by section 24 of the Canadian Charter of Rights and Freedoms, which provides for applications "to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances." (2) This ground is well-tilled, and captures the attention of most constitutional scholars and practitioners. (3) But what about the interpretive dimension of applying constitutional law? To what extent can legislative interpretation be used to avoid a constitutional inconsistency? And is there an interpretive role for constitutional norms beyond serving as a basis for a judicial remedy that turns on invalidity?

These questions implicate two related presumptions that the courts apply in dealing with constitutional questions. One is persuasive in nature (the presumption of validity), and the other is interpretive (the presumption of compliance). However, the interpretive presumption operates only when there is ambiguity in the legislative text. This article begins by considering the presumption of compliance and the application of the ambiguity threshold in relation to constitutional norms, principally those recognized by the Charter. It first looks at how the Supreme Court of Canada has addressed the ambiguity threshold in interpretive questions, and then looks at how it has more recently eliminated this threshold in relation to interpretive questions arising in the exercise of administrative discretion. This has produced distinctly different interpretive approaches as between courts and administrative tribunals. It is difficult to justify this inconsistency, and the article concludes that the ambiguity threshold for considering constitutional norms should be eliminated generally in favour of a more principled approach to managing the scope of legislative interpretation.

In every interpretive exercise, the interpreter--whether a court or some other body or person--must select the particular interpretive tools that lead to a compelling conclusion. This involves using those tools that provide a compelling basis for an interpretive result. This article argues that the Charter and other constitutional norms should not be excluded at the outset. Rather, they should be considered along with other relevant contextual factors and be given the interpretive weight they deserve. Using the ambiguity threshold to categorically exclude their consideration blunts the role of legislative interpretation in assuring the supremacy of the Constitution.


    There are two presumptions related to the interaction of constitutional and legislative texts, (4) which are often conflated under the rubric of the presumption of validity in constitutional and administrative law. (5)

    The first presumption, which Ruth Sullivan considers properly labelled as the presumption of validity, provides that those who contest the validity of legislation have the burden of demonstrating its invalidity. In terms of constitutional law, this means inconsistency with the Constitution, (6) which explains why the presumption is sometimes labelled as the presumption of constitutionality. (7) The second presumption, which Sullivan labels the presumption of compliance, is interpretive. It provides that, if the text of the legislation is capable of bearing a meaning that is constitutionally valid, then the courts will give it that meaning. (8) This presumption can result in "reading down" a legislative text to fit its constitutional limits.

    The two presumptions frequently work in tandem. Before addressing questions of validity, courts must determine what legislation means, which entails the presumption of compliance. Once they determine what it means, the presumption of validity comes into play if validity is challenged. In addition, the presumption of compliance has been extended to reflect not merely constitutional limits, but also constitutional values, most notably those associated with the Charter. (9) These values underlie the rights, freedoms, requirements, and limits imposed by the Constitution. (10) For example, human dignity has been characterized as a constitutional value informing the notion of fundamental justice in section 7 of the Charter, (11) as well as the equality rights guaranteed by section 15. (12) When the interpretive presumption of compliance is applied in relation to these values, it goes beyond preserving the validity of legislation to infuse it with meaning consistent with these values. (13) This expanded use of the Charter is rooted in its earlier application to the development of the common law, but it has been criticized as injecting uncertainty and complexity into the interpretive process, particularly in relation to administrative tribunals. (14) The merits of this expansion, as well as its critiques, are considered below. (15)

    The distinction between the presumption of validity and the presumption of compliance aligns with the difference between, on the one hand, the constitutional remedies of severance and reading in and, on the other hand, the interpretive exercise of reading legislation to comply with the Constitution. In Osborne v Canada, Justice Sopinka noted this distinction saying:

    The court is given an express mandate to declare invalid a law which, by virtue of s. 52 of the Constitution Act, 1982, is of no force or effect to the extent of its inconsistency with the Charter. There is no reason for the court to disguise the exercise of this power in the traditional garb of interpretation. (16) But what exactly is the difference between interpreting legislation to conform to the Constitution and providing a constitutional remedy that shapes it to fit the Constitution? And when do courts choose one over the other?

    The next part of this article explores these questions in terms of a threshold the courts, particularly the Supreme Court, have recognized as a prerequisite to applying the interpretive presumption of compliance. This threshold requires that "ambiguity" be found in a legislative text before the presumption can be applied or indeed, before constitutional "values" can be considered at all in the interpretation of the text. But the circumstances in which courts will invoke this threshold are a matter of debate, and in fact, the Supreme Court recently held that the threshold does not generally apply at all in relation to the interpretation of legislation by administrative tribunals in the exercise of discretionary powers. (17)


    The ambiguity threshold has gained considerable prominence in recent years as a feature of the interpretation of legislative texts in relation to the Constitution. It limits the application of the presumption of compliance to texts that are capable of bearing an interpretation that is consistent with the Constitution. This feature can be traced back to its invocation in a case on the division of powers. In R v McKay, the Supreme Court stated that:

    [I]f 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. (18) This means constitutional limits on legislative powers cannot be taken into account when the text unambiguously expresses its meaning. This approach is generally associated with the plain meaning rule of interpretation, which requires some ambiguity as a threshold for embarking on an interpretive exercise.

    The ambiguity threshold for considering constitutional norms in the interpretation of legislation continues to be applied in relation to the division of powers. (19) It has also been applied in a number of Supreme Court cases involving the Charter, (20) as well as beyond the realm of constitutional law to interpretive presumptions of conformity to the common law and international law, (21) presumptions in favour of Indigenous peoples, (22) recourse to the strict construction of penal statutes (23) and tax legislation, (24) and the use of extrinsic aids to interpretation. (25)

    Sullivan has criticized this ambiguity threshold as an unwarranted barrier to integrating fundamental constitutional values in the interpretive process. (26) If, as Elmer Driedger's now widely recognized Modern Principle of Interpretation says, courts must always take into account a wide range of contextual factors, then why...

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