Presumed Compliance with Constitutional Law, Common Law, and International Law

• Author: Ruth Sullivan
• Pages: 307-316

307

CH AP TER 18

PR ESUMED COMPLI A NCE

WITH CONSTITUTIONAL

LAW, COMMON LAW, AND

INTERNATIONAL LAW

A. PRESUMED COMPLIANCE WITH

CONSTITUTIONAL LAW, INCLUDING

CHARTER

NOR MS

It is presumed that the legi slature does not intend to violate the consti-

tutional limits on its jurisdiction. These include limits on the matters

a legislature may deal w ith under the Constitution Act, 1867 as well as

limits on interference wit h Charter-protected rights. When faced with a

choice, courts prefer interpretations that are consistent with these li m-

its and avoid interpretations that would render legislation invalid. As

Cartwr ight J wrote in McKay v Canada, “if words in a statute are fairly

susceptible of two constructions of which one will result in the statute

being int ra vire s [valid] and the other will have the contrar y result the

former is to be adopted.”1

In McKay, the Supreme Court of Canada was concerned with a mu-

nicipal bylaw, authorized by provincial legi slation, which prohibited the

display of signs on resident ial property. The issue was whether the bylaw

could be relied on to prevent the display of signs advert ising candidates

for federal off‌ice. Since property is a provincial m atter under section 92

of the Constitution Act, 1867, it was valid for the province to exercise

regulatory authority over land u se or, as was done here, to delegate this

authority to municipalities. Thus, most applications of the bylaw would

1 [1965] SCR 798 at 804 [McKay].