PRESUMED COMPLIANT: CHARTER REVIEW OF STATUTORY GRANTS OF DISCRETION & THE PRESUMPTION OF CONSTITUTIONALITY.

• Author: Colburn, Spence
• Position: Canada

INTRODUCTION 2 I THE PRESUMPTION OF CONSTITUTIONALITY 3 A. The Ambiguity Threshold 5 B. Rationales Underlying the Presumption of Constitutionality 6 II IMPLICATIONS OF THE PRESUMPTION OF CONSTITUTIONALITY FOR CHARTER LITIGATION IN THE MODERN REGULATORY STATE 8 A. From Federalism to the Charter and the Administrative State 8 B. Presuming Constitutionality in Charter Litigation 11 III REJECTING PRESUMED CONSTITUTIONALITY 17 A. Where the Statute or Statutory Context Evinces a History of Rights Violations 19 B. Where the Law Will be Implemented by Administrative Actors who Lack Specialized Expertise or Legal Training 21 C. Where the Statutory Scheme is Designed to Regulate the Rights and Freedoms of Groups Underrepresented in the Political Process 26 D. Where the Charter Rights Engaged by the Statute's Application Call for Sufficient Precision to Guide Conduct 30 IV CONCLUSION 34 INTRODUCTION

For as long as Canada has had a constitution, its judges have been tasked with ensuring that legislation complies with constitutional requirements. If it does not, judges are empowered to strike down the law, initially through colonial-era legislation, then the Statute of Westminster 1931, (1) and now through section 52 of the Constitution Act 1982. (2) Judicial review of legislation is central to the role of the judge within the constitutional order. When judges review legislation, the legislature benefits from a presumption of constitutionality, which permits judges to presume constitutional legislative intent and select a constitutional interpretation of an ambiguous statute over an unconstitutional interpretation, if both are plausible. Unlike declarations of invalidity, the presumption of constitutionality minimizes the extent of judicial intrusion into the legislative sphere by giving the benefit of the doubt to the legislature.

In this article, I explore the operation of this presumption of constitutionality within the modern administrative context in the age of the Canadian Charter of Rights and Freedoms. (3) The presumption of constitutionality emerged in the pre-Charter context, where it engaged mainly federalism concerns. I suggest that there are different concerns that animate the operation of the interpretive presumption in light of the role of judges in the federalism and Charter realms, respectively. Furthermore, the modern regulatory state imports its own implications for the application of the presumption of constitutionality: statutory conferrals of discretion to the executive are generally broad and imprecisely drafted, leaving them open to considerable interpretation by the officials tasked with wielding that authority. In this context, the presumption of constitutionality is potentially often engaged, rendering constitutional vaguely drafted provisions and shifting judicial scrutiny away from the statute and onto individual exercises of discretion. Lauded by some as a positive advancement of constitutional supremacy, I suggest the presumption can complicate Charter litigation and lead judges to abdicate their express mandate under section 52 to strike down laws that are inconsistent with the Charter. (4)

In Part I, I provide a brief overview of the nature of the presumption. Part II outlines the presumption's evolution from federalism jurisprudence to the Charter context, analyzing the complicated mechanics of the presumption's operation in the latter realm. Finally, Part III builds on Kent Roach's scholarship on the topic to identify four circumstances in which judges may legitimately decline to apply the presumption to fulfill their role as guardians of Charter rights.

I THE PRESUMPTION OF CONSTITUTIONALITY

Before assessing the constitutional validity of impugned legislation, courts must first determine what the statute means. (5) Where legislators draft statutory provisions in specific and narrow terms, interpretation can be a brief and uncontentious task. But in the realm of discretionary powers, statutory interpretation becomes both more difficult and more important. Administrative discretion often derives from broad, open-ended statutory language, which makes the interpretive task more challenging. Yet, discerning what the language means determines what the statute authorizes a government actor to do, and the answer to this question shapes any subsequent determination of the law's validity. If the decision or action of an administrative actor is not dictated by the court's interpretation of its empowering statute, then it is the exercise of individual discretion which must be evaluated against the Constitution, not the law itself.

The legislature has good reason to prefer less-than-precise drafting when delegating authority to the executive. Administrative law is characterized by a constant tension between rules and discretion. (6) On one hand, the rule of law demands certainty and predictability. (7) On the other, the public administration of the regulatory state relies on discretion for its efficiency and fairness. (8) Discretion enables officials with expertise to make decisions flexibly, responding to the infinite factual matrices that come before them (9)--a range of scenarios that legislators cannot predict when delegating away powers to the executive. (10) Legislators' typical solution to this problem "is to fall back on general language, which is adequate to cover the particular situations envisaged, and which holds out the possibility of catching unforeseen variations." (11)

For decades, courts have grappled with the interaction between administrative law principles and the Constitution. Not only do open-ended and ambiguous provisions impede statutory interpretation, but the relationship between broad discretion and the Constitution is a problem not readily solved. No discretion is unfettered; (12) all discretion is fettered by the Constitution. (13) However, broad conferrals of administrative discretion often do not explicitly incorporate constitutional limits, thereby increasing the risk that bureaucrats might exercise their discretion in a manner that infringes constitutional rights.

Courts have responded to this problem, in part, by infusing the process of statutory interpretation with constitutional values. The modern principle of statutory interpretation, set out by Elmer Driedger, holds that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." (14) To supplement this principle, courts presume, in the absence of express language to the contrary, that Parliament's intention is to legislate in conformity with the Constitution. (15) Where wording in a statute is ambiguous, a court will choose an interpretation that aligns with the imputed intention of Parliament to draft constitutionally-compliant legislation. (16)

I refer to this presumption of statutory interpretation as the presumption of constitutionality. It can be distinguished from a literal understanding of a presumption of constitutional validity, in which legislation is presumed to be constitutional until an applicant establishes otherwise. That sense of a presumption of constitutionality can be seen in the requirement that "the one who asserts must prove." (17) The presumption of constitutionality, as I use the term, is interpretive--it permits courts to ascribe meaning to a statute that is constitutionally valid, if the legislation is capable of bearing that meaning. (18) This presumption has also been referred to as 'reading down' a statutory provision through interpretation. (19)

1. THE AMBIGUITY THRESHOLD

   Statutory ambiguity is a precondition to a court's use of the presumption of constitutionality. If courts presume that Parliament legislates constitutionally unless it clearly indicates otherwise, it follows that courts will only apply the presumption where a statute is ambiguous insofar as it is capable of both constitutional and unconstitutional interpretations. This 'ambiguity threshold' emerged in the division of powers context in McKay v R, where Justice Cartwright held 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." (20) McKay limited the presumption of constitutionality to statutes that are capable of bearing a meaning consistent with the Constitution. (21)

   What then, in law, is ambiguous? The leading case on this question remains Bell ExpressVu LP v R in which the Supreme Court of Canada held that ambiguity arises only where a court, applying Driedger's purposive approach, determines that the words of the statute "are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning." (22) In other words, competing interpretations of the statute must be reasonably supported by the statute's overall scheme, object, and the intention of Parliament in enacting it.

   The contours of ambiguity are best understood with reference to the doctrine of vagueness. Ambiguity is constitutionally permissible, but vagueness is not: a law is unconstitutionally vague "if it so lacks in precision as not to give sufficient guidance for legal debate." (23) The question in distinguishing an ambiguous law from a vague one is whether the provision can be given sensible meaning by the courts. (24) If the statute permits a "standardless sweep," allowing those officials tasked with applying it to "pursue their personal predilections," the law is impermissibly vague. (25) But as Peter Hogg points out, the Court often upholds provisions that are not constrained by meaningful standards. (26) For example, in one of the few instances a law has been found wanting under the vagueness standard, the Supreme Court held that a provision permitting judges to deny bail in "the public interest" was...