The Broad, Liberal, and Purposive Interpretation of Quasi-constitutional Legislation

• Author: John Helis
• Pages: 17-89

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 2

The Broad, Liberal, and Purposive

Interpretation of Quasi-constitutional

Legislation

e Supreme Court of Canada has developed a unique approach to the

interpretation of quasi-constitutional legislation compared to regular

statutes on the basis that “it is inappropriate to rely solely on a strictly

grammatical analysis . . . [for] the interpretation of legislation which is

constitutional or quasi-constitutional in nature.” As a result, the Court

has repeatedly stated that quasi-constitutional laws must be given a broad,

liberal, and purposive interpretation.

is chapter will explore the application of the broad, liberal, and

purposive interpretation of quasi-constitutional legislation in order to

reveal the concrete results achieved by courts and tribunals. A compre-

hensive review of this interpretive approach is necessary because it is a

dening feature of quasi-constitutionality compared to regular legis-

lation. e intention of this chapter is to display how this interpretive

approach is applied in practice and how it signicantly expands the rights

contained in quasi-constitutional legislation. Doing this requires a more

in-depth study than merely repeating the declarations by the Supreme

Court of Canada on the broad, liberal, and purposive interpretation of

quasi-constitutional legislation; it will necessarily involve considering

 Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal

(City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bois-

briand (City),  SCC  at para  [Boisbriand]. is case was cited by McLachlin

CJ in her dissent in New Brunswick (Human Rights Commission) v Potash Corporation

of Saskatchewan Inc,  SCC  at para  [Potash].

-   

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how this interpretive approach is implemented by the lower courts, tri-

bunals, boards of inquiries, and the access and privacy commissioners

that routinely administer these statutes.

is chapter begins by reviewing the process involved in the broad,

liberal, and purposive interpretation, and then proceeds to the results

achieved under four groups of quasi-constitutional statutes — namely,

human rights legislation, access-to-information acts, privacy acts, and

statutes providing language rights. It also considers how courts fur-

ther advance rights through a narrow and restrictive interpretation of

the defences, exceptions, exemptions, and other forms of limitation in

quasi-constitutional legislation.

A. THE APPLICATION OF THE BROAD, LIBERAL, AND

PURPOSIVE INTERPRETATION TO

QUASI-CONSTITUTIONAL LEGISLATION

e broad, liberal, and purposive interpretation applies to all categories

of quasi-constitutional statutes except the statutory bills of rights, which

include the Canadian Bill of Rights and the Alberta Bill of Rights. It is most

commonly used for the interpretation of human rights legislation. Chief

Justice Antonio Lamer observed in University of British Columbia v Berg

that “this Court has repeatedly stressed that a broad, liberal and purpos-

ive approach is appropriate to human rights legislation.” Justice Charron

stated for a majority Court in Canada (Information Commissioner) v Can-

ada (Minister of National Defence) that, “in order to create a meaningful

right of access to government information, it should be given a broad

and liberal interpretation.” Justice Gonthier, for a unanimous Court in

Lavigne v Canada (Oce of the Commissioner of Ocial Languages), cited

with approval a statement by Nöel J of the Federal Court that a “purpos-

ive approach to the interpretation of the Privacy Act is . . . justied by

the statute’s quasi-constitutional legislative roots,” while Nöel J further

 []  SCR  at para  [Berg]. See also Quebec (Commission des droits de la personne

et des droits de la jeunesse) v Maksteel Québec Inc,  SCC  at para ; Mélanie

Samson, “Interprétation large et libérale et interprétation contextuelle : convergence ou

divergence?” ()  Les Cahiers de droit  at para ; Ruth Sullivan, Sullivan on the

Construction of Statutes, th ed (Markham, ON: LexisNexis, ) at .

 Canada (Information Commissioner) v Canada (Minister of National Defence), 

SCC  at para  [Canada (Information Commissioner)].

 Lavigne v Canada (Oce of the Commissioner of Ocial Languages),  SCC  at

para  [Lavigne], citing Canada (Privacy Commissioner) v Canada (Labour Relations

Broad, Liberal, & Purposive Interpretation of Quasi-constitutional Legislation 19

stressed that “[i]t is well established that the provisions of the Access Act

and of the Privacy Act must be aorded a broad and purposive interpret-

ation.” It has likewise been conrmed that “[o]cial languages statutes

are quasi-constitutional and are to be given a broad purposive interpreta-

tion to achieve the goal of fostering ocial languages.”

e broad, liberal, and purposive interpretation of quasi-constitu-

tional legislation begins with a purposive analysis, which seeks to uncover

the purpose or legislative intent behind the statute and then undertake

an interpretation of its provisions that advances this overarching purpose.

A purposive analysis does not automatically lead to a broad and liberal

interpretation; however, it has been noted that “courts do often refer to

them in tandem,” which is certainly the case when it comes to inter-

preting quasi-constitutional legislation. Courts have determined that

the purpose of quasi-constitutional legislation is best advanced through a

broad and liberal interpretation of the rights that they protect, and con-

sequently also through a narrow and restrictive interpretation of exemp-

tions and defences.

1) A Purposive Analysis

A purposive analysis nds its roots in the modern principle of statutory

interpretation, which, as Professor Ruth Sullivan explains, emphasizes

Board), [] FCJ No  at para  (TD) [Canada (Privacy Commissioner)].

 Canada (Privacy Commissioner), ibid at para .

 Fédération Franco-Ténoise v Canada (Attorney General),  NWTCA  at para ,

leave to appeal to SCC refused (sub nom Northwest Territories (Attorney General) v

Fédération Franco-Ténoise), [] SCCA No . e court of appeal for the North-

west Territories relied on decisions from the Supreme Court of Canada in support of

this conclusion, including R v Beaulac, []  SCR ; Jones v Attorney General of

New Brunswick, []  SCR ; Quebec (Attorney General) v Blaikie (No ), []

 SCR ; Quebec (Attorney General) v Blaikie (No ), []  SCR ; Reference re

Manitoba Language Rights, []  SCR ; Ford v Quebec (Attorney General), [] 

SCR . See also Lalonde v Ontario (Commission de restructuration des services de santé),

[] OJ No  at para  (CA) [Lalonde]; ibodeau v Air Canada (), []

 FCR  at paras – (FC) [ibodeau]; Lavigne, above note  at para ; Canada

(Attorney General) v Viola, []  FC  at  (CA) [Viola].

 Stéphane Beaulac, Handbook on Statutory Interpretation: General Methodology, Cana-

dian Charter and International Law (Markham, ON: LexisNexis, ) at .

 Wayne A MacKay, “Evolving Fundamental Principles and Merging Public Law Silos:

e Reshaping of Canada’s Constitutional Landscape” () Supreme Court Law

Review (d)  at para .