Constitutional Inconsistency in Legislation – Interpretation, Remedies and the Ambiguous Role of Ambiguity

Abstract

The Supreme Court of Canada has recognized and repeatedly affirmed a rule of legislative interpretation that limits the consideration of the Canadian Charter of Rights and Freedoms and other constitutional norms. The rule requires that before a court interpreting legislation can consider them, it must consider other contextual features and conclude that they do not resolve an ambiguity in the legislation. It thus privileges other contextual features of legislation and creates a secondary role for the Charter and constitutional norms that cannot come into play without ambiguity. However, the concept of ambiguity is itself ambiguous and this rule is at odds with the fundamental principle of constitutional supremacy. It also conflicts with a recent development in administrative law recognizing that administrative tribunals exercising discretionary powers involving the interpretation of legislation are entitled to consider the Charter and other constitutional norms without a finding of ambiguity. This article exposes these problems and 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.

Keywords: statutory interpretation, constitutional norms, Canadian Charter of Rights and Freedoms, judicial review of discretionary powers, Charter values, ambiguity