DCC 2118 - Lesson 6 Constitutional Interpretation

Constitutional Interpretation

Definition: Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative branches of the government to determine their consistency with the Constitution. It aims to ensure proper exercise of powers, not to reargue a case.

Types of Review:

  1. Administrative Act Review: Involves actions of the executive branch, allowing individuals to challenge arbitrary or discriminatory decisions in court.

  2. Constitutional Review: Concerns laws' conformity with the constitution, allowing individuals and government officers to challenge laws.

Relevant Sections:

  • Section 52: Establishes the constitution as the supreme law.

  • Section 54: Permits individuals to challenge laws inconsistent with the constitution.

Decision Makers Subject to Review: Any decision maker whose authority is derived from law is subject to review, including administrative bodies and government decision-makers responsible for legal rights.

Time Limit for Application: Applications for review must generally be brought within 30 days of the decision, as per Section 5 of the Judicial Review.

Sources of Constitutional Interpretation

Constitutional Interpretation: Understanding the strategies to resolve disputes about the meaning or application of the constitution, given its vague expressions and clauses.

Possible Sources:

  1. Text of the Constitution: Literal words and provisions.

  2. Original History: Social and historical context during adoption.

  3. Governmental Structure: Recognized by the constitution.

  4. Ongoing Historical Interpretation: Evolving understanding.

The Approaches

  1. Purposive Approach: A method used by courts to interpret the constitution based on the law's intention, considering the overall objectives of the charter.

    1. Purposive Analysis of the Character of Rights:

      1. Rights are given a broad and generous interpretation to protect and guarantee the rights in the charter while limiting inconsistent government activities.

  2. Contextual Approach: Involves situating charter questions within the social, political, and legal context, considering the time of drafting, author's intentions, and societal needs.

    1. Useful for a misunderstanding or conflict in the text

  3. Textual Approach: Focuses on the plain and simple meaning of the text and actual word, considering the usual and natural interpretation of terms.

  4. External Aids to Charter Interpretation: Informed by external sources such as international law, treaties, Canadian sources (Bill of Rights, Quebec Charter), text from other democratic countries, American Constitution (used cautiously), United Nations, and relevant jurisprudence.

  5. Living Tree Doctrine (Interpretive provisions): Allows the constitution to change over time while maintaining its purpose, balancing predictability and flexibility. Recognized in cases like the Same-Sex Marriage case.

    1. The doctrine of the tree is a balance of two contradicting goals

      1. Predicable: the constitution must consist of a set of predictable and consistent rules so that everyone including all governments must under how they are to be governed

      2. Flexibility: able to accommodate the reality of changing modern life.

        1. If not, it will create conflict in society as frozen constitutions hurt life (gay rights)

  6. External and Internal Aids to Charter Interpretation:

    1. external aids: International Law, Treaties, and international legislating documents

    2. Internal aids:

      1. Canadian Sources: such as the Canadian Bill of Rights, Quebec Charter of Human Rights and Freedoms, section 15 of the Charter, and the Canadian Human Rights Act

      2. Text from Other Democratic Countries: Jurisprudence and legal principles from other democratic countries, such as European countries and Australia, may be considered as external aids.

      3. American Constitution and Authorities: While used with care, the American Constitution and authorities may provide insights, considering the differences between Canada and the United States.


Role of Charter Values in Statutory Interpretation:

  • Determining Consistency with the Charter: When interpreting statutory provisions, the court considers whether they are consistent with Charter values.

  • Addressing Ambiguity: Charter values come into play when statutory provisions are ambiguous. The person challenging the law needs to show how they suffered and demonstrate unconstitutionality.

  • Precedent Decisions: Courts consider precedent decisions and develop common rules in light of Charter values.

  • Consistency with the Charter: Courts must ensure that any decision to apply an act or law is consistent with the Charter.

Hierarchy of Rights Within the Charter:

  • Answer: No Hierarchy: There is no hierarchy of rights within the Charter. An approach that places some rights over others must be avoided both in interpreting the Charter and developing common law.

  • No Invalidation of Other Provisions: One part of the Charter cannot be used to invalidate other provisions of the Constitution, and vice versa. The Charter was not intended to be used to invalidate other provisions of the Constitution.


Conclusion

Understanding constitutional interpretation involves considering various methods, sources, and external aids to ensure a dynamic yet consistent application of the constitution over time.