Charter to inform statutory interpretation only in cases of ambiguity

There is a principle of interpretation that legislation and regulation ought to be interpreted to reflect Charter values – in effect, interpretation ought to be informed by the core values of society.

The recent Nova Scotia Court of Appeal decision in O’Hara v. Nova Scotia (Education), 2008 NSCA 62 upholds the principle but notes the application is limited to situations of ambiguity. (Quaere, if legislation is clear and contrary to the Charter, should the legislation stand?). The Court holds:

[61] In the alternative, the appellants maintain that the Code of Ethics should be interpreted so as to maximize their Charter right to free speech. In other words, limiting the application of the Code to behaviour during actual Board meetings reflects this Charter value. They explain it this way in their factum:

¶ 102 There is a second aspect to the determination whether the comments made here are a breach of the Code of Ethics. The appellants argue that the particular comments here - a criticism of the Board as a rubber stamp for staff, and of individuals as racists - must in any event be protected speech. Although on their face, the comments might appear to violate the Board’s Code of Ethics, that Code must be read in a way which is consistent with Charter values and in that light the comments are protected. Because the comments are not a breach of the Code of Ethics read in that light, the basis for the removal of the Board’s authority does not exist.

[62] The problem with the appellants' submission is this. The presumption of interpreting legislation so as to protect Charter values is limited to circumstances where the subject provision (the Code of Ethics) is otherwise ambiguous. For example, Iacobucci, J., for the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, states:

¶ 28 Other principles of interpretation – such as the strict construction of penal statutes and the "Charter values" presumption - only receive application where there is ambiguity as to the meaning of a provision. ...

¶ 29 What, then, in law is an ambiguity? To answer, an ambiguity must be "real" (Marcotte, supra, at p. 115). The words of the provision must be "reasonably capable of more than one meaning" [cite omitted]. By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney Page: 27 General), [1999] 1 S.C.R. 743, at para. 14 is apposite: "It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids" (emphasis added), to which I would add, "including other principles of interpretation".

¶ 30 ... It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if "the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning" (Willis, supra, at pp. 4-5).

[63] In this case, there is nothing ambiguous about s. 1.03 of the Code which directs board members to "at all times show respect for others".