Chapter-5
Doctrine of Reading down and Reading In
In a motion brought by the Ontario Human Rights Commission (the“Commission”), with the support of the Respondent, for an Order addressing the jurisdiction of the Human Rights Tribunal of Ontario (the “Tribunal”) under the Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”) with respect to section 2(9) of the Respondent’s Operating Agreement, flowing from an earlier decision of the Court of Appeal in this matter.Specifically, the Commission had asked the Tribunal to determine that it lacks the jurisdiction to find that section 2(9) of the Operating Agreement violates the Code, prior to the commencement of the hearing on the merits, in order to save time during the hearing.
During the couse of the consideration of the motion it was observed that the doctrine of Reading down should be applied to the Code and for explaining the same the following passage of Peter Hogg was quoted. The following passage states clearly as to what is Reading down.
Requirements of Reading Down
The “reading down” doctrine requires that, whenever possible, a statute is to be interpreted as being within the power of the enacting legislative body. What this means in practice is that general language in a statute which is literally apt to extend beyond the power of the enacting Parliament or Legislature will be construed more narrowly so as to keep it within the permissible scope of power. Reading down is simply a canon of construction (or interpretation). It is only available where the language of the statute will bear the (valid) limited meaning as well as the (invalid) extended meaning; it then stipulates that the limited meaning be selected. Reading down is like severance in that both techniques mitigate the impact of judicial review, but reading down achieves its remedial purpose solely by the interpretation of the challenged statute, whereas severance involves holding part of the statute to be invalid. Reading down is sometimes said to depend upon a presumption of constitutionality: the enacting legislative body is presumed to have meant to enact provisions which do not transgress the limits of its constitutional powers; general language which appears to transgress the limits must therefore be “read down” so that it is confined within the limits[1].
There are three routes of attacking a matter that falls outside the jurisdiction of the enacting legislative body, which he summarized on p.15-25, as attacking:
“(1) the validity of the law, or (2) the applicability of the law, or (3) the operability of the law.”
When attacking the applicability of the law, Hogg described a scenario where the law was valid in most of its applications, and thus, the law remains valid in most of its applications but is interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body. This is the essence of the doctrine of reading down, offered as a practical solution to the problem of interjurisdictional immunity[2]’.However, in Narkle v Hamilton [3] ‘in that case, this court declined to read down the clear and unambiguous definition of the term 'statutory penalty' in cl 2 of Sch 1 which incorporates the definitions in the Sentencing Act 1995, s 4(1). The definition of penalty in the Interpretation Act 1984 (WA), s 5 covers all forms of punishment including a fine. It was not contended in Narkle that there was anything in the amending legislation, the Criminal Law Amendment (Simple Offences) Act 2004 (WA), that was inconsistent with a legislative intention to trigger the cl 2(5)(a) exclusion.’
[1] According to Peter Hogg, in his seminal work, Constitutional Law of Canada, Thomson-Carswell, looseleaf, at p.15-24, the doctrine of reading down is one which ought to be applied narrowly.AS quoted in at paragraph 47 and 48 Iness v. Caroline Co-operative Homes Inc., 2005 HRTO 17[Human Rights Tribunal,Ontario]
[2] Peter Hogg [Supra]
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