Law society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 SCR 357
The Law Society of Upper Canada Appellant;
and
Joel Skapinker Respondent;
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General for Saskatchewan, the Attorney General of Quebec, Federation of Law Societies of Canada‑‑Fédération des Barreaux du Canada, John Calvin Richardson Interveners.
1984: February 23 and 24; 1984: May 3.
Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Lamer and Wilson JJ.
on appeal from the court of appeal for ontario
Constitutional law‑‑Charter of Rights‑‑Mobility rights as related to work‑‑Membership in Ontario bar restricted to Canadian citizens or other British subjects‑‑Whether or not s. 6(2)(b) of Charter created right to work unrelated to interprovincial mobility rights‑‑Whether or not requirement contravened Charter and hence of no force or effect‑‑Canadian Charter of Rights and Freedoms, ss. 1, 6(2)(a),(b), (3)‑‑Law Society Act, R.S.O. 1980, c. 233, s. 28(c).
Constitutional law‑‑Interpretation‑‑ Cross‑headings‑‑Role and importance to be accorded cross‑headings in interpreting subsequent sections.
These proceedings were commenced by respondent who, for all practical purposes, was replaced by the intervener Richardson.
Respondent, a South African citizen resident in Canada, met all requirements for membership in the Ontario bar except the citizenship requirements imposed by s. 28(c) of the Law Society Act. Respondent sought an application, by originating notice of motion, for a declaration that s. 28(c) was inoperative and of no force to the extent that it discriminated between Canadian citizens and permanent residents of Canada and, in particular, was inconsistent with s. 6(2)(b) of the Canadian Charter of Rights and Freedoms. The judge of first instance found s. 28(c) to be of general application and not inconsistent with s. 6(2)(b) of the Charter. This appeal is from the Court of Appeal's judgment reversing that decision.
Held: The appeal should be allowed.
Section 6(2)(b) of the Charter does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and para. (b)) both relate to movement into another province, either to take up residence, or to work without establishing residence. Paragraph (b) does not avail a permanent resident of an independent constitutional right to work as a lawyer in the province of residence so as to override the provincial legislation through s. 52 of the Constitutional Act, 1982.
The Canadian Charter of Rights and Freedoms is not a statute or even a statute of the extraordinary nature of the Canadian Bill of Rights, but rather a part of the Constitution. Neither the federal nor provincial Interpretation Acts have any application to the Charter.
Cross‑headings were deliberately and systematically included in and are an integral part of the Charter. Where a section introduced by such a heading is clear and unambiguous, the heading will not operate to change that meaning. Here, however, s. 6(2)(a) and (b) are capable of three interpretations and an attempt should be made to reconcile the heading and section. The Courts, in considering the role of statutory cross‑headings, have not produced clear guidelines for their use in interpreting a statute. The influence of the heading, used as an aid to statutory interpretation, will depend on many factors: the degree of difficulty because of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship of the terminology employed in the heading to the substance of the headlined provision.
Attorney‑General of Canada v. Jackson, 1946 29 (SCC), [1946] S.C.R. 489; Director of Public Prosecutions v. Schildkamp, [1971] A.C. 1; Brotherhood of Railroad Trainmen v. Baltimore & O. R. Co., 67 S.Ct. 1387 (1947), considered; Edwards v. Attorney‑General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124; British Coal Corporation v. The King, 1935 308 (UK JCPC), [1935] A.C. 500; Curr v. The Queen, 1972 15 (SCC), [1972] S.C.R. 889; Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); M`Culloch v. State of Maryland, 17 U.S. (4 Wheaton's) 316 (1819); Brodie v. The Queen, 1962 80 (SCC), [1962] S.C.R. 681; Johnson v. The Queen, 1973 198 (SCC), [1975] 2 S.C.R. 160; Connell v. Minister of National Revenue, 1946 614 (CA EXC), [1946] Ex.C.R. 562; Eastern Counties Railway v. Marriage (1860), 9 H.L.Cas. 31; Lloyds Bank Ltd. v. Secretary of State for Employment, [1979] 2 All E.R. 573; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec, 1982 2870 (QC CS), [1982] C.S. 1147, 142 D.L.R. (3d) 512; Re: Authority of Parliament in Relation to the Upper House, 1979 169 (SCC), [1980] 1 S.C.R. 54; Re: Anti‑Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373; Re Residential Tenacies Act, 1979, 1981 24 (SCC), [1981] 1 S.C.R. 714, referred to.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 1983 63 (ON CA), 40 O.R. (2d) 481, allowing an appeal from a judgment of Carruthers J. dismissing an application, made by originating notice of motion, for a declaration that the Law Society Act, R.S.O. 1980, c. 233, s. 28(c), was inconsistent with the Canadian Charter of Rights and Freedoms, and therefore of no force or effect. Appeal allowed.
Brendan O'Brien, Q.C., for the appellant.
Brian Morgan, for the respondent.
John H. Sims, for the intervener the Attorney General of Canada.
Lorraine E. Weinrib and M. D. Lepofsky, for the intervener the Attorney General for Ontario.
James C. MacPherson, for the intervener the Attorney General for Saskatchewan.
Réal Forest and Jean‑K. Samson, for the intervener the Attorney General of Quebec.
P. B. C. Pepper, Q.C., and P. D. McCutcheon, for the intervener the Federation of Law Societies of Canada‑‑Fédération des Barreaux du Canada.
Shayna Kravetz, for the intervener John Calvin Richardson.
The judgment of the Court was delivered by
Introduction and Background
Estey J.‑‑By s. 28(c) of the Law Society Act, R.S.O. 1980, c. 233, the legislature of Ontario required all members of the bar of the province to be Canadian citizens. At the outset, let it be emphasized in the clearest possible language that the issue before this Court in this appeal is not whether it is or is not in the interest of this community to require Canadian citizenship as a precondition to membership in the bar. Rather, the only issue is whether s. 28(c) of the Law Society Act, supra, is inconsistent with s. 6(2)(b) of the Canadian Charter of Rights and Freedoms.
The intervener Richardson is an American citizen and a member of the bar of the State of Massachusetts. As we shall see, these proceedings were commenced by the respondent, Skapinker, who later was, for all practical purposes, replaced (when he became a member of the Law Society) by Richardson who was labelled an intervener when he joined the proceedings. Richardson, by the time the appeal came on for hearing in this Court, was the only person who actually had the status of a respondent in the Law Society appeal. In these reasons, it is convenient simply to identify him as Richardson. He is also a permanent resident of Canada, received his LL.B. from Queen's University, Kingston, Ontario in 1980, articled in a law firm in the province for the year ending June 1981 and has now successfully completed the Bar Admission Course of the Law Society of Upper Canada. He has candidly expressed his intention not to become a citizen of Canada. As a result, the appellant has advised Richardson that he will not be accepted as a member of the Law Society. The respondent Skapinker was in the same position but became a Canadian citizen in the course of these proceedings and has been admitted to the bar of Ontario. By order of the High Court of Ontario made April 13, 1983, the respondent Skapinker was given leave to withdraw from these proceedings, but did not do so. Although his application has become moot, he appeared by counsel in this Court, without any objection from the other parties, on the hearing of the appeal. In the meantime, John Calvin Richardson was added as an intervener by order of the Ontario courts, and the case has proceeded as though Richardson were the initiating party to these proceedings. All this is noted at the outset as a warning to those who may seek to emulate this course in like applications in the future. The current practice of this Court is to require any person seeking to participate in an appeal here either to continue as a party with full status as such, or to be brought in as an intervener by order of this Court (references and status of the provinces therein and cases raising constitutional issues being dealt with separately in the Court rules). Because this appeal raised important and novel issues under the Charter of Rights the matter was permitted to proceed as presently constituted.
The originating notice of motion initiating this matter sought a declaration that s. 28(c) of the Law Society Act, supra, is "inoperative and of no force and effect to the extent that it discriminates between Canadian citizens and Permanent Residents of Canada and, in particular, because this is inconsistent with s. 6(2)(b) of The Constitution Act, 1982 [sic]". The judge of first instance, The Honourable Mr. Justice Carruthers, dismissed the application, finding that s. 28(c) of the Law Society Act, supra, was not inconsistent with the Charter of Rights, s. 6(2)(b), and therefore was not rendered inoperative by s. 52(1) of the Constitution Act, 1982. In particular, His Lordship concluded that whatever rights the respondent may have by reason of s. 6(2)(b) of the Charter, the Law Society Act, including s. 28(c), is a law of "general application" within the meaning of s. 6(3) of the Charter, and thus applies to the respondent. It was therefore unnecessary to construe the meaning and application of s. 6(2)(a) and (b) as these rights, whatever they may be, are "subject to" subs. (3). Likewise, the judge of first instance found it unnecessary to consider the application of s. 1 of the Charter which makes the guarantee of rights and freedoms "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The reasons of Carruthers J. are now reported at (1982), 1982 1847 (ON SC), 38 O.R. (2d) 116.
In the Court of Appeal [reported at (1983), 1983 63 (ON CA), 40 O.R. (2d) 481], the majority, speaking through Grange J.A. (Weatherston J.A. concurring), reversed the decision below and declared (Arnup J.A. dissenting) that "s. 28(c) of the Law Society Act insofar as it excludes from its benefits persons having the status of permanent residents of Canada is inoperative by reason of s. 6(2)(b) of the Canadian Charter of Rights and Freedoms". The reference to "permanent residents" is to persons holding that status under the Immigration Act, 1976 of Canada, 1976‑77 (Can.), c. 52, s. 2. The majority dealt first with the effect of s. 6(2)(b) of the Charter and found "little difficulty in interpreting it" as granting to all persons with the status of permanent resident "the right to pursue the gaining of a livelihood in any province". Section 28(c), to the extent that it bars the respondent from practising law in Ontario, is inconsistent with that provision, and by s. 52 of the Charter is to that extent of no force and effect. In reaching this result, the majority rejected the view that s. 6 creates, as its heading announces, "mobility rights". In effect, the recurring expression "in any province" is ignored by the majority so that only s. 6(2)(a) would require movement by an individual seeking to invoke s. 6(2) of the Charter. Thus, in the view of the majority, s. 6(2) creates two separate rights, and the respondent qualifies as a permanent resident for the second right. Grange J.A. went on to find that s. 6(3)(a) was of no assistance to the appellant. In his opinion, the Law Society Act was not a "law of general application"; it did not affect the public generally since only Canadian citizens and British subjects are accorded the right to membership in the bar, whereas permanent residents and other aliens are excluded. In this conclusion, the majority differed from Carruthers J. The majority went on to find that s. 1 did not reinstate s. 28(c) because the Court did not see any reason for the recommendation by a provincial agency for the continuation of the citizenship requirement in s. 28(c) and for which view support was found in a United States Supreme Court decision (the Chief Justice and one other judge dissenting), the Solicitors Act 1974 adopted by the United Kingdom in 1974 (after the United Kingdom had joined the European Economic Community), and a pre‑Charter decision of a single judge in the province of Alberta.
Arnup J.A., in dissent, found that s. 6(2)(b) is not a "right to work" clause. The permanent resident, having been granted by the Immigration Act, supra, s. 2(1) and Immigration Regulations, 1978, SOR/78‑172, s. 18(1) as amended, the right to work anywhere in Canada, cannot be denied that right by reason of any previous residency elsewhere in Canada; and this is so by reason of para. (b) which protects citizens and permanent residents from "provincial barriers [being] thrown up against one who wants to work". In any case, Arnup J.A. concludes that the Law Society Act is "a law of general application" within the meaning of s. 3(a), and because subs. (2) is subordinated to subs. (3), the provincial enactment remains in full force and effect. Arnup J.A. did not find it necessary to consider the issue of s. 1 of the Charter but did "express the view" that, in the material on the record, s. 28(c) had not been "demonstrably justified" as a "reasonable limit" on the Charter right, if one is given by s. 6(2)(b).
On the view I take of para. (b) of s. 6(2) of the Canadian Charter of Rights and Freedoms, it is unnecessary to proceed to the effect of subs. (3) of s. 6, or to the question of the availability of s. 1 of the Charter to the appellant, on the record in this appeal.
The respondent submits that paras. (a) and (b) are two separate rights and that the heading "Mobility Rights" does not dictate a narrow interpretation of the para. (b) right. The appellant and all interveners, including the Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for Saskatchewan and the Federation of Law Societies of Canada, take the position that para. (b) is not simply a "right to work" clause but is predicated on a mobility element. Within the group espousing this view, there are some differences as to the meaning properly to be attributed to para. (b).
After leave was granted for appeal to this Court, the Chief Justice framed the following constitutional question:
Is Section 28(c) of The Law Society Act, R.S.O. 1980, Chapter 233, insofar as it excludes from its benefit persons having the status of permanent residents of Canada, inoperative and of no force and effect by reason of Section 6 of The Constitution Act 1982?
canadian charter of rights and freedoms
Mobility Rights
- (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicity provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
The Law Society Act, R.S.O. 1980, c. 233, s. 28:
- ...
(c) the persons, being Canadian citizens or other British subjects,
(i) who are members on the 31st day of December, 1980, or
(ii) who after that day successfully complete the Bar Admission Course and are called to the bar and admitted and enrolled as solicitors, or
(iii) who after that day transfer from a jurisdiction outside Ontario and are called to the bar and admitted and enrolled as solicitors,
are members and entitled to practise law in Ontario as barristers and solicitors;
Constitutional Interpretation and the Nature of the Charter
We are here engaged in a new task, the interpretation and application of the Canadian Charter of Rights and Freedoms as adopted first as an appendage to the Resolution of Parliament on December 8, 1981 and then as an appendix to the Canada Act 1982, 1982 (U.K.), c. 11. This is not a statute or even a statute of the extraordinary nature of the Canadian Bill of Rights, R.S.C. 1970, Appendix III. It is a part of the constitution of a nation adopted by constitutional process which, in the case of Canada in 1982, took the form of a statute of the Parliament of the United Kingdom. The adoptive mechanisms may vary from nation to nation. They lose their relevancy or shrink to mere historical curiosity value on the ultimate adoption of the instrument as the Constitution. The British North America Act of 1867 was such a law, albeit but a statute of the Parliament of the United Kingdom and albeit incomplete in the absence of an intra‑national amending mechanism. In the interpretation and application of this document the Judicial Committee of the Privy Council of the United Kingdom, which until 1949 was the highest level of the judicial branch engaged in resolving constitutional issues, said: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits": Edwards v. Attorney‑General for Canada, 1929 438 (UK JCPC), [1930] A.C. 124, per Lord Sankey at p. 136, who reiterated this judicial attitude towards a "constituent or organic statute such as the [B.N.A.] Act" in British Coal Corporation v. The King, 1935 308 (UK JCPC), [1935] A.C. 500, at p. 518. This Court recognized the distinction between simple "statutory interpretation" and "a constitutional role" when the Court was called upon to determine the effect of the Canadian Bill of Rights: Curr v. The Queen, 1972 15 (SCC), [1972] S.C.R. 889, at p. 899, per Laskin J. as he then was. The Canadian Bill of Rights is, of course, in form, the same as any other statute of Parliament. It was designed and adopted to perform a more fundamental role than ordinary statutes in this country. It is, however, not a part of the Constitution of the country. It stands, perhaps, somewhere between a statute and a constitutional instrument. Nevertheless, it attracted the principles of interpretation developed by the courts in the constitutional process of interpreting and applying the Constitution itself.
There are some simple but important considerations which guide a Court in construing the Charter, and which are more sharply focussed and discernible than in the case of the federal Bill of Rights. The Charter comes from neither level of the legislative branches of government but from the Constitution itself. It is part of the fabric of Canadian law. Indeed, it "is the supreme law of Canada": Constitution Act, 1982, s. 52. It cannot be readily amended. The fine and constant adjustment process of these constitutional provisions is left by a tradition of necessity to the judicial branch. Flexibility must be balanced with certainty. The future must, to the extent foreseeably possible, be accommodated in the present. The Charter is designed and adopted to guide and serve the Canadian community for a long time. Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves. All this has long been with us in the process of developing the institutions of government under the B.N.A. Act, 1867 (now the Constitution Act, 1867). With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.
The courts in the United States have had almost two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts. When the United States Supreme Court was first concerned with the supervision of constitutional development through the application of the recently adopted Constitution of the United States, the Supreme Court of the United States speaking through Chief Justice Marshall stated:
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. [Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at p. 175.]
There followed a lengthy discussion not dissimilar to that engaged in by the Privy Council and by this Court in considering the allocation of powers and institutional provisions in the Constitution as it existed, at least to 1981. As to the nature of a written constitution in relation to the component governments, the Chief Justice continued at pp. 176‑77:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
The Court then turned, at p. 177, to the role of the court:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
- The Court having staked out its constitutional ground then moved on in M`Culloch v. State of Maryland, 17 U.S. (4 Wheaton's) 316 (1819), to consider the techniques of interpretation to be applied in construing a constitution. Again speaking through Chief Justice Marshall at p. 407:
A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. ... In considering this question, then, we must never forget, that it is a constitution we are expounding.
In recognizing that both legislative and judicial power under the Constitution is limited, the Chief Justice observed, at p. 421, that the Court must allow the legislative branch to exercise that discretion authorized by the Constitution which will:
...enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
The Meaning of Section 6(2)
I come back to the key issue in this appeal, the meaning of para. (b) in s. 6(2) of the Charter. There are at least three arguably applicable readings of subs. (2) of s. 6 of the Canadian Charter of Rights and Freedoms as adopted in the Constitution Act, 1982, and as now incorporated in the Constitution Acts, 1867 to 1982.
The conjunction "and" appearing between paras. (a) and (b) in the English version (absent in the French version), and the heading "Mobility Rights" over the whole of s. 6, enables one to read the subsection with the word "then" understood to follow the conjuction "and" so that (a) and (b) would read as follows:
Every citizen ...and ... permanent resident has the right
(a) to move and take up residence in any province; and [then]
(b) to pursue the gaining of a livelihood in any province.
A disjunctive reading may be given to subs. (2) by deleting the conjunction "and" between (a) and (b) and by assigning no interpretative value to the heading "Mobility Rights"; and further by taking into account the presence of subs. (4) which may indicate that "mobility" is not a necessary element in each segment of s. 6. Such an approach may be said to lead to a recognition of two unrelated "free standing" rights in paras. (a) and (b), the first being a right to move and to reside in any province; the second being the right of a permanent resident to work in any province unrestricted by any law of that province which, in effect, is directed to restricting the right of the permanent resident to do so.
The third approach to the reading of para. 2(b) is to separate the two paras. (a) and (b) as though the conjunction "and" were absent, but to read (b) as requiring a mobility aspect. Paragraph (b) would then assure to the permanent resident the right to work "in any province" whether or not he has exercised the right under (a) to move to and to take up residence "in any province". It may be said that such a reading separates but does not divorce the two clauses one from the other or from the balance of the section. This is the view advanced by Mr. MacPherson on behalf of the Attorney General for Saskatchewan. The clause would cover the additional circumstances of transborder commuting to perform work in the province adjoining the province of residence whether or not the permanent resident has previously or subsequently moved to the second province for the purpose of undertaking or continuing to undertake the work in question.
The Role of Headings in Interpretation
A great deal of argument was devoted to the use of headings as an aid to interpretation of substantive sections of the Charter. Like many provisions in Part I of the Constitution Act, 1982, s. 6 is preceded by a heading "Mobility Rights". Twelve such headings in fact appear in Part I which itself is headed "Canadian Charter of Rights and Freedoms". Apart from headings or titles to the Part itself, the other six parts of the Constitution have no headings of the character found in Part I, except Part VI which introduces an amendment to the Constitution Act, 1867, but which has no headings comparable to those found in Part I. These headings in Part I appear to be integral to the Charter provisions and hence of more significance than the marginal notes and chapter headings sometimes appearing in the statutes. Occasionally the headings appearing in Part I relate to a single section, as is the case in s. 6. Sometimes the headings are much less confined both by reason of the words employed in the heading itself and because several sections appear under the heading. Such is the case with the heading "Legal Rights" which is followed by eight sections. The heading is by itself general rather than specific. Neither the federal nor provincial Interpretation Acts have any application to the Charter. The provincial Act (R.S.O. 1980, c. 219, s. 9) declares that headings form no part of a statute but are included for convenience only. The federal Act makes no reference to headings but only to marginal notes, which are said to be inserted for convenience only, and to preambles, which are "intended to assist in explaining its purport and object" (R.S.C. 1970, c. I‑23, ss. 12 and 13). It is interesting to note that the federal Interpretation Act itself contains headings for individual and groups of sections.
The courts have considered the role of statutory headlines but without producing anything like a clear guideline for their use in the interpretation of statutes. This Court in Attorney‑General of Canada v. Jackson, 1946 29 (SCC), [1946] S.C.R. 489, was required to construe a section of the statute which was found in a group of sections under a heading. Kellock J., concurring with the majority in the result but speaking only for himself, said at pp. 495‑96, with reference to statute headings:
Where the language of a section is ambiguous, the title and the headings of the statute in which it is found may be resorted to to restrain or extend its meaning as best suits the intention of the statute, but neither the title nor the headings may be used to control the meaning of enacting words in themselves clear and unambiguous: The "Cairnbahn", [1914] P. 25, at 30 and 38; Fletcher v. Birkenhead Corporation, [1907] 1 K.B. 205, at 214 and 218.
Rand J., for himself and three other members of the Court, disregarded the presence of the heading in the Exchequer Court Act, R.S.C. 1927, c. 34, as amended by 1943‑44 (Can.), c. 25. The provision in question was introduced by an amending statute in which no such heading appeared, the heading having been inserted at the time of the enactment of the statute in the first instance. The trial court had proceeded on the basis that the group of sections which included the critical section was governed by the heading. Mr. Justice Rand stated at p. 491:
As to the second, it may be remarked that the amendment is embodied in an Act which contains nothing to indicate inclusion within the fasciculus mentioned; one could just as easily place it under the heading which immediately precedes s. 51 of the Exchequer Court Act, "Effect of payment on judgment". Its matter is foreign to rules for computing damages and its terms and purposes are clear. It might have been enacted as a separate statute and in that case it could hardly be contended that its wide provision did not apply to such a proceeding as the present: and I see no difference in the form which has been given to it.
In Construction of Statutes (2nd ed.), E.A. Driedger, Q.C., the learned author, at p. 141, makes reference to the Jackson case, supra, as one where the Court "refused to limit the scope or ambit of a section merely because it was included in a group of sections under a heading". The Jackson case, in my view, is authority for nothing more than the proposition that, where the measure in question was not enacted subject to a heading, and is simply inserted in a statute under a pre‑existing heading, it should not necessarily be construed with reference to that heading.
There are other instances in this Court where references to headings and statutes are made, but no conclusion was drawn in any of these authorities as to the principle of construction applicable to statutory headings. See: Brodie v. The Queen, 1962 80 (SCC), [1962] S.C.R. 681, per Fauteux J., as he then was, at p. 693, and Ritchie J. at p. 708; and Johnson v. The Queen, 1973 198 (SCC), [1975] 2 S.C.R. 160, per Ritchie J. at p. 172 and Spence J. at pp. 180‑81. The President of the Exchequer Court, Thorson P., in Connell v. Minister of National Revenue, 1946 614 (CA EXC), [1946] Ex.C.R. 562, at pp. 565‑66, reached the same conclusion as Kellock J. in Jackson, supra, namely that, before resort may be had to a heading in a statute, there must be found to exist some ambiguity in the section purported to be governed by the heading.
The courts of the United Kingdom have produced little more than the Canadian courts by way of a canon of construction applicable to statute headings. In Eastern Counties Railway v. Marriage (1860), 9 H.L.Cas. 31, at p. 41, Channell B. stated:
These various headings are not to be treated as if they were marginal notes, or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself. They may be read, I think, not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to, to explain its enactments, but as affording, as it appears to me, a better key to the constructions of the sections which follow than might be afforded by a mere preamble.
The Court of Appeal below refers to Director of Public Prosecutions v. Schildkamp, [1971] A.C. 1, where one member of the Court, Lord Upjohn, in deciding that the use to be made of such headings must depend upon the circumstances of each case, stated at p. 28:
In my opinion, it is wrong to confine their role to the resolution of ambiguities in the body of the statute.
When the court construing the statute is reading it through to understand it, it must read the cross‑headings as well as the body of the statute and that will always be a useful pointer as to the intention of Parliament in enacting the immediately following sections. Whether the cross‑heading is no more than a pointer or label or is helpful in assisting to construe, or even in some cases to control, the meaning or ambit of those sections must necessarily depend on the circumstances of each case, and I do not think it is possible to lay down any rules.
His Lordship concluded that: "Reference to the cross‑headings resolves that doubt at once". Later in his reasons, His Lordship equates a heading in some respects to a punctuation mark. Lord Reid, on the other hand, observes at p. 10 that:
Taking a strict view, one can say that these [cross‑headings] should be disregarded because they are not the product of anything done in Parliament.
His Lordship points out that headings are never amended and, indeed, are altered by officials of Parliament in conjunction with the statutory draftsman. However, he concludes at p. 10:
So, if the authorities are equivocal and one is free to deal with the whole matter, I would not object to taking all these matters into account, provided that we realise that they cannot have equal weight with the words of the Act. Punctuation can be of some assistance in construction. A cross‑heading ought to indicate the scope of the sections which follow it but there is always a possibility that the scope of one of these sections may have been widened by amendment.
Lord Hodson observed, at p. 12:
The construction of the relevant section ought not to be governed ultimately by considerations of cross‑headings, even though some attention may be paid to them.
He then continued, at pp. 12‑13:
I have not entered more fully into the subject of cross‑headings upon which various and conflicting opinions have been expressed from time to time since the question does not arise for consideration on this appeal. I am impressed by the consideration that they are not part of the enacted words in a piece of legislation but are added by the officers of the House of Parliament before they reach the form embodied in the King's Printer's copy. I would not, therefore, give them a controlling effect.
Lord Guest, on the other hand, disregarded the whole issue of cross‑headings because the statute on its original enactment contained no cross‑headings, and the case before the Court fell to be decided upon the law as it stood then and not under the statute which included the cross‑headings. Viscount Dilhorne concluded at p. 20 that, while one is entitled to look at cross‑headings:
... the weight to be attached to them is, in my opinion, very slight and less than that which should be given to a preamble.
They are not meant to control the operation of the enacting words and it would be wrong to permit them to do so.
Schildkamp, supra, was reviewed by Talbot J. in Lloyds Bank Ltd. v. Secretary of State for Employment, [1979] 2 All E.R. 573, wherein he concluded at p. 577:
It would seem therefore that it is permissible to look at the cross‑heading and to take it into account in considering the words of the enactment that it governs, although care must be taken not to attach more weight to it than to the words of the section, and it should not be a controlling factor in the construction of the section.
The Court in Schildkamp, supra, was clearly influenced by the fact that in the Parliament of the United Kingdom headings are added, in the same way as marginal notes, by the staff of Parliament, presumably including draftsmen and printers, and are not the subject of debate in the Houses of Parliament. Consequently, headings are not necessarily before members of Parliament when approval of the bill is given. We have no such problem here. At the time of the resolution adopted by the Canadian Parliament, and again when the Act was enacted in the United Kingdom Parliament, the Charter of Rights included the heading "Mobility Rights" over s. 6.
The United States Supreme Court considered the relevance of headings in the construction of a statute in Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 67 S.Ct. 1387 (1947). In that case, the statute in question included a heading which indicated a rather limited procedural application for the provision before the Court. As in the case of Jackson, supra, however, a crucial subsection was added to the statute sometime after the statute was adopted with the heading in question already in it. At the time of the initial adoption, the section had only five subparagraphs. In its condition before the Court in the Brotherhood case, there were twelve subparagraphs, and the critical one, number 11, bore no relationship to the initial five. The former referred to procedure before the Interstate Commerce Commission, and the latter contemplated proceedings at large. Furthermore, the Committee of Congress, in processing the bill, recognized that certain of the additional provisions of the section dealt with "something more than might be indicated by the [original] heading". The Court disregarded the heading in interpreting the section and subsection in question. Murphy J., writing the opinion for the Court, stated at p. 1392:
Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; ... Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.
The author Driedger, in his text, supra, concludes at p. 138:
Headings, like marginal notes, are also included in the body of a statute but are not a grammatical part of the enacted words. However, they have a higher status than marginal notes.
The author goes on to conclude, at p. 147:
If, however, the object of the statute cannot be clearly deduced from its terms, then this "minor evidence" becomes more important and may provide sufficient evidence to tip the balance. It is submitted here that it is not correct to say that non‑literary context may be considered only if there is doubt about the meaning of words; it is more realistic to say that if the enacting words do not clearly show the object of the statute, then it is permissible to look at the non‑literary context in order to find the object.
The question of the role of the heading in the interpretation of statutes appears to be open. The same must, of course, be true where the Court is engaged in the analysis of a constitutional provision. Here we have a charter of individual rights incorporated in the broader expanse of the Constitution. The Charter, from its first introduction into the constitutional process, included many headings including the heading now in question. "Mobility Rights" precedes but a single section with only four subparagraphs. It is quite unlike the section under consideration by the United States Court in Brotherhood, supra. It may have been intended by the various adopting authorities that such a document would be required to be read and interpreted by the populace generally, and not just by those engaged in the law. It may be that headings were adapted to make for easy reference to a very important document consisting of thirty‑four separate provisions, most of which are of independent significance. It can be safely concluded that the Charter of Rights will be read by more members of the Canadian community than any other part of the Constitution Acts, 1867 to 1982. It is clear that these headings were systematically and deliberately included as an integral part of the Charter for whatever purpose. At the very minimum, the Court must take them into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter. The extent of the influence of a heading in this process will depend upon many factors including (but the list is not intended to be all‑embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship of the terminology employed in the heading to the substance of the headlined provision. Heterogeneous rights will be less likely shepherded by a heading than a homogeneous group of rights.
At a minimum the heading must be examined and some attempt made to discern the intent of the makers of the document from the language of the heading. It is at best one step in the constitutional interpretation process. It is difficult to foresee a situation where the heading will be of controlling importance. It is, on the other hand, almost as difficult to contemplate a situation where the heading could be cursorily rejected although, in some situations, such as in the case of "Legal Rights" which in the Charter is at the head of eight disparate sections, the heading will likely be seen as being only an announcement of the obvious.
Analysis of Section 6(2)
For the purpose of examining the meaning of the two paragraphs of s. 6(2), I conclude that an attempt must be made to bring about a reconciliation of the heading with the section introduced by it. If, however, it becomes apparent that the section when read as a whole is clear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning. Even in that midway position, a court should not, by the adoption of a technical rule of construction, shut itself off from whatever small assistance might be gathered from an examination of the heading as part of the entire constitutional document. This general approach I take to be consonant with the thinking expressed in the Canadian, British and United States authorities and texts discussed above.
I return, therefore, to the words of the section itself. "Mobility Rights" has a common meaning until one attempts to seek its outer limits. In a constitutional document relating to personal rights and freedoms, the expression "Mobility Rights" must mean rights of the person to move about, within and outside the national boundaries. Subsection (1), for example, refers to a citizen's right to leave and return to Canada. Subsection 3(a) makes reference to the exclusion of provincial laws which discriminate between persons on the basis of past or present provincial residence; and para. (b) of subs. (3) permits the application of provincial laws which impose reasonable residency qualifications for the receipt of social services. Subsection (4) either relates to mobility of people within the country or it simply clarifies subs. (3) which does relate to mobility and subs. (2) whose relationship to mobility we must determine. Thus subs. (4) is neutral as regards the clarification of subs. (2) by reason of the presence of the heading "Mobility Rights".
I return to subs. (2) itself. Paragraph (a) is pure mobility. It speaks of moving to any province and of residing in any province. If (b) is caught up with (a), it is likewise a mobility provision. If it is separate when properly construed, then it may, as the respondent urges, be a "right to work" clause without reference to movement as a prerequisite or otherwise. The presence of the conjunction "and" in the English version is not sufficient, in my view, to link (a) to (b) so as to create a single right. Conversely, the absence of the conjunctive link in the French language version is not sufficient to separate the two clauses completely. In the first alternative interpretation, supra, if only one right is created by subs. (2), then a division into paras. (a) and (b) is superfluous. Moreover, this suggested interpretation of s. 6(2) is inconsistent with s. 6(3) which subjects the "rights specified in subsection (2)" to certain limitations. (Emphasis added.)
In the second alternative meaning, supra, the complete isolation of the two paras. (a) and (b), which is necessary to create a free standing "right to work" provision out of para. (b), fails to account for the presence of the phrase "in any province" in para. (b). That clause, subject to one further consideration, would announce such a right if these words were omitted. Such a reading out of the phrase "in any province" from para. (b) creates a result verging on the absurd. Paragraph (b) would, alone amongst its neighbours, be out of context under the heading "Mobility Rights". While that heading is not of controlling interest and importance, it nonetheless must have a taint of relevancy. Perhaps its relevance is limited to the elimination of a meaning which, in a range of two possible interpretations, is out of sympathy with the clear meaning of the heading itself. In the interpretative result urged by the respondent, para. (b) would be a provision of singular impact and one most unlikely to be inserted as a subparagraph to a provision dealing with the movement of people. Furthermore, it would simply proclaim the historic and the obvious in the case of a Canadian citizen, and would result in the constitutional freezing of the classification of "permanent resident" which was only recently introduced into the federal immigration statute. If para. (b) were reduced by the deletion of the phrase "in any province", then the citizen or permanent resident would not have a clear and unambiguous right to commute across a provincial boundary to engage in regular work. It should be noted that the qualifying words "in any province" are not employed elsewhere in the Charter, and should not be lightly discarded from s. 6(2). No such limiting circumstance occurs, for example, in s. 2(d), or in s. 8.
It is reasonable to conclude, therefore, that s. 6(2)(b) should not be read in isolation from the nature and character of the rights granted in subs. (1) and subs. (2)(a). Indeed, the repeated appearance of the expression "in any province" in each of the subprovisions of subs. (2) would appear to make relevant the heading "Mobility Rights". The phrase "in any province" would appear to be one more link between the heading and the rights granted in subs. (2) read as a whole. Nor should s. 6(2) be construed as a discrete section entirely separate from s. 6(3). As I have already mentioned, s. 6(3) refers to the "rights", plural, granted in s. 6(2) and provides an exception to the paramountcy of those rights. In my opinion, s. 6(3)(a) further evinces the intention to guarantee the opportunity to move freely within Canada unimpeded by laws that "discriminate...primarily on the basis of province of present or previous residence". The concluding words of s. 6(3)(a), just cited, buttress the conclusion that s. 6(2)(b) is directed towards "mobility rights", and was not intended to establish a free standing right to work. Reading s. 6(2)(b) in light of the exceptions set out in s. 6(3)(a) also explains why the words "in any province" are used: citizens and permanent residents have the right, under s. 6(2)(b), to earn a living in any province subject to the laws and practices of "general application" in that province which do not discriminate primarily on the basis of provincial residency.
There are many considerations which lead one to adopt the third interpretation of para. (b), supra. Paragraph (b) is thereby accorded a meaning consistent with the heading of s. 6. The transprovincial border commuter is accorded the right to work under (b) without the need of establishing residence in the province of employment in exercise of the right under para. (a). There is a separation of function and purpose between (a) and (b), and the need for separate clauses is demonstrated. The presence of s. 6(3)(a), already discussed, is another supporting consideration.
This interpretation finds some support in a judgment of Mr. Justice Arnup below where he says at p. 492:
It is a clause intended to prevent the erection by any province of barriers established to keep out persons from another province seeking to enter its work force as part of a provincial policy to establish or preserve a preference for its own residents. The permanent resident who goes to another province has a right to pursue the gaining of a livelihood there, whether that person is a lawyer or a class "A" mechanic....
Shortly thereafter in his reasons, His Lordship stated:
In my view, the right is a right not to have provincial barriers thrown up against one who wants to work.... He is not faced with a provincial barrier preventing him, a permanent resident of Canada, from moving freely within Canada to pursue the gaining of a livelihood.
Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec, 1982 2870 (QC CS), [1982] C.S. 1147, 142 D.L.R. (3d) 512, a judgment of Deschênes C.J., is also instructive. The Chief Justice was there faced with determining the meaning and extent of s. 6(2)(b) in relation to the asserted right of a member of the bar of Ontario to participate in a judicial proceeding in Quebec without a licence or permit from the Barreau du Québec under the Quebec statute. With reference to para. (b), the Chief Justice said:
[translation *] The purpose of this provision is undoubtedly to give Canadian citizenship its true meaning and to prevent artificial barriers from being erected between the provinces.
and later in his reasons adds, in connection with s. 6:
[translation *] In principle the Charter thus intends to ensure interprovincial mobility.
*The foregoing is taken from the English version of the judgment as found in (1982), 1982 2870 (QC CS), 142 D.L.R. (3d) 512, at pp. 520‑21. The translation is obviously different than that included in the judgments of the majority and the dissent below in the Court of Appeal but the essential meaning is the same.
The principal thrust of the judgment of the Chief Justice is, however, subs. 6(3) with which we are only tangentially concerned.
- The conclusion as to the meaning and purpose of s. 6(2)(b) finds further support in the writings of all the authors whose works were brought to the attention of the Court: see Mobility Rights under the Charter, Professor John Laskin, (1982), 4 Supreme Court L.R. 89 at pp. 97‑98; Canadian Charter of Rights and Freedoms, Tarnopolsky and Beaudoin, eds., 1982, in particular Pierre Blanche, "The Mobility Rights", at p. 247; Canada Act 1982, Annotated, Peter Hogg, at p. 25.
Legislative History
- Much argument by all counsel was devoted to the history of s. 6 as the Charter of Rights was developed and incorporated into the constitutional process, culminating in the Resolution of the Parliament of Canada passed in 1981. Presentations in the House of Commons in 1980‑81 by the Minister of Justice of the day were cited. The Court was also referred to statements by the Premier of the Province of Quebec as they appeared in the judgment in Malartic, supra. Like materials were presented to and were commented on by this Court in Re: Authority of Parliament in Relation to the Upper House [the Senate Reference], 1979 169 (SCC), [1980] 1 S.C.R. 54, at p. 66, where it was stated:
It is, we think, proper to consider the historical background which led to the provision which was made in the Act for the creation of the Senate as a part of the apparatus for the enactment of federal legislation. In the debates which occurred at the Quebec Conference in 1864, considerable time was occupied in discussing the provisions respecting the Senate.
The practice of broadening the scope of the record in constitutional matters before this Court began in earlier appeals: see Re: Anti‑Inflation Act, 1976 16 (SCC), [1976] 2 S.C.R. 373; and more recently in Re Residential Tenancies Act, 1979, 1981 24 (SCC), [1981] 1 S.C.R. 714. The earlier practice in constitutional fields before this Court and before the Privy Council where historical matter was excluded, has been widely disapproved in constitutional writings: see, for example, Hogg, Constitution of Canada, p. 97. The Court on this appeal received this historical material. I have not found it necessary to take recourse to it in construing s. 6, and therefore, I do not wish to be taken in this appeal as determining, one way or the other, the propriety in the constitutional interpretative process of the admission of such material to the record.
Conclusion on Section 6(2)
I conclude, for these reasons, that para. (b) of subs. (2) of s. 6 does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence. Paragraph (b), therefore, does not avail Richardson of an independent constitutional right to work as a lawyer in the province of residence so as to override the provincial legislation, the Law Society Act, s. 28(c), through s. 52 of the Constitution Act, 1982.
Having reached this conclusion, it is not necessary to examine the submissions made by all parties and interveners with reference to s. 6(3) and s. 1 of the Charter of Rights. Richardson has failed to demonstrate that s. 28(c) of the Law Society Act is inconsistent with s. 6(2)(b) of the Charter. Consequently, I need not determine whether the Act is nonetheless saved by s. 6(3) or s. 1 of the Charter.
The development of the Charter, as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken. There will be occasion when guidance by obiter or anticipation of issues will serve the Canadian community, and particularly the evolving constitutional process. On such occasions, the Court might well enlarge its reasons for judgment beyond that required to dispose of the issues raised. Such an instance might, in a small way, arise here. The appellant has, from the outset of these proceedings, relied upon s. 1 of the Charter as the final constitutional test supporting the validity of s. 28(c) of the Law Society Act, supra. To that end, a minimal record was established to demonstrate the justification of the citizenship requirement as a "reasonable limit" on the rights granted by the Charter. The appellant's material supporting this part of its response to the application by the respondent was the report of a committee established by the province to study professional organizations in Ontario and which report in turn incorporated the findings of an earlier commission of inquiry. The intervener, the Federation of Law Societies of Canada, added other reports and documents concerning requirements in other professions and in other jurisdictions. Counsel for the appellant Law Society, Mr. O'Brien, very candidly admitted that because s. 1 and this very process were new to all, the record introduced by the appellant was rather slim. The originating notice which started these proceedings was one of the first under the Charter. As experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified. Such are the problems of the pioneer and such is the clarity of hindsight.
Disposition and Costs
I therefore would allow the appeal and restore the order of Carruthers J. sitting in Chambers. The dispensing of costs in this proceeding raises unusual difficulties. Through the Court of Appeal, the respondent, Skapinker, was the only party contending the issue with the Law Society. He joined the Ontario bar in April 1983. In the meantime, Richardson was added as an intervener on March 15, 1983 after leave to appeal to this Court had been granted. By the same order issued on April 15, 1983, the respondent, Skapinker, was "given leave to withdraw from this proceeding if so advised on the 15th day of March, 1983...." Skapinker did not withdraw, and indeed, participated in the hearing of this appeal. On the other hand, Richardson did not participate in these proceedings until after this Court had granted leave to appeal in February 1983. The order granting leave to appeal to the appellant Law Society prescribed as a term thereof that the appellant pay "the costs of this Motion and the costs of the appeal in any event of the cause". The judge of first instance awarded costs against the respondent, Skapinker, if demanded. The Court of Appeal made no order as to costs.
With this most unusual background, and balancing the interests of the parties as best one can in these circumstances, I would allow costs to the respondent, Skapinker, on the motion for application for leave and in the Ontario Court of Appeal; and costs payable by the appellant to the respondent, Skapinker, and to the intervener, Richardson, on the hearing of this appeal. I would set aside the order as to costs in the court of first instance, so that in the result there would, in the hearing before Carruthers J., be no order as to costs.
Appeal allowed.
Solicitors for the appellant: Phelan, O'Brien, Shannon & Lawer, Toronto.
Solicitors for the respondent: Osler, Hoskin & Harcourt, Toronto.
Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: Archie Campbell, Toronto.
Solicitor for the intervener the Attorney General for Saskatchewan: Richard F. Gosse, Regina.
Solicitor for the intervener the Attorney General of Québec: Daniel Jacoby, Québec.
Solicitor for the intervener the Federation of Law Societies of Canada‑‑Fédération des Barreaux du Canada: Fraser & Beatty, Toronto.
Solicitor for the intervener John Calvin Richardson: Harvey Berkal, Toronto.
