Chapter-5
Choosing the best of three: REAding in, read down or severance
Part-7
Striking down, severing or reading in may be appropriate in cases where the second and/or third elements of the proportionality test are not met. The choice of remedy will be guided by the following considerations.
Deciding whether Severance or Reading in is Appropriate
Having determined what the extent of the inconsistency is, the next question is whether that inconsistency may be dealt with by way of severance, or in some cases reading in, or whether an impugned provision must be struck down in its entirety.
(i) Remedial Precision
While reading in is the logical counterpart of severance, and serves the same purposes, there is one important distinction between the two practices which must be kept in mind. In the case of severance, the inconsistent part of the statutory provision can be defined with some precision on the basis of the requirements of the Constitution. This will not always be so in the case of reading in. In some cases, the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. In such a case, it is the legislature's role to fill in the gaps, not the court's. This point is made most clearly in Hunter v. Southam Inc.[1]
While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.
In Hunter, the Court decided that the scheme for authorizing searches under the relevant legislation did not withstand Charter scrutiny. In such a circumstance, it would theoretically be possible to characterize the "extent of the inconsistency" as the absence of certain safeguards. Thus, in the abstract, the absence of appropriate safeguards could have been declared of no force or effect, which would have led to the establishment of the appropriate safeguards. However, this approach would have been inappropriate because this would have required establishing a new scheme, the details of which would have been up to the Court to determine.
Hunter has been applied recently by Justice MCLACHLIN in Rocket v. Royal College of Dental Surgeons of Ontario,[2].The issue in that case was the prohibition of advertising by the members of a professional association, with certain exceptions. MCLACHLIN J. found that the regulation of advertising violated the Charter and extended too far to be justified under s.1. However, some prohibition of advertising would be justifiable if additional exceptions were added. The question then arose whether the Court ought to supply those additional exemptions itself, or simply strike down the prohibition.
MCLACHLIN J. noted, at p. 253, that the drafting of rules which would allow only legitimate advertising would be a difficult and complex endeavour that did not flow with precision from the requirements of the Charter:
Since the exemptions could not be defined with sufficient precision, the section itself had to be struck down (at p. 252):
‘Because the section is cast in the form of limited exclusions to a general prohibition, the Court would be required to supply further exceptions. To my mind, this is for the legislators[3].’ These cases stand for the proposition that the court should not read in cases where there is no manner of extension which flows with sufficient precision from the requirements of the Constitution. In such cases, to read in would amount to making ad hoc choices from a variety of options, none of which was pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution. This is the task of the legislature, not the courts[4].
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