Chapter-5 Defining extent of Inconsistencies Part-5-6

Chapter-5

Defining extent of Inconsistencies

Part-5-6

Defining the Extent of the Inconsistency

The first step in choosing a remedial course under s. 52 is defining the extent of the inconsistency which must be struck down. Usually, the manner in which the law violates the Charter and the manner in which it fails to be justified under s. 1 will be critical to this determination. In this case, as noted earlier, this Court is hampered by the lack of an opportunity to assess the nature of the violation and the absence of s. 1 evidence.

It is useful at this point to set out the two stage s. 1 test developed by this Court in R. v. Oakes,[1]

(1) Is the legislative objective which the measures limiting an individual's rights or freedoms are designed to serve sufficiently pressing and substantial to justify the limitation of those rights or freedoms?

(2) Are the measures chosen to serve that objective proportional to it, that is:

(a) Are the measures rationally connected to the objective?

(b) Do the measures impair as little as possible the right and freedom in question? and,

(c) Are the effects of the measures proportional to the objective identified above?

The Purpose Test

‘In some circumstances, s. 52(1) mandates defining the inconsistent portion which must be struck down very broadly. This will almost always be the case where the legislation or legislative provision does not meet the first part of the Oakes test, in that the purpose is not sufficiently pressing or substantial to warrant overriding a Charter right. Although it predates Oakes, supra, R. v. Big M Drug Mart Ltd.,[2] provides a clear example. There DICKSON C.J. found that the purpose of the Lord's Day Act, R.S.C. 1970, c. L-13, was itself inimical to the values of a free and democratic society. The case stands as authority for the proposition that, where the purpose of the legislation is itself unconstitutional, the legislation should be struck down in its entirety.[3]

The Rational Connection Test

Where the purpose of the legislation or legislative provision is deemed to be pressing and substantial, but the means used to achieve this objective are found not to be rationally connected to it, the inconsistency to be struck down will generally be the whole of the portion of the legislation which fails the rational connection test.[4]

It is logical that in most such cases the appropriate remedial choice will be to strike down the entire portion of the legislation that fails on this element of the proportionality test. It matters not how pressing or substantial the objective of the legislation may be; if the means used to achieve the objective are not rationally connected to it, then the objective will not be furthered by somehow upholding the legislation as it stands.[5]

The Minimal Impairment/Effects Test

Where the second and/or third elements of the proportionality test are not met, there is more flexibility in defining the extent of the inconsistency. For instance, if the legislative provision fails because it is not carefully tailored to be a minimal intrusion, or because it has effects disproportionate to its purpose, the inconsistency could be defined as being the provisions left out of the legislation which would carefully tailor it, or would avoid a disproportionate effect. According to the logic outlined above, such an inconsistency could be declared inoperative with the result that the statute was extended by way of reading in.

[1] R. v. Oakes, [1986] 1 S.C.R. 103

[2]R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

[3] Indeed, it is difficult to imagine anything less being appropriate where the purpose of the legislation is deemed unconstitutional; however, I do not wish to foreclose that possibility prematurely.’per LAMER J in Schachter [supra]

[4] This Court's decision in Andrews, supra, can be taken to support this position. Again, this Court held there that the citizenship requirement for admission to the British Columbia bar violated the equality guarantee enshrined in s. 15 of the Charter. While the citizenship requirement was held to have a valid purpose (the objectives argued were that lawyers be familiar with Canadian institutions and customs and that they display a commitment to them), the Court determined that the requirement did not meet the proportionality test. The majority on this issue concluded that the means were probably not rationally connected to the objectives put forward, in that citizenship does not ensure familiarity with or commitment to Canadian society and, conversely, non-citizenship does not necessarily point to a lack of familiarity or commitment. The requirement was struck down.

[5] Schatcher [supra]