Chapter-5 Reading in and Severance Part-4

Chapter-5

Reading in and Severance

Part-4

Reading in and Severance: Relationship

The present case does not have any of the characteristics which have been regarded in the more recent authorities as sufficient to warrant filling a gap or apparent gap. No doubt the courts in recent years have taken a somewhat less strict view of reading words into statutes where the words actually used produce, for instance, an absurd result. It is however not permissible to rely on a supposed failure to express the real intention by reliance on what the reader thinks the Parliament or the draftsman should have intended or should have said[1].

This same approach should be applied to the question of reading in since extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of the inconsistency is defined. In the usual case of severance the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down.

A statute may be worded in such a way that it gives a benefit or right to one group (inclusive wording) or it may be worded to give a right or benefit to everyone except a certain group (exclusive wording). It would be an arbitrary distinction to treat inclusively and exclusively worded statutes differently.To do so would create a situation where the style of drafting would be the single critical factor in the determination of a remedy. This is entirely inappropriate[2].

As stated previously, once a person has demonstrated that a particular law infringes his or her Charter rights, the manner in which the law is drafted or stated ought to be irrelevant for the purposes of a constitutional remedy. To hold otherwise would result in a statutory provision dictating the interpretation of the Constitution. Further, where B's Charter right to a[n equal] benefit is demonstrated, it is immaterial whether the subject law states : (1) A benefits; or (2) Everyone benefits except B.

The first example would require the court to "read in" the words "and B," while the second example would require the court to "strike out" the words "except B." In each case, the result would be identical.

Accordingly, whether a court "reads in" or "strikes out" words from a challenged law, the focus of the court should be on the appropriate remedy in the circumstances and not on the label used to arrive at the result.

There is nothing in s. 52 of the Constitution Act, 1982 to suggest that the court should be restricted to the verbal formula employed by the legislature in defining the inconsistency between a statute and the Constitution. Section 52 does not say that the words expressing a law are of no force or effect to the extent that they are inconsistent with the Constitution. It says that a law is of no force or effect to the extent of the inconsistency. Therefore, the inconsistency can be defined as what is left out of the verbal formula as well as what is wrongly included.

This Court implicitly recognized that the extent of the inconsistency can be defined in substantive, rather than merely verbal, terms in Andrews v. Law Society of British Columbia.[3] In Andrews the statute (Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42) dictated that only Canadian citizens could become lawyers in the following words:

42. The benchers may call to the Bar of the Province and admit as solicitor of the Supreme Court

(a) a Canadian citizen with respect to whom they are satisfied that he . . . .

The Court found that the exclusion of non-citizens violated the right to equality. Instead of striking down the entire section so that everyone would be equally prevented from becoming a lawyer, only the requirement of Canadian citizenship was declared inoperative. However, the section does not make any sense if the words "a Canadian citizen" are deleted and there is, in fact, no way of simply deleting words that would make the section conform to the requirements of the Charter. Instead of focusing on these verbal formulae, the Court nullified the substantive citizenship requirement which could be said to amount to extending the statute to cover non-Canadians. Thus, Andrews is already an example of a case in which the extent of the inconsistency was defined conceptually without being limited to the manner in which the statute was drafted.

[1] Cooper Brooke[supra]

[2] Rowles J. made this point in Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.), at p. 388 as quoted in Schatcher.

[3] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143

Chapter-5 Doctrine of Reading Down and case law-part-2

Chapter-5

Case laws of Reading in and Reading Down

Part-2

In the matter of :Schachter v. Canada

Reading in and Read down and Severence etc

In a case[1] before Supreme court of Canada was considering the constitutional questions:

(1) whether s. 52(1) of the Constitution Act, 1982 required that s. 32 of the Unemployment Insurance Act, 1971, given an unequal benefit contrary to s. 15(1) of the Charter, be declared of no force or effect, and (2) whether s. 24(1) of the Charter conferred on the Federal Court Trial Division the power to order that natural parents are entitled to benefits on the same terms as benefits are available to adoptive parents under s. 32.

The relevant provision of the Unemployment Insurance Act, 1971, reads as follows:

32. (1) Notwithstanding section 25 but subject to this section, initial benefit is payable to a major attachment claimant who proves that it is reasonable for that claimant to remain at home by reason of the placement with that claimant of one or more children for the purpose of adoption pursuant to the laws governing adoption in the province in which that claimant resides.

The relevant provisions of the Canadian Charter of Rights and Freedoms read as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The relevant provision of the Constitution Act, 1982 reads as follows:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The appeal was allowed observing that: The first constitutional question should be answered in the affirmative, leaving open the option of suspending the declaration of invalidity for a period of time to allow Parliament to amend the legislation in a way which meets its constitutional obligations. The second constitutional question should be answered in the negative. Section 24(1) of the Charter provides an individual remedy for actions taken under a law which violate an individual's Charter rights. A limited power to extend legislation is available to courts in appropriate circumstances by way of the power to read in derived from s. 52 of the Constitution Act, 1982.

Options available to the Court: Reading in or Read down in case Constitutionally Inconsistent provisions of Statute

In fact, this Court is very often confronted with inconsistencies and has developed a number of rules to deal with them, but it is clear that it will not be possible in all cases to make sense of the legislation while eliminating all internal inconsistencies.[2]

Although the Court does not have a valid delegation from the relevant parliament to perform "the legislative task of making a new law from the constitutionally unobjectionable parts of the old[3]"[125], it is permissible in certain cases, where necessary, to read down the provisions of a statute by excising any invalid part, despite the fact that this may bring about a result different from, and more confined than, the statute taken as a whole as that parliament originally envisaged[4][126].

It was observed by LAMER J that: Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only "to the extent of the inconsistency" and further Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in.[5]

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.[6]

In Australia, the term ‘inconsistency’, used in relation to the operation of laws, invariably directs attention to s.109 of the Constitution. However, that does not necessarily provide safe guidance in a case which concerns statutes of the same legislature.

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[1] Schachter v. Canada, [1992] 2 S.C.R. 679 [ Supreme Court Of Canada]

[2] see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 59 (McLachlin J. in dissent); 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at paras 158-59; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para 48

[3] Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 372; see also Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 at 492, 503, 506.

[4] Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 110-111, 118; Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371. Moreover, the challenges to the other provisions may ultimately fail, leaving the legislation precisely as it was enacted. ,quoted from Residual Assco Group v Spalvins [2000] HCA 33; 202 CLR 629; 172 ALR 366; 74 ALJR 1013 (13 June 2000) ,High Court of Austraia per KIRBY J

[5] In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an "appropriate and just" remedy to "[a]nyone whose [Charter] rights and freedoms ... have been infringed or denied". In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration

[6] Section 109 of Constitution