Chapter-5 The Purposes of Reading in and Severance Part-5

Chapter-5

The Purposes of Reading in and Severance

Part-5

Respect for the Role of the Legislature

The logical parallels between reading in and severance are mirrored by their parallel purposes. Reading in is as important a tool as severance in avoiding undue intrusion into the legislative sphere. As with severance, the purpose of reading in is to be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature[1].

Interference with the Legislative purpose to be minimized

Courts should certainly go as far as required to protect rights, but no further. Interference with legitimate legislative purposes should be minimized and laws serving such purposes should be allowed to remain operative to the extent that rights are not violated. Legislation which serves desirable social purposes may give rise to entitlements which themselves deserve some protection[2].

Reading in may not always Constitute the lesser intrusion

Of course, reading in will not always constitute the lesser intrusion for the same reason that severance sometimes does not. In some cases, it will not be a safe assumption that the legislature would have enacted the constitutionally permissible part of its enactment without the impermissible part. For example, in a benefits case, it may not be a safe assumption that the legislature would have enacted a benefits scheme if it were impermissible to exclude particular parties from entitlement under that scheme[3].

Respect for the Purposes of the Charter

Just as reading in is sometimes required in order to respect the purposes of the legislature, it is also sometimes required in order to respect the purposes of the Charter. The absolute unavailability of reading in would mean that the standards developed under the Charter would have to be applied in certain cases in ways which would derogate from the deeper social purposes of the Charter. This point has been made well by Duclos' and Roach's article "Constitutional Remedies as `Constitutional Hints'.[4] Their argument is that even in situations where the standards of the Charter allow for more than one remedial response, the purposes of the Charter may encourage one kind of response more strongly than another.

This is best illustrated by the case of Attorney-General of Nova Scotia v. Phillips. [5] In that case, a form of welfare benefit was available to single mothers but not single fathers. This was held to violate s. 15 of the Charter since benefits should be available to single mothers and single fathers equally. However, the court held that s. 15 merely required equal benefit, so that the Charter would be equally satisfied whether the benefit was available to both mothers and fathers or to neither. Given this and the court's conclusion that it could not extend benefits, the only available course was to nullify the benefits to single mothers. The irony of this result is obvious.[6]

Reading in akin to the Severence

Reading in should therefore be recognized as a legitimate remedy akin to severance and should be available under s. 52 in cases where it is an appropriate technique to fulfil the purposes of the Charter and at the same time minimize the interference of the court with the parts of legislation that do not themselves violate the Charter.[7]

[1] Rogerson makes this observation at p. 288[ Rogerson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness". In R. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987] as quoted in Schachter v. Canada, [1992] 2 S.C.R. 679 , Supreme Court of Canada]

[2] Schachter[supra]

[3] Schachter[supra]

[4] A Comment on R. v. Schachter" (1991), 36 McGill L.J. 1, and by Caminker's article "A Norm-Based Remedial Model for Underinclusive Statutes" (1986), 95 Yale L.J. 1185.

[5] Attorney-General of Nova Scotia v. Phillips (1986), 34 D.L.R. (4th) 633 (N.S.C.A.

[6] Perhaps in some cases s. 15 does simply require relative equality and is just as satisfied with equal graveyards as equal vineyards, as it has sometimes been put (see Caminker, at p. 1186). Yet the nullification of benefits to single mothers does not sit well with the overall purpose of s. 15 of the Charter and for s. 15 to have such a result clearly amounts to "equality with a vengeance," as LEAF, one of the interveners in this case, has suggested. While s. 15 may not absolutely require that benefits be available to single mothers, surely it at least encourages such action to relieve the disadvantaged position of persons in those circumstances. In cases of this kind, reading in allows the court to act in a manner more consistent with the basic purposes of the Charter.

[7] Schachter v. Canada, [supra]