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.
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