Chapter-5 Whether to Temporarily Suspend the Declaration of Invalidity:Issue Part-8

Chapter-5

Whether to Temporarily Suspend the Declaration of Invalidity:Issue

Part-8

‘Having identified the extent of the inconsistency, and having determined whether that inconsistency should be dealt with by way of striking down, severance or reading in, the court has identified what portion must be struck down. The final step is to determine whether the declaration of invalidity of that portion should be temporarily suspended.

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (R. v. Swain, supra) or otherwise threatens the rule of law[1]. It may also be appropriate in cases of under inclusiveness as opposed to over breadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its under inclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits.

Furthermore, the fact that the court's declaration is delayed is not really relevant to the question of which course of action, reading in or nullification, is less intrusive upon the institution of the legislature. By deciding upon nullification or reading in, the court has already chosen the less intrusive path. If reading in is less intrusive than nullification in a particular case, then there is no reason to think that a delayed nullification would be any better. To delay nullification forces the matter back onto the legislative agenda at a time not of the choosing of the legislature, and within time limits under which the legislature would not normally be forced to act. This is a serious interference in itself with the institution of the legislature. Where reading in is appropriate, the legislature may consider the issue in its own good time and take whatever action it wishes. Thus delayed declarations of nullity should not be seen as preferable to reading in in cases where reading in is appropriate.

The question whether to delay the application of a declaration of nullity should therefore turn not on considerations of the role of the courts and the legislature, but rather on considerations listed earlier relating to the effect of an immediate declaration on the public.’[2]The other cases that were referred to by LAMER CJ are given below.[3] The Acts that are discussed are as follows.[4] In considering the validity of a law passed by the Parliament, it is neither necessary nor appropriate to seek to characterise that law as a law with respect to a single head of legislative power. The law may, and commonly will, find support in several heads of power. The present case, and the situation considered in Newcrest, are examples where s 122 is one of several heads. So also is Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[289][5]. Secondly, if, in addition to whatever other characters it may have, the law has the character of a law with respect to the acquisition of property, the law in that aspect must satisfy the safeguard, restriction or qualification provided by s 51(xxxi), namely, the provision of just terms.

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[1] Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721

[2] Per LAMER J: Schachter v. Canada, [1992] 2 S.C.R. 679 [ Supreme Court Of Canada]

[3] By Lamer C.J.Considered: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Attorney‑General of Nova Scotia v. Phillips (1986), 34 D.L.R. (4th) 633; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Swain, [1991] 1 S.C.R. 933; referred to: Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; Tétrault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; R. v. Hebb (1989), 69 C.R. (3d) 1; Russow v. B.C. (A.G.) (1989), 35 B.C.L.R. (2d) 29; Welsh v. United States, 398 U.S. 333 (1970); Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513; Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.

By La Forest J.Referred to: R. v. Wong, [1990] 3 S.C.R. 36; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; R. v. Oakes, [1986] 1 S.C.R. 103.

[4] Statutes and Regulations Cited,Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.,Canadian Charter of Rights and Freedoms, ss. 1, 7, 15(1), 24(1).,Constitution Act, 1982, s. 52(1).;Criminal Code, R.S.C. 1970, c. C‑34, s. 542(2).;Criminal Code, R.S.C., 1985, c. C.‑46, s. 276.;Federal Court Rules, C.R.C., C. 663, Rule 341A [ad. SOR/79‑57, s. 8].;Human Rights Code, 1981, S.O. 1981, c. 53, ss. 1, 19.;Lord's Day Act, R.S.C. 1970, c. L‑13.;Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, ss. 30 [am. by S.C. 1980‑81‑82‑83, c. 150, s. 4], 32(1) [am. by S.C. 1980‑81‑82‑83, c. 150, s. 5].

[5] 2005) 222 CLR 439; [2005] HCA 36.