Schachter v. Canada

Schachter v. Canada
Collection
Supreme Court Judgments
Date
1992-07-09
Report
[1992] 2 SCR 679
Case number
21889
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 21889
Decision Content
Schachter v. Canada, [1992] 2 S.C.R. 679
Her Majesty The Queen and Canada Employment
and Immigration Commission Appellants
v.
Shalom Schachter Respondent
and
Women's Legal Education and Action Fund Respondent
and
Attorney General for Ontario, Attorney General
of Quebec, Attorney General for New Brunswick,
Attorney General of British Columbia, Attorney
General for Saskatchewan, Attorney General for
Alberta, Attorney General of Newfoundland and
Minority Advocacy Rights Council Interveners
Indexed as: Schachter v. Canada
File No.: 21889.
1991: December 12; 1992: July 9.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Remedies ‑‑ Underinclusive benefit ‑‑ Natural parents not given same benefits as adoptive parents under Unemployment Insurance Act, 1971 ‑‑ Whether or not s. 52(1) of Constitution Act, 1982 required court to declare offending section of no force or effect ‑‑ Whether or not s. 24 of Charter enabled court to order natural parents entitled to same benefits as adoptive parents ‑‑ Constitution Act, 1982, s. 52(1) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15(1) , 24(1) ‑‑ Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, s. 32.
Constitutional law ‑‑ Charter of Rights ‑‑ Enforcement ‑‑ Appropriate remedy ‑‑ Underinclusive benefit ‑‑ Natural parents not given same benefits as adoptive parents under Unemployment Insurance Act, 1971 ‑‑ Whether or not s. 52(1) of Constitution Act, 1982 required court to declare offending section of no force or effect ‑‑ Whether or not s. 24 of Charter enabled court to order natural parents entitled to same benefits as adoptive parents.
Respondent's spouse received 15 weeks of maternity benefits in 1985 under s. 30 of the Unemployment Insurance Act, 1971. Although respondent had intended to stay home with the newborn as soon as his spouse was able to return to work after the birth, he ultimately took three weeks off without pay. He had first applied for benefits under s. 30 in respect of the time he had to take off work, but, since s. 30 was limited to maternity benefits, modified his application to one under s. 32 for "paternity benefits". Section 32 provides for parental benefits for adoptive parents for 15 weeks following the placement of their child with them. These benefits are to be shared between the two parents in accordance with their wishes. The respondent's application was denied on the basis that he was "not available for work", a ground of disentitlement for all applicants except those applying for maternity benefits or adoption benefits.
The respondent appealed the decision to a Board of Referees. The appeal was dismissed and the respondent made a further appeal to an Umpire. This appeal was never heard as the respondent made known his intention to raise constitutional issues and it was agreed by the parties that the Federal Court, Trial Division was a better forum for resolving the constitutional issues. The trial judge found a violation of s. 15 of the Canadian Charter of Rights and Freedoms in that s. 32 discriminated between natural parents and adoptive parents with respect to parental leave. He granted declaratory relief under s. 24(1) of the Charter and extended the same benefits to natural parents as were granted to adoptive parents under s. 32 . The violation of s. 15 was subsequently ceded by appellants. The Federal Court of Appeal upheld the trial judge's decision.
The impugned provision was since amended to extend parental benefits to natural parents on the same footing as they are provided to adoptive parents for a period totalling 10 weeks rather than the original 15.
The constitutional questions stated in this Court queried: (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 .
Held: The appeal should be allowed. 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 .
Per Lamer C.J. and Sopinka, Gonthier, Cory and McLachlin JJ.: Generally speaking, when only a part of a statute or provision violates the Constitution, only the offending portion should be declared to be of no force or effect. The doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.
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. The reach of the statute is effectively extended by way of reading in rather than reading down.
Section 52 of the Constitution Act, 1982 does not restrict the court to the verbal formula employed by the legislature in defining the inconsistency between a statute and the Constitution. Section 52 declares the law, and not the words expressing that law, to be of no force or effect to the extent of any inconsistency with the Constitution. The inconsistency can be defined as what is left out of the verbal formula as well as what is wrongly included.
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. In some cases, of course, it will not be a safe assumption that the legislature would have enacted the constitutionally permissible part of its enactment without the impermissible part. There reading in would not be appropriate. 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 . Reading in therefore is 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 .
The first step in choosing a remedial course under s. 52 is to define 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 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. Where the purpose of the legislation is itself unconstitutional, the legislation should almost always be struck down in its entirety.
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. 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, the objective will not be furthered by somehow upholding the legislation as it stands. 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. Striking down, severing or reading in may be appropriate in cases where the second and/or third elements of the proportionality test are not met.
Having determined the extent of the inconsistency, the means of dealing with it, whether by way of severance, reading in, or striking down legislation in its entirety, must be considered.
One important distinction exists between severing and reading in. In the case of severance, the inconsistent part of the statutory provision can be defined with some precision on the basis of the requirements of the Constitution. This is not always the case with reading in. In cases where the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis, the legislature and not the courts must fill in the gaps.
In determining whether reading in is appropriate, the question is not whether courts can make decisions that impact on budgetary policy but rather to what degree they can appropriately do so. A remedy which entails an intrusion into this sphere so substantial as to change the nature of the legislative scheme in question is clearly inappropriate. The court should consider whether the significance of the part which would remain is substantially changed when the offending part is excised. The problem with striking down only the inconsistent portion is that the significance of the remaining portion may change so markedly without the inconsistent portion that the assumption that the legislature would have enacted it is unsafe.
In cases where the issue is whether to extend benefits to a group not included in the statute, the question of the change in significance of the remaining portion sometimes focuses on the relative size of the two relevant groups. The assumption that the legislature would have enacted the benefit is more often sound where the group to be added is smaller than the group originally benefitted. This assumption, however, is not necessarily safe when the group to be added is much larger than the group originally benefitted. This is not because of the numbers per se. Rather, the numbers may indicate that for budgetary reasons, or simply because it constitutes a marked change in the thrust of the original program, it cannot be assumed that the legislature would have passed the benefit without the exclusion.
It is sensible to consider the significance of the remaining portion when asking whether it is safe to assume that the legislature would have enacted the remaining portion. If the remaining portion is very significant, or of a long standing nature, it strengthens the assumption that it would have been enacted without the impermissible portion. The fact that the permissible part of a provision is encouraged by the purposes of the Constitution, even if not mandated by it, strengthens the assumption that the legislature would have enacted it without the impermissible portion.
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. The question of whether to delay the effect of a declaration is an entirely separate question from whether reading in or nullification is the appropriate route under s. 52 of the Constitution Act, 1982 . Delayed declarations of nullity should not be seen as preferable to reading in cases where reading in is appropriate. The question whether to delay the application of a declaration of nullity should turn not on considerations of the role of the courts and the legislature but rather on considerations relating to the effect of an immediate declaration on the public.
Where s. 52 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.
An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with action under s. 52 of the Constitution Act, 1982 . Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52 , that will be the end of the matter. No retroactive s. 24 remedy will be available.
The right which was determined to be violated here is a positive right: the right to equal benefit of the law. This benefit was monetary and not one which Parliament is constitutionally obliged to provide to the included group or the excluded group. What Parliament is obliged to do, by virtue of the conceded s. 15 violation, is to equalize the provision of that benefit if it is to be provided at all. The benefit itself is not constitutionally prohibited; it is simply underinclusive. Thus striking down the provision immediately would be inappropriate as such a course of action would deprive eligible persons of a benefit without providing any relief to the respondent. Such a situation demands, at the very least, that the operation of any declaration of invalidity be suspended to allow Parliament time to bring the provision into line with constitutional requirements.
Without a mandate based on a clear legislative objective, reading the excluded group into the legislation would be imprudent. A consideration of the benefit and size of the group and of the budgetary implications of such a course of action underlined this conclusion. The appropriate action was to declare the provision invalid and suspend that declaration to allow the legislative body in question to weigh all the relevant factors in amending the legislation to meet constitutional requirements. Significantly, Parliament did amend the impugned provision after this action was launched and the amendment was not the one that reading in would have imposed.
Per La Forest and L'Heureux‑Dubé JJ.: The legislation concerned concededly violates the Canadian Charter of Rights and Freedoms and does not fall within the very narrow type of cases where only a portion of the legislation may be read down or corrected by reading in material as being the obvious intention of the legislature. There is a long tradition of reading down legislation and, where it substantially amounts to the same thing, reading in is possible. These devices, however, should only be employed in the clearest of cases. In light of Parliament's subsequent action, there was no reason to declare the impugned legislation invalid and then suspend that declaration.
Further dimensions to the issue of reading in and reading down require qualifications to the propositions set down as guidelines by Lamer C.J. The process of reading down or reading in should not be closely tied with the checklist set forth in R. v. Oakes because that might encourage a mechanistic approach rather than an examination of more fundamental issues going well beyond the factual context.
Cases Cited
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.
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].
Authors Cited
Caminker, Evan. "A Norm‑Based Remedial Model for Underinclusive Statutes" (1986), 95 Yale L.J. 1185.
Duclos, Nitya and Kent Roach. "Constitutional Remedies as `Constitutional Hints': A Comment on R. v. Schachter" (1991), 36 McGill L.J. 1.
Lajoie, Andrée. "De l'interventionnisme judiciaire comme apport à l'émergence des droits sociaux" (1991), 36 McGill L.J. 1338.
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.
APPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 129, 66 D.L.R. (4th) 635, 3 C.R.R. (2d) 337, 29 C.C.E.L. 113, 90 C.L.L.C. {PP} 14,005, 108 N.R. 123, dismissing an appeal from a judgment of Strayer J., [1988] 3 F.C. 515, 52 D.L.R. (4th) 525, 20 C.C.E.L. 301, 88 C.L.L.C. {PP} 14,021. Appeal allowed. 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 .
David Sgayias, Q.C., and Roslyn J. Levine, for the appellants.
Brian G. Morgan and Lawrence E. Ritchie, for the respondent Shalom Schachter.
Mary A. Eberts and Jenifer Aitken, for the respondent Women's Legal Education and Action Fund.
Elizabeth Goldberg and Lori Sterling, for the intervener the Attorney General for Ontario.
Jean‑Yves Bernard and Madeleine Aubé, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
George H. Copley, for the intervener the Attorney General of British Columbia.
Ross Macnab, for the intervener the Attorney General for Saskatchewan.
Stanley H. Rutwind, for the intervener the Attorney General for Alberta.
B. Gale Welsh, for the intervener the Attorney General of Newfoundland.
Emilio S. Binavince, for the intervener Minority Advocacy and Rights Council.
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by
//Lamer C.J.//
Lamer C.J. --
Facts
The respondent, Shalom Schachter, and his wife, Marcia Gilbert, were expecting their second child in the summer of 1985. The respondent intended to stay home with the newborn as soon after the birth as his wife was able to return to work. Ultimately, he took three weeks off work without pay.
Marcia Gilbert received fifteen weeks of maternity benefits under s. 30 of the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as am. by S.C. 1980-81-82-83, c. 150, s. 4. The respondent first applied for benefits under s. 30 in respect of the time he had to take off work, but ultimately modified an application under s. 32, as am. by S.C. 1980-81-82-83, c. 150, s. 5, for "paternity benefits". This is a section which provides for parental benefits for adoptive parents for 15 weeks following the placement of their child with them. These benefits are to be shared between the two parents in accordance with their wishes. The respondent's application was denied on the basis that he was "not available for work", a ground of disentitlement for all applicants except those applying for maternity benefits or adoption benefits.
The respondent appealed the decision to a Board of Referees. The appeal was dismissed and the respondent made a further appeal to an Umpire. This appeal was never heard as the respondent made known his intention to raise constitutional issues and it was agreed by the parties that the Federal Court, Trial Division was a better forum for resolving the constitutional issues.
The matter proceeded before Strayer J. in the Federal Court, Trial Division. In written reasons, [1988] 3 F.C. 515, Strayer J. found a violation of s. 15 of the Canadian Charter of Rights and Freedoms in that s. 32 discriminated between natural parents and adoptive parents with respect to parental leave. He granted declaratory relief under s. 24(1) , extending to natural parents the same benefits as were granted to adoptive parents under s. 32 .
The appellants appealed to the Federal Court of Appeal. In written reasons dated February 16, 1990, [1990] 2 F.C. 129, the Court upheld the Trial Division's decision, Mahoney J.A. dissenting. The appeal was dismissed.
On November 15, 1990, the appellants were granted leave to appeal to this Court.
It should be noted that the impugned provision has since been amended by Parliament to extend parental benefits to natural parents on the same footing as they are provided to adoptive parents for a period totalling 10 weeks rather than the original 15.
Relevant Statutory and Constitutional Provisions
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.
Judgments Below
Federal Court, Trial Division (Strayer J.)
Strayer J. held that s. 32 denied equal benefit of the law with discrimination on the basis of parental status, thereby infringing the s. 15 rights of the respondent. No s. 1 analysis was undertaken. Having decided that there was an infringement, Strayer J. went on to consider the appropriate remedy. In his view, at p. 543, two options were available:
I could either declare section 32 to be invalid in its present form, thus denying benefits to those already within it, or I could simply declare the entitlement of natural parents to benefits equal to those now provided to adoptive parents under section 32. Counsel for the plaintiff [respondent] and for the intervenor [LEAF] argued for the latter approach, while counsel for the defendants [appellants] argued that I must, if I concluded there was unequal benefit of the law, strike down the existing benefits in section 32.
Given that Strayer J. found s. 32 to be defective, not because it provided prohibited benefits but because it was "underinclusive", he did not consider it appropriate to deprive those persons already qualified under s. 32 of their benefits. Rather, he decided to make a declaration that other persons in similar circumstances were entitled to the same benefits, until such time as Parliament amended the legislation in a way which met the requirements of s. 15 . Further, he ordered that the respondent's application for benefits be reconsidered on the basis that if, apart from his status as a natural parent, he met the requirements of the section, he was entitled to benefits. Pursuant to Rule 341A (Federal Court Rules, C.R.C., c. 663, am. SOR/79-57, s. 8), Strayer J. suspended the operation of his judgment pending appeal.
Court of Appeal (Heald J.A. for the majority)
Since the parties conceded at the outset that s. 15(1) of the Charter had been violated, the Court of Appeal dealt only with the jurisdiction of the trial judge to accord the remedy sought by the respondent.
Heald J.A. noted at the outset that the appellants had conceded that, had the Trial Division had the jurisdiction to grant the remedy it did, the order was "just and appropriate in the circumstances". Heald J.A. determined that the trial judge did have the jurisdiction to grant a remedy under s. 24(1) of the Charter . He did not accept the appellants' argument that the only option which was open to the trial judge in the circumstances was to strike down the impugned provision pursuant to s. 52 of the Constitution Act, 1982 . He found, at p. 137, the distinction made by the trial judge between legislation which "is unconstitutional because of what it provides and legislation which is unconstitutional because of what it omits" to be an apt one. He held that here it was permissible to have recourse to s. 24 because the impugned provision was unconstitutional solely because it was not sufficiently broad in scope. "It is the omission in this case that is unconstitutional, not the legislation itself." Therefore, in his opinion, s. 52 was not engaged.
Heald J.A. further considered the "interface" between ss. 24 and 52 when a violation of s. 15 has been found. He held, at p. 142, that:
A mere declaration of invalidity is inadequate in the circumstances at bar, because it would not guarantee the positive right conferred pursuant to subsection 15(1) . That positive right can only be guaranteed by the fashioning of a positive remedy. That is precisely what the Trial Judge attempted to do in the decision a quo.
Heald J.A. was of the view that, as the consequences of a declaration that the legislation was inoperative would be to deprive adoptive parents of the benefits granted to them by s. 32 of the Unemployment Insurance Act, 1971, this would be as much an amendment of legislation as the remedy granted by the trial judge. Heald J.A. concluded that where legislation is "underinclusive", positive relief is both warranted and constitutionally permitted through the vehicle of s. 24 .
Heald J.A. was not persuaded that the jurisprudence supported the appellants' contention that the order was an appropriation of public funds for a purpose not authorized by Parliament.
Heald J.A. dismissed the appeal, upholding the judgment of the trial judge. He suspended the operation of that judgment pending appeal.
Mahoney J.A. (dissenting)
Mahoney J.A. held that the remedy granted by the trial judge was outside his jurisdiction because he had in effect amended the legislation where, by virtue of the Constitution, the sole power to legislate is reserved to Parliament.
With regard to the issue of the appropriation of funds, Mahoney J.A. was of the view that the remedy fashioned by the trial judge amounted to an appropriation of money by a court which is not permitted by the provisions of the preamble to the Constitution Act, 1867 . He concluded, at p. 164:
Even if the power of a court to legislate by way of a subsection 24(1) remedy were found to exist in circumstances which do not entail the appropriation of public monies, no such power can be found to exist where the remedy appropriates monies from the Consolidated Revenue Fund for a purpose not authorized by Parliament. A purposive approach to remedies under subsection 24(1) cannot take a court that far.
In my opinion, the appellants are correct: the Constitution of Canada does not permit the remedy crafted by the learned Trial Judge. Having found that section 32 of the Unemployment Insurance Act, 1971 was inconsistent with a provision of the Constitution of Canada, the learned Trial Judge was bound to find it to be of no force and effect. Had that finding been made, the absence of any conflict between subsections 24(1) and 52(1) would be apparent. There is no offending legislation and, therefore, no subsection 24(1) remedy called for.
In my opinion, subsection 52(1) does not provide a "remedy" in any real sense of that word. It states a constitutional fact which no court can ignore when it is invoked in a proceeding and found to apply.
Mahoney J.A. would have allowed the appeal and issued a declaration pursuant to s. 52(1) that s. 32 of the Unemployment Insurance Act, 1971, was of no force or effect by reason of its inconsistency with the Charter . He could see no compelling reason to order a stay of execution of that judgment to permit remedial legislative action.
Issues
By order dated March 14, 1991 the following constitutional questions were stated by the Chief Justice:
1.Is the Federal Court Trial Division, having found that s. 32 of the Unemployment Insurance Act, 1971(subsequently s. 20 of the Unemployment Insurance Act, R.S.C., 1985, c. U‑1) creates unequal benefit contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms , by making a distinction between the benefits available to natural and adoptive parents, required by s. 52(1) of the Constitution Act, 1982 to declare that s. 32 is of no force and effect?
2.Does s. 24(1) of the Charter confer 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 (subsequently s. 20 ) of that Act?
Analysis
I find it appropriate at the outset to register the Court's dissatisfaction with the state in which this case came to us. Despite the fact that Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, was handed down in between the trial and appeal of this matter, the appellants chose to concede a s. 15 violation and to appeal only on the issue of remedy. This precludes this Court from examining the s. 15 issue on its merits, whatever doubts might or might not exist about the finding below. Further, the appellants' choice not to attempt a justification under s. 1 at trial deprives the Court of access to the kind of evidence that a s. 1 analysis would have brought to light.
All of the above essentially leaves the Court in a factual vacuum with respect to the nature and extent of the violation, and certainly with respect to the legislative objective embodied in the impugned provision. This puts the Court in a difficult position in attempting to determine what remedy is appropriate in the present context.
I.Reading in as a Remedial Option under Section 52
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. 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". 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. 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.
A.The Doctrine of Severance
The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or "reading down". Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.
Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.
Furthermore, as Rogerson has pointed out (in "The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness" in Sharpe, ed., Charter Litigation (1987) at pp. 250-52), it is logical to expect that severance would be a more prominent technique under the Charter than it has been in division of powers cases. In division of powers cases the question of constitutional validity often turns on an overall examination of the pith and substance of the legislation rather than on an examination of the effects of particular portions of the legislation on individual rights. Where a statute violates the division of powers, it tends to do so as a whole. This is not so of violations of the Charter where the offending portion tends to be more limited.
Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realized. However, there are some cases in which to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are. This concern is reflected in the classic statement of the test for severance in Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503, at p. 518:
The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.
This test recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have passed the constitutionally sound part of the scheme without the unsound part. In some cases this assumption will not be a safe one. In those cases it will be necessary to go further and declare inoperative portions of the legislation which are not themselves unsound.
Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.
B.Reading In as akin to Severance
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. 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 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) Ev