Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 106[263] In Schachter, Lamer C.J. set out the test for whether severance or readingin, as opposed to striking down, is the appropriate remedy. The firstconsideration is remedial precision. Reading in will not be appropriate if “thequestion of how the statute ought to be extended in order to comply with theConstitution cannot be answered with a sufficient degree of precision on thebasis of constitutional analysis”: Schachter, at p. 705. This point was made inthe context of extending benefits of legislation to groups that had beenimproperly excluded from the legislative scheme, in violation of the equalityprovisions of s. 15. A similar consideration would arise in this case if the courtwere unable to read in words of limitation that would be sufficiently precise toavoid infringing the void for vagueness principle of fundamental justice.[264] The second consideration is interference with the legislative objective. TheSupreme Court explained in Schachter, at p. 707: “The degree to which aparticular remedy intrudes into the legislative sphere can only be determined bygiving careful attention to the objective embodied in the legislation in question.”[265] The third and fourth considerations are of more importance in a severancecase than a reading-in case and require the court to consider the impact ofseverance on the remainder of the legislation: Schachter, at pp. 710-713.[266] Overall, where a court is considering reading in as a remedy, it must bearin mind the limits of its role as explained in the following passage by Professor