MOKGORO J
[74]
Canadian courts have similarly recognised that, unless carefully limited, severance will
constitute an intrusion upon what is properly a legislative function. 111 In Schachter v Canada, the
Court analysed severance and “reading in” as twin remedies, and cautioned that because both are
drastic and intrusive devices, they should not be lightly indulged in by courts of law, but only in
the “clearest of cases”, when each of the following criteria is met:
[75]
A.
the legislative objective is obvious . . . and severance or reading in would further that
objective, or constitute a lesser interference with that objective than would striking
down;
B.
the choice of means used by the Legislature to further that objective is not so
unequivocal that severance/ reading in would constitute an unacceptable intrusion into
the legislative domain; and,
C.
severance or reading in would not involve an intrusion into legislative budgetary decisions so
substantial as to change the nature of the legislative scheme in question.112
Doubtless it would be grammatically feasible to sever the entire definition of indecent or
obscene from the Act: as a self-standing clause within section 1, the definition may be excised
without doing grammatical violence to the balance of the statute. However, I doubt very much that
the definition is structurally severable. The definition establishes the functional parameters of
the danger that, by striking individual words within a provision, a Court may invade the province of the legislature
by enforcing a rewritten statute not within the contemplation of the lawgiver).
111
See Carol Rogerson, The Judicial Search for Appropriate Remedies Under the Charter, in Sharpe
(ed.),Charter Litigation (1987) 288.
112
[1992] 10 C.R.R. (2d) 1, 26. In Edward Book & Art v The Queen, [1987] 28 C.R.R. 1, 51 the court held that
it was “not the role of this court of law to devise legislation that is constitutionally valid, or to pass on the validity
of schemes which are not directly before it, or to consider what legislation might be the most desirable.”; see also
R v Seaboyer, [1992] 6 C.R.R. (2d) 35, 66.
42
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