What is the legal test for applying s. 52 of the Criminal Code of Canada?
British Columbia, Canada
The following excerpt is from R. v. Boutilier, 2015 BCSC 901 (CanLII):
The leading authority on the application of s. 52 is Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679. Schachter established a framework to assist courts in choosing remedial options under s. 52. Once s. 52 is engaged, three questions must be answered: 1) What is the extent of the inconsistency? 2) Can the inconsistency be dealt with alone, by way of severance or reading in, or are the other parts of the legislation inextricably linked to it? 3) Should the declaration of invalidity be temporarily suspended?
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