What is the test for severance under the doctrine of severance?

British Columbia, Canada


The following excerpt is from R. v. Smith, 2012 BCSC 544 (CanLII):

Bearing in mind the respective constitutional positions of parliament and the courts, these excerpts from Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at paras. 26 and 31 respectively, are apt: 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 ... ... 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. Breach of the Principles of Fundamental Justice

Other Questions


Does the "Golden Years" doctrine apply to the application of the Golden Years doctrine? (British Columbia, Canada)
How have the courts sever the issues of liability and quantum in a motor vehicle accident case? (British Columbia, Canada)
If the option of paying the Single Call Fee was severed from the Bylaw, would entering into a 911 Emergency Calling Service Agreement be unenforceable or mandatory? (British Columbia, Canada)
Does the doctrine of paramountcy apply in cases of operational conflict? (British Columbia, Canada)
In what circumstances will the doctrine of non est factum be applied in real estate contracts where the contract is not binding? (British Columbia, Canada)
What is the test for severance of an issue? (British Columbia, Canada)
What is the test for maintaining a marriage-like relationship between a husband and wife who have lived apart for several years? (British Columbia, Canada)
What is the test for the doctrine of estoppel in the context of s. 27(1)(f) of the BC Insurance Act? (British Columbia, Canada)
What is the test for severance of liability under the Health and Social Care Act? (British Columbia, Canada)
Does a collision between 2003 and 2010 result in more severe soft tissue injuries? (British Columbia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.