2006 BCCA 59 Christie v. British Columbia

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Newbury
G. H. Copley, Q.C. and J. G. Penner		Counsel for the Appellant
D. W. Roberts, Q.C., R. Bajer and L. Nguyen		Counsel for the Respondent Dugald E. Christie
D. G. Nygard and E. McDonald		Counsel for the Attorney General of Canada
Place and Dates of Written Submissions:		Vancouver, British Columbia
January 9, 13 &16, 2006
Date of Supplementary Judgment:		February 10, 2006
Written Reasons by: The Honourable Mr. Justice Donald and The Honourable Madam Justice Newbury
Concurring Reasons by: The Honourable Madam Justice Prowse (P. 8)

Supplementary Reasons of the Honourable Mr. Justice Donald and the Honourable Madam Justice Newbury:

[1] We have now received and considered counsel's written submissions regarding the form of order in this matter. Our colleagues Madam Justice Southin and Mr. Justice Thackray have declined to participate in the settlement of the order in light of their dissent from the majority judgment.

[2] For convenience, we set out the last sentence of the penultimate paragraph of the majority’s reasons:

… I would set aside the order made below and grant Mr. Christie a declaration that to the extent that the Act purports to tax legal services related to the determination of rights and obligations by courts of law or independent administrative tribunals, it is unconstitutional as offending the principle of access to justice, one of the elements of the rule of law. [Para. 76.]

Counsel for Mr. Christie characterized this result as either severance or “reading down”. We agree that the phrase “reading down” seems to describe most accurately the result we intended (see Ruth Sullivan, Driedger on the Construction of Statutes (3^d ed., 1994), at 327-9, and McKay v. The Queen, [1965] S.C.R. 798, at 803-4), although Professor Hogg uses the term in a different way, to refer to an interpretive technique used to narrow the scope of legislation that would otherwise be invalid: see Constitutional Law of Canada (looseleaf ed.) at 15-24 to 15-25 and 37-16 to 37-16.1. We rely largely on the seminal case cited by counsel, Schachter v. Canada, [1992] 2 S.C.R. 679, and in particular on the comments of Lamer C.J.C. for the majority concerning constitutional remedies. The Chief Justice discussed severance and “reading in” in particular, noting at para. 77 that:

It should be apparent from this analysis that there is no easy formula by which a court may decide whether severance or reading in is appropriate in a given case. While respect for the role of the legislature and the purposes of the Charter are the twin guiding principles, these principles can only be fulfilled with respect to the variety of considerations set out above which require careful attention in each case.

[3] Mr. Roberts submits that the entire Social Services Tax Amendment Act (No. 2), S.B.C. 1993, c. 24 (the “Act”) should be declared unconstitutional. He advances two main arguments in support of this result. First, he notes the statement of La Forest J. (speaking for himself and L'Heureux-Dubé J.) in Schachter that the reading in and reading down of legislation should "only be employed in the clearest of cases". (Para. 104) The majority in Schachter did not take quite so narrow a view of the remedies of reading in and severance (which was discussed as analogous to reading down). Lamer C.J.C. noted with respect to severance that:

... The courts have always struck down laws only to the extent of the inconsistency using 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. [Paras. 26-7]

and with respect to reading in:

The logical parallels between reading in and severance are mirrored by their parallel purposes. Reading in is as important a tool as severance in avoiding undue intrusion into the legislative sphere. As with severance, 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. Rogerson makes this observation at p. 288:

Courts should certainly go as far as required to protect rights, but no further. Interference with legitimate legislative purposes should be minimized and laws serving such purposes should be allowed to remain operative to the extent that rights are not violated. Legislation which serves desirable social purposes may give rise to entitlements which themselves deserve some protection.

Of course, reading in will not always constitute the lesser intrusion for the same reason that severance sometimes does not. In some cases, it will not be a safe assumption that the legislature would have enacted the constitutionally permissible part of its enactment without the impermissible part. [Paras. 37-8]

The majority judgment makes it clear that in each case, respect for both the legislature and the purposes of the Charter (or, we would add in this case, the principle of access to justice) must be carefully considered.

[4] Here, of course, we are concerned with taxing legislation which, we were told, raises approximately $115 million for the Province in a year. We believe we are safe in assuming that given the Province's fiscal constraints, the Legislature would have chosen to impose the tax even with the exception imposed by our judgment, i.e., that it can be "safely assumed that the Legislature would have enacted it without the inconsistent portion", to quote from para. 31 of Schachter.

[5] The second and more concerning argument advanced by Mr. Roberts is that the proposed language of the order, which declares the Act unconstitutional to the extent it purports to tax "legal services related to the determination of rights and obligations by courts of law or independent administrative tribunals" is "not language capable of enforcing the rights and obligations of the parties". Thus, it is said, far more precise wording would be needed if the language were "intended to be used in a manner that the Attorney General of British Columbia contends, that is, as a limitation on the declaration that the Act is ultra vires." Further, it is contended that the order proposed by Mr. Copley gives rise to a "host of uncertainties for the public, the profession and the government" concerning the application of the Act. Mr. Roberts therefore urges us to abandon any attempt to save the Act in whole or in part and to declare it invalid in its entirety.

[6] No effort was made by the Law Society to intervene or to adduce evidence as to the uncertainties referred to by counsel. But although it is regrettable that our judgment has apparently created difficulties for the profession, Schachter among other cases makes it clear that the court should not involve itself in attempting to draft an order that would effectively serve as a new statutory provision or regulation on behalf of the Province. This is one of those cases in which, to quote again from Schachter, drafting more detailed rules "would be a difficult and complex endeavor that [does] not flow with precision from the requirements" of the Constitution. (Para. 55) At the same time, we are bound to respect the principle of minimal impairment and the role of the Legislature. For that reason, it would not in our view be appropriate to attempt a more detailed formulation of the intended scope of invalidity on the one hand, or to strike down the entire Act on the other.

[7] Mr. Copley has submitted that whatever form it takes, the order should now be suspended for some months. He asserts that the status quo ante that should obtain in the meantime is that the Act in its entirety should be in effect, as it was immediately prior to the decision of the Chambers judge below. Without commenting on whether it is open to us to restore the status quo at that time, we find the option of a delayed declaration of invalidity to be inappropriate, at least in the absence of an application for a stay. As Lamer C.J.C. stated in Schachter, a delayed declaration of invalidity is a serious matter in that it "allows a state of affairs which has been found to violate standards embodied in the Charter to persist for a time despite the violation." He added that reading in is “much preferable” where it is appropriate, since it immediately reconciles the legislation in question with requirements of the Charter. In contrast, a suspension intrudes much further and runs contrary to the court's choice of reading in, or as in this case, reading down, as the less intrusive remedy. (Para. 82) This applies equally, in our view, with respect to the unwritten principles of the Constitution as it does to the text of the Charter.

[8] Accordingly, we confirm that the form of order proposed by Mr. Copley in his letter of December 28, 2005 is the correct form and that it should now be prepared and filed. We make no comment on any arguments that may be made in any application for a stay or similar relief that may be brought in the future.

“The Honourable Mr. Justice Donald”

“The Honourable Madam Justice Newbury”

[9] I have read, in draft form, the supplementary reasons for judgment of Madam Justice Newbury, concurred in by Mr. Justice Donald. In the result, I agree that the form of order which reflects the reasons for judgment of the majority in this matter is that drafted on behalf of the Attorney General of British Columbia and I am prepared to endorse that order.

[10] I feel constrained to add that, in my view, the preferred form of order would have been one which included a term suspending the operation of the order for 6 months to permit the Attorney General to bring the legislation into conformity with the reasons of the majority, or to take whatever other steps he deemed appropriate to respond to our decision. A suspension of our order would also have given the Law Society more time to consult with government in order to provide guidance to the profession, and would have given lawyers more time to bring their billing practices into accord with the majority decision. In that regard, it is apparent that the interpretation and application of our decision has given rise to considerable consternation amongst members of the profession.

[11] In summary, I agree to the form of order proposed by Madam Justice Newbury and Mr. Justice Donald in order to preserve the necessary majority to enable the order to be given effect.

“The Honourable Madam Justice Prowse”