be warranted even where striking down has been deemed the most appropriate option on the basis of one of the above criteria if:
A. striking down the legislation without enacting something in its place would pose a danger to the public; B. striking down the legislation without enacting something in its place would threaten the rule of law; or, C. the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefiting the individual whose rights have been violated. I should emphasize before I move on that the above propositions are intended as guidelines to assist courts in determining what action under s. 52 is most appropriate in a given case, not as hard and fast rules to be applied regardless of factual context.’
Professor Hogg[1] points out that these ‘guidelines’ were not referred to in and do not accommodate five subsequent decisions of the Supreme Court of Canada in which temporary validity was given to certain laws to enable the legislature to redraft them and in one case[2] to allow for consultation with Aboriginal people before a new law was drafted.
The Ontario Court of Appeal in Halpern applied the ‘guidelines’ very strictly, without referring to Lamer CJC’s statement that they
- ↑ Op cit at pp 37–8 to 37–9 (fn38).
- ↑ Corbiere v Canada [1999] 2 SCR 203.
