Page:Fourie v Minister of Home Affairs (SCA).djvu/108

Rh reasons I have given earlier I think it important that Parliament be given a free hand to consider the matter and all the policy factors that arise without being subject to pressure of any kind flowing from the fact that one of the options to be considered by it has already been implemented by judicial decision, (without the policy implications of that option, or the other options, being evaluated).

I am of course aware of the fact that the Ontario Court of Appeal, overruling the majority in the Divisional Court of Justice, ordered that its declaration that the common law definition was invalid and its reformulation thereof was to have immediate effect. I do not think that the approach set out in that judgment should be applied here. In Canada there is, as far as I am aware, no statutory equivalent to s 172(1)(b) of our Constitution. The Canadian courts have assumed a power to give ‘temporary force and effect’ to unconstitutional laws to allow the Legislature time to pass correcting legislation. The leading case on the point is Schachter v Canada, in which Lamer CJC said: ‘Temporarily suspending the declaration of invalidity to give Parliament or the provincial Legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will