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Report No. 60

13.5. Position in Canada.-

In Canada, a similar principle is recognised. The doctrine was stated as follows:1

"Thus sort of question arises not infrequently and is often raised (as in the present instance) by asking whether the legislation is intra vires 'either in whole or in part,' but this does not mean that when Part II is declared invalid, what remains of the "Act is to be examined bit by bit in order to determine whether the Legislature would be acting within its powers if it passed what remains. The real question is whether what remains in is so inextricably bound up with the part declared invalid that what remains cannot independently survive, or, as it has sometimes been put, whether on a fair review of the whole matter, it can be assumed that the Legislature would have enacted what survives without enacting the part that is ultra vires at all."

1. Reference re-Alberta Bill of Rights, 1947 SC 503 (PC).

General Clauses Act, 1897 Back

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