Michael Plaxton (College of Law, University of Saskatchewan) has posted Declarations of Inconsistency, Guidance, and Canadian Statute Books on SSRN. Here is the abstract:
When a court declares that a statutory provision or scheme is unconstitutional, what has it done? It is commonly said, in both the United States and Canada, that the legislation in issue has been ‘struck down’ or ‘nullified’. This characterization suggests that declarations somehow erase or alter the text of the statute books themselves. It also lends itself to arguments that declarations advance the rule of law, by ensuring that citizens are not misled by the rules set out in legislation. The Supreme Court of Canada, however, has recently made it clear that declarations of inconsistency do not affect or alter the statute books, implying rather that they merely affect enforcement practices. This is unproblematic from a rule-of-law perspective, I argue, because the rule of law does not actually require that members of the public be able to discern their obligations by looking to the statute books. Most of the time, though by no means all, citizens can and should plan their affairs simply by relying upon their conventional moral intuitions, and not by trying to anticipate whether and when their conduct will meet with sanctions. The very fact that declarations do not affect the text of statutes, moreover, suggests that legislatures have more room to guide members of the public, free of judicial oversight, than is often appreciated.