Framework for analyzing a federalism issue
Always keep in mind the necessity of flexible interpretation of s. 91 and s. 92
(Reference re Same-sex Marriage, Reference re Employment Insurance Act)
1 the pith and substance doctrine
First task is to find the pith and substance of law. If the pith and substance of the
law is within subject matters listed in s. 91, the power belongs to Parliament. If
the pith and substance of the law is within subject matters listed in s. 92, then the
power belongs to provincial legislature. The law enacted without authority is ultra
vires and is invalid.
The first task is to identify the matter of the law and then to assign it to one of the
classes of subjects under ss. 91 and 92. A law’s matter is its leading feature or true
character, often described as its pith and substance. There is no single test for a
law’s pith and substance. While both the purpose and effect of the law are
relevant considerations, it is often the case that the legislation’s dominant
purpose or aim is the key to constitutional validity. The analysis starts with
looking at the legislation itself in order to determine its legal effect. The analysis
is not restricted to the four corners of legislation. The court will look beyond the
direct legal effect to inquire into the social or economic purposes which the
legislation was enacted to achieve (R. v. Morgentaler).
To determine the pith and substance, two aspects of the law must be examined:
the purpose of the enacting body and the legal effect of the. To assess the purpose,
the courts may consider both intrinsic evidence, such as the legislation's
preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes
of parliamentary debates. In so doing, they must nevertheless seek to ascertain
the true purpose of the legislation, as opposed to its mere stated or apparent.
Equally, the courts may take into account the effects of the legislation (Canadian
Western Bank v. Alberta)
2. the necessarily incidental doctrine
When the federal law or provincial law was held to be within the power of the
federal parliament or provincial legislature, then the law is valid. Incidental
encroachment to the power of other will be accepted.
Three-steps analysis (General Motors of Canada Ltd. v. City National Leasing)
First, the court must determine whether the impugned provision can be viewed
as intruding on provincial power, and if so to what extent (if it does not intrude,
then the only possible issue is the validity of the act).
Second, the court must establish whether the act (or a severable part of it) is valid
(in cases under the second branch of s. 91(2) this will normally involve finding
the presence of a regulatory scheme. If the scheme is not valid, that is the end of
the inquiry.
If the scheme of regulation is declared valid, the court must then determine
whether the impugned provision is sufficiently integrated with the scheme that it
can be upheld by virtue of that relationship. This requires considering the
seriousness of the encroachment on provincial powers, in order to decide on the
proper standard for such relationship. If the provision passes this integration test,
it is intra vire parliament as an exercise of the general trade and commerce power,
If the provision is not sufficiently integrated into the scheme of regulation, it
cannot be sustained under second branch of s. 91(2).
3 the double aspect doctrine
Even when the federal parliament and provincial legislature are regulating the
same subject, there would be no problem if federal parliament and provincial
legislature is regulating a different aspect.
The court found that impugned insider trading provisions have both a securities
law and a companies law aspect and would adopt as the test for applying the
double aspect doctrine to validate both sets of legislative provisions (Multiple
access Ltd v. McCutcheon).
The double aspect doctrine will uphold both federal law and provincial law when
there are two aspects roughly equal in importance.
4 the interjurisdictional immunity doctrine
Valid provincial laws would have to be restricted in their application if they would
have the effect of impairing the status or essential powers of a federally
incorporated company. The doctrine simply denies the applicability of provincial
law to federal matters.
The doctrine is against the predominant tide in constitutional interpretation and
should be limited to pre-existing cases (Canadian Western Bank v. Alberta)
1 the supreme court limited the applicability of doctrine to pre-existing cases and
refused further expansion.
2 supreme court does not believe that the inquiry into inter-jurisdictional
doctrine is a necessary step after the pith and substance doctrine
3 supreme court would apply the doctrine to give immunity to “essential and vital
elements’ of such undertaking. Vital means essential to the existence of
something, absolute indispensable or necessity, extremely important, crucial.
4 the supreme court now requires sterilization or impairment before denying the
applicability of provincial law.
5 the paramountcy doctrine
When the federal law and provincial law applies, the federal law prevails over the
provincial law if there is a conflict. The paramountcy doctrine denies the
operability of the provincial law to the extent of the conflict with the federal law.
Two types of conflict
1 express conflict=impossibility of dual compliance
2 frustration of federal purpose