CONSTITUTIONAL LAW
09 NECESSARILY INCIDENTAL
AND DOUBLE ASPECT
DOCTRINE
1
Shigenori Matsui
1
INTRODUCTION


If the law was found to be within the power of
the federal parliament, the incidental effect on
the provincial power will be accepted. The
same can be said as to the power of provincial
legislatures.
Necessarily incidental doctrine (ancillary
doctrine)

2


Even when the federal parliament and
provincial legislature are regulating the same
subject, federal parliament and provincial
legislature can regulate different aspects of
the same subject.
Double aspect doctrine
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I NECESSARILY INCIDENTAL


When the pith and substance of the law was
found to be within the power of federal
parliament under s. 91, then incidental effect
will be accepted.
When the statute as a whole is found to be
within the power of the federal parliament, then
provision, which might intrude upon the power
of provincial legislature can be accepted if it is
necessarily incidental.
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4

General Motors of Canada Ltd v. City of National
Leasing [1989]
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
The court must first decide what test of fit is
appropriate. The court considers the degree
of intrusion into the provincial power.
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
Three-steps analysis
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(1) whether the impugned provision intrudes on
provincial power
(2)whether the act as a whole is valid, and
(3)whether the impugned provision is sufficiently
integrated with the scheme
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
Three factors to be considered in order to
assess the seriousness of the intrusion:
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(1)remedial legislation
(2)limited scope of the legislation,
(3)power of the federal parliament to create rights
of civil action.
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
What was the outcome of these principles in
this case?
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
The same doctrine will allow provincial
legislature to exercise necessarily incident
power.

Global Securities Corp v. British Columbia [2000]
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
Reference re Goods and Services Tax [1992]
 The GST Act has significant effects upon
matters within provincial jurisdiction, but it is
impossible to say that the purpose of the Act
is to produce these effects. The purpose of
the Act is to raise revenue for the federal
government, and the effects produced by the
scheme on matters within provincial
jurisdiction are incidental to this purpose.
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11

The test is clearly a strict one. However, in
General Motors of Canada Ltd. v. City National
Leasing, supra, at p. 669, Dickson C.J. indicated
that a degree of judicial moderation was
appropriate, for the reason that a federal system
requires both levels of government to be
accorded a degree of latitude in the pursuit of
valid objectives.

The first step is to decide whether the impugned
scheme in fact touches matters within provincial
jurisdiction. If it does not, the inquiry ends, but if it
does, then it is necessary to ask whether the
legislation in question is enacted pursuant to
some valid federal head of power. If the
legislation is not enacted pursuant to a valid
purpose, then of course it must be struck down.

However, if it is enacted pursuant to a valid federal
purpose, then it is necessary to determine whether the
impugned provisions are "sufficiently integrated with the
scheme that [they] can be upheld by virtue of that
relationship." If the impugned provisions are not sufficiently
integrated into the scheme as a whole, then they cannot be
sustained as a valid exercise of federal power. However, if
the test of integration is passed, then the provisions are
supportable as an exercise of federal jurisdiction
notwithstanding that they affect matters falling within the
jurisdiction of the provinces.

The framework

“The fundamental corollary to this approach to
constitutional analysis is that legislation whose
pith and substance falls within the jurisdiction of
the legislature that enacted it may, at least to a
certain extent, affect matters beyond the
legislature’s jurisdiction without necessarily being
unconstitutional. At this stage of the analysis of
constitutionality, the “dominant purpose” of the
legislation is still decisive.”
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
Its secondary objectives and effects have no impact
on its constitutionality: “merely incidental effects will
not disturb the constitutionality of an otherwise intra
vires law. By “incidental” is meant effects that may
be of significant practical importance but are
collateral and secondary to the mandate of the
enacting legislature.. Such incidental intrusions into
matters subject to the other level of government’s
authority are proper and to be expected…”

Canadian Western Bank v. Alberta
16

Should the court inquire whether the
incidental effect will be accepted when it
decides that the pith and substance of the
law is within the power of the federal
parliament?
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Compare with U.S. Constitution
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Article 1, section 8, clause 18
“To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer thereof”
McCulloch v. Maryland (1819)
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
To what extent the court should apply
rigorous test to judge the fitness?
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II DOUBLE ASPECT
DOCTRINE
Even when the federal Parliament and
provincial legislature is regulating the same
subject, the federal parliament and provincial
legislature can regulate different aspects of the
same subject.
 Double aspect doctrine

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
Hodge v. The Queen [1883]
 “subjects which in one aspect and for one
purpose fall within s. 92, may in another
aspect and for another purpose fall within s.
91”
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
Multiple Access Ltd. v. McCutcheon, [1982]
 “Viewed in isolation it can no doubt be argued
that their matter is the trading in securities.
But in context, however, they are company
law.”
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Law Society of British Columbia v. Mangat [2001]

Both the federal and provincial features of the challenged
provisions are of equivalent importance, and so neither
should be ignored in the analysis of the division of powers.
Parliament must be allowed to determine who may appear
before tribunals it has created, and the provinces must be
allowed to regulate the practice of law as they have always
done. Having determined that there are both federal and
provincial constitutional aspects to the subject matter in ss.
30 and 69(1) of the Immigration Act, the sections are
validly enacted by Parliament under the double aspect
doctrine.
23

O’Grady v. Sparling[1960]
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
The current framework
 Also, some matters are by their very nature
impossible to categorize under a single head
of power: they may have both provincial and
federal aspects. Thus the fact that a matter
may for one purpose and in one aspect fall
within federal jurisdiction does not mean that
it cannot, for another purpose and in another
aspect, fall within provincial competence…
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
The double aspect doctrine, as it is known, which
applies in the course of a pith and substance
analysis, ensures that the policies of the elected
legislators of both levels of government are
respected. …The double aspect doctrine recognizes
that both Parliament and the provincial legislatures
can adopt valid legislation on a single subject
depending on the perspective from which the
legislation is considered, that is, depending on the
various “aspects” of the “matter” in question.

Canadian Western Bank v. Alberta [2007]
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
In what circumstances, the court is willing to
apply the double aspect doctrine?

The court has been unwilling to apply the
double aspect doctrine in regulation of trade
and commerce or labor relations. Why?
27

The double aspect doctrine will allow
concurrent regulation by the federal
Parliament and provincial legislatures. Yet,
the paramountcy doctrine will mandate the
dominance of federal law. Is the expanded
use of the double aspect doctrine desirable?