Canadian Federalism - Current Approach For Determining The Constitutionality of Legislation - Canadian Western Bank Principles

Canadian Western Bank Principles

The current approach to determining the constitutionality of legislation is founded in Canadian Western Bank v. Alberta, where the Supreme Court of Canada summarized the following principles:

1. the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to determine the nature of the overlap, if any, between them.
2. the applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity.
3. only if both the provincial law and the federal law have been found to be valid pieces of legislation, and only if the provincial law is found to be applicable to the federal matter in question, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy.

The burden of proof falls on the party that is alleging paramountcy. As Binnie and LeBel JJ. noted:

To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either

• that it is impossible to comply with both laws or
• that to apply the provincial law would frustrate the purpose of the federal law.

Where the constitutionality of legislation is being questioned in relation to the division of powers under the Constitution Act, 1867, an analysis of its pith and substance must be undertaken. This analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates.

• If its pith and substance can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires.
• If, however, it can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers.
• The corollary to this 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, the dominant purpose of the legislation is still decisive.
• Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law.