Canadian Federalism - Current Approach For Determining The Constitutionality of Legislation - Doctrines Applied By The Courts

Doctrines Applied By The Courts

In order to rationalize how far each of the jurisdictions may use its authority, certain doctrines have been devised by the courts:

• pith and substance, including the nature of any ancillary powers and the colourability of legislation,
• double aspect,
• paramountcy, and
• interjurisdictional immunity

The pith and substance doctrine is founded on the recognition that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government.

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. The double aspect doctrine, 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, by recognizing 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 (i.e., depending on the various aspects of the matter in question).

In certain circumstances, however, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed the doctrines of interjurisdictional immunity and federal paramountcy.

In Re Upper Churchill Water Rights Reversion Act, an Act of the Newfoundland legislature was held to be unconstitutional because of colourability. While its stated purpose was to cancel a long-term lease and to expropriate the power generation assets in question that were located in the province, its real purpose was to interfere with civil rights existing outside the province. As noted by McIntyre J.:

Where the pith and substance of the provincial enactment is in relation to matters which fall within the field of provincial legislative competence, incidental or consequential effects on extra-provincial rights will not render the enactment ultra vires. Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extra-provincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires. A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation.

Certain measures that would be constitutionally valid if enacted on their own will be held invalid if they are combined with other measures that invade unconstitutionally into the other sphere of jurisdiction. This is held to be overreach.

• In Reference re Assisted Human Reproduction Act, the federal use of the criminal law power was found in certain key aspects to overreach too far into the provincial hospitals power, as well as into the more familiar sphere of property and civil rights.
• In Reference re Securities Act, a proposed federal law for establishing a national securities regulator was held to overreach, as a whole, too far into the property and civil rights power, and was thus wholly unconstitutional.