Pith and Substance - Assignment

Assignment

Once the law has been characterized it must be assigned to one of the two heads of power. The matters in the exclusive domain of the federal government are enumerated under section 91 of the Constitution Act, 1867 and matters in the exclusive domain of the provincial government are enumerated under section 92. Whether the characterization of a law fits within one of the enumerated matters depends on the breadth given by the court to each matter.

A law found to be valid under the pith and substance analysis of the law may also have some incidental effects upon matters outside of the government's jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. The modern approach to Canadian Constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government's jurisdiction.

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