Transcript CONSTITUTIONAL LAW 1 What is the Constitution?

CONSTITUTIONAL LAW
08 PITH AND SUBSTANCE
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Shigenori Matsui
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INTRODUCTION
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Federalism issues
S. 91 and s. 92 of the Constitutional Act
How to review the constitutionality of the
statute on the federalism ground?
The need to look at the context
The need to look at the pith and substance of
the legislation
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I ANALYTICAL FRAMEWORK
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(1) Pith and substance doctrine
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(2) Necessarily incidental doctrine
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(3) Double aspects doctrine
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(4) Interjurisdictional immunity doctrine
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(5)Paramountcy doctrine
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II NEED TO CONSIDER THE
CONTEXT
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Reference re Same-Sex Marriage [2004]
 The frozen concepts reasoning runs contrary
to one of the most fundamental principles of
Canadian constitutional interpretation: that our
constitution is a living tree which, by way of
progressive interpretation, accommodates
and addresses the realities of modern life
 A large and liberal, or progressive,
interpretation…
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Contrast with R. v. Blais, [2003]
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Why must the contexts be considered?
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What are the contexts to be considered?
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How are the contexts to be considered?
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III PITH AND SUBASTANCE
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Union Colliery Company of BC v. Bryden
[1899]
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R. v. Morgentaler, [1993]
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A classification or characterization of a law
Identifying the matter of the law and then
assigning it to one of the classes of subjects
in respect to which the federal and provincial
governments have legislative authority under
s. 91 and s. 92
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A law’s matter is its leading feature or true
character, often described as its pith and
substance
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Purpose and effect
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Starts from the legislation itself
Yet, the analysis is not restricted to the four
corners of the legislation
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The social or economic purposes which the
statute was enacted to achieve
Its background and the circumstances
surrounding its enactment
The actual or predicted practical effect
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Extrinsic materials
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Related legislation
Evidence of mischief at which the legislation is
directed
Legislative history
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Why the Supreme Court of Canada
concluded that the pith and substance of the
law was criminal law?
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Canadian Western Bank v. Alberta [2007]
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IV HOW PITH AND SUBSTANCE
COULD BE FOUND?
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Legislative history
 R. v. Big M Drug Mart [1985]
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Effect
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Alberta Bank Taxation Reference, [1938]
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Efficacy
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Ward v. Canada, [2002]
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Actual administration
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Saumur v. Quebec, [1953]
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Shifting purpose doctrine?
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