CONSTITUTIONAL LAW 08 PITH AND SUBSTANCE 1 Shigenori Matsui

INTRODUCTION 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

I ANALYTICAL FRAMEWORK (1) Pith and substance doctrine (2) Necessarily incidental doctrine (3) Double aspects doctrine

(4) Interjurisdictional immunity doctrine (5)Paramountcy doctrine

II NEED TO CONSIDER THE CONTEXT 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… 5

Contrast with R. v. Blais, [2003] 6

Why must the contexts be considered? What are the contexts to be considered? How are the contexts to be considered? 7

III PITH AND SUBASTANCE Union Colliery Company of BC v. Bryden [1899] 8

R. v. Morgentaler, [1993] 9

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

A law’s matter is its leading feature or true character, often described as its pith and substance Purpose and effect

Starts from the legislation itself Yet, the analysis is not restricted to the four corners of the legislation 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

Extrinsic materials Related legislation Evidence of mischief at which the legislation is directed Legislative history

Why the Supreme Court of Canada concluded that the pith and substance of the law was criminal law?

Canadian Western Bank v. Alberta [2007] 15

IV HOW PITH AND SUBSTANCE COULD BE FOUND? Legislative history R. v. Big M Drug Mart [1985] 16

Effect Alberta Bank Taxation Reference, [1938]

Efficacy Ward v. Canada, [2002]

Actual administration Saumur v. Quebec, [1953]

Shifting purpose doctrine?