JUDICIAL REVIEW ON FEDERAL GROUNDS

2 steps are involved to find out whether the challenged law is within the authority of the enacting body or not?

i. Characterization of challenged law?

ii. Interpretation of the power distributing provisions of the constitution?

CHARACTERIZATIONOF LAW

1. MATTER (Pith and Substance doctrine)

a) Pith and Substance, true meaning, subjext matter, content, dominant and most important characterstics of challenged law,

b) Determines to which head of power matter should be allocated.

c) Laws having both federal and provincial features, court in such cases indentifies one feature as most dominant feature as a pith and substance and whereas the other feature is merely incidental and ancilliary.

Bank of Toronto V. Lambe –

The law is mainly in relation to ……………………and is merely or incidentally effecting ……………………

Many laws have been upheld despite their incidental impact on matters outside the enacting body’s jurisdiction.

2. SINGLING OUT

The law created by one level of government for specifically effecting the subject matter of other level of the government.

Basically singling out is not the criteria to determine the validity of law, but court considers it in determining the validity of the law. The basic rule to determine the pith and substance of the law. and it is not effected by the singling out. Number of cases have been upheld in which provincial laws singled out a person with in federal jurisdiction, because the pith and substance was with in provincial power.

If the provincial law of general application, even though is valid in its application, but is effecting the vital aspect of federal undertaking or impairing their status, then the provincial law will not apply.

3. DOUBLE ASPECT

The subjects whose one aspect or one purpose falls with in Section 91 (Federal) and other aspect or purpose falls in section 92 (Provincial) are covered under double aspect doctorine. These are the kinds of matter having both federal and provincial features and competent to both level of governments. e.g. Conduct on roads ( both level of governments are competent to enact law 92(13) and 91(27) Criminal).

Double aspect doctrine applies:

a) When the both features federal and provincial are relatively equally important and not opposite to each other.

b) Double aspect is a course of Judicial Restraint.

Double aspect doctrine may result in conflicting laws, which are ultimately solved by the doctrine of Paramountcy.

4. PURPOSE

Purpose is the object, intention or full total meaning of the law. In order to find out the purpose one needs to look at the preamble, purpose clause, parliamentary debates, legislative history, previous law and its defects, government policy papers, reports of law reform commission and royal commission.

The court looks beyond the direct effect of the law, to find the ultimate purpose, which the enacted law is supposed to achieve.

e.g. R V. Big M Drug Mart case enacted Federal Lord’s Day Act under criminal law – purpose Christian Sabbath. – (Court declared the Act invalid on breach of charter rights.) But if the purpose would have been to provide a uniform day of rest, then it would be out of federal competence, and would have fallen under provincial competence. Same thing happened in R V. Edwards Books and Art case and court declared valid under the Ontario provincial 92(13)heads of power.

5. EFFECT

In order to determine the pith and substance in actual sense, court will also look at effect of the statute that how is it changing the rights and liabilities of those affected by it.

Texada mines V. A-G, BC: Province BC imposed heavy tax on iron ore and contended thatlaw in relation to taxation, but the court examined its effect and found that it was to discourage the interprovincial trade, which was the matter of federal competence. Hence law declared invalid.

6. EFFICACY (Effectiveness)

All that the court needs to see, in characterizing the law is the purpose and effect of the statute and not the efficacy. Because efficacy is the matter for the parliament and not the court. Hence efficacy should play no role in classifying the law for constitutional purpose.

7. COLOURABILITY

This doctrine is used when statute shows the features of the matter with in jurisdiction , but in reality it has the substance of the matter outside jurisdiction. This doctrine means that the legislative body cannot do indirectly, what it cannot do directly.

8. CRITERIA OF CHOICE

While making a choice as to which level of government can enact the law on the subject matter, the court will be guided by various criteria, which includes understanding of legislative scheme, statutory policies, judicial decision of similar kind, policy choice, etc. The choice must be guided by the concept of federalism, that whether this kind of law should be enacted at the federal or the provincial level.

9. PRESUMPTION OF CONSTITUTIONALITY

It is a course of judicial restraint, because the court will presume that law is valid and within the competence of the enacting authority and burden will lie upon the opposite authority to prove the invalidity.

10. SEVERANCE (Parts of law)

The general rule is that the statute is one law and will stand or fall as a whole, when its validity is challenged. In cases where part if the statute is invalid while remaining is valid, there are two possibilities.

a) Where the two parts can exist independent of each other, they are two laws and have different matters, so severance is appropriate means invalid part can be struck down, while other part can stay valid.

b) Where the two parts are so bound with each other that they cannot exist independently and are so interdependent, then severance is not appropriate.

The Privy Council and Supreme Court of Canada have been unwilling to use severance and mostly statutes have been held to fall or stand in their entirety.

The presumption against severance is that statute contains single legislative scheme of which all parts are interdependent. This is the presumption against severance. The exception to this presumption is severance clause. Which means if any part of the statute is held unconstitutional then the rest will continue to be effective.

Severance is far common in charter cases rather than federalism cases.

11. READING DOWN

A statute is interpreted in the way as being with in the power of enacting legislative body. It applies only when the language of the statute has both limited (Valid) as well as extended (invalid) meaning , then the limited meaning is selected. Reading down depends upon the presumption of constitutionality. Under this rule the validity is achieved solely through the interpretation of the language of the statute.

12. INTERJURISDICTIONAL IMMUNITY (applies when provincial law effects the core or vital part of federal )

It’s a technique to limit the application of law to the matters with in jurisdiction and inapplicable to the matters outside the jurisdiction. A law which tends to apply to matter outside the jurisdiction of the enacting body can be attacked in three ways:

a) The validity of law (determined through pith and substance)

b) The operability of law (determined through paramountcy)

c) The applicability of Law (determined through reading down or interjurisdictional immunity) under this rule, the law is validly enacted by the enacting legislative body and even valid in most of its application, but is interpreted to be inapplicable on any matter outside the jurisdiction.

i) Federally incorporated companies: Where the provincial law though valid in most of its applications impairs the status or essential powers of federally incorporated company, the law is read down to exempt those companies.

ii) Federally regulated undertakings: Federal undertakings such as interprovincial or international trasportaion and communication are immuned from valid provincial laws having the effect of sterilizing the undertaking. (e.g. telephone company, international bus line, interprovincial pipe line)

Position before 1966 only those provincial laws were held inapplicable to federal undertaking, which had the effect of sterilizing or paralyzing or impairing the federal activity.

Position in 1966 (Bell Case) SC abandoned the language of sterilization and held that the federal undertaking were immuned from even those provincial laws which effected the vital parts of the management and operation of the federal undertakings.(Vital part test replaced sterilization test).

Position in 1989, after reaffirming the vital part test in bell 1988, the SC of Canada in Irwin Toy case added an important qualification to vital part test. SC held that vital part test applied only to provincial laws that applied directly to federal undertaking. Whereas

in caseof provincial having indirect effect on such undertakings, vital part test would apply only if it impairs the operation of the federal undertaking.

Present Situation, In the case Canadian Western Bank V. Alberta (2007) In this case alberta insurance act required the federal banks to comply with consumer protection laws and licensing requirement of the province. Bank argued interjurisdictional immunity by contending that promotion of insurance constitutes its vital part.

SC held that promotion of insurance is far away from the core of banking to qualify as a vital part. Because vital part of the federal undertaking should be limited to only those function, which are essential, indispensable and necessary to the federal character of undertaking. Hence Alberta Insurance Act could validly apply to federal banks in promoting insurance.

The present situation can be concluded as “interjurisdictional immunity would apply only if a core competence of parliament or vital or essential part of undertaking would be impaired by provincial law. If the core competence or vital part is merely (just) effected by provincial law, no immunity applies.

iii) Provincial Subjects

The doctrine of interjurisdictional immunity operate both ways and should be reciprocal, it means that provincial subjects should also be equally protected from interference from federal laws.

INTERPRETATION OF CONSTITUTION

1. RELEVANCE OF INTERPRETATION

Once the pith and substance of challenged law has been identified, the second stage is to assign the matter to one of the classes of subjects, which involves the interpretation of the power distributing provisions of constitution (Sec 91, 92).

2. EXCLUSIVENESS (List of 91 92 exclusive)

Each list is exclusive to either parliament or legislature, but if the language appears overlapping or duplicating, then one subject should be narrowly interpreted, so as to exclude the other subject.

3. ANCILLARY POWER (power to act beyond the competence of enacting body)

It is nowhere included in the constitution of Canada as such, moreover it is not needed because pith and substance doctrine already enables a law in relation to one subject matter with in the competence of enacting body to have incidental effect or ancillary effect on the matter outside the competence of enacting body.

In case General Motors V. City National Leasing SC held that the court must measure the degree of encroachment of law on other government’s power and also determine the necessity of challenged provision. If the encroachment is minor, rational connection test is appropriate. But if the encroachment is major, then stricter test (truly necessary or essential test) is appropriate.

4. CONCURRENCY (both level of government can enact laws on same subject)

In Canada exclusivity is the rule and concurrency is the exception. 3 provisions of concurrency expressly mentioned in the constitution are:

a) 92 A (2) Export of natural resources (concurrent with trade and commerce power)

b) 94 A - Old age pensions and benefits

c) 95 – Immigration and Agriculture

One of the causes of concurrency in Canada is double aspect doctrine and the other cause is pith and substance doctrine. The conflicting situation arising due to concurrency is solved through paramountcy.

5. EXHAUSTIVENESS

Distribution of power is exhaustive between federal parliament and provincial legislature. The makers did make provision for new kind of laws, which could not be forseen by them. E.g. section 92(16) generally all matters of local and private nature in province and POGG is the residuary power of federal parliament. The consequence of exhaustiveness is that, every law is competent to one level of the government or the other.

6. PROGRESSIVE INTERPRETATION (Change in interpretation according to time)

Since confederation, Canada has changed a lot, while constitution did not. But doctrine of progressive interpretation is one of the means by which constitution act 1867 has been able to adapt itself to changes in Canadian society. The doctrine has been rejected by scholars, who believe in originalism, but SC has always viewed that it is never bound by frozen concepts of orignalism rather has said that “constitution is a living tree, which by way of progressive interpretation accommodates and addresses the realities of modern life”. This is the reason why same-sex marriage has been legalized in Canada.

7. UNWRITTEN CONSTITUTIONAL PRINCIPLES

There are some principles, which are not to be found anywhere in the written constitution, but have been developed by judges are known as unwritten constitutional principles. The constitution of Canada is based on set of those principles. e.g. democracy, federalism, constitutionalism, rule of law, independence of judiciary, protection of civil liberties, parliamentary privileges, etc. are examples of those principles