2 of 4 provincial legislation (i.e. according to the “pith and substance” doctrine)incidentally affects matters falling within federal jurisdiction, the courts can acceptsuch effects as a necessary incident of the legislation and find the whole legislation
the enacting government.
5.Necessarily Incidental: The Ancillary Power
In some cases, the Court will require some degree of a logical connection, betweenthe effects of an otherwise validly enacted law on matters within the other level of government’s jurisdiction, and that law’s purposes. The stringency of the testvaries from case to case. It is by no means applied in every case.See:
If a law on its face appears to be constitutional, it may nevertheless beunconstitutional if it is, in purpose and effect, addressed to a matter that falls withinthe classes of subjects assigned to the other level of government.See:
for this discussion, but ultimately not the conclusion of colourability.
Where a law of general application which the provincial legislature isconstitutionally competent to enact affects a matter within federal jurisdiction in acertain manner, the affected matter will be immune to the law’s operation. The provincial law will be read down so as to not be applicable to that matter. IJI protects the core of certain but not all federal heads of power.See:
Bell Canada #1 and #2, Irwin Toy
Canadian Western Bank
Comment: The cases have advocated that the rule be applied to only limited areas.It is best to think of it as an exception. Some areas in which it has been appliedwith approval are: federal undertakings, federally incorporated companies, Indians,Indian Lands, and armed forces bases.
has a good discussion of the waythe rule operates with regard to federal undertakings, in particular, and thedistinction between indirect impairment and a direct effect on a vital or essentialaspect. It is essential that you read
Canadian Western Bank
for the most recentunderstanding of this doctrine.Courts have refused to apply the “interjurisdictional immunity” principle to “readdown” federal legislation that affects provincially regulated matters or undertakings. This is so even though provincial legislatures are unable to