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Handout Summary of Interp Docrines

Handout Summary of Interp Docrines

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Published by Bhaskar Mondal

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Published by: Bhaskar Mondal on Jul 04, 2012
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INTERPRETATION DOCTRINES AND JUDICIAL TECHNIQUES SUMMARY1.The “Living Tree” approach versus Strict Construction
Constitutions should be given a large and liberal interpretation in order that theyremain flexible and responsive to social and historical change.
(Edwards)
Caveat: In the
 Edwards
case itself, the issue was not resolved by applying the“living tree” approach, but as a narrow and technical question of statutoryinterpretation.
2.Constitutional analysis in division of powers cases should proceed by:
(a)determining the
“matter”
of the challenged government action;(b)determining the scope of relevant classes of subjects under ss. 91, 92 whichwould favour constitutionality (i.e., start by presuming constitutionality);(c)determining which competing list of classes of subjects the matter fits into.See:
 Parsons
Caveat: This can seem very rigid and mechanical. Often the first two questionscollapse into each other. It is important to realize, however, that the three questionsare analytically distinct. And, that much judicial judgment goes into each of thestages.
3.Mutual Modification
With regard to the classes of subjects within ss. 91, 92, no one class should beregarded apart from the other classes in the two lists. The scope of each power isnot the widest scope possible taken by itself but rather is modified by the other heads of power.See:
 Parsons
Comment: This rule of statutory interpretation is typical of Ryder’s classical paradigm as it discourages overlap. It applies to the inquiry under steps (b) and (c)above.
4.Pith and Substance/Incidental Effects
Just about every law will have both a provincial aspect and a federal aspect if youthink hard enough about it. The pith and substance doctrine is about choosing themost important or dominant aspect.
 Incidental 
effects on matters coming within theclasses of subjects in the competing list are permissible. Thus when otherwise valid
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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
intra vires
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:
General Motors
6.Colourability
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:
 Morgentaler 
for this discussion, but ultimately not the conclusion of colourability.
7.Interjurisdictional Immunity
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.
 Irwin Toy
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
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3 of 4counteract the affects of federal legislation on such matters or undertakings byenacting paramount legislation (while the federal Parliament is able to counteractthe affects of provincial laws on federal matters and undertakings by enacting paramount legislation).
8.Severability/Reading Down/Presumption of Constitutionality
Where a statute is susceptible of two interpretations, one of which would support afinding of unconstitutionality, the interpretation favouring constitutional validityshould be applied. This flows from the presumption of constitutionality whichoperates in federalism cases.Where a distinct part of a statute encroaches upon the jurisdiction of the other order of government, the courts may sever that part and strike it down, provided theremainder of the statute can operate effectively without it.
9.Concurrency/Double Aspect/Paramountcy
Certain constitutional powers are explicitly concurrent. For example, s. 95 of the
Constitution Act, 1867 
gives Parliament and the provincial legislatures concurrent powers in relation to agriculture and immigration.However, because some subject matters have double aspects, it is possible for thereto be fields of functional concurrency (i.e. fields in which both orders of government have jurisdiction by virtue of the overlapping of distinct federal and provincial powers). Thus, in limited instances, a legislative area will have anaspect/purpose which falls squarely within s.92 and another aspect/purpose thatfalls squarely within s.91, and both aspects/purposes will be of roughly equivalentimportance. Thus you have the possibility of two different pith and substancedeterminations and of two valid legislative schemes which operate in the same“field” but do so for different purposes. The provincial law will have a provincialaspect and the federal law will have a federal aspect. This is the double aspectdoctrine.For example, Parliament and provincial legislatures have been held to haveconcurrent powers to regulate within a province the trading of securities in federallyincorporated companies, Parliament by virtue of its jurisdiction over federallyincorporated companies and provincial legislatures by virtue of their jurisdictionover property and civil rights in the province. This is the double aspect situationdetailed in
 Multiple Access
.So long as there is no conflict, the two laws can exist concurrently. If there isconflict, however, the doctrine of paramountcy gives precedence to the federal law.
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