1 of 4 INTERPRETATION DOCTRINES AND JUDICIAL TECHNIQUES SUMMARY

1.

The “Living Tree” approach versus Strict Construction Constitutions should be given a large and liberal interpretation in order that they remain 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 statutory interpretation.

2.

Constitutional analysis in division of powers cases should proceed by: (a) (b) (c) determining the “matter” of the challenged government action; determining the scope of relevant classes of subjects under ss. 91, 92 which would favour constitutionality (i.e., start by presuming constitutionality); 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 questions collapse into each other. It is important to realize, however, that the three questions are analytically distinct. And, that much judicial judgment goes into each of the stages. 3. Mutual Modification With regard to the classes of subjects within ss. 91, 92, no one class should be regarded apart from the other classes in the two lists. The scope of each power is not 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 you think hard enough about it. The pith and substance doctrine is about choosing the most important or dominant aspect. Incidental effects on matters coming within the classes 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 accept such 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, between the 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 test varies 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 be unconstitutional if it is, in purpose and effect, addressed to a matter that falls within the 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 is constitutionally competent to enact affects a matter within federal jurisdiction in a certain 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 applied with approval are: federal undertakings, federally incorporated companies, Indians, Indian Lands, and armed forces bases. Irwin Toy has a good discussion of the way the rule operates with regard to federal undertakings, in particular, and the distinction between indirect impairment and a direct effect on a vital or essential aspect. It is essential that you read Canadian Western Bank for the most recent understanding of this doctrine. Courts have refused to apply the “interjurisdictional immunity” principle to “read down” 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 4 counteract the affects of federal legislation on such matters or undertakings by enacting paramount legislation (while the federal Parliament is able to counteract the 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 a finding of unconstitutionality, the interpretation favouring constitutional validity should be applied. This flows from the presumption of constitutionality which operates 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 the remainder 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 there to 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 an aspect/purpose which falls squarely within s.92 and another aspect/purpose that falls squarely within s.91, and both aspects/purposes will be of roughly equivalent importance. Thus you have the possibility of two different pith and substance determinations and of two valid legislative schemes which operate in the same “field” but do so for different purposes. The provincial law will have a provincial aspect and the federal law will have a federal aspect. This is the double aspect doctrine. For example, Parliament and provincial legislatures have been held to have concurrent powers to regulate within a province the trading of securities in federally incorporated companies, Parliament by virtue of its jurisdiction over federally incorporated companies and provincial legislatures by virtue of their jurisdiction over property and civil rights in the province. This is the double aspect situation detailed in Multiple Access. So long as there is no conflict, the two laws can exist concurrently. If there is conflict, however, the doctrine of paramountcy gives precedence to the federal law.

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4 of 4 The doctrine of “federal paramountcy” provides that, in the event of a conflict between valid federal and provincial legislation, the federal legislation prevails. In this event, the provincial legislation remains constitutionally valid but is rendered inoperative to the extent of the inconsistency. Thus this doctrine applies only after it has been determined that both the federal and provincial legislation in question are (1) valid and (2) in conflict. The provincial law is not struck down but is simply suspended while the federal law is still in effect. There is some debate about what constitutes a conflict such that federal paramountcy will be triggered. See: Multiple Access (operational conflict); Bank of Montreal (inconsistency with parliamentary intent) and the line of cases that follow these two decisions. Pay particular attention to the resolution in Rothmans. Comment: The cases have advocated that the double aspect rule be applied cautiously. Some examples of double aspect “fields” which so far have been judicially approved of are: highways, alcoholism, drug addiction, prospectuses, and insider trading.

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