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. ii. Characterization of challenged law? Interpretation of the power distributing provisions of the constitution?

CHARACTERIZATIONOF LAW 1. MATTER (Pith and S !"tan#$ d%#t&in$' a) Pith and Substance, true eaning, sub!e"t atter, content, do inant and ost i portant characterstics of challenged law, b) #eter ines to which head of power atter should be allocated.

c) $aws having both federal and provincial features, court in such cases indentifies one feature as ost do inant feature as a pith and substance and whereas the other feature is erely incidental and ancilliary. Bank of Toronto V. Lambe %he law is ainly in relation to &&&&&&&&and is effecting &&&&&&&& erely or incidentally atters

'any laws have been upheld despite their incidental i pact on outside the enacting body(s !urisdiction. (. SINGLING OUT

%he law created by one level of govern ent for specifically effecting the sub!ect atter of other level of the govern ent. )asically singling out is not the criteria to deter ine the validity of law, but court considers it in deter ining the validity of the law. %he basic rule to deter ine the pith and substance of the law. and it is not effected by the singling out. *u ber of cases have been upheld in which provincial laws singled out a person with in federal !urisdiction, 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 underta+ing or i pairing their status, then the provincial law will not apply. ). DOU*LE ASPECT

%he sub!ects whose one aspect or one purpose falls with in Section ,./ederal) and other aspect or purpose falls in section ,2 .Provincial) are covered under d% !+$ a",$#t d%#t%&in$. %hese are the +inds of atter having both federal and provincial features and co petent to both level of govern ents. e.g. Conduct on roads . both level of govern ents are co petent to enact law ,2.-0) and ,-.21) Cri inal). #ouble aspect doctrine applies2 a) 3hen the both features federal and provincial are relatively e4ually i portant and not opposite to each other. b) #ouble aspect is a course of 5udicial 6estraint. #ouble aspect doctrine ay result in conflicting laws, which are ulti ately solved by the doctrine of Para ountcy.

-. PURPOSE Purpose is the ob!ect, intention or full total eaning of the law. In order to find out the purpose one needs to loo+ at the prea ble, purpose clause, parlia entary debates, legislative history, previous law and its defects, govern ent policy papers, reports of law refor co ission and royal co ission. %he court loo+s beyond the direct effect of the law, to find the ulti ate purpose, which the enacted law is supposed to achieve. e.g. 6 7. )ig ' #rug 'art case enacted /ederal $ord(s #ay 8ct under cri inal law 9 purpose Christian Sabbath. 9 .Court declared the 8ct invalid on breach of charter rights.) )ut if the purpose would have been to provide a unifor day of rest, then it would be out of federal co petence, and would have fallen under provincial co petence. Sa e thing happened in 6 7. :dwards )oo+s and 8rt case and court declared valid under the ;ntario provincial ,2.-0)heads of power. .. EFFECT In order to deter ine the pith and substance in actual sense, court will also loo+ 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 )C i posed heavy ta" on iron ore and contended thatlaw in relation to ta"ation, but the court e"a ined its effect and found that it was to discourage the interprovincial trade, which was the atter of federal co petence. <ence law declared invalid.

/. EFFICAC0 (E11$#ti2$n$""' 8ll that the court needs to see, in characterizing the law is the purpose and effect of the statute and not the efficacy. )ecause efficacy is the atter for the parlia ent and not the court. <ence efficacy should play no role in classifying the law for constitutional purpose. 3. COLOURA*ILIT0 %his doctrine is used when statute shows the features of the atter with in !urisdiction , but in reality it has the substance of the atter outside !urisdiction. %his doctrine eans that the legislative body cannot do indirectly, what it cannot do directly. 4. CRITERIA OF CHOICE 3hile a+ing a choice as to which level of govern ent can enact the law on the sub!ect atter, the court will be guided by various criteria, which includes understanding of legislative sche e, statutory policies, !udicial decision of si ilar +ind, policy choice, etc. %he choice ust be guided by the concept of federalis , that whether this +ind of law should be enacted at the federal or the provincial level. 5. PRESUMPTION OF CONSTITUTIONALIT0 It is a course of !udicial restraint, because the court will presu e that law is valid and within the co petence of the enacting authority and burden will lie upon the opposite authority to prove the invalidity. 16. SEVERANCE (Pa&t" %1 +a7'

%he 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 re aining is valid, there are two possibilities. a) 3here the two parts can e"ist independent of each other, they are two laws and have different atters, so severance is appropriate eans invalid part can be struc+ down, while other part can stay valid. b) 3here the two parts are so bound with each other that they cannot e"ist independently and are so interdependent, then severance is not appropriate. %he Privy Council and Supre e Court of Canada have been unwilling to use severance and ostly statutes have been held to fall or stand in their entirety.

%he presu ption against severance is that statute contains single legislative sche e of which all parts are interdependent. %his is the presu ption against severance. %he e"ception to this presu ption is severance clause. 3hich eans if any part of the statute is held unconstitutional then the rest will continue to be effective. Severance is far co 11. on in charter cases rather than federalis cases.

READING DOWN

8 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 li ited .7alid) as well as e"tended .invalid) eaning , then the li ited eaning is selected. 6eading down depends upon the presu ption of constitutionality. =nder this rule the validity is achieved solely through the interpretation of the language of the statute. -2. INTERJURISDICTIONAL IMMUNIT0 .applies when provincial law effects the core or vital part of federal ) It(s a techni4ue to li it the application of law to the atters with in !urisdiction and inapplicable to the atters outside the !urisdiction. 8 law which tends to apply to atter outside the !urisdiction of the enacting body can be attac+ed in three ways2 a) %he validity of law .deter ined through pith and substance) b) %he operability of law .deter ined through para ountcy) c) %he applicability of $aw .deter ined through reading down or inter!urisdictional i unity) under this rule, the law is validly enacted by the enacting legislative body and even valid in ost of its application, but is interpreted to be inapplicable on any atter outside the !urisdiction. i) F$d$&a++8 in#%&,%&at$d #%9,ani$": 3here the provincial law though valid in ost of its applications i pairs the status or essential powers of federally incorporated co pany, the law is read down to e"e pt those co panies. F$d$&a++8 &$; +at$d nd$&ta<in;": /ederal underta+ings such as interprovincial or international trasportaion and co unication are i uned fro valid provincial laws having the effect of sterilizing the underta+ing. .e.g. telephone co pany, international bus line, interprovincial pipe line)

ii)

Position before -,>> only those provincial laws were held inapplicable to federal underta+ing, which had the effect of sterilizing or paralyzing or i pairing the federal activity. Position in -,>> .)ell Case) SC abandoned the language of sterilization and held that the federal underta+ing were i uned fro even those provincial laws which effected the vital parts of the anage ent and operation of the federal underta+ings..7ital part test replaced sterilization test). Position in -,?,, after reaffir ing the vital part test in bell -,??, the SC of Canada in Irwin %oy case added an i portant 4ualification to vital part test. SC held that vital part test applied only to provincial laws that applied directly to federal underta+ing. 3hereas in caseof provincial having indirect effect on such underta+ings, vital part test would apply only if it i pairs the operation of the federal underta+ing. Present Situation, In the case Canadian 3estern )an+ 7. 8lberta .2@@1) In this case alberta insurance act re4uired the federal ban+s to co ply with consu er protection laws and licensing re4uire ent of the province. )an+ argued inter!urisdictional i unity by contending that pro otion of insurance constitutes its vital part. SC held that pro otion of insurance is far away fro the core of ban+ing to 4ualify as a vital part. )ecause vital part of the federal underta+ing should be li ited to only those function, which are essential, indispensable and necessary to the federal character of underta+ing. <ence 8lberta Insurance 8ct could validly apply to federal ban+s in pro oting insurance. %he present situation can be concluded as Ainter!urisdictional i unity would apply only if a core co petence of parlia ent or vital or essential part of underta+ing would be i paired by provincial law. If the core co petence or vital part is erely .!ust) effected by provincial law, no i unity applies. iii) Provincial Sub!ects %he doctrine of inter!urisdictional i unity operate both ways and should be reciprocal, it eans that provincial sub!ects should also be e4ually protected fro interference fro federal laws. INTERPRETATION OF CONSTITUTION -. 6:$:78*C: ;/ I*%:6P6:%8%I;*

;nce the pith and substance of challenged law has been identified, the second stage is to assign the atter to one of the classes of sub!ects, which involves the interpretation of the power distributing provisions of constitution .Sec ,-, ,2). 2. :BC$=SI7:*:SS .$ist of ,- ,2 e"clusive) :ach list is e"clusive to either parlia ent or legislature, but if the language appears overlapping or duplicating, then one sub!ect should be narrowly interpreted, so as to e"clude the other sub!ect. 0. 8*CI$$86C P;3:6 .power to act beyond the co petence of enacting body) It is nowhere included in the constitution of Canada as such, oreover it is not needed because pith and substance doctrine already enables a law in relation to one sub!ect atter with in the co petence of enacting body to have incidental effect or ancillary effect on the atter outside the co petence of enacting body. In case General Motors V. City ational Leasin! SC held that the court ust easure the degree of encroach ent of law on other govern ent(s power and also deter ine the necessity of challenged provision. If the encroach ent is inor, rational connection test is appropriate. )ut if the encroach ent is a!or, then stricter test .truly necessary or essential test) is appropriate. D. C;*C=66:*CC .both level of govern ent can enact laws on sa e sub!ect) In Canada e"clusivity is the rule and concurrency is the e"ception. 0 provisions of concurrency e"pressly entioned in the constitution are2 a) ,2 8 .2) :"port of natural resources .concurrent with trade and co erce power) b) ,D 8 E ;ld age pensions and benefits c) ,F 9 I igration and 8griculture

;ne of the causes of concurrency in Canada is double aspect doctrine and the other cause is pith and substance doctrine. %he conflicting situation arising due to concurrency is solved through para ountcy. F. :B<8=S%I7:*:SS #istribution of power is e"haustive between federal parlia ent and provincial legislature. %he a+ers did a+e provision for new +ind of laws,

which could not be forseen by the . :.g. section ,2.->) generally all atters of local and private nature in province and P;GG is the residuary power of federal parlia ent. %he conse4uence of e"haustiveness is that, every law is co petent to one level of the govern ent or the other. >. P6;G6:SSI7: I*%:6P6:%8%I;* .Change in interpretation according to ti e) Since confederation, Canada has changed a lot, while constitution did not. )ut doctrine of progressive interpretation is one of the eans by which constitution act -?>1 has been able to adapt itself to changes in Canadian society. %he doctrine has been re!ected by scholars, who believe in originalis , but SC has always viewed that it is never bound by frozen concepts of orignalis rather has said that Aconstitution is a living tree, which by way of progressive interpretation acco odates and addresses the realities of odern lifeH. %his is the reason why sa eEse" arriage has been legalized in Canada. 1. =*36I%%:* C;*S%I%=%I;*8$ P6I*CIP$:S %here are so e principles, which are not to be found anywhere in the written constitution, but have been developed by !udges are +nown as unwritten constitutional principles. %he constitution of Canada is based on set of those principles. e.g. de ocracy, federalis , constitutionalis , rule of law, independence of !udiciary, protection of civil liberties, parlia entary privileges, etc. are e"a ples of those principles