Canadian Constitutional Law (Fall 2025)

Pith and Substance Doctrine

Identifies the "dominant purpose" of the legislation to determine if it falls within the enacting body's constitutional authority (e.g., Murray Hall, Morgentaler).

Key case for Pith and Substance Doctrine

R v. Morgentaler

Colourability Doctrine

Applied when legislation appears to fall within jurisdiction but is, in reality, directed at matters outside it; high threshold for success.

Double Aspect Doctrine

Allows both federal and provincial laws to regulate the same matter from different constitutional perspectives, provided each law is valid under its own head of power (e.g., Hodge v. The Queen, Multiple Access Ltd.).

Incidental Effects Doctrine

Laws validly enacted within one jurisdiction may have minor, collateral effects on matters outside that jurisdiction without being invalid (Canadian Western Bank v. Alberta).

Ancillary Powers Doctrine

A provision outside a legislature's jurisdiction can be upheld if it is sufficiently integrated into a broader, valid legislative scheme (General Motors v. City National Leasing; Quebec v. Lacombe).

Living Tree Doctrine

Constitutional provisions evolve over time and are interpreted in light of current societal values (Edwards v. Canada, 1929 - "Persons Case").

Section 91 of the Constitution Act

Federal Powers

Section 92 of the Constitution Act

Provincial Powers

Double aspect allows federal and provincial laws to coexist even if they regulate the same activity differently. True or False?

True - unless operational conflict exists, then federal law prevails

Ancillary powers doctrine requires a rational and functional connection to a valid legislative scheme. True or False?

True

What are the Steps in a Pith and Substance Analysis?

1. Identify the "dominant purpose" of the law - consider purpose (intrinsic & extrinsic evidence) and effects (legal & practical).

2. Classify the law under s.91 (federal) or s.92 (provincial).

3. Determine which provisions fit within that constitutional category.

How do courts determine whether an incidental effect is acceptable?

Must be minor, collateral, and secondary to the law's dominant purpose.

Factors for Ancillary Powers

1. Pith and substance of the provision.

2. Evaluate legislation as a whole.

3. Level of intrusion into another jurisdiction (scope of heads of power, nature of provision, legislative history).

4. Rational and functional connection (purpose, filling a gap, resolving uncertainty).

Extrinsic vs Intrinsic Evidence

Intrinsic: Text of the law, Preamble, Purpose, Headings

Extrinsic: Committee Debates, [FINISH]

Section 96 Courts - Superior Courts

- Trial Courts

- Courts of Inherent jurisdiction: hear any case unless statute removes power.

- Federally appointed and federally paid judges.

- Called: Court of King's Bench (MB, AB, SK)

Section 96 Courts - Provincial Appeal Courts

- Federally appointed and paid.

- Not courts of inherent jurisdiction.

- Must have statutory authority to hear appeals (no common law right to appeal)

Provincial Courts (Inferior Courts)

- Created under s.92(14) - provinces manage "administration of justice."

- Judges provincially appointed/paid.

- No inherent jurisdiction - power derives from statute.

- May hear federal matters if authorized.

- Generally hear summary convictions and most criminal cases.

- Lower than provincial superior courts; may be reviewed by superior courts.

Federal Court Systems

- Created under s.101 for federal law administration.

- Includes Federal Court (trial) and Federal Court of Appeal.

- Jurisdiction limited to federal statutes.

- Judges federally appointed/paid; no inherent jurisdiction.

- Appeals go to Federal Court of Appeal.

Supreme Court of Canada (SCC)

- Created by federal statute (s.101). Patriated in 1982.

- Can hear appeals from provincial/federal appellate courts.

- No common law right of appeal - statutory basis or leave required.

- Leave usually discretionary; submit application → if granted, submit full materials.

Section 52(1) of the Constitution Act, 1982

- Establishes constitutional supremacy.

- Any inconsistent law is invalid and unenforceable to the extent of inconsistency.

Four Remedies in Division of Powers Cases

1. Declaration of invalidity

2. Severance

3. Reading down

4. Reading in

What is the original confederating document for Canada?

Constitution Act, 1867 (formerly British North America Act)

Constitution Act, 1982

- Enacted by British Parliament.

- Incorporates unwritten constitutional principles (federalism, constitutionalism, rule of law, democracy, minority rights, judicial independence).

- Principles guide interpretation; not directly enforceable unless incorporated into statute.

Three Branches of Government

Branches of the State

1. Executive: Head of state represented by Governor General/Lieutenant Governors; enforces law; government directs action; federal Cabinet makes most decisions

2. Legislative: Parliament (House + Senate) and provincial legislatures; make/unmake laws subject to Constitution

3. Judicial: Interprets and applies law.

Purposive Interpretation Approach

Interpretation begins with identifying the underlying purpose of the Constitution and the specific provision, then interpreting the language to advance that purpose (common in Charter cases)

Three Types of Textual Meaning

1. Ordinary language - general audience (default).

2. Technical meaning - specialized contexts.

3. Plausible meaning - alternative meaning when ordinary usage fails.

Paramountcy Doctrine

Federal law prevails when valid federal and provincial laws conflict; provincial law becomes dormant only to the extent of conflict.

Operational Conflict (Paramountcy)

Conflict arises if dual compliance with federal and provincial law is impossible (Ross) or dual application by decision-makers is impossible (Rothmans, Moloney).

Frustration of Purpose (Paramountcy)

Conflict exists if provincial law frustrates Parliament's legislative purpose (Multiple Access, Bank of Montreal).

Only one of dual compliance or frustration of purpose needs to be proven for paramountcy. True of False?

True

How do courts assess impossibility of dual compliance?

Determine if affected individuals can obey both laws simultaneously

How do courts assess frustration of federal purpose?

Examine whether provincial law undermines Parliament's policy objectives.

POGG Doctrine

Grants Parliament power to legislate on matters not assigned to provinces; three branches: Emergency, National Concern, Gap.

Emergency Branch (POGG)

Parliament gains temporary paramountcy over provincial matters to address national crises (Re: Anti-Inflation Act, Emergencies Act).

National Concern Branch (POGG)

Parliament may legislate on matters that are single, distinct, indivisible, and extraprovincial in nature (Crown Zellerbach, GGPPA).

Gap Branch (POGG)

Applies to matters not assigned to either level of government; rarely invoked (e.g., territories, territorial seas).

Emergency branch requires the term "emergency" in the statute. True of False?

False - rational basis is sufficient; examine purpose and context

National concern requires matter to be single, distinct, and indivisible. True of False?

True

POGG can override double aspect and ancillary powers if justified. True or False?

True

What factors indicate a valid emergency under POGG?

Real or imminent crisis, temporary response, evidence from statute and context, inability of provinces to respond effectively

What is the Provincial Inability Test in National Concern?

Determines whether provinces could constitutionally and effectively manage the matter alone; failure to act should not jeopardize national scheme.

What is the "scale of impact" requirement in national concern?

Federal intervention must minimally interfere with provincial jurisdiction; proportional to national importance.

What is the difference between emergency and national concern?

Emergency = temporary crisis

National Concern = permanent extraprovincial matter.

Interjurisdictional Immunity (IJI)

A doctrine preventing one level of government from legislating in a way that impairs the protected "core" of another level's exclusive jurisdiction

What is meant by the "core" of a jurisdiction? (IJI)

The basic, minimum content of a power needed to make that jurisdiction effective for its constitutional purpose.

What happens to legislation that overreaches into the core of another jurisdiction?

It is read down; the law continues to operate except in relation to the protected core.

IJI typically concerns Federal legislation intruding into a provincial core. True or False?

False

The doctrine of IJI is a doctrine of first resort. True of False?

False - it is a doctrine of last resort and used sparingly (CWB).

What are the two steps in the IJI analysis?

Step 1: Does the legislation intrude into a protected core? Step 2: Does it impair the core?