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Classification of Laws – Pith and Substance
Canada’s
constitution divides law making power between the Parliament of Canada and
provincial legislatures. This is the
essence of Canadian federalism.
The division of legislative powers is done mainly by secs. 91-5 of
the Constitution Act, 1867.
The language of these sections is quite broad, using phrases like
“Trade and Commerce,” “Property and Civil Rights” and “Generally all
Matters of a merely local or private Nature”. In some cases the language granting law
making power is antique – “Asylums” and Eleemosynary Institutions,” for
example. Still, in responding to a
challenge that a particular law is beyond the constitutional power of
either Parliament or a provincial legislature, a court must consult secs.
91-5 – even if they are antique and not precise, for they are the main
sources by which law making power is given to Canadian legislatures.
A court that consults these provisions will scrutinize the opening
words of secs. 91 and 92 particularly.
These opening phrases use several concepts to create law making
power, the main ones of which are:
·
law making power is in relation to matters
·
matters come within classes of subjects
·
classes of subjects are assigned by the Constitution
Act, 1867
·
law making powers are exclusive.
These four concepts – in relation to, matters, coming within
classes of subjects assigned by the Constitution Act, exclusivity
– are not of universal intellectual interest, but they are crucial here
because they are found in the text of the constitutional provisions that
assign law making power to Canadian legislatures. For example, the opening words of s. 92 assigns
power to the provincial legislatures in this way:
In each Province the
Legislature may exclusively make Laws in relation to Matters coming
within the Classes of Subjects next hereinafter enumerated; that is to
say...
Sixteen classes of subjects then follow. Section 91 grants law making power to
Parliament in similar, if more convoluted language, and by using the same
the same four concepts – in relation to, matters, coming within classes
of subjects, exclusivity.
The courts have built a method for dividing constitutional power out
of this language and these four concepts. The method is now well
settled. It is specific to Canadian
federalism for two reasons: the language and the concepts used are specific
to Canada’s
constitution; and the balance of power struck between the federal and
provincial governments is a uniquely Canadian balance responsive to
uniquely Canadian imperatives. Other federations confront similar problems
of dividing and balancing power, but each solves this problem with its own
technique to arrive at its own specific balance.
The concepts of ‘matter’ and ‘in relation to’ require some
explanation.“Matters” are constructed by the courts. They are intellectual fabrications. Courts build them by taking a cue from
the constitutional text, which requires that matters come within the
16 provincial and 31 federal “classes of subjects.” To meet the requirement that a matter
come within a class of subject, a court must insure that the matter it
constructs is not too big. For example, ‘the environment’ is too big to be
a matter. It does not come within
any of the 16 provincial or 31 federal classes of subjects. But ‘pollution of inland rivers by the
dumping of substances in them’ is a matter.
So is ‘control of the emissions of smokestacks of heavy
industry’. These easily fit with in
the enumerated classes of subjects.
Another way to think about this is that if ‘the environment’ were
allowed to be a matter, it would be exclusively federal or exclusively
provincial. This would disturb the
necessary balance between federal and provincial governments that Canadian
courts have found necessary for the
Canadian federal system. Balance
is really the whole point. All the
rest is technique.
“In relation to” must be understood in light of an opposing concept
– ancillary. The constitutional jurisprudence makes this clear. In relation to – meaning that the
law is really all about this matter. The law is really all about this
matter as opposed to “ancillary” to it.
Ancillary – meaning that while the law may affect the matter,
that is not its central focus, or what it is really all about. A law is in
relation to a matter when its dominant or most important characteristics,
its leading features, its pith and substance are really all about that
matter. Perhaps the law affects the
matter in an ancillary or incidental way; perhaps the law impacts on the
matter in passing, or in ways that are beside the real thrust of the law,
but that does not make the law “in relation to” the matter. Laws affect
many things in a variety of ways, large and small. These side winds do not determine what
matter a law is in relation to. That
is determined by analysing the central focus of the law, what it is really
all about.
In order to analyse what matter a challenged law is “in relation to”
– to separate it from matters incidentally affected by the law – requires
a "pith and substance
analysis".
Pith and substance??? A pith and substance analysis
scrutinizes the law to discover:
·
the purpose of the law
·
the legal effect of the law, that is, impacts that
are expected to happen if the statute works as planned
·
the practical effect of the law, that is, impacts
the statute actually causes as it operates, anticipated or
unanticipated. The effects may arise
from imperfect administration, discriminatory enforcement, or unanticipated side effects caused by
the law on the universe of behaviours.
For example, in Saumur
v. City of Quebec, [1953] 2 S.C.R. 299, the Court struck down a
municipal by-law that prohibited leafleting because it had been applied so
as to suppress the religious views of Jehovah's Witnesses. Similarly, in Attorney-General
for Alberta v. Attorney-General for Canada, [1939] A.C. 117, the Privy
Council struck down a law imposing a tax on banks because the effects of
the tax were so severe that the true purpose of the law could only be to
destroy banks, not taxation. However, merely incidental effects will not
disturb the constitutionality of a law otherwise in relation to a matter
that comes within the classes of subjects assigned to the enacting
legislature.
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