Modern (Living Tree) Paradigm of Federalism Pith and Substance/ Incidental Effects (SCC) – Dominant aim or purpose of legislation must fall within the appropriate jurisdiction’s class of subjects APPROACH (Morgentaler): Determine the or pith & substance of the legislation: “matter” Intrinsic Evidence (Legal Effects, four corners of the statute and regulations): Title, Preamble, Purpose provision Rights and liabilities Offences and Penalties Administrative regime Extrinsic evidence (beyond the four corners): Background and circumstance of enactment Legislative History Hansard: legislative debates Limited weight, but accepted even without suspicion of colourability Policy reports (white papers, royal commissions) Related legislation (actual impact of the operation of the legislation): Practical Effects Can show that re: purpose of legislation, a law is ultra vires in its effects. But a lack of ultra vires practical effects doesn’t necessarily suggest its intra vires Be cautious: Empirical evidence speculative since law just introduced Even when around a long time, impacts of a law are hard to measure Practical effects don’t necessarily reveal parliamentary intent be incidental effects) Look at competing subject classes in s.91/92. What class of subject is the matter included in? Doctrine of Colourability Invalid law made to look Doctrine of Severability: the offending part of the law can be severed and everything else kept if: The law can without the offending provision AND The legislature would have enacted the statute without the offending provision Justiciability Doctrine (Same Sex Marriage) Does question have sufficient legal content? Is question clear and unambiguous? Have parties provided sufficient information? What is the impact on uniformity, settled relationships?
Modern (Living Tree) Paradigm of Federalism – Pith and Substance/ Incidental Effects (SCC) Dominant aim or purpose of legislation must fall within the appropriate jurisdiction’s class of subjects APPROACH (Morgentaler): Determine the “matter” or pith & substance of the legislation: Intrinsic Evidence (Legal Effects, four corners of the statute and regulations): Title, Preamble, Purpose provision Rights and liabilities Offences and Penalties Administrative regime Extrinsic evidence (beyond the four corners): Background and circumstance of enactment Legislative History Hansard: legislative debates Limited weight, but accepted even without suspicion of colourability Policy reports (white papers, royal commissions) Related legislation Practical Effects (actual impact of the operation of the legislation): Can show that re: purpose of legislation, a law is ultra vires in its effects. But a lack of ultra vires practical effects doesn’t necessarily suggest its intra vires Be cautious: Empirical evidence speculative since law just introduced Even when around a long time, impacts of a law are hard to measure Practical effects don’t necessarily reveal parliamentary intent be incidental effects) Look at competing subject classes in s.91/92. What class of subject is the matter included in? Doctrine of Colourability Invalid law made to look Doctrine of Severability: the offending part of the law can be severed and everything else kept if: The law can without the offending provision AND The legislature would have enacted the statute without the offending provision Justiciability Doctrine (Same Sex Marriage) Does question have sufficient legal content? Is question clear and unambiguous? Have parties provided sufficient information? What is the impact on uniformity, settled relationships?
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