Pith and substance
Encyclopedia
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power
a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Vide Citizens Insurance Company of Canada v. William Parsons (1881) 7 AC 96; The Attorney-General for Ontario v. Attorney-General for the Dominion of Canada 1894 A.C. 189; The Attorney General of Ontario v. Attorney-General for the Dominion (1896) AC 348; Union Colliery Company of British Columbia v. Bryden (1899) AC 580; Attorney-General for Canada v. Attorney-General for Ontario (1937) AC 355; Attorney-General for Alberta V. Attorney-General for Canada (1939) AC 117 and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters (1940) AC 513.
The analysis has two parts. First, the law at issue is characterized by its most dominant feature, and second, the law is assigned to one of the enumerated matters listed in section 91 or 92 of the Constitution Act, 1867
.
the province of Nova Scotia passed a law which prohibited certain surgical procedures from being performed outside of hospitals under the guise of health services protection. The Supreme Court of Canada ruled that, in substance, they were attempting to ban abortions.
and matters in the exclusive domain of the provincial government are enumerated under section 92. Whether the characterization of a law fits within one of the enumerated matters depends on the breadth given by the court to each matter.
A law found to be valid under the pith and substance analysis the law may also have some incidental effects upon matters outside of the government's jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. The modern approach to Canadian Constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government's jurisdiction.
Necessarily incidental or ancillary effects
The full test was articulated in General Motors v. City National Leasing (1989). The standard used depends on the seriousness of the encroachment. The Court must consider the degree the valid legislative scheme intrudes upon the other government's jurisdiction. If it is a minor intrusion, then the provision need only be "rationally connected." Otherwise for serious encroachments the provisions must be "truly necessary" or "essential" to the functioning of the law.
, effectively the British Imperial Court of Appeal, has been carried to other Commonwealth
federations. It is used in India
under its Constitution. It was also used in Northern Ireland
under the Government Ireland Act 1920. The substance of the doctrine has been cast in legislative form in the Scotland Act 1998
for the purpose of devolution to Scotland
. It was also used in Australia until 1964 when the High Court
case of Fairfax v Commissioner of Taxation
overruled its use by an alternate method.
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Vide Citizens Insurance Company of Canada v. William Parsons (1881) 7 AC 96; The Attorney-General for Ontario v. Attorney-General for the Dominion of Canada 1894 A.C. 189; The Attorney General of Ontario v. Attorney-General for the Dominion (1896) AC 348; Union Colliery Company of British Columbia v. Bryden (1899) AC 580; Attorney-General for Canada v. Attorney-General for Ontario (1937) AC 355; Attorney-General for Alberta V. Attorney-General for Canada (1939) AC 117 and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters (1940) AC 513.
The analysis has two parts. First, the law at issue is characterized by its most dominant feature, and second, the law is assigned to one of the enumerated matters listed in section 91 or 92 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
.
Dominant feature
The first step in a pith and substance has been described in numerous ways. It determines the substance, essential character, dominant feature, or true meaning of the law. This involves examining both the intended purpose of the law as well as the legal effect of the law on rights and obligation upon the public. The purpose can be found through the wording of the law, the mischief that the law was intending to address as well as the overall social context for the law's introduction. Examination of the actual effect is useful in determining if the law was "colourable," that is, whether the law, in substance, addresses a matter completely different from what the law addresses in form. For example, in R. v. Morgentaler (1993)R. v. Morgentaler (1993)
R. v. Morgentaler [1993] 3 S.C.R. 463, was a decision by the Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision R. v. Morgentaler, which had struck down the federal abortion law as a breach of section 7 of the Canadian Charter...
the province of Nova Scotia passed a law which prohibited certain surgical procedures from being performed outside of hospitals under the guise of health services protection. The Supreme Court of Canada ruled that, in substance, they were attempting to ban abortions.
Assignment
Once the law has been characterized it must be assigned to one of the two heads of power. The matters in the exclusive domain of the federal government are enumerated under section 91 of the Constitution Act, 1867Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
and matters in the exclusive domain of the provincial government are enumerated under section 92. Whether the characterization of a law fits within one of the enumerated matters depends on the breadth given by the court to each matter.
A law found to be valid under the pith and substance analysis the law may also have some incidental effects upon matters outside of the government's jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. The modern approach to Canadian Constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government's jurisdiction.
Ancillary effects doctrine
In many circumstances, however, a law that is found to be invalid under the pith and substance analysis may still be saved by using necessarily incidental, or ancillary effects doctrine. In such cases the intruding provisions of the law will only be upheld if they satisfy the "rational connection" test.Necessarily incidental or ancillary effects
The full test was articulated in General Motors v. City National Leasing (1989). The standard used depends on the seriousness of the encroachment. The Court must consider the degree the valid legislative scheme intrudes upon the other government's jurisdiction. If it is a minor intrusion, then the provision need only be "rationally connected." Otherwise for serious encroachments the provisions must be "truly necessary" or "essential" to the functioning of the law.
Use outside of Canada
The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, effectively the British Imperial Court of Appeal, has been carried to other Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
federations. It is used in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
under its Constitution. It was also used in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
under the Government Ireland Act 1920. The substance of the doctrine has been cast in legislative form in the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...
for the purpose of devolution to Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. It was also used in Australia until 1964 when the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case of Fairfax v Commissioner of Taxation
Fairfax v Commissioner of Taxation
Fairfax v Commissioner of Taxation 114 CLR 1 is a High Court of Australia case that considered the scope of the taxation power.-Facts:...
overruled its use by an alternate method.