Handout Summary of Interp Docrines

7/31/2019 Handout Summary of Interp Docrines

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INTERPRETATION DOCTRINES AND JUDICIAL TECHNIQUES SUMMARY

1. The Living Tree approach versus Strict Construction

Constitutions should be given a large and liberal interpretation in order that they

remain flexible and responsive to social and historical change. (Edwards)

Caveat: In theEdwards case itself, the issue was not resolved by applying the

living tree approach, but as a narrow and technical question of statutory

interpretation.

2. Constitutional analysis in division of powers cases should proceed by:

(a) determining the matter of the challenged government action;

(b) determining the scope of relevant classes of subjects under ss. 91, 92 whichwould favour constitutionality (i.e., start by presuming constitutionality);

(c) determining which competing list of classes of subjects the matter fits into.

See: Parsons

Caveat: This can seem very rigid and mechanical. Often the first two questions

collapse into each other. It is important to realize, however, that the three questionsare analytically distinct. And, that much judicial judgment goes into each of the

stages.

3. Mutual Modification

With regard to the classes of subjects within ss. 91, 92, no one class should beregarded apart from the other classes in the two lists. The scope of each power is

not the widest scope possible taken by itself but rather is modified by the other

heads of power.

See:Parsons

Comment: This rule of statutory interpretation is typical of Ryders classicalparadigm as it discourages overlap. It applies to the inquiry under steps (b) and (c)

above.

4. Pith and Substance/Incidental Effects

Just about every law will have both a provincial aspect and a federal aspect if you

think hard enough about it. The pith and substance doctrine is about choosing themost important or dominant aspect. Incidentaleffects on matters coming within the

classes of subjects in the competing list are permissible. Thus when otherwise valid

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provincial legislation (i.e. according to the pith and substance doctrine)

incidentally affects matters falling within federal jurisdiction, the courts can accept

such effects as a necessary incident of the legislation and find the whole legislationintra vires the enacting government.

5. Necessarily Incidental: The Ancillary Power

In some cases, the Court will require some degree of a logical connection, betweenthe effects of an otherwise validly enacted law on matters within the other level of

governments jurisdiction, and that laws purposes. The stringency of the test

varies from case to case. It is by no means applied in every case.

See: General Motors

6. Colourability

If a law on its face appears to be constitutional, it may nevertheless be

unconstitutional if it is, in purpose and effect, addressed to a matter that falls withinthe classes of subjects assigned to the other level of government.

See: Morgentalerfor this discussion, but ultimately not the conclusion ofcolourability.

7. Interjurisdictional Immunity

Where a law of general application which the provincial legislature is

constitutionally competent to enact affects a matter within federal jurisdiction in a

certain manner, the affected matter will be immune to the laws operation. Theprovincial law will be read down so as to not be applicable to that matter. IJI

protects the core of certain but not all federal heads of power.

See: Bell Canada #1 and #2, Irwin Toy, Canadian Western Bank

Comment: The cases have advocated that the rule be applied to only limited areas.

It is best to think of it as an exception. Some areas in which it has been appliedwith approval are: federal undertakings, federally incorporated companies, Indians,

Indian Lands, and armed forces bases. Irwin Toy has a good discussion of the way

the rule operates with regard to federal undertakings, in particular, and thedistinction between indirect impairment and a direct effect on a vital or essential

aspect. It is essential that you read Canadian Western Bankfor the most recent

understanding of this doctrine.

Courts have refused to apply the interjurisdictional immunity principle to read

down federal legislation that affects provincially regulated matters or

undertakings. This is so even though provincial legislatures are unable to



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counteract the affects of federal legislation on such matters or undertakings by

enacting paramount legislation (while the federal Parliament is able to counteract

the affects of provincial laws on federal matters and undertakings by enactingparamount legislation).

8. Severability/Reading Down/Presumption of Constitutionality

Where a statute is susceptible of two interpretations, one of which would support afinding of unconstitutionality, the interpretation favouring constitutional validity

should be applied. This flows from the presumption of constitutionality which

operates in federalism cases.

Where a distinct part of a statute encroaches upon the jurisdiction of the other order

of government, the courts may sever that part and strike it down, provided the

remainder of the statute can operate effectively without it.

9. Concurrency/Double Aspect/Paramountcy

Certain constitutional powers are explicitly concurrent. For example, s. 95 of the

Constitution Act, 1867gives Parliament and the provincial legislatures concurrentpowers in relation to agriculture and immigration.

However, because some subject matters have double aspects, it is possible for there

to be fields of functional concurrency (i.e. fields in which both orders ofgovernment have jurisdiction by virtue of the overlapping of distinct federal and

provincial powers). Thus, in limited instances, a legislative area will have an

aspect/purpose which falls squarely within s.92 and another aspect/purpose thatfalls squarely within s.91, and both aspects/purposes will be of roughly equivalent

importance. Thus you have the possibility of two different pith and substance

determinations and of two valid legislative schemes which operate in the samefield but do so for different purposes. The provincial law will have a provincial

aspect and the federal law will have a federal aspect. This is the double aspect

doctrine.

For example, Parliament and provincial legislatures have been held to have

concurrent powers to regulate within a province the trading of securities in federally

incorporated companies, Parliament by virtue of its jurisdiction over federallyincorporated companies and provincial legislatures by virtue of their jurisdiction

over property and civil rights in the province. This is the double aspect situation

detailed inMultiple Access.

So long as there is no conflict, the two laws can exist concurrently. If there is

conflict, however, the doctrine of paramountcy gives precedence to the federal law.



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The doctrine of federal paramountcy provides that, in the event of a conflict

between valid federal and provincial legislation, the federal legislation prevails. In

this event, the provincial legislation remains constitutionally valid but is renderedinoperative to the extent of the inconsistency. Thus this doctrine applies only after

it has been determined that both the federal and provincial legislation in question

are (1) valid and (2) in conflict. The provincial law is not struck down but is simplysuspended while the federal law is still in effect. There is some debate about what

constitutes a conflict such that federal paramountcy will be triggered.

See: Multiple Access (operational conflict);Bank of Montreal(inconsistency with

parliamentary intent) and the line of cases that follow these two decisions. Pay

particular attention to the resolution inRothmans.

Comment: The cases have advocated that the double aspect rule be applied

cautiously. Some examples of double aspect fields which so far have been

judicially approved of are: highways, alcoholism, drug addiction, prospectuses, and

insider trading.


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Handout Summary of Interp Docrines