Pith and substance
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Pith and substanceOriginally the analysis was simply referred to as "in relation to" 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 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 the Constitution Act, 1867.
Dominant feature
The first step in a pith and substance has been described in numerous ways.see Ward v. Canada (2002) starting at para 17 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 obgligation upon the public (Reference re Firearms Act). 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)'' the province of Nova Scotia passed a law prohibiting abortion clinics under the guise that it was protecting health services, when 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, 1867 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.Ancillary effects doctrine
In many circumstances where a law is found to be valid under the pith and substance test the law may also have some incidental or ancillary effects upon matters outside of the government's jurisdiction. In such cases the intruding provisions of the law will only be upheld if they satify the "rational connection" test.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 intrustion 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 Council, effectively the British Imperial Court of Appeal, has been carried to other Commonwealth federations. It is used in India under the present 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.Pith and Substance
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.No doubt they divide powers between Union & States even then a conflict may arise between Union Law as well as Law made by State.
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. Pith and Substance
it is necessary to look at the dominant aspects of the law (RJR, per La Forest) it is necessary to look at the dominant purpose, true character, or the dominant and most important characteristic of the challenged law (Hydro-Quebec) it is necessary to look at the law’s purpose and effects (Irwin, per Dickson) invalid purpose disguised as colourability (Egg Reference) there can occasionally be two leading features (Multiple Access)India Laws
Notes
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