DISTRIBUTION OF POWERS EXAM STRUCTURES:
Divison of Powers Cases decided in two step process:
1. Courts determine the pith and substance of the challenged law: its dominant/ main feature
- Two aspects must be examined: the purpose of the enacting body and the legal effect of the law.
- Purpose:
o Validity of X first dealt with via identification of its main purpose.
o Can examine the premble, the mischeif the law is trying to rid of, reference to other materials (Mortgentalar)
o Must look at TRUE purpose, not the stated purpose (Western Bank).
- Effect: both legal and practical
o How the law will operate, affect Canadians. How will it affect peoples rights? (right to liberty, security (Mortgen).
o Edwards Books affect on non sabbath worshipers lowered profits.
o Where effect sof law diverge from the stated aim, it is sometimes called colourable (Mortgentalar).
o Competing matters:
Presumption of constitutionality: choose one which supports the validitiy of the law, finding of fact need
not be strict, can read down.
Double apect doctrine: it is for the courts to identify the dominant feature of the impuged statute.
Although there may be incidential intrusion into another head over which the relevant government has no
control, incidental intrusions are allowed (Chatterjee where criminal intrusion was incidental to the
property and civil rights matter of seizing the property for drug use and giving proceeds away).
- Conclude: Pith and substance is ________
2. Assignment to Heads of Power: interpretation of constititonal powers
- Determine whether that matter comes within the jurisdiction of the enacting legislature.
- Heads are s91 92 of CA 1867 – must be analyzed and determined what the matter “is in relation to”.
- Exhaustive Principle: distribution between the legislatures is exhaustive.
o Any matter that does not come directly in one of the specific classes will be
Provincial if: it is merely local or private (s92(16)
Federal if: It has a national dimension (s91 opening words). Residual powers of POGG (Anything not
exclusively assigned to parliament.
- COOPERATIVE FEDERALISM:
o Incidental effects are okay: Papp v Papp
- But if incidental effect of a provincial law breaches the ‘core’ of the federal power, and whether the provincial laws effects
it is sufficiently serious on such power/matter, the doctrine of IJI may apply ( Quebec v Canadian Owners and Pilots)
NOTE ON PARAMOUNTCY:
- Resolves conflicts b/w laws enacted by the two legislative bodies which conflict.
- Applies where: (1) each law is valid (intr vires) and (2) inconsistent in application
o Inconsistent:
A) Cant comply with both laws at same time
B) Frustation of the federal purpose (determine the purpose of the federal law and the effect of the
provincial law on the federal law) (Rothman Benson Hedges).
- Effect provincial law is inoperative to the extent of the inconsistency
- Federal law takes priority / paramountcy.
3. The law is intra/ultra vires Parliament/ Provincial legislature.
Divison of Powers Cases decided in two step process:
1. Courts determine the pith and substance of the challenged law: its dominant/ main feature
- Two aspects must be examined: the purpose of the enacting body and the legal effect of the law.
- Purpose:
o Validity of X first dealt with via identification of its main purpose.
o Can examine the premble, the mischeif the law is trying to rid of, reference to other materials (Mortgentalar)
o Must look at TRUE purpose, not the stated purpose (Western Bank).
- Effect: both legal and practical
o How the law will operate, affect Canadians. How will it affect peoples rights? (right to liberty, security (Mortgen).
o Edwards Books affect on non sabbath worshipers lowered profits.
o Where effect sof law diverge from the stated aim, it is sometimes called colourable (Mortgentalar).
o Competing matters:
Presumption of constitutionality: choose one which supports the validitiy of the law, finding of fact need
not be strict, can read down.
Double apect doctrine: it is for the courts to identify the dominant feature of the impuged statute.
Although there may be incidential intrusion into another head over which the relevant government has no
control, incidental intrusions are allowed (Chatterjee where criminal intrusion was incidental to the
property and civil rights matter of seizing the property for drug use and giving proceeds away).
- Conclude: Pith and substance is ________
2. Assignment to Heads of Power: interpretation of constititonal powers
- Determine whether that matter comes within the jurisdiction of the enacting legislature.
- Heads are s91 92 of CA 1867 – must be analyzed and determined what the matter “is in relation to”.
- Exhaustive Principle: distribution between the legislatures is exhaustive.
o Any matter that does not come directly in one of the specific classes will be
Provincial if: it is merely local or private (s92(16)
Federal if: It has a national dimension (s91 opening words). Residual powers of POGG (Anything not
exclusively assigned to parliament.
- COOPERATIVE FEDERALISM:
o Incidental effects are okay: Papp v Papp
- But if incidental effect of a provincial law breaches the ‘core’ of the federal power, and whether the provincial laws effects
it is sufficiently serious on such power/matter, the doctrine of IJI may apply ( Quebec v Canadian Owners and Pilots)
NOTE ON PARAMOUNTCY:
- Resolves conflicts b/w laws enacted by the two legislative bodies which conflict.
- Applies where: (1) each law is valid (intr vires) and (2) inconsistent in application
o Inconsistent:
A) Cant comply with both laws at same time
B) Frustation of the federal purpose (determine the purpose of the federal law and the effect of the
provincial law on the federal law) (Rothman Benson Hedges).
- Effect provincial law is inoperative to the extent of the inconsistency
- Federal law takes priority / paramountcy.
3. The law is intra/ultra vires Parliament/ Provincial legislature.
