Pith and substance

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.

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) 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, 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.

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 Council, 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.

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for adoption of this doctrine was that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.