Rules of Constitutional Interpretation (Division of Powers)
Courts try to confine themselves to a fundamental jurisdictional question in division-of-power
cases: is the impugned law (or state action) intra (within) or ultra (outside of the) vires
(jurisdiction) of that level of government that is being challenged in court. A ruling of ultra
vires means of course that the government is acting outside of its constitutional powers, hence is
The court’s decision on this question, as indeed its decision on any question of law, revolves
around a principle reason (or sometimes reasons) which constitute what is known as the ratio
decidendi of the case. The ratio decidendi is the rationale the court uses to reach its decision—
the point in a case which determines the judgment. Keep in mind that when judges write their
judgments, they do not use the term ratio decidendi to mark off the principal reason they rely
upon to reach their decision. That is why, unfortunately, the ratio decidendi is not always self-
evident—lawyers and other judges often disagree on what exactly constitutes the ratio of a
previous case. But ratios are important because they form the precedents that lower courts are
expected to follow under the strict rule of stare decisis (stand by the decisions).
When confronted with a division-of-powers question, the court will typically make the following
What is the pith and substance of the impugned law? In other words, what is the
principal subject matter with which the law is concerned? What is its main point? Determining
the pith and substance of an impugned law is supposed to help settle the question of
constitutionality because once the subject matter is determined, supposedly the court will then be
able to connect that subject matter to one of the powers explicitly assigned to the federal or
provincial governments in Secs. 91, 92, 93, 94 or 95 of the Constitution Act (1867). Courts have
tended to work with a “cubby-hole” doctrine wherein it is assumed that a legislative subject-
matter can almost always be slotted into one or another constitutional power.
But of course it is not always easy to state unambiguously what the pith and substance of
a law is, or to put it more precisely, it is not always easy to decide upon the essential subject
matter of a law in such a way as to clearly fit that subject matter into the enumerated powers of
secs 91-95. For example, the federal legislation that introduced new stringent controls on the
ownership of firearms passed in the early 1990s was ostensibly about regulating the possession
of guns. But there is nothing in the division of powers in 91-95 that explicitly states that the
regulation of firearms is a power of government, let alone a power assigned to one or the other
level. So when asking the question of pith and substance, the court will try to frame the answer
in sufficiently general terms so that the subject matter can be seen to belong to one or another
power, and hence one or another government. The court can, for example, say that the law is
about regulating firearms for the purpose of protecting public safety. This latter phase is deemed
an expression of the purpose of the federal criminal law power, and, presto, there is now a match between the pith and substance of the law and an enumerated power in the constitution.
Alternatively, the court can decide that the law is about the regulation of the ownership of a piece
of property, and, because this subject matter falls under the general enumerated power of
“property and civil rights”, the law must be deemed ultra vires to the authority of the federal
government. In instances where courts have to strain to decide upon the pith and substance of an
impugned law, they make use of several interpretative aids (in addition to those outlined above)
Asking whether a complex law has a dominant aspect that might distinguish its pith and
substance. This is an important question especially for those laws whose subject matter seems to
straddle several heads of power, some of which are not in the jurisdiction of the government that
enacted the law.
Asking what the purpose of the impugned law might be. That is, rather than attending to
the mere words of the legislation and its ostensible subject matter, the court might broaden its
inquiry and try to figure out what the overall political purpose of the legislation could
conceivably be. So, for example, in considering a provincial law ostensibly about licensing
taverns (which involves a power explicitly assigned to the provinces) a court might conclude
after looking at the overall context of the legislation, that it is really designed to allow the
province to shut down those taverns that allow prostitutes to mingle with customers, and for this
reason amounts to a law about regulating morals. Since the latter subject matter (regulating
morals) is normally thought to belong to the federal criminal law power, the court could readily
decide that that the law is ultra vires the provincial government’s constitutional authority.
In a similar vein, the court might ask about the effect of an impugned law in order to help
determine its principal subject matter and hence its pith and substance. By effect what is meant is
simply what happens in the law’s application. How does the law change people’s rights and
obligations. To use the hypothetical licensing of taverns example again, if it can be shown that
the effect of the legislation is primarily to regulate prostitution, then again the same conclusion
might be drawn.
In attending to purpose and effect, the court is supposed to be trying to prevent governments
from poaching on a jurisdiction they have no authority through surreptitious legislative means—
through legislation that is colourable in the language of the court.
But there are times when a court might decide that the subject matter of a piece of legislation can
with equal plausibility be assigned to two different powers corresponding to the two levels of
government. In such instances the court might declare that there is a dual aspect to that subject
matter and that both levels of government are entitled to legislate on the subject in a way that is
relevant to their own enumerated powers. This dual aspect or double aspect doctrine can be seen
in such things as various provincial highway traffic offences such as “driving without due care
and attention” or “failing to remain at the scene of an accident” which are matched by virtually identical criminal offences enacted by the federal government. Courts have in the past upheld
the constitutional validity of both types of offences under the double aspect doctrine, ruling that
provinces are justified in passing traffic legislation because they are responsible for roads while
the federal government is justified in passing similar legislation under its criminal law power
because the federal government has an interest in promoting public safety. When courts decide
that some subject matter has a double aspect to it in order to resolve some sticky issue in
constitutional law (remember, courts have invented this doctrine), they also resort to the doctrine
of federal supremacy in the event that there is a serious conflict between the two sets of laws.
According to that doctrine, federal laws will have precedence over provincial laws in the same
field to the extent there is conflict between them.
The double aspect doctrine should not be confused with the constitutional provision for
concurrent powers to be found in the Constitution Act (1867), specifically in Secs. 92A, 94A
and 95 . In these instances the constitution explicitly states which powers can be exercised by
both levels of government (e.g. immigration, agriculture, pensions, etc.), but also explicitly states
which level of government shall be paramount should conflicts arise (not always the federal
government, it should be noted.)
So what happens when a court has one of these division-of-powers cases before it, and
there are more-or-less equally plausible ways of characterizing the issue at hand as something
that falls under the provincial level of government and under the federal level of government, but
for various reasons the court does not want to rule that the matter enjoys a double aspect? Courts
by the way are generally reluctant to apply the double aspect doctrine because it messes with the
constitutional ideal often said to be central to federalism, i.e. that the division of powers is
exclusive (that is, the powers assigned to each level of government are exclusive of each other)
and exhaustive (that is, the powers assigned to the two levels of government together comprise
all possible powers governments might need). So if the double aspect doctrine is not going to be
entertained by the court, it must choose between one of the possible interpretations of the subject
matter of the impugned law, and, depending on that interpretation, assign the subject matter to
one or another enumerated power in the constitution. In principle the courts say that they try to
exercise judicial restraint in these division-of-power cases and start with a presumption that the
impugned law is constitutional. This presumption of constitutionality supposedly involves an
evidentiary rule and three interpretative rules. The evidentiary rule is simple: when a law is
challenged in court on division-of-powers grounds, it is up to the challenger to prove a
government is acting ultra vires to it authority. In other words, the burden of lies with the
challenger not the respondent government. As for the three interpretative rules that are supposed
to sustain the presumption of constitutionality:
If presented with a choice between two equally plausible characterizations of a law, the
court should, absent other overriding reasons, choose that characterization that upholds
the validity of the law (that is, upholds the right of the government that is being
challenged to enact precisely that law). If it is necessary to infer some “fact” in order to uphold the validity of the law, the
finding of that fact need not be proved strictly by the challenged government. In other words, if
the government can provide a reasonable argument for the existence of the “fact” that validates
its right to enact the contested legislation, normally courts should be prepared to accept such an
argument. For example, when the federal government passed its Anti-Inflation Act in 1975 and
tried to justify its authority to do so in Court, it argued that a national economic crisis
necessitated this course of action. The majority of the Court agreed that this claim of an
economic crisis was sufficient to establish the fact (because it was a reasonably stated claim
despite evidence to the contrary), and that act in turn supported the federal government’s
assertion of its constitutional authority under POGG to enact the impugned legislation.
Finally, if the impugned law can be reasonably interpreted in both a narrow and a
broad fashion, and if the broad interpretation necessarily involves the government in a
jurisdiction outside its constitutional authority, the court should use its discretion to
choose the narrow interpretation so as to save the law (and the enacting government.)
Now assuming that the court has tried to exercise judicial restraint and followed all these
rules yet in the end still concludes that a government has acted ultra vires its jurisdiction, what
can it do?
It can declare the whole of the law unconstitutional and therefore of no force and
effect. This is the most radical remedy because it negates an entire piece of legislation.
This has been the most common remedy for division-of-powers cases, though not for
Less intrusive is the remedy of severance. If a court can plausibly separate out the
unconstitutional portion of a piece of legislation from the rest, then it might do so and
sever the invalid part of the legislation. More common as a remedy in Charter cases.
Finally, the Court might try to save an impugned piece of legislation by
reading it down in such a way as to remove whatever jurisdictional overreach it
might contain (as described in (c) above.
♥ Powers overlap. Only federal law authorized in constitution to, provinces can establish
their own prohibition. They aren’t considered crimes.
♥ Provincial offences as oppose to crimes
o Penalties – fines or jail time
♥ Difference btw pro offence and crime
o Eg.) Federal offence under criminal code – dangerous driving o Provincial Highway – careless driving
Penalty for provincial law and federal penalties.
Criminal law – element of intent; (you know its wrong, deliberately doing
what your not)
• The police can feel sorry for someone and charge them with the
lesser offence. It might be easier to prove careless.
o The things you do wrong are the same. Where the line is drawn is different.
Re Board of Commerce Act
♥ Haldane states – federal law criminal power would apply “where the subject matter is one
by which its very nature belongs to the domain of criminal jurisprudence.
o He mentions incest or murder
o Tries to make a substantive definition of crime- some substance (characteristics)
of crime in a person’s act that makes it a crime.
o Substantive definition of criminal law (very narrow in Haldane’s case)
Bedard v. Dawson 1923
♥ In early 1900’s Quebec gov - prohibited any property from being used for disorderly
purposes. A conviction for prostitution or gambling under the criminal code, if the
prostitution or gambling