Pith and substance - federal and provincial powers

Quebec (Attorney General) v. Lacombe, 2010 SCC 38, released this morning, deals with the assignment of legislation between the federal and provincial governments and is a very helpful modern restatement of the law.

This area of law has been largely dormant for many years and the Supreme Court's decision may suggest a new resolve to consider the division of powers between the federal and provincial jurisdictions.

The Court writes:

[19] The first step in determining the validity of the amendments brought by by-law 260 is to identify their dominant characteristic: R. v. Swain, [1991] 1 S.C.R. 933, at p. 998; see also Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 52. This is known as the "matter" of the legislation. Once the matter of the legislation has been determined, the next step is to assign this matter to one or more heads of legislative power: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 450. If the matter comes within one of the heads of power allocated to the provinces under the Constitution Act, 1867, then the impugned law is valid. If it does not, then the court must consider whether the prima facie invalid law is saved by the doctrine of ancillary powers (also known as the ancillary doctrine: see Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 45).

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[20] The first step is to characterize the main thrust, or "pith and substance", of by-law 260: Swain, at p. 998. As LeBel J. explained in Kitkatla, at para. 53, there are two aspects to the characterization of the pith and substance of a law: (1) the purpose of the legislation and (2) its effect. The purpose of a law may be determined by examining intrinsic evidence, like purposive clauses and the general structure of the act. It may also be determined with reference to extrinsic evidence, such as Hansard or other accounts of the legislative process: Kitkatla, at para. 53. The effect of a law is found in both the legal effect of the text and the practical consequences that flow from the application of the statute: R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 482-83.

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[24] Having characterized the pith and substance of the impugned provision, the second step is to determine which level of government has jurisdiction to enact laws in relation to this matter. This inquiry seeks to allocate the matter to one of the heads of power granted to Parliament and the legislatures under the Constitution Act, 1867.

[25] The Province accepts that the location of aerodromes comes within the jurisdiction of Parliament. However, the Province contends that the municipality is equally entitled to adopt zoning legislation that has the purpose of regulating the location of aerodromes. It argues that this zoning legislation is a valid exercise of the Legislature's jurisdiction over land use planning. The Province argues that the existence of concurrent federal jurisdiction does not detract from the fact that the impugned legislation is entirely within the powers of the Province.

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[32] The ancillary powers doctrine may be briefly described. Recognizing that a degree of jurisdictional overlap is inevitable in our constitutional order, the law accepts the validity of measures that lie outside a legislature's competence, if these measures constitute an integral part of a legislative scheme that comes within provincial jurisdiction: General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at pp. 668-70.

[33] The Constitutions of the United States and Australia expressly provide for the exercise of ancillary powers: Constitution of the United States of America, art. I, § 8, cl. 18; Commonwealth of Australia Constitution Act, s. 51(xxxix). However, Canada's Constitution is silent on the issue: Papp v. Papp, [1970] 1 O.R. 331 (C.A.), at p. 336. On occasion, in the past, it has been held that this silence, coupled with the wording of ss. 91 and 92 of the Constitution Act, 1867, deprives Canadian legislative bodies of the ability to make use of competencies assigned to the other level of government: Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, per Rinfret C.J.; St. Catharines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, at p. 637.

[34] However, it is now well established that both Parliament and the legislatures may avail themselves of ancillary legislative powers: Attorney-General of Ontario v. Attorney-General for the Dominion of Canada, [1894] A.C. 189 (P.C.) (the "Insolvency Reference"), at pp. 200-201; Grand Trunk Railway Company of Canada v. Attorney-General of Canada, [1907] A.C. 65 (P.C.); Attorney-General for Canada v. Attorney- General for British Columbia, [1930] A.C. 111 (P.C.), at p. 118; Attorney-General for Canada v. Attorney-General for Quebec, [1947] A.C. 33 (P.C.), at p. 43; Fowler v. The Queen, [1980] 2 S.C.R. 213, at p. 226; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at p. 183.

[35] The ancillary powers doctrine permits one level of government to trench on the jurisdiction of the other in order to enact a comprehensive regulatory scheme. In pith and substance, provisions enacted pursuant to the ancillary powers doctrine fall outside the enumerated powers of their enacting body: General Motors, at pp. 667-70. Consequently, the invocation of ancillary powers runs contrary to the notion that Parliament and the legislatures have sole authority to legislate within the jurisdiction allocated to them by the Constitution Act, 1867. Because of this, the availability of ancillary powers is limited to situations in which the intrusion on the powers of the other level of government is justified by the important role that the extrajurisdictional provision plays in a valid legislative scheme. The relation cannot be insubstantial: Nykorak v. Attorney-General of Canada, [1962] S.C.R. 331, at p. 335; Gold Seal Ltd. v. Attorney-General for Alberta (1921), 62 S.C.R. 424, at p. 460; Global Securities, at para. 23.

[36] The ancillary powers doctrine is not to be confused with the incidental effects rule. The ancillary powers doctrine applies where, as here, a provision is, in pith and substance, outside the competence of its enacting body. The potentially invalid provision will be saved where it is an important part of a broader legislative scheme that is within the competence of the enacting body. The incidental effects rule, by contrast, applies when a provision, in pith and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government. It holds that such a provision will not be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body. Mere incidental effects will not warrant the invocation of ancillary powers.

[37] Nor is the ancillary powers doctrine to be confused with the double aspect doctrine. In Canadian Western Bank, at para. 30, Binnie and LeBel JJ. explained that the double aspect doctrine recognizes the overlapping jurisdiction of the two levels of government: ". . . some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. Thus the fact that a matter may for one purpose and in one aspect fall within federal jurisdiction does not mean that it cannot, for another purpose and in another aspect, fall within provincial competence. . . ." By contrast, ancillary powers apply only where a legislative provision does not come within those heads of power assigned to its enacting body under the Constitution Act, 1867.

[38] In summary, only the ancillary powers doctrine concerns legislation that, in pith and substance, falls outside the jurisdiction of its enacting body. Laws raising a double aspect come within the jurisdiction of their enacting body, but intrude on the jurisdiction of the other level of government because of the overlap in the constitutional division of powers. Similarly, the incidental effects rule applies where the main thrust of the law comes within the jurisdiction of its enacting body, but the law has subsidiary effects that cannot come within the jurisdiction of that body.