1. CONSTITUTIONAL LAW 08 PITH AND SUBSTANCE1
Shigenori Matsui

2. INTRODUCTION Federalism issues
S. 91 and s. 92 of the Constitutional Act
How to review the constitutionality of the statute on the federalism ground?
The need to look at the context
The need to look at the pith and substance of the legislation

3. I ANALYTICAL FRAMEWORK
(1) Pith and substance doctrine
(2) Necessarily incidental doctrine
(3) Double aspects doctrine

4. (4) Interjurisdictional immunity doctrine
(5)Paramountcy doctrine

5. II NEED TO CONSIDER THE CONTEXT
Reference re Same-Sex Marriage [2004]
The frozen concepts reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life
A large and liberal, or progressive, interpretation… 5

6. Contrast with R. v. Blais, [2003]6

7. Why must the contexts be considered?
What are the contexts to be considered?
How are the contexts to be considered? 7

8. III PITH AND SUBASTANCE
Union Colliery Company of BC v. Bryden [1899] 8

9. R. v. Morgentaler, [1993] 9

10. A classification or characterization of a law
Identifying the matter of the law and then assigning it to one of the classes of subjects in respect to which the federal and provincial governments have legislative authority under s. 91 and s. 92

11. A law’s matter is its leading feature or true character, often described as its pith and substance
Purpose and effect

12. Starts from the legislation itself
Yet, the analysis is not restricted to the four corners of the legislation
The social or economic purposes which the statute was enacted to achieve
Its background and the circumstances surrounding its enactment
The actual or predicted practical effect

13. Extrinsic materials Related legislation
Evidence of mischief at which the legislation is directed
Legislative history

14. Why the Supreme Court of Canada concluded that the pith and substance of the law was criminal law?

15. Canadian Western Bank v. Alberta [2007]15

16. IV HOW PITH AND SUBSTANCE COULD BE FOUND?
Legislative history
R. v. Big M Drug Mart [1985] 16

17. Effect
Alberta Bank Taxation Reference, [1938]

18. Efficacy
Ward v. Canada, [2002]

19. Actual administration
Saumur v. Quebec, [1953]

20. Shifting purpose doctrine?