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Pith and substance [1] 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.
R v Malmo-Levine; R v Caine [2003] 3 S.C.R. 571, 2003 SCC 74, is a Supreme Court of Canada decision that Parliament had the authority to criminalize the possession and trafficking of marijuana, and that power did not infringe on the section 7 of the Canadian Charter of Rights and Freedoms.
Interjurisdictional immunity is an exception to the pith and substance doctrine, as it stipulates that there is a core to each federal subject matter that cannot be reached by provincial laws. [1]
The current approach to determining the constitutionality of legislation is founded in Canadian Western Bank v Alberta, [nb 20] where the Supreme Court of Canada summarized the following principles: the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to ...
To rationalize how each jurisdiction may use its authority, certain doctrines have been devised by the courts: pith and substance [definition needed], including the nature of any ancillary powers and the colourability of legislation [clarification needed]; double aspect; paramountcy; inter-jurisdictional immunity; the living tree; the purposive ...
La Forest considered the pith and substance of the Act. He found that the dominant feature of the Act was the "[protection] of the environment and human life and health from any and all harmful substances by regulating these substances."
Paramountcy is relevant where there is conflicting federal and provincial legislation. As Justice Major explained in Rothmans: [1]. The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency.
The above branches of the power are currently governed by the principles stated by Le Dain J. in R. v. Crown Zellerbach Canada Ltd.: [11] The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a ...