User:ASTRILD/Division of Powers Analysis

''Please do not edit this userpage. This user has created this userpage to draft content in a space where they may work without interference until the content is ready to be shared. For more information, please see User pages. Thank you!''

In Canada, a division of powers analysis determines whether legislation enacted by Parliament or the provincial legislatures is validly enacted under the Constitution of Canada. If legislation is not validly enacted under the Constitution, it does not have the force of law.

Overview
The Constitution divides legislative power between Parliament and the provinces by assigning different sets ("classes") of subjects on which each order of government exclusively can legislate (also called "heads of power"). Aeronautics is assigned to Parliament, for example, while hospitals are assigned to the provinces. The classes of subjects assigned to an order of government are its legislative jurisdiction. If Parliament passes a law that usurps provincial jurisdiction over hospitals, that legislation would lack the force of law because it's ultra vires - outside Parliament's allocated powers. A law properly enacted under the division of powers is intra vires - within the enacting body's powers. Laws are only constitutionally valid if they are intra vires.

The constitutional validity of a statute or part of a statute is assessed in stages (Morgentaler, para. 23). First, the legislation's pith and substance (the subject-matter of the legislation) must be identified. Second, the possible classes of subjects that could empower the legislation, given its pith and substance, are identified. Third, the proper head of power for the legislation is confirmed. See below for a more detailed overview of this analysis.

Early in Canadian jurisprudence, the courts interpreted the exclusivity of federal and provincial jurisdiction over their respective classes of subjects as theoretically prohibiting any overlap in which the legislation of one order of government might infringe on the jurisdiction of the other order. Canadian federalism has generally evolved away from this so-called 'watertight compartments' view of the division of powers, and has for decades accommodated a significant degree of jurisdictional overlap. This overlap facilitates federal and provincial co-operation to address issues with the respective strengths and abilities of each order of government (Tsilhqot'in, para. 148).

Jurisdictional overlap and legislative conflict are governed by a range of doctrines, including:
 * Incidental effects: Because pith and substance analysis determines validity by assessing whether the legislation's essential nature grounds it in a head of power assigned to its enacting body, it's possible that legislation may be found valid despite parts of it infringing incidentally upon a class of subjects assigned to the other order of government.
 * Ancillary powers: If parts of a law depart from the enacting body's jurisdiction seriously enough as to be ultra vires, those elements of the legislation may be saved under the ancillary powers doctrine if they are integral to the operation of otherwise valid legislation.
 * Double aspect: When a legislative matter has multiple aspects such that it may be validly legislated on by both the federal and provincial legislatures, that matter is said to have a double aspect. For example, speed limits have a double aspect in that they can be set by provincial legislation but enforced with criminal penalties under federal legislation.
 * Federal paramountcy: If federal and provincial legislation conflicts, the federal legislation will be paramount, meaning that the provincial legislation becomes inoperative (of no force or effect) to the extent of the legislative conflict.
 * Interjurisdictional immunity: If legislation by one order of government is found to impair the other from freely exercising its exclusive jurisdiction over an assigned head of power, a court may apply the doctrine of interjurisdictional immunity to render that legislation inapplicable (of no force or effect) to the extent of the jurisdictional conflict.

Pith and substance analysis
The purpose of pith and substance analysis is to confirm the constitutional validity of a statute or part of a statute.

1. Defining the pith and substance
The pith and substance of legislation is defined by examining the legislation's purpose (the mischief it's intended to address) and its effects (with an eye to confirming its purpose, rather than assessing its efficacy; cf. Morgentaler, para. 25).

The Supreme Court of Canada (SCC) has asserted that "[t]here is no single test for a law's pith and substance. The approach must be flexible and a technical, formalistic approach is to be avoided" (Morgentaler, para. 24).

1.1 What is the legislation's purpose?
The SCC provided in Morgentaler that the purpose of legislation may be identified by determining what mischief the legislation was intended to remedy (para. 27).

The Court has confirmed that a variety of kinds of evidence may be used for this purpose, including forms of legislative history like Hansard which can indicate legislative intent. "To determine the purpose of the challenged statute or provision, the court can consider both intrinsic evidence, such as the legislation’s preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes of parliamentary committees" (GGPPA, para. 51).

1.2 What are the effects?
The most important effects to consider are the legal effects of the legislation: "how does the statute change the rights and liabilities of those affected by it?" (Morgentaler, para. 25). These can be indicated by the legislative text, preamble, and scheme. The legislation's practical effects can be relevant to determining its pith and substance, but typically play a limited role compared with legal effects (Morgentaler, paras. 30-33).

2. Evaluating possible heads of power
Once the pith and substance of a law has been defined, it is considered against all the heads of power assigned to the respective orders of government which may encompass the legislation at issue, given its pith and substance.

2.1 Peace, Order, and Good Government
It is at this stage that federal legislation may be evaluated as coming under Parliament's peace, order, and good government (POGG) power. This is a residual power that grants legislative authority to Parliament over any classes of subjects not expressly enumerated in the division of powers, and has been interpreted to have emergency, national concern, and gap branches. Given the potential for use of the POGG power to undermine the division of powers, the courts apply tests designed for ensuring legislation comes under the POGG power only when it meets specific criteria applicable to the relevant branch of POGG being considered.

3. Validity conclusion
In the final stage, the possible heads of power are evaluated against the evidence with an eye to determining which class of subjects best fits the legislation at issue, given its pith and substance. If that head of power is within the jurisdiction of the legislative body that enacted the legislation in question, the legislation is intra vires; if not, it is ultra vires and of no force or effect.

This conclusion may be altered by the application of the doctrines listed above, especially double aspect, federal paramountcy, and interjurisdictional immunity, each of which permit or prohibit jurisdiction over an area that might otherwise appear to be within or outside a legislature's jurisdiction. A more fulsome analysis of those doctrines cannot be provided here.