Canadian constitutional law
Since the 1929 ruling in Edwards v Canada (AG), the courts have interpreted the Constitution within the context of society to ensure that it adapts and reflects changes.
As Viscount Sankey stated, "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.
If a provision of law cannot be seen to constitute a reasonable limit, demonstrably justifiable in a free and democratic society, it cannot be saved pursuant to section 1 of the Charter.
Where, however, the pith and substance of the provincial enactment is the derogation from or elimination of extraprovincial rights then, even if it is cloaked in the proper constitutional form, it will be ultra vires.
A colourable attempt to preserve the appearance of constitutionality in order to conceal an unconstitutional objective will not save the legislation.
As a consequence where one has legislative power the other has not, speaking broadly, the capacity to pass laws which will interfere with its exercise.
In that regard, Mr Justice Dickson observed: The conflict ... lies in large measures upon the opinion ... that the paramountcy doctrine became applicable because a plaintiff could resort to one set of provisions only and, having done so, there would be no scope for the other to have operational effect.
The fact that a plaintiff may have a choice of remedies does not mean that the provisions of both levels of government cannot "live together" and operate concurrently.
[11] 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 burden of proof falls on the party that is alleging paramountcy.
As Mr Justice Binnie and Mr Justice LeBel noted: To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either Where the constitutionality of legislation is being questioned in relation to the division of powers under the Constitution Act, 1867, an analysis of its pith and substance must be undertaken.
This analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates.
[13] In Quebec (AG) v Lacombe, the nature of any ancillary powers arising from the pith and substance of a matter was considered.
[15] In Canada (AG) v PHS Community Services Society, the Supreme Court expressed caution in employing the doctrine in future cases because:[nb 23] As Chief Justice McLachlin explained in that decision: [70] In summary, the doctrine of interjurisdictional immunity is narrow.
Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism.
