Report No. 49
9. Legislation how far authorised by enumerated powers-Tests applied.-
The essential problem of judicial review, under a written constitutional system where powers are distributed by reference to the subject matter, does sometimes present considerable difficulty. For the purpose of considering whether particular legislation is authorised by one or more of the enumerated powers, several tests have been applied. But these tests, though worded differently, yield substantially the same result. For example, it is stated that in considering the validity of any provision adopted in the supposed exercise of a limited power of legislative nature, the first and often the most decisive step is to ascertain the true scope of the measure impugned and the legal effect of its provisions. Again, the "pith and substance" doctrine had been evolved by the Privy Council as a necessary consequence of the double enumeration of powers, frequently overlapping, in the Canadian Constitution.
10. It has also been state1 that in every case, "the true nature and character of the legislation its ground and design and the primary matter dealt with its object and scope" are to be determined.2