What is the test for determining pith and substance of an impugned legislative provision in a division of powers case?
Alberta, Canada
The following excerpt is from Barr v Alberta (Attorney General), 2016 ABQB 671 (CanLII):
Generally, the determination of the pith and substance of an impugned legislative provision does not involve reference to extrinsic evidence except the type of extrinsic evidence previously mentioned – extrinsic evidence with an institutional quality. Generally, the court will have reference mainly to intrinsic evidence – the words of the impugned legislative provision which will reveal the purpose and effects of the provision and its pith and substance for constitutional division of powers purposes. Occasionally extrinsic evidence which does not have an institutional quality has been admitted in a division of powers case, but in my view, the type of situation where this has occurred does not exist in this case. (Ward v. Canada [2002] 1 S.C.R. 713).
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