What is the test for determining the pith and substance of a challenged section of legislation?
Alberta, Canada
The following excerpt is from Alberta (Director of Child Welfare) v. K.B., 2000 ABPC 113 (CanLII):
[24] In R. v. Swain (1991), 1991 CanLII 104 (SCC), 63 C.C.C.(3d) 481 (S.C.C.), Lamer, C.J.C. stated that in order to determine the pith and substance of any particular legislative provision it is necessary to examine that provision in its overall legislative context and to identify the dominant or most important characteristic of the challenged law. A similar approach was used in Schneider v. the Queen 1982 CanLII 26 (SCC), [1982] 2 S.C.R. 112 and in Westendorp v. the Queen 1983 CanLII 1 (SCC), [1983] 1 S.C.R. 43.
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