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NCA Constitutional Law study materials
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NCA Constitutional Law practice questions

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Question 1Sources and Nature of the Constitution

Which feature best describes Canada's Constitution as a mix of written statutes and unwritten rules?

  1. It is a treaty-based document binding only the provinces.
  2. It is a written constitution supplemented by unwritten conventions. Correct answer.
  3. It is a purely statutory code with no unwritten elements.
  4. It is an unwritten constitution resting entirely on convention.

Explanation

Canada's Constitution combines formal written instruments, chiefly the Constitution Acts, with unwritten conventions, common law principles, and constitutional values. Courts have recognized that these unwritten elements inform how the written text operates. The written text remains the primary source, so the system is not wholly unwritten.

Question 2Sources and Nature of the Constitution

Which statute is the foundational constitutional document that patriated the Constitution in 1982?

  1. The Statute of Westminster, 1931
  2. The Constitution Act, 1982 Correct answer.
  3. The Canada Act, 1791
  4. The Constitution Act, 1867

Explanation

The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms, the amending formulas, and the provision renaming the British North America Acts. It completed patriation by giving Canada full authority to amend its own Constitution. The older statutes remain in force but do not perform that function.

Question 3Sources and Nature of the Constitution

Which section of the Constitution Act, 1982 states that the Constitution is the supreme law of Canada?

  1. Section 24
  2. Section 52 Correct answer.
  3. Section 33
  4. Section 1

Explanation

Section 52(1) declares the Constitution of Canada to be the supreme law and provides that any law inconsistent with it is of no force or effect. This supremacy clause grounds judicial review of legislation. The other sections deal with limitation, enforcement, and legislative override respectively.

Question 4Sources and Nature of the Constitution

Which branch of government exercises the royal prerogative and executive authority under the Constitution?

  1. The House of Commons
  2. The judiciary
  3. The Senate
  4. The executive Correct answer.

Explanation

Executive authority is formally vested in the Crown and exercised through the Governor General and the federal executive. The judiciary interprets law, while the Senate and House of Commons are legislative bodies. The prerogative therefore belongs to the executive branch.

Question 5Sources and Nature of the Constitution

What term describes the unwritten rules that govern how constitutional actors exercise their legal powers?

  1. Regulations
  2. Resolutions
  3. Conventions Correct answer.
  4. Statutes

Explanation

Constitutional conventions are unwritten rules that constrain and guide the exercise of legal powers by constitutional actors. They are politically enforced rather than judicially enforceable in the ordinary sense. Statutes and regulations are written instruments, while resolutions are formal expressions of a body.

Question 6Sources and Nature of the Constitution

According to the preamble to the Constitution Act, 1867, the provinces desired to be federally united with a constitution similar in principle to which system?

  1. That of Australia
  2. That of the United States
  3. That of France
  4. That of the United Kingdom Correct answer.

Explanation

The preamble expresses the desire for a constitution similar in principle to that of the United Kingdom. Courts have used this language to recognize parliamentary democracy and the rule of law as underlying constitutional principles. The reference is to the Westminster model, not to foreign republics or federations.

Question 7Sources and Nature of the Constitution

Which of the following is generally regarded as a source of the Constitution of Canada under section 52(2)?

  1. Municipal bylaws
  2. The Constitution Acts, 1867 to 1982 Correct answer.
  3. Federal policy manuals
  4. Provincial regulations

Explanation

Section 52(2) defines the Constitution of Canada to include the Constitution Acts, amendments, and other instruments designated by the Acts. Municipal bylaws, regulations, and policy manuals are ordinary subordinate instruments, not constitutional sources. The Constitution Acts are expressly listed.

Question 8Sources and Nature of the Constitution

A court is asked whether an unwritten constitutional principle can invalidate legislation. Which statement best reflects the prevailing judicial approach?

  1. Unwritten principles are never relevant to constitutional interpretation.
  2. Unwritten principles override the text of the Constitution Acts.
  3. Unwritten principles can invalidate legislation whenever a judge finds them persuasive.
  4. Unwritten principles may inform interpretation but cannot by themselves invalidate legislation. Correct answer.

Explanation

The Supreme Court has held that unwritten principles such as democracy and the rule of law inform and structure interpretation but are not independent bases for invalidating legislation. They operate alongside the written text rather than above it. This preserves the primacy of the written Constitution.

Question 9Sources and Nature of the Constitution

Which imperial statute confirmed that no future British law would extend to Canada except at Canada's request and consent?

  1. The British North America Act, 1949
  2. The Statute of Westminster, 1931 Correct answer.
  3. The Constitution Act, 1982
  4. The Colonial Laws Validity Act, 1865

Explanation

The Statute of Westminster, 1931 ended the colonial rule that British statutes could bind the dominions and required consent for any future extension of British law. It was a major step toward legislative independence. The 1982 Act completed patriation, and the 1865 Act had imposed the opposite rule.

Question 10Sources and Nature of the Constitution

What does the principle of parliamentary sovereignty mean in the Canadian constitutional context?

  1. Parliament is the supreme law-making body subject to constitutional limits. Correct answer.
  2. Parliament may override all Charter rights without restriction.
  3. Parliament shares sovereignty equally with municipal councils.
  4. Parliament can amend the Constitution unilaterally at any time.

Explanation

Parliamentary sovereignty means the legislature is the supreme law-making authority, but in Canada it operates within the limits set by the Constitution and judicial review. Parliament cannot unilaterally amend the Constitution, which requires the applicable amending formula. The override power under section 33 is itself a limited constitutional mechanism.

Question 11Sources and Nature of the Constitution

Which constitutional principle requires that laws be publicly enacted, prospective, and applied by independent courts?

  1. Parliamentary privilege
  2. The rule of law Correct answer.
  3. Judicial independence
  4. Federalism

Explanation

The rule of law requires that law be public, general, prospective, and applied through independent adjudication. It also constrains arbitrary government action. Federalism divides powers, judicial independence protects adjudicators, and parliamentary privilege shields legislative proceedings.

Question 12Sources and Nature of the Constitution

The Supreme Court's decision on the secession reference identified four underlying constitutional principles. Which set is correct?

  1. Federalism, monarchy, sovereignty, and efficiency
  2. Democracy, liberty, equality, and property
  3. Federalism, democracy, constitutionalism and the rule of law, and respect for minorities Correct answer.
  4. Parliamentary supremacy, convention, prerogative, and comity

Explanation

The Secession Reference identified federalism, democracy, constitutionalism and the rule of law, and protection of minorities as the four organizing principles. These principles work together rather than in isolation. The other sets mix concepts that were not identified as the four principles.

Question 13Sources and Nature of the Constitution

A province argues that a federal statute violates an unwritten principle of democracy, though the statute complies with the division of powers and the Charter. How should a court likely respond?

  1. Strike down the statute because unwritten principles are supreme.
  2. Uphold the statute, since unwritten principles alone do not invalidate valid legislation. Correct answer.
  3. Refer the matter to the Senate for a binding ruling.
  4. Invalidate the statute only if two provinces object.

Explanation

Unwritten principles inform interpretation but do not independently invalidate legislation that otherwise respects the written Constitution. A court would uphold the statute unless a specific written provision is breached. Provincial objection or Senate referral has no bearing on constitutional validity.

Question 14Sources and Nature of the Constitution

Which document formally requested the enactment of the Constitution Act, 1982 by the British Parliament?

  1. The Meech Lake Accord
  2. The Victoria Charter
  3. The Canada Act, 1982 Correct answer.
  4. The Charlottetown Accord

Explanation

The Canada Act, 1982 was the United Kingdom statute that enacted and gave effect to the Constitution Act, 1982 in Canada. It terminated British legislative authority over Canada. The accords and charter were failed or proposed agreements, not the enacting statute.

Question 15Sources and Nature of the Constitution

Which characteristic distinguishes a constitutional convention from a legal rule?

  1. Conventions are enforced politically rather than by courts. Correct answer.
  2. Conventions apply only to judges.
  3. Conventions are always written into statutes.
  4. Conventions are enforced by courts through damage awards.

Explanation

Conventions are enforced through political accountability rather than judicial orders, though courts may recognize their existence. Legal rules are enforced by courts and carry legal consequences. Conventions are typically unwritten and apply to a range of constitutional actors.

Question 16Sources and Nature of the Constitution

What is the effect of section 52(1) when a statute is inconsistent with the Constitution?

  1. The statute is referred to the Governor General for approval.
  2. The statute is of no force or effect to the extent of the inconsistency. Correct answer.
  3. The statute is suspended automatically for five years.
  4. The statute remains valid but loses its preamble.

Explanation

Section 52(1) renders inconsistent laws of no force or effect to the extent of the inconsistency. Courts give effect to this by declaring legislation invalid or inapplicable. The provision does not create automatic suspensions or require executive approval.

Question 17Sources and Nature of the Constitution

In the Secession Reference, how did the Court describe the relationship among the underlying constitutional principles?

  1. They are interdependent and must be balanced against one another. Correct answer.
  2. They are mutually exclusive and applied one at a time.
  3. They apply only during constitutional amendments.
  4. They are hierarchical, with democracy ranking highest.

Explanation

The Court described the principles as interdependent and of equal weight, requiring reconciliation rather than hierarchy. None operates in isolation from the others. They inform the whole constitutional order, not only amendment processes.

Question 18Sources and Nature of the Constitution

A litigant argues that the preamble to the Constitution Act, 1867 protects a right to strike. How does the Supreme Court's jurisprudence treat such preamble-based claims?

  1. The preamble can inform interpretation but does not create independent rights. Correct answer.
  2. The preamble creates enforceable freestanding rights on its own.
  3. The preamble is irrelevant and may not be considered.
  4. The preamble applies only to provincial legislation.

Explanation

The preamble is a interpretive aid that helps identify underlying constitutional principles, but it does not itself create enforceable rights. Claims must be grounded in specific provisions such as the Charter or division of powers. The preamble applies across the constitutional order, not only to provinces.

Question 19Sources and Nature of the Constitution

Which statement best explains why the Constitution Act, 1982 is considered part of the supreme law despite being enacted by a foreign legislature?

  1. Because it was subsequently incorporated into Canadian law and given domestic effect. Correct answer.
  2. Because it replaced all prior constitutional statutes.
  3. Because the monarch personally signed it in Canada.
  4. Because the provinces ratified it unanimously.

Explanation

The Constitution Act, 1982 was enacted by the United Kingdom Parliament but was given domestic legal force in Canada through the Canada Act, 1982. Its authority now derives from its status as part of the Constitution of Canada under section 52. Unanimous provincial ratification and personal royal signing are not the legal basis for its supremacy.

Question 20Sources and Nature of the Constitution

Which proposition about the relationship between the rule of law and parliamentary sovereignty is most consistent with Canadian constitutional doctrine?

  1. The rule of law operates only in criminal matters.
  2. Parliamentary sovereignty is absolute and the rule of law is merely advisory.
  3. Both principles operate together, with legislative power exercised within constitutional limits. Correct answer.
  4. The rule of law permits courts to rewrite statutes they consider unjust.

Explanation

Canadian doctrine treats parliamentary sovereignty and the rule of law as complementary principles operating within the constitutional framework. Legislatures hold broad authority, but it is exercised subject to constitutional limits and judicial review. Courts interpret and apply the law but do not rewrite statutes on policy grounds.

Question 21Constitutional Interpretation and Principles

Which constitutional principle holds that a statute conflicting with the constitution is invalid and cannot be enforced?

  1. The principle of supremacy of the constitution Correct answer.
  2. The principle of stare decisis
  3. The principle of comity
  4. The principle of parliamentary sovereignty

Explanation

Constitutional supremacy means the constitution is the highest law, so any statute inconsistent with it is void and unenforceable. Courts enforce this by reviewing legislation against constitutional text and values. Parliamentary sovereignty and precedent govern other relationships but do not permit a conflicting statute to survive.

Question 22Constitutional Interpretation and Principles

A court is asked to strike down a statute for violating an unwritten constitutional principle. Which approach best reflects a purposive method of interpretation?

  1. Examining the provision's purpose and the values it serves Correct answer.
  2. Applying the most recent precedent without analysis
  3. Reading the text literally and ignoring underlying values
  4. Deferring entirely to the legislature's stated intent

Explanation

Purposive interpretation asks what the provision was designed to achieve and reads the text in light of the constitutional values it protects. It treats the constitution as a living framework rather than a narrow set of rigid rules. Literalism and blind deference both fail to engage with underlying purposes.

Question 23Constitutional Interpretation and Principles

What does the doctrine of the living tree mean in constitutional interpretation?

  1. The constitution applies only to the generation that adopted it
  2. The constitution should be read as adaptable to evolving social conditions Correct answer.
  3. The constitution expires after a fixed period
  4. The constitution may be amended only by referendum

Explanation

The living tree doctrine treats the constitution as a living document whose meaning can grow to meet new circumstances. It permits courts to adapt general language to changing social realities without formal amendment. It does not authorize ignoring the text or limiting the constitution to its drafters' era.

Question 24Constitutional Interpretation and Principles

Which doctrine permits a court to sever an invalid portion of a statute so the remainder can continue to operate?

  1. Suspension of invalidity
  2. Severance Correct answer.
  3. Reading in
  4. Reference procedure

Explanation

Severance allows a court to remove the unconstitutional part of a statute while preserving the valid remainder. It applies where the surviving provisions remain workable and consistent with legislative intent. Reading in adds words, suspension delays invalidity, and references seek advisory opinions.

Question 25Constitutional Interpretation and Principles

The principle that courts should interpret legislation consistently with constitutional rights where possible is known as what?

  1. Standing
  2. Presumption of constitutionality
  3. Charter-consistent interpretation Correct answer.
  4. Judicial restraint

Explanation

Charter-consistent interpretation requires courts to prefer an interpretation of a statute that conforms to constitutional rights if such a reading is reasonably available. It avoids unnecessary invalidation by harmonizing legislation with constitutional values. The presumption of constitutionality is a related but distinct idea about who bears the burden.

Question 26Constitutional Interpretation and Principles

Which source of constitutional meaning is generally considered binding and authoritative in a codified constitutional system?

  1. Academic commentary
  2. The constitutional text itself Correct answer.
  3. Public opinion polls
  4. Foreign court decisions

Explanation

In a codified system the constitutional text is the primary authoritative source of constitutional meaning. Commentary, opinion polls, and foreign decisions may inform interpretation but are not binding. Courts must ultimately ground rulings in the enforceable text and its structure.

Question 27Constitutional Interpretation and Principles

A legislature passes a law limiting a constitutional right. A court applies a proportionality test. Which step asks whether the law achieves its objective through means that impair the right as little as possible?

  1. The pressing and substantial objective step
  2. The rational connection step
  3. The balancing step
  4. The minimal impairment step Correct answer.

Explanation

Minimal impairment asks whether the means chosen restrict the right no more than reasonably necessary to achieve the objective. The objective step asks whether the goal is pressing and substantial, the rational connection step tests whether the means further the goal, and balancing weighs overall effects. Identifying the correct step is essential to structured proportionality analysis.

Question 28Constitutional Interpretation and Principles

A court must decide whether a private individual can be held liable for violating a constitutional right. Which concept determines whether constitutional norms apply to private actors?

  1. Justiciability
  2. Vertical effect
  3. Mootness
  4. Horizontal effect Correct answer.

Explanation

Horizontal effect describes the application of constitutional rights between private parties. Vertical effect governs the relationship between the individual and the state. Justiciability and mootness concern whether a court can or should hear a dispute at all.

Question 29Constitutional Interpretation and Principles

A government argues that a challenged policy falls within its core constitutional responsibility and asks for deference. Which factor most strongly supports judicial deference in a proportionality analysis?

  1. The policy affects a small number of people
  2. The policy was enacted quickly without debate
  3. The policy is popular with a majority of voters
  4. The policy involves a complex resource allocation with polycentric effects Correct answer.

Explanation

Deference is strongest where courts lack institutional competence, such as complex resource allocation with wide-ranging effects. Popularity, speed of enactment, and the size of the affected group are not reliable indicators of deference. Courts retain their role to scrutinize rights limits regardless of majority support.

Question 30Constitutional Interpretation and Principles

Which of the following best describes the presumption of constitutionality?

  1. Statutes are presumed invalid until the government proves otherwise
  2. Courts must always accept the legislature's view of constitutionality
  3. The constitution is presumed to be silent on contested issues
  4. Legislation is presumed valid unless shown to be inconsistent with the constitution Correct answer.

Explanation

The presumption of constitutionality places the burden on the challenger to show that a law conflicts with the constitution. It reflects respect for the legislature but does not make legislative views conclusive. Courts still review the law and may invalidate it when the presumption is rebutted.

Question 31Constitutional Interpretation and Principles

A court finds a statute unconstitutional but gives the legislature one year to amend it, keeping the law in force meanwhile. What remedy is this?

  1. Reading down
  2. Suspension of invalidity Correct answer.
  3. Declaration of incompatibility
  4. Severance

Explanation

Suspension of invalidity temporarily preserves an unconstitutional law so the legislature can respond without a legal vacuum. Severance removes offending text, reading down narrows its scope, and a declaration of incompatibility signals inconsistency without invalidating the law. The remedy balances rights protection with orderly legislative correction.

Question 32Constitutional Interpretation and Principles

Which interpretive principle directs courts to consider the constitution's structure and the relationships among its branches rather than isolated clauses?

  1. Structural interpretation Correct answer.
  2. Textualism
  3. Stare decisis
  4. Originalism

Explanation

Structural interpretation infers meaning from the architecture of the constitution and the relationships it establishes among institutions. Originalism and textualism focus on historical meaning or plain words, while stare decisis concerns precedent. Structural reasoning helps resolve questions the text does not address explicitly.

Question 33Constitutional Interpretation and Principles

A litigant argues that a constitutional provision should be read narrowly because the drafters intended a limited scope. Which interpretive theory is the litigant invoking?

  1. Originalism Correct answer.
  2. Living tree
  3. Purposivism
  4. Structuralism

Explanation

Originalism holds that constitutional meaning is fixed by the understanding of those who adopted the text. The litigant's reliance on drafter intent is a classic originalist argument. Living tree, purposivism, and structuralism instead emphasize evolving meaning, underlying objectives, or institutional design.

Question 34Constitutional Interpretation and Principles

A court applies the Oakes test to a limit on freedom of expression. Which step requires the government to show the limit is rationally connected to its objective?

  1. The minimal impairment step
  2. The rational connection step Correct answer.
  3. The definitional step
  4. The balancing step

Explanation

The rational connection step requires a causal link between the limiting measure and the legislative objective. Minimal impairment asks whether a less restrictive alternative exists, and balancing weighs the overall effects. The definitional step concerns whether a right was engaged in the first place.

Question 35Constitutional Interpretation and Principles

Which concept limits courts from deciding abstract political questions that are not suited to judicial resolution?

  1. Mootness
  2. Justiciability Correct answer.
  3. Standing
  4. Ripeness

Explanation

Justiciability is the umbrella doctrine determining whether a dispute is appropriate for judicial decision, including political question concerns. Standing asks who may sue, ripeness asks whether a dispute is premature, and mootness asks whether it is too late. Together these doctrines confine courts to genuine, concrete controversies.

Question 36Constitutional Interpretation and Principles

A constitutional provision uses broad language such as 'reasonable limits prescribed by law.' Which interpretive approach would examine how similar phrases have been applied in prior cases?

  1. Precedent-based reasoning Correct answer.
  2. Originalism
  3. Structuralism
  4. Textualism

Explanation

Precedent-based reasoning looks to how courts have construed similar language in earlier decisions to ensure consistency. It complements textual analysis by giving content to open-ended standards. Originalism, textualism, and structuralism each offer distinct starting points but do not center prior applications.

Question 37Constitutional Interpretation and Principles

A court must decide whether a constitutional right to privacy includes protection against unreasonable data collection. The text is silent. Which approach best supports recognizing a derived right?

  1. Applying foreign statutes directly as binding law
  2. Reading the text as exhaustive and denying any unenumerated rights
  3. Inferring the right from related enumerated rights and underlying values Correct answer.
  4. Deferring entirely to the legislature's definition of privacy

Explanation

Courts may recognize unenumerated rights by reasoning from enumerated rights and the values they protect, such as dignity and autonomy. Treating the text as exhaustive would freeze constitutional protection and ignore structural implications. Legislative definitions and foreign statutes are not controlling sources of constitutional meaning.

Question 38Constitutional Interpretation and Principles

A government justifies a rights limit by citing a pressing and substantial objective. Which feature most strengthens that justification?

  1. The objective is broadly worded and aspirational
  2. The objective addresses a concrete, serious harm supported by evidence Correct answer.
  3. The objective reflects the governing party's election platform
  4. The objective was adopted without public consultation

Explanation

A pressing and substantial objective is strongest when it targets a concrete, serious harm and is supported by evidence. Election platforms, aspirational wording, and lack of consultation do not establish the gravity of the harm. Courts assess the substance of the objective rather than its political origin.

Question 39Constitutional Interpretation and Principles

A court considers reading down a statute to avoid a constitutional conflict. Which condition is essential for this remedy to be appropriate?

  1. The narrowed reading must contradict the plain text
  2. The narrowed reading must apply only to the litigant before the court
  3. The narrowed reading must eliminate the statute entirely
  4. The narrowed reading must remain consistent with the legislature's intent and the statutory scheme Correct answer.

Explanation

Reading down is appropriate only if the narrowed interpretation is consistent with legislative intent and the overall statutory scheme. It preserves the law while curing the constitutional defect. Eliminating the statute, contradicting plain text, or limiting relief to one litigant is inconsistent with the remedy's purpose.

Question 40Constitutional Interpretation and Principles

Two constitutional provisions appear to conflict. Which interpretive technique seeks to harmonize them so both retain meaningful effect?

  1. The rule of lenity, resolving ambiguity against the state
  2. The political question doctrine, leaving the conflict to the legislature
  3. The presumption of harmony, reading provisions together as a coherent whole Correct answer.
  4. The doctrine of eclipse, suspending one provision indefinitely

Explanation

Courts prefer interpretations that harmonize apparently conflicting provisions so each retains meaning. This reflects the assumption that a constitution is a coherent document rather than a collection of unrelated rules. Eclipse, lenity, and political question doctrine address different problems and do not reconcile conflicting provisions.

Question 41Federalism and Division of Powers

Which constitutional provision is the principal textual basis for the federal Parliament's residual law-making authority in Canada?

  1. Section 91's opening words granting power to make laws for the peace, order and good government of Canada Correct answer.
  2. Section 133's rules on the use of English and French in courts
  3. Section 92's enumeration of provincial powers over property and civil rights
  4. Section 121's guarantee of free entry of goods between provinces

Explanation

The opening clause of section 91 confers on Parliament authority to legislate for the peace, order and good government of Canada in relation to matters not assigned exclusively to the provinces. It operates as a residual head, filling subjects not captured by the enumerated provincial list in section 92. The enumerated heads in section 91 also supply specific federal jurisdiction.

Question 42Federalism and Division of Powers

In the division of powers, what does the doctrine of 'double aspect' permit?

  1. A court may strike down a statute that overlaps with another level's law
  2. Both levels of government may validly legislate on the same subject matter from different angles Correct answer.
  3. A province may delegate its legislative authority permanently to Parliament
  4. Parliament may legislate in a provincial field whenever it considers the matter urgent

Explanation

Double aspect recognises that some subjects carry both federal and provincial dimensions, so each level may legislate for its own purpose. Both statutes can be valid and operate concurrently. The doctrine does not give one level priority over the other.

Question 43Federalism and Division of Powers

Which head of section 92 gives provinces their most significant economic jurisdiction?

  1. The establishment of penitentiaries
  2. Property and civil rights in the province Correct answer.
  3. The regulation of trade and commerce
  4. Naval and military defence

Explanation

Property and civil rights in the province is the broad provincial head covering contracts, property, commercial relations and most private law. It supports much provincial regulation of markets and professions. The other listed heads sit in section 91.

Question 44Federalism and Division of Powers

What is the constitutional effect of a valid federal law that conflicts with a valid provincial law in the same field?

  1. The federal law is read down to avoid touching provincial jurisdiction
  2. The conflict is resolved by a joint committee of the two legislatures
  3. Both laws remain fully enforceable side by side
  4. The provincial law is inoperative to the extent of the conflict under federal paramountcy Correct answer.

Explanation

Paramountcy holds that where a valid federal law and a valid provincial law genuinely conflict, the federal law prevails and the provincial law is inoperative to the extent of the inconsistency. The provincial law is not invalidated; it is suspended in its operation. If the federal law is repealed, the provincial law can revive.

Question 45Federalism and Division of Powers

Which body has the constitutional authority to decide disputes about the division of powers between Parliament and the provincial legislatures?

  1. The courts, through judicial review Correct answer.
  2. The Governor General in Council
  3. A joint committee of Parliament and the provinces
  4. The Senate alone

Explanation

Courts determine whether legislation falls within federal or provincial competence and can declare statutes invalid or inapplicable. This authority is exercised through judicial review of legislation. It is not vested in the executive or in either chamber of Parliament.

Question 46Federalism and Division of Powers

What does the 'pith and substance' analysis identify?

  1. The true purpose and effect of a challenged statute Correct answer.
  2. The number of provinces affected by a statute
  3. The date on which a statute received royal assent
  4. The minister responsible for administering a statute

Explanation

Pith and substance asks what a law is really about, considering its purpose, its legal effect and its practical consequences. Once the dominant characteristic is identified, it is assigned to a head of power. Ancillary features that touch another level's jurisdiction do not necessarily invalidate the law.

Question 47Federalism and Division of Powers

Which of the following is an example of a matter within exclusive federal jurisdiction under the Constitution?

  1. The regulation of local retail opening hours
  2. The licensing of provincial real estate agents
  3. The administration of municipal zoning bylaws
  4. The regulation of aeronautics and air navigation Correct answer.

Explanation

Aeronautics is a federal subject because it has a national dimension and requires uniform regulation, and it has been treated as falling within federal competence. Provincial matters such as local commerce and municipal zoning remain provincial. Local retail hours are typically provincial.

Question 48Federalism and Division of Powers

What does the doctrine of interjurisdictional immunity do?

  1. It makes federal and provincial laws automatically identical in effect
  2. It requires the provinces to obtain federal approval before legislating
  3. It transfers disputed matters to the courts for legislation
  4. It protects a core area of jurisdiction of one level of government from impairment by the other Correct answer.

Explanation

Interjurisdictional immunity shields the core of a head of power from laws of the other level that would impair it. Historically it was applied to federal undertakings such as railways and banks. The Supreme Court has narrowed its use in favour of a more restrained application.

Question 49Federalism and Division of Powers

A province enacts a law setting minimum wages for all workers, including employees of a federally regulated bank. The bank argues the law is invalid. Which analysis best fits the constitutional framework?

  1. The law is automatically invalid because it touches a federal undertaking
  2. The law is invalid because minimum wages fall under the federal trade and commerce power
  3. The law is valid and applies fully, since labour relations belong exclusively to the provinces
  4. The law is valid in pith and substance as labour regulation; whether it applies to the bank raises an interjurisdictional immunity or paramountcy question Correct answer.

Explanation

Minimum wage standards are in pith and substance labour relations, a provincial matter, so the statute is valid. Its application to a federal undertaking such as a bank raises questions of interjurisdictional immunity and possibly federal paramountcy. Validity and applicability are distinct inquiries.

Question 50Federalism and Division of Powers

Parliament creates a scheme regulating the marketing of a product across Canada, including detailed rules on local retail sales within each province. A province challenges the law. What is the strongest constitutional objection?

  1. Marketing schemes are reserved to the territories
  2. The local retail rules are in pith and substance property and civil rights in the province and may not be validly enacted by Parliament Correct answer.
  3. Provincial legislatures cannot be affected by federal laws
  4. Parliament may never legislate on marketing under any head of power

Explanation

A federal marketing scheme may be valid in its national dimensions, but provisions directed at local retail transactions can be characterised as property and civil rights within the province. The court would ask whether the local rules are truly ancillary to the federal scheme. If they are not, they exceed federal competence.