CHAPTER I I

ASPECT, PITH AND SUBSTANCE,

AND TRUE NATURE AND CHARACTER

Yet another interpretative fonnula of the same blood-group as those

discussed in the two immediately preceding chapters is the "aspect"
or "double aspect" doctrine. This was given its first enunciation in
relation to Canada, by the Privy Council in Hodge v. The Queen,1 and
stated more fully by Viscount Haldane in John Deere Plow Co. v.
Wharton: 2
It must be borne in mind in construing the two sections [sc. Sections 91 and 92 of
the British North America Act] that matters which in a special aspect and for a
particular purpose may fall within one of them may in a different aspect and for a
different purpose fall within the other. In such cases the nature and scope of the
legislative attempt of the Dominion or the Province, as the case may be, have to
be examined with reference to the actual facts if it is to be possible to determine
under which set of powers it falls in substance and in reality.

The detennination of whether a particular exertion of legislative

power has a federal aspect or a provincial aspect amounts to de-
tennining what is the "pith and substance" 3 of the statute, or what
is its "true nature and character." 4 In its clear reference to the purpose
and effect of the legislation in question, the "aspect" doctrine is
therefore largely another version of the problem involved in de-
tennining the existence of necessarily implied, or necessarily incidental,
powers.5 As with interstate commerce, we shall find that the principal
conceptual difficulties arise where courts endeavour to characterise
legislation in relation to its "subject matter," rather than in relation
1 (1883) 9 App. Cas. II7, 130 (P.C.).
s [1915] A.C. 330, 339 (P.C.).
a Union Colliery Co. v. Bryden, [1899] A.C. 580, 587 (P.C.).
4 Russell v. The Queen, (1882) 7 App. Cas. 829, 839-40 (P.C.).
S Cf. Laskin, "Peace, Order and Good Government" Re-examined, 25 Can. B. Rev. 1054, 1061
(1947), repeated in Laskin, Canadian Constitutional Law, 94 (2nd. ed. 1960); Mundell, Tests
for Validity of Legislation under the British North America Act, 32 Can. B. Rev. 813, 836-37
(1954).

V. S. Mackinnon, Comparative Federalism

© Martinus Nijhoff, The Hague, Netherlands 1964
148 TECHNIQUES OF INTERPRETATION

to its purpose and effect. In other words, here once again we ought to
be concerned with "acts" not "things." 6
In Australia the "pith and substance" test was ostensibly rejected
by both the High Court and the Privy Council in the Bank N ationali-
zation Case,7 but this was principally because both judicial bodies
considered this to be a relevant test only where the problem was as to
whether some particular "subject matter" was affected by the statute
in question; in the case before them the respective courts did not
consider that they reached the question of "subject matter" at all,
since they held that the challenged statute was an outright "prohi-
bition" and not a "regulation" of any subject matter. The "pith and
substance" or "true nature and character" test has, however, been
applied by the Australian High Court in other cases where the "prohi-
bition-regulation" dichotomy has been in issue. 8 Furthermore, in
P.]. Magennis Pty. Ltd. v. The Commonwealth,9 it was explicitly stated
that legislation can be both "with respect to" the acquisition of
property and "with respect to" other purposes with respect to which
the Commonwealth has power to make laws, such as defence or the
giving of financial assistance to the States.
Just as in the Australian Constitution federal legislative power is
conferred "with respect to" the enumerations of Section 51, so in
Canada legislative power, Dominion and Provincial, is conferred
6 The revival of the "aspect" doctrine in A.-G. for Ontario v. Canada Temperance Feder-
ation, [I946J A.C. 193, 205 (P.c.) is rather unhappily phrased by Viscount Simon: "In their
Lordships' opinion, the true test must be found in the real subject matter of the legislation: if
it is such that it goes beyond local or provincial concern or interests and must from its
inherent nature be the concern of the Dominion as a whole ... then it will fall within the
competence of the Dominion Parliament as a matter affecting the peace order and good
government of Canada, though it may in another aspect touch on matters specially reserved
to the provincial legislatures."
7 Bank of New South Wales v. The Commonwealth, 76 Commw. L.R. I, 185 (1948) (High
Court): The Commonwealth v. Bank of New South Wales, [I950J A.C. 235, 312-13 (P.C.).
8 Ex parte Nelson (No. I), 42 Commw. L.R. 209, 218 (1928); Peanut Board v. Rockhampton
Harbour Board, 48 Commw. L.R. 266, 283 (1933). Cf. Cam fir Sons Pty. Ltd. v. Chief Secretary
(N.S.W.), 84 Commw. L.R. 442 (1951).
9 80 Comm. L.R. 382 (1949). There was dispute here as to whether the acquisition which
resulted (from a co-operative scheme between State and Commonwealth for the resettlement
of ex-servicemen) was by the State or by the Commonwealth. The majority held that the
acquisition was in effect by the Commonwealth, that the Commonwealth could acquire only
under Section 5I(xxxi) of the Constitution, which requires it to do so on "just terms", and
that as the terms here were not "just" the statutes concerned were invalid. The dissenting
opinions took the view that the acquisition was by the State (which is not restricted to "just
terms" of acquisition) and an agreement between Commonwealth and State in aid of the
resettlement scheme embodied in a federal statute was not a law "with respect to" acqui-
sition. The State legislation was subsequently amended so as to sever the links deemed to
exist between Commonwealth and State as regards the acquisition provisions. This amended
legislation was held valid: Tunnock v. Victoria, 84 Commw. L.R. 42 (1951); Pye v. Renshaw,
84 Commw. L.R. 58 (1951).