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R v Morgentaler, [1993] 3 SCR 463 (Link)

Facts:

Nova Scotia enacts legislation to criminalize abortions outside of designated hospitals.
** Nova Scotia enacted this legislation, prohibiting the performance of designated medical services except for in a hospital; denied those violating the Act reimbursement under the Health Services and Insurance Act and made contravention of the Act a summary conviction offence.

Issue(s):

Is this legislation ultra vires the province of Nova Scotia to enact?

Ratio:

Federalism/Pith & Substance test:
** 1. What’s the matter or the mischief that the legislation is intended to respond to (pith and substance)?
** 2. What is the purpose and effect of the legislation?
** 3. What is the scope of the applicable heads of power (ss. 91 and 92 of the Constitution Act 1867)?

Analysis:

Federalism/Pith and Substance test:
** 1. What’s the matter or the mischief that the legislation is intended to respond to (pith and substance)?
*** Look to the statute, social context, Hansard, etc.
** 2. What is the purpose and effect of the legislation?
*** Purpose: why they passed the legislation in the first place; Not about the wisdom of the method of addressing the problem (not up to the Court); Look at: Preamble, legal (intention w/i 4 corners of leg; how the leg as a whole affects the rights and liabilities of those subject to its terms. It is determined from the terms itself) and practical effect (actual economic and social effects)
** 3. What is the scope of the applicable heads of power?
*** Must look at s.91 and s.92 of the Constitutional Act 1867.

Colourability: where a statute is in appearance, but not in substance, what it claims to be. (When a level of the government passes legislation saying that they doing so for one reason, when it is really for another)
** Case at bar: Is this an example of a colourable attempt to make an invalid law? NO, this was not a colourable attempt.

Holding:

Yes, the provincial legislation is ultra vires.


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