Ward V Canada Case Summary

This paper will analyse the case of Ward v. Canada (Attorney General), 2002, from a theoretical perspective of a Legal Positivist.
This case was a Supreme Court of Canada decision on federalism. The issue before the Supreme Court of Canada was whether s27 of Marine Mammals Regulation, SOR 56/93, of the Fisheries Act is a valid exercise of the federal fisheries power or the federal criminal law power. The majority of the Newfoundland court of Appeal reversed then trial judgment and held the regulation invalid. They held that the issues of conservation and socio-economic was too board for describing divisions of powers purposes. It was the view of the dissenting Judge, O’Neill J.A, that the pith and substance of the regulation was not to control …show more content…
The court brought in a legal rule of the pith and substance analysis. McLachlin of the Supreme Court said the pith and substance test is resolved by looking at the purpose and legal effect of the regulation or law. The purpose refers to what the legislature wanted to accomplish. In this case, the purpose was relevant to determine, if the Parliament was regulating the fishery, or venturing into the provincial area of property and civil rights. While the legal effect refers to how the law will affect rights and liabilities, which is also helpful in illuminating the core meaning of the law. Since the legal principle said you have to look at the effects, a legal positivist would say lets go on to the effects. Section 27 of the regulation is simply the prohibition of sale trade or barter. However, to find its purpose, the court went further and looked at the legislative history of the regulation by citing the Malouf Commissions to save Canada’s market for seals. The court concluded that s. 27 prohibition on sale is essentially concerned with curtailing the commercial hunting of white-coats and bluebacks for the economic protection of the fisheries resource. Therefore, it is in ‘pith and substance’ of the law, concerned with the management of the Canadian fishery. Having determined, the pith and substance of the s27, the court asked whether it is within the federal …show more content…
A legal positivist do not like other things coming into the law such as; aboriginal rights and social justice, which the court did not look at. A legal positivist would appreciate the concept of the pith and substance analysis since it is a legal rule with its own terms. A legal positivist believe that the law is the law and in the case, the pith and substance is the purpose of the law. The pith and substance test has a procedure in analysing the case, and the court followed and answered the relevant questions needed to be answered to settle the pith and substance analysis to make their decisions. Since the law was created for to preserve fishery, which its legal effects was in relation to rights and liabilities, they can’t question anything that has to do with justice and humanity. Although, legal positivist looks at rights because law is associated with rights but not morality because they think law is positive. A legal positivist would not care if the regulation of fishery fell under the federal power or the provincial power, but as far as the legal rule was strictly abided in this case, the would agree with whatever the final judgement