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Dominion Disallowance of Provincial Legislation in Canada
Published online by Cambridge University Press: 02 September 2013
Extract
Although there is a federal form of government in both the Dominion of Canada and the United States, there are striking differences in the two types of federalism. Some of these differences are to be found in fundamentals, such as the basis upon which the powers of government are divided in the two countries. Less striking, but nevertheless significant, are still other points of variance. Among these is the power which the dominion government has to disallow legislative acts of the provinces. Just why the fathers of the Canadian federation thought this power should be given to the central government is not clear. The fact remains, however, that in the years from 1867 to 1935, at least 114 provincial acts and territorial ordinances were set aside. It is important to note that these acts were disallowed by executive officers of the dominion government. Executive officers of the national government in the United States do not possess similar powers where state legislation is concerned.
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- Foreign Governments and Politics
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- Copyright
- Copyright © American Political Science Association 1937
References
1 Sections 56 and 90. See Lefroy, A. H., Canada's Federal System (Toronto, 1913), p. 31Google Scholar.
2 Lefroy, A. H., Canadian Constitutional Law (Toronto, 1918), p. 62Google Scholar. Also, Kennedy, W. P. M., The Constitution of Canada (London, 1922), p. 415Google Scholar.
3 See, for example, the protest made against an Ontario statute by the Dominion Association of Chartered Accountants. The communication of the minister of justice to the governor-general in council reads, in part: “Recently, … a petition dated 31st ultimo has been received from the Dominion Association of Chartered Accountants praying for … disallowance … and they allege, apparently with truth, that the effect of this section (42) is to prohibit the members of the Dominion Association from describing themselves as … Dominion Chartered Accountants. …” See Provincial Legislation, 1896–1920 (compiled by Grisborne, F. H. and Fraser, A. A., Ottawa, 1922), pp. 89, 90Google Scholar.
4 Lefroy, , Constitutional Law, p. 62Google Scholar.
5 In 1899, for example, the United States protested against the discriminatory character of a British Columbia statute affecting the position of aliens engaged in mining in that province. The petition of interested United States citizens was sent to the British chargé d'affaires at Washington, who in turn communicated with his government in London. Notice was sent from the imperial government to the dominion government at Ottawa. Provincial Legislation, p. 566.
6 See Provincial Legislation, p. 538, for a communication from the minister of justice to the governor-general in which attention is drawn to the protest lodged by the Japanese consul at Vancouver against a British Columbia statute regulating labor.
7 See, for example, a communication of the minister of justice to the governorgeneral in council respecting a Manitoba statute seeking to incorporate an accident insurance company. Provincial Legislation, p. 515. See ibid., p. 567, for similar procedure on a British Columbia statute.
8 Ibid., p. 90, for action on the Ontario Chartered Accountants Act of 1908.
9 Dominion and Provincial Legislation, 1867–1895 (Government Printing Bureau, Ottawa, 1896), p. 1093Google Scholar. See the statement made in connection with the setting aside of the British Columbia Immigration Act of 1884.
10 Ibid., p. 1256. A Northwest Territory ordinance of 1889 set aside.
11 Remarks of Minister of Justice Aylesworth in the House of Commons on March 1, 1909. See Debates in the Canadian House of Commons, pp. 1750ff. A convenient summary of the general grounds for disallowance of provincial acts is given by Lefroy in his Constitutional Law, p. 63. His classification is as follows: “1. because the provincial act in question is an abuse of power and contrary to sound principles of legislation, as, e.g., amounting to spoliation or a violation of property and vested rights, under contracts or otherwise; 2. because it is ultra vires, and therefore invalid; 3. because it conflicts with imperial treaties or imperial policy; 4. because it conflicts with dominion policy or interests.”
12 See Dominion and Provincial Legislation, 1867–1895.
13 See Provincial Legislation, 1896–1920.
14 Communication to the writer from the deputy minister of justice, July 29, 1935.
15 See Kennedy, W. P. M., The Constitution of Canada (London, 1922), especially pp. 302ff.Google Scholar
16 As quoted in Lefroy, , Canada‘s Federal System. p. 36Google Scholar.
17 Justice Draper in re Goodhue, 19 Grant's Chancery Reports, 384.
18 See Kennedy, W. P. M., Essays in Constitutional Law (London, 1934), p. 148ff.Google Scholar, and the cases there cited.
19 In 1918, the minister of justice, in a communication to the governor-general, commented at length upon the “great reluctance to interfere with provincial legislation.” He continued by indicating measures which had been taken in order to avoid a resort to disallowance. Provincial Legislation, p. 708.
20 See, for example, Keith, A. B., Constitutional Law of the British Dominions (London, 1933), p. 299Google Scholar.
21 The last case of disallowance of a provincial act was in 1923. Communication from the deputy minister of justice to the writer, July 29, 1935.