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Basic Problems of the Canadian Constitution

  • H. McD. Clokie (a1)

Extract

Canadian constitutional lore is full of the most amazing paradoxes. The Dominion has a written constitution; but, if the function of a written constitution is to introduce certainty and finality into a polity, this is precisely what Canada's written constitution fails to accomplish. Preposterous as it may seem, no one knows where the constitution begins or ends. The usual answer to a question about the “document” is that the constitution consists of the British North America Act of 1867 and its amendments. The superficiality of this answer is immediately revealed when one asks, Which amendments? The Rowell-Sirois Commission, which made elaborate studies of the background and functioning of the constitutional system, accepts and prints six amendments, the last one of which is dated 1916. Yet this is patently mistaken, for the Statute of Westminster, 1931, placed by the Commission immediately after its “last” amendment, definitely implies at least one later change by its citation of the “British North America Acts, 1867 to 1930.” There is little doubt, too, that the British North America Acts referred to in the Statute of Westminster did not include two of the amendments printed by the Commission (those of 1907 and 1916) and possibly even a third (that of 1875). After meditating on the apparent inaccuracy of the Royal Commission, no one should be surprised to recall that in 1930 the Premier of Ontario (Mr. Ferguson) advanced the view that the number of constitutional “modifications” at that date totalled thirty-three instead of the three about which there is evidently no doubt. Indeed, even the Mother of Parliaments has been misled by one of her Daughter-Parliaments into an erroneous citation of these Acts in her most solemn constitutional enactment, the Statute of Westminster. This is clearly revealed by the belated and surreptitious attempt made in the constitutional amendment of 1940 to tack on one of the earlier amendments omitted from the British North America Acts as defined in the Statute.

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1 Report of the Royal Commission on Dominion-Provincial Relations (Ottawa, 1940), Book I, p. 136. The documents are printed in Book III, pp. 181-206.

2 See the Memorandum reprinted in Dawson, R. MacG. (ed.), Constitutional Issues in Canada, 1900-1931 (Oxford, 1933), p. 33. In 1935 the Under-Secretary of State for External Affairs and the Law Clerk of the House of Commons also seemed to disagree as to whether there were six or seven amendments. Cf. Canada, House of Commons, 1935, Proceedings, Evidence and Report of Select Committee on British North America Act, pp. 31–5 and 56–7.

3 The short title section of the latest amendment reads: “This Act may be cited as the British North America Act 1940, and the British North America Acts 1867 to 1930, the British North America Act of 1907, and this Act may be cited together as the British North America Acts 1867 to 1940.” (Italics not in the original.)

4 Tarring, C. J., Chapters on the Law relating to the Colonies … (ed. 4, London, 1913), pp. 168 ff.

5 Two British statutes of particular importance to Canada were the North Atlantic Fisheries Act of 1872 and the North Pacific Seal Fisheries Act of 1911.

6 It appears from Tarring's enumeration (Law relating to the Colonies, pp. 183-4), that before 1867 a similar number had been passed expressly for the territories now comprised within the Dominion of Canada.

7 The Order is dated March 22, 1927. It is to be found in the twelfth volume of the printed proceedings before the Privy Council in this case, as preserved in the Parliamentary Library at Ottawa (to whose staff I am indebted for a copy).

8 These statutes dealt with Quebec (1774), trade with Indians (1821), trade and lands (1832), and the union of the Canadas (1840).

9 Quoted above, footnote 3.

10 Attention was apparently first called to the point in Wheare, K. C., The Statute of Westminster and Dominion Status (Oxford, 1938), p. 188.

11 The sole reference is said to be in the following words of the Hon. D'Arcy McGee: “We go to the Imperial Government, the common arbiter of us all, in our true Federal Metropolis—we go there to ask for our fundamental Charter. We hope, by having that Charter that can only be amended by the authority that made it, that we will lay the basis of permanency for our future government” ( Public Archives of Canada, Confederation Debates, 1865, p. 146).

12 According to Clement's, W. H. P. Lata of the Canadian Constitution (ed. 3, Toronto, 1916), its most definite repudiation occurs incidentally in Algoma Central Rly. Co. v. The King, 7 Ex. Reps. (Can.), p. 253. This particular decision was reversed by the Judicial Committee, [1903] A.C. 478, but on other grounds than this point, so that no reflection was cast on the general principle laid down in the Exchequer Court.

13 Maxwell, J. A., “A Flexible Portion of the British North America Act” (Canadian Bar Review, vol. XI, 03, 1933, pp. 149–57).

14 “In the sixty years since 1869, there have been three general revisions scaling up the grants given to all the provinces, and more than a score of special revisions affecting every one” (ibid., p. 151). The whole topic has been exhaustively studied in several standard works and constitutes a considerable portion of the Report of the Royal Commission on Dominion-Provincial Relations.

15 See below, pp. 28-9.

16 Canada, House of Commons Debates, 1938, vol. III, pp. 2341, 2344.

17 See above, pp. 4-5.

18 The Addresses are to be found in Canada, House of Commons Journals, vol. LI, pp. 190–1, and vol. LII, p. 75.

19 Canada, House of Commons Debates, 1871, vol. II, pp. 649–50.

20 Ibid., 1876, pp. 1142-3.

21 Canada, House of Commons Journals, vol. VIII, p. 232.

22 Ibid., vol. LXIX, p. 423.

23 Canada, House of Commons Debates, 1937, vol. I, 01 18 and 19.

24 Canada, House of Commons Journals, vol. IV, p. 193.

25 Ibid., vol. VI, p. 403.

26 After the passage of the Address ( Canada, House of Commons Journals, vol. I, 18671868, pp. 67–8), it was discovered that union of the western territories with Canada could not be proclaimed without further British legislation to extinguish the rights of the Hudson's Bay Company. Accordingly, the Rupert's Land Act of 1868 was passed authorizing the issuance of such an Order after arrangements were made for the purchase of the Company's lands. The financial agreement necessitated the passage of the Rupert's Land Loan Act of 1868, and, on the presentation of a second Address (ibid., vol. II, 1869, pp. 153-5) the Order was at last issued.

27 Ibid., vol. X, 1878, p. 256.

28 Ibid., vol. LIV, p. 313.

29 Mr. King announced that “the adoption of the address in reply to the speech from the throne will be considered as approving not only the speech from the throne but approving the government's policy which I set out yesterday of immediate participation in the war” ( Canada, House of Commons Debates, Spec, sess., 1939, p. 51).

30 Canada, House of Commons Journals, vol. LXXIX, p. 93.

31 Ibid., vol. II, p. 220.

32 Ibid., vol. XVI, p. 330.

33 For a brief exposition of the situation before and after 1890, see Clement, , Canadian Constitution, pp. 237–8.

34 Canada, House of Commons Debates, 1882, p. 1541.

35 Canada, House of Commons Journals, vol. LVII, p. 443.

36 Ibid., vol. XLI, p. 514.

37 In the matter of a reference as to the legislative competence of the Parliament of Canada to enact an Act to amend the Supreme Court Act, 1940 S.C.R. 49.

38 Canada, House of Commons, 1935, Proceedings, Evidence and Report of Special Committee on the British North America Act (Ottawa, King's Printer, 1935), pp. ixx.

39 Having made no search of provincial records comparable to that made of Dominion, I rely on the convenient summary presented by Maxwell, J. A., “Petitions to London by Provincial Governments” (Canadian Bar Review, vol. XIV, 11, 1936, pp. 738–49), supplemented, for the example of 1887, by the documents and evidence of the late Hon. N. McL. Rogers, who first called attention to it before the Special Committee on the British North America Act, 1935, p. 97.

40 Letter of June 5, 1907, quoted in full in evidence before the Special Committee on the British North America Act (1935), pp. 34-5.

41 Mr. Churchill said: “On the other hand, he would be very sorry if it were thought that the action which His Majesty's Government had decided to take meant that they had decided to establish as a precedent that whenever there was a difference on a constitutional question between the Federal Government and one of the provinces, the Imperial government would always be prepared to accept the Federal point of view as against the provincial. In deference to the representations of British Columbia, the words ‘final and unalterable’ applying to the revised scale have been omitted from the bill” ( British House of Commons, Parliamentary Debates, series 4, vol. 175, p. 1617). He should have had no worry over establishing a precedent to this effect; it had long been established, as the previous examples show. His unfamiliarity with the details is shown by his reference later to the “Address of the Colonial Premiers which led up to this Bill” (ibid., vol. 179, p. 1456).

42 A similar phrase, “in full settlement of all future demands,” had been used in the British North America Act of 1867, Section 118, without legal objection in Great Britain. No one could expect the new final terms to be more permanent than the original full settlement had been. In any case it was bad reasoning to use legal power (parliamentary capacity to make future changes) as an excuse for breaking the conventional principle (parliamentary acquiescence in Dominion requests)—if such a principle then existed. If such a convention did not exist then, it does now.

43 When the Address was moved and the circumstances briefly outlined by Sir John Macdonald, Sir Wilfrid Laurier asked if it affected Quebec's boundary. On being informed that it did not, he offered no objection. Ontario assent was reported as being secured by telegraph ( Canada, House of Commons Debates, 1889, vol. II, p. 1329).

44 Canada, House of Commons Journals, vol. IV, 1871, p. 254. The motion was that “any alteration by Imperial Legislation of the principle of representation in the House of Commons, recognised and fixed by the 51st and 52nd sections of the British North America Act, without the consent of the several provinces that were party to the compact, would be a violation of the Federal provisions in our constitution.”

45 Canada, House of Commons Debates, 1869, vol. II, p. 260.

46 Ibid., 1906, vol. III, p. 5309.

47 Canada, House of Commons Journals, vol. XLIX, 1914, p. 728.

48 Ibid., vol. LI, 1915, pp. 190-1, 248, 322.

49 Canada, House of Commons Debates, 1915, vol. II, p. 1465.

50 Ibid., 1931, vol. II, p. 1485.

51 The dates are: 1906, 1910, 1918, 1927, 1931, 1933, 1934, 1935, 1941. A brief account of all but the last is to be found in the Report of the Royal Commission on Dominion-Provincial Relations (1940), Book II, pp. 68–9.

52 Précis of Discussions, Dominion-Provincial Conference, November 3-10, 1927 (Canada, Sessional Papers, 1928, no. 69, pp. 1112).

53 Proceedings, Evidence and Report of Special Committee on the British North America Act, 1935.

54 Dominion-Provincial Conference, 1935, Record of Proceedings (Ottawa, King's Printer, 1936), pp. 37–8.

55 See Lapointe's, M. remarks, Canada, House of Commons Debates, 1937, vol. I, pp. 433–6, 978–80.

56 Report on British North America Act by Parliamentary Counsel of the Senate (1939).

57 Report of the Royal Commission on Dominion-Provincial Relations (1940).

58 Canada, House of Commons, Votes and Proceedings, June 25, 1940: Appendix, Correspondence between Dominion and Provincial Governments, 1937-40.

59 Canada, House of Commons Journals, vol. LXXX, 1940, p. 149.

60 Canada, House of Commons Debates, 1940, vol. II, p. 1122.

Basic Problems of the Canadian Constitution

  • H. McD. Clokie (a1)

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