Canadian Constitutional Law in a Modern Perspective 9781487583163

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CANADIAN

CONSTITUTIONAL

LAW IN A

MODERN

PERSPECTIVE

EDITED BY J. NOEL LYON AND RONALD G. ATKEY

Canadian Cons titutional Law in a Modern Perspective

UNIVERSITY OF TORONTO PRESS

To our children and their world this book is dedicated in hope.

© University of Toronto Press 1970 printed in Canada for University of Toronto Press, Toronto and Buffalo Reprinted in 2018 ISBN 978-1-4875-8188-6 (paper)

Preface

This book seeks to fill two needs. First, there is no comprehensive collection of materials on the law of the Canadian constitution, taken in its broadest sense. Second, there is no intellectual frame of reference yet developed within which the legal development of our constitution can be rationally guided. These two needs are related, making it natural and possible to offer a common answer to both. As to the first need, past response to the law of Canada's constitution has been to point to an English treatise, then say 'me too, but don't forget about the federal distribution of legislative powers.' Not surprisingly, this approach turned in on itself, with the result that the only feature of the constitutional landscape that could be identified as Canadian in character - the distribution of legislative powers - become the organizing focus. This had the further result that other fundamental matters such as civil liberties, which require separate recognition and development, were crippled by being forced into the Procrustean bed of sections 91 and 92 of the British North America Act. There is nothing wrong with the English constitution, and ours is clearly built upon the solid base that had developed by 1867. However, the Canadian nation is sufficiently different from the English that a process of adaptation is called for, and the 'me too' approach is not good enough. Indeed, if 'me too' is our dominant response to the challenge of developing a Canadian nation, it could be argued with force that we would have been better advised to remain a colony. Here; however, we do not hesitate to declare our commitment to the development in Canada of a public order of human dignity. And one essential feature of such an order is the self-respect that is enjoyed only by those who are self-governing. As to the second need described above, the lawyer brings to questions of constitutional law an argumentative, debating set of perspectives because he knows no other. An issue must be polarized into competing positions, so that his lawyer's skills in word- and concept-manipulation can be brought to bear. Through characterization of the issue within a conceptual frame of reference, he is able to bring authoritative support for both' sides' of the issue. Thus the limits of legal technique dictate the scope of legal development of our constitution. Questions that do not lend themselves to this kind of technical treatment are characterized as 'non-legal' in nature. This approach may work as long as one keeps within the limited frame of reference demanded by technique, but the consequences are appalling if one considers the important public issues confronting the Canadian people - poverty, pollution, minority rights, urban chaos, and the like. The lawyer' s response that these are not 'legal' questions simply begs the central policy question of why the existing technical framework of the law should be allowed to define the limits of responsibility of a group that collectively holds exclusive control of the operation of the central force - law - in an alleged system of constitutional government under law. But he knows no other frame of reference that is sufficiently objective to serve the purpose of translating shared values into formal decisions. He has, therefore , no other possible response until an alternative has been offered and proved. Here we encounter the real barrier, for in the

vi/Preface

structuring of his mind demanded by legal technique and acquired through laborious effort is an inherent resistance to any alternative or complementary approach. Part of this results from a deep fear that his skill and experience are being rendered obsolete. But this is a totally unfounded fear. The alternative implicit in this book is offered as complementary to the technical frame of reference, adding a powerful new dimension to the lawyer's mind. It is true, however, that the blending of these two complementary frames of reference in the mind - one for the technical, one for the policy- requires a reshaping of some mental attitudes that are deeply ingrained by legal training and experience. It will be obvious that our proposal is to expand the role of the lawyer and the scope of law, doing this in the context of the Canadian constitution. Legal technique will not be discarded, but its operation will clearly be influenced since it is the medium through which we carry on one part of the constitutional process. It is a mind-expanding process, seeking to give greater system, comprehensiveness, and objectivity to that part of the constitutional process which so far has been performed in a largely intuitive and subjective manner. At present, the task confounds many of our best legal minds, which often display an inability to subordinate the technical frame of reference to the larger context of community values within which basic constitutional questions must be approached. This will continue so long as the larger context remains a no-man's-land of social, economic, and political factors without organization in terms viable for objective analysis by legal minds. The need, then, is to begin to plot in this no-man's-land p,aths to which legal minds can adapt, providing objective guidance between questions for decision and factors dictated by relevance rather than technique. A fact that becomes immediately apparent upon shifting to this broader framework is the lessened effect of the formal courtroom in the total range of situations in which lawyers influence constitutional development. Yet traditional legal theory focuses exclusively on this one arena, forcing the lawyer to remind himself throughout much of his professional life that he is acting in a non-legal capacity. What he is really doing is operating in the larger framework of the constitutional process, where legal technique is unable to provide 'answers.' The structure of this book is the result of a redefinition of his area of responsibility to include all important public issues, but not in an exclusively courtroom-oriented way. At the same time, it makes more explicit the policy function which is in fact being performed whenever important public issues do arise in a courtroom context. Finally, it seeks to substitute objective, rational criteria for the intuitive hunch in public decision-making, at least as far as our present understanding of human behaviour and mental processes will allow. A word to teachers and students who plan to use this book in a classroom setting is perhaps appropriate here. We have tried to include a wide range of materials to satisfy a diversity of teaching and learning preferences in Canada. In doing so, we have included more material than any one class will want to deal with in a single course in constitutional law. We have done this, first, in recognition of the fact that the curricula of most law schools and political science departments rarely confine the subject of constitutional law, taken in the broadest sense, to one basic course. In recent years, we have witnessed the introduction of courses in introductory public law, civil liberties, Canadian federalism, introductory administrative law, and constitutional reform, and the materials in this book are directly relevant to all of these. Second, the pressure of numbers in Canadian law schools and political science departments, and the resulting strain on library facilities, has made it essential that students have some form of portable and contemporary library for constitutional law that not only introduces them to the main problem and authorities, but also enables them to relate their formal educational experience to the broader, general

vii/Preface experience they bring with them. It is hoped that the variety of materials offered here will provide sources of both innovation and relevance for most individual teaching situations in the field. A common view of all those who have already used this book in a preliminary form is that the materials in parts II and III should be used on a selective basis for formal classroom discussion, and that much can be assigned merely as general reading, depending of course on the background knowledge of the students involved. Our own inclination has been to discuss the materials presented in parts IV and v fairly soon, to give students an opportunity to encounter substantive constitutional problems without getting bogged down in the institutional framework and established practices and procedures. Finally, we have kept the material in part VI, on constitutional review and reform, as a separate and final part despite some suggestions that it should be integrated with the existing law to which it relates. The reason for this is a belief that, while teachers can readily separate the existing law from the proposed ( the 'is' from the 'ought to be'), students should have an opportunity to obtain a firm grasp of present and past situations before being thrown into the very active constitutional debate going on at present in Canada. But, in any event, the organization of the materials in part VI reflects that of parts n-v so they can be readily integrated with the material in those early parts by those who prefer to treat them in that way. Also, part VI does provide the legal practitioner, the governmental official, or the interested observer with a comprehensive and up-to-date collection of key documents on the subject of constitutional review and reform, documents which might well shape the future of the Canadian constitution over the next century. Much of the work on this book was made possible through a generous grant from the Canada Council which enabled us to engage as research assistants Craig Paterson and Jeff Samuels, both former students of ours at the university of Western Ontario and the university of British Columbia, respectively. Their inquiring minds and their industry were our good fortune. We are also greatly indebted to the Yale Law School for giving us a sense of the importance of seeking new directions in legal education and for equipping us with the tools and the desire necessary for the attempt. Deans Maxwell Cohen and John Durnford of McGill university and Fred Carrothers and Bob Mackay of the university of Western Ontario have encouraged and supported our project, and colleagues and students too numerous to mention have contributed in many ways. The generous assistance of Brian Crane, an Ottawa lawyer, in contributing chapter 9 deserves special mention. Dianne Beadle of the university of Western Ontario and Lena Yap of McGill university have cheerfully performed the arduous task of typing the manuscript, and Prudence Tracy and R. I. K. Davidson of the University of Toronto Press have been most helpful and accommodating in all matters connected with publication. Needless to say, the task could never have been undertaken without the support of our wives who never allowed us to forget our status of mortals and who shared our conviction that the undertaking was worth doing. J.N.L.

R.G.A.

June 1970

Acknowledgments

Permission to reproduce materials has been granted by the following authors and/or publishers. Office Consolidation of the British North America Acts 1867-1967 (I January 1967 issue) Elmer A. Driedger, editor and annotator Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) The Law of the Constitution 187-8, 193, 195-6 (10th ed. 1962) A. V. Dicey Macmillan and Co. Ltd., England* The Confederation of Tomorrow Conference: Theme Papers 2-6; 37-45 (January, 1968) Government of Ontario (per E. D. Greathed, Director of the Federal-Provincial Affairs Secretariat)* The Government of Canada 61-72 (5th ed. Ward rev. 1970) R. MacGregor Dawson (revised by Norman Ward) University of Toronto Press*

'The Relation of Canadian Indians and Canadian Governments,' 6 Can. Pub. Admin. 299 ( 1963) J. G. McGilp * The Canadian Institute of Public Administration* 'A Supreme Court in a Federation: Some Lessons from Legal History,' 53 Co/um. L. Rev. 597 (1953) Paul Freund* Columbia Law Review* The Shorter Oxford Dictionary Oxford University Press, Toronto* Constitutional Law 35 Wade & Phillips Longmans, Green & Co. Ltd., England* Essays in Constitutional Law 3 Heuston Stevens & Sons, England *

* signifies holder of

copyright who has granted wri"·ten permission to reproduce materials.

ix/ Acknowledgments Some Problems of the Constitution l 63 ( 1959) Marshall and Moodie Hutchinson & Co. Ltd., England* Uncommon Law 420-421 (1936) A. P. Herbert A. P. Watt & Son Ltd., London* Report of the Royal Commission on Government Organization, v, 31-95 (J. Grant Glassco, Chairman, 1962) Royal Commission on Government Organization Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) The Constitutional Process in Canada 77-85 (I 969) Ronald I. Cheffins McGraw-Hill Company of Canada Ltd. * (from The Constitutional Process in Canada by Ronald I. Cheffins; McGraw-Hill Series in Canadian Politics. © McGraw-Hill Company of Canada Ltd. 1969). Report: Intergovernmental Liaison on Fiscal and Economic Matters 296-301 (October, 1968) The Institute of Intergovernmental Relations, Queen's University, Kingston Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) 'The Role of Royal Commissions in the General Policy Process and in Federal-Provincial Relations,' l 0 Can. Pub. Admin. 417 ( 1967) G. Bruce Doern * The Institute of Public Administration of Canada* The Vertical Mosaic 415-16, 457-61 (1965) John Porter University of Toronto Press* 'The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform,' 6 Osgoode Hall L. J. l ( 1968) Peter Russell * The Legal and Literary Society of Osgoode Hall Law School * Judicial Review of Legislation in Canada 47-8; 189-205 (1968) B. L. Strayer University of Toronto Press* 'Constitutional Reform: The Judiciary,' Address Given to the Annual Meeting of the Association of Canadian Law Teachers in Calgary on 6 June 1968 William Angus * The Canadian Bill of Rights 12-14; 138-42 (1966) Walter S. Tarnopolsky * The Carswell Company Ltd.

x/ Acknowledgments

The Constitution and the People of Canada 14-22 (English only) (February 1969) The Right Honourable Pierre Elliott Trudeau (for the Government of Canada) Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada) The Canadian House of Commons 233-7 (1950) Nonnan Ward University of Toronto Press*

Headnote in the case of Regina v Cameron ( 1966), 58 The Canada Law Book Company Ltd., Toronto*

D.L. R.

(2d) 46

Report of the Royal Commission on Bilingualism and Biculturalism, Book /: The Official Languages, 42-55 (1967) The Royal Commission on Bilingualism and Biculturalism Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada) The Future of Canadian Federalism 108-9 (Crepeau and MacPherson eds. 1965) W. R. Ledennan University of Toronto Press*

'Some International Law Problems of Interest to Canadian Lawyers,' 33 Can. Bar Rev. 389, 392- 7 (1955) Maxwell Cohen * The Canadian Bar Review (per J. G. Castel, Editor)* International Law: Chiefly as Interpreted and Applied in Canada 822-4 ( 1965) J.G. Castel University of Toronto Press* Federalism and International Relations 4 7-8 (1968) The Honourable Paul Martin, Secretary of State for External Affairs (for the Government of Canada) Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) Income Security and Social Services 8-108 (English only) ( 1969) The Right Honourable Pierre Elliott Trudeau (for the Government of Canada) Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada) Securities Regulation in Canada 194-5; 199-20 I ( 1960) ( as amended by the mimeographed supplement published in 1966 by the Government of Canada) J. Peter Williamson University of Toronto Press* Canadian Industrial Relations: The Report of the Task Force on Labour Relations 210-14 (December 1968) The Task Force on Labour Relations (Canada Department of Labour) Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada)

xi/Acknowledgments

The Commerce Power in Canada and the United States 80-4; 85-91 (1963) Alexander Smith Butterworth & Co. (Canada) Ltd. (per C. J. Sarich, Publishing Director)* Chartered Banking in Canada 19-20 (1962) Jamieson reprinted by pennission of the Ryerson Press, Toronto*

'Jurisdictional Framework for Water Management,' sections I-III, and v, from Resources for Tomorrow Conference: Background Papers, volume 1, 211 ( 1961) The Honourable Bora Laskin* Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada) The A/location of Taxing Powers under the Canadian Constitution 16-30 (1967) Gerard V. La Forest The Canadian Tax Foundation* Report of the Royal Commission on Bilingualism and Biculturalism, Book II: Education 299-304 (I 968) The Royal Commission on Bilingualism and Biculturalism Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada)

'The F oun~ations of Canadian Law,' in Contemporary Problems of Public Law in Canada 19 (Lang ed. 1968) The Honourable W. Jackett University of Toronto Press* 'The Federal Divorce Act and the Constitution,' I4McGill L. J. 209-10; 267- 71 (I 968) F. J.E. Jordan* The McGill Law Journal* The Amendment of the Constitution of Canada 4-16; 110-15 (1965) The Honourable Guy Favreau, Minister of Justice (for the Government of Canada) Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada)

'Constitutional Refonn of the Canadian Judiciary,' 7 Alta. L. Rev. 103, I 18-29 (I 969) Peter H. Russell * Alberta Law Review * 'The Process of Constitutional Amendment for Canada,' in Ontario Advisory Committee on Con· federation: Background Papers and Reports 77-87 ( 1967) W. R. Ledennan * Ontario Advisory Committee on Confederation (per D. W. Stevenson)* Report of the Royal Commission on Bilingualism and Biculturalism, Book I: The Official Lan· guages 133-44 (1967) The Royal Commission on Bilingualism and Biculturalism Queen's Printer for Canada* (reproduced with the pennission of the Queen's Printer for Canada)

xii/ Acknowledaments 'A Democratic Approach to Civil Liberties,' 19 U. of T. L.J. 109-11 ; 114-19; 119-21; 128-31 (1969) Peter H. Russell* University of Toronto Press* Federalism and International Conferences on Education 48-54 (English only) (1968) The Honourable Mitchell Sharp, Secretary of State for External Affairs (for the Government of Canada) Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) A Canadian Charter of Human Rights 15-27 (1968) The Honourable Pierre Elliott Trudeau, Minister of Justice (for the Government of Canada) Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) The Taxing Powers and the Constitution of Canada 6-56 (English only) (1969) The Honourable E. J. Benson, Minister of Finance (for the Government of Canada) Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada) Federal-Provincial Grants and the Spending Power of Parliament 4-50 (English only) ( 1969) The Right Honourable Pierre Elliott Trudeau (for the Government of Canada) Queen's Printer for Canada* (reproduced with the permission of the Queen's Printer for Canada)

Note: The above materials are listed in the order in which they appear in the book, except that when different parts of certain materials appear in various parts of the book, the materials reproduced (and for which copyright has been obtained) are listed in the order in which they first appear.

Contents

ACKNOWLEDGMENTS

65 D/Constitutional Law as a Process of Decision 67 E/ Authority and Community Expectations

V

PREFACE

viii

DOCUMENTS

70

xvii The British North America Act, 1867 (as amended) xlviii The Colonial Laws Validity Act, 1865 I The Statute of Westminster, 1931

3 /What is the Constitution? A/The Shared Goals of Canadian Society 75 e/The Form of the Constitution

liii

PART II: THE INSTITUTIONAL FRAMEWORK

70

HISTORICAL CHRONOLOGY OF IMPORTANT CONST.ITUTIONAL ISSUES

PART I: SOME BASIC ISSUES

3 I/The Rule of Law 33 2/Policy and Logic in Constitutional Decision

84 4 / The Initial Phases of Decision 84 A/Who Participates in Constitutional Decision 117 B / Established Value Preferences used in Constitutional Decisions 128 c/In What Arenas are Constitutional Decisions Made?

33 A/The Legal Value 37

e/The Articulation of Policy Considerations 52 cf Present Legal Analysis: Developing a Policy Approach

165 5 /The Formal Institutions of Decision 165 A/Parliament and the Legislatures 173

B/The Judiciary

xiv/Contents 196 c/The Crown 218 D/ Governmental Administration (Federal and Provincial) 254 E/Local Government 255 6 / The Informal lnstitu tions of Decision 255 A/The Political Parties 259 B/The Mass Media 266 cf Lobbies and Pressure Groups 271 D/Protest Groups

PART Ill: ESTABLISHED CONSTITUTIONAL PRACTICES AND PROCEDURES 279 7 /Practices relating to Judicial Institutions 279 A/ Jurisdiction 291 B/ Judicial Restraint 295 c/ Judicial Ingenuity 304 D/Separation of Powers 315 E/Extrinsic Aids 325 8 / Governmental Practices 325 A/Public Information

335 e/ Judicial Appointments 347 c / Use of the Reference Power 357 9 / Constitutional Procedure

PART IV: FUNDAMENTAL RIGHTS 371 IO /Historical Evolution 371 A/Introductory Note 375 e/The Division of Powers Approach in Canada 391 c/The Implied Bill of Rights 407 D/The Canadian Bill of Rights 435 E/Provincial Human Rights Legislation 466 F / The Proposed Canadian Charter of Human Rights 474 11 / Protected Value Processes 474 A/Political Activities 495 Bf Development and Protection of the Public Mind 518 cf Security and Well-being 527 D/ Recognition of the Individual Person 534 E / Economic Activities

xv/ Contents

552 FI Conscience and Religious Activities 559 G / Creative Activities 578 H/The Bonds of Human Affection 590 12 / Synthesis of Values: The Pervasive Question of Language Rights in Canada 590 A/ Introduction 590 a/Historical Development and Legal Foundations 591 cf Evolution of Language Rights in Canada 611 D/The Synthesis of Value Processes

PART V: THE ALLOCATION OF PUBLIC POWER

634 13 /The Functional Components of Constitutional Decision 636 A/ Intelligence and Promoting 640 a/Prescribing 653 c/Applying 671 of Invoking 676 E/Appraising 678 FI Terminating

680 14/'Peace, Order, and Good Government' and the Historical Trend of Interpretation 701 l 5 /Distribution of Powers between the Federal Government and the Provinces 703 A/Power: Competence in Relation to Political Processes 737 a/Well-Being: Competence in Relation to Safety, Health, and General Well-Being 797 cf Rectitude: Competence in Relation to the Norms of Conduct 812 o/Wealth : Competence in Relation to Economic Processes 1095 E/ Respect : Competence in Relation to the Recognition and Acceptance of Persons as Human Beings 1115 F /Enlightenment: Competence in Relation to the Public Mind 1137 G / Skill : Competence in Relation to Creative Expression 1138 Hf Affection: Competence in Relation to the Family and other Human Associations

PART VI: CONSTITUTIONAL REVIEW

AND REFORM

1155 16 / Historical Background

xvi/Contents 1165

l l 86

17 / Current Issues of Review and Reform

B /Constitutional Practices and Procedures 1205 cf Fundamental Rights 1247 of Allocation of Public Power

1166

A/The Institutional Framework

Documents

THE BRITISH NORTH AMERICA ACT, 1867 * 30 & 31 Victoria, c. 3. Consolidated with amendments to 1970 An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith. (29th March 1867) Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America: ( l) I PRELIMINARY 1 This Act may be cited as The British North America Act, 1867. 2 Repealed. (2)

Short title

II UNION

3 It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Bruns-

Declaration of Union

l The enacting clause was repealed by the Statute law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.). It read as follows: 'Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows : 2 Section 2, repealed by the Statute law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.), read as follows : 'Application of Provisions Referring to the Queen. 2. The Provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.' * reproduced in its present annotated form with the permission of the Queen's Printer for Canada.

xviii/Documents

wick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly. (3) 4 Unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act. ( 4) 5 Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick. (5) 6 The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form Two separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec. 7 The Provinces of Nova Scotia and New Brunswick shall have the same Limits as at the passing of this Act. 8 In the general Census of the Population of Canada which is hereby required to be taken in the Year One thousand eight hundred and seventyone, and in every Tenth Year thereafter, the respective Populations of the Four Provinces shall be distinguished.

Construction of subsequent Provisions of Act Provinces of Ontario and Quebec

Provinces of Nova Scotia and New Brunswick Decennial Census

3 The first day of July, 1867, was fixed by proclamation dated May 22, 1867. 4 Partially repealed by the Statute law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.). As originally enacted the section read as follows: '4. The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the Day appointed for the Union taking effect in the Queen's Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act.' 5 Canada now consists of ten provinces (Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Alberta, Saskatchewan and Newfoundland) and two territories (the Yukon Territory and the Northwest Territories). The first territories added to the Union were Rupert's Land and the North-Western Territory; (subsequently designated the Northwest Territories), which were admitted pursuant to section 146 of the British North America Act, 1867 and the Rupert's land Act, 1868, 31-32 Viet., c. 105 (U.K.), by Order in Council of June 23, 1870, effective July 15, 1870. Prior to the admission of these territories the Parliament of Canada enacted the Act for the temporary Government of Rupert's land and the North-Western Territory when united with Canada (32-33 Viet., c. 3), and the Manitoba Act (33 Viet., c. 3), which provided for the formation of the Province of Manitoba. British Columbia was admitted into the Union pursuant to section 146 of the British North America Act, 1867, by Order in Council of May 16, 1871, effective July 20, 1871. Prince Edward Island was admitted pursuant to section 146 of the British North America Act, 1867, by Order in Council of June 26, 1873, effective July l, 1873. On June 29, 1871, the United Kingdom Parliament enacted the British North America Act, 1871 (34-35 Viet., c. 28) authorizing the creation of additional provinces out of territories not included in any province. Pursuant to this statute, the Parliament of Canada enacted The Alberta Act, (July 20, 1905, 4-5 Edw. VII, c. 3) and The Saskatchewan Act, (July 20, 1905, 4-5 Edw. VII, c. 42), providing for the creation of the provinces of Alberta and Saskatchewan respectively. Both these Acts came into force on Sept. l, 1905. Meanwhile, all remaining British possessions and territories in North America and the islands adjacent thereto, except the colony of Newfoundland and its dependencies, were admitted into the Canadian Confederation by Order in Council dated July 31, 1880. The Parliament of Canada added portions of the Northwest Territories to the adjoining provinces in 1912 by The Ontario Boundaries Extension Act, 2 Geo. V, c. 40, The Quebec Boundaries Extension Act, 1912, 2 Geo. V, c. 45, and The Manitoba Boundaries Extension Act, 1912, 2 Geo. V, c. 32, and further additions were made to Manitoba by The Manitoba Boundaries Extension Act, 1930, 20-21 Geo. V, c. 28. The Yukon Territory was created out of the Northwest Territories in 1898 by The Yukon Territory Act, 61 Viet., c. 6, (Canada) .

xix/ Documents III EXECUTIVE POWER

9 The Executive Government and Authority of and over Canada is hereby Declaration of Executive Power in declared to continue and be vested in the Queen. the Queen IO The Provisions of this Act referring to the Governor General ex tend and Application of Provisions referring to apply to the Governor General for the Time being of Canada, or other the Governor General Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated. I I There shall be a Council to aid and advise in the Government of Canada, Constitution of Privy Council for to be styled the Queen's Privy Council for Canada; and the Persons who are Canada to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General. All Powers under 12 All Powers, Authorities, and Functions which under any Act of the Acts to be exercised Parliament of Great Britain, or of the Parliament of the United Kingdom by Governor General with Advice of Privy of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Council, or alone Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Member thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada. ( 6) 13 The Provisions of this Act referring to the Governor General in Council Application of Pro• visions referring to shall be construed as referring to the Governor General acting by and with Governor General in Council the Advice of the Queen's Privy Council for Canada. Power to Her 14 It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize Majesty to authorize the Governor General from Time to Time to appoint any Person or any Governor General to appoint Deputies Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority or Function. Newfoundland was added on March 31, 1949, by the British North America Act, 1949, (U.K.), 12-13 Geo. VI, c. 22, which ratified the Terms of Union between Canada and Newfoundland. 6 See the notes to section 129, infra.

xx/Documents

15 The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen. 16 Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.

Command of armed Forces to continue to be vested in the Queen Seat of Government of Canada

IV LEGISLATIVE POWER Constitution of Parlia17 There shall be One Parliament for Canada, consisting of the Queen, an ment of Canada Upper House styled the Senate, and the House of Commons. Privileges, etc., 18 The privileges, immunities, and powers to be held, enjoyed, and exerof Houses cised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof. (7) 19 The Parliament of Canada shall be called together not later than Six First Session of the Parliament of Canada Months after the Union. (8) Yearly Session of the 20 There shall be a Session of the Parliament of Canada once at least in Parliament of Canada every Year, so that Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and its first Sitting in the next Session. (9)

The Senate 21 The Senate shall, subject to the Provisions of this Act, consist of One Hundred and Two Members, who shall be styled Senators. ( l 0) 22 In relation to the Constitution of the Senate Canada shall be deemed to consist of Four Divisions: -

Number of Senators Representation of Provinces in Senate

7 Repealed and re-enacted by theParliamentofCanadaAct, 1875, 38-39 Viet., c. 38-39 Viet., c. 38 (U. K.). The original section read as follows: '18. The Privileges Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.' 8 Spent. The first session of the first Parliament began on November 6, 1867. 9 The terms of the twelfth Parliament was extended by the British North America Act, 1916, 6-7 Geo. V, c. 19 (U.K.), which Act was repealed by the Statute Law Revision Act, 1927, 17-18 Geo. V, c. 42 (U.K.). 10 As amended by the British North America Act, 1915, S-6 Geo. V, c. 45 (U.K.), and modified by the British North America Act, 1949, 12-13 Geo. VI, c. 22 (U.K.). The original section read as follows : '21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators.' The Manitoba Act added two for Manitoba; the Order in Council admitting British Columbia adde~ three; upon admission of Prince Edward Island four more were provided by section 147 of the British North America Act, 1867; The Alberta Act and The Saskatchewan Act each added four. The Senate was reconstituted at 96 by the British North America Act, 1915, and six more Senators were added upon union with Newfoundland.

xxi/Documents (I) Ontario; (2) Quebec; (3) The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island; (4) The Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta; which Four Divisions shall ( subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by twenty-four senators; Quebec by twenty-four senators; the Maritime Provinces and Prince Edward Island by twenty-four senators, ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island; the Western Provinces by twenty-four senators, six thereof representing Manitoba, six thereof representing British Columbia, six thereof representing Saskatchewan, and six thereof representing Alberta; Newfoundland shall be entitled to be represented in the Senate by six members. In the Case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to Chapter One of the Consolidated statutes of Canada. (1 I) 23 The Qualification of a Senator shall be as follows: Qualifications of Senator (I) He shall be of the full age of Thirty Years: (2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada, after the Union: (3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same : (4) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities: (5) He shall be resident in the Province for which he is appointed: 11 As amended by the British North America Act, I 9I 5, and the British North America Act, I 949, 12-13 Geo. VI, c. 22 (U.K.). The original section read as follows: 'Representation of Provinces in Senate. 22. In relation to the Constitution of the Senate, Canada shall be deemed to consist of Three Divisions: 1. Ontario; 2. Quebec; 3. The Maritime Provinces, Nova Scotia and New Brunswick; which Three Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by Twenty-four Senators; Quebec by Twenty-four Senators; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick. 'In the Case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to Chapter One of the Consolidated Statutes of Canada.'

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(6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. 24 The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate ; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator. 25 Repealed. (12) 26 If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be}, representing equally the Four Divisions of Canada, add to the Senate accordingly. (13) 27 In case of such Addition being at any Time made, the Governor General shall not summon any Person to the Senate, except upon a further like Direction by the Queen on the like Recommendation, to represent one of the Four Divisions until such Division is represented by Twenty-four Senators and no more. (14) 28 The Number of Senators shall not at any Time exceed One Hundred and ten. ( 15) 29 (1) Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life. (2) A Senator who is summoned to the Senate after the coming into force of this subsection shall, subject to this Act, hold his place in the Senate until he attains the age of seventy-five years. (15A) 30 A Senator may by Writing under his Hand addressed to the Governor General resign his Place in the Senate, and thereupon the same shall be vacant. 31 The Place of a Senator shall become vacant in any of the following Cases:

Summons of Senator

Addition of Senators in certain cases

Reduction of Senate to normal Number

Maximum Number of Senators Tenure of Place in Senate Retirement upon attaining age of seventy-five years Resignation of place in Senate Disqualification of Senators

12 Repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.). The section read as follows: 'Summons of First Body of Senators. 25. Such Persons shall be first summoned to the Senate as the Queen by Warrant under Her Majesty's Royal Sign Manual thinks fit to approve, and their Names shall be inserted in the Queen's Proclamation of Union. ' 13 As amended by the British North America Act, 1915, 5-6 Geo. V, c. 45 (U.K.). The original section read as follows : 'Addition of Senators in certain cases. 26 . If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Governor General may by Summons to Three or Six qualified Persons (as the Case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.' 14 As amended by the British North America Act, 1915, 5 -6 Geo. v, c. 45 (U.K.). The original section read as follows: 'Reduction of Senate to normal Number. 27 . In case of such Addition being at any Time made the Governor General shall not summon any Person to the Senate, except on a further like Direction by the Queen on the like Recommendation, until each of the Three Divisions of Canada is represented by Twenty-four Senators and no more.' 15 As amended by the British North America Act, 1915, 5-6 Geo. V, c. 45 (U.K.). The original section read as follows: 'Maximum Number of Senators. 28. The Number of Senators shall not at any Time exceed Seventy-eight. ' ISA As enacted by the British North America Act, 1965, Statutes of Canada, 1965, c. 4 which came into force on the 1st of June, 1965 . The original section read as follows: 'Tenure of Place in Senate. 29. A Senator shall, subject to the Provisions of this Act, hold his Place in the Senate for Life.'

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(1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate: (2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power: (3) If he is adjudged Bankrupt or Insolvent, or applies for th~ Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter: (4) Ifhe is attainted of Treason or convicted of Felony or of any infamous Crime : (5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there. 32 When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy. 33 If any Question arises respecting the Qualification of a Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate. 34 The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead. ( 16) 35 Until the Parliament of Canada otherwise provides, the Presence of at least Fifteen Senators, including the Speaker, shall be necessary to constitute a Meeting of the Senate for the Exercise of its Powers. 36 Questions arising in the Senate shall be decided by a Majority of Voices, and the Speaker shall in all Cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative.

Summons on Vacancy in Senate Questions as to Qualifications and Vacancies in Senate Appointment of Speaker of Senate Quorum of Senate

Voting in Senate

The House of Commons 37 The House of Commons shall, subject to the Provisions of this Act, con- Constitution of House of Commons sist of Two Hundred and sixty-five Members of whom Eighty-five shall be in Canada elected for Ontario, Seventy-five for Quebec, Twelve for Nova Scotia, Ten for New Brunswick, Fourteen for Manitoba, Twenty-two for British Columbia, Four for Prince Edward Island, Seventeen for Alberta, Seventeen for Saskatchewan, Seven for Newfoundland, One for the Yukon Territory and One for the Northwest Territories. ( 17) 16 Provision for exercising the functions of Speaker during his absence is made by the Speaker of the Senate Act, R.S.C. 1952, c. 255 . Doubts as to the power of Parliament to enact such an Act were removed by the Canadian Speaker (Appointment of Deputy) Act, 1895, 59 Viet., c. 3, (U.K.). 17 As altered by the Representation Act, R.S.C. I 95 2, c. 334, as amended by S.C. I 962, c. 17. The original section read as follows: '37 . The House of Commons shall, subject to the Provisions of this Act, consist of the One hundred and eighty-one Members, of whom Eighty-two shall be elected for Ontario, Sixty-five for Quebec, Nineteen for Nova Scotia, and Fifteen for New Brunswick.' See now the Electoral Boundaries Readjustment Act, Statutes of Canada, 1964-65, c. 31.

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38 The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons. 39 A Senator shall not be capable of being elected or of sitting or voting as a Member of the House of Commons. 40 Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia, and New Brunswick shall, for the Purposes of the Election of Members to serve in the House of Commons, be divided into Electoral Districts as follows : I Ontario Ontario shall be divided into the Counties, Ridings of Counties, Cities, Parts of Cities, and Towns enumerated in the First Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return One Member. 2 Quebec Quebec shall be divided into Sixty-five Electoral Districts, composed of the Sixty-five Electoral Divisions into which Lower Canada is at the passing of this Act divided under Chapter Two of the Consolidated Statutes of Canada, Chapter Seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada of the Twenty-third Year of the Queen, Chapter One, or any other Act amending the same in force at the Union, so that each such Electoral Division shall be for the Purposes of this Act an Electoral District entitled to return One Member. 3 Nova Scotia Each of the Eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to return Two Members, and each of the other Counties One Member. 4 New Brunswick Each of the Fourteen Counties into which New Brunswick is divided, including the City and County of St. John, shall be an Electoral District. The City of St. John shall also be a separate Electoral District. Each of those Fifteen Electoral Districts shall be entitled to return One Member. ( 18) 41 Until the Parliament of Canada otherwise provides, all Laws in force in the several Provinces at the Union relative to the following Matters or any of them, namely, - the Qualifications and Disqualifications of Persons to be elected or to sit or vote as Members of the House of Assembly or Legislative Assembly in the several Provinces, the Voters at Elections of such Members, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which Elections may be continued, the Trial of controverted Elections, and Proceedings incident thereto, the vacating of Seats of Members, and the Execution of new Writs in case of Seats vacated otherwise than by Dissolution, - shall respectively apply to Elections of Members to serve in the House of Commons for the same several Provinces.

Summoning of House of Commons

Senators not to sit in House of Commons Electoral districts of the Four Provinces

Continuance of existing Election Laws until Parliament of Canada otherwise provides

18 Spent. The electoral districts are now set out in the Representation Act, R.S.C. 1952, c. 334, as amended. See also the Electoral Boundaries Readjustment Act, Statutes of Canada, 1964-65, c. 31.

xxv/Documents Provided that, until the Parliament of Canada otherwise provides, at any Election for a Member of the House of Commons for the District of Algoma, in addition to Persons qualified by the Law of the Province of Canada to vote, every Male British Subject, aged Twenty-one Years or upwards, being a Householder, shall have a Vote. (I 9) 42 Repealed. (20) 43 Repealed. (21) 44 The House of Commons on its first assembling after a General Election shall proceed with all practicable Speed to elect One of its Members to be Speaker. 45 In case of a Vacancy happening in the Office of Speaker by Death, Resignation, or otherwise, the House of Commons shall with all practicable Speed proceed to elect another of its Members to be Speaker. 46 The Speaker shall preside at all Meetings of the House of Commons. 47 Until the Parliament of Canada otherwise provides, in case of the Absence for any Reason of the Speaker from the Chair of the House of Commons for a Period of Forty-eight consecutive Hours, the House may elect another of its Members to act as Speaker, and the Member so elected shall during the Continuance of such Absence of the Speaker have and execute all the Powers, Privileges, and Duties of Speaker. (22) 48 The Presence of at least Twenty Members of the House of Commons shall be necessary to constitute a Meeting of the House for the Exercise of its Powers, and for that Purpose the Speaker shall be reckoned as a Member. 49 Questions arising in the House of Commons shall be decided by a Majority of Voices other than that of the Speaker, and when the Voices are equal, but not otherwise, the Speaker shall have a Vote. 50 Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.

As to Election of of House of Commons Speaker

As to filling up Vacancy in Office of Speaker Speaker to preside Provision in case of Absence of Speaker

Quorum of House of Commons

Voting in House of Commons Duration of House of Commons

19 Spent. Elections are now provided for by the Canada Elections Act, s.c. 1960, c. 38; controverted elections by the Dominion Controverted Elections Act, R.S.C. 1952, c. 87; qualifications of members by the House of Commons Act, R.S.C. 1952, c. 143 and the Senate and House of Commons Act, R.S.C. 1952, c. 249. 20 Repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.). The section read as follows: 'Writs for First Election. 42. For the First Election of Members to serve in the House of Commons the Governor General shall cause Writs to be issued by such Person, in such Form, and addressed to such Returning Officers as he thinks fit. 'The Person issuing Writs under this Section shall have the like Powers as are possessed at the Union by the Officers charged with the issuing of Writs for the Election of Members to serve in the respective House of Assembly or Legislative Assembly of the Province of Canada, Nova Scotia, or New Brunswick; and the Returning Officers to whom Writs are directed under this Section shall have the like Powers as are possessed at the Union by the Officers charged with the returning of Writs for the Election of Members to serve in the same respective House of Assembly or Legislative Assembly.' 21 Repealed by the Statute Law Revision Act, /893, 56-57 Viet., c. 14 (U.K.). The section read as follows: 'As to Casual Vacancies. 43. In case a Vacancy in the Representation in the House of Commons of any Electoral District happens before the Meeting of the Parliament, or after the Meeting of the Parliament before Provision is made by the Parliament in this Behalf, the Provisions of the last foregoing Section of this Act shall extend and apply to the issuing and returning of a Writ in respect of such vacant District.' 22 Provision for exercising the functions of Speaker during his absence is now made by the Speaker of the House of Commons Act, R.S.C. 1952, c. 254 .

xxvi/Documents Readjustment of 51 ( I) Subject as hereinafter provided, the number of members of the representation House of Commons shall be two hundred and sixty-three and the reprein Commons sentation of the provinces therein shall forthwith upon the coming into force of this section and thereafter on the completion of each decennial census be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules: Rules I There shall be assigned to each of the provisions a number of members computed by dividing the total population of the provinces by two hundred and sixty-one and by dividing the population of each province by the quotient so obtained, disregarding, except as hereinafter in this section provided, the remainder, if any, after the said process of division. 2 If the total number of members assigned to all the provinces pursuant to rule one is less than two hundred and sixty-one, additional members shall be assigned to the provinces ( one to a province) having remainders in the computation under rule one commencing with the province having the largest remainder and continuing with the other provinces in the order of the magnitude of their respective remainders until the total number of members assigned is two hundred and sixty-one. 3 Notwithstanding anything in this section, if upon completion of a computation under rules one and two, the number of members to be assigned to a province is less than the number of senators representing the said province, rules one and two shall cease to apply in respect of the said province, and there shall be assigned to the said province a number of members equal to the said number of senators. 4 In the event that rules one and two cease to apply in respect of a province then, for the purposes of computing the number of members to be assigned to the provinces in respect of which rules one and two continue to apply, the total population of the provinces shall be reduced by the number of the population of the province in respect of which rules one and two have ceased to apply and the number two hundred and sixty-one shall be reduced by the number of members assigned to such province pursuant to rule three . 5 On any such readjustment the number of members for any province shall not be reduced by more than fifteen per cent below the representation to which such province was entitled under rules one to four of this subsection at the last preceding readjustment of the representation of that province, and there shall be no reduction in the representation of any province as a result of which that province would have a smaller number of members than any other province that according to the results of the then last decennial census did not have a larger population; but for the purposes of any subsequent readjustment of representation under this section any increase in the number of members of the House of Commons resulting from the application of this rule shall not be included in the divisor mentioned in rules one to four of this subsection. 6 Such readjustment shall not take effect until the termination of the then existing Parliament.

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(2) The Yukon Territory as constituted by chapter forty-one of the statutes of Canada, 1901, shall be entitled to one member, and such other part of Canada not comprised within a province as may from time to time be defined by the Parliament of Canada shall be entitled to one member. (23) 51 A Notwithstanding anything in this Act a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province. (24)

Yukon Territory and other part not comprised within a province Constitution of House of Commons

23 As enacted by the British North America Act, 1952, R.S.C. 1952, c. 304, which came into force on June 18, 1952. The section, as originally enacted, read as follows: 'Decennial Re-adjustment of Representation. 51. On the Completion of the Census in the Year One Thousand eight hundred and seventy-one, and of each subsequent decennial Census, the Representation of the Four Provinces shall be re-adjusted by such Authority, in such Manner, and from such Time, as the Parliament of Canada from Time to Time provides, subject and according to the following Rules: '(l) Quebec shall have the fixed Number of Sixty-five Members: '(2) There shall be assigned to each of the other Provinces such a Number of Members as will bear the same Proportion to the Number of its Population (ascertained at such Census) as the Number Sixty-five bears to the Number of the Population of Quebec (so ascertained): '(3) In the Computation of the Number of Members for a Province a fractional Part not exceeding One Half of the whole Number requisite for entitling the Province to a Member shall be disregarded; but a fractional Part exceeding One Half of that Number shall be equivalent to the whole Number: '(4) On any such Re-adjustment the Number of Members for a Province shall not be reduced unless the Proportion which the Number of the Population of the Province bore to the Number of the aggregate Population of Canada at the then last preceding Re-adjustment of the Number of Members for the Province is ascertained at the then latest Census to be diminished by One Twentieth Part or upwards: '(5) Such Re-adjustment shall not take effect until the Termination of the then existing Parliament.' The section was amended by the Statute Law Revision Act, 1893, 56-51 Viet., c. 14 (U.K.) by repealing the words from 'of the census' to 'seventy-one and' and the word 'subsequent'. By the British North America Act, 1943, 6-7 Geo. VI, c. 30 (U.K.) redistribution of seats following the 1941 census was postponed until the first session of Parliament after the war. The section was re-enacted by the British North America Act, 1946, 9-10 Geo. VI, c. 63 (U.K.) to read as follows: '51 (1) The number of members of the House of Commons shall be two hundred and fifty-five and the representation of the provinces therein shall forthwith upon the coming into force of this section and thereafter on the completion of each decennial census be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules: '(l) Subject as hereinafter provided, there shall be assigned to each of the provinces a number of members computed by dividing the total population of the provinces by two hundred and fifty-four and by dividing the population of each province by the quotient so obtained, disregarding, except as hereinafter in this section provided, the remainder, if any, after the said process of division. '(2) If the total number of members assigned to all the provinces pursuant to rule one is less than two hundred and fifty-four, additional members shall be assigned to the provinces (one to a province) having remainders in the computation under rule one commencing with the province having the largest remainder and continuing with the other provinces in the order of the magnitude of their respective remainders until the total number of members assigned is two hundred and fifty-four. '(3) Notwithstanding anything in this section, if upon completion of a computation under rules one and two, the number of members to be assigned to a province is less than the number of senators representing the said province, rules one and two shall cease to apply in respect of the said province, and there shall be assigned to the said province a number of members equal to the said number of senators. '(4) In the event that rules one and two cease to apply in respect of a province then, for the purpose of computing the number of members to be assigned to the provinces in respect of which rules one and two continue to apply, the total population of the provinces shall be reduced by the number of the population of the province in respect of which rules one and two have ceased to apply and the number two hundred and fifty-four shall be reduced by the number of members assigned to such province pursuant to rule three. '(5) Such readjustment shall not take effect until the termination of the then existing Parliament. '(2) The Yukon Territory as constituted by Chapter forty-one of the Statutes of Canada, 1901, together with any Part of Canada not comprised within a province which may from time to time be included therein by the Parliament of Canada for the purposes of representation in Parliament, shall be entitled to one member.' 24 As enacted by theBritishNorthAmericaAct, 1915, 5-6 Geo. V, c.45 (U.K.).

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52 The Number of Members of the House of Commons may be from Time Increase of Number of House of Commons to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disnubed.

Money Votes: Royal Assent 53 Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons. 54 It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Import, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed. 55 Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure. 56 Where the Governor General assents to a Bill in the Queen's Name, he shall by the first convenient Opportunity send an authentic Copy of the Act to one of Her Majesty's Principal Secretaries of State, and if the Queen in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor General, by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such Signification. 57 A Bill reserved for the Signification of the Queen's Pleasure shall not have any Force unless and until, within Two Years from the Day on which it was presented to the Governor General for the Queen's Assent, the Governor General signifies, by Speech or Message to each of the Houses of the Parliament or by Proclamation, that it has received the Assent of the Queen in Council. An Entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a Duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the Records of Canada. V PROVINCIAL CONSTITUTIONS

Executive Power 58 For each Province there shall be an Officer, styled the Lieutenant Governor, appointed by the Governor General in Council by Instrument under the Great Seal of Canada. 59 A Lieutenant Governor shall hold Office during the Pleasure of the Governor General; but any Lieutenant Governor appointed after the Commencement of the First Session of the Parliament of Canada shall not be removeable within Five Years from his Appointment, except for Cause

Appropriation and Tax Bills Recommendation of Money Votes

Royal Assent to Bills, etc.

Disallowance by Order in Council of Act assented to by Governor General

Signification of Queen's Pleasure on Bill reserved

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assigned, which shall be communicated to him in Writing within One Month after the Order for his Removal is made, and shall be communicated by Message to the Senate and to the House of Commons within One Week thereafter if the Parliament is then sitting, and if not then within One Week after the Commencement of the next Session of the Parliament. 60 The Salaries of the Lieutenant Governors shall be fixed and provided Salaries of Lieutenant Governors by the Parliament of Canada. (25) 61 Every Lieutenant Governor shall, before assuming the Duties of his Oaths, etc., of Lieutenant Governor Office, make and subscribe before the Governor General or some Person authorized by him Oaths of Allegiance and Office similar to those taken by the Governor General. 62 The Provisions of this Act referring to the Lieutenant Governor extend Application of provisions referring and apply to the Lieutenant Governor for the Time being of each Province, to Lieu tenant or other the Chief Executive Officer or Administrator for the Time being Governor carrying on the Government of the Province, by whatever Title he is designated. 63 The Executive Council of Ontario and of Quebec shall be composed of Appointment of Executive Officers such Persons as the Lieutenant Governor from Time to Time thinks fit, and for Ontario and in the first instance of the following Officers, namely, - the Attorney Gen- Quebec eral, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in Quebec the Speaker of the Legislative Council and the Solicitor General. (26) Executive Govern64 The Constitution of the Executive Authority in each of the Provinces ment of Nova Scotia of Nova Scotia and New Brunswick shall, subject to the Provisions of this and New Brunswick Act, continue as it exists at the Union until altered under the Authority of this Act. (26A) Powers to be exercised 65 All Powers, Authorities, and Functions which under any Act of the by Lieutenant Governor Parliament of Great Britain, or of the Parliament of the United Kingdom of of Ontario or Quebec with Advice, or alone Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice or with the Advice and Consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant Governor of Ontario and Quebec respectively, with the Advice or with the Advice and Consent of or in conjunction with the respective Executive Councils, or any Members thereof, or by the Lieutenant Governor individually, as the Case requires, subject nevertheless (except with respect to such as exist under 25 Provided for by the Salaries Act, R.S.C. 1952, c. 243 as amended by S.C. 1963, c. 41. 26 Now provided for in Ontario by the Executive Council A ct, R.S.O. 1960, c. 127, and in Quebec by the Executive Power Act, R.S.Q. 1964, c. 9. 26A A similar provision was included in each of the instruments admitting British Columbia, Prince Edward Island, and Newfoundland. The Executive Authorities for Manitoba, Alberta and Saskatchewan were established by the statutes creating those provinces. See the footnotes to section 5, supra.

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Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be abolished or altered by the respective Legislatures of Ontario and Quebec. (27) 66 The Provisions of this Act referring to the Lieutenant Governor in Council shall be construed as referring to the Lieutenant Governor of the Province acting by and with the Advice of the Executive Council thereof. 67 The Governor General in Council may from Time to Time appoint an Administrator to execute the Office and Functions of Lieutenant Governor during his Absence, Illness, or other Inability. 68 Unless and until the Executive Government of any Province otherwise directs with respect to that Province, the Seats of Government of the Provinces shall be as follows, namely, - of Ontario, the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax ; and of New Brunswick, the City of Fredericton. Legislative Power l Ontario 69 There shall be a Legislature for Ontario consisting of the Lieutenant Governor and of One House, styled the Legislative Assembly of Ontario. 70 The Legislative Assembly of Ontario shall be composed of Eighty-two Members, to be elected to represent the Eighty-two Electoral Districts set forth in the First Schedule to this Act. (28) 2 Quebec 71 There shall be a Legislature for Quebec consisting of the Lieutenant Governor and of Two Houses, styled the Legislative Council of Quebec and the Legislative Assembly of Quebec. 72 The Legislative Council of Quebec shall be composed of Twenty-four Members, to be appointed by the Lieutenant Governor, in the Queen's Name, by Instrument under the Great Seal of Quebec, One being appointed to represent each of the Twenty-four Electoral Divisions of Lower Canada in this Act referred to, and each holding Office for the Term of his Life, unless the Legislature of Quebec otherwise provides under the Provisions of this Act. (29) 73 The Qualifications of the Legislative Councillors of Quebec shall be the same as those of the Senators for Quebec. (30) 74 The Place of a Legislative Councillor of Quebec shall become vacant in the Cases, mutatis mutandis, in which the Place of Senator becomes vacant. 75 When a Vacancy happens in the Legislative Council of Quebec by Resignation, Death, or otherwise, the Lieutenant Governor, in the Queen's

Application of Provisions referring to Lieutenant Governor in Council Administration in Absence, etc., of Lieutenant Governor Seats of Provincial Governments

Legislature for Ontario Electoral districts

Legislature for Quebec Constitution of Legislative Council

Qualification of Legislative Councillors Resignation, Disqualification, etc. Vacancies

27 See the notes to section 129, infra. 28 Spent. Now covered by the Representation Act, R.S.O. 1960, c. 353, as amended by s.o. 1962-63, c. 125, which provides that the Assembly shall consist of l 08 members, representing the electoral districts set forth in the Schedule to that Act. 29 Spent. Now covered by the Legislature Act, R.S.Q. 1964, c. 6 as amended by S.Q. 1965 , c. 11 ; the membership remains at twenty-four, representing the divisions set forth in the Te"itorial Division Act, R.S.Q. 1964, c. 5, as amended by S.Q. 1965 , c. 12. 30 Altered by the Legislature Act, R.S.Q. 1964, c. 6, s. 7, which provides that it shall be sufficient for any member to be domiciled, and to possess his property qualifications, within the Province of Quebec.

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Name, by Instrument under the Great Seal of Quebec, shall appoint a fit and qualified Person to fill the Vacancy. 76 If any Question arises respecting the Qualification of a Legislative Councillor of Quebec, or a Vacancy in the Legislative Council of Quebec, the same shall be heard and determined by the Legislative Council. 77 The Lieutenant Governor may from Time to Time, by Instrument under the Great Seal of Quebec, appoint a Member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his Stead. (3 I) 78 Until the Legislature of Quebec otherwise provides, the Presence of at least Ten Members of the Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the Exercise of its Powers. 79 Questions arising in the Legislative Council of Quebec shall be decided by a Majority of Voices, and the Speaker shall in all Cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative. 80 The Legislative Assembly of Quebec shall be composed of Sixty-five Members, to be elected to represent the Sixty-five Electoral Divisions or Districts of Lower Canada in this Act referred to, subject to Alteration thereof by the Legislature of Quebec: Provided that it shall not be lawful to present to the Lieutenant Governor of Quebec for Assent any Bill for altering the Limits of any of the Electoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the Second and Third Readings of such Bill have been passed in the Legislative Assembly with the Concurrence of the Majority of the Members representing all those Electoral Divisions or Districts, and the Assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor stating that it has been so passed. (32) 3 Ontario and Quebec 81 Repealed. (33) 82 The Lieutenant Governor of Ontario and of Quebec shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of the Province, summon and call together the Legislative Assembly of the Province. 83 Until the Legislature of Ontario or of Quebec otherwise provides, a Person accepting or holding in Ontario or in Quebec any Office, Commission, or Employment, permanent or temporary, at the Nomination of the Lieutenant Governor, to which an annual Salary, or any Fee, Allowance, Emolument, or Profit of any Kind or Amount whatever from the Province is attached, shall not be eligible as a Member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such; but nothing in this Section shall make ineligible any Person being a Member of the Executive

Questions as to Vacancies, etc. Speaker of Legislative Council

Quorum of Legislative Council Voting in Legislative Council

Constitution of Legislative Assembly of Quebec

Summoning of Legislative Assemblies Restriction on election of Holders of offices

31 Spent. Now covered by the Legislature Act, R.S.Q. 1964, c. 6. 32 Altered by the Legislature Act, R.S.Q. 1964, c. 6 as amended by S.Q. 1965, c. 11 and the Territorial Division Act, R.S.Q. 1964, c. 5 as amended by S.Q. 1965, c. 10; there are now 108 members representing the districts set out in the Territorial Division Act. 33 Repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U .K.). The section read as follows: 'First Session of Legislatures. 81. The Legislatures of Ontario and Quebec respectively shall be called together not later than Six Months after the Union.'

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Council of the respective Province, or holding any of the following Offices, that is to say, the Offices of Attorney General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works, and in Quebec Solicitor General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such Office. (34) 84 Until the Legislatures of Ontario and Quebec respectively otherwise provide, all Laws which at the Union are in force in those Provinces respectively, relative to the following Matters, or any of them, namely, - the Qualifications and Disqualifications of Persons to be elected or to sit or vote as Members of the Assembly of Canada, the Qualifications or Disqualifications of Voters, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which such Elections may be continued, and the Trial of controverted Elections and the Proceedirgs incident thereto, the vacating of the Seats of Members and the issuing and execution of new Writs in case of Seats vacated otherwise than by Dissolution, - shall respectively apply to Elections of Members to serve in the respective Legislative Assemblies of Ontario and Quebec. Provided that, until the Legislature of Ontario otherwise provides, at any Election for a Member of the Legislative Assembly of Ontario for the District of Algoma, in addition to Persons qualified by the Law of the Province of Canada to vote, every male British Subject, aged Twenty-one Years or upwards, being a Householder, shall have a vote. (35) 85 Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for Four Years from the Day of the Return of the Writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Assembly of Quebec being sooner dissolved by the Lieutenant Governor of the Province), and no longer. (36) 86 There shall be a Session of the Legislature of Ontario and of that of Quebec once at least in every Year, so that Twelve Months shall not intervene between the last Sitting of the Legislature in each Province in one Session and its first Sitting in the next Session. 87 The following Provisions of this Act respecting the House of Commons of Canada shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say, - the Provisions relating to the Election of a Speaker originally and on Vacancies, the Duties of the Speaker, the Absence of the Speaker, the Quorum, and the Mode of voting, as if those Provisions were here re-enacted and made applicable in Terms to each such Legislative Assembly.

Continuance of existing Election Laws

Duration of Legislative Assemblies

Yearly Session of Legislature

Speaker, Quorum, etc.

34 Probably spent. The subject-matter of this section is now covered in Ontario by the Legislative Assembly Act, R.S.O. 1960, c. 208, and in Quebec by the Legislature Act, R.S.Q. 1964, c. 6. 35 Probably spent. The subject-matter of this section is now covered in Ontario by the Election Act, R.S.O. 1960, c. 118, the Controverted Elections Act, R.S.O. 1960, c. 65 and the Legislative Assembly Act, R.S.O. 1960, c. 208, in Quebec by the Elections Act, R.S.Q. 1964, c. 7, the Provincial Controverted Elections Act, R.S.Q. 1964, c. 8 and the Legislature Act, R.S.Q. 1964, c. 6. 36 The maximum duration of the Legislative Assembly for Ontario and Quebec has been changed to five years by the Legislative Assembly Act, R.S.O. 1960, c. 208, and the Legislature Act, R.S.Q. 1964, c. 6 re spectively.

xxxiii/Documents 4 Nova Scotia and New Brunswick 88 The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act. (37) 89 Repealed. (38) 6 The Four Provinces 90 The following Provisions of this Act respecting the Parliament of Canada, namely, - the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, - shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

Constitutions of Legislatures of Nova Scotia and New Brunswick

Application to Legislatures of Provisions respecting Money Votes, etc.

VI DISTRIBUTION OF LEGISLATIVE POWERS Powers of the Parliament 91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, (1) The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the

Legislative Authority of Parliament of Canada

37 Partially repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.) which deleted the following concluding words of the original enactment: 'and the House of Assembly of New Brunswick existing at the passing of this Act shall, unless sooner dissolved, continue for the Period for which it was elected.' A similar provision was included in each of the instruments admitting British Columbia, Prince Edward Island, and Newfoundland. The Legislatures of Manitoba, Alberta and Saskatchewan were established by the statutes creating those provinces. See the footnotes to section 5, supra. 38 Repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U .K.). The section read as follows: '5 Ontario, Quebec and Nova Scotia 'First Elections. 89. Each of the Lieutenant Governors of Ontario, Quebec and Nova Scotia shall cause Writs to be issued for the First Election of Members of the Legislative Assembly thereof in such Form and by such Person as he thinks fit, and at such Time and addressed to such Returning Officer as the Governor General directs, and so that the First Election of Member of Assembly for any Electoral District or any Subdivision thereof shall be held at the same Time and at the same Places as the Election for a Member to serve in the House of Commons of Canada for that Electoral District.'

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Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House. (39) (lA) The Public Debt and Property (40) (2) The Regulation of Trade and Commerce (2A) Unemployment insurance (41) (3) The raising of Money by any Mode or System of Taxation (4) The borrowing of Money on the Public Credit (5) Postal Service (6) The Census and Statistics (7) Militia, Military and Naval Service, and Defence (8) The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada (9) Beacons, Buoys, Lighthouses, and Sable Island (10) Navigation and Shipping (1 1) Quarantine and the Establishment and Maintenance of Marine Hospitals (12) Sea Coast and Inland Fisheries (13) Ferries between a Province and any British or Foreign Country or between Two Provinces (14) Currency and Coinage (15) Banking, Incorporation of Banks, and the Issue of Paper Money (16) Savings Banks (17) Weights and Measures (18) Bills of Exchange and Promissory Notes ( 19) Interest (20) Legal Tender (21) Bankruptcy and Insolvency (22) Patents of Invention and Discovery (23) Copyrights (24) Indians, and Lands reserved for the Indians (25) Naturalization and Aliens (26) Marriage and Divorce (27) The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but inc!uding the Procedure in Criminal Matters (28) The Establishment, Maintenance, and Management of Penitentiaries (29) Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces 39 Added by the British North America (No. 2) Act, 1949, 13 Geo. VI, c. 81 (U.K.). 40 Re-numbered by the British North America (No. 2) Act, 1949. 41 Added by the British North America Act, 1940, Geo. VI, c. 36 (U.K.).

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And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters

of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (42)

Exclusive Powers of Provincial Legislatures 92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say, (I) The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor

Subjects of exclusive Provincial Legislation

42 Legislative authority has been conferred on Parliament by other Acts as follows . 1 The British North America Act, 1871, 34-35 Viet., c. 28 (U.K.). 'Parliament of Canada may establish new Provinces and provide for the constitution etc., thereof '2. The Parliament of Canada may from time to time establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament. 'Alteration of limits of Provinces. '3. The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby . 'Parliament of Canada may legislate for any territory not included in a Province. '4. The Parliament of Canada may from time to time make provision for the administration, peace, order, and good government of any territory not for the time being included in any Province. 'Confirmation of Acts of Parliament of Canada. 32 & 33 Viet. (Canadian) cap. 3. 33 Viet., (Canadian) cap. 3. '5. The following Acts passed by the said Parliament of Canada, and intituled respectively, - "An Act for the temporary government of Rupert's Land and the North Western Territory when united with Canada"; and "An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to establish and provide for the government of "the Province of Manitoba," shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen's name, of the Governor General of the said Dominion of Canada." 'Limitation of powers of Parliament of Canada to legislate for an established province. '6 Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament in so far as it relates to the Province of Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly, and to make laws respecting elections in the said Province.' The Rupert's Land Act, 1868, 31-32 Viet., c. 105 (U.K.) (repealed by the Statute Law Revision Act, 1893, 56-57 Viet., c. 14 (U.K.)) had previously conferred similar authority in relation to Rupert's Land and the North-Western Territory upon admission of those areas. 2 The British North America Act, 1886, 49-50 Viet., c. 35,(U.K.) 'Provision by Parliament of Canada for representation of territories. 'I The Parliament of Canada may from time to time make provision for the representation in the Senate and House of Commons of Canada, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any province thereof' 3 The Statute of Westminster, 1931, 22 Geo. V, c 4, (U.K.) 'Power of Parliament of a Dominion to legislate extraterritorially · 3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.'

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(2) Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes (3) The borrowing of Money on the sole Credit of the Province (4) The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers (5) The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon (6) The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province (7) The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals (8) Municipal Institutions in the Province (9) Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes ( 10) Local Works and Undertakings other than such as are of the following Classes: a Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province; b Lines of Steam Ships between the Province and any British or Foreign Country; c Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. (I 1) The Incorporation of Companies with Provincial Objects ( 12) The Solemnization of Marriage in the Province (13) Property and Civil Rights in the Province (14) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts (15) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section (16) Generally all Matters of a merely local or private Nature in the Province Education 93 In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees

Legislation respecting Education

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of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. ( 43) 43 Altered for Manitoba by section 22 of the Manitoba Act, 33 Viet., c. 3 (Canada), (confirmed by the British North America Act, 18 71), which reads as follows: 'Legislation touching schools subject to certain provisions. '22 In and for the Province, the said Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions: '(l) Nothing in any such Law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of persons have by Law or practice in the Province at the Union: '(2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen's subjects in relation to Education : 'Power reserved to Parliament. '(3) In case any such Provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section.' Altered for Alberta by section 17 of The Alberta Act, 4- 5 Edw. VII, c. 3 which reads as follows : 'Education. 17. Section 93 of The British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93 of the following paragraph: '(l) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the Northwest Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances. ' (2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools or any class described in the said chapter 29. '(3) Where the expression "by law" is employed in paragraph 3 of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30, and where the expression "at the Union" is employed, in the said paragraph 3, it shall be held to mean the date at which this Act comes into force.' Altered for Saskatchewan by section 17 of The Saskatchewan Act, 4-5 Edw. VII, c. 42, which reads as follows: 'Education. 17. Section 93 of the British North America Act, 186 7, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph: '(l) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30

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Uniformity of Laws in Ontario, Nova Scotia and New Brnnswick 94 Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in Those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof. Old Age Pensions 94A The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including survivors' and disability benefits irrespective of age, but no such law shall affect the operation of any law present or future of a provincial legislature in relation to any such matter. ( 44) Agriculture and Immigration 95 In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province

Legislation for Uniformity of Laws in Three Provinces

Legislation respecting old age pensions and supplementary benefits

Concurrent Powers of Legislation respecting Agriculture, etc.

of the Ordinances of the Northwest Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances. '(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment thereof or in substitution therefor, there shall be no discrimination against schools or any class described in the said chapter 29. '(3) Where the expression "by law" is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression "at the Union" is employed in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.' Altered by Term 17 of the Terms of Union of Newfoundland with Canada (confirmed by the British North America Act, 1949, 12-13 Geo. VI, c. 22 (U.K.)), which reads as follows: '17 In lieu of section ninety-three of the British North America Act, 1867, the following term shall apply in respect of the Province of Newfoundland: 'In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, provided for education. a all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and b all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis. 44 Added by the British North America Act, 1964, 12-13, Eliz. II, c. 73 (U.K.). Originally enacted by the British North America Act, 1951, 14-15 Geo. VI, c. 32 (U.K.), as follows: '94A. It is hereby declared that the Parliament of Canada may from time to time make laws in relation to old age pensions in Canada, but no law made by the Parliament of Canada in relation to old age pensions shall affect the operation of any law present or future of a Provincial Legislature in relation to old age pensions.'

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relative to Agriculture or to Immigration shall have effect in and for the Province as Jong and as far only as it is not repugnant to any Act of the Parliament of Canada. VIII JUDICATURE

96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97 Until the Jaws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces. 98 The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99 (1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons. (2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age. ( 44A) 100 The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts ( except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada. (45) 101 The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. (46)

Appointment of Judges Selection of Judges in Ontario, etc.

Selection of Judges in Quebec Tenure of Office of Judges Termination at age 75

Salaries etc., of Judges

General Court of Appeal, etc.

VIII REVENUES, DEBTS, ASSETS, TAXATION

102 All Duties and Revenues over which the respective Legislatures of Canada, Nova Scotia, and New Brunswick before and at the Union had and have Power of Appropriation, except such Portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special Powers conferred on them

Creation of Consolidated Revenue Fund

44A Repealed and re-enacted by the British North America Act, 1960, 9 Eliz. II, c. 2 (U.K.), which came into force on the 1st day of March, 1961 . The original section read as follows: 'Tenure of office of Judges of Superior Courts. 99. The Judges of the Superior Courts shall hold Office during good Behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.' 45 Now provided for in the Judges Act, R.S.C. 1952, c. 159, as amended by S.C. 1963, c. 8, 1964-65, c. 36 and 1966-67, c. 76. 46 See the Supreme Court Act, R.S.C. 1952, c. 259, and the Exchequer Court Act, R.S.C. 1952, c. 98.

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by this Act, shall form One Consolidated Revenue Fund, to be appropriated for the Public Service of Canada in the Manner and subject to the Charges in this Act provided. 103 The Consolidated Revenue Fund of Canada shall be permanently Expenses of Collection, etc. charged with the Costs, Charges, and Expenses incident to the Collection, Management, and Receipt thereof, and the same shall form the First Charge thereon, subject to be reviewed and audited in such Manner as shall be ordered by the Governor General in Council until the Parliament otherwise provides. Interest of Provincial 104 The annual Interest of the Public Debts of the several Provinces of Public Debts Canada, Nova Scotia, and New Brunswick at the Union shall form the Second Charge on the Consolidated Revenue Fund of Canada. Salary of Governor 105 Unless altered by the Parliament of Canada, the Salary of the GoverGeneral nor General shall be Ten thousand Pounds Sterling Money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the Third Charge thereon. (47) Appropriation from 106 Subject to the several Payments by this Act charged on the ConsoliTime to Time dated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service. 107 All Stocks, Cash, Banker's Balances, and Securities for Money belong- Transfer of Stocks, etc. ing to each Province at the Time of the Union, except as in this Act mentioned, shall be the Property of Canada, and shall be taken in Reduction of the Amount of the respective Debts of the Provinces at the Union. Transfer of Property 108 The Public Works and Property of each Province, enumerated in the in Schedule Third Schedule to this Act, shall be the Property of Canada. Property in Lands, 109 All Lands, Mines, Minerals, and Royalties belonging to the several Mines, etc . Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. ( 48) 110 All Assets connected with such Portions of the Public Debt of each Assets connected with Provincial Debts Province as are assumed by that Province shall belong to that Province. 111 Canada shall be liable for the Debts and Liabilities of each Province Canada to be liable for Provincial Debts existing at the Union. 112 Ontario and Quebec conjointly shall be liable to Canada for the Debts of Ontario and Quebec Amount (if any) by which the Debt of the Province of Canada exceeds at the Union Sixty-two million five hundred thousand Dollars, and shall be charged with Interest at the Rate of Five per Centum per Annum thereon. Assets of Ontario 113 The Assets enumerated in the Fourth Schedule to this Act belonging and Quebec at the Union to the Province of Canada shall be the Property of Ontario and Quebec conjointly. 47 Now covered by the Governor General's Act, R.S.C . 1952, c. 139. 48 The four western provinces were placed in the same position as the original provinces by the British North America Act, 1930, 21 Geo. V, c. 26 (U.K.).

xii/Documents 114 Nova Scotia shall be liable to Canada for the Amount (if any) by which its Public Debt exceeds at the Union Eight million Dollars, and shall be charged with Interest at the Rate of Five per Centum per Annum thereon . ( 49) 115 New Brunswick shall be liable to Canada for the Amount (if any) by which its Public Debt exceeds at the Union Seven million Dollars, and shall be charged with Interest at the Rate of Five per Centum per Annum thereon. 116 In case the Public Debts of Nova Scotia and New Brunswick do not at the Union amount to Eight million and Seven million Dollars respectively, they shall respectively receive by half-yearly Payments in advance from the Government of Canada Interest at Five per Centum per Annum on the Difference between the actual Amounts of their respective Debts and such stipulated Amounts. 117 The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for i:he Defence of the Country. 118 Repealed . (50)

Debt of Nova Scotia

Debt of New Brunswick

Payment of interest to Nova Scotia and New Brunswick

Provincial Public Property

49 The obligations imposed by this section, sections 115 and 116, and similar obligations under the instruments creating or admitting other provinces, have been carried into legislation of the Parliament of Canada and are now to be found in the Provincial Subsidies Act, R.S.C. 1952, c. 221. 50 Repealed by the Statute Law Revision Act, 1950, 14 Geo. VI, c. 6 (U.K.). As originally enacted, the section read as follows: 'Grants to Provinces. 118. The following Sums shall be paid yearly by Canada to the several Provinces for the Support of their Governments and Legislatures: Dollars Ontario Eighty thousand Quebec Seventy thousand Nova Scotia Sixty thousand New Brunswick Fifty thousand Two Hundred and sixty thousand; and an annual Grant in aid of each Province shall be made, equal to Eighty Cents per Head of the Population as ascertained by the Census of One thousand eight hundred and sixty-one, and in the Case of Nova Scotia and New Brunswick, by each subsequent Decennial Census until the Population of each of those two Provinces amounts to Four hundred thousand Souls, at which Rate such Grant shall thereafter remain. Such Grants shall be in full Settlement of all future Demands on Canada, and shall be paid half-yearly in advance to each Province; but the Government of Canada shall deduct from such Grants, as against any Province, all Sums chargeable as Interest on the Public Debt of that Province in excess of the several Amounts stipulated in this Act.' The section was made obsolete by the British North America Act, 1907, 7 Edw. VII, c. 11 (U.K.) which provided: 'Payments to be made by Canada to provinces. 1 (1) The following grants shall be made yearly by Canada to every Province, which at the commencement of this Act is a province of the Dominion, for its local purposes and the support of its Government and Legislature : 'a A fixed grant where the population of the province is under one hundred and fifty thousand, of one hundred thousand dollars; where the population of the province is one hundred and fifty thousand, but does not exceed two hundred thousand of one hundred and fifty thousand dollars; where the population of the province is two hundred thousand, but does not exceed four hundred thousand, of one hundred and eighty thousand dollars; where the population of the province is four hundred thousand, but does not exceed eight hundred thousand, of one hundred and ninety thousand dollars; where the population of the province is eight hundred thousand, but does not exceed one million five hundred thousand, of two hundred and twenty thousand dollars;

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119 New Brunswick shall receive by half-yearly Payments in advance from Canada for the Period of Ten Years from the Union an additional Allowance of Sixty-three thousand Dollars per Annum; but as long as the Public Debt of that Province remains under Seven million Dollars, a Deduction equal to the Interest at Five per Centum per Annum on such Deficiency shall be made from that Allowance of Sixty-three thousand Dollars. (51) 120 All Payments to be made under this Act, or in discharge of Liabilities created under any Act of the Provinces of Canada, Nova Scotia, and New Brunswick respectively, and assumed by Canada, shall, until the Parliament of Canada otherwise directs, be made in such Fonn and Manner as may from Time to Time be ordered by the Governor General in Council. 121 All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces. 122 The Customs and Excise Laws of each Province shall, subject to the Provisions of this Act, continue in force until altered by the Parliament of Canada. (52)

Further Grant to New Brunswick

Form of Payments

Canadian Manufactures, etc. Continuance of Customs and Excise Laws

where the population of the province exceeds one million five hundred thousand, of two hundred and forty thousand dollars; and 'b Subject to the special provisions of this Act as to the provinces of British Columbia and Prince Edward Island, a grant at the rate of eighty cents per head of the population of the province up to the number of two million five hundred thousand, and at the rate of sixty cents per head of so much of the population as exceeds that number. '(2) An additional grant of one hundred thousand dollars shall be made yearly to the province of British Columbia for a period of ten years from the commencement of this Act. '(3) The population of a province shall be ascertained from time to time in the case of the provinces of Manitoba, Saskatchewan, and Alberta respectively by the last quinquennial census or statutory estimate of population made under the Acts establishing those provinces or any other Act of the Parliament of Canada making provision for the purpose, and in the case of any other province by the last decennial census for the time being. '(4) The grants payable under this Act shall be paid half-yearly in advance to each province. '(5) The grants payable under this Act shall be substituted for the grants or subsidiaries (in this Act referred to as existing grants) payable for the like purposes at the commencement of this Act to the several provinces of the Dominion under the provisions of section one hundred and eighteen of the British North America Act 1867 (30-31 Viet., c. 3), or of any Order in Council establishing a province, or of any Act of the Parliament of Canada containing directions for the payment of any such grant or subsidy, and those provisions shall cease to have effect. ' (6) The Government of Canada shall have the same power of deducting sums charged against a province on account of the interest on public debt in the case of the grant payable under this Act to the province as they have in the case of the existing grant. '(7) Nothing in this Act shall affect the obligation of the Government of Canada to pay to any province any grant which is payable to that province, other than the existing grant for which the grant under this Act is substituted. '(8) In the case of the provinces of British Columbia and Prince Edward Island, the amount paid on account of the grant payable per head of the population to the provinces under this Act shall not at any time be less than the amount of the corresponding grant payable at the commencement of this Act, and if it is found on any decennial census that the population of the province has decreased since the last decennial census, the amount paid on account of the grant shall not be decreased below the amount then payable, notwithstanding the decrease of the population.' See the Provincial Subsidies Act, R.S.C. 1952, c. 221, The Maritime Provinces Additional Subsidies Act, 1942-43, c. 14, and the Terms of Union of Newfoundland with Canada, appended to the British North America Act, 1949, and also to An Act to approve the Terms of Union of Newfoundland with Canada, chapter 1 of the statutes of Canada, 1949. 51 Spent. 52 Spent. Now covered by the Customs Act, R.S.C. 1952, c. 58, the Customs Tariff. R.S.C. 1952, c. 60, the Excise Act, R.S.C. 1952, c. 99 and the Excise Tax Act, R.S.C. 1952, c. 100.

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123 Where Customs Duties are, at the Union, leviable on any Goods, Wares, or Merchandises in any Two Provinces, those Goods, Wares, and Merchandises may, from and after the Union, be imported from one of those Provinces into the other of them on Proof of Payment of the Customs Duty leviable thereon in the Province of Exportation, and on Payment of such further Amount (if any) of Customs Duty as is leviable thereon in the Province of Importation. (53) 124 Nothing in this Act shall affect the Right of New Brunswick to levy the Lumber Dues provided in Chapter Fifteen of Title Three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the Amount of such Dues; but the Lumber of any of the Provinces other than New Brunswick shall not be subject to such Dues. (54) 125 No Lands or Property belonging to Canada or any Province shall be liable to Taxation. 126 Such Portions of the Duties and Revenues over which ·the respective Legislatures of Canada, Nova Scotia, and New Brunswick had before the Union Power of Appropriation as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all Duties and Revenues raised by them in accordance with the special Powers conferred upon them by this Act, shall in each Province form One Consolidated Revenue Fund to be appropriated for the Public Service of the Province.

Exportation and Importation as between Two Provinces

Lumber Dues in New Brunswick

Exemption of Public Lands, etc. Provincial Consolidated Revenue Fund

IX MISCELLANEOUS PROVISIONS

General 127 Repealed. (55) 128 Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor General, or some Person authorized by him, the Declaration of Qualification contained in the same Schedule. 53 Spent. 54 These dues were repealed in 1873 by 36 Viet., c. 16 (N.B.). And see An Act respecting the Export Duties imposed on Lumber, etc., (1873) 36 Viet., c. 41 (Canada), and section 2 of the Provincial Subsidies Act, R.S.C. 1952, C. 221. 55 Repealed by the Statute Law Revision Act, 1893, 56 -57 Viet., c. 14 (U.K.). The section read as follows: 'As to Legislative Councillors of Provinces becoming senators. ' 127 If any Person being at the passing of this Act a member of the Legislative Council of Canada, Nova Scotia, or New Brunswick to whom a Place in the Senate is offered, does not within Thirty Days thereafter, by Writing under his Hand addressed to the Governor General of the Province of Canada or to the Lieutenant Governor of Nova Scotia or New Brunswick (as the Case may be), accept the same, he shall be deemed to have declined the same; and any Person who, being at the passing of this Act a Member of the Legislative Council of Nova Scotia or New Brunswick, accepts a Place in the Senate, shall thereby vacate his Seat in such Legislative Council.'

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129 Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia and New Brunswick respectively, as if the Union had not been made; subject nevertheless ( except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act. (56) 130 Until the Parliament of Canada otherwise provides, all Officers of the several Provinces having Duties to discharge in relation to Matters other than those coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be Officers of Canada, and shall continue to discharge the Duties of their respective Offices under the same Liabilities, Responsibilities, and Penalties as if the Union had not been made. (57) 131 Until the Parliament of Canada otherwise provides, the Governor General in Council may from Time to Time appoint such Officers as the Governor General in Council deems necessary or proper for the effectual Execution of this Act. 132 The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries. 133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Lan guages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. Ontario and Quebec 134 Until the Legislature of Ontario or of Quebec otherwise provides, the Lieutenant Governors of Ontario and Quebec may each appoint under the Great Seal of the Province the following Officers, to hold Office during Pleasure, that is to say, - the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown

Continuance of existing Laws, Courts, Officers, etc.

Transfer of Officers to Canada

Appointment of new Officers

Treaty Obligations

Use of English and French Languages

Appointment of Executive Officers for Ontario and Quebec

56 The restriction against altering or repealing laws enacted by or existing under statutes of the United Kingdom was removed by the Statute of Westminster, 1931, 22 Geo. V, c. 4 (U.K.). 57 Spent.

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Lands, and the Commissioner of Agriculture and Public Works, and in the Case of Quebec the Solicitor General, and may, by Order of the Lieute.nant Governor in Council, from Time to Time prescribe the Duties of those Officers, and of the several Departments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof, and may also appoint other and additional Officers to hold Office during Pleasure, and may from Time to Time prescribe the Duties of those Officers, and of the several Departments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof. (58) Powers, Duties, etc. 135 Until the Legislature of Ontario or Quebec otherwise provides, all of Executive Officers Rights, Powers, Duties, Functions, Responsibilities, or Authorities at the passing of this Act vested in or imposed on the Attorney General, Solicitor General, Secretary and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public Works, and Minister of Agriculture and Receiver General, by any Law, Statute, or Ordinance of Upper Canada, Lower Canada, or Canada, and not repugnant to this Act, shall be vested in or imposed on any Officer to be appointed by the Lieutenant Governor for the Discharge of the same or any of them; and the Commissioner of Agriculture and Public Works shall perform the Duties and Functions of the Office of Minister of Agriculture at the passing of this Act imposed by the Law of the Province of Canada, as well as those of the Commissioner of Public Works. (59) Great Seals 136 Until altered by the Lieutenant Governor in Council, the Great Seals of Ontario and Quebec respectively shall be the same, or of the same Design, as those used in the Provinces of Upper Canada and Lower Canada respectively before their Union as the Province of Canada. 137 The words 'and from thence to the End of the then next ensuing Ses- Construction of temporary Acts sion of the Legislature,' or Words to the same Effect, used in any temporary Act of the Province of Canada not expired before the Union, shall be construed to extend and apply to the next Session of the Parliament of Canada if the Subject Matter of the Act is within the Powers of the same as defined by this Act, or to the next Sessions of the Legislatures of Ontario and Quebec respectively if the Subject Matter of the Act is within the Powers of the same as defined by this Act. 138 From and after the Union the Use of the Words 'Upper Canada' instead As to Errors in Names of 'Ontario,' or 'Lower Canada' instead of 'Quebec,' in any Deed, Writ, Process, Pleading, Document, Matter, or Thing, shall not invalidate the same. As to issue of Pro139 Any Proclamation under the Great Seal of the Province of Canada clamations before issued before the Union to take effect at a Time which is subsequent to the Union, to commence Union, whether relating to that Province, or to Upper Canada, or to Lower after Union Canada, and the several Matters and Things therein proclaimed, shall be and continue of like Force and Effect as if the Union had not been made. (60) 58 Spent. Now covered in Ontario by the Executive Council Act, R.S.O. 1960, c. 127 and in Quebec by the Executive Power Act, R.S.Q. 1964, c. 9 as amended by 1965, c. 16. 59 Probably spent. 60 Probably spent.

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140 Any Proclamation which is authorized by any Act of the Legislature of the Province of Canada to be issued under the Great Seal of the Province of Canada, whether relating to that Province, or to Upper Canada, or to Lower Canada, and which is not issued before the Union, may be issued by the Lieutenant Governor of Ontario or of Quebec, as its Subject Matter requires, under the Great Seal thereof; and from and after the Issue of such Proclamation the same and the several Matters and Things therein proclaimed shall be and continue of the like Force and Effect in Ontario or Quebec as if the Union had not been made. (61) 141 The Penitentiary of the Province of Canada shall, until the Parliament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec. ( 62) 142 The Division and Adjustment of the Debts, Credits, Liabilities, Properties, and Assets of Upper Canada and Lower Canada shall be referred to the Arbitrament of Three Arbitrators, One chosen by the Government of Ontario, One by the Government of Quebec, and One by the Government of Canada; and the Selection of the Arbitrators shall not be made until the Parliament of Canada and the Legislatures of Ontario and Quebec have met; and the Arbitrator chosen by the Government of Canada shall not be a Resident either in Ontario or in Quebec. (63) 143 The Governor General in Council may from Time to Time order that such and so many of the Records, Books, and Documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec, and the same shall thenceforth be the Property of that Province; and any Copy thereof or Extract therefrom, duly certified by the Officer having charge of the Original thereof, shall be admitted as Evidence. (64) 144 The Lieutenant Governor of Quebec may from Time to Time, by Proclamation under the Great Seal of the Province, to take effect from a Day to be appointed therein, constitute Townships in those Parts of the Province of Quebec in which Townships are not then already constituted, and fix the Metes and Bounds thereof. 145 Repealed. (65)

As to issue of Proclamations after Union

Penitentiary

Arbitration respecting Debts, etc.

Division of Records

Constitution of Townships in Quebec

61 Probably spent. 62 Spent. Penitentiaries are now provided for by the Penitentiary Act, S.C. 1960-61, c. 53. 63 Spent. See pages (xi) and (xii) of the Public Accounts, 1902-03. 64 Probably spent. Two orders were made under this section on the 24th of January, 1868. 65 Repealed by the Statute Law Revision Act, 1893, 56-51 Viet., c. 14, (U.K.). The section reads as follows: 'X Intercolonial Railway. 'Duty of Government and Parliament of Canada to make Railway herein described. 145. Inasmuch as the Provinces of Canada, Nova Scotia, and New Brunswick have joined in a Declaration that the Construction of the Intercolonial Railway is essential to the Consolidation of the Union of British North America, and to the Assent thereto of Nova Scotia and New Brunswick, and have consequently agreed that Provision should be made for its immediate Construction by the Government of Canada: Therefore, in order to give effect to that Agreement, it shall be the Duty of the Government and Parliament of Canada to provide for the Commencement, within Six Months after the Union, of a Railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the Construction thereof without Intermission, and the Completion thereof with all practicable Speed.'

xlvii /Documents XI ADMISSION OF OTHER COLONIES

146 It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland , Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. (66) 147 In case of the Admission of Newfoundland and Prince Edward Island, or either of them, each shall be entitled to a Representation in the Senate of Canada of Four Members, and (notwithstanding anything in this Act) in case of the Admission of Newfoundland the normal Number of Senators shall be Seventy-six and their maximum Number shall be Eighty-two; but Prince Edward Island when admitted shall be deemed to be comprised in the Third of the Three Divisions into which Canada is, in relation to the Constitution of the Senate, divided by this Act, and accordingly, after the Admission of Prince Edward Island, whether Newfoundland is admitted or not, the Representation of Nova Scotia and New Brunswick in the Senate shall, as Vacancies occur, be reduced from Twelve to Ten Members respectively, and the Representation of each of those Provinces shall not be increased at any Time beyond Ten, except under the Provisions of this Act for the Appointment of Three or Six additional Senators under the Direction of the Queen.

Power to admit Newfoundland, etc., into the Union

As to Representation of Newfoundland and Prince Edward Island in Senate

SCHEDULES THE THIRD SCHEDULE

Provincial Public Works and Property to be the Property of Canada I Canals, with Lands and Water Power connected therewith. 2 Public Harbours. 3 Lighthouses and Piers, and Sable Island. 4 Steamboats, Dredges, and public Vessels. 5 Rivers and Lake Improvements. 6 Railways and Railway Stocks, Mortgages, and other Debts due by Railway Companies. 7 Military Roads. 8 Custom Houses, Post Offices, and all other Public Buildings, except such as the Government of Canada appropriate for the Use of the Provincial Legislature and Governments. 66 All territories mentioned in this section are now part of Canada. See the notes to section 5, supra.

xlviii/ Documents 9 Property transferred by the Imperial Government, and known as Ordnance Property. 10 Armouries, Drill Sheds, Military Clothing, and Munitions of War, and Lands set apart for general Public Purposes. THE FOURTH SCHEDULE

Assets to be the Property of Ontario and Quebec conjointly Upper Canada Building Fund Lunatic Asylums Normal School Court Houses in

Aylmer

Lower Canada

Montreal Kamouraska Law Society, Upper Canada Montreal Turnpike Trust University Permanent Fund Royal Institution Consolidated Municipal Loan Fund, Upper Canada Consolidated Municipal Loan Fund, Lower Canada Agricultural Society, Upper Canada Lower Canada Legislative Grant Quebec Fire Loan Temiscouata Advance Account Quebec Turnpike Trust Education - East Building and Jury Fund, Lower Canada Municipalities Fund Lower Canada Superior Education Income Fund

THE COLONIAL LAWS VALIDITY ACT, 1865

28 & 29 Victoria, c. 63 An Act to remove Doubts as to the Validity of Colonial Laws (29th June 1865) 1 The term 'colony' shall in this Act include all of Her Majesty's possessions abroad in which there shall exist a legislature, as herein-after defined, except the Channel Islands, the lsle of Man and British Burma. The terms 'legislature' and 'colonial legislature' shall severally signify the authority, other than the Imperial Parliament or Her Majesty in Council, competent to make laws for any colony:

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The term 'representative legislature' shall signify any colonial legislature which shall comprise a legislative body of which one half are elected by inhabitants of the colony: The term 'colonial law' shall include laws made for any colony either by such legislature as aforesaid or by Her Majesty in Council: An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament: The term 'governor' shall mean the officer lawfully administering the government of any colony: The term 'letters patent' shall mean letters patent under the Great Seal of the United Kingdom of Great Britain and Ireland. 2 Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. 3 No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid. 4 No colonial law passed with the concurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof which may have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last-mentioned instrument. 5 Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony. 6 The certificate of the clerk or other proper officer of a legislative body in any colony to the effect that the document to which it is attached is a true copy of any colonial law assented to by the governor of such colony, or of any Bill reserved for the signification of Her Majesty's pleasure by the said governor, shall be prima facie evidence that the document so certified is a true copy of such law or Bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such Bill has been duly and properly passed and presented to the governor; and any proclamation purporting to be published by authority of the governor in any newspaper in the colony to which such law or Bill shall relate, and signifying Her Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such reserved Bill as aforesaid, shall be prima facie evidence of such disallowance or assent ...

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THE STATUTE OF WESTMINSTER, 1931 22 George V, c. 4 An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930. (11th December 1931) Whereas the delegates of His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences: And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom: And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion: And whereas it is necessary for the ratifying, confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom: And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid as is hereafter in this Act contained: Now, therefore, be it enacted by the King's most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : l In this Act the expression 'Dominion' means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland. 2 (I) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. (2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion. (3) It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.

Ii/Documents

4 No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof. 5 Without prejudice to the generality of the foregoing provisions of this Act, sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, I 894, shall be construed as though reference therein to the Legislature of a British possession did not include reference to the Parliament of a Dominion. 6 Without prejudice to the generality of the foregoing provisions of this Act, section four of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved for the signification of His Majesty's pleasure or to contain a suspending clause), and so much of section seven of that Act as requires the approval of His Majesty in Council to any rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any Dominion as from the commencement of this Act. 7 ( 1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. (2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces. (3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively. 8 Nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia or the Constitution Act of the Dominion of New Zealand otherwise than in accordance with the law existing before the commencement of this Act. 9 (1) Nothing in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. (2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealth of Australia in any law made by the Parliament of the United Kingdom with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that the Parliament of the United Kingdom should make that law without such concurrence. (3) In the application of this Act to the Commonwealth of Australia the request and consent referred to in section four shall mean the request and consent of the Parliament and Government of the Commonwealth. 10 (1) None of the following sections of this Act, that is to say, sections two, three, four, five and six, shall extend to a Dominion to which this section applies as part of the law of that Dominion unless that section is adopted by the Parliament of the Dominion, and any Act of that Parliament adopting any section of this Act may provide that the adoption shall have effect either from the commencement of this Act or from such later date as is specified in the adopting Act. (2) The Parliament of any such Dominion as aforesaid may at any time revoke the adoption of any section referred to in subsection ( 1) of this section. (3) The Dominions to which this section applies are the Commonwealth of Australia the Dominion of New Zealand and Newfoundland.

Iii/Documents

11 Notwithstanding anything in the Interpretation Act, 1889, the expression 'Colony' shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion. 12 This Act may be cited as the Statute of Westminster, 1931.

Historical Chronology of Important Constitutional Events

A GUIDE TO THE HISTORICAL BACKGROUND OF THE CANADIAN CONSTITUTION

I 2 I 5 Magna Carta (This is the date generally associated with Magna Carta. However, after King John's death and the ensuing period of conflict among the power elite in England, the Charter was re-issued by Henry III in 1225, and later confirmed by Edward I in 1297.) 1628 Charles I accepts the Petition of Right 1663 Royal Government in New France 1670 Royal Charter incorporating the Hudson's Bay Company 1679 Habeas Corpus Act (An Act for the better securing of the Liberty of the Subject, and for the Prevent1on of Imprisonment beyond the Seas) 1689 English Bill of Rights 1701 Act of Settlement 1713 Treaty of Utrecht 1763 The Royal Proclamation 1774 The Quebec Act 1787 (Adoption of the Constitution of the United States of America, 11 years after the Declaration of Independence) 1791 The Constitutional Act of 1791 1839 Lord Durham's Report on the Affairs of British North America 1840 The Act of Union 1864 The Quebec Conference 1865 The Colonial Laws Validity Act 1866 The London Conference

liv / Chronology

1867 The British North America Act 1870 Order In Council admitting Rupert's Land and the Northwest Territories to the union 1870 The Manitoba Act (Canada) 1871 Order in Council admitting the colony of British Columbia to the union 1873 Order in Council admitting the colony of Prince Edward Island to the union 1875 The Supreme and Exchequer Court Act (Canada) 1880 Order in Council annexing to Canada all British territories and adjacent islands in North America 1896 A.-G. for Ontario v A.-G. for Canada (Local Prohibition case), [l896j

A.C.

348

1905 The Alberta Act (Canada) 1905 The Saskatchewan Act (Canada) 1930 The Alberta Natural Resources Act, The Saskatchewan Natural Resources Act, The Manitoba Natural Resources Act (all, Canada) 1931 The Statute of Westminster 1933 The Extraterritorial Act (Canada) 1937 The Succession to the Throne Act (Canada) 1947 New Letters Patent for the Governor-General 1949 Amendment to the Supreme Court of Canada Act, Stats. Can. 1949, c. 37, ended appeals to the Privy Council ( enacted only after the Privy Council itself had decided that the Dominion Parliament had authority to make the amending decision inA.-G. for Ontario v A .-G. for Canada, [1947] A.C. 127) 1949 An Act to approve the Terms of Union of Newfoundland with Canada (Canada) 1949

BNA Act amended to give the Dominion Parliament limited authority to amend the Constitution of Canada (sees. 91 (1) of BNA Act, as amended)

1960 The Canadian Bill of Rights 1969 Reg. v Drybones (1970), 9

D . L . R.

(3d) 473

CANADIAN

CONSTITUTIONAL

LAW IN A

MODERN

PERSPECTIVE

SOME BASIC ISSUES

I/The Rule of Law

No term is used more loosely among lawyers these days than 'the rule of law.' Ask any ten lawyers what they understand to be the rule of law in society. They will all tell you that they are in favour of it, but will proceed to give you ten different answers depending on those areas of the law with which they are most familiar. Some will suggest that the rule of law is the totality of all those rules and practices by which our legal institutions operate. Others might state that it is all those rules which protect our fundamental rights and human dignity in our legal system. Still others might suggest that the rule of law is the constitution. One thing is clear in any society that purports to be free: there must be some authoritative structure by which the exercise of public power is controlled. The demands of today's restless society must not be interpreted as a clarion call for unbridled government action. There must be limits. The authoritative structure of control which a society adopts may be founded in legal institutions or in shared value commitments or, more likely, in both. And surely it is a fundamental rule of the lawyer to familiarize himself with the whole framework of public decision-making in his society and to interpret this for his fellow citizen. It is this framework of public decision-making, with its authoritative structures by which the exercise of public power is controlled, which comprises the subject of this book. For us, this is constitutional law. And we start into this subject with a preliminary attempt to determine what lawyers mean when they use the term 'rule of law.' We have reason to believe that the term bears some relation to our notion of constitutional law. In reading the following materials, try to trace the development of the rule of law from its early articulation by Dicey in the nineteenth century to its modern formulation by the international Commission of Jurists in 1965. To what extent do changes in the rule of law reflect changing value commitments in our society? From John Stuart Mill, On Liberty The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the Government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing

tribe or caste, who derived their authority from inheritance or conquest, who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed upon by innumerable vultures, it

4/Canadian Constitutional Law

was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community ; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which if he did infringe, specific resistance, or general rebellion, was held to be justifiable. A second, and generally a later expedient, was the establishment of constitutional checks, by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled , more or less, to submit. It was not so with the second ; and, to attain this, or when already in some degree possessed, to attain it more completely, became everywhere the principal object of the lovers of liberty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point. A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused

to their disadvantage. By degrees this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed ; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people ; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannising over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power ,of which it could itself dictate the use to be made. Their power was but the nation's own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered. But, in political and philosophical theories, as well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that

5/Rule of Law

notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of a usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth's surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was not perceived that such phrases as 'self-government,' and 'the power of the people over themselves,' do not express the true state of the case. The 'pe6ple' who exercise the power are not always the same people with those over whom it is exercised; and the 'self-government' spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein . This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations 'the tyranny of the majority' is now generally included among the evils against which society requires to be on its guard. Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held

in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant- society collectively over the separate individuals who compose it - its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism . Dicey, The Law of the Constitution 187-8; 193; 195-6 (10th ed. 1959) When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one ex pression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner

6/Canadian Constitutional Law

before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint ... We mean in the second place, when we speak of the 'rule of law' as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals ... There remains yet a third and a different sense in which the ' rule of law' or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.

Conclusions and Resolutions of the Conference of South-East Asia and Pacific Jurists in Bangkok, 1965 (under the auspices of the International Commission of Jurists), pp. 17787. DECLARATION OF BANGKOK

This Conference of I 05 jurists from 16 countries of the South-East Asian and Pacific Region, assembled in Bangkok from February 15th to 19th, I 965, under the auspices of the International Commission of Jurists has reached these conclusions: It con.riders that given peace and stability, there are no intrinsic factors in the Region which make the ultimate establishment, maintenance and promotion of the Rule of Law

incapable of attainment ; that the Rule of Law can only reach its highest expression and fullest realization under a representative government freely chosen by universal adult suffrage; and that the Rule of Law requires effective machinery for the protection of fundamental rights and freedoms; It recognizes that the Rule of Law and representative government are endangered by hunger, poverty and unemployment; that, in order to achieve social, economic and cultural development, sound economic planning is essential; that, in particular, measures of land reform to assure fairer distribution and its most economic utilization may be necessary; that successful planning depends on the maintenance of administrative efficiency and the elimination of corruption at political and ad ministrative levels; that proper means of redress should be available where administrative wrongs are committed; and that, in the light of the experience gained in Scandinavia and New Zealand, consideration should be given to the Ombudsman concept as a means of individual redress and the improvement of administration; It affirms that lawyers should be a vital and courageous element in a developing community; and that they should always be conscious of the social, economic and cultural aspirations of the people to the realization of which they should commit their skills and techniques ; It believes that the conclusion of a Regional Convention on Human Rights among States in the Region should be considered as a means of making an important contribution to individual human rights and to the solution of national, racial, religious and other minority issues; and that the establishment of the office of United Nations High Commissioner for Human Rights would be a valuable immediate measure to safeguard effectively human rights in accordance with the Universal Declaration of Human Rights ; It reaffirms the Act of A thens, the Declaration of Delhi, the Law of Lagos and the Resolution of Rio;

7/Rule of Law And Now Solemnly Adopts the Conclusions and Resolutions annexed to this Declaration. This Declaration shall be known as the Declaration of Bangkok. Done at Bangkok, this 19th day of February, 1965. ANNEX: CONCLUSIONS AND RESOLUTIONS

Conclusions of Committee

I

Basic Requirements of Representative Government under the Rule of Law Preamble Recalling and reaffirming the definition of the Rule of Law adopted by the International Commission of Jurists at the New Delhi Congress in 1959, which reads: 'The principles, institutions and procedures, not always identical but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of man'; Believing that the protection of the individual from arbitrary government and his enjoyment of the dignity of man are best assured by a representative government under the Rule of Law; And with the object of setting out and defining the basic requirements of, and considerations affecting, representative government under the Rule of Law; This Committee has reached the following Conclusions in relation to such requirements: CLAUSE I

The Rule of Law can only reach its highest expression and fullest realization under representative government. CLAUSE II

By representative government is meant a government deriving its power and authority

from the people, which power and authority are exercised through representatives freely chosen and responsible to them. CLAUSE III

Free periodic elections are therefore important to representative government. Such elections should be based on universal and equal adult suffrage and should be held by secret ballot and under such conditions that the right to vote is exercised without hindrance or pressure. Where a legislature is elected by districts, there should be a periodic re-distribution of seats or districts so as to ensure as far as practicable that each individual vote has the same value. It is also necessary to ensure that election expenses of candidates are regulated in such a manner and to such an extent as may be necessary to ensure that elections are both free and fair. CLAUSEN

No adult citizen should by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, wealth, education, status or birth be deprived of the right to be a candidate at any election, to seek votes, or to cast his vote for any candidate. CLAUSE V

Freedom of expression through the press and other media of communication is an essential element of free elections and is also necessary to ensure the development of an informed and responsible electorate. CLAUSE VI

Representative government implies the right within the law and as a matter of accepted practice to form an opposition party or parties able and free to pronounce on the policies of the government, provided their policies and actions are not directed towards the destruction of representative government and the Rule of Law. CLAUSE VII

Illiteracy is an impediment to representative government reaching its highest expression and fullest realization. It is therefore the duty of the State to provide compulsory free education for all illiterate adults up to such

8/Canadian Constitutional Law standard as is necessary ultimately to remove such impediment. CLAUSE VIII

To enable representative government to yield the best results, the people should not only be literate, but should have a proper understanding and appreciation of the principles of democracy, the functions of the different branches of the government and the rights and duties of the citizen vis-a-vis the State. Civic education through schools and through all mass media of communication is therefore a vital factor for ensuring the existence of an informed and responsible electorate. CLAUSE IX

It is essential for the effective operation of the Rule of Law that there should be an efficient, honest and impartial civil service. CLAUSE X

This Committee has reached the following further Conclusions relating to the guarantee of individual freedom and dignity within the framework of a representative government : (1) In a State in which the Rule of Law prevails there should be effective machinery for the protection of fundamental rights and freedoms, whether or not these rights and freedoms are guaranteed by a written constitution. (2) In countries where the safeguards afforded by well-established constitutional conventions and traditions are inadequate, it is desirable that the rights guaranteed and the judicial procedures to enforce them should be incorporated in a written constitution. (3) While governments should of their own volition refrain from action infringing fundamental rights and freedoms, the ultimate determination as to whether the law or an executive or administrative act infringes those rights and freedoms should be vested in the Courts. ( 4) The ultimate protection of the individual in a society governed by the Rule of Law depends upon the existence of an enlightened, independent, and courageous Judiciary, and upon adequate provision for the speedy and

effective administration of justice. CLAUSE XI

In view of the fact that some governments in the Region often have recourse to preventive detention, this Committee has found it necessary to reaffirm, reiterate and extend the Conclusions of Lagos relating to preventive detention in the following terms: ( 1) Save during a period of public emergency threatening the life of the nation, no person of sound mind shall be deprived of his liberty except upon a charge of a specific criminal offence, and preventive detention without trial shall be contrary to the Rule of Law. (2) During such period of public emergency, legislation often authorizes preventive detention of an individual if the Executive finds that public security so requires. Such legislation should provide the individual with safeguards against continuing arbitrary confinement by requiring a prompt administrative hearing and decision upon the need and justification for detention, with a right to judicial review as to the need and justification for such detention and with the right to representation by counsel at all stages. It should be required that any declaration of public emergency by the Executive be forthwith reported to, and be subject to ratification by, the Legislature. Moreover, both the declaration of public emergency and any consequent detention of individuals should, except in time of war, be effective only for a specified and limited period of time (not exceeding six months). (3) Extension of the period of public emergency should be effected by the Legislature only after careful and deliberate consideration of the necessity therefor. Finally, during any period of public emergency the Executive should only take such measures as are reasonably justifiable for the purpose of dealing with the situation which exists during that period. (4) Even where the preventive detention of an individual is permitted by law by reason of a public emergency threatening the life of

9/Rule of Law

the nation, it is essential that the Executive should not act arbitrarily and that it should forthwith supply the person detained with the grounds for his detention and particulars thereof. (5) Where it is necessary in order to prevent hardship, the State should support the dependents of a person placed under preventive detention. CLAUSE XII

Finally, this Committee, having anxiously considered the various factors which challenge the Rule of Law in the Region, wishes to add that in its view there are no intrinsic factors in the area which make the ultimate establishment, maintenance and promotion of representative government under the Rule of Law incapable of attainment. Conclusions of Committee II

Economic and Social Development within the Rule of Law Preamble Considering that the Rule of Law requires the establishment and observance of certain standards that recognize and foster not only the political rights of the individual but also his economic, social and cultural security; Realizing that the Rule of Law is endangered by the continued existence of hunger, poverty and unemployment which tend to make a truly representative form of government impossible and promote the emergence of systems of government opposed to the principles of the Rule of Law; Believing that the lasting and effective way of reaching the social and economic goals necessary to the smooth operation of the Rule of Law is by methods and procedures that conform to its principles; and Bearing in mind, in consonance with the Universal Declaration of Human Rights, that the economic, social and cultural rights of the individual include the right to work, to free choice of employment, to protection against

unemployment, to just and favourable conditions of work and remuneration which will ensure to the worker and his family an existence worthy of human dignity, to security and social protection, and to the satisfaction and enrichment of his intellectual and cultural faculties; The Committee has arrived at the following conclusions regarding social, economic and cultural development in the Region: CLAUSE I

Some of the economic, social and cultural standards set forth above have already been given legal force and sanction by constitutional and statutory provisions; however, there is a need progressively to enact the appropriate legislation and to develop the legal institutions and procedures whereby these standards may be maintained and enforced within the Rule of Law. Economic, social and cultural rights should also be safeguarded on the international level by relevant conventions of the United Nations and its specialized agencies. Governments are urged to co-operate in the framing of such conventions and to ratify them. CLAUSE II

It is essential to economic and social development under the Rule of Law that inequality of opportunity arising from birth or wealth, and discrimination arising from ethnic, religious, linguistic, regional or communal factors be overcome. Political, racial, social, religious and other types of intolerance impede the unified effort required for economic progress. Governments should therefore promote and encourage a spirit of tolerance among all sections of the community. CLAUSE III

It is recognized in general, and more particularly in the case of the developing countries of the Region, that in order to achieve greater economic and social benefits for the individual some measure of intervention in property rights may become necessary, but such intervention should never be greater than is abso-

IO/Canadian Constitutional Law lutely necessary in the public interest and should be subject to safeguards afforded by the Rule of Law. CLAUSE V

While no specific methods of land reform can be suggested by the Committee which are uniformly appropriate for all communities, it is recognized that such methods may properly include qualification of the right to own or to succeed to land, provision for the maximum utilization of land, facilities for the granting of credit on advantageous terms, the issuance of land titles, the strengthening of the right of association of rural people for their political, economic, social and cultural advancement, and support for rural development in general. These and other measures of land reform must, however, conform to the principles and procedures of the Rule of Law. CLAUSE VI

Sound economic planning is essential to the social and economic development of the countries in the Region, but the Rule of Law requires that both the ends and the means embodied in such planning derive from and reflect the ideas, the needs and the aspirations of the people themselves. CLAUSE VII

To inspire confidence and to reduce the possibility of maladministration, especially in regard to capital investment in public economic development projects, it is recommended that full accounts on such projects be the subject of independent and expert examination, and that reports thereon be regularly submitted to the Legislature. CLAUSE VUI

Nationalization of private enterprises by a democratically elected government when necessary in the public interest is not contrary to the Rule of Law. However, such nationalization should be carried out in accordance with principles laid down by the Legislature and in a manner consistent with the Rule of Law, including the payment of fair and reasonable compensation as determined

by an independent tribunal. The same considerations should apply to other governmental action taken with similar purpose and effect. CLAUSE IX

It is in accord with the Rule of Law to adopt, when necessary in the interest of public welfare, fair and reasonable measures with respect to price control, state trading, control of private trade and anti-trust legislation. CLAUSE X

In every developing country it is desirable in the interest of social and economic peace that there be legal machinery for the peaceful settlement of labour disputes. It is recommended that, where necessary, States which have ratified the relevant conventions of the International Labour Organization implement the same by appropriate legislation. CLAUSE XI

The effective operation of the Rule of Law in developing countries requires an efficient administration, adequately equipped to cope with vast and complex social and economic problems. Corruption among public officials not only undermines confidence in the public service, but it is a positive hindrance to economic and social progress. It also leads to miscarriage of justice, thereby affecting the operation of the Rule of Law. These considerations apply with at least equal force to Ministers and members of the Government. It is essential, particularly in multi-racial or multi-religious developing societies of the Region, that the appointment, promotion, dismissal and disciplinary control of public servants be determined without discrimination on religious, racial, linguistic or other grounds which may be extraneous to the proper functioning of the public service. CLAUSE XII

In order to minimize infringements of the rights and freedoms of the individual, particularly in developing countries where far-reaching administrative decisions are necessary, such decisions affecting these rights and freedoms

11/Rule of Law should be supported by stated reasons and be subject to review . The Conclusions of Committee II of the New Delhi Congress (Clauses IV and v), and of Committee II (A and B) of the Rio Congress of the International Commission of Jurists are reaffirmed. CLAUSE XIII

Full observance of the Rule of Law requires that the Government be liable for wrongs committed by it or its servants in the execution or the purported execution of public duties. The relevant conclusion of the New Delhi Congress ( Committee I, Clause VI) is reaffirmed. CLAUSE XIV

In the light of the experience gained in Scandinavia and New Zealand, it is recommended that nations of the Region should examine the possibility of adopting the 'Ombudsman' concept as a means of facilitating the correction of administrative errors and minimizing the possibility of maladministration. While adaptation to local circumstances will be necessary, it is understood that the basic principles underlying such a concept are : the complete independence of the office from the Executive; its full and untrammelled power, including access to files and the hearing of witnesses, to investigate complaints against administrative actions of the Executive; and the limitation of its power to recommendations addressed to competent legislative and executive organs. Conclusions of Committee 111

The Role of the Lawyer in a Developing Country Preamble Law and lawyers are instruments of social order. Without law, the evolution of mankind to its present stage of development would not have been possible. Through the law, society is preserved and man is enabled to live and love and labour in peace from generation to generation.

The law is not negative and unchanging. It should be not a yoke, but a light harness holding society loosely but firmly together, so that it may move freely forward. Order is important, but it must be an evolving order; the law must be firm yet flexible, and capable of adapting itself to a changing world. This is especially so in a developing country. Poverty, lack of opportunity and gross inequality in the Region require leaders who understand the need for evolutionary change, so that every citizen may look to a future in which each may realise his full potential as an individual in a free society. The great need of the peoples of the Region requires action, lest freedom be utterly forfeited. Beset by threats from the right or left, the statesman must find means to advance the economic and social development of his country and countrymen, whilst preserving or establishing the institutions and the freedoms which are the cornerstones of a free society under the Rule of Law. These problems require the lawyer to play a vital role in their solution. They cannot be solved by lawyers alone. But the life of man in society and his relationships with others are the subjects of the lawyer's special knowledge and study; in many parts of the Region lawyers are particularly well equipped to see these problems in perspective, and to devise solutions. The lawyer must look beyond the narrower confines of the law, and gain understanding of the society in which he lives, so that he may play his part in its advancement. The inspiration of the lawyers of the world, particularly those of the Region, with the ideals proclaimed at the Rio Congress in the Conclusions of Committee III, 'The Role of Lawyers in a Changing World,' could play a large part in moulding free societies of the future, able to promote the full dignity of man, and to withstand the perils and dangers of the changing times. This Committee therefore reaffirms and reiterates the Conclusions of the Rio Congress, and adopts the following further Conclusions

12/ Canadian Constitutional Law with particular reference to developing societies: CLAUSE I

The lawyer has a deep moral obligation to uphold and advance the Rule of Law in whatever sphere he may be engaged or in which he has influence, and he should fulfill that obligation even if it brings him into disfavour with authority or is contrary to current political pressures. He can give effect to many of the principles underlying the Rule of Law in his daily work; for the rest, it is his responsibility as a citizen in a developing community to apply them for the benefit of society and his fellow-men. CLAUSE II

An indispensable aspect of the maintenance

of the Rule of Law is the availability of lawyers to defend the civil, personal and public rights of all individuals and the readiness to act for those purposes resolutely and courageously. Such a readiness involves the obligation to take an active part in implementing and making effective schemes of legal aid for the poor and destitute. CLAUSE III

The lawyer should endeavour: ( 1) to secure the repeal or amendment of laws which have become inappropriate or unjust or out of harmony with the needs and aspirations of the people; (2) to review proposed legislation and delegated legislative enactments, and to ensure that they are in accord with the Rule of Law; (3) to ensure that the law is clear and readily accessible; (4) to promote legislation establishing the legal framework which will enable a developing society to advance, and its members to attain their full dignity as human beings. CLAUSE IV

The lawyer should assist in the work of ad-

ministration; he should insist, nonetheless, that it be executed with respect for the rights of the individual and otherwise according to law, and strive to assure judicial review of all administrative acts which affect human rights. CLAUSE V

Lawyers must bring to bear in the field of international relations the underlying principles of the Resolution of Rio, and the Conclusions of this Conference: respect for law, coupled with a concern for all mankind, particularly the poor, the weak, the illiterate, and the oppressed. CLAUSE VI

This Committee endorses the Conclusions of Rio regarding the Role of Legal Education in a Changing Society as being particularly relevant in the context of the Rule of Law in developing societies. It urges lawyers to be actively concerned with legal education and the provision of adequate incentives for teachers of law, and to do their utmost to implement the principles enunciated in those Conclusions. The Rule of Law, as a dynamic concept, requires that legal education should bear a realistic relation to the social and economic conditions obtaining in developing societies, so that future lawyers in the Region may be better equipped to perform their role in a constructive manner. CLAUSE VII

This Committee recommends the adoption by the Commission of a resolution, in the form attached, relating to the consideration of the feasibility of promoting a South-East Asian and Pacific Law Institute. CLAUSE VIII

Lawyers should endeavour to enlist the aid of their professional associations to secure the acceptance by their members of the ideals set forth above.

For Canadian references, see Dussault, 'Suprematie de la loi ou "rule of law"' 27 Rev. dub. 302 (1967); Thorson, 'A New Concept of the Rule of Law,' 38 Can. Bar Rev. 238 (1960); Thorson, 'The Rule of Law in a Changing World,' 1 U.B.C.L. Rev. 176 (1960).

13/Rule of Law The following case represents a landmark in the interpretation and application of the rule of law by the judiciary in Canada. In reading through these extracts, try to determine the values at stake in the case and the authoritative policies in the common law which the judges invoked in their judgments.

Roncarelli v Duplessis (1959) S.C.R. 121, (1959),16 D.L.R. (2d) 689 Supreme Court of Canada Appeal from a judgment of the Quebec Court of Queen's Bench, [1956) Que. Q.B. 447, reversing a judgment of Mackinnon J, [ 1952] l D.L.R. 680 and dismissing an action for damages for improperly procuring the cancellation of a liquor licence which resulted in a loss of business. Reversed. F. R. Scott and A. L. Stein, for appellant. L. Emery Beaulieu QC, and L. Tremblay QC, for respondent. TASCHEREAU J (translation) (dissenting) : The respondent is Prime Minister and Attorney-General of the Province of Quebec, and he occupied these high functions during the time when the facts which gave rise to this litigation occurred. The appellant, who kept a restaurant in the City of Montreal, and who was a holder of a permit issued by the Liquor Commission for the sale of spirituous liquors, claimed from him personally in damages before the Superior Court, the sum of $118,741. He alleged in his statement of claim that he was a licence holder for many years, that he has always respected the laws of the Province pertaining to the sale of alcoholic liquors, that his restaurant had an excellent reputation, and enjoyed the favour of a numerous and distinguished clientele. He further alleged that he was and still is a member of the religious sect called the 'Witnesses of Jehovah', and that because he had been a surety for approximately 390 of his co-religionists, summoned before the Re-

corder's Court of Montreal, and accused of distributing literature without a permit, the respondent illegally intervened with the manager of the Liquor Commission, in order to obtain the cancellation of his permit which, as a matter of fact , was rescinded on December 4, 1946. It is the contention that it is as a result of this unjustified intervention of the respondent that the appellant lost his permit, and thus suffered considerable damages which he now claims. The Superior Court [[ 1952) l D.L.R. 680) maintained the action for $8,123.53, and the Court of Queen's Bench, Mr. Justice Rinfret dissenting, allowed the appeal and dismissed the action with costs I I 1956 I Que. Q.B. 447). The respondent has raised several objections to this claim, but I propose to examine only one, because I believe that it is sufficient to dispose of the present appeal. The Code of Civil Procedure of the Province of Quebec contains the following section : ' 88 . No public officer or other person fulfilling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any verdict or judgment be rendered against him, unless notice of such action has been given him at least one month before the issue of the writ of summons. ' Such notice must be in writing; it must state the grounds of the action, and the name of the plaintiff's attorney or agent, and indicate his office ; and must be served upon him personally or at his domicile. ' The failure to give this notice may be

14 / Canadian Constitutional Law

raised by the defendant by exception to the form or in the written plea to the action (Charland v. Kay (I 933), 54 Que. K.B. 377; Corporation de la Paroisse de St. David de l'Auberiviere v. Paquet (1937), 62 Que. K.B. 140;House v. Benoit, [1943) Que. K.B. 713). The very words used by the legislator in art . 88 C.C.P. 'no judgment may be rendered ' against the defendant, indicate also that the Court has, 'proprio motu ', the duty to raise this defence, if the defendant omits or neglects to do so by exception to the form, or in his written plea. The service of this notice to a public officer fulfilling public duties is a condition precedent, essential to the success of a judicial proceeding. If it is not given, the Courts cannot grant the relief claimed and award damages. In the present case, it is common ground that no notice was given. But it is the contention of the appellant that the respondent may not avail himself of this defence, because the advice that he gave and which may have been the determining cause of the cancellation of the permit, was not given by the defendant while in the exercise of his functions. The evidence reveals that the appellant was a holder of a permit of the Liquor Commission for many years, that the upkeep of his restaurant was beyond reproach, and that during the month of December, 1946, the permit was cancelled because the appellant became surety for many of his co-religionists, distributors of literature which was believed to be seditious. This happened before the judgment given by this Court in Boucher v. The King [ 195 I), 2 D.L.R. 369, S.C.R. 265, 99 Can. c .c. I, at a time when it was deeply rooted in the mind of the population, that the 'Witnesses of Je hovah' were disturbers of public peace, and constant sources of disorder in the Province. It was thought that their movement was dangerous, susceptible of stirring up a part of the population against the other, and thus give rise to serious perturbations. There was some talk of seditious conspiracy,

and this was surely not without reasonable cause, for this opinion was later unanimously confirmed by five Justices of the Court of Queen's Bench in the case of Boucher v. The King (I 949), 95 Can. c.c. 119, and also by four dissenting Justices of this Court in the same case (Boucher v. The K ing cited supra). Mr. Archambault, then General Manager of the Liquor Commission, was strongly suspicious that the 'Frank Roncarelli' who, by the giving of his numerous surety bonds was financially helping this movement thought subversive was the holder of a permit for the sale of alcoholic liquors. He obviously thought that it was improper that the profits drawn by Roncarelli from his permit, be employed to serve the cause of religious agitators, whose teachings and methods conflicted with the popular beliefs. He informed the respondent Attorney-General of the Province, who as such, is the official adviser to the Province on all legal matters. During the course of a first telephonic conversation, Mr. Archambault suggested to the respondent that Roncarelli's permit be cancelled, which he had personally the right to do, by virtue of s. 35 of the Alcoholic Liquor Act, R.S.Q. 1941, c.255, which says: '35 . The Commission may cancel any permit at its discretion.' As the executive of the Liquor Commission is composed of o nly a general manager, who was Mr. Archambault, this discretion therefore rested entirely upon him. The respondent suggested to use caution, and recommended that he ascertain if the Roncarelli, holder of a permit, was the same Roncarelli who was distributing his sureties with such bounteousness. After investigation , the affirmative having been established, Mr. Archambault further communicated with the respondent, and this is the evidence given by the former, concerning these conversations ... That the permit was cancelled as a result of the sole decision of Mr. Archambault , which he had the right to do at his discretion, or that this discretion was influenced by the

15/Rule of Law statements of the respondent, has I believe no decisive effect in the determination of the present case. I take the view that, even if what has been said by the respondent affected the decision taken by Mr. Archambault, the respondent remained nevertheless a public officer acting in the performance of his duties, and that it was therefore essential to give him the notice required by s. 88 C.C.P. The absence of this notice prohibits the Courts from pronouncing any condemnation. The respondent is surely a public officer, and it seems clear that he did not act in his personal quality. It is as legal adviser of the Liquor Commission, and also as a public officer entrusted with the task of preventing disorders, and as protector of peace in the Province that he was consulted. It is the Attorney-General, acting in the performance of his functions, who was required to give his directives to a governmental branch. Vide: Attorney-General's Department Act, R.S.Q. 1941, c. 46, s. 3;Alcoholic Liquor Act, R.S.Q. 1941, c. 255, s.138. Many, rightly or wrongly, may think that the respondent was mistaken in believing that it was his duty, in order to maintain public peace and to suppress existing disorders which threatened to spread further, to advise that the permit of the appellant be cancelled. For my part, I cannot subscribe to the fallacious principle that an error, committed by a pub· lie officer, in doing an act that is connected with the object of his functions, strips it of its official character, and that its author must then be considered as being without the scope of his duties. Because the appellant did not comply with the exigencies of art. 88 c.c.P., by not giving the required notice to the respondent, who was a public officer performing his functions, I believe that the action cannot succeed. The failure to fulfil this condition precedent is a total bar to the claim, and this dispenses me with the obligation of dealing with the other aspects of the case. I therefore come to the conclusion that the

principal appeal, as well as the appeal lodged to have the amount awarded by the trial Judge increased, must both be dismissed with costs throughout. The judgment of Rand and Judson JJ was delivered by RAND J: The material facts from which my conclusion is drawn are these. The appellant was the proprietor of a restaurant in a busy section of Montreal which in 1946 through its transmission to him from his father had been continuously licensed for the sale of liquor for approximately 34 years; he is of good education and repute and the restaurant was of a superior class. On December 4th of that year, while his application for annual renewal was before the Liquor Commission, the existing licence was cancelled and his application for renewal rejected, to which was added a declaration by the respondent that no future licence would ever issue to him. These primary facts took place in the following circumstances : For some years the appellant had been an adherent of a rather militant Christian religious sect known as the Witnesses of Jehovah. Their ideology condemns the established church institutions and stresses the absolute and exclusive personal relation of the individual to the Deity without human intermediation or intervention. The first impact of their proselytizing zeal upon the Roman Catholic church and community in Quebec, as might be expected, produced a violent reaction. Meetings were forcibly broken up, property damaged, individuals ordered out of communities, in one case out of the Province, and generally, within the cities and towns, bitter controversy aroused. The work of the Witnesses was carried on both by word of mouth and by the distribution of printed matter, the latter including two periodicals known as 'The Watch Tower' and 'Awake', sold at a small price. In 1945 the provincial authorities began to take steps to bring an end to what was con-

16/Canadian Constitutional Law

sidered insulting and offensive to the religious beliefs and feelings of the Roman Catholic population. Large scale arrests were made of young men and women, by whom the publications mentioned were being held out for sale, under local by-laws requiring a licence for peddling any kind of wares. Altogether almost one thousand of such charges were laid. The penalty involved in Montreal, where most of the arrests took place, was a fine of $40, and as the Witnesses disputed liability, bail was in all cases resorted to. The appellant, being a person of some means, was accepted by the Recorder's Court as bail without question, and up to November 12, 1946 he had gone security in about 380 cases, some of the accused being involved in repeated offences. Up to this time there had been no suggestion of impropriety; the security of the appellant was taken as so satisfactory that at times, to avoid delay when he was absent from the city, recognizances were signed by him in blank and kept ready for completion by the Court officials. The reason for the accumulation of charges was the doubt that they could be sustained in law. Apparently the legal officers of Montreal, acting in concert with those of the Province, had come to an agreement with the attorney for the Witnesses to have a test case proceeded with. Pending that, however, there was no stoppage of the sale of the tracts and this became the annoying circumstance that produced the volume of proceedings. On or about November 12th it was decided to require bail in cash for Witnesses so arrested and the sum set ranged from $100 to $300. No such bail was furnished by the appellant; his connection with giving security ended with this change of practice; and in the result, all of the charges in relation to which he had become surety were dismissed. At no time did he take any part in the distribution of the tracts: he was an adherent of the group but nothing more. It was shown that he had leased to another member premises in Sherbrooke which were used as a

hall for carrying on religious meetings: but it is unnecessary to do more than mention that fact to reject it as having no bearing on the issues raised . Beyond the giving of bail and being an adherent, the appellant is free from any relation that could be tortured into a badge of character pertinent to his fitness or unfitness to hold a liquor licence. The mounting resistance that stopped the surety bail sought other means of crushing the propagandist invasion and among the circumstances looked into was the situation of the appellant. Admittedly an adherent, he was _enabling these protagonists to be at large to carry on their campaign of publishing what they believed to be the Christian truth as revealed by the Bible; he was also the holder of a liquor licence, a 'privilege' granted by the Province, the profits from which, as it was seen by the authorities, he was using to promote the disturbance of settled beliefs and arouse community disaffection generally. Following discussions between the then Mr. Archambault, as the personality of the Liquor Commission, and the chief prosecuting officer in Montreal, the former, on or about November 21st, telephoned to the respondent, advised him of those facts, and queried what should be done. Mr. Duplessis answered that the matter was serious and that the identity of the person furnishing bail and the liquor licensee should be put beyond doubt. A few days later, that identity being established through a private investigator, Mr. Archambault again communicated with the respondent and, as a result of what passed between them, the licence, as of December 4, 1946, was revoked. In the meantime, about November 25, 1946, a blasting answer had come from the Witnesses. In an issue of one of the periodicals, under the heading 'Quebec's Burning Hate', was a searing denunciation of what was alleged to be the savage persecution of Christian believers. Immediately instructions were sent out from the Department of the Attorney-General ordering the confiscation of the issue and proceedings

17/Rule of Law

were taken against one Boucher charging him with publication of a seditious libel. It is then wholly as a private citizen, an adherent of a religious group, holding a liquor licence and furnishing bail to arrested persons for no other purpose than to enable them to be released from detention pending the determination of the charges against them, and with no other relevant considerations to be taken into account, that he is involved in the issues of this controversy. The complementary state of things is equally free from doubt. From the evidence of Mr. Duplessis and Mr. Archambault alone, it appears that the action taken by the latter as the General Manager and sole member of the Commission was dictated by Mr. Duplessis as Attorney-General and Prime Minister of the Province; that the step was taken as a means of bringing to a halt the activities of the Witnesses, to punish the appellant for the part he had played not only by revoking the existing licence but in declaring him barred from one 'forever', and to warn others that they similarly would be stripped of provincial 'privileges' if they persisted in any activity directly or indirectly related to the Witnesses and to the objectionable campaign. The respondent felt that action to be his duty, something which his conscience demanded of him; and as representing the Provincial Government his decision became automatically that of Mr. Archambault and the Commission ... In these circumstances, when the de facto power of the Executive over its appointees at will to such a statutory public function is exercised deliberately and intentionally to destroy the vital business interests of a citizen, is there legal redress by him against the person so acting? This calls for an examination of the statutory provisions governing the issue, renewal and revocation of liquor licences and the scope of authority entrusted by law to the Attorney-General and the Government in relation to the administration of the Act. The liquor law is contained in R.S.Q. 1941, c. 255, entitled An Act Respecting Alcoholic

Liquor. A Commission is created as a corporation, the only member of which is the General Manager. By s. 5: 'The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be vested in one person alone, named by the Lieutenant-Governor in Council, with the title of manager. The remuneration of such person shall be determined by the Lieutenant-Governor in Council and be paid out of the revenues of the Liquor Commission.' The entire staff for carrying out the duties of the Commission are appointed by the General Manager - here Mr. Archambault - who fixes salaries and assigns functions, the Lieutenant-Governor in Council reserving the right of approval of the salaries. Besides the general operation of buying and selling liquor throughout the Province and doing all things necessary to that end, the Commission is authorized by s. 9 (e) to 'grant, refuse, or cancel permits for the sale of alcoholic liquor or other permits in regard thereto, and to transfer the permit of any person deceased.' By s. 12 suits against the General Manager for acts done in the exercise of his duties require the authority of the Chief Justice of the Province, and the Commission can be sued only with the consent of the Attorney-General. Every officer of the Commission is declared to be a public officer and by the Public Officers Act, R.S.Q. 1941, c. l 0, s. 2 holds office during pleasure. By s. 19 the Commission shall pay over to the Provincial Treasurer any moneys which the latter considers available and by s. 20 the Commission is to account to the Provincial Treasurer for its receipts, disbursements, assets and liabilities. Sections 30 and 32 provide for the issue of permits to sell; they are to be granted to individuals only, in their own names ; by s. 34 the Commission ' may refuse to grant any permit'; s-s. (2) provides for permits in special cases of municipalities where prohibition of sale is revoked in whole or part by by-law ; s-s. (3) restricts or refuses the grant of permits in certain cities the council of which so requests; but it is pro-

18/Canadian Constitutional Law

vided that 'If the fyling of such by-law takes place after the Commission has granted a permit in such city or town, the Commission shall be unable to give effect to the request before the first of May next after the date of fyling.' Subsection ( 4) deals with a refusal to issue permits in small cities unless requested by a by-law, approved by a majority vote of the electors. By s-s. (6) special power is given the Commission to grant permits to hotels in summer resorts for five months only notwithstanding the requests under s-ss. (2) and (4) are not made. Section 35 prescribes the expiration of every permit on April 30th of each year. Dealing with cancellation, the section provides that the 'Commission may cancell any permit at its discretion'. Besides the loss of the privilege and without the necessity of legal proceedings, cancellation entails loss of fees paid to obtain it and confiscation of the liquor in the possession of the holder and the receptacies containing it. If the cancellation is not followed by prosecution for an offence under the Act, compensation is provided for certain items of the forfeiture . Subsection (5) requires the Commission to cancel any permit made use of on behalf of a person other than the holder; s. 36 requires cancellation in specified cases. The sale of liquor is, bys. 42, forbidden to various persons. Section 148 places upon the Attorney-General the duty of ' l. Assuring the observance of this act and of the Alcoholic Liquor Possession and Transportation Act (Chap. 256), and investigating, preventing and suppressing the infringements of such acts, in every way authorized thereby; '2 . Conducting the suits or prosecutions for infringements of this act or of the said Alcoholic Liquqr Possession and Transportation Act.' The provisions of the statute, which may be supplemented by detailed Regulations, furnish a code for the complete administration of the sale and distribution of alcoholic liquors directed by the Commission as a public service, for all legitimate purposes of the popu-

lace. It recognizes the association of wines and liquors as embellishments of food and its ritual and as an interest of the public. As put in Macbeth, the 'sauce to meat is ceremony', and so we have restaurants, cafes, hotels and other places of serving food, specifically provided for in that association. At the same time the issue of permits has a complementary interest in those so catering to the public. The continuance of the permit over the years, as in this case, not only recognizes its virtual necessity to a superior class restaurant but also its identification with the business carried on. The provisions for assignment of the permit are to this most pertinent and they were exemplified in the continuity of the business here. As its exercise continues, the economic life of the holder becomes progressively more deeply implicated with the privilege while at the same time his vocation becomes correspondingly dependent on it. The field of licensed occupations and businesses of this nature is steadily becoming of greater concern to citizens generally. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the 'discretion' of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration. In public regulation of this sort there is no such thing as absolute and untrammelled 'discretion', that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary

19/Rule of Law

power, exercisable for any purpose, however capricious or irrelevant, regardle~s of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. 'Discretion' necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another Province, or because of the colour of his hair? The ordinary language of the Legislature cannot be so distorted. To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. There was here not only revocation of the existing permit but a declaration of a future, definitive disqualification of the appellent to obtain one: it was to be 'forever'. This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. Under the statutory language here, that is not competent to the Commission and a fortiori to the Government or the respondent: McGillivray v. Kimber (1915), 26 D.L.R. 164, 52 S.C.R.146. There is here an administrative tribunal which, in certain respects, is to act in a judicial manner; and even on the view of the dissenting Justices in McGillivray, there is liability: what could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Alcoholic Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry. It may be difficult if not impossible in cases generally to demonstrate a breach of this pub-

lie duty in the illegal purpose served ; there may be no means, even if proceedings against the Commission were permitted by the Attorney-General, as here they were refused, of compelling the Commission to justify a refusal or revocation or to give reasons for its action; on these questions I make no observation; but in the case before us that difficulty is not present: the reasons are openly avowed. The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the Province. Whatever may be the immunity of the Commission or its member from an action for damages, there is none in the respondent . He was under no duty in relation to the appellant and his act was an intrusion upon the functions of a statutory body. The injury done by him was a fault engaging liability within the principles of the underlying public law of Quebec: Mostyn v. Fabrigas (1774), I Cowp. 161, 98 E.R. I 021, and under art. I 05 3 of the Civil Code. That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. An administration of licences on the highest level of fair and impartial treatment to all may be forced to follow the practice of 'first come, first served', which makes the strictest observance of equal responsibility to all of even greater importance; at this stage of developing government it would be a danger of high consequence to tolerate such a

20/Canadian Constitutional Law departure from good faith in executing the legislative purpose. It should be added, however, that that principle is not, by this language, intended to be extended to ordinary governmental employment: with that we are not here concerned. It was urged by Mr. Beaulieu that the respondent, as the incumbent of an office of state, so long as he was proceeding in 'good faith', was free to act in a matter of this kind virtually as he pleased. The office of AttorneyGeneral traditionally and by statute carries duties that relate to advising the Executive, including here, administrative bodies, enforcing the public law and directing the administration of justice. In any decision of the statutory body in this case, he had no part to play beyond giving advice on legal questions arising. In that role his action should have been limited to advice on the validity of a revocation for such a reason or-purpose and what that advice should have been does not seem to me to admit of any doubt. To pass from this limited scope of action to that of bringing about a step by the Commission beyond the bounds prescribed by the Legislature for its exclusive action converted what was done into his personal act. 'Good faith' in this context, applicable both to the respondent and the General Manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status ... A subsidiary defence was that notice of action had not been given as required by art.

88 C.C.P. This provides generally that, without such notice, no public officer or person fulfilling any public function or duty is liable in damages 'by reason of any act done by him in the exercise of his functions' . Was the act here, then, done by the respondent in the course of that exercise? The basis of the claim, as I have found it, is that the act was quite beyond the scope of any function or duty committed to him, so far so that it was done exclusively in a private capacity, however much in fact the influence of public office and power may have carried over into it. It would be only through an assumption of a general overriding power of executive direction in statutory administrative matters that any colour of propriety in the act could be found . But such an assumption would be in direct conflict with fundamental postulates of our Provincial as well as Dominion Government; and in the actual circumstances there is not a shadow of justification for it in the statutory language. The damages suffered involved the vocation of the appellant within the Province. Any attempt at a precise computation or estimate must assume probabilities in an area of uncertainty and risk. The situation is one which the Court should approach as a jury would, in a view of its broad features; and in the best consideration I can give to them, the damages should be fixed at the sum of $25,000 plus that allowed by the trial Court. [The trial Court had refused to award damages for the loss of profits through cancellations of the licence.] I would therefore allow the appeals, set aside the judgment of the Court of Queen's Bench and restore the judgment at trial modified by increasing the damages to the sum of $33,123-53. The appellant should have his costs in the Court of Queen's Bench and in this Court.

The following are head-note summaries of the other judgments in the case: MARTLAND J (KERWIN CJC and LOCKE J concurring): There was ample evidence to

support the trial Judge's finding that plaintiff's permit was cancelled on defendant's

21/Rule of Law instructions. Any decision of the Commission was tentative and depended on direction from defendant for its execution. There was no statutory authority given to defendant either as Premier or as Attorney-General to direct cancellation of a liquor licence. He was acting in the exercise of any official powers in doing what he did . The Commission itself was not entitled to cancel the permit for reasons unrelated to the effectuation of the intent and purpose of the Alcohol Liquor Act. Moreover, the power of cancellation belonged to the Commission alone and could not properly be exercisable by dictation of some other person. This would be an abdiction of function . ABBOTT J: A public officer is responsible for acts done by him wit~out legal justification. The Commission here was not a department of Government in the ordinary sense and defendant had no statutory power to interfere in its administration. In purporting to authorize and instruct the Commission to cancel plaintiff's licence defendant knowingly acted without legal authority and he was liable for damages under art. I OS 3 c.c.

CARTWRIGHT J, dissenting : The Alcoholic Liquor Act, R.S.Q. 1941 , c. 25 S, with certain exceptions immaterial here, gives unfettered discretion to the Liquor Commission to grant or cancel a permit and this is a purely administrative decision which is not reviewable in

any manner. Even if the Commission's functions are quasi-judicial and an order of cancellation could be set aside, this does not mean that an action for damages would lie. Since the Commission's cancellation of plaintiff's permit was not an actionable wrong, defendant could not be liable in damages for directing or approving the cancellation. Moreover, the evidence did not warrant the conclusion that defendant coerced an unwilling Commission into a distasteful decision . Both the manager of the Commission and defendant honestly entertained the opinion that a liquor permit was a privilege which should not be enjoyed by a member of a sect engaged in vilifying the Province. FAUTEUX J, dissenting: The cancellation of the permit was clearly imputable to defendant and was a wrongful act which was actionable. However, art. 88 of the Code of Civil Procedure was a bar to the action in view of the failure to give the notice required thereby. The illegality of defendant was committed by him 'in the exercise of his functions' as Attorney-General within the meaning of art. 88. He did not use his functions to commit the illegality nor did he commit it on the occasion of his functions but rather because of his functions as Attorney-General charged with the administration of justice and with duties as judicial administrator to the Government.

Had this case arisen in one of the common law jurisdictions in Canada, how would the plaintiff, Roncarelli, have got his case to court? Can this case be considered as part of constitutional law since it is not concerned with interpretation of the provisions of the British North America Act but was merely a private action brought in delict by one individual against another? Professor Dawson has described the essence of the rule of law in Canada as 'the restriction on arbitrary authority in government and the necessity for all acts of government to be authorized by reasonably precise laws as applied and interpreted in the courts.' See Dawson, The Government of Canada 77 ( 4th ed. Ward rev. 1963). Were the various analytical skills employed by the judges in Roncarelli directed towards the maintenance of this rule of law in its broadest sense or were they merely part of a simple exercise of statutory interpretation? Suppose the Quebec legislature had passed an amendment to the Alcoholic Liquors Act which recited that the possession of a liquor licence was a privilege and which proscribed certain con-

22/Canadian Constitutional Law

duct, the breach of which proscription would entitle the general manager of the Commission in consultation with the attorney general to suspend or cancel a liquor licence at his discretion. Then assume that among the proscribed conduct was 'the provision of bail monies to members of the Jehovah's Witnesses arrested on charges of infraction of municipal bylaws governing distribution of literature.' If Roncarelli's licence had been cancelled under this legislation, would he have had any recourse under the principles embodied in the rule of law? Consider the following application of the rule of law in a group of decision-making institutions other than the courts. On 17 July 1962, a federal industrial inquiry commission concerning matters relating to the disruption of shipping on the Great Lakes, the St Lawrence River System and connecting waters was appointed under the chainnanship of the Honourable T. G. Norris, a judge of the Court of Appeal of British Columbia. The immediate cause of the dispute had been instances of violence and intimidation on the Great Lakes with a resulting disruption of shipping. These instances are well documented at pp.444- 74 of the commission's report. It was no secret that these events were part of a long range attempt by the Seafarer's International Union (the SIU) under Harold Banks to maintain a strangle-hold on all maritime unions in Canada. Rival unions responded in a variety of ways, the most notable of which was the mass strike of the Welland Canal on 5 July 1962. The commission was appointed by the federal government two weeks later. The following is a portion of the conclusions and recommendations of the Commissioner made one year later.

Report of an Industrial Inquiry Commission Concerning Matters Relating to the Disruption of Shipping on the Great Lakes, The St Lawrence River system and connecting waters (the Honourable T. G. Norris, commissioner), July 1963. CONCLUSIONS

In the detail of the recent happenings, the real issue at this time is likely to be lost sight of. A proper perspective should be maintained. It should always be remembered that this strife, all this lawlessness - the unlawful picketing, the intimidation and violence in Canada and the United States, all the litigation in Canada and the United States, the international difficulty requiring the attention of the heads of two great nations - is not an effort to right any wrong nor to assist seamen, but is part of an irresponsible campaign to maintain one rapacious and violent man, Banks, in power as a dictator. The combined effort of the unions supporting Banks is to hold for him monopoly con trol of all the seamen and over all the shipping companies, and consequently over all mari-

time trade on the Great Lakes and St. Lawrence River System. Banks obtained his absolute control in his union through the misuse of union funds, the hiring halls, the D.N.S. and R.o.c. cards, and the Welfare Plan. This has been fully established. He and his union operated the Vacation Pay Plan unlawfully and contrary to the directions of the Minister of Labour. The Maritime Appeal Board set up by Banks is not useful for the purpose that it is alleged to serve. Under Banks' control, the Seafarers' International Union of Canada becomes less and Jess a trade union and more and more of a mere hiring agency, operated by Banks through fees extracted from the wages of the crew members supplied through the hall. An effort is now being made with regard to vacation pay to bring it under the sole control of the union, as is indicated in Schedule 51 hereto. If this trend continues, it is within the bounds of reasonable possibility that the next step will be an effort to have the seamen's pay paid to the union for distribution. Thus Banks' control over the maritime labour force would become absolute. He would have a monopoly

23/Rule of Law as a supplier of labour and his opportunities for the exploitation of the seamen and their funds would be complete ... If any one thing was demonstrated on this Inquiry, it was how lawlessness (including in the term disregard of the rule of law, of constituted authority, and of contractual obligations) begets lawlessness. The detailed story of the progression has been set out in the body of this Report. On April I 5th, 1948, the Industrial Inquiry Commission of Messrs. Brockington and McNish found it necessary to reprove the Canada Steamship Lines and other shipowners for failure to follow the proper processes of labour law and to honour contractual obligations. The Canada Steamship Lines was active in 1949 in bringing Banks, a lawless man, into Canada to oppose the c.s.u. The c.s.u. had become a lawless body. Banks' lawless actions and the strife with the c.s.u.have been referred to. The s.1.u., under Banks, became lawless and by lawless means of various kinds, which have been set out in this Report, he maintained and increased his absolute power. It was at any time within the power of the C.S.L. with all its strength and influence to accomplish much in stabilizing the Great Lakes situation by taking a positive stand on the side of law and order, but for the sake of a present - at best uneasy - peace and for competitive advantage, it not only did nothing, but gave support to Banks, the law-breaker. It showed a cynical disregard for its contractual obligations with N.A.M.E. It was largely responsible for the break-up of the Association of Lake Carriers, the members of which organization standing together might have been able to restrain the illegal actions of Banks. Because of the lawless actions of Banks in 1962 in Canada and in the United States, the C.B.R.T., in breach of a collective bargaining agreement, boycotted s.1.u. manned ships on the St. Lawrence Seaway on July 5th, an act which, although perhaps understandable, was nevertheless lawless. Now we have reached

the stage when Banks having been restrained from unlawful activities in Canada, with the assistance of lawless elements who are almost out of control in the United States, disregarding the legal position as determined in Canada, engages on a campaign of intimidation and violence in United States ports. Undoubtedly there can be no labour peace on the Great Lakes as long as Banks, who has bludgeoned his way into power and seeks to maintain it by violent and lawless means, and his senior officers occupy positions of influence in any maritime union. There will be no non-discriminatory dealing between the s.1.u. and seamen. There will be no non-discriminatory dealing between the s.1.u. and the Shipping Companies. There will be no real honesty in any trade union in which they occupy such positions. There will be no real freedom for the seamen - not only the members of the union who have become mere automatons reacting to his strength, his controls and his pressures, but also those others barred by him from making a living on the lakes and on the sea. The shipowners will continue in fear of him because of his undemocratic monopoly. As shipowners fear him and accept his dictation, it is little wonder that seamen on the Great Lakes, without power or influence, many of them not vocal, are forced to accept his domination. There has been recounted the story of an affliction which besets us. Complaints were made during the Inquiry by representatives of both management and labour that the government did not do this, that or the other thing, but when these persons were asked for suggestions as to what should have been done or what should be done for the future, no answer was given or the answer was singularly devoid of practical and constructive content. There is no nostrum which may be prescribed to cure all the ills - to solve all the problems which have been revealed during the course of the Inquiry. It is the Commissioner's opinion that for that very reason this Report is important to bring people to an understanding

24/Canadian Constitutional Law

of the situation as it exists. It is hoped that the recommendations which will be made may, if they are implemented, assist in relieving the present emergency, but they will be of little long-term value unless there is unselfish respect for the law in the hearts and minds of all the persons concerned. It is the little-minded men in our midst who are most to be feared - not only those in labour who have been so badly brainwashed, but people in industry and labour, powerful but little-minded nevertheless-who are willing to compromise principles and to surrender the future for a present gain, regardless of the welfare of others and regardless of the whirlwind of national catastrophe which could follow the wind they have sown. If the lawless combination to which reference has been made should eventually be successful in the u .s. ports, then it is to be expected that this country will be faced with an attempt to set up here a similar combination. This would be the Federation which has been Banks' dream of power, composed of elements which created such difficulty in the I.T.F. and have been lawless in the State of New York and elsewhere in the United States, and which are now active in the United States Lake Ports. The development that might well result from success by Banks and his supporters would be the establishment in Canada of the lawless labour situations with which the New York Harbour Commission and the McClellan Commission have had to deal. As a result of the action of our courts, the lawless combination supporting Banks oper ates only in United States ports. There it harasses Canadian-owned vessels registered in Canada, manned by Canadian crews covered by Canadian collective agreements. On the other hand , in the year 1962, save for certain minor delays at the time of the July 5th, 1962, boycott when the Blanche Hindman blocked the Welland Canal, 224 United States vessels transited the St. Lawrence Seaway without picketing or boycott of any kind . In the year 1962, the harbours

of Montreal (Schedule 53) and Toronto (Schedule 54) were used by 48 and 49 United States vessels, respectively, and none were picketed or harassed in any way - notwithstanding the fact that they were not manned by C.B.R.T. or C.M .U. crews. In the story of Banks' lawlessness, there is an outstanding demonstration of the truth of Lord Acton's proposition that 'Power tends to corrupt - absolute power corrupts absolutely'. The effect of the corruption was not contained within the union. Like a cancer, it has affected the whole industry - it has affected the actions of shipowners - it has affected the actions of certain international trade unionists. Joined with a concurrent disease which has, for years afflicted elements in trade unionism in the United States, it contains the germs of destruction of the great body of the AFL-CIO in which there are so many responsible unions and so many outstanding leaders. In 1919, Samuel Gompers, the great leader of the American Federation of Labor, expressing the belief of all reputable labour leaders in the United States, said: 'I am not willing that all the genius of past ages should be flung to the winds, and I am not willing that the little service that I have been able to render during the long years that I have attempted to improve conditions in a constructive way should be destroyed by a maddened desperation, and so I may say to you that it is well for us to see that our own house is kept in order.' He was then speaking of the threat of Bolshevism, but the principle he expressed is equally applicable to the present threat of widespread lawlessness. Gompers spoke of 'a maddened desperation'. There is present a lack of vision, the failure of some of the leaders of labour to properly investigate and weigh issues and to appreciate the danger to labour of a campaign of intimidation and violence. In the case of present happenings, there is blind support of a cause on the side of which there is neither justice nor respect for lawful authority . The actions

2S / Rule of Law

taken to further the cause are equally lawless. So the 'maddened desperation' of Banks and his supporters threatens to destroy the constructive work of the leaders of the past. Merely as a matter of self-interest, international trade unionism should long ago have taken cognizance of the acts of lawlessness and oppression by Banks. The dangers of a Banks-Bradley-Gleason-Hoffa Federation should always have been apparent. Reference has been made to the instability of international trade unionism and to the many anomalies which exist. Correspondence has been quoted which indicates at least some unwillingness on the part of the AFL-CIO to grant to the C.L.C. such autonomy, in respect of dealings by the last-mentioned body with its members which are affiliated with the AFLCIO as the C.L.C. understood it had. Banks has asserted in evidence that the s.1.u. of Canada has complete autonomy and it is a little strange that the AFL-CIO should have any difficulty in recognizing for a large and responsible body such as the C.L.C. the status which apparently it grants to the subordinate S.I.U. of Canada. The Canadian unions by establishing the C.M.U. have done a service to the country in bringing out into the open the lawlessness of Banks. This is not a private quarrel between Upper Lakes and the C.L.C. on the one hand and the s.1.u. on the other. It is a matter of grave public concern that there should be an attempt to foist on Canada the rule of lawlessness in labour matters which exists in the Teamsters and I.L.A. organizations in the United States and which is apparent in the combinations now operating against Canadian vessels in United States ports. For the present, the judgment of the Supreme Court of United States in the Honduras case, in the result, respects the Canadian domestic jurisdiction with respect to vessels of Canadian registry in the matter of domestic affairs which includes labour relations matters. As the highest United States Court has respected that position, American inter-

national unions should have similar respect for Canadian law and Canadian decisions as affecting Canadian vessels which trade in United States ports. The problem is basically a Canadian problem and not a United States one, and unions should regard the Honduras decision as the yardstick which governs them in their relations with the operators and the crews of vessels of foreign registry. If the present situation of harassment of members of our Canadian unions on Canadian vessels in United States ports continues, it may be expected that Canadian unions, international or otherwise, will retaliate in the only way they know how. This should be avoided at all costs because Canada cannot afford a labour war on the Great Lakes every ten years or so. Canada has benefited from international trade unionism in the past. However, our traditions, our political systems and methods and our general economy have been different and, as is natural, in the course of time that difference has widened. It would seem that international trade union officials in the United States have been slow to appreciate the importance of recognition of that difference. Labour is a potent force in the economy of both countries. People of Canada, trade unionists and others will not easily permit the economy of Canada to be subjected to the changing winds of United States labour politics with its varying alignments, its pressures and its struggles for position. It is proper, therefore, that there be recognition of the necessity for a workable autonomy in Canada for labour organizations, international or otherwise. Just as the great nations have managed to develop conventions - rules and regulations governing international relations but recognizing the difference between countries in traditions, constitutions, political institutions and methods, public thinking and public standards - so an acceptable code of international trade unionism should be developed giving effect to similar differences in trade unionism. This is

26/Canadian Constitutional Law particularly important in connection with the difficulties which are taking place in ports on the international seaway, governed as between Canada and the United States by international agreement. It would be reasonable, therefore, that the labour organizations, the operations of which are on the Seaway, set up an international trade union code recognizing the rights granted to shipping companies and trades unions as nationals of either one of the countries and the exercise of such rights conferred by their domestic laws without interference by unions of the other country. If such a code is not set up, then the alternative to the chaos which results from the present interference with international trade that could reasonably be expected would be the imposition on labour organizations by the two governments concerned of such an international code. So far the senior officials in international trade unionism have apparently not taken any practical steps to resolve the difficulties. The five points enumerated in the Commission are now dealt with as follows: (I) The circumstances leading to the disruption of shipping in the Great Lakes System including interference with the operation of the works and facilities of the St. Lawrence Seaway Authority. The story has been covered fully. The circumstances are the result of the build-up of the events extending at least as far back as the date of the S. I.U. entry into the Canadian Maritime scene. Banks has been lawless from the beginning and it was a mistake to bring him to Canada. His early lawlessness led to further lawlessness. The actual boycott of the Seaway by the C.B.R.T., while it may be understood, cannot be condoned as it was in breach of the collective agreement. The c.L.C. and the C.B.R.T. are, however, to be commended for taking action to set up another union in order that there might be an end to the oppression and control by Banks. (2) The denial of the use of port or other works and facilities to vessels calling at

Canadian and United States ports on the Great Lakes System. This has been the result of an attempt to keep Banks in power. The cries raised are false. There is no real issue which should command the support and sympathy of trade unions on either side of the American boundary. There will be no peace on the Great Lakes and the St. Lawrence River System as long as Banks has any part in union activitles. (3) The activities and internal operations of organizations of employees acting on behalf of employees engaged in shipping and work affecting shipping operations in the Great Lakes System including without restricting the generality of the foregoing the Seafarers' International Union of Canada. The s.1.u. is being operated as an instrument of Banks' control and he has been able to condition his members to such control. The Welfare Plan is without proper safeguards and is not properly operated and, as a result, is subject to Banks' control. The Vacation Pay Plan is unlawful. There is the appearance of, but no real, democracy in the s.1.u. The union members have no proper recourse against injustice. The s.1.u. Maritime Appeal Board is not suitable for that purpose and does not give the union members protection against the oppression which exists. It is possible to set up such a Board with proper safeguards for the members. Union members should have access to the courts in cases where they are denied justice with respect to a right of trial and similar matters. The other labour organizations acting on behalf of employees engaged in work affecting shipping operations in the Great Lakes are operated democratically and their funds are protected. Their Welfare Plans are established on sound bases. ( 4) The relationship and any conflict that may exist between employers or employers' organizations, and employees or organizations of employees, in the shipping industry in the Great Lakes System. Because of Banks' virtual control of the labour force and his intimidation of shipowners,

27 /Rule of Law there is practically no normal employer-employee relationship. The disruption of shipping did not arise through any conflict between employers and employees. (5) Any matters incidental or relating to any of the foregoing matters. The Canada Shipping Act renders hiring halls unlawful and the check-off potentially ineffectual. The provisions of that Act are anachronistic in many ways. Recommendations will be made with regard to this matter and the matter of co-ordination of the provisions of the Canada Shipping Act with the Industrial Relations and Disputes Investigation Act in their relation to maritime matters. RECOMMENDATIONS

An emergency situation in interprovincial and international trade has developed due to : (a) The unwarranted interference by certain labour organizations with such trade. (b) The threat to the economy of Canada inherent in combinations of labour organizations operating against the interests of Canada in United States ports and affecting trade and commerce on the international St. Lawrence Seaway. (c) The possibility of the extension of the operations of such combinations along the Seaway in Canadian and United States ports and on the coasts of Canada. (d) The possibility of retaliatory action by other trade unions in the ports of Canada against such combinations. (e) The fact that there have been continued labour disputes in Canadian ports between the maritime unions of Canada characterized by acts of violence. (f) The fact that the lawless activities of these organizations is instigated by and is in support of the s.1.u. of Canada and its President, Hal C. Banks, who controls this union. (g) The fact that this control has been gained by violent and other unlawful means. Efforts through trade union channels to settle the difficulties have been unsuccessful. I therefore recommend that special Federal

legislation be passed as an immediate interim measure putting the maritime transportation unions in Canada or the maritime transportation sections of unions (including in the term 'maritime transportation' also the operation of tugs, dredges, barges and ferries) under government trusteeship. In this section, the term 'maritime transportation unions' is, in respect of labour organizations with functions other than those applicable to maritime transportation, restricted (subject to the inclusions stated) to the part of such labour organizations the functions of which are in respect of maritime transportation.

The Trusteeship I recommend that the trustees be three in number and that none of them be representative of the labour organizations or the shipowners interested in the present dispute. If the board of trustees is not an independent one, its consideration of matters under trusteeship might resolve itself into either a conflict between protagonists leaving the chairman to make decisions or a onesided united front of interested parties against the chairman. The interest of the public generally in the matter of Canadian trade and particularly in the St. Lawrence Seaway is so seriously involved that there should not be room for even a suspicion that any party having a special interest has contributed to the decisions of the trustees. The trustees should have power to set up separate advisory councils consisting of representatives of seamen and representatives of shipowners but the functions of such councils should be strictly advisory and the trustees should not be fettered in any way in their decisions. The trustees should be charged with the following duties and such other duties as may appear necessary as incidental thereto: (a) to administer existing collective agreements with such amendments as appear necessary from this Report and as may be approved by the Canada Labour Relations Board;

28/Canadian Constitutional Law (b) to supervise the renegotiation of subsequent collective agreements by negotiating committees democratically elected by the members of the unions; (c) to take such steps after consultation with the seamen's advisory council with regard to the unions as may be necessary to bring about an assurance of democracy in the unions, including the establishment of port or ships' locals, the more equitable distribution of union assets and facilities and a revision of the Constitutions for the purpose, among others, of obviating the evils indicated in the section of this Report The Senior Officers of the Union, including provisions to prevent the perpetuation in office of paid officials, for shorter terms of office, and regular and more frequent conventions. The Constitution should also set out clearly provisions for the election of officers and voting on important issues by secret ballot, provisions for the reporting of financial information to the members, and that the auditors shall be elected by the membership. (d) to operate the hiring halls and placement operations of the unions; (e) to reform, where necessary, the administration of existing welfare plans; (f) generally to administer the business of the unions; (g) to take all steps possible to bring about integration of the unions under trusteeship. I suggest that the chairman should be a person with wide legal experience and that an effort be made to have as a member of the Board an economist with special knowledge of labour problems. The third member of the Board could very well be a person with experience in transport. The trustees should have the widest powers. Among others, these should include the power: (a) to take over all the assets of the unions and of all holding companies and building companies in the names of which any such assets are vested, and the assets used by welfare plans of the unions;

(b) to investigate the financial affairs of the unions including their bank accounts; (c) to provide for the operation of the unions in such manner as they consider in the best interests of the seamen and the public; (d) to dismiss officers and employees of the unions and to appoint others. In this connection, in view of my conclusions in this Report, the President and other senior officers of the s.1.u. of Canada, including the present administrator of the s.1.u. Welfare Plan should not be continued in office or employment in the union; ( e) to effect proper economies in the opera tion of the unions ...

Legislation The trusteeship act should set out, as a preamble, the substance of the matters already referred to as rendering the legislation necessary and should state the fact that this Inquiry has been held. The act should contain a provision that the trusteeship may be terminated by Order-inCouncil and may be re-established in the same way if it is considered that conditions warrant it as the present difficulties may recur and it is essential that freedom for interprovincial and international commerce be protected . In the opinion of the Commissioner, such a trusteeship act is within the competence of Parliament as an emergency measure necessary to prevent further interference with interprovincial and international trade and as affecting interprovincial and international shipping, the provisions with reference to the unions being necessarily incidental thereto ... Law Enforcement It is easy to criticize police officials who have no opportunity of replying and what is now being said is not intended as a general criticism. During the 1961 and 1962 shipping seasons, there was a succession of acts of violence which taken together and in the circumstances in which they occurred were, in

29/Rule of Law my opinion, attributable to Banks and his supporters. A shipping company found it necessary to maintain special guards to protect vessels, shore installations and personnel, and it is apparent that the protection afforded by the guards was effective and that those who suffered from violence were persons out of the range of such protection. In general, our citizens should be able to rely with confidence on police protection. It has been indicated on this Inquiry that some police officers tend to have difficulty in deciding when a labour dispute proper ends and breaches of the law are threatened or begin. Notwithstanding the fact that delicate labour situations may exist, it is the duty of every police officer to see that the law is enforced rigidly. Intelligent police officers should always know where to draw the line between lawful picketing and other strike action on the one hand, and that which is against the law on the other. By force of personality of individual police officers the law will more easily be enforced than by any show of force. Flagrant breaches of the law and intimidation should be met by immediate police action. Local police forces are not equipped to deal with mass action by irresponsible persons. All police forces, federal, provincial and municipal should extend their efforts to the utmost in co-operation with each other - avoiding jurisdictional jealousies - to the end that there shall be certainty in the enforcement of the law and that respect for the law will be maintained. It should not be difficult by co-operation between all police forces to reach a common understanding as to action in connection with labour disputes. It might be that police officers should have some special training on labour matters. In connection with labour disputes, particularly when charges are laid, it should not be possible to have such charges withdrawn when a strike has been settled. Once laid, charges should be pressed to a conviction or an acquittal. In other words, the legal process should not be used as a weapon in collective bargaining.

Deportation of Banks A question which has been raised is as to whether or not in view of Banks' general lawlessness, steps should not be taken to have him deported. While all the strife and lawlessness results from an effort by the combinations referred to to maintain him in power, the mere removal of him from Canada would not be a solution of the basic difficulty. However, as the matter has been raised, it will be dealt with briefly. The Order in Council of July 6th, 1954, which authorizes Banks' admission to Canada, was based on the fact that there was satisfactory evidence of his rehabilitation. He was granted status as a landed immigrant. On April I 0th, 1958, Banks' application for citizenship was refused substantially on the ground that on the evidence before the Court of Canadian Citizenship, some of it relating to activities of the accused since the date of the Order in Council of July 6th, 19 54, his conduct indicated that he had not been rehabilitated. The evidence on this Inquiry, relating to his conduct from his entry into Canada to the present time, supports that finding. Banks now has a Canadian domicile and may not be deported unless he falls within the very limited class of cases referred to in Section 19 of the Immigration Act and this section, limited as it is, does not apply to him. There would seem to be some failure in coordination between the provisions of the Immigration Act and the provisions of the Canadian Citizenship Act in that, as in the case of Banks, a person having the status of a landed immigrant and having acquired domicile, but nevertheless having been refused citizenship on serious (other than mere technical) grounds (such as general lawlessness), may acquire a right to remain in Canada by mere effluxion of time. While this would seem to be a matter which should have the attention of Parliament, it is, in the opinion of the Commissioner, an incident only in the larger problem which should be met in the manner indicated ...

30/Canadian Constitutional Law It is hoped, whatever measures may be adopted, that, as a result of this inquiry, there will be maintained for the future for all our people the free and unobstructed use of the waterways in interprovincial and international trade, and that seamen may pursue their call-

ings in the dignity of an assurance of freedom and justice. Dated at Ottawa this 6th day of July, 1963. [T. G. NORRIS) Commissioner

Less than three and a half months later, parliament enacted the Maritime Transportation Unions Trustees Act, Stats. Can. I 963, c.17. The following are some of the more relevant provisions. An Act to Provide for the Placing of the Maritime Transportation Unions of Canada Under the Management and Control of Trustees. [Assented to 18th October, 1963.) Whereas by a report of an industrial inquiry commission appointed on the 17th day of July, 1962, under section 56 of the Industrial Relations and Disputes Investigation Act, entitled a Report of Industrial Inquiry Commission on the Disruption of Shipping, and dated at Ottawa, the 6th day of July, 1963, it was indicated that within the shipping industry in Canada an emergency situation has developed that endangers navigation and shipping on the St. Lawrence Seaway with a consequent threat to the economy of Canada, the international relations of Canada, and peace, order and good government on the St. Lawrence Seaway, and in the ports and on the seacoasts of Canada. And whereas the said Report ascribes this situation to the fact that the democratic processes within a certain maritime transportation union have been avoided or undermined to the prejudice of the welfare and rights of seamen and the national and public interests of Canada; And whereas the said Report recommends that as an interim measure the maritime transportation unions, and maritime transportation locals of unions, in Canada be put under trusteeship to the end that the danger to navigation and shipping on the St. Lawrence Seaway and the threat to the national and public interests may be removed and to

enable the seamen of Canada to assume by peaceful means the democratic management and control of their labour organizations; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada enacts as follows ... 3 There is hereby established a Board of Trustees of the Maritime Transportation Unions, consisting of a chairman and two other members, to be appointed by the Governor in Council and to hold office during pleasure ...

Powers and Duties of the Trustees 7 (I) The management and control of the maritime transportation unions is hereby vested in the Trustees who shall, in accordance with this Act, manage and control each of the maritime unions and do all things necessary or advisable for the return of the management and control of each of the maritime unions to duly elected and responsible officers of such unions at the earliest date consistent with the national and public interests of Canada . (2) Notwithstanding any Act, letters patent, charter, by-laws or other constitution of any maritime union and without limiting the generality of subsection (I), the Trustees may a promote the establishment of advisory councils of seamen and their representatives to advise and aid the Trustees in carrying out their duties under this Act and promote the establishment of joint advisory councils of seamen and ship-

31/Rule of Law

owners and their representatives for the purpose of developing good relations between employees and employers, safety in the industry and other labour relations except those ordinarily associated with collective bargaining; b recommend to the members of a maritime union changes in the constitution or bylaws of the union that are calculated to ensure more efficient, effective or direct control of the union by the members thereof or to advance the general welfare of the union, and for the purpose of implementing any such recommendation exercise all the powers of the officers of the union under the constitution and bylaws of such union; c designate officers or members of a maritime union as bargaining committees to negotiate collective agreements on behalf of the members of the union when bargaining committees have not been otherwise established under the constitution or by-laws of the union, and to tender advice to bargaining committees of a maritime union negotiating collective agreements on behalf of the members of the union; d remove or suspend any officer or employee of a maritime union and appoint during pleasure officers and employees of such maritime union, and subject to subsection ( 4) fix the salaries to be paid to any person so appointed; and e sue or be sued in the name of a maritime union in any case where the maritime union may sue or be sued. (3) In the management and control of a maritime union the Trustees may, in the manner and to the extent that the same may be done under the constitution or by-laws of the maritime union by the duly elected officers thereof, exercise the following powers, that is to say : a to draw, accept, make or endorse any bill of exchange or promissory note in the name of or on behalf of the maritime union; b to borrow on behalf of the maritime union such moneys as are required to be borrowed

by the union, and to secure the same on any property of the maritime union; c to sell or otherwise to dispose of or alienate any real or personal property of the maritime union; d to retain and use the seal, if any, of the maritime union; e to execute in the name of the maritime union all required deeds, assurances, receipts and other instruments; and f generally to do all such things as the officers of the union may do under the constitution and by-laws of the union. ( 4) Where the constitution or by-laws of a maritime union prescribes the salary to be paid to an officer of the union, the Trustees shall not fix the salary for a person appointed by the Trustees to that office in an amount in excess of the salary so prescribed by such constitution or by-laws; and after the commencement of this Act no amendment to the constitution or by-laws of a maritime union that decreases the salary attached to any office in the union is valid unless the same is approved by the Trustees. (S) In respect of a maritime union the Trustees may from time to time delegate in writing any or all of the duties and powers of the Trustees to any person appointed by the Trustees; or elected, as an officer of the union; and such officers may perform the duties and exercise the powers so delegated subject to such terms and conditions, if any, as the Trustees may set out in the instrument of delegation. (6) Nothing in this Act shall be construed to restrict any right of a maritime union or the members thereof to bargain collectively and to implement the provisions of the Industrial Relations and Disputes Investigation Act in any labour dispute ... 10 Any person who obstructs or hinders the Trustees or a person to whom any duty or power of the Trustees has been delegated, in the carrying out of a duty or power of the Trustees under this Act is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding ten thousand

32/Canadian Constitutional Law

dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment ... Report to Parliament 16 The chairman shall, within three months after the termination of each year, transmit to the Minister of Labour a report of the management by the Trustees of the maritime transportation unions and of the building corporation for the year ending on that day and the Minister shall cause such report to be laid before Parliament within fifteen days after the receipt thereof, or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting ... Coming into Force and Duration 24 (I) This Act expires on the 31st day of December 1966 unless before that date this Act is extended to a later date which may be fixed by proclamation of the Governor in Council.

(2) A proclamation under subsection (I) shall be laid before Parliament not later than fifteen days after its issue, or, if Parliament is not then sitting, within the first fifteen days next thereafter that Parliament is sitting. (3) Where a proclamation has been laid before Parliament pursuant to subsection (2), a notice of motion in either House signed by ten members thereof and made in accordance with the rules of that House within ten days of the day the proclamation was laid before Parliament, praying that the proclamation be revoked, shall be debated in that House at the first convenient opportunity within the four sitting days next after the day the motion in that House was made. ( 4) If both Houses of Parliament resolve that the proclamation be revoked, it shall cease to have effect and this Act shall cease to be in force but without prejudice to the previous operation of this Act or anything duly done or suffered thereunder or any offence committed or any punishment incurred.

Was parliament acting in accordance with the rule of law in passing the above legislation? Do you regard it as unusual that parliament passed a law that was clearly of specific rather than general application? Was there a true 'equality before the law' recognized in this situation, and if not, were the events which precipitated the legislation sufficiently dangerous to' law and order' so as to warrant this extreme step? The constitutional validity of this legislation was attacked in the Quebec Court of Appeal in 1966 on the grounds that (i) it dealt with a matter of property and civil rights within exclusive provincial jurisdiction; (ii) it contravened the Canadian Bill of Rights; and (iii) it violated international obligations assumed by Canada. The court rejected these arguments, holding that it was a valid exercise of parliament's jurisdiction over 'navigation and shipping' ( section 9 I (I 0) of the BNA Act), and over her external jurisdiction for the 'peace, order, and good government of Canada.' See Swait v Board of Trustees of Maritime Transportation Unions (l 967), 67 D.L.R. (2d) 317 ( reproduced in chapter 7, at p. 322).

SOME BASIC ISSUES

2/Policy and Logic in Constitutional Decision

NOTE Through a series of explanatory notes and illustrative cases, this chapter attempts to indicate the frame of reference within which the materials in this book are organized, and to show how it differs from the analytical approach to Canadian constitutional law. To some extent these notes may be premature in that they assume a familiarity with the analytical approach and with some of its problems and limitations. It is therefore suggested that these notes be used as and when they are found most helpful, which in some cases may require returning to this chapter after considering later parts of the book. A

THE LEGAL VALUE

The theory of positive law, which is an integral part of our constitutional arrangements, requires that judges operate within some kind of objective framework rather than having an open discretion in deciding legal issues. This calls for an analytical technique for applying logic and reason to an established body of legal principles in deciding cases that come befo1e them. If judges were free to ignore the law or to read into it whatever happened to suit their personal preferences, they would cease to be judges and become tyrants, and respect for the law would have to be replaced by some other basis for inducing compliance. However, an established body oflegal principles is purposive. It is designed to promote and protect certain values, and a particular principle or rule of law is simply the formulation of an authoritative policy which has been prescribed by a legislature in a statute or by a judge in the common law or in some similar body of jurisprudence. Thus, while logical analysis is essential, it cannot simply be applied to the legal principles and rules to derive 'answers.' The purposive nature of law requires that judges understand the profound difference between a mystery and a puzzle. Puzzles always have answers whereas a mystery manifests itself in a much more complex and subtle manner that evokes not answers but judgment. Those who believe that the law provides 'answers' and those who, at the other extreme, believe that the law cannot lead to an understanding of the mystery, will have difficulties understanding the true nature of the judicial process. There is no single, simple master principle around which the law can be synthesized. Internal complexity, on the one hand, and intimate interrelations with other parts of the whole process of public decision, on the other, demand a model capable of accommodating the need for internal consistency in the legal order with the purposive nature of public decision. The demand for objectivity is perhaps greatest in the criminal law, where the liberty of the subject is often at stake. Our legal order insists that a man may be convicted only of an offence known to the law, and that the offence be proved beyond a reasonable doubt. And judges require that the elements of a criminal offence be given fairly specific description . Inevitably, cases arise in which the conduct of an individual so offends a judge's sense of community standards that he is induced to bend the objective framework to the limit of its flexibility

34/Canadian Constitutional Law

in order to catch the wrongful act within the net of established law. In such cases the judges' sense of the legal value and its central importance is tested. He must weigh this value against the other values involved in the case and seek that balance which in his judgment does least violence to the full range of basic values underlying our constitution. In the case that follows, a majority of four judges out of five reversed the conviction of two men accused on a charge of indecent assault. The trial judge's conviction had been affirmed unanimously by a three-judge bench of the British Columbia Court of Appeal. Note the priority given to the legal value by the majority and by the dissenting judge respectively.

Bolduc and Bird v The Queen (1967) S.C.R.677 , 63 D.L.R. (2d) 82

Supreme Court of Canada : Cartwright CJC, and Fauteux, Ritchie, Hall, and Spence JJ Appeal from a judgment of the Court of Appeal of British Columbia, affirming the appellants' conviction for indecent assault. Appeal allowed , Spence J dissenting. Neil M . Fleishman, for the appellant Bird . Thom2s R. Braidwood, for the appellant Bolduc. W. G. Burke-Robertson QC, for the respondent. SPENCE J (dissenting): These are appeals by each accused from the judgment of the Court of Appeal of British Columbia pronounced on February 6, 1967 whereby that Court dismissed the appeals of the accused from their convictions by His Honour Judge Ladner on November 24, 1966, of charges of indecent assault contrary to the provisions of s. 14 l of the Criminal Code. The appeals were argued together. The circumstances are as follows. Bolduc was a physician and surgeon licensed to practice in the Province of British Columbia. In the course of such practice he was treating the complainant Diana Elizabeth Osborne for an erosion of the cervic uteri. During the course of treatment, after necessary examinations, he had on several occasions cauterized the affected parts. On a Saturday morning in the month of October or November I 965, Mrs. Osborne attended Dr. Bolduc's office for another examination and treatment, if the latter were required.

The accused Bird was a professional musician in a night club. He had been for some time a personal friend of the accused Bolduc. He had obtained an honours degree in chem istry from the university and he swore that 'I was very seriously considering returning to university to go to medical school'. On Mrs. Osborne's attendance at the office, the receptionist prepared her for the examination and/or treatment and then attended the accused Bolduc in his office to inform him that his patient was ready. Present in the office with Bolduc was the accused Bird and upon noticing that Bolduc was not alone the receptionist simply informed Bolduc that his patient had been prepared and requested him to notify her when he was ready to proceed. In a few moments the receptionist was recalled into the office and Bolduc instructed her to get a white lab coat, such as commonly worn by doctors, so that Bird might use the same stating to her that Bird was an intelligent young man and that he intended to pass Bird off as a doctor or medical intern, adding 'this was a good way to learn the facts of life'. The receptionist protested at what she considered such unethical conduct and declined to bring the lab coat. Bolduc himself obtained the coat for Bird and requested that the receptionist give her stethoscope to Bird. The receptionist simply dropped the instrume·nt in the office and returned to the examining room. Bolduc and Bird then entered the room together. Bird was wearing the white lab coat and had in his possession a stethoscope. Bol-

35 /Policy/ Logic/Constitutional Decision due introduced Bird to Mrs. Osborne as 'Dr. Bird', told Mrs. Osborne that Bird was a medical intern who had not obtained practical experience of this type of thing during his internship and asked if she would mind if Dr. Bird were present during the examination. Mrs. Osborne replied in the negative because he was an intern, that she didn't mind - 'this is fine'. I have above summarized the evidence of the receptionist which was accepted by the learned trial judge. The examination proceeded with Bolduc, the physician, sitting on a stool at the end of the examining table. He then proceeded to examine carefully and to touch Mrs. Osborne's private parts, and during the course of the treatment he inserted a speculum in the vaginal canal. Th-roughout this, the accused Bird stood to one side of Bolduc about a foot or eighteen inches away from him and Bolduc made comments as to the patient's treatment, progress, her condition, and also on the prevalence of such condition amongst female patients. Bird simply answered by nods and did not touch the patient at all. It is, of course, the question for decision whether or not the conduct of Bolduc in the circum stances constituted the offence of indecent assault. Before the Court of Appeal and in this Court, it was immediately admitted, and it could not be otherwise, that if Bolduc's conduct did amount to indecent assault Bird was also guilty under the provisions of s. 21 of the Criminal Code despite the fact that he did not touch the patient at any time. Section 141 (I) of the Criminal Code provides: '141 . (I) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.' Section 230 of the Criminal Code provides: '230. A person commits an assault when, without the consent of another person or with consent, where it is obtained by fraud, (a) he applies force intentionally to the person of

the other, directly or indirectly, or' It is, of course, trite law that the force applied may be of very slight degree, in fact, may be mere touching. The courts below were concerned with the provisions of s. 141(2) of the Criminal Code which provides: '(2) An accused who is charged with an offence under subsection ( 1) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.' Much argument was directed in this Court to whether the admittedly fraudulent and false representation made to Mrs. Osborne was as to 'the nature and character of the act' so that the consent would be vitiated by the provisions of the said subsection. I am of the opinion that this Court need not be concerned directly with the provisions of s. 141 (2). Under s. 230 the application of force, however slight, is an assault when it is 'without the consent of another person or with consent when it is obtained by fraud'. Let us examine for a moment what was the consent obtained from Mrs. Osborne. Surely upon the evidence to which I have referred above, it was a consent to the examination by Bolduc of her private parts and the touching of them in the course of treatment in the presence of a doctor, and not a mere medical student or a mere layman who was in some vague fashion considering becoming a medical student. There was no evidence whatsoever that Mrs. Osborne knew the accused Bird at all. The name Bird meant nothing to her. She only gave this consent to such a serious invasion of her privacy on the basis that Bird was a doctor intending to commence practice and who desired practical experience in such matters as Bolduc was proposing to engage in. That was the consent which Mrs. Osborne granted. The indecent assault upon her was

36/Canadian Constitutional Law

not the act to which she consented and therefore I am of the opinion that the two accused were guilty under the provisions of s. 141 ( I ) when considered with s. 230 and s. 21 of the Criminal Code without recourse to the provisions of s.141(2). This makes it unnecessary, in my view, to consider the many authorities cited in the most able argument of counsel for the accused and which dealt with the problem of the nature and character of the act under the provisions of the latter subsection. I would dismiss both appeals. The judgment of Cartwright, Fauteux, Ritchie and Hall JJ was delivered by HALL J: The facts and circumstances relative to this appeal are fully set out in the judgment of my brother Spence. The question for decision is whether on those facts and in the circumstances so described the appellants Bolduc and Bird were guilty of an indecent assault upon the person of the complainant contrary to s. 14 l of the Criminal Code which reads: 'I 41. ( I) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped. (2) An accused who is charged with an offence under subsection ( l) may be convicted if the evidence establishes that the accused did anything to the female person with her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent representations as to the nature and quality of the act.' With respect, I do not agree that an indecent assault was committed within the meaning of this section. What Bolduc did was unethical and reprehensible in the extreme and was something no reputable medical practitioner would have countenanced. However, Bolduc's unethical conduct and the fraud practised upon the complainant do not of themselves necessarily imply an infraction of s. I 41, supra. It is common ground that the examination and treatment, including the insertion

of the speculum were consented to by the complainant. The question is: ' Was her consent obtained by false and fraudulent representations as to the nature and quality of the act?' Bolduc did exactly what the complainant understood he would do and intended that he should do, namely, to examine the vaginal tract and to cauterize the affected parts. Inserting the speculum was necessary for these purposes. There was no fraud on his part as to what he was supposed to do and in what he actually did . The complainant knew that Bird was present and consented to his presence. The fraud that was practised on her was not as to the nature and quality of what was to be done but was as to Bird's identity as a medical intern. His presence as distinct from some overt act by him was not an assault. However, any overt act either alone or in common with Bolduc would have transposed the situation into an unlawful assault, but Bird did not touch the complainant; he merely looked on and listened to Bolduc's comments on what was being done because of the condition then apparent in the vaginal tract. Bird was in a sense a 'peeping tom'. Conduct popularly described as that of a 'peeping tom' was not an offence under the Criminal Code nor was it an offence at common law : Frey 1•. Fedoruk et al. Since the decision in Frey v. Fedoruk, supra, the Code was amended by the inclusion of s. 162 which first appeared in the 1955 Code. That section reads : ' 162. Every one who, without lawful excuse, the proof of which lies upon him, loiters or prowls at night upon the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction.' The act of 'peeping' is not of itself made an offence, but it is the loitering or prowling at night near a dwelling house without lawful excuse that is made unlawful. This case differs from Rex v. Harms where the accused was charged with rape following carnal knowledge of an Indian girl, her consent to the intercourse having been obtained

37 /Policy/ Logic/Constitutional Decision by false and fraudulent misrepresentations as to the nature and quality of the act. In that case Harms falsely represented himself to be a medical doctor, and although the complainant in that case knew that he was proposing sexual intercourse, she consented thereto because of his representations that the intercourse was in the nature of a medical treatment necessitated by a condition which he said he had diagnosed. Harms was not a medical man at all. He had no medical qualifications. The Court of Appeal affirmed the conviction by the jury that the Indian girl's consent had been obtained by false and fraudulent representations as to the nature and quality of the act. The question of fraud vitiating a woman's consent in the case of rape or indecent assault was fully canvassed by Stephen J. in The Queen v. Clarence and by the High Court of Australia in Papadimitropoulos v. The Queen where the Court, in concluding a full review of the relevant law and cases decided up to that time, including the Harms case, supra, said : 'To return to the central point ; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration;

it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality .. .' The complainant here knew what Bolduc was proposing to do to her, for this was one in a series of such treatments. Her consent to the examination and treatment was real and comprehending and it cannot, therefore, be said that her consent was obtained by false or fraudulent representations as to the nature and quality of the act to be done, for that was not the fraud practised on her. The fraud was as to Bird being a medical intern and it was not represented that he would do anything but observe. It was intended that the examination and treatment would be done by Bolduc and this he did without assistance or participation by Bird. I would, accordingly, allow the appeal, quash the conviction and direct that a verdict of acquittal be entered for both appellants. Appeal allowed and verdict of acquittal ordered. Spence J dissenting.

B THE ARTICULATION OF POLICY CONSIDERATIONS To what extent do constitutional decision-makers make explicit their value commitments? Are these commitments couched in terms of social policies or are they interwoven into the dense fabric of lawyers' analytical language and common law doctrine? In judicial decision-making, which approach is to be preferred? Or should we even have to make a choice of approach as long as the 'right' decision is reached? The following two cases illustrate the contrast in approach between two Canadian courts to the question of the enforceability in law of restrictive covenants prohibiting the sale of certain land to persons of particular races or religions.

Noble and Wolf v Alley et al. (1951) S.C.R. 64, [1951) l D.L.R. 321

Supreme Court of Canada: Kerwin, Taschereau, Rand , Kellock, Estey, Locke and Fauteux JJ

Appeal from a judgment of the Ontario Court of Appeal, [1949) 4 D.L.R. 375, affirming a judgment of Schroeder J , [ 1948) 4 D. L.R. 123,

38/Canadian Constitutional Law declaring, on a vendors and purchasers motion, that a certain racial restrictive covenant was valid and enforceable. Reversed . J. J. Robinette KC and Paul Hess for appellant, Noble; J. Shirley Denison KC and Norman Borins KC for appellant, Wolf; K. G. Morden KC and J. C. Osborne for respondents. The judgment of Kerwin and Taschereau JJ was delivered by KERWIN J: This is an appeal against a judgment of the Court of Appeal for Ontario 1(1949), 4 D.L.R. 375, 0.R. 503) affirming the judgment of Schroeder J [ [ 1948), 4 D.L.R. 123, 0 .R. 579) on a motion under s. 3 of the Vendors and Purchasers Act, R.s.o. I 937, c. 168. That section, so far as relevant, provides that a vendor of real estate may apply in a summary way to the Supreme Court in respect of any requisition or objection arising out of, or connected with, a contract for the sale or purchase of land . The motion was made by the present appellant, Mrs. Noble, as the vendor under a contract for the sale by her to the purchaser, her coappellant Bernard Wolf, of land forming part of a summer resort development known as the Beach O'Pines. This land had been purchased in 1933 by Mrs. Noble from the Frank S. Salter Co. Ltd., and in the deed from it to her appeared the following covenant: ' And the Grantee for himself, his heirs, executors, administrators and assigns, covenants and agrees with the Grantor that he will carry out, comply with and observe, with the intent that they shall run with the lands and shall be binding upon himself, his heirs, executors, administrators and assigns, and shall be for the benefit of and enforcible by the Grantor and/or any other person or persons seized or possessed of any part or parts of the lands included in Beach O'Pines Development, the restrictions herein following, which said restrictions shall remain in full force and effect until the first day of August, 1962, and the Grantee for himself,

his heirs, executors, administrators and assigns further covenants and agrees with the Grantor that he will exact the same covenants with respect to the said restrictions from any and all persons to whom he may in any manner whatsoever dispose of the said lands ... '(f) The lands and premises herein described shall never be sold , assigned, transferred, leased, rented, or in any manner whatsoever alienated to, and shall never be occupied or used in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the intention and purpose of the Grantor, to restrict the ownership, use, occupation and enjoyment of the said recreational development, including the lands and premises herein described, to persons of the white or Caucasian race not excluded by this clause.' Although the deed was not signed by Mrs. Noble, I assume that she is bound to the same extent as if she had executed it. Each conveyance by the company to a purchaser of land in the development contained a covenant in the same form. The present respondents, being owners of other parcels of land in the development, were served with notice of the application either before Schroeder J or the Court of Appeal, and they and their counsel affirmed the validity of the covenant, its binding effect upon Mrs. Noble, and that any of the respondents are able to take advantage of the covenant so as to prevent by injunction its breach. While before the Judge of first instance the vendor and purchaser apparently took opposite sides, each of them appealed to the Court of Appeal and, there, as well as before this Court, attacked the contentions put forward on behalf of the respondents. In the Courts below emphasis was laid upon the decision of MacKay J in Re Drummond Wren, (19451, 4 D.L.R .674, 0 .R. 778, and it was considered that the motion was confined to the consideration of whether that case, if rightly decided, covered the situation. The motion was for an order declaring that the

39 /Policy/ Logic/Constitutional Decision objection to the covenant made on behalf of the purchaser had been fully answered by the vendor and that the same did not constitute a valid objection to the title or for such further and other order as might seem just. The objection was: 'Required in view of the fact that the purchaser herein might be considered as being of the Jewish race or blood, we require a release from the restrictions imposed in the said clause (f) and an order declaring that the restrictive covenant set out in the said clause (f) is void and of no effect.' The answer by the vendor was that the decision in Re Drummond Wren applied to the facts of the present sale with the result that cl. (f) was invalid and the vendor and purchaser were not bound to observe it. In view of the wide terms of the notice of motion, the application is not restricted and it may be determined by a point taken before the Court of Appeal and this Court, if not before Schroeder J. That point depends upon the meaning of the rule laid down in Tulk v. Mox hay ( 1848), 2 Ph. 774, 41 E.R. 1143. This was a decision of Lord Cottenham L.C. affirming a decision of the Master of the Rolls. The judgment of the Master of the Rolls appears in 18 L.J. Ch. 83, and the judgment of the Lord Chancellor is more fully reported there than in Phillips' Reports. In the latter, the Lord Chancellor is reported as saying, p. 777 : 'That this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way, is what I never knew disputed .' In the Law Journal, the following appears at pp. 87-8: 'I have no doubt whatever upon the subject; in short, I cannot have a doubt upon it, without impeaching what I have considered as the settled rule of this Court ever since I have known it. That this Court has authority to enforce a contract, which the owner of one piece of land may have entered into with his neighbour, founded, of course, upon good consideration, and valuable consideration,

that he will either use or abstain from using his land in any manner that the other party by the contract stipulates shall be followed by the party who enters into the covenant, appears to me the very foundation of the whole of this jurisdiction. It has never, that I know of, been disputed.' At p. 88 of the Law Journal the Lord Chancellor states that the jurisdiction of the Court was not fettered by the question whether the covenant ran with the land or not but that the question was whether a party taking property, the vendor having stipulated in a manner, binding by the law and principles of the Court of Chancery, to use it in a particular way will be permitted to use it in a way diametrically opposite to that which the party has covenanted for. To the same effect is pp. 777-8 of Phillips's. In view of these statements I am unable to gain any elucidation of the extent of the equitable doctrine from decisions at law such as Congleton v. Pattison (1808), IO East 130, 103 E.R. 725,and Rogers v. Hosegood, [1900] 2 Ch. 388. It is true that in the Court of Appeal Collins L.J., after referring to extracts from the judgment of Sir George Jessel M .R . in London & South Western R. Co. v. Gomm ( 1882), 20 Ch. D. 562 at p. 583, said at pp. 405-6 : 'These observations, which are just as applicable to the benefit reserved as to the burden imposed, shew that in equity, just as at law, the first point to be determined is whether the covenant or contract in its inception binds the land . If it does, it is then capable of passing with the land to subsequent assignees; if it does not, it is incapable of passing by mere assignment of the land.' This, however, leaves untouched the problem as to when a covenant binds the land . Whatever the precise delimitation in the rule in Tulk v. Moxhay may be, counsel were unable to refer us to any case where it applied to a covenant restricting the alienation of land to persons other than those of a certain race. Mr. Denison did refer to three decisions in Ontario : Essex Real Estate Co. v. Holmes

40/Canadian Constitutional Law (1930), 37 O.W.N. 392 [affd 38 O.W.N. 69); Re Bryers & Morris (193 I), 40 O.W.N. 572; Re McDougall & Waddell, [ 1945 I, 2 D.L.R. 244, o.w.N. 272; but he was quite correct in stating that they were of no assistance. The holding in the first was merely that the purchaser of the land there in question did not fall within a certain prohibition. In the second an inquiry was directed, without more. In the third, all that was decided was that the provisions of s. I of the Racial Discrimination Act, 1944 (Ont.), c. 51, would not be violated by a deed containing a covenant on the part of the purchaser that certain lands or any buildings erected thereon should not at any time be sold to, let to or occupied by any person or persons other than Gentiles (non-semitic (sic)) of European or British or Irish or Scottish racial origin. It was a forward step that the rigour of the common law should be softened by the doctrine expounded in Tulk v. Moxhay but it would be an unwarrantable extension of that doctrine to hold, from anything that was said in that case or in subsequent cases, that the covenant here in question has any reference to the use, or abstension from use, of land. Even if decisions upon the common law could be prayed in aid, there are none that go to the extent claimed in the present case. The appeal should be allowed with costs here and in the Court of Appeal. There should be no cost of the original motions in the Supreme Court of Ontario. The judgment of Rand, Kellock and Fauteux JJ was delivered by RAND J: Covenants enforceable under the rule of Tulk v. Mox hay, 11 Beav. 571, 50 E.R. 937, are properly conceived as running with the land in equity and, by reason of their enforceability, as constituting an equitable servitude or burden on the servient land. The essence of such an incident is that it should touch or concern the land as contradistinguished from a collateral effect. In that sense, it is a relation between parcels, annexed to

them and, subject to the equitable rule of notice, passing with them both as to benefit and burden in transmissions by operation of law as well as by act of the parties. But by its language, the covenant here is directed not to the land or to some mode of its use, but to transfer by act of the purchaser; its scope does not purport to extend to a transmission by law to a person within the banned class. If, for instance, the grantee married a member of that class, it is not suggested that the ordinary inheritance by a child of the union would be affected . Not only, then, is it not a covenant touching or concerning the land, but by its own terms it fails in annexation to the land. The respondent owners are, therefore, without any right against the proposed vendor. On its true interpretation, the covenant is a restraint on alienation. The grantor company which has disposed of all its holdings in the subdivision has admittedly ceased to carry on business and by force of the provisions of the Companies Act, R.S.O.1937, c.251, s. 28, its powers have become forfeited: but by s-s. ( 4) they may, on such conditions as may be ex acted, be revived by the Lieutenant-Governor in Council. Assuming the grantor would otherwise be entitled to enforce the covenant in equity against the original covenantor - and if he would not the point falls - it becomes necessary to deal with the question whether for the purposes of specific performance the covenant is unenforceable for uncertainty. It is in these words: 'The lands and premises herein described shall never be sold, assigned, transferred, leased, rented or in any manner whatsoever alienated to and shall never be occupied or used in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the intention and purpose of the Grantor, to restrict the ownership, use, occupation and enjoyment of the said recreational development including the lands and premises herein described, to persons of white or Caucasian race not excluded by this clause.'

41 /Policy/ Logic/Constitutional Decision

If this language were in the form of a condition, the holding in Clayton v. Ramsden, [I 943) A.C. 320, would be conclusive against its sufficiency. In that case the House of Lords dealt with a condition in a devise by which the donee became divested if she should marry a person 'not of Jewish parentage and of the Jewish faith' and held it void for uncertainty. I am unable to distinguish the defect in that language from what we have here: it is impossible to set such limits to the lines of race or blood as would enable a Court to say in all cases whether a proposed purchaser is or is not within the ban. As put by Lord Cranworth in Clavering v. Ellison (l 859), 7 H. L.C. 707 at p. 725, l l E.R. 282, the condition 'must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.' The effect of the covenant, if enforceable, would be to annex a partial inalienability as an equitable incident of the ownership, to nullify an area of proprietary powers. In both cases there is the removal of part of the power to alienate; and I can see no ground of distinction between the certainty required in the one case and that of the other. The uncertainty is, then, fatal to the validity of the covenant before us as a defect of or objection to the title. I would, therefore, allow the appeal and direct judgment to the effect that the covenant is not an objection to the title of the proposed vendor, with costs to the appellants in this Court and in the Court of Appeal. The appellants Noble as vendor and Wolf as purchaser were negotiating relative to a summer residence in an area known as the Beach O'Pines on Lake Huron. In the course thereof questions were raised as to the validity of cl. (f) (hereinafter quoted) in the agreement under which the appellant Noble acquired the premises on January 16, 1933, from the Frank S. Salter Co. The appellant Noble, therefore, brought a motion under the Vendors and Purchasers Act, for an order, inter alia, that the ESTEY J:

restrictive covenant (cl. (f)) did not constitute a valid objection to the title. Schroeder J held the covenant to be valid and his judgment was affirmed by the Court of Appeal for Ontario. The appellants contend this cl. (f) is contrary to public policy, constitutes a restraint upon alienation and is void for uncertainty. Clause (f) reads: 'And the Grantee for himself, his heirs, executors, administrators and assigns, covenants and agrees with the Grantor that he will carry out, comply with and observe, with the intent that they shall run with the land and shall be binding upon himself, his heirs, executors, administrators and assigns, and shall be for the benefit of and enforcible by the Grantor and/ or any other person or persons seized or possessed of any part or parts of the lands included in Beach O'Pines Development, the restrictions herein following, which said restrictions shall remain in full force and effect until the first day of August, 1962, and the Grantee for himself, his heirs, executors, administrators and assigns further covenants and agrees with the Grantor that he will exact the same covenants with respect to the said restrictions from any and all persons to whom he may in any manner whatsoever dispose of the said lands ... '(f) The lands and premises herein described shall never be sold, assigned, transferred, leased, rented or in any manner whatsoever alienated to, and shall never be occupied or used in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the intention and purpose of the Grantor, to restrict the ownership, use, occupation and enjoyment of the said recreational development, including the lands and premises herein described, to persons of the white or Caucasian race not excluded by this clause.' This restrictive covenant literally construed would prohibit any person possessing the slightest degree of race or blood specified purchasing any land in this area. So construed it would be necessary to determine whether it constituted such a substantial restraint upon

42/Canadian Constitutional Law

alienation as to make the clause void 'as being repugnant to the very conception of ownership' : Cheshire's Modern Real Property, 6th ed., p. 523. It is, however, submitted that the parties never intended that the language should be so strictly construed. Once, however, another or more liberal construction be given the issue becomes one of what degree of race or blood would be permitted. As to what degree, the contract is silent. A Judge, therefore, called upon to determine this issue, finds in the contract no standard or other assistance that would constitute a basis upon which the issue might be determined. His position would be analogous to that of the Earl of Halsbury in Murray v. Dunn, I1907) A .C. 283 at p. 290, where he stated: 'I confess I have been looking in vain for some definite guide as to what is suggested to be the real meaning. Both the learned counsel who have addressed your Lordships have, I think, failed to give any definite meaning to the words.' In Sifton V. Sifton, (1938) 3 D . L.R. 577, A.C. 656, O . R. 529, the testator provided for certain payments to be made to his daughter subject to a condition subsequent that ' the payments to my said daughter shall be made only so long as she shall continue to reside in Canada'. This was held to be void for uncertainty. It was agreed that the testator did not intend that his daughter should remain absolutely in Canada, but for what period and for what purpose she might remain outside of Canada could not be ascertained from the terms of the will. In Clayton v. Ramsden, [ 1943) A.C. 320, the testator bequeathed a pecuniary legacy and a share of the residue upon trust for his daughter subject to a condition subsequent that if his daughter 'shall at any time after my death contract a marriage with a person who is not of Jewish parentage and of the Jewish faith then ... all the .. . provisions ... shall cease and determine'. Lord Romer, with whom Lord Atkin and Lord Thankerton agreed, was of the opinion that ' Jewish parent-

age,' as used in this will, meant of the Jewish race and that the condition subsequent was void for uncertainty. At p. 333 he stated: 'It seems far more probable that the testator meant no more than that the husband should be of Hebraic blood. But what degree of Hebraic blood would a permissible husband have to possess? Would it be sufficient if one only of his parents were of Hebraic blood? If not, would it be sufficient if both were? If not, would it be sufficient if, in addition, it were shown that one grandparent was of Hebraic blood or must it be shown that this was true of all his grandparents? Or must the husband trace his Hebraic blood still further back? These are questions to which no answer has been furnished by the testator. It was, therefore, impossible for the court to see from the beginning precisely or distinctly on the happening of what event it was that Mrs. Clayton's vested interests under the will were to determine, and the condition is void for uncertainty.' Lord Romer's decision is based upon Clavering v. Ellison ( 1859), 7 H.L.C. 707 at p. 725, 11 E.R. 282, where Lord Cranworth stated: 'That where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.' The foregoing are cases of conditions subsequent providing for the divesting of vested estates. It is contended that such precise and distinct language is not required in restrictive covenants. On the contrary, both upon principle and authority, the same clarity would appear to be essential. Restrictive covenants constitute 'an equity attached to land by the owner': Lord Cottenham L.C. in Tulk v. Moxhay , 2 Ph. at p. 779; and in Hall v. Ewin ( 1887), 37 Ch. D. 74 at p. 81 , Lindley L.J . states: ' The principle of Tulk v. Moxhay ... imposes a burden on the land.' This burden passes with the land against all but purchasers without notice thereof and

43/Policy /Logic/ Constitutional Decision parties interested are entitled to ascertain from the covenant the exact nature, character and extent of the restriction. Moreover, these covenants constituting a burden upon the land must, in general, interfere with the right of disposition thereof. Lord Dunedin, in speaking of a condition restricting land , and the same rule of construction would apply to a covenant, stated, in Anderson v. Dickie (1915), 84 L.J.P.C. 219 at p. 227: 'Far earlier than this it had been held that all conditions restricting the use of land must be very clearly expres§ed, the presumption being always for freedom.' In Murray v. Dunn (1907] A.C. 283, a covenant, by way of a servitude, provided that 'any building of an unseemly description' should not be erected upon the premises. Lord Kinnear in the First Division of the Court of Session for Scotland delivered a judgment which was approved of in the House of Lords. In the course of his judgment he stated that the bond of servitude 'provides no standard for the specific applicatiort of the terms' and at p. 287 : 'So far as my own opinion goes, I cannot say that it is unseemly; the utmost that can be said for the pursuers' case is that that is matter of opinion, and if there may be a reasonable difference of opinion as to the specific application of the terms in which a servitude is expressed to the facts of a particular case, it is not a well-defined servitude.' In Brown, Covenants Running with Land , 1907, p. 126, the author states: 'A restrictive covenant as to letting or user of property will be construed strictly; the Court will not ex tend it on the ground of presumed intention.' See also Jolly, Restrictive Covenants Affecting Land, 1909, pp. 77 and 79. These authorities support the view that the language of a restrictive covenant must set forth clearly and distinctly the intent of the parties. The general language in cl. (f), with great respect to those learned Judges who hold a contrary view, fails to indicate the intention of the parties as to the amount or

degree of the prohibited race or blood that might be permitted. It must, therefore, upon the authorities, be held void for uncertainty. The appeal should be allowed with costs here and in the Court of Appeal. There should be no costs of original motion in the Supreme Court of Ontario. LOCKE J (dissenting): The proceedings in this matter were inmated by an application made by the appellant Noble in the Supreme Court of Ontario under the provisions of the Vendors and Purchasers Act, R.s.o. 1937, c. 168, and the Conveyancing and Law of Property Act, R.s.o.1937, c. 152, in the following circumstances. By deed dated January I 0, 1933, the Frank S. Salter Co. granted to the said appellant a plot of land situate in a summer resort known as Beach O'Pines in the Township of Bosanquet on the shores of Lake Huron, together with a right-of-way over certain lands described in a deed of land from that company to Beach O'Pines Club Ltd., for the purpose of ingress and egress from and to the public highway and the water's edge of Lake Huron. By the conveyance it was recited, inter alia, that the grantee covenanted for herself, her heirs, executors, administrators and assigns to carry out, comply with and observe, with the intent that they should run with the lands and be binding upon her and upon them and be for the benefit of and enforceable by the grantor and any other persons seized or possessed of lands included in the Beach O' Pines Development, the restrictions thereafter recited which were to remain in force until August I, I 962, and that she would exact the same covenants with respect to the said restrictions from any person to whom she might dispose of the lands of the various restrictions thereafter recited . The only one with which we are concerned is in a clause lettered (f) and provided that the lands should never be sold, rented or in any manner alienated to and never be occupied or used in any manner by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the

44/Canadian Constitutional Law

declared intention and purpose of the grantor to restrict the ownership, use, occupation and enjoyment of the said recreational development, including the described lands, to persons of the white or Caucasian race. While Mrs. Noble apparently did not execute the conveyance she took possession under it and it is not contended on her behalf that if otherwise enforceable against her she is not bound by its terms. By an offer to purchase dated April 19, 1948, the appellant Bernard Wolf offered to purchase the property from Mrs. Noble and while the fact was not proven it is apparently common ground that this offer was accepted in writing. The proposal stipulated that Wolf should be allowed 20 days from the date of its acceptance to investigate the title and if within that time he should present any valid objection to the title which the vendor should be unwilling or unable to remove, the agreement should terminate. Thereafter, by letter dated May 5, 1948, the solicitor for Wolf submitted the following requisitions to the solicitor for Mrs. Noble: 'Required in view of the fact that the purchaser herein might be considered as being of the Jewish race or blood, we require a release from th,e restrictions imposed in the said clause (f) and an order declaring that the restrictive covenant set out in the said clause (f) is void and of no effect.' Mrs. Noble's solicitor replied to that requisition by a letter dated May 6, 1948, stating: 'In our opinion the decision rendered in the case of Re Drummond Wren, 1945 Ontario Reports p. 778 applies to the facts of the present sale, with the result that the clause (f) objected to is invalid and the vendor and purchaser are not bound to observe it.' In a letter written on the same date the purchaser replied insisting upon an order of the Court being obtained in which it would be declared that the said restrictive covenant was 'void and of no effect'. These proceedings were then initiated by a notice of motion given on behalf of Mrs. Noble: 'For an order declaring that the objection to the restrictive

covenant made in writing on behalf of the purchaser dated the 5th day of May, 1948, has been fully answered by the vendor and that the same does not constitute a valid objection to the title.' In view of the subsequent course of these proceedings it is of importance to consider the nature of the material filed on the application and the identity of the persons who were notified of the proceedings and took part in the argument . In support of the motion there was filed an affidavit of one of the solicitors for Mrs. Noble reciting the purchase of the property by her, the registration of the deed, the terms of the requisition made by the solicitor for Wolf, the terms of the subsequent correspondence, and stating that she had been advised by the solicitors from the Beach O' Pines Protective Association that if the sale to Wolf was to be concluded they were instructed to commence proceedings at once to enforce the restriction set out in cl. (f). On May 8, 1948, on the joint application of the parties MacKay J. directed that a copy of the notice of motion be served on the Beach O'Pines Protective Ass'n and upon the Frank S. Salter Co. at least IO days before the hearing of the application. This Association is apparently an unincorporated body formed by some 35 persons owning and occupying property in the Beach O'Pines Development who had associated themselves together for the purpose of im proving the property and of safeguarding the rights, privileges and quiet enjoyment of their members. Apparently on its behalf an affidavit of one of its members, James Burgess Book, was filed stating, inter alia, that the community had been developed as a summer recreational area, that the improvements made by the Association and the congeniality of its members had to a large extent improved the value of the lands, and that unless the restrictions and conditions concerning the lands were enforced it was his opinion and that of the Committee of the Association that the character of the community would be changed , with the result that the desirability of the locality as a summer

45 /Policy/ Logic/Constitutional Decision residence for the present owners would be lessened and the value of the lands depreciated. On behalf of Wolf an affidavit of one of his solicitors was filed stating that he had searched the file of the Frank S. Salter Co. in the office of the Provincial Secretary at Toronto, that the last-named address of Salter was in Detroit and producing what was stated to be a true copy of a statutory declaration made by Salter, said to be filed with the Provincial Secretary dated April I, 1937, in which it was said, inter alia, that the company had held no meeting of directors or shareholders during the past 4 years and that 'by reason that the company has not used its corporate powers for three and a half consecutive years such powers have become forfeited under section 28 of the Companies .\ct'. This apparently was intended to be i)roof of the facts stated in the copy of the declaration. In addition, there was an affidavit showing that all of the conveyances of lands in the development made by the Salter Company contained the same restrictive covenants and conditions as those in the deed to Noble. When the matter came before Schroeder J. he considered that a representation order should be made and directed that the interests of other landowners interested but not represented should be represented by six named persons, presumably land holders in the development. Both Noble and Wolf were represented by counsel on the argument. It is clear from the reasons for judgment delivered by Schroeder J. that the only questions argued were that the restrictive covenant was unenforceable as being contrary to public policy, as being void for uncertainty and on the further ground that it was an unlawful attempt to restrain the alienation of property conveyed in fee simple. These issues were those which had been considered and decided by MacKay J. in the Drummond Wren case, [ [ 1945) 4 D.L.R. 674), and these Schroeder J. decided adversely to the contention of the vendor. When the matter came

before the Court of Appeal other counsel represented Wolf and a further question of law was raised which had not theretofore been argued or considered. Stated briefly the point is that the covenant contained in cl. (f) is neither a covenant which would run with the land and therefore bind Wolf or subsequent owners, nor did it create a negative easement binding upon him or subsequent purchasers from him, whether with or without notice of its existence. The equitable principle, the extent of which is to be decided if the question is before us, is that stated by Lord Cottenham in Tulk v. Mox hay, l 8 L.J. Ch. 83 at p. 88; 2 Ph. 774. This question is entirely distinct from the three issues which were submitted for the opinion of Schroeder J. and the Chief Justice of Ontario with whom Aylesworth J.A. agreed, and Hogg J .A. declined to consider it . Henderson and Hope JJ.A. gave written reasons but did not refer to the point, directing their attention to the matters that had been raised before Schroeder J.: I would, however, assume that they also considered the matter should not be dealt with. As the matter comes before us a majority of the Court at least, if not all of its members, have declined to consider this point of law upon which the opinion of the learned Judge in Chambers has not been obtained. Speaking generally, it has not been the practice of this Court to interfere with the decisions of Courts of Appeal in matters of their own procedure. In Toronto R. Co. v. Balfour ( 1902), 32 s.c.R. 239 at p. 243, the Court refused to interfere with a decision of the Court of Appeal for Ontario in a matter of procedure, Taschereau J. saying that the matter was but a question of practice and consequently one with which, in accordance with the jurisprudence, the Court would not interfere and referring to O'Donohoe v. Beatty (l 891 ), 19 S.C. R. 356; Williams v. E. Leonard & Sons ( 1896), 26 s .C.R. 406, and Price v. Fraser ( 1901 ), 31 s.c.R. 505. In Finnie v. Montreal (1902), 32 s.c.R. 335, Girouard J. pointed out that in matters of mere procedure when no injustice is shown

46/Canadian Constitutional Law

the Court will not interfere with the action of the Court below. See also Laing v. Toronto Gen 'l Trusts, I 1941 I, I D.L.R. 13 , s.c.R. 32. Where, however, a grave injustice has been inflicted upon a party to a suit the Court has interfered for the purpose of granting the appropriate relief, though the question may be one of procedure only as in Lambe v. Armstrong (I 897), 27 s .c .R. 309, and Eastern Townships Bk. v. Swan (I 898), 29 S.C.R. 193. The question as to whether a Court of Appeal should hear questions of law not raised in the Court below frequently is a difficult one to determine. Some of the objections to permitting the practice are pointed out in the judgment of Lord Finlay L.C. in Banbury v. Bk. of Montreal, 44 D.L.R. 234 at pp. 256-7, (1918) A.C. 626 at pp. 661-2. In The 'Tordenskjold' v. The 'Euphemia ' (I 908), 41 s.C.R. 154 at p. 163, Duff J . as he then was said: 'The principle upon which a Court of Appeal ought to act when a view of the facts of a case is presented before it which has not been suggested before, is stated by Lord Herschell in The ' Tasmania', 15 App . Cas. 223 at p. 225, thus : ''My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinized. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them . "It appears to me that under these circumstances a court of appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all

the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial ; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box." The settlement of the question involves the exercise of a discretion (Banbury v. Bk. of Montreal, 44 D.L.R.234, (1918) A.C.626). It is, I think, of importance that when the matter was brought before the Court of Appeals, as noted in the judgment of the Chief Justice of Ontario, there was doubt as to whether the representation order made by Schroeder J. was authorized by the Rules of Court and that 37 additional interested parties were notified of the proceedings so that they might, if they wished, be heard . If under the practice the representation order was not properly made these persons were apparently not represented at the first hearing. Whether if the point now sought to be argued had been raised before Schroeder J. these persons or the six individuals who were then represented by Mr. Morden, K.C., would have considered that further evidence might be given which would affect the determination of the matter, I do not know and I must decline to speculate. The learned Judges of the Court of Appeal for Ontario had exercised their discretion and declined to consider the matter and I think we should not interfere with their decision. As to the remaining matters argued so fully before us, I agree with the learned Chief Justice of Ontario. In my opinion this appeal should be dismissed with costs. Appeal allowed

Re Drummond Wren [ 1945] O.R. 778, [ 1945] 4 D.L.R. 674

Ontario High Court : Mackay

J

Application pursuant to s. 60 of the Convey-

ancing and Law of Property Act, R.S.O. 1937, c. 152 and Rr. 603 and 604 for a declaration that a certain restrictive covenant is void.

47 /Policy/ Logic/ Constitutional Decision J. R. Cartwright, KC and Irving Himel, for applicant. J.M. Bennett, for Canadian Jewish Congress. MACK.A Y J: This is an application brought by

Drummond Wren, owner of certain lands registered in the Registry Office for the County of York, to have declared invalid a restrictive covenant assumed by him when he purchased these lands and which he agreed to exact from his assigns, namely, - 'Land not to be sold to Jews or persons of objectionable nationality'. The application is made by way of special leave and pursuant to s. 60 of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 1S2, and Rules 603 and 604 of the Rules of Practice and Procedure. Under s. 60 of the Conveyancing and Law of Property Act, a wide discretion is given to a Judge to modify or discharge any condition or covenant 'where there is annexed to any land any condition or covenant that such land or any specified portion thereof is not to be built on or is to be or not to be used in a particular manner, or any other condition or covenant running with or capable of being legally annexed to land.' Rules 603 and 604 provide respectively that: '603 ( 1) Where any person claims to be the owner of land, but does not desire to have his title thereto quieted under The Quieting Titles Act, he may have any particular question which would arise upon an application to have his title quieted determined upon an originating notice. '(2) Notice shall be given to all persons to whom notice would be given under The Quieting Title Act, and the Court shall have the same power finaily to dispose of and determine such particular question as it would have under the said Act, but this shall not render it necessary to give the notice required by Rule 70S. '604. Where the rights of any person depend upon the construction of any deed, will or other instrument, he may apply by origi-

nating notice, upon notice to all persons concerned, to have his rights declared and determined.' While, pursuant to an order made by me, notice of this application was served upon various persons interested in this and in adjacent lands subject to the same or a similar restrictive covenant, no one appeared in Court upon the return of this motion to oppose it. The restrictive covenant which is the subject of this proceeding and which by the deed aforesaid the grantee assumes and agrees to exact from his assigns, reads as follows: 'Land not to be sold to Jews, or to persons of objectionable nationality.' Counsel for the applicant seeks the discharge and removal of this covenant on these alternative grounds: first, that it is void as against public policy; secondly, that it is invalid as a restraint on alienation; thirdly, that it is void for uncertainty; and fourthly, that it contravenes the provisions of the Racial Discrimination Act, 1944 (Ont.) c. S 1. The matter before me, so defined, appears to raise issues of first impression because a search of the case law of Great Britain and of Canada does not reveal any reported decision which would be of direct assistance in this proceeding. Counsel for the applicant did refer me to three Ontario cases dealing with restrictive covenants similar to that here involved, but, in my view, he rightly took the position that in none of those cases was the Court called upon to pass on the validity of the particular restriction in the way in which I am obliged to do in this case. Garrow J. in Essex Real Estate Co. v. Holmes (1930), 37 O .W.N. 392, did not have to determine the validity of the restriction in that case because he found that the purchaser of the land was not within its terms. Again, in R. V. Bryers and Morris (I 931 ), 40 O.W.N. S72, which was a vendor's and purchaser's motion, Hodgins J.A. refrained from passing on the validity of the restrictive covenant there in question. The third case mentioned by counsel for the applicant is a

48/Canadian Constitutional Law recent decision of Chevrier J., Re McDougall and Waddell, [ 1945) 2 D.L.R. 244, 0.W.N. 272, which arose out of a vendor's and purchaser's motion for an order that the particular restrictive covenant there objected to offended against the terms of the Racial Discrimination Act, 1944 (Ont.), c. 51. The issue raised in that case was a narrow one and I shall return to a discussion of it later in my judgment. In this short canvass of the authorities directly applicable, it may not be amiss to point out that, according to an affidavit filed on behalf of the applicant, the present Master of Titles at Toronto has not knowingly permitted anyone to register deeds containing restrictive covenants of a character similar to that in question here, and has on several occasions refused to accept for registration documents containing such covenants, and in no case has an appeal been taken from such refusal. The applicant's argument is founded on the legal principle, briefly stated in 7 Hals. (2nd ed .), pp. 153-4, that: 'Any agreement which tends to be injurious to the public or against the public good is void as being contrary to public policy.' Public policy, in the words of Halsbury, 'varies from time to time' . In 'The Growth of Law,' Mr. Justice Cardozo says: 'Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night if not the journey's end. The law, like the traveller, must be ready for the morrow. It must have a principle of growth.' And Mr. Justice Oliver Wendell Holmes, in 'The Common Law' says: 'The very considerations which judges most rarely mention and always with an apology are the secret root from which the law draws all the juices of life. I mean, of course, what is expedient for the community concerned.' The matter of not creating new heads of public policy has been discussed at some length by Mr. Justice McCardie in Naylor, Benzon & Co. v. Krainische Industrie Gesellschaft, [ I 9 I 8) I K.B. 331, later affirmed by the Court of Appeal, [ I 9 I 8) 2 K . B. 486.

There he points out [pp. 342-3) that 'the Courts have not hesitated in the past to apply the doctrine ( of public policy) whenever the facts demanded its application'. 'The truth of the matter,' he says, 'seems to be that public policy is a variable thing. It must fluctuate with the circumstances of the time. This view is exemplified by the decisions which were discussed by the House of Lords in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., [1894) A.C. 535 ... The principles of public policy remain the same, though the application of them may be applied in novel ways. The ground does not vary. As it was put by Tindal C.J. in Horner v. Graves (l 831 ), 7 Bing. 735, 743 [131 E.R. 2841, "Whatever is injurious to the interests of the public is void, on the ground of public policy.''' It is a well-recognized rule that Courts may look at various Dominion and Provincial Acts and public law as an aid in determining principles relative to public policy : See Walkerville Brewing Co. v. Mayrand, (1929) 2 D.L.R.945, 63 0.L.R. 573. First and of profound significance is the recent San Francisco Charter, to which Canada was a signatory, and which the Dominion Parliament has now ratified. The preamble to this Charter reads in part as follows: 'We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small .. . and for these ends to practice tolerance and live together in peace with one another as good neighbours .. .' Under Articles I and 55 of this Charter, Canada is pledged to promote 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion'. In the Atlantic Charter to which Canada has subscribed, the principles of freedom

49I Policy/ Logic/Constitutional Decision from fear and freedom of worship are recognized . Section l of the Racial Discrimination Act provides: 'l. No person shall, -(a) publish or display or cause to be published or displayed; or (b) permit to be published or displayed on lands or premises or in a newspaper, through a radio broadcasting station or by means of any other medium which he owns or controls, any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or any class of persons for any purpose because of the race or creed of such person or class of persons.' The Provincial Legislature further has expressed itself in the Insurance Act, R.s.o. 1937, c. 256, s. 99, as follows: 'Any licensed insurer which discriminates unfairly between risks within Ontario because of the race or religion of the insured shall be guilty of an offence.' Moreover, under s. 6 of the Regulations passed pursuant to the Community Halls Act, now R.S.o. 1937, c. 284, it is provided that 'Every hall erected under this Act shall be available for any public gathering of an educational, fraternal, religious or social nature or for the discussion of any public question, and no organization shall be denied the use of the hall for religious, fraternal or political reasons.' Proceeding from the general to the particular, the argument of the applicant is that the impugned covenant is void because it is injurious to the public good. This deduction is grounded on the fact that the covenant against sale to Jews or to persons of objectionable nationality prevents the particular piece of land from ever being acquired by the persons against whom the covenant is aimed, and that this prohibition is without regard to whether the land is put to residential, commercial, industrial or other use. How far this is obnoxious to public policy can only be ascertained by projecting the coverage of the covenant with respect both to the classes of persons

whom it may adversely affect, and to the lots or subdivisions of land to which it may be attached. So considered, the consequences of judicial approbation of such a covenant are portentous. If sale of a piece of land can be prohibited to Jews, it can equally be prohibited to Protestants, Catholics or other groups or denominations. If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise be prohibited. In my opinion, nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this Province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or conversely, would exclude particular groups from particular business or residential areas. The unlikelihood of such a policy as a legislative measure is evident from the contrary intention of the recently enacted Racial Discrimination Act, and the judicial branch of government must take full cognizance of such factors. Ontario, and Canada too, may well be termed a Province, and a country, of minorities in regard to the religious and ethnic groups which live therein. It appears to me to be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous tendencies which would imperil national unity. The common law Courts have, by their actions over the years, obviated the need for rigid constitutional guarantees in our polity by their wise use of the doctrine of public policy as an active agent in the promotion of the public weal. While Courts and eminent Judges have, in view of the powers of our Legislatures, warned against inventing new heads of public policy, I do not conceive that I would be breaking new ground were I to hold the restrictive covenant impugned in this proceeding to be void as against public policy. Rather would I be applying wellrecognized principles of public policy to a set of facts requiring their invocation in the

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interest of the public good. That the restrictive covenant in this case is directed in the first place against Jews lends poignancy to the matter when one considers that anti-semitism has been a weapon in the hands of our recently-defeated enemies and the scourge of the world. But this feature of the case does not require innovation in legal principle to strike down the covenant; it merely makes it more appropriate to apply existing principles. If the common law of treason encompasses the stirring up of hatred between different classes of His Majesty's subjects, the common law of public policy is surely adequate to void the restrictive covenant which is here attacked. My conclusion therefore is that the covenant is void because offensive to the public policy of this jurisdiction. This conclusion is reinforced, if reinforcement is necessary, by the wide official acceptance of international policies and declarations frowning on the type of discrimination which the covenant would seem to perpetuate. It may not be inexpedient or improper to refer to a few declarations made by outstanding leaders under circumstances that arrest the attention and demand consideration of mankind. I first quote the late President Roosevelt: 'Citizens, regardless of religious allegiance, will share in the sorrow of our Jewish fellowcitizens over the savagery of the Nazis against their helpless victims. The Nazis will not succeed in exterminating their victims any more than they will succeed in enslaving mankind. The American people not only sympathize with all victims of Nazi crimes but will hold the perpetrators of these crimes to strict accountability in a day of reckoning which will surely come. 'I express the confident hope that the Atlantic Charter and the just World Order to be made possible by the triumph of the United Nations will bring the Jews and oppressed people in all lands the four freedoms which Christian and Jewish teachings have largely inspired.'

And of the Right Honourable Winston Churchill: 'In the day of victory the Jew's sufferings and his part in the struggle will not be forgotton. Once again, at the appointed time, he will see vindicated those principles of righteousness which it was the glory of his fathers to proclaim to the world. Once again it will be shown that, though the mills of God grind slowly, yet they grind exceeding small.' And of General Charles de Gaulle: 'Be assured that since we have repudiated everything that has falsely been done in the name of France after June 23rd, the cruel decrees directed against French Jews can and will have no validity in Free France. These measures are not less a blow against the honour of France than they are an injustice against her Jewish citizens. 'When we shall have achieved victory, not only will the wrongs done in France itself be righted, but France will once again resume her traditional place as a protagonist of freedom and justice for all men, irrespective of race or religion, in a new Europe.' Also, the resolution passed by the representatives of over 60,000,000 organized workers at the World Trade Union Congress recently held at London that 'every form of political, economic or social discrimination based on race, creed or sex, shall be eliminated'. The resolution against discrimination adopted unanimously by the Latin American nations and the United States in Mexico City on March 6, I 945, at the time of the Act of Chapultepec, is that the governments of these nations 'prevent with all the means in their power all that may provoke discrimination among individuals because of racial and religious reasons'. It is provided in Article 123 of The Constitution of the Union of Soviet Socialistic Republics, that: 'Equality of rights of citizens of the u.s.S.R., irrespective of their nationality or race, in all spheres of economic, state, cultural, social and political life, is an indefeasible law. 'Any direct or indirect restriction of the

S 1/Policy/ Logic/Constitutional Decision

rights of, or, conversely, any establishment of direct or indirect privileges for, citizens on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law.' The second point raised by counsel for the applicant is that the covenant is invalid as a restraint on alienation. It is unnecessary to quote authorities in support of the long-established principle of the common law that land should be freely alienable. True, a limited class of exceptions to this general principle has from time to time been recognized, as in Re Macleay (1875), L.R. 20 Eq. 186, though it may be pointed out that this decision runs counter to the earlier case of A ttwater v. Attwater(l853), 18 Beav. 330, 52 E.R.131. Moreover, in Re Rosher, Rosher v. Rosher (1881), 26 Ch. D. 801, Pearson J. stated that he failed to appreciate how the exception recognized in Re Macleay arose. It is not necessary to challenge the doctrine of Re Macleay, which has been followed in some Canadian cases, in order to find that the covenant with which I am concerned is invalid as a restraint on alienation. The particular covenant in the case before me is not limited either in time or to the life of the immediate grantee (see Sweet, Restraints on Alienation, 33 L.Q. Rev. 236 , 342, particularly at p. 354 ), which would seem to be characteristic of the partial restraints which were enforced in the decided cases that I have been able to find . The principle of freedom of alienation has been too long and too well established in the jurisprudence of English and Canadian Courts to warrant me at this late stage in recognizing a limitation upon it of a character not hitherto the subject of any reported case, especially in view of my conclusions as to public policy. Counsel for the applicant contended before me that the restrictive covenant here in question is void for uncertainty . So far as the words 'persons of objectionable nationality' are concerned, the contention admits of no. contradiction. The conveyancer who used

these words surely must have realized , if he had given the matter any thought, that no Court could conceivably find legal meaning in such vagueness. So far as the first branch of the covenant is concerned, that prohibiting the sale of the land to' Jews' , I am bound by the recent decision of the House of Lords in Clayton v. Ramsden, [1943) I All E.R.16; to hold that the covenant is in this respect also void for uncertainty ; and I may add , that I would so hold even if the matter were res integra. The Law Lords in Clayton v. Ramsden were unanimous in holding that the phrase 'of Jewish parentage' was uncertain, and Lord Romer was of the same opinion on regard to the phrase 'of Jewish faith' . I do not see that the bare term 'Jews' admits of any more certainty. I should like, in conclusion, to refer to the judgment of Chevrier J . in Re McDougall and Waddell, [ 1945) 2 D.L.R. 244. The learned Judge there decided that the registration of a deed containing a covenant restricting the sale or user of land to 'gentiles (non-semitic) of European or British or Irish or Scottish racial origin' did not constitute an infringement of the Racial Discrimination Act. He came to this conclusion by holding that registration of a deed was not among the proscribed means of publishing or displaying enumerated in s. I of the Act. Counsel for the applicant herein contended that those proscribed means related only to the terms of cl. (b) of s. I, and that they did not qualify cl. (a) of s. 1 which reads as follows: 'I . No person shall, - (a) publish or display or cause to be published or displayed ... any notice, sign, symbol, emblem or other representation indicating discrimination or any intention to discriminate against any person or any class of persons for any purpose because of the race or creed of such person or class of persons.' Mr. Cartwright further submitted that if this section had been read by the learned Judge without this limitation, that registration in the Registry Office constituted publication of a notice or other representation as aforesaid, and

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that following Halsbury (2nd ed.), vol. 29, p. 444, 'registration constitutes actual notice to all the world', therefore he should have found that the particular clause was in breach of the said Act. I do not deem it necessary for the purpose of this case to deal with this argument, except to say that it appears to me to have considerable merit. My opinion as to the public policy applicable to this case in no way depends on

the terms of the Racial Discrimination Act, save to the extent that such Act constitutes a legislative recognition of the policy which I have applied; in fact my brother Chevrier, as I read his judgment in Re McDougall and Waddell, is in accord with me in this respect. An order will therefore go declaring that the restrictive covenant attacked by the applicant is void and of no effect. Order declaring covenant void.

In Noble and Wolf. the court seems to have submerged the fundamental values of racial and religious tolerance in the technical niceties of property law, while in Drummond Wren the court was much more explicit about the values it wanted to protect. What are the dangers in using the latter approach in a judicial context? Would you say that the court in Drummond Wren was getting dangerously close to 'legislating'? Did Mackay J need to invoke all the foreign law authorities that he did in this case? What do you suppose the court would have done in Noble and Wolf if the restrictive covenant in question had been much more specific in describing the types of persons to whom the land was not to be sold? Why do you suppose that Rand J concerned himself only with narrow property considerations here when in so many other public law cases of this nature he was the acknowledged master of policy judgments ( e.g. Roncarelli v. Duplessis, chapter 1)? Is it possible for the judiciary to intertwine policy considerations with logical analysis? What about the doctrine of stare decisis and the need for consistency? In Shelley v. Kraemer 334 us I (I 948), the us Supreme Court was asked to rule on the validity of lower court enforcement of restrictive covenants which excluded negroes from acquiring ownership of certain real property in the states of Missouri and Michigan. Instead of taking refuge in private law property concepts as the Supreme Court of Canada did in Noble and Wolf. the court invoked the 'equal protection' clause of the fourteenth amendment of the us Bill of Rights in a manner which was a tribute to the judicial ingenuity of the members of that court. Faced with the argument that the restrictive covenants in question were merely private agreements voluntarily entered into by consenting individuals and that they involved no governmental action by state legislatures or city councils (the term 'state action' was used), the court nevertheless found the necessary state action in the fact that the restrictive covenants could only be enforced by the state courts and their judicial officers. Therefore, because the states in question had made available to private individuals the full coercive power of the courts to enforce these restrictive covenants based on race and colour, the states had denied negro purchasers of the property the 'equal protection o"f the laws' (fourteenth amendment) and their actions (i.e., lower court enforcement decisions) were ordered invalidated as unconstitutional. For further discussion and case examples of judicial ingenuity of this sort, see chapter 7, c . C THE PRESENT LEGAL ANALYSIS: DEVELOPING A POLICY APPROACH

The balance to be struck between policy and logical analysis in judicial decision-making is an issue that permeates intellectual discussions of judicial behaviour in much of our available legal literature in this field. For recent examples see Strayer, Judicial Review of Legislation in Canada 1968; McWhinney Judicial Review (4th ed. 1969); Lyon, 'A Fresh Approach to Constitutional Law: Use of a Policy-Science Model,' 45 Can. Bar Rev. 554 (1967).

53/Policy /Logic/ Constitutional Decision Whether or not judges utilize logical analysis as a strategy in making public decisions it is important that they understand and articulate the real policies which are at stake in any given case. Too often the members of the Canadian judiciary in deciding public law cases rely exclusively on the superstructure of logical analysis in existing legal materials, which to the layman appears to be but a fayade of legalities. Existing legal theory thus imposes upon judges a narrow concept of law which defines as outside the realm of' law' most of the significant values and activities in the community. In too many cases judges will decline to undertake meaningful inquiry into the implications of the choices they are making in terms of community values and goals. The only thing that keeps the whole superstructure from collapsing is the fact that generally our judges are educated and experienced human beings who read their newspapers and history books when they go home in the evening. Consider the following decision of the Supreme Court of Canada in McKay v. The Queen, not only in terms of the result (which is important), but in terms of how the court arrived at its decision.

McKay v The Queen (1965] S.C.R. 798, (1965),53 D.L.R.(2d) 532 Supreme Court of Canada: Taschereau CJC, Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall, and Spence JJ. Appeal by special leave from a judgment of the Ontario Court of Appeal, 43 D.L.R. (2d) 40 I, I 1964] I O.R. 641, reversing an order of Hughes, J., 38 D.L.R. (2d) 668, [ 1963] 2 O.R. 162, and affirming appellant's conviction for breach of a zoning by-law. F. A. Brewin QC, and Miss Ruby Campbell for appellants. John S. Herron, for respondent. Taschereau CJC, concurs with Cartwright J CARTWRIGHT J: This appeal is brought, pursuant to special leave granted by this Court, from an order of the Court of Appeal for Ontario (43 D.L.R.(2d)401, (1964] l O.R. 641] reversing an order of Hughes, J. (38 D.L.R. (2d) 667, (1963] 2 O.R. 162], and affirming the conviction of the appellants by a Justice of the Peace which conviction had been quashed by the order of Hughes, J. The appellants were convicted before W. H. Williams Esquire, a Justice of the Peace, on November 2, 1962, on the charge that they during the two weeks preceding June 12, 1962, at the Municipality of Metropolitan Toronto in the County of York, unlawfully

did maintain a sign on the premises municipally known as 70 Roxaline Street in the Township of Etobicoke other than those permitted under ss. 9.3.1.7 and 6.14(e) of the Township of Etobicoke Zoning By-law 11737 contrary to Township of Etobicoke Zoning By-law 11737. The relevant facts are not in dispute. The appellants are the owners of the premises known as street number 70 Roxaline St. in the Township of Etobicoke. During the period set out in the charge they attached to the railing of the verandah forming part of their residence an election sign measuring 14 ins. by 16 ins. bearing the words: 'Vote David Middleton, New Democratic Party.' David Middleton was a candidate for election to the House of Commons at the general election which was held on June 18, 1962. He was a candidate for the electoral district in which 70 Roxaline St. is situate. It will be observed that the whole of the period during which the sign was displayed by the appellants was 'during an election' as that phrase is defined in the Canada Elections Act, 1960 (Can.), c. 39, s. 2(4). The relevant provisions of By-law 11737 are as follows: 'Section 9.3. - Subject to compliance with

54/Canadian Constitutional Law the regulations under section 6, the following regulations shall apply in an R2 zone: Section 9 .3.l. - USE: No building, structure or land shall be used and no building or structure shall be hereafter erected, structurally altered, enlarged or maintained except for the following uses: Section 9.3.l.7-SIGNS: Signs in accordance with the regulations in section 6.14 ( e ). Section 6.14 ( e )- SIGNS: Residential - one nonilluminated real estate sign not exceeding four square feet in area, advertising the sale, rental or lease of any building, structure or lot and/ or one non-illuminated trespassing, safety or caution sign not exceeding one square foot in area, and/or one sign indicating the name and profession of a physician shall be permitted. Bulletin boards advertising sub-divisions in which lots are for sale and/or advertising building projects. In the case of an apartment not more than one bulletin board not exceeding twelve square feet in area shall be permitted, provided that all such signs are located on the lot to which they relate.'

70 Roxaline Avenue is in an R2 zone. On June 29, I 959, By-law 11737 was approved by order of the Ontario Municipal Board. No question is raised by counsel for the appellants as to the validity either of this bylaw or of the enabling legislation of the Province of Ontario pursuant to which it was passed . His submission is that, on its true construction, it does not forbid the conduct which the learned Justice of the Peace held to be an offence. In framing those portions of the by-law with which we are concerned the council has not enumerated the classes of signs the display of which on residential property is prohibited. It has taken the permissible course of forbidding the display of all signs except those few described in the regulations in section 6.l4(e). It results from this that the words of prohibition are extremely wide. In construing the by-law two rules of con -

struction are of assistance. The first is that conveniently expressed in the maxim, verba generalia restringuntur ad habilitatem rei vel personae (Bae. Max. reg. I 0), Broom's Legal Maxims, 10th ed., p. 438. The rule was regarded as already well established when Stradlingv. Morgan l Plowd. 199, 75 E.R. 305, was decided in 15 60 and it is scarcely necessary to quote authority in support of it. It is expressed as follows in Maxwell on Interpretation of Statutes, l lth ed., pp. 58-9 : 'It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with reference to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject-matter in the mind of the legislature, and limited to it.' An example of the application of the rule is the case of Cox v. Hakes (I 890), 15 App. Cas. 506, in which it was held by the House of Lords that the words of the statute there under consideration: 'The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order of Her Majesty's High Court of Justice, or any judges or judge thereof' did not give a right of appeal from an order discharging a prisoner under a writ of habeas corpus, although, as was pointed out by Lord Halsbury at p. 517, the words literally construed were sufficient to comprehend such an order.

5 5I Policy/ Logic/Constitutional Decision The second applicable rule of construction is that if an enactment, whether of Parliament

or of a Legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly. An alternative form in which the rule is expressed is that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the contrary result the former is to be adopted. If authority is required in support of this rule, on which we have acted repeatedly, it may be found in the judgment of Duff, C.J.C., in Reference re Section 31 of the Municipal District Act Amendment Act, 1941 (Alta.), [1943] 3 D.L.R. 145 at p. 149, [1943] s.c.R. 295, and in Re Reciprocal Insurance Legislation, Craigon v. The King, Otte v. The King, [1924] I D. L.R. 789 at pp. 801-2, 41 C.C.C. 336, [1924] 2 W.W.R. 397, [1924] A.C. 328 sub nom. Attorney-General for Ontario v. Reciprocal Insurers. A municipal corporation which derives its legislative power from an Act of the Provincial Legislature, of course, cannot have power to enact a provision which would be ultra vires of that Legislature. In the case at bar the learned Justice of the Peace and the Court of Appeal have given effect to the by-law as if it provided: 'During an election to Parliament no owner of property in an R2 zone in Etobicoke shall display on his property any sign soliciting votes for a candidate at such election.' I cannot think that it was the intention of the council to so enact or that it was the intention of the Legislature to empower it to do so. Such an enactment would, in my opinion, be ultra vires of the Provincial Legislature. The power of the Legislature to enact such a law, if it exists, must be found in s. 92 of the B. N. A. Act. It is argued for the respondent that it falls within head 13 , 'Property and Civil Rights in the Province'. Whether or not

the right of an elector at a Federal election to seek by lawful means to influence his fellow electors to vote for the candidate of his choice is aptly described as a civil right need not be discussed; it is clearly not a civil right in the Province. It is a right enjoyed by the elector not as a resident of Ontario but as a citizen of Canada. A political activity in the Federal field which has heretofore been lawful can, in my opinion, be prohibited only by Parliament. This rule is, I think, implicit in every judgment delivered in this Court in the recent case of Oil, Chemical & Atomic Workers International Union v. Imperial Oil Ltd., 41 D.L.R. (2d) l, [ 1963) S.C.R. 584, 45 W.W. R. I. The division of opinion in that case was not as to the soundness of the rule but as to whether the legislation there in question infringed it. The reasons of the majority, who upheld the provincial legislation which was under consideration, were given by Martland, J., and by Ritchie, J. Martland, J., said, at p. 12: 'The legislation, however, does not affect the right of any individual to engage in any form of political activity which he may desire. It does not prevent a trade union from engaging in political activities.' Ritchie, J., said at p. 22 : 'The impugned legislation does not, in my view, have the effect of in any sense precluding any trade union from indulging in political activity or from collecting political party funds from its members.' If By-law 11737 is construed as it has been by the learned Justice of the Peace and by the Court of Appeal, it does not merely affect, it destroys the right of the appellants to engage in a form of political activity in the Federal field which has heretofore been possessed and exercised by electors without question. I incline to agree with Mr. Brewin's submission that Parliament has 'occupied the field' in enacting the Canada Elections Act and particularly s. 71 which reads as follows : '71. Every printed advertisement, handbill, placard, poster

56/Canadian Constitutional Law

or dodger having reference to any election shall bear the name and address of its printer and publisher, and any person printing, publishing, distributing or posting up, or causing to be printed, published, distributed or posted up, any such document unless it bears such name and address is guilty of an offence against this Act punishable on summary conviction as provided in this Act, and if he is a candidate or the official agent of a candidate is further guilty of an illegal practice.' This indicates that Parliament contemplates that persons other than candidates may post up placards and posters having reference to an election and subjects the practice to a limited form of regulation. The impugned by-law forbids such posting up altogether on residential property, which will often be the only place on which the owner of that property has the right to post up such a placard. However, I do not find it necessary to reach a definite conclusion on this branch of Mr. Brewin's argument. In my opinion, the Legislature has no power to enact a prohibition of the sort which By-law 11737, as construed by the Court of Appeal, contains as such a prohibition would be a law in relation to proceedings at a Federal election and not in relation to any subject-matter within the provincial power. As was said by Lord Watson in Union Colliery Co. of British Columbia, Ltd. v. Bryden, [ l 899] A.C. 580 at p. 588: 'The abstinence of the Dominion Parliament from legislating to the full limit of its powers, could not have the effect of transferring to any provincial legislature the legislative power which had been assigned to the Dominion bys. 91 of the Act of 1867.' While that case dealt with an attempted invasion by the Provincial Legislature of a field exclusively reserved to Parliament by head 25 of s. 91 of the B. N. A. Act, the subject-matter of elections to Parliament appears to me to be from its very nature one which cannot be regarded as coming within any of the classes of subjects assigned to the Legislatures of the Provinces by s. 92. As to this I agree with the following statement of

Taschereau, J., as he then was, in Valin v. Langlois (1879), 3 s.c.R. I at p. 71: ' It is admitted, and is beyond doubt, that the Parliament of Canada has the exclusive power of legislation over Dominion controverted elections. By the lex Parliamentaria, as well as by the 41 st, 91 st, and 92nd sections of the British North America Act, this power is as complete as if it was specially and by name contained in the enumeration of the federal powers of section 91, just as promissory notes, Insolvency, &c., are.' It will be noted that the Judicial Committee in refusing leave to appeal stated that, although the questions dealt with in the judgment of this Court were undoubtedly of great importance, leave should be refused because the judgment sought to be appealed was clearly right : see Valin v. Langlois (I 879), 5 App. Cas. 115, particularly at p. 122. It is scarcely necessary to add that, just as the Legislature cannot do indirectly what it cannot do directly, it cannot by using general words effect a result which would be beyond its powers if brought about by precise words. An enactment in general words which, if literally construed, would bring about such a result is one to which the maxim , verba generalia restringuntur ad habilitatem rei vel personae, is peculiarly applicable. Earlier in these reasons I have stated that counsel for the appellants did not question the validity of the by-law or of the enabling provincial legislation. I should make it plain that this admission on his part depended upon the acceptance of his argument that on its proper construction the by-law did not prohibit the display of the sign in regard to which the appellants were convicted. It was implicit in his argument that if the by-law should be construed so as to prohibit that display it would be pro tanto invalid. For these reasons I agree with the conclusion of Hughes, J., that on its proper construction By-law 11737 does not prohibit the display of the sign displayed by the appellants during the period mentioned in the charge against them.

57 /Policy/ Logic/Constitutional Decision Before parting with the matter I wish to emphasize, perhaps needlessly, the limited scope of the question we are called upon to decide. The constitutional validity of any provincial legislation is not directly impugned; were it otherwise it would have been necessary to give the notices required by Rule ( 18) [ see Schedule A to Section I 7 of the Canada Elections Act, 1960, c. 39, p. 264). The discussion of the extent to which provincial legislation may affect the carrying on of a political activity in the Federal field was raised by counsel and has been pursued in these reasons merely to assist in arriving at the true construction of the by-law. That question of construction is in turn confined to ascertaining whether the general words used, which in their natural meaning do not merely regulate but forbid the display of signs at all times, were intended to have effect so as to forbid during the actual period of an election to Parliament the display of a sign of the sort described in the charge on which the appellants were convicted. I would allow the appeal with costs in this Court and in the Court of Appeal, set aside the order of the Court of Appeal and restore the order of Hughes, J. Fauteux, J. (dissenting), concurs with Martland, J. Abbott, J., concurs with Cartwright, J. MARTLAND J (dissenting): This is an appeal from a judgment of the Court of Appeal for Ontario [ 43 D.L.R. (2d) 40 I, [ 1964) I O.R. 64 I), which reversed the decision of Hughes, J. [38 D.L.R.(2d) 668, [1963) 2 O.R. 162), and affirmed the conviction of the appellants by a Justice of the Peace, for having unlawfully maintained a sign upon premises owned by them contrary to the provisions of By-law 11737 of the Township of Etobicoke. The by-law in question is a zoning by-law, which, inter alia, forbade the use of a building, structure or land within the area in which the appellants' land was situated for signs, save those for certain specified purposes. The sign in question, attached to the railing of the

verandah of a residence, and which read: 'Vote Middleton, New Democratic Party', was not within the specified permitted types of sign. It was admitted, in argument, that the bylaw in question was intra vires of the municipality. The contention of the appellants is that the by-law was not intended to have the effect of forbidding the use of such a sign during the actual period of an election to the Federal Parliament. This contention was supported upon two grounds: I. That the displaying of such a sign was subject exclusively to Federal legislation as being in relation to 'Proceedings at Elections', within the meaning of s. 41 of the B. N. A. Act; and 2. That the displaying of the sign was a political right of the appellants which was not affected by the by-law. As to the first point, s. 41 was an interim provision of the B.N.A. Act, which provided that certain then existing provincial laws should apply to the election of members to serve in the House of Commons from the several Provinces, until the Parliament of Canada otherwise provided. Parliament did so provide, and the effect of s. 41 has been exhausted. The law relating to proceedings at Federal elections is now to be found in the Canada Elections Act, 1960 (Can.), c. 39. The appellants contended that certain provisions in that Act recognized implicitly the right to erect signs. The sections relied upon were the following: '49(3) No person shall furnish or supply any loud speaker, bunting, ensign, banner, standard or set of colours, or any other flag, to any person with intent that it shall be carried, worn or used on automobiles, trucks, or other vehicles, as political propaganda, on the ordinary polling day; and no person shall with any intent, carry, wear or use, on automobiles, trucks or other vehicles, any such loud speaker, bunting, ensign, banner, standard or set of colours, or any other flag, on the ordinary polling day. '(4) No person shall furnish or supply any

58/Canadian Constitutional Law flag, ribbon, label or like favour to or for any person with intent that it be worn or used by any person within any electoral district on the day of election or polling, or within two days before such day, or during the continuance of such election, by any person, as a party badge to distinguish the wearer as the supporter of any candidate, or of the political or other opinions entertained or supposed to be entertained by such candidate; and no person shall use or wear any flag, ribbon, label, or other favour, as such badge, within any electoral district on the day of any such election or polling, or within two days before such day ... '71. Every printed advertisement, handbill, placard, poster or dodger having reference to any election shall bear the name and address of its printer and publisher, and any person, printing, publishing, distributing or posting up, or causing to be printed, published, distributed or posted up, any such document unless it bears such name and address is guilty of an offence against this Act punishable on summary conviction as provided in this Act, and if he is a candidate or the official agent of a candidate is further guilty of an illegal practice. 'l 00 ( 1) When any election officer is by this Act authorized or required to give a public notice and no special mode of notification is indicated, the notice may be by advertisement, placard, handbill or otherwise as he considers will best effect the intended purpose. '(2) Notices and other documents required by this Act to be posted up may, notwithstanding the provisions of any law of Canada or of a province or of any municipal ordinance or by-law, be affixed by means of tacks or pins to any wooden fence situated on or adjoining any highway, or by means of tacks, pins, gum or paste on any post or pole likewise situated, and such documents shall not be affixed to fences or poles in any manner otherwise.' I cannot find in any of these provisions any

recognition by Parliament, express or implied, of an overriding right to erect anywhere a sign for purposes of political propaganda. Subsections (3) and (4) of s. 49 contain prohibitions against the supplying and use of certain kinds of election propaganda on polling day, and during certain other periods. Section 71 requires printed advertisements, handbills, placards, posters or dodgers having reference to an election to carry the name and address of the printer and publisher. Section I 00 is the only one of the provisions mentioned which contains enabling, rather than restrictive, provisions. It deals with the posting of official notices required under the Act . It authorizes their posting in certain ways and in certain places. It is significant that s-s. (2) contains the words' notwithstanding the provisions of any law of Canada or of a province or of any municipal ordinance or by-law' thereby recognizing that, in the absence of the authority of this section, even the posting of official notices in certain places might properly be forbidden by a provincial statute or a municipal by-law. In my opinion there is nothing in the provisions of the by-law relating to the erection of signs which runs counter to any of the provisions of the Canada Elections Act. It is, however, contended that, even though Parliament has not legislated on this subject, the field of proceedings at Federal elections is one of Federal jurisdiction and cannot be affected by provincial legislation, even though it is so affected only incidentally. Reliance is placed upon the statement of Lord Watson in Union Colliery Co. of British Columbia, Ltd. v. Bryden, (1899) A.C. 580 at p. 588: 'The abstinence of the Dominion Parliament from legislating to the full limit of its powers, could not have the effect of transferring to any provincial legislature the legislative power which had been assigned to the Dominion by s. 91 of the Act of 1867.' In that case the issue was as to the validity of a provision regarding Chinese men in a British Columbia statute which provided that

59 /Policy/ Logic/Constitutional Decision [p. 583): 'No boy under the age of twelve years, and no woman or girl of any age, and no Chinaman, shall be employed in or allowed to be for the purpose of employment in any mine to which the Act applies, below ground.' The Privy Council held that the provision relating exclusively to Chinese men, who are aliens or naturalized subjects, was within exclusive Federal jurisdiction under s. 91 (25), and was ultra vires of the British Columbia Legislature. The basis of the decision is set forth by Lord Watson at p. 587. 'But the leading feature of the enactments consists in this that they have, and can have, no application except to Chinamen who are aliens or naturalized subjects, and that they establish no rule or regulation except that these aliens or naturalized subjects shall not work, or be allowed to work, in underground coal mines within the Province of British Columbia.' This legislation, was held to be bad in so far as Chinese men were concerned because the Provincial Legislature had singled out for its legislation a group within the heading 'naturalization and aliens'. It is, however, implicit in the reasons that provincial legislation dealing with coal mines, applicable to men in a certain age group, would not only be valid but would apply to Chinese men within that group. There was no suggestion that the provision in issue was not valid in relation to boys, or that it could not apply to Chinese boys under the age of 12 years. It should also be noted that the statement of Lord Watson, cited by the appellants, deals with those legislative powers conferred upon the Federal Parliament under the specifically enumerated heads of s. 91 of the B.N.A. Act, which section concludes with the provision, relied upon by Lord Watson in his reasons (at p. 585), that 'any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.'

There is no class of subject within the enumerated heads of s. 91 which deals with 'proceedings at elections'. That phrase appears in s. 4 l. It was there used as a description of a subject-matter already covered by certain existing provincial laws, i.e., 'proceedings at elections' was defined by the terms of those provincial statutes. Undoubtedly the Federal Parliament can legislate and has legislated respecting Federal elections. To the extent that it has legislated, such legislation governs and would override any provincial enactment which ran counter to it. The point which I make is that there is no general field of legislation on this subject assigned to the Federal Parliament under an enumerated class in s. 91 to which the proviso at the conclusion of that section can attach. That being so, in my opinion, provincial legislation in relation to the use of property, which, in its pith and substance, is in relation to property and civil rights in the Province, and which is of general application, is not only valid, but can apply even though, incidentally, it may affect the means of propaganda used by an individual or by a political party during a Federal election campaign. The only authority to which we were referred in support of this doctrine of nonapplicability was the Reference re Minimum WageActofSaskatchewan, [1948) 3 D.L.R. 801, 91 c.c.c. 366, [1948) S.C.R. 248. That was a reference to determine whether the Minimum Wage A ct, R.s.s. 1940, c. 310, applied to the employment of Leo Fleming in the Post Office at Maple Creek, Saskatchewan. Fleming had been employed temporarily by the Postmistress of a revenue Post Office in December, 1946, and she had been charged with a breach of that Act. There was no suggestion that the Act purported to be applicable generally to Federal civil servants. The decision that it did not apply to Fleming's employment was that, though he was paid by the Postmistress out of her postal revenues, he was employed in the business of the Post Office of Canada and was a part of the postal service. That being so, the terms of his em-

60/Canadian Constitutional Law ployment were the subject-matter of Federal legislation. In essence, the decision was that provincial legislation as to wages did not apply to Federal Crown servants, even though not paid directly by the Crown. It does not support the very wide proposition urged by the appellants in the present case. In Reference re Alberta Bills, A .·G. Alta v. A .-G. Can., (1938) 4 D.L.R.433, (1939) A.C. 117, [ 1938) 3 W.W.R. 337, the Bill entitled 'An Act respecting the Taxation of Banks' was held to be ultra vires of the Alberta Legislature, not because a provincial taxing statute could not apply to banks, but because it applied only to banks and because its true purpose was not taxation to raise provincial revenue but the prevention of the operation of banks in the Province. In Great West Saddlery Co. Ltd. v. The King, 58 D.L.R. l, (1921) 2 A.C. 91 , (1921) I W.W.R. 1034, the questions in issue involved the validity of certain provincial statutes affecting the position of companies incorporated under the provisions of the Canadian Companies Act. One of the statutes under consideration was the Ontario Mortmain and Charitable Uses Act. It was held that a Federal company was subject to the provisions of this Act, because it was one of general application. This, I think, is an answer to the suggestion that, if the municipality could not have enacted a by-law aimed exclusively at Federal election signs, then a general by-law could not be applicable to them . The essential feature of the by-law in question here is that it is of general application and , admittedly, valid . I turn now to deal specifically with the second head of the appellants' argument, although what has already been said is, in part, applicable to that submission. The contention is that the displaying of the sign by the applicants was the exercise of a political nght in a Federal election which would not be affected by any legislation other than Federal. The appellants relied mainly upon the decisions of this Court in Saumur v. City of Quebec and A .-G Que., [I 953) 4 D.L.R. 641 ,

106 c.c.c. 289, (1953] 2 S.C.R. 299;Switzman v. Elbling and A.·G. Que., 7 D.L.R. (2d) 337, 117 c.c.c. 129, [ I 957) S.C.R. 285, and the reasons of Duff, C.J.C., in Re Alberta Legislation, (1938) 2 D.L.R. 81, (1938) S.C.R. 100 [affd sub nom. Reference re Alberta Bills, [ 1938) 4 D.L.R. 433, [ 1939) A.C. 117, [ 1938] 3 W.W.R. 337). The first case involved an attack by a member of Jehovah's Witnesses upon the validity of a by-law of the City of Quebec, which forbade distribution in the streets of the city of books and pamphlets without permission of the Chief of Police of the city. Four of the members of the Court who found the by-law to be invalid were of the view that the true purpose of the by-law was not in relation to the administration of streets, but to exercise censorship, interfering with freedom of religious worship, a subject-matter of Federal legislation. Kerwin, J., held that the by-law could not operate to prevent the distribution of the literature of Jehovah's Witnesses because of the protection afforded to freedom of religious worship by a pre-Confederation statute of 1852 and by the Freedom of Worsh ip Act of the Province of Quebec. Four members of the Court would have held the by-law to be valid . In the present case, however, the by-law is admittedly valid and there has been no suggestion that its aim and purpose was anything other than the maintenance of certain standards of amenity in residential areas in the township. This being so, I would adopt, in relation to this issue, what was said by Cartwright, J., in the Saumur case respecting provincial legislation which might affect religion. At p. 726 he said: ' It may well be that Parliament alone has power to make laws in relation to the subject of religion as such, that that subject is, in its nature, one which concerns Canada as a whole and so cannot be regarded as of a merely local or private nature in any Province or as a civil right in any Province ; but we are not called

61 /Policy/ Logic/Constitutional Decision upon to decide that question in this appeal and I express no opinion upon it. I think it clear that the Provinces, legislating within their allotted sphere, may affect the carrying on of activities connected with the practice of religion. For example, there are many municipal by-laws in force in cities in Ontario, passed pursuant to powers conferred by the Provincial Legislature, which provide that no buildings other than private residences shall be erected on certain streets. Such by-laws are, in my opinion, clearly valid although they prevent any religious body from building a church or similar edifice on such streets. Another example of provincial legislation which might be said to interfere directly with the free exercise of religious profession is that under which the by-law considered in Re Cribbin & Toronto (1891), 21 O.R. 325, was passed. That was a by-law of the City of Toronto which provided in part: "No person shall on the Sabbath-day, in any public park, square, garden, or place for exhibition in the city of Toronto, publicly preach, lecture, or declaim." The by-law was attacked on the ground, inter alia, that it was unconstitutional but it was upheld by Galt C.J. and in my opinion his decision was right. No useful purpose would be served by endeavouring to define the limits of the provincial power to pass legislation affecting the carrying on of activities connected with the practice of religion. The better course is, I think, to deal only with the particular legislation now before us.' Switzman v. Elbling also involved the question of constitutional validity of legislation, in this case the Quebec Act respecting Communistic Propaganda. The majority of the Court held that the statute was legislation in respect of criminal law. Three members of the Court held that it was not within any of the powers specifically assigned to the Provinces and that it constituted an unjustifiable interference with freedom of speech. In each of these cases some of the reasons have recognized the existence of fields of Federal legislative jurisdiction in relation to

freedom of religion (Saumur) and freedom of speech (Switzman). In each of these cases this view was expressed in relation to legislation which the Judges expressing that view had found not to fall within any head of s. 92. The source of this opinion as to such fields of Federal jurisdiction is the judgment of Duff, c.1.c., in Re Alberta Legislation, I1938) 2 D.L.R. 81. He was dealing with Bill No. 9, passed by the Alberta Legislature, but which had not received Royal Assent, 'To Ensure the Publication of Accurate News and Information'. This Bill would have required newspapers which published material criticizing the Provincial Government to publish a corrective or amplifying statement if required by a Government board. Duff, c.1.c., held that this Bill presupposed, as a condition of its operation, that the A 1berta Social Credit Act was valid, and, since that Act was held to be ultra vires of the Province, the ancillary and dependent legislation fell with it. In his reasons, however, he suggested another ground on which it might be contended that the Bill was invalid, but expressed no view as to whether or not it would be unconstitutional as offending against that proposition. His well-known statement is as follows, at p. 108: 'The question, discussed in argument, of the validity of the legislation before us, considered as a wholly independent enactment having no relation to the Alberta Social Credit Act, presents no little difficulty. Some degree of regulation of newspapers everybody would concede to the Provinces. Indeed, there is a very wide field in which the Provinces undoubtedly are invested with legislative authority over newspapers; but the limit, in our opinion, is reached when the legislation effects such a curtailment of the exercise of the right of public discussion as substantially to interfere with the working of the parliamentary institutions of Canada as contemplated by the provisions of the B.N.A. Act and the statutes of the Dominion of Canada.' It is significant that this statement clearly

62/Canadian Constitutional Law recognizes that a Province has a right to regulate newspapers. Any such regulation must, to some extent, be a curtailment of unlimited freedom of discussion. Duff, c.J.c., said that such provincial control could not go beyond a certain point, which he defined. His views were concurred in by Davis, J. Cannon, J., was of the view that a Province could not curtail free discussion of public affairs, this being within the Federal field of criminal law. The other three members of the Court expressed no view regarding this point. Assuming the correctness of the proposition stated by Duff, c.J.c., and the existence of Federal legislative powers in the field of freedom of religion and freedom of discussion, there is no case as yet which has ruled that provincial legislation not directed at those fields, but validly enacted in relation to property and civil rights, cannot, incidentally, effect any curtailment of the same. Earlier in his reasons, Duff, c.J.C., said at p. l 07: 'The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth of Australia, [1936) A.C. 578 at p. 627, "freedom governed by law."' It is significant that of the two examples which he chose, one, the law of defamation, was a provincial matter, the other, sedition, a Federal one. Freedom of discussion is not an unlimited right to urge views, political or other, at any time, in any place, and in any manner. It is a freedom subject to law, and, depending on the nature of the legislation involved, may be subject to certain restrictions, whether Federal or provincial. In Oil, Chemical & Atomic Workers International Union v. Jmperial Oil Ltd., 41 D.L.R.

(2d) I, [ 1963) s.c.R. 584, the appellant urged that provincial legislation preventing the use of union dues, paid as a condition of membership, for contribution to a political party, or candidate, was not within any head of s. 92, and interfered with freedom of political activity. The majority of this Court held that the legislation was in pith and substance labour legislation and within provincial powers. Counsel for the appellant in that case placed reliance on the passage quoted from the judgment of Duff, c.J.c., and urged that the legislation in question effected such a curtailment of the right of association for political purposes as to fall within the proposition there stated. Dealing with that submission I said, at pp. 12-l 3: 'The legislation, however, does not affect the right of any individual to engage in any form of political activity which he may desire. It does not prevent a trade union from engaging in political activities. It does not prevent it from soliciting funds from its members for political purposes, or limit, in any way, the expenditure of funds so raised. It does prevent the use of funds, which are obtained in particular ways, from being used for political purposes.' In the same case Ritchie, J., said at pp. 22-3: 'Even if it could be said that the legislation under attack (s. 9(6) (c) and (d)) had any effect on political elections such an effect could, in my view, only be characterized as incidental and this would not alter the fact that the amendment in question is a part and parcel of legislation passed "in relation to" labour relations and not "in relation to" elections either provincial or Federal.' The test stated by Duff, C.J.C., assuming it is a sound proposition of constitutional law, is one for the determination of the validity of provincial legislation. That issue is not before us here. This by-law is admittedly valid. There is no suggestion in the reasons of Duff, C.J.C., that, if provincial legislation regulating newspapers did not go beyond the limit which he defined, the legislation would be inapplicable

63 /Policy/ Logic/Constitutional Decision in so far as it effected any curtailment of

public discussion during a Federal election. Furthermore, applying his test to the circumstances of the present case, I would not accept the proposition that, because a by-law of general application incidentally prevented a particular form of political propaganda from being used in a particular area, this constituted a substantial interference with the working of

the parliamentary institutions of Canada. In my opinion the appeal fails and should be dismissed with costs. Judson, J., concurs with Cartwright, J. Ritchie and Hall, JJ, (dissenting), concur with Martland, J. Spence, J., concurs with Cartwright, J. Appeal allowed.

Notice how Mr Justice Cartwright constructed his logical superstructure. First he characterized the issue as follows: 'In the case at bar the learned Justice of the Peace and the Court of Appeal have given effect to the bylaw as if it provided: "During an election to Parliament no owner of property in an R2 zone in Etobicoke shall display on his property any sign soliciting votes for a candidate at such election."' Then he asserted that parliament has 'occupied' the field by virtue of the Canada Elections Act, particularly section 71 requiring that the name of the printer and publisher be printed on any election signs and prescribing a penalty for failure to comply. Thus, he was able to conclude logically that the legislature had no power to enact the bylaw in question since it would be a law in relation to proceedings at a federal election and not in relation to any subject matter within provincial power. Mr Justice Martland, in his dissent, reached an opposite result with a similar type of logical analysis: The point which I make is that there is no general field of legislation on this subject assigned to the federal parliament under an enumerated class ins. 91 to which the provision at the conclusion of that section can attach. That being so, in my opinion, provincial legislation in relation to the use of property and civil rights in the Province, and which is of general application, is not only valid but can apply even though, incidentally, it may affect the means of propaganda used by an individual or by a political party during a Federal election campaign.

It is submitted, first, that section 71 of the Canada Elections Act is not directly relevant to the real issues in the case, and that this irrelevance is a measure of the failure of existing legal theory to provide adequate intellectual tools to meet the real demands of constitutional decision. Second, it is suggested that both judges actually failed to articulate the authoritative, or legal, policies at stake in the case: that is, whether the law should, in the circumstances of the case, protect the community interest in maintaining property values and an attractive living environment in Etobicoke or the interest in ensuring that all political parties and their members have a certain minimum opportunity to promote their candidates in a federal election. Once having articulated the policies, the judges might then have gone on to examine the relevant facts and to assess the relative importance of the values for which protection was being sought by the opposing parties. For authoritative community policy relating to the protection of the electoral process the judges might well, given the present state of underdevelopment of judicial decision on our constitution, have to look at some unaccustomed but, we submit, authoritative sources. For example, the House of Commons itself has on occasion reaffirmed the fundamental importance of full and free expression of opinion on political matters to our system

64/Canadian Constitutional Law

of government. The most recent case was the rejection of the motion of the member for Edmonton-Strathcona, Mr Nugent, that a journalist be called before the bar of the House to answer for his published comments on that member's activities in the House. See House of Commons Debates, 24 October 1966, pp. 8999-9015. This is but one source of evidence of authoritative policy, and it is clearly supplemented by the decision of the Supreme Court of Canada in the Reference re Alberta Legislation, [ 1938) s.c.R. 100, especially in the following passage from the judgment of Chief Justice Duff: This is sufficient for disposing of the question referred to us but, we think, there are some further observations upon the Bill which will properly be made. Under the constitution established by the British North America Act, legislative power in Canada is vested in one Parliament consisting of the Sovereign, an Upper House called the Senate, and the House of Commons. Without entering into detail upon an examination of the enactment of the Act relating to the House of Commons, it can be said that these provisions manifestly contemplate a House of Commons which is to be, as the name itself implies, a representative body, constituted, that is to say, by members elected by such of the population of the united provinces as may be qualified to vote. The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom . The statute contemplates a Parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by ministers of the Crown of their responsibilities to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives. The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public rights with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth 'freedom governed by law'. Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.

It is necessary to observe that Chief Justice Duff made no express reference to the erection of election posters promoting party candidates, only to make the point that the literal-mindedness that places great importance on such observations is nothing more than a product of the legal theory whose adequacy is being challenged here. Chief Justice Duffs statement is, in terms of the traditional analytical view, mere obiter dictum. However, we submit that if we are unable to develop a notion of Jaw which regards a statement of this kind, given the circumstances of the reference and the stature of the court and of the judge, as an authoritative statement, we are not going to have a constitution worth worrying about. A policy-oriented analysis, properly worked out, would enable judges to weigh the competing interests before them and the choices open to them in terms of their impact on the values our legal system seeks to promote and protect. This it would do by providing an analysis of Jaw in terms of those values, including rational criteria for objective weighing of the alternatives.

65 I Policy/ Logic/Constitutional Decision D CONSTITUTIONAL LAW AS A PROCESS OF DECISION

Organization is critical in any collection of data about law. It not only reflects the organizer's perception of the thing to which the data relates; but also conditions the thinking of the reader. The insights derived and the perception of relationships of parts to one another and to the whole are increased as the intellectual model increasingly corresponds to reality. The usual organization of general works on constitutional law is institutional. One can readily translate the table of contents into one of those organization charts used to give visual expression to the machinery of government departments and business organizations. Each major component is located in a square, ordered from top to bottom according to some formal order of importance, with lines running between them to show chains of command and other relations. Thus we usually learn that constitutional law consists of'basic principles,' parliament, the executive, the administration, the judiciary, and the legal relations among these institutions and between each of them and the citizen. We believe there is a better model, based on process. It is nothing earthshaking, just a particular way of looking at the world or a part of it: people pursuing goal-values through institutions. This is the essence of the model, and its effective use simply requires that the observer consciously shove the institutional organization chart to the back of his mind for the moment, allow his mind to assume a process frame of reference, and see whether increased perception and insight result once the mind has become comfortable in the new framework. It is not that institutions are not central to the process we are here concerned with but rather that the institutional organization chart model tends to take for granted the human purposes for which the institutions were created, as though these were all clearly settled somewhere in the dim past and we need not concern ourselves with them. Since the same human purposes may, as history unfolds, call for shifts in institutional practices, we suggest that the institutional model, with its built-in assumption of an institutional status quo, may be the intellectual Maginot Line of the current constitutional debate in Canada. Not that we are likely to recommend any wholesale alteration of our major institutions but rather that our new frame of reference will enable us to see them clearly for what they are - stable, long-term instrumentalities for the protection and promotion of the fundamental shared values of the Canadian people. Another advantage of a process frame of reference is that it promotes contextual thinking. Constitutional law reflects only part of a larger, on-going decision process, and is largely meaningless if viewed in isolation as though it were an integral body of self-justifying rules. Both laws and conventions are authoritative norms in the sense that there is a general expectation that sanctions will be invoked if they are violated. The significant difference between them is that laws are backed by highly particular judicial sanctions whereas conventions get their support from other, less formalized, sources. This difference may be important, but for lawyers to glorify it into the sole criterion for distinguishing what is law from what is not law is to impose upon the lawyer, as a participant in the constitutive process, the curse of the illusion of central position. A judge applying good, hard rules of commercial law may be entitled to decline inquiry into the immediate value implications of his decision, on the basis of an overriding policy demand for certainty in business dealings (barring, that is, circumstances that attract the mitigating force of a principle of equity). But a judge applying principles of constitutional law who follows this course is simply deceiving himself. Value judgments are inherent, indeed central, in constitutional decision, whether judicial or other. The judge who treats constitutional principles as just so much positive law will either fail altogether to make important value judgments or will make them sub rosa, like the small boy passing the candy counter hoping no one has seen him slip a gumdrop into his mouth. The former alternative leads to decisions that could as well be made with a pair

66/Canadian Constitutional Law

of dice, while the latter moves the important decision from the hard-won realm of visible, rational decision into the uncharted wilderness of the judicial bosom where assurances of separation of subjective from objective criteria are at a minimum. Here we have reached the heart of the problem for, if we cannot provide a minimum of rational guidance, based on objective criteria, for the value judgments that are in fact being made, then we are probably better advised to stay with the inarticulate major premise, or judicial hunch, hidden behind a fayade of positive legal analysis. We believe that a process frame of reference can provide a basis for this minimum of rational guidance to constitutional decision. Our belief is based on our experience in studying and teaching constitutional law in the context of constitutive process, and is reinforced by the manner in which the Supreme Court of the United States has managed to bring into the open the fundamental value conflicts involved in constitutional decision, without, in our opinion, losing its judicial character. We are also encouraged by recent trends in England, in such decisions as Ridge v. Baldwin, (1963] 2 All E.R. 66, Conway v. Rimmer, [1967] 2 All E.R. 1260, andLiyanage v. The Queen, (1967] l A .C. 259 (reproduced in chap ter 7, D at p. 305) which reflect a broad, policy-oriented approach that permits open discussion of fundamental values. Further, we would interpret these cases as clear recognition that the rule of law is the central working principle of the English constitution, whatever theoretical significance positivist theory claims for the supremacy of parliament. Let it be clear that we do not claim to offer anything new and revolutionary. Good minds have always groped intuitively for a clear view of reality, and we do not presume to lecture them on methodology. However, dominant moulds of thinking and ways of viewing the world have a powerful and often confining influence. Flat-earth minds just do not formulate such questions as 'what is the circumference of the earth?' By systematizing the process frame of reference and applying to it the most effective intellectual tools available we hope to increase the common ground for rational analysis rooted in empirical observation, thus minimizing the range of intuitive differentiation. We deny that analysis and decision can be made completely rational, for as Sir Thomas More says in Bolt's play, A Man for All Seasons, 'I don't know where God is nor what He wants.' However, we can clearly do much better than we have done so far, even given our limited under~tanding of human nature and human purposes. It should be clear from what we have already said that we are trying not to eliminate positivist theory but to supplement it. Now, positivist theory operates within a closed system of analysis that constitutes but a part of the flow of public decision. It is inward-looking and ill-equipped to handle questions that cross the boundary of its closed system and touch those matters it defines as 'political' questions. But those questions persist and must be answered by people who know something about operations within the closed circle, even if they cannot, by definition, be answered by judges, at least not openly. At the end of the day, judges must still operate within a coherent system of positive law, but their understanding of that law and the perceptiveness of scholars in interpreting it should both be greatly enhanced by the availability of analysis in which the policy objectives of the law can be openly explored and discussed. Again, this is nothing new, but what we have lacked in the past is a systematic notion of the relationship between legal process and social process, and a common frame of reference that is not cursed with a built-in legal versus non-legal dichotomy that indicates how deeply our minds are impressed with the theory of positive law. When we suggest open discussion of policy we are not talking about social policy. We are referring to authoritative community policy that has found its expression in black-letter rules, legal and equitable principles, statutes, regulations, administrative orders, or any other recognized form. At the level of fundamental law, or law of the constitution, the line between what consid-

6 7 /Policy/ Logic/Constitutional Decision

erations are 'legal' and what are not, for purposes of decision, is seldom clear and may, indeed, be the very question to be decided. Therefore, to approach such questions within a framework of analysis loaded with the assumptions of positive law may be to beg the question. Even positive law must at some point draw guidance from a larger scheme of authoritative policies if decisions at the concrete leval are to have some hope of reflecting the fundamental shared values of the community. E AUTHORITY AND COMMUNITY EXPECTATIONS

Authority is what distinguishes law from naked force. It is therefore essential to be clear about what we mean by authority. Positivist theory identifies authority with the will of the sovereign, so that once the sovereign is located its commands are law. Thus we have the great concern with the notion of sovereignty in English constitutional law, whose theory was heavily influenced by Austin, the great positivist. But this by itself fails to explain the development of the English (and Canadian) constitution. It fails to account for a qualitative evaluation which that law makes in deciding what is law and what is not, and leads to an attempt to fashion sovereignty into a mould sufficient to hold the value content of our system of government under law. That attempt is, in our view, unsuccessful, and the result is confusion. However, the recognition by traditional analysis of conventions of the constitution and of their force suggests a felt need to supplement the notion of sovereignty with some broader concept of authority which we would equate to community expectations. Here we meet a key expression in our analysis, an expression which can cause much confusion because it is often misunderstood: 'community expectations.' This is an enormously complex term. It is decidedly NOT referring to a kind of Gallup poll, although numbers do count to a certain extent for some purposes. We use this term to provide a link between the concept of authority, which is the hallmark of law, and the value preferences of the community that can be given empirical reference. There must obviously be consensus among people as to certain basic values if there is to be community in any meaningful sense. The sanctity of life, access to the necessities of life, respect for human life, and the other values we might collectively describe as a civilized notion of human dignity, recur sufficiently often in the annals of man's struggle for a civilized world that we can use them as a starting point, assuming they reflect the true aspirations of a continuing majority (at least) of the Canadian people. What next? We need to pattern our behaviour and program our institutions in such a way that they are, on the whole, more encouraging than destructive of our basic values. But life is complex, and unless we are prepared to contemplate several million plebiscites a year ( one for every choice necessary to resolve a conflict) we require some technique for projecting our basic values into the complex daily affairs of the community. Thus we must have decision-makers, many of them, organized within a procedural framework that is responsive to value inputs on the one hand, and adequate to the demands of an on-going, day-to-day decision process of enormous complexity on the other. Both of these are essential. Any machine can produce decisions. We are concerned with the quality of decisions. We must begin, then, to formalize our values for the guidance of decision-makers. We begin with fundamental law, the constitution. Here is the ultimate source of guidance to authoritative decision. Words are helpful here, hence the use of written documents. But they are not all. Attitudes, practices, and perspectives acquired through education and experience supplement the written word, creating in the most competent decision-makers an intuitive sense of continuing community expectations - an objective sense if their training for decision has been adequate.

68/Canadian Constitutional Law

The constitution contains the most general guidance to community expectations, and obviously the development of a full system of laws requires a vast and complex array of guiding principles and rules running through levels of decreasing generality right down to the specific decision in a concrete situation. For example, policies to implement community values are formally prescribed by legislatures, and then rules of decreasing generality may be formulated at various levels of the government administration, in the process of implementing those policies in the daily life of the community. Now where are we? The majority principle has spent its force, at least in terms of basic values, and its relevance is limited within the formal structure of representative institutions. But that force has been given expression in a complex of documents, principles, practices, statutes, procedures, and other features tl,at make up the public decision process. Certain aspects of the process are no longer amenable to the majority principle, while other aspects are amenable to it only in a structured way, at set times, through particular procedures, and within ultimate limits set by fundamental values. Thus community expectations can now be ascertained only through the formal structure. Gallup polls are out because the individual members of the community have entrusted their power of decision to those whose judgment they trust most. In any case, the totality of decisions required is too immense and complex for the plebiscite technique. Community expectations have been institutionalized. But something more has occurred. In order to provide continuity of basic values a high degree of formalization is required, and this means that a technique is necessary before ultimate decision on important questions can be arrived at. Thus there develops a body of decision-makers who evolve and perpetuate the necessary technique, without which basic community values could not be guaranteed against erosion. We call these men judges and put the full power of the community behind their decisions. Access to these central positions of community power is, needless to say, open only to those who have demonstrated beyond doubt a skill in the objective perception of community expectations, coupled with a capacity to subordinate subjective criteria to perceived community expectations. It is not just size and complexity that leads us to substitute this formal structure for the simple show of hands. In our more enlightened moments we sense our own infidelity to values as well as the fleeting nature of our individual lives in the flow of human experience. Our institutions offer some stability of value commitment; they also provide continuity through generations of men. There is no master plan, no ultimate Nirvana. But we do sense in some vague way the general direction in which we want to evolve as a people. The strange part is that this sense comes not from formal statements but from the expression of the artist, the composer, the poet, and the playwrite, from our experience of the sensed world. This is not so strange, really, for the formal statement is merely the reflection of our values, not the source. These basic values do not change from one generation to the next. On the contrary, they are reaffirmed and strengthened as the genuine pursuit of enlightenment proceeds. However, the circumstances of their application to the daily life of the community do change, so that we need clear guidance to enable us to distinguish between adaptive changes in the application of basic values necessitated by changing circumstances and attempts to change basic value commitments themselves. One major purpose of policy-oriented analysis is to provide such guidance. You may ask why we should bother with the notion at all. Why not just look for authority in the traditional way. There are two reasons. First, the old notion of authority is totally formal, thus ruling out any informal sources of guidance to genuine community expectations. And in some cases the informal sources may be the mosf valuable, as for example, where accepted

69 I Policy/ Logic/Constitutional Decision

custom has provided adequate guidance to conduct in a community without ever being formalized as part of 'the law.' Second, authority without more is a self-justifying source lacking the qualitative element which comes from founding the concept in some value system. It resorts to power as the ultimate basis of authority and thus fails to explain the qualitative differences between various social orders, for example, those of Canada and the USSR. Power cannot justify power. It simply exists. We know this, but we have difficulty formulating a notion of authority which adequately reflects the demand for legitimacy that has been persistent throughout the evolution of our political practices. We suggest that the notion of authority as an index of community expectations which have been given stability and continuity through an institutional hierarchy in which lines of communication ultimately terminate in the fundamental law of the community may provide the most fruitful model for inquiry. This gives us a concept close to the old concept of authority, but with a difference that is significant and which may lead to a clearer perception of the significance of constitutional law.

SOME BASIC ISSUES

3/What is the Canadian Constitution?

A THE SHARED GOALS OF CANADIAN SOCIETY

The constitution of a people is found in the attitudes and customs of its members and in the working practices of its institutions. Every society, however primitive, has a constitution, for consistent patterns of behaviour can be observed among its members, even over a p~riod of time spanning several generations. These consistent patterns reflect shared valued preferences directed toward common goals, however dimly perceived and unarticulated. Because man, the unit of society, is transient, while his sensed goals appear to him permanent in comparison to his own brief appearance on the world stage, he seeks to stabilize patterns of behaviour over successive generations. Among the devices for stabilizing values are constitutional documents and institutions of government. But they are only devices, which may or may not succeed in their objectives. Their formulation and creation are just part of the constitutive process whereby a society pursues shared goals. In a written constitution a people may try to articulate shared goals, that is, what they want to become, at least in their better moments. But the actual constitution of a people can be observed only in the actual patterns of behaviour of its members. If these fall short of expectations, change is indicated, and such change is sought through complex institutional machinery, of which a written constitution and the organs of government are parts. Altering the written constitution may or may not bring about the desired change. But whatever the case, to talk about a written document as' the constitution' is to mistake a device for its objective, with the attendant risk that disparities between shared goals and actual patterns of behaviour will be rationalized through some 'ideal-real' dichotomy instead of radional policies being formulated to remove those disparities. Choices are made daily by official decision-makers, by groups, and by individuals, that will have value impacts within society. For example, a private decision not to employ, not to rent a house to, not to admit to a group, a person of a particular race can, when consistently made in a large number of cases, lead to a social order which denies respect to members of that race, to say nothing of the attendant deprivation of well-being, wealth, and participation in public decision processes. Since it is the complex of value preferences conditioned in the individuals making such choices that determines the outcome, it is obvious that change, if sought, can occur only through techniques which effectively alter the val°ue programming of the individual, of the group, and of official decision-makers. Let us attempt to consider, without necessarily trying to define and prove, some of the shared goals of Canadian society which are established as constitutional norms. Some are so obvious that one might be surprised at their mention. For example, it might be considered established that there should be unrestricted movement of goods and persons within Canada. This shared goal is evident in section 121 of the British North America Act and in custom and practice. And while there is no particular written document as evidence, it might also be considered established that Canadians should contribute to world peace and security and to promote the social, cultural, and economic progress of the world community. And finally, there probably is a shared commit-

71/What is the Constitution?

ment in Canadian society to live by the rule of law and to promote human dignity. But all these established goals are at a high level of abstraction and, when broken down and analyzed empirically, do not always appear to be as established as we might expect, at least to the extent that the underlying human values are actually shared by all Canadians. Take some obvious articulations of other value preferences which might be said to exist as shared goals in Canadian society: equality of opportunity; freedom of speech; the right to counsel. The danger in looking at these as established constitutional norms has been that they tend to become slogans that lock men's minds into one single premise which is in reality a predetermined preference rather than a rational observation of the shared goals as they actually exist. Of course, there is nothing wrong in an individual having predetermined value preferences - indeed, this is of the very essence of human existence. But individual preferences must not be confused with or passed off as the shared goals of society (i.e., constitutional norms, fundamental rights and freedoms, etc.) unless and until the individual has systematically observed the values and institutions of that society and scientifically determined the basic group consensus. Whether he finds this to be akin to his own preferences, and therefore remains in the position from which he started, is not as important as the fact that he has started scientifically in examining the constitutive process. He has attempted to clarify shared goals. From there, he will be in a position to engage in further intellectual tasks: the identification of trends; the determination of conditioning factors; the projection of future probabilities; and the posing of viable policy alternatives. Within this framework, he will obtain a truer picture of the constitutive process in society and thus better equip himself for eventual participation in that process. The goal clarification task which this chapter poses and the organization of the subsequent chapters attempts to provide that framework. At this point it might be appropriate to pose a number of difficult questions concerning institutions and values in Canadian society with a view to assisting the reader to clarify for himself the shared goals of Canadians. There will not necessarily be any immediate answers to most of these questions, and this might well bespeak the present state of our constitutive process in Canada. To the extent that the reader can provide answers based on rational observation and systematic analysis (rather than by intuitive hunch), there will be some evidence of an understanding of the constitution in the broad sense. Hopefully, the subsequent progression through the balance of this book will contribute further to this understanding. An excellent exposition of the type of difficult question to which students of the constitution should address themselves was prepared by the government of Ontario in the theme papers for the 1967 Confederation of Tomorrow conference in Toronto. These questions are concerned with shared goals more in terms of institutions rather than in terms of values. But, because of their contemporary relevance and intellectual candour, we have chosen to reproduce them here in full, and then to supplement them with additional questions following. THE GOALS OF CANADIANS

The assessment which Canadians are now making of their country is a normal, indeed a healthy, development. Yet there is the danger that this national introspection could begin and end with a fractious discussion of means without sufficient attention to ends. This paper will attempt to identify the contemporary concerns that all Canadians share.

Few, if any, would disagree with the view that since 1867 the nature of Canada and the formula on which the country was founded as a national entity have changed almost beyond recognition. Not all of these changes have resulted from decisions taken by Canadians; indeed, many have resulted from decisions over which Canadians had little more than marginal control. The traumatic effects

72/Canadian Constitutional Law

of two world wars, the recurring phases of economic recession and depression, and the revolution in social mores are instances of developments which have had a profound impact on the lives of people everywhere. Yet there have also been changes made wholly or partly by Canadians which have affected both the kind of country Canada is today and the ways in which Canadians have chosen to run their affairs. Among the changes in this category, which have shaped both our external image and our internal institutions might be cited the progress in Canada's evolution to full independence, the shifts in the balance of power between the federal and the provincial governments, the increasing role of government in the economy, the changes in the ethnic composition of the population, and, more recently, the 'quiet revolution' in Quebec and reaction in the rest of Canada to this development. None of these changes has been experienced without strain on the fabric of Canadian society. Yet they have made Canadians both more sensitive to the nature of their country and more mature in their efforts to cope with an often bewildering variety of external and internal challenges._ This outline suggests the general framework in which Canada has developed, and one through which the shared concerns of Canadians might be viewed . What are some of the more urgent problems confronting the country in 1967, and what questions do these problems suggest in an attempt to see more clearly the goals of Canadians? The problems might broadly be divided into two categories, internal and external. l Internal Problems The kind of society Canadians might wish to have is determined by three general forces political, economic and social. It might be useful to look at each of these in turn . (A) Political: The crux of any federal system is the balance which is achieved between the opposing pulls of centralization and decentralization. In any federal system, and the Cana-

dian is no exception, the practical heart of the issue is: what is the necessary authority which must be granted to the central government if a viable federal state is to be preserved? Apart from the central government's present and exclusive jurisdiction over national defence, and apart from the generally recognized necessity that the central government must possess the fiscal and economic instruments to control the national economy, do Canadians seem prepared to grant any further ' controlling' powers to their central government? If so, is there a consensus as to the nature of these powers and their range? More specifically, and constitutionally speaking, can Canadians agree amongst themselves on the approach which should be taken towards the written portion of their constitution, i.e., the British North America Act? Do Canadians want to : (a) revise the present division of powers to take account of changing needs and circumstances? or (b) make more precise the written provisions of the constitution and thereby clarify the 'grey area' of divided jurisdiction? or (c) alter the constitution substantially by delegating powers, or by providing for special regional programs, a special status, or differing arrangements for one or more Provinces? These are political ends on which Canadians must pass judgment and seek a consensus if they are to make progress in their pursuit of shared goals. (B) Economic: Canada is confronted not only by the internal, lateral strain between national and regional interests, but also by the external, southward pull of continentalism. These twin forces underlie the debate on the economic future of Canada. Do Canadians wish to preserve their political sovereignty even though it might involve the risk of continuing to be the economically poorer cousins of their southern neighbour? Or do they wish to throw in their lot with the United States and,

73/What is the Constitution? at the possible cost of political independence, enjoy the economic fruits of a continental market? Or can Canadians have their cake and eat it too? These questions are as old as Canada itself and the answers to them perhaps lie in the testament that Canada, during its first century, has opted to live apart from the United States. While that part of the debate may have been settled, there are certain other and related fundamental issues that have not been determined. The most central of these is the question of differential regional growth as contrasted to the concept of approximate regional equality across Canada. And does an approximate regional equality mean equality in basic standards of public services, of per capita personal incomes, or of growth in population? Are Canadians prepared to continue sacrificing a measure of regional economic growth to ensure the maintenance of a minimum national standard of economic well-being? Are Canadians willing to pay this price, and can they afford to pay this price, to preserve their identity as Canadians? (c) Social: What are the chief factors contributing to the social and cultural goals of Canada? In what ways do Canadians participate in the 'revolution of rising expectations'? And how do these ways affect the admittedly elusive notion of the quality of Canadian life? Among the many factors which could be cited in this category, four might be singled out for special attention since they appear to be common to the interests of most Canadians. (a) Since nearly 65 per cent of the population now live in urban centres, most Canadians face the problems that modern urbanism implies. Population projections indicate that urbanization will continue to increase. More and more Canadians, therefore, will be confronted with the need to consider measures to mitigate (if they cannot solve absolutely) the worst effects of such problems as cramped, inadequate housing, air and water pollution, dense vehicle traffic, and impersonal human relationships.

(b) The influence of governments, be they federal, provincial or municipal, touches more and more Canadians every day. There is continued and growing pressure on governments to play a larger role in the life of all citizens in every region of the country. This development is in sharp contrast to the spirit of laissez-faire that prevailed in an earlier age. What impact is this new, positive phase of government having on individuals? Should Canadians be taking greater stock of the dimension of the public sector, in their society? Should they be asked to determine more precisely what role they want their governments to play in their lives? (c) In a technical and increasingly specialized society, the necessity of education - and sophisticated patterns of education - is becoming ever more apparent. What values do Canadians attach to education and are they prepared to pay the spiralling costs of universal education at all levels? Have Canadians been too much concerned with the need and demand for education and insufficiently concerned with establishing discriminating kinds of education to fit a wide variety of social and economic demands? (d) Finally, there is the fact of the existence within Canada of two predominant social or cultural communities, one English-speaking, the other French-speaking. The tensions created by this duality are familiar, although its attributes may not always be fully understood and appreciated. Does the existence of these two quite different communities detract from or add to the quality of Canadian life? If it detracts, what are the implications for Canada? If it adds, in what ways can its influence be made more evident to all Canadians? Are Canadians prepared to accommodate the pronounced distinctions of the two communities; and if so, to what degree? These are some of the shared social concerns of Canadians. Some consensus about their relative importance and contribution to Canadian society must be achieved since they, too, are aspects of the goals of Canadians.

74/Canadian Constitutional Law 2 External Problems

The kind and scope of relationships which Canada traditionally has had with the international community have reflected one aspect in particular of Canada's existence. For historical reasons, Canada's external concerns have focussed more on its English-speaking antecedents - on the Empire and the Commonwealth and on the United States - than on relationships with countries whose cultures seemed, to the majority of Canadians, to be more distant. The ' naturalness' of this bias should be emphasized both because it was a result of the major role of Britain in the early development of Canadian independence, and because it evolved in response to the continuing presence and influence of the United States. In recent years, however, these traditional focusses have changed. While there are undoubtedly many reasons for this change, the following are obvious. First, there has been a decline in British power and inevitably, a loosening of the relationship among the former dependencies of Britain. Second, there has been an increase in American power and an instinctive Canadian 'withdrawal' in the face of such power. Third, there has been forced on Canada the necessity to view the world more broadly and , in particular, to help less fortunate parts of the world . Finally, there has been the resurgence of the 'French fact' within Canada, with the practical result of making the country reflect its composite national image more clearly in its international relationships.

What are the implications of these developments? They can be summed up in the form of several questions which Canadians might address to themselves. (a) Can and should Canada seek to maintain a more distinctive identity vis-a-vis the United States? (b) Should Canada seek to achieve a greater measure of equilibrium between its traditional relationships with the Commonwealth and the U.S. and its new ties with the underdeveloped or' third' world? (c) Does Canada's dual cultural personality constitute a strength or a weakness in relation to the above two issues?

Summary These are some of the major concerns of Canadians in 196 7. Whether these concerns are of an external or internal nature is less important than the fact that they constitute issues with which all Canadians have to grapple. The solutions at which they arrive, either permanently or temporarily, depend in large measure on how Canadians see themselves, on how they define themselves concretely rather than abstractly. It is not what Canadians were or what they might have been that is important. It is what they are today and hope to be in the future, that is crucial. It is not whether Canadians are English or French or neither that is significant. The essential factor is the willingness and determination of Canadians to agree on the kind of country they want to have in common.

Additional questions to be considered might include the following: 1 How does Canada order the relationships between the judiciary and the legislatures, and to what extent is there a willingness to insulate judges from democratic-legislative control in the public decisions they make? 2 To what extent are Canadians prepared to alleviate regional economic disparities in the country, and is federalism the proper vehicle for this? 3 What practical and symbolic value is there in retaining the monarchial form of government in Canada? 4 To what extent can a unified Canadian federation accommodate the special aims and aspirations of the province of Quebec? 5 Is it desirable for the constitutive process to guarantee the individual economic rights such

75/What is the Constitution?

as the right to work, the right to social security, and the right to an adequate standard of living, and how can this best be done? 6 How far will the majority of Canadian people go to in prohibiting racial and religious discrimination against minority groups? 7 What about the integrity of the framework of the constitutive process itself? How can it best control the power of its institutions in terms of both their interrelationships and their control over the individual citizen? 8 What conditions can the constitutive process create which are most conducive to the full development of the individual personality? The above questions are only a sampling of the very hard issues which one will encounter in the study o( the Canadian constitutive process. The materials which appear in subsequent chapters will undoubtedly raise many more. The systematic, contextual approach which we have recommended demands that the reader grapple with these matters using all the tools that the organizational framework provides. Eventually, responsible Canadians will have to take a stand on these questions. It is our hope that the method by which this is achieved will involve something more than chance. B THE FORM OF THE CONSTITUTION It should be clear by now that we do not view the Canadian constitution as simply the BNA Act. While this document is central to any discussion of constitutional law, the obsession with it historically in Canada has, in our opinion, led to the neglect of important features of the real constitution in public decision-making, with a resulting distortion that has now become more than apparent in the constitutional crisis of recent years. Simply put, the Canadian constitution, as the fundamental shared goals of society, is a mixture of formal documents, common law principles, and unwritten conventions, practices, and attitudes. It embraces concepts such as the rule of law and the dignity of the individual as well as setting forth the forms and powers of institutionalized government. In real terms, it determines the status of various governments and their respective fields of jurisdiction, and attempts to order the relationships between governments. And it is the formalized embodiment of much of the political symbolism and history of the Canadian people. The classic statement as to the form of the Canadian constitution came from the pen of Dr MacGregor Dawson in 1947. It is still worthy of reproduction today. Dawson, The Government of Canada, chap. 4 (5th ed. Ward rev. 1970). ... It is a convenient but far from accurate statement to say that Canada has a written constitution, for the written British North America Act and its amendments tend to overshadow those other constitutional principles and understandings whose nature and significance are not so clearly and obviously indicated. The written document has been, of course, historically and legally indispensable in that it created the dominion by uniting the four original provinces, and it has since then formed the common tie which has

bound together the ten provinces which today compose the federation . The Act is thus undoubtedly of fundamental constitutional importance: it outlines in some detail certain parts of the central government; it gives the distribution of power between the dominion and the provinces ; it establishes Canada as officially bilingual ; and because of the peculiar situation existing in 1867, it also provided an initial government for both Ontario and Quebec. The British North America Act, however,

76/Canadian Constitutional Law

does not pretend to be a comprehensive document, such as, for example, the constitution of the United States; and there is thus little of the well-rounded, balanced description and enumeration of authorities and functions which so frequently characterize those written constitutions which aim to cover all the essentials of government within a limited number of carefully articulated sections. There are many vital things about the government of Canada (to say nothing of the provincial governments) which are not stated or even hinted at in the British North America Act, and even those matters which are dealt with in some detail are frequently given in such fashion that they become ambiguous and sometimes misleading. Thus any earnest literal-minded student who would endeavour to learn about Canadian government by nothing more than a conscientious examination of the Act would be shocked to discover that the Dominion is ruled as follows. The executive government and authority of Canada is vested in the Sovereign, who is apparently represented by a Governor General (Sections 9, I 0). The latter is assisted by a Council, which he chooses, and summons, and removes ( 11 ), and which advises him in his work (12 , 13). The Sovereign is Commander-in-Chief of all naval and military forces in Canada (I 5). The Governor General appoints the Speaker of the Senate (34), and virtually all the judges (96). He appoints all the members of one house of the legislature (24). The other legislative body, the House of Commons, is called together by the Governor (38), and this house can be dissolved by him at any time and a new election ordered (50) . All money bills must first be recommended by the Governor before they can be passed by parliament (54). The Governor may assent to legislation ; he may refuse his assent ; or he may reserve a bill for the consideration of the Queen-inCouncil in Great Britain ( 5 5 -5 7); and he may also disallow any provincial act or refuse his assent to any provincial bill reserved for the signification of his pleasure (55-57, 90). The

same general powers are exercisable by the provincial Lieutenant-Governors, who are appointed by the Governor General and are accountable to him (58 , 59, 90). This is a careful and literal rendering of those parts of the British North America Act which deal with the executive power and its relations to the legislature. Canada would thus appear to suffer under a dictatorship, the autocratic rule of one central figure, acting in the place of the Sovereign, who governs the dominion with little reference to or control by the people. The only popular element is apparently supplied by a House of Commons, which meets when the Governor desires, considers financial legislation which he recommends, and can be forced into an election whenever he deems it desirable. While it is true that the Governor is advised by his Council, the exercise of the above powers is vested in the Governor alone. This was, indeed, substantially the nature of the executive government before 1848, and this part of the written constitution still wears garments more than a century old. It can be properly understood and interpreted today only in the light of the changes which have occurred since then, and these changes are to be found in large measure in the unwritten constitution. The unwritten portion of the Canadian constitution thus includes such matters as the following, all (and more) of which are necessary to an understanding of the nature of the executive power: (I) that today on virtually all questions the Governor General does not act according to his own judgment or on his own responsibility , but on the advice of his Council ; (2) that this Council is not the Council mentioned in the British North America Act, but only a part of that Council acting in the name of the whole ; (3) that this active part of the Council is the Cabinet, a body not mentioned anywhere in the Act; ( 4) that this part of the Council is chosen by the Prime Minister; (5) that there is such a person as a Prime Minister: the most important political figure in Canada does not appear

77 /What is the Constitution? in any part of the written constitution; indeed,

he is mentioned only casually in one or two Canadian statutes; (6) that the Prime Minister and his Cabinet must always have the support of the House of Commons, and that all members of the Cabinet, including the Prime Minister, must have seats in that body or in the Senate; (7) that the Cabinet stays in office largely because of its steady support from a political party; (8) that most of the Cabinet members are heads of executive departments; (9) that almost all the above are reproduced in miniature in the provincial governments. A large number of major omissions thus deal with the executive power. This peculiarity can be traced to the British government via the founders of the federation, both of whom apparently believed that while the discretionary powers of the Governor General were in many matters clearly comprehended and controlled, they should nevertheless be treated in a statute as though they still existed in all their pristine vigour. 'We cannot limit or define the powers of the Crown in such respect,' said John A. Macdonald. 'See our Union Act. There is nothing in it about responsible government. It is a system which we have adopted. There is not even any resolution on our own journals as to the number of the executive. The Sovereign may have such number as she pleases.' It was, no doubt, a harmless idiosyncrasy, and in the result it proved to be highly beneficial; for a more explicit statement might conceivably have lessened the flexibility of the constitution and have caused greater friction and embarrassment in later years. On the other hand, both Australia and South Africa at a later date found it possible to be Jess reticent about one at least of these principles in their governments, and boldly stated that Ministers within three months of their appointment must find seats in parliament. Even these few illustrations make it abundantly clear that the unwritten constitution is every whit as important as the British North America Act, and, indeed, that much of the latter is transformed and made almost unre-

cognizable by the operation of the former, which in all these instances consists of established customs and usages which have grown up over a Jong period of years. But the unwritten constitution includes very much more than these conventions. The term also em braces principles of the common law as defined by the courts; British and Canadian acts of parliament and orders-in-council; judicial interpretations of the written constitution and other Jaws; the rules and privileges of parliament; and many other habitual and informal methods of government in addition to those noted above. All these, many of them (despite the misleading term 'unwritten') committed to writing, others in much more intangible and elusive form, exert a powerful influence on constitutional practice. The English common Jaw and many parts of the statutes and the historic constitutional documents of England came to Canada (excepting Quebec) by direct inheritance. It has already been indicated how the common law determined the powers of self-government in both settled and conquered colonies, and a subsequent chapter will indicate the way in which many of the executive powers in Canada are still affected by the delegation from the Crown in Great Britain of those powers which it has for many centuries possessed under the common law. The broad rule applied to the early colonies was that settled colonies (and to a small degree conquered colonies also) were possessed of as much of the general English law, common and statutory, as was conveniently applicable to the colonial conditions. The scope of the law so applied and the time when it was to be considered effective in the colony were decided either by the local courts or by formal enactment of the local legislative authorities. The peculiar position of Quebec, a colony, acquired by conquest, with an established and quite different legal system, Jed to the passage by the Imperial parliament of the Quebec Act, 1774, whereby the English criminal law was retained and the French

78/Canadian Constitutional Law

civil law formally confirmed, both being subject to change by local ordinance. Immediately following the separation of Upper and Lower Canada in 1791, Upper Canada (hitherto bound by the Quebec Act) seized the opportunity to adopt the English civil law, and the first act of the first session of its legislature declared that 'in all matters of controversy relative to property and civil rights resort shall be had to the Laws of England,' as of October 15, 1792. The second act of the same legislature introduced trial by jury. Nova Scotia, on the other hand, deeming herself a settled colony, and not being controlled by any special British statute like the Quebec Act, could and did allow the relevant English law to be selected and applied by the courts as the need arose, and she thus became possessed of the fundamental English liberties without any legislative action whatever. A legal commentator in Nova Scotia expressed the situation thus in I 83 2: 'While it seems doubtful whether any English laws (except those in which the Colonies are expressly named) have any validity here, until they have been adopted into our local jurisprudence by distinct legislation or general recognition and usage; yet, what are generally esteemed the most valuable portions of British law, have been transplanted into our land, - the Habeas Corpus - the freedom of the Press - the trial by Jury - the Representative Branch of legislature, - the viva voce examination of witnesses; in fine all those branches of public law which have drawn the eulogium of the wisest and the best of men upon the British constitution, we possess. While we are freed from many that have formed the subject of constant objection in the mother country.' It should further b_e noted that legislation in England after 177 4 did not apply to any colony unless it was expressly indicated in the English statute, and also that the colony was free to amend any part of the general law which had been declared to be the law of the colony. The power to define, enlarge, or restrict these fundamental constitutional rights

by legislation was later distributed between the dominion and the provinces by the British North America Act, and the situation has thereby become extremely complicated. No attempt has been made by either the dominion or the provinces to state the exact content of these rights in statutory form . They are still rights resting primarily on common law even though modified and defined in some particulars by legislation. For example, the provincial legislatures have enacted statutes regulating the administration of the jury system but not affecting substantially the right of trial by jury. The older provinces have enacted statutory provisions relating to habeas corpus in civil matters. Through their authority over 'property and civil rights' the provincial legislatures have some power to modify the inherited common law rights. It would appear, however, that some at least of these rights, such as freedom of discussion and, perhaps, freedom to disseminate religious views, cannot be essentially restricted by the provincial legislatures but are solely under the jurisdiction of the dominion parliament. Also, of course, the dominion parliament through its power to make the criminal law is able to define and limit personal rights. Thus the definitions of sedition and unlawful assembly in the Criminal Code define the outer limits of the rights of freedom of speech and assembly respectively. The Canadian constitution also includes a number of British statutes expressly referring to Canada or to the Empire. There are still in existence at least one hundred and thirty of these British statutes which apply to Canada; but many of them are not constitutional in nature, and many are today of no importance whatever, such as, for example, those dealing with the slave trade; the status of all of them will presumably be altered when the British North America Act is 'repatriated' to Canada. The Statute of Westminster, 1931, declared that certain British statutes were to be no longer in force in the dominions and that the latter have now the general power to enact legislation which may run contrary to the

79/What is the Constitution? provisions of an Imperial act. The surviving British statutes of major constitutional importance for Canada are thus very few indeed. They are, as of 1970, the British North America Act and its amendments (which may be conveniently allowed to remain in the separate category of the written constitution allotted to them above), the Colonial Laws Validity Act, and the Statute of Westminster, together with any acts which may have been passed at the express request of the Canadian government. The Declaration of Abdication Act, 1936, for example, is in the last group. Closely associated with the acts of the British parliament are those British orders-incouncil (passed under statutory authority) which form a small but by no means negligible part of the Canadian constitution. The ordersin-council admitting to the Dominion Rupert's Land and the North-West Territory, British Columbia, and Prince Edward Island (authorized by Section 146 of the British North America Act) fall into this category. There is another group which may be called 'constitutional statutes.' These occupy a midway position between the Briti£~ North America Act and a Canadian statute; for they are statutes of the Canadian parliament, yet, once enacted, cannot be amended by it. Thus, the Alberta and Saskatchewan acts, which created the original constitutions for those provinces, were Canadian statutes in origin but thenceforward could be amended only by their respective provincial legislatures. Acts of the dominion and provincial parliaments form in many instances other parts of the 'unwritten' constitution. These statutes are what the French call organic laws, namely, laws which are looked upon as constitutional, not because of some special or formal method of enactment (which is the same as that used for ordinary statutes) but by their content the fact that the subject material of these statutes is constitutional in its nature. Thus the Dominion Act of 187 5 which created the Supreme Court of Canada, while passed in the same way as any ordinary public law, is

by its purpose and content unmistakably a part of the constitution. The dominion acts which have admitted new provinces, altered boundaries, established the franchise, adjusted the provincial subsidies, created new government departments, provided for the trial of controverted elections, and a host of others are all organic laws. Inasmuch as large sections of the provincial constitutions are in the form of provincial statutes, these parts fall entirely in this category. The dominion and provincial governments may also from time to time pass orders- in -council concerning constitutional matters which will form further additions of a similar nature. An entirely different category of documents has so frequently been asserted in recent years to bt:, in effect, part of the constitution, that it should be referred to here. Treaties made with, and about, Indians, severally transferring territory, guaranteeing Indians certain hunting and fishing rights, or permitting them to cross the Canadian-American boundary without paying customs duties, have often on the Indians' behalf been claimed to take precedence over acts of parliament. The courts, however, have fairly consistently ruled otherwise, and an authority has written: 'Federal legislative competence with respect to Indians is unfettered by treaties - either Indian treaties or international treaties - or by the Royal Proclamation of 1763.' While no doubt sound constitutionally, that point is one of whose validity it is not easy to persuade Indians, who not unnaturally find some inconsistency in a de facto situation in which treaties affecting Indian rights can be superseded, while those transferring Indian lands to whites are not. Attention has already been directed to the function of the judiciary in creating part of the early unwritten constitution by its task of selecting those English laws and precedents which seemed applicable to the young colonies. 'Our courts of justice are of necessity obliged to exercise to a certain extent powers of a legislative description, in adopting or rejecting different parts of the English law,

SO/Canadian Constitutional Law

on the apparent applicability to our circumstances, or the reverse. But the activity of the courts in constitution-making did not abate after the early period of settlement, for they have continµed to interpret and amplify the formal constitution, the common law, statutes, orders-in-council, etc. The necessity of applying the distribution of dominion and provincial authority contained in the British North America Act has given the courts an especially prominent and effective place in moulding the Canadian unwritten constitution. Parliament provides another part of the unwritten constitution through its special privileges and its rules of order and procedure. The privileges of both the dominion and provincial legislatures, while they rest on statutory authority, nevertheless trace their descent from and are referred to those long established in England by the law and custom of parliament. The way in which the Canadian parliament transacts its busin~ss is controlled by its own rules (with the exception of a few clauses in the British North America Act dealing with a quorum, majority vote, election of a Speaker, and the origination of money votes). These rules are not in statutory form - indeed, many of them are merely precedents - and they can be modified at any time by each house as it sees fit. The rules deal with such matters as parliamentary committees, conduct of debates, general procedure, and, to some degree, the relations between the two houses. There are also the conventions of the constitution, the customs anJ usage which have supplemented, modified, and in some instances preceded many of the other parts. Those which affect the executive power as outlined in the British North America Act have already been described, and while these furnish the best illustrations of the vital role played by the conventions, there are many more, similar in nature and equally pervasive in their influence, which occur in other fields of government. A number of illustrations follow. The functioning of the legislature and the relations between the legislature and the exe-

cutive are to a marked degree determined by usage. The English and French languages are legal equals in parliament, for example, but English is the day-to-day working language. and French the language of translation; the use of the two languages has been altered considerably by simultaneous translation for spoken words, and a growing practice of publishing documents in both languages at the same time. The dependence of the Cabinet on legislative support, the conditions under which the Cabinet will resign, its responsibility to the House of Commons and not to the Senate, the insistence that all members of the Cabinet who hold portfolios must (with rare exceptions) sit in the House, many of the rules of parliamentary procedure and the interpretations of these rules (as mentioned above) are largely or entirely based on usage. The political parties furnish many other examples. Parties as such are all but unknown to federal law in Canada, though the Canada Elections Act recognizes the existence of opposing 'political interests' and minor parties have been given statutory recognition in order that their leaders could be paid a special stipend; but their activity is unceasing, and they reach into almost every part of the government and exert a decisive influence on very many activities of those who support and those who oppose the administration. The Prime Minister is the choice, not of the Governor General alone, but usually of a national party convention as well (a phenomenon discussed in a later chapter); all the members of the House with a.very few exceptions have been nominated and elected as a result of party support; almost all the senators have been appointed because of party services; and party affiliations colour the greatest part of the proceedings of both houses. The former conduct of Imperial relations, the accretion in dominion powers, and the eventual development of national status have taken place through conventional rather than legal means. The correspondence between the Governor General and the home government, the decisions on special issues and disputes,

81/What is the Constitution?

the assertions of power by the colonial or dominion authorities, the proceedings of Imperial Conferences, the refusal of dominion governments to accede to the wishes of Great Britain or their compliance therein - from these there was built up through the years a set of principles which governed inter-Imperial relations and dominion powers without the necessity of changing the letter of the law. Eventually, it was considered desirable to try to bring the law up to date and into greater accord with the recognized practices, and the Statute of Westminster was the result. But these matters never stand still, and the same process of gradual development by informal means immediately began again and has continued steadily since that time. To include certain general principles, ideas, and popularly held beliefs on matters of government as other parts of the unwritten constitution may place some strain upon what is usually included in the term. Yet these also form an essential element of the conventional constitution and they will most assuredly influence and often determine the way in which the forces of government will be exerted. The mere fact that a constitutional doctrine is not explicitly enunciated and formally committed to writing may affect the external appearance but not disturb the genuineness or force of that doctrine. Thus the broad tolerance which will permit differences of opinion and will disapprove of punitive or repressive measures against the dissenters is of as great constitutional significance and may conceivably under some circumstances afford an even more assured protection than an explicit guarantee of freedom of speech, written into a constitution, yet with no solid conviction behind it. 'As in the creation of law,' wrote Sir Ivor Jennings, 'the creation of a convention must be due to the reason of the thing, because it accords with the prevailing political philosophy,' and certain principles of this philosophy and certain observed conventions become virtually indistinguishable. Thus the chief restraint on a Canadian Cabinet which prevents it from endeavouring to eliminate all

Opposition activity and criticism is the prevalent popular belief (which the Cabinet itself shares, despite occasional evidence to the contrary) in fair play, free speech, and open criticism, and the Cabinet is therefore not disposed to use measures of suppression. Fundamental attitudes respecting the liberty of the citizen, whether those principles enjoy special protection in law or not, come under this category and derive an enhanced prestige and sanction from the conviction with which they are generally held. All these conventions, so varied in their manifestations and in their influence, obviously perform a most useful function in the government. The legal framework is bound by its very character to be stiff and unyielding, and changes in the law will come as a rule after much deliberation and many ponderous formalities. The conventions give life to the written words; they introduce a saving element of flexibility and enable the constitution to develop and adapt itself to demands and conditions which are of necessity continually changing. They vary widely, however, in authority. Some will represent merely acceptable procedures, while others are explicit and well-recognized practices; one may be trifled with on occasion or even, if necessary, ignored, while another may in its extreme form partake of the same rigidity as the written constitution itself. The number of members in the Canadian Cabinet, for example, though largely customary, can be readily altered; the representation of the different provinces in the Cabinet can be somewhat modified, but not abandoned; while the responsibility of the Cabinet to parliament is a custom more firmly entrenched than most of the British North America Act. As a rule, however, the conventions can be more readily submitted to the acid test of suitability to the purpose in hand, and they will respond more readily when their inadequacy is demonstrated. Written law and the conventions will normally complement one another, and each becomes necessary to the proper functioning of the other. To quote from the report of the 1929 Committee of the Imperial Conference:

82/Canadian Constitutional Law

'The association of constitutional conventions with law has long been familiar in the history of the British Commonwealth; it has been characteristic of political development both in the domestic government of these communities and in their relations with each other; it has permeated both executive and legislative power. It has provided a means of harmonizing relations where a purely legal solution of practical problems was impossible, would have impaired free development or would have failed to catch the spirit which gives life to institutions. Such conventions take their place among the constitutional principles and doctrines which are in practice regarded as binding and sacred whatever the powers of Parliament may in theory be.' Unlike the other parts of both the written and the unwritten constitution, conventions are rarely, if ever, legally enforceable. Parliament is itself a court in one sense, of course, and can sit in judgment on its own members and practices. But the regular courts recognize only the written constitution, the statute, the order-in-council, the common law, and the general scope of the privileges of parliament; the conventions must look for support elsewhere. Thus the letter of the law is always carefully observed even although the actual conventional practice may be far different. Many things, for example, are done in the name and through the agency of the Governor General, although the real power of decision rests with the Governor's advisers. In some matters, this real authority has by convention

been transferred a second time. When Canada, for example, took over the power to make her own treaties, the transaction continued to be conducted through the monarch, although his part has been long ago taken over by the British Cabinet, and the new change simply involved a substitution of the Canadian for the British ministers as the actual treaty-making authority. Conventions, being unable to rely on the law, must rest on their general acceptability and on the unfortunate consequences which are likely to ensue if they are disregarded. These consequences are political, or sometimes in the last resort legal, or even both. A Cabinet, for example, will resign (or will fall back on a general election) when it has lost the support of the House of Commons, but this immediate relinquishment of power is not made necessary by the operation of any section of the written constitution. A retention of office under these circumstances would, however, be politically suicidal, for it would violate a cherished convention and would almost certainly be punished at the next election. A single defeat, of course, does not necessarily mean that the House of Commons has withdrawn its support; but as A. V. Dicey pointed out long ago, a Cabinet which endeavoured to stay in office after unmistakable defeat would eventually run into legal difficulties as well, for, lacking a majority, it could not obtain parliamentary authorization for expenditures, and sooner or later the pressure on the Cabinet would become intolerable.

What are the advantages and disadvantages of having a constitution that is only partly written? Readers might compare the United States constitution with its all-embracing written provisions including a complete bill of rights in the form of constitutional amendments, with Great Britain's constitution which is largely unwritten in form . A meaningful comparison would entail considerably more than a mere laying of constitutional 'rules' side by side, and would involve a comprehensive study of the values and institutions in each country and the flow of shared goals emanating therefrom. Studies of this sort in the past have often resulted in a concluding skepticism about the social utility of specific written provisions in the constitution particularly for the protection of fundamental rights. Do you think that Dr Dawson's conception of the Canadian constitution is broad enough? Does it accord with the notion put forth in the first part of this chapter - that the constitution is comprised of the shared goals of Canadian society observed in the patterns of behaviour of the people?

4/The Initial Phases of Decision

THE INSTITUTIONAL FRAMEWORK

A WHO PARTICIPATES IN CONSTITUTIONAL DECISIONS The uninitiated observer in Canada might suggest that judges are the main decision-makers in constitutional problems, with the legislators (and their executives, administrative departments, and specialized boards, commissions, and agencies) as secondary participants insofar as their statutes or activities are usually the source of constitutional problems. This view denies not only the theoretical foundations of our government in Canada based on legislative sovereignty, but the practical relationships between the legislatures and the judiciary which our formal constitution prescribes and our informal practices have sanctioned. In the following cases, try to identify the main participants and their 'legal' relationships with each other in each of the constitutional decisions involved. Consider the participation of both established decision-makers ( e.g., judges, legisiators) and the more loosely constituted decisionmakers ( e.g., political parties, private associations). Also consider the extent to which each of these cases provides an authoritative precedent for the future decision-making activities of certain groups or institutions in our constitutional system. Finally, try to ascertain whether these cases make the distinctions between judicial, legislative, and executive power in the Canadian constitutional process any clearer.

Ottawa Valley Power Co. v H.E.P.C. (1937) O.R. 265, (1936) 4 D.L.R.594

Ontario High Court The plaintiffs, Ottawa Valley Power Company and J. G. Singer, brought this action against the Attorney-General of Ontario and The Hydro-Electric Power Commission of Ontario for a declaration inter alia, as to the invalidity of The Power Commission Act 1935, 25 Geo. V., c. 53 (Ont.). The action was tried by Rose CJHC, without a jury, at Toronto. ROSE CJHC : The plaintiff Ottawa Valley Power Company, hereinafter referred to as the Company, is a company incorporated by letters patent issued under the laws of the Province of Quebec and having its head office at Mon-

treal. It was incorporated under the name Chats Falls Power Company, but the name was changed by an Order in Council dated 22nd October, 1930, after some of the contracts that will be mentioned had been executed. The other plaintiff, Mr. Joseph George Singer, is a holder of bonds issued by the Company and secured by a deed of trust given to the Royal Trust Company as trustee. He sues on behalf of himself and all other holders of bonds of the Company. The Royal Trust Company has its head office at Montreal and has branch offices in Ontario and elsewhere in Canada and in England. The defendants are the Attorney-General of Ontario, The Hydro-Electric Power Commission of Ontario, hereinafter referred to

85/Initial Phases of Decision as the Commission, and The Royal Trust Company. The Commission is a corporation organized under The Power Commission Act, which is an Act first passed as ch. 15 of the Ontario Statutes of 1906, repealed, and with some changes re-enacted as ch. 19 of the Statutes of 1907, and now to be found in ch. 57 of the Revised Statutes of 1927 and in some later amendments. The plaintiffs claim as against all the defendants: (a) a declaration of the invalidity of ch. 53 of the Ontario Statutes of 1935, 25 Geo. v, intituled The Power Commission Act, 1935, or of sec. 2(d), whereby two contracts entered into between the Company and the Commission, one dated 15th February, 1930, and known as the 'Power Contract', and the other dated 24th February, 1931, and known as the 'Operating Contract', 'are hereby declared to be artd always to have been illegal, void and unenforceable as against The Hydro-Electric Power Commission of Ontario', and of sec. 3, by which it is enacted that 'No action or other proceeding shall be brought, maintained or proceeded with against the said Commission founded upon any contract by this Act declared to be void and unenforceable, or arising out of the performance or non-performance of any of the terms of the said contracts'; (b) a declaration that the two contracts mentioned are valid and binding and still in force; (c) a declaration that the arbitration provisions of the contracts are binding upon the Commission; and (d) a declaration that The Royal Trust Company as trustee and the holders of the bonds issued by the Company are entitled, notwithstanding the Act of 1935, to exercise the rights and privileges conferred upon them by the deed of trust. The Company claims as against the Commission payment of moneys due to the Company from the Commission under the 'Power Contract'. Also, if the Act of 1935 is intra vires, the Company claims alternatively (a) a declaration that the Company is no longer bound by either of two other agreements entered into between the Company and the Commission but not mentioned in the Act of

1935, the one called the 'Joint Development Agreement' and the other called the 'Transformer Agreement'; and that the Company is entitled without regard to those agreements to control and operate certain works and equipment on the Quebec side of the interprovincial boundary, the construction and operation of which were provided for in the agreements; and (b) a declaration that notwithstanding the Act, the Commission is liable under the 'Power Contract' until the day on which the Act was brought into force by proclamation, and a reference to take accounts and an order for payment. But counsel arranged that the consideration of this alternative claim should be postponed; and without any formal order the trial proceeded as a trial of the other claims that have been mentioned, no direction being given as to how or when the alternative claim should be tried if the necessity for trying it should arise. The notice required by sec. 32 of The Judicature Act, R.s.o. 1927, ch. 88, when the constitutional validity of an Act of the Legislature is to be brought in question, was given to the Attorney-General for Canada but he did not instruct counsel to appear at the trial. The Attorney-General of Ontario by his statement of defence took the position that he was not properly joined as a defendant, one of the reasons pleaded being that even if he could properly be joined in an action properly brought against the Commission (which he denies), he cannot properly be joined in this action, because the plaintiffs cannot properly bring or maintain this action against the Commission by reason of sec. 6 ( 4) of The Power Commission Act, R.s.o.1927, ch. 57; and without waiving any of his objections that the action was not maintainable as against him, he pleaded that the Act of 1935 was intra vires the Legislature of Ontario, and also that, apart from that Act, the contracts referred to in it always were illegal, void and unenforceable as declared in it. At the opening of the trial, counsel for the Attorney-

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General moved that as against the AttorneyGeneral the action be dismissed as not maintainable. But at the same time he stated his intention to exercise the right to be heard, and, in effect, he said that he was not setting up any objection that notice had not been given to the Attorney-General otherwise than by the service of the statement of claim, but that he was content to be treated as if he had come upon the notice required by The Judicature Act. He did not suggest that at that stage of the proceedings judgment should be given upon his motion. Accordingly judgment was reserved.

Ontario Court of Appeal: Latchford CJA, Riddell, Middleton, Masten, and Fisher JJA. Appeal by plaintiffs from the judgment of Rose, c .J.H.c., I1936] 3 D.L.R. 468, dismissing an action by bondholders of a power company for validation of certain contracts. Reversed. W. N. Tilley KC and C. F. H. Carson for plaintiffs, appellants; R. S. Robertson KC for Hydro-Electric Com'n; H . C. F. Mockridge for Royal Trust Co.; I. A. Humphries KC and L. R. MacTavish for A.-G . Ont. LATCHFORD CJA (dissenting): On the threshold of this appeal lies the enactment found in R.s.o. l 927, c. 57, entitled 'The Power Commission Act,' and, as a sub-head, 'An Act respecting The Hydro Electric Power Commission of Ontario.' As early as 1906, by c. 15, the Commission was constituted a corporation and given certain powers. It was to be composed of three persons, one of whom should be, and two of whom might be, members of the Executive Council of Ontario. Section 2 l of the original Act of 1906, reads as follows : 'No action shall be brought against the Commission or against any member thereof for anything done or omitted in the exercise of his office without the consent of the Attorney-General for Ontario.'

This was repeated in the Revision of l 9 l 4, c. 39, but in the later revision now in force a slight change was made in its form. Theimmunity conferred or intended to be conferred by the Legislature now appears as s-s. 4 of s. 6 of R.s.o. 1927, c. 57, the statute now in force: '6(4) Without the consent of the AttorneyGeneral no action shall be brought against the Commission or against any member thereof for anything done or omitted in the exercise of his office.' This action is brought against the Commission and also against the Attorney-General of Ontario who is one of the three persons constituting the Commission. No consent that the action should be brought against either the Commission or the Attorney-General as a member of the Commission has been given by the Attorney-General of Ontario. There has been some argument addressed to this Court that the words 'for anything done or omitted in the exercise of his office,' apply to the action brought against the Commission. It is clear to me that the provision is incapable of any such meaning. The purpose of the section is certainly that without the consent mentioned no action shall be brought in the first place against the Commission as such. Then immunity as to the Commissioners is restricted to what they improperly do or omit to do in their official capacity as members of the Commission. To other acts or omissions, the protection of the enactment was not intended to apply and does not apply. A slight reconstruction of the enactment will render this matter plain: WITHOUT THE CONSENT OF THE AttorneyGeneral no action shall be brought against ( l) The Commission; or, (2) Any member of the Commission for anything done or omitted in the exercise of his office. The latter words apply to the Commissioners and only to the acts or omissions as Commissioners. They have no application to a body which is genderless and lacking any attribute

87 /Initial Phases of Decision of necessarily entitling it to have the possessory pronoun 'his' applied to it. ... I A I bondholder, in my opinion, in the face of the immunity granted by the section quoted, cannot here attack either the Commission or any person forming the directorate of the Commission, whether Attorney-General or not, without a consent which has not been given. On this somewhat narrow ground I consider the appeal fails and that it should be dismissed. FISHER JA: This is an appeal by the plaintiffs from the judgment of Rose, c .J.H.C., [ 1936) 3 D.L.R.468, and concerns the validity of certain legislation and of contracts entered into between the Hydro Commission and certain companies. It is to be observed that whatever may be the result of this litigation - involving as it does the validity of provincial legislation and millions of dollars - it is an action of vast importance to the Province and to the financial and commercial world. The evidence is largely documentary and as many of the facts are clearly set forth in the elaborate and exhaustive reasons of the trial Judge, repetition is not necessary ... In the course of the hydro development the Commission entered into several contracts with power companies between the years 1926 and 19 3 l. These contracts are briefly referred to as (a), (b), (c), (d), and (e) of s. 2, 1935 (Ont.), c. 53. That Act was assented to April 18, 1935, and under s. 2 it was enacted that, 'The said contracts, as hereinafter set forth, are hereby declared to be and always to have been illegal, void and unenforceable as against The Hydro-Electric Power Commission of Ontario, such contracts being as follows.' By s. 3 of the same Act it was provided that 'No action or other proceeding shall be brought, maintained or proceeded with against the said Commission founded upon any contract by this Act declared to be void and unenforceable, or arising out of the performance or

non-performance of any of the terms of the said contracts.' The plaintiffs' contracts referred to in s. 2 (d) having been declared illegal, and void and unenforceable against the Commission, this action followed . I cannot find in the pleadings, as a reason for cancellation of the contracts, any charges of fraud, any complaints that the parties were not living up to the terms of the contracts or that any difficulty had arisen in connection with the construction and meaning thereof. Some of the reasons for cancellation are found in the preamble of the 1935 Act. The Preamble recites: (a) That the Commission was created to serve the interests of the people of Ontario and to supply power etc. to the municipalities. (b) That it was not the intention of the Legislature that the Commission was to have authority to impose financial or other obligations upon the municipal corporations without their consent. (c) That in the year 1926 and subsequently the Commission and certain corporations did without the consent of the municipalities and contrary to the rights of the municipalities under certain contracts and contrary to the Power Commission Act and without regard to the provisions of the B.N.A. Act purport to obligate the Commission by contracts to purchase, over long periods of time large quantities of power generated without the Province of Ontario regardless of whether or not the said power was desired or could be used by the said municipalities; and whereas 'the said Commission has made payments of large sums of money under the said alleged contracts and has illegally charged the cost of the same against certain municipal corporations, and has thereby so increased the cost of power as to threaten industry within the Province and to cause unemployment .. .' Coming now to s. 6(4); that section was aimed at protecting the Commission and its members when acting in a public capacity

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and in my view must be read in conjunction with the whole of the Power Commission Act. The undertaking was a new one and in the development of the utility it was only natural to expect that the Commission and the members thereof would meet with many difficulties and problems and that errors, mistakes and wrongs might be made and done, and also embarrassing actions of one sort or another might be commenced by irresponsible persons and by opposing interests, or those acting for them, to thwart the undertaking, and it was as to such things as these that this section was passed to prevent actions, that might hamper and harrass the Commission in the discharge of its duty, without first obtaining the consent of the Attorney-General. The respondent's contention is that the words 'no action' must be given a wide and far-reaching meaning so as to exclude all actions of any kind, and not actions confined solely against the Commission and its mem bers 'for anything done or omitted to be done in the exercise of his office.' I am unable to so construe the real meaning of that section. The framers of the Act, it seems to me, had one object in view, and that was to protect the Commission and its members from actions of tort, and for some of the other reasons to which I have made reference. The intention of the Act was to protect the Commission and its members, in the development of the Hydro utility, from being hindered or embarrassed by frivolous and vexatious litigation, or for mistakes made for wrongs done. The Act was, in my view, never intended to exclude actions for a debt created and owing by the Commission, and about which there was no dispute, without the consent of the Attorney-General being first obtained, and also to exclude actions based upon contracts entered into ostensibly for the development of the Hydro undertaking. Surely, the section was never intended to mean that if a contract was entered into, and there was no dispute, that the other party was to be bound, but the Commission was

not. If that is the meaning of s. 6(4) it would follow that one party to a contract that had for its object the development of a utility, might expend millions of dollars, and after that had been done the Commission, without giving any reason, could refuse to complete its part of the contract, and plead as a defence that the entering into these contracts, were 'acts or omissions' referred to ins. 6(4) and therefore you cannot sue the Commission without first obtaining the consent of the Attorney-General. Section 6 ( 4) does not say that no other kind of an action can be commenced. If that is the true meaning of the section, then the Commission could infringe the Copyright Act, R.s.c. 1927, c. 32- which is exclusively within the jurisdiction of the Dominion - and in this case no action could be brought - notwithstanding the terms of the contract - to determine whether the arbitration clause is effective ... Our next inquiry is to determine whether or nots. 6( 4) is ultra vires Province of Ontario, and in the view I take· that question can be conveniently considered and determined along with ss. 2 and 3 of the I 935 Act. Ifs. 6( 4) is ultra vires it follows that ss. 2 and 3, which also have to do with contractual rights, are ultra vires. Section 2 declared the contracts invalid and s. 3 enacted that no action could be brought to enforce them. I think it must be assumed that the Legislature in enacting legislation as drastic as the Act of 1935, acted under a high sense of duty and in the belief that it was for the protection of the financial future of the great hydro undertaking which was established for the benefit of the municipalities and the whole people of the Province. In one of the reasons set out in the preamble of the Act (supra) specific reference is made to the fact that as a result of these contracts, the increased cost of power 'threatens industry within the Province.' But as I have already stated the duty of this Court is confined solely to a consideration of the constitutional validity of the legislation. I have

89/Initial Phases of Decision already said the contract and the joint development agreement which had to do with works constructed in the inter-provincial stream and having been duly authorized by all parties interested, and acted upon for years, that civil rights had been acquired in the Province of Quebec and if that conclusion is the right one, the question is had the Legislature power to declare these contracts void under s. 2 and by s. 3 exclude all parties from applying to the Courts of this Province for any relief that they may be found entitled? The answer must be that as s. 2 derogates from civil rights that are not exclusively within Ontario it is ultra vires and that conclusion is clearly supported by the law laid down in Royal Bank v. The King (I 913), 9 D. L.R. 337, and frequently referred to as the Alberta case. In dealing withs. 3 (and in this connection, s. 6(4) may be considered) it will be observed that that section is more far reaching than s. 6( 4 ), and that if that section is ultra vires it would follow that s. 3 is also ultra vires. Section 3 must be treated as a section controlling actions having to do exclusively with contractual rights, and if the action is within the right of the Province it is entitled to operate, but in my opinion it is ultra vires when it includes actions over which the Province has no control. It has always been recognized that one of the invaluable rights of every subject of the King is an appeal to the King, and the right to seek justice in the King's Court. There is another ground upon which the validity of ss. 2 and 3 may be attacked . Those sections in fact limit the jurisdiction of the Supreme Court of Ontario. The limitation being a particular and not a general limitation does not make any difference. The limitation is there and whether particular or general is none the less a limitation. Being a limitation its effect is to take away from the Supreme Court one at least of the essential characteristics of a Superior Court. The B. N .A. Act does not, it is true, guarantee the continued existence of the Superior Court in each of the Provinces. But it is quite clear that both ss. 96

and 127 are founded upon an unwritten guarantee of the continuance of the Superior Courts in the Provinces. To alter the essential character of the Supreme Court as a Superior Court in any vital particular, is contrary to the spirit of the B. N.A. Act and tantamount to an unauthorized repeal of that statute in that respect. To do so therefore is beyond the power of any Legislature which is the creature of that statute ... I would allow the appeal and direct judgment to be entered for the plaintiff with costs here and below. If there is any difficulty about the amount due a reference may be had to the Local Master. RIDDELL JA (dissenting): ... Obviously the only interest the plaintiffs have in the litigation is the enforcement of their alleged contracts with the Hydro Commission; and whatever the form, the substance of the action is the enforcement of their claims against that Commission; the usual method would be to sue on the contracts; and when the Commission, as it necessarily would, set up the legislation, then to claim that the negativing legislation was invalid. The method adopted here is somewhat different - the legislation, it is attempted to get rid of, and then claim relief against the Commission, without the hampering chain of the obnoxious legislation. I consider this essentially an action against the Commission based upon its derelection of duty under the contracts referred to. By the Power Commission Act, R.S.O. 1927, c. 57, s. 6(4) 'Without the consent of the Attorney-General, no action shall be brought against the Commission or against any member thereof for anything done or omitted in the exercise of his office.' Applying without deciding its effect, the contention of Mr. Tilley that only those actions against the Commission come within this subsection which are based upon an act or omission of the Commission in the exercise of its office, here the action is based upon the omission

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of Commission in the exercise of its office in not carrying out the contracts with the plaintiffs. Consequently in any view, the consent of the Attorney-General is necessary before an action could be brought ... There is nothing new or strange in a consent being necessary before action brought, I Hals., pp. 22-3, s. 31: - 'In certain cases it is necessary for a plaintiff to obtain the consent of a public officer or body before he can maintain his action;' and this is not by analogy to the necessity of the Attorney-General's consent to a petition of right, but a legislative provision. We had decided that the Legislature of the Province of Ontario has the power to prevent certain actions being brought at all. In Smith v. London ( 1909), 20 O.L.R. 133, was considered the validity of legislation whereby it was 'declared and enacted that the validity of' a certain 'contract .. . shall not be open to question on any ground whatever in any Court .. .' This was held to be within provincial competence. And , assuredly, if the Legislature can prevent an action being brought at all, it can prevent an action being brought unless a stated consent is given. As was said in the Court of Appeal in Florence Mining Co. v. Cobalt Lake Mining Co. (1900), 18 O.L.R. 275 , at p. 292: - 'The right to bring an action is a civil right'; and, of course, the right to bring an action in an Ontario Court is a 'Civil Right in the Province,' which by the B.N.A. Act, 1867, s. 92 ( 13) is within the jurisdiction, legislatively, of the Province. I do not think it necessary to consider the validity and effect (if any) of the Power Commission Act, 1935 (Ont.), c. 53 , s. 3, or the constitution of the case. I think that the appeal fails and must be dismissed with costs. MIDDLETON JA : I have had the privilege of reading the reasons for judgment of Masten, J.A, and I desire to express my entire concurrence with them .

MASTEN JA: ... I proceed to considers. 6(4) of the Power Commission Act I st As to its construction, and 2nd As to whether it is ultra vires in respect to its application to the circumstances of this case. The words of the section, (R.s.o. 1927, c. 57, s. 6(4)), read as follows : ' Without the consent of the Attorney-General, no action shall be brought against the Commission or against any member thereof for anything done or omitted in the exercise of his office.' Do the words 'for anything done, etc.' relate to and qualify the words 'against the Commission?' If they do then I think that the section does not here apply, and has here no operation because the defendant Commission is a corporation charged by its Act of Incorporation with certain specific statutory duties as well as with public duties of a general nature and for that purpose is endowed with certain powers and authorities of a public nature. If the protection of the statute applies only to acts or omissions by the Commission in the exercise of its office, then this section requiring the consent of the Attorney-General has no application because the contracts in question were not acts done by the Commission in the direct execution of the Power Commission Act or in the discharge of a public duty or the exercise of a public authority (Bradford Corp. v. Myers, [1916) I A.C. 242). The Commission was under no obligation, statutory or otherwise, to enter into the contracts in question. The contracts are private contracts voluntarily entered into between the two corporations. For this reason it becomes essential to construe s. 6 ( 4 ). Mr. Robertson for the respondent relies on the general rule of construction that a qualifying clause is restricted in its application to its immediate antecedent, and he points out that this construction is emphasized by the use of the word 'his' in the clause 'for anything

11/Initial Phases of Decision done or omitted in the exercise of his office.' Mr. Tilley for the appellant points out that the rule of construction invoked by the re spondent is a prima facie rule only and refers to Re Stronach, [ 1928) 3 D.L.R. 216, 49 Can. c .c. 336, 61 O.L. R. 636 . He also argues that the section is ambiguous and that being restrictive of the common law right of every member of the public to assert his claims in the Courts, it is to be narrowly construed and the common law right limited so far only as the statute in plain terms so enacts. He also suggests that there is no reason for differentiating the acts of the Commissioners from those of the Commission acting as a corporate body and asks why should a more limited protection be afforded to the Commissioners personally than is afforded to the corporation? He also points to the inconsistency between s. 53 of the Power Commission Act and this subsection if it is construed in the manner contended for by the respondent and he asks how could this contract be valid and binding on both parties if one party is debarred from any action to enforce it? On the other hand by the construction contended for by the appellant, effect can be given to both sections of the Act . After careful consideration of all the several arguments pro and con, I reach the conclusion that the words ' for anything done or omitted in the exercise of his office' refer to the acts of the Commission as well as to acts of its members. But further, on the ground that it is ultra vires the Ontario Legislature, I think the section is ineffective to preclude this Court from adjudicating on the plaintiffs' claim. The reason on which my view is founded is that which was argued but not decided in Electrical Development Co. v. A.-G. Ont. (1919), 47 D.L.R. I 0. At p. 14 the point so submitted is stated by Viscount Finlay in the following words: ' In the respondents' case on the present appeal it is stated that the sole question in

issue on the appeal, so far as the Hydro Electric Power Commission is concerned, is whether the provision that no action shall be brought against the commission without the consent of the Attorney-General is intra vires of the Ontario legislature. 'The appellants argued that, if this provision on its true construction applied to actions in which the right of the commission to do the acts complained of is challenged on the ground that they are ultra vires of the commission, such an enactment would itself be ultra vires of the provincial legislature. The appellants contended that it is essential to the working of the constitution of the Dominion under the B.N.A. Act that the provincial courts should have power in the first instance, and subject, of course, to appeal, to determine whether any particular act which is challenged could be competently authorized by the Ontario legislature. 'The appellants further contended that, properly understood, the section relied on does not apply to an action bringing in question the validity of any proceedings of the commission as ultra vires and beyond the scope of its authority, but only to actions for acts done and omitted to be done in the exercise of the powers entrusted to the commission.' The argument of Sir John Simon in reported in these words: - ' The consent of the AttorneyGeneral was not necessary under R.s.o. 1914, c. 39, s. 16, because the action was not for anything done or omitted in the exercise of the office of the Commission. Further the Ontario Legislature was not competent to prevent the appellants from challenging the validity of the Ontario Niagara Development Act, 1916 ; that Act was ultra vires the provincial Legislature having regard to the British North America Act, 1867, s. 91, heads 10, 29, and s. 92, heads l 0, 13.' In his reply Sir John Simon used the following words : - 'Section 16 is ultra vires if it is to be construed as applying to an action whereby the validity of the statute under s. 92 of the British North America Act is challenged. It is

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of the essence of the Canadian constitution that the determination of the legislative powers of the Dominion and of provinces respectively should not be withdrawn from the judiciary.' The conclusion at which I have arrived is as follows: - ( l) The general rule is clear that the administration of justice being by the B.N.A. Act committed to the Provinces the jurisdiction of the several Courts set up by the Legislature to administer justice is that which is prescribed by the Legislature. Generally speaking any statute passed by a Provincial Legislature limiting the jurisdiction of the Provincial Court is binding on it. (2) But to that general rule I think there is this exception, viz., that the Legislature cannot destroy, usurp, or derogate from substantive rights over which it has by the Canadian Constitution no jurisdiction and then protect its action in that regard by enacting that no action can be brought in the Courts of the Province to inquire into the validity of its legislation, thus indirectly destroying the division of powers set forth in the B.N.A. Act . In other words it cannot by such indirect means destroy the Constitution under which it was created and now exists. In the words of Sir John Simon it is of the essence of the 'Canadian Constitution that the determination of the legislative powers of the Dominion and of the provinces respectively ought not to be withdrawn from the judiciary.' If the power to adjudicate upon the validity of such an Act is withdrawn from the jurisdiction of the Courts the result would be that unless and until such Act of the Provincial Legislature is disallowed by Dominion authority it is the law of the Province and governs the rights and liabilities of the citizens of that Province. If, for example, the Province of Alberta were to invade the field of interest and of banking by declaring that no incorporated bank should charge more than 3% interest on any money loaned by it, grave disruption of the commercial and financial world of Canada might well result, pending

any declaration by the Dominion authority disallowing the Act. This exception to the general rule applies in the present case because when the AttorneyGeneral declined to give his consent he enabled the Power Commission to deny the right of the plaintiff to inquire whether s. 2 of c. 53 of the Ontario Statutes of 1935 is or is not ultra vires. Consequently if the consent of the Attorney-General is essential, this action must fail. It will be convenient at this point to quote the provisions of ss. 2 and 3 of the Act of 1935 as follows: ' 2. The said contracts, as hereinafter set forth, are hereby declared to be and always to have been illegal, void and unenforceable as against The Hydro-Electric Power Commission of Ontario, such contracts being as follows .. . '(d) Between the said Commission and Chats Falls Power Company, also known as Ottawa Valley Power Company, one contract dated the I 5th day of February, 1930, and one contract dated the 24th day of February, I 931, known respectively as the "Power Contract" and the "Operating Contract," set out in Schedule "o" hereto ... '3. No action or other proceeding shall be brought, maintained or proceeded with against the said Commission founded upon any contract by this Act declared to be void and unenforceable, or arising out of the performance or non-performance of any of the terms of the said contracts.' If I am right in the reasons stated when discussing the subject of ultra vires in relation to s. 6(4) of the Power Commission Act, then the same reasoning applies to s. 3 of the Act of I 935, and need not be repeated . In the result I reach the conclusion that neither s. 6 ( 4) nor s. 3 of the Act of I 935 is effective to preclude this Court from adjudicating on the question whether s. 2 of the Act of 1935 is or is not ultra vires the Ontario Legislature ... The solution of the problems presented on

93/Initial Phases of Decision this appeal have proved by no means easy, but it seems to me that, throughout, the principle which should guide the Court is that interference with the sanctity of contracts is not lightly to be entertained and sanctioned, consequently that notwithstanding the plenary powers vested in the Provincial Legislature when acting within the ambit of its jurisdic-

tion yet nevertheless, unless a statute which violates the sanctity of contract falls clearly within that ambit it ought not to be supported. For these reasons 1 would allow the appeal and enter judgment of the plaintiff against the Hydro Commission for the amount claimed, with costs here and below.

If our theory of government in Canada is truly one of legislative sovereignty, why wasn't the Ontario government able to immunize its Crown corporation, the H.E.P.c., from judicial review? Would the result have been any different had the rights in the contracts referred to in section 2 ( d) of the Ontario Act of 1935 been specifically held to be 'civil rights within the province' of Ontario, and not within any other province? See, generally, 'Note,' 19 Can. Bar Rev. 45 (1941). Could the Ontario government expropriate newly formed islands in the Ottawa River (forming the boundary between Quebec and Ontario) and then enact legislation prohibiting any appeal to a court by an adjoining landowner in Ontario claiming compensation for lands which he alleges he acquired through accretion or possessory title? Would the position be the same for a landowner in Quebec? Could the federal government validly immunize its crown entity, Polymer corporation, from judicial review in respect of its contracts by enacting a section similar to section 6(4) of the Ontario Act of 1935? It is interesting to note that immediately following the handing down of the judgments in the above case, the Ontario legislature passed special legislation (Stats. Ont. l 937, c. 58) which, after reciting that it was expedient that the meaning of sub-section 4 of section 6 of the Power Commission Act should be further declared, enacted: The meaning and effect of section 6(4) of the Power Commission Act is and always has been that without the consent of the Attorney-General no action of any kind whatsoever shall be brought against the Hydro-Electric Power Commission of Ontario, and that without the consent of the Attorney-General no action of any kind whatsoever shall be brought against any member of the Hydro-Electric Power Commission of Ontario for anything done or omitted by him in the exercise of his office. The enactment became of some relevance in Beauharnois Light, Heat & Power Co. v H.E.P.C., [1937) o.R. 796, [l 937) 3 D.L.R. 458, a case with facts not dissimilar to those of the Ottawa Valley case. The enactment came into force after the trial judgment but before the appeal in Beauharnois, so Middleton JA, for the court, held that since the rights of the parties had already passed into judgment, the legislation had no effect in the case. However, his Lordship went on to state: The intention of the Legislature is embodied in the formal Act of Parliament and can only be gathered from the words used in that enactment. The Legislature, in matters within its competence, is unquestionably supreme, but it falls to the Courts to determine the meaning of the language used. If the Courts do not determine in accordance with the true intention of the Legislature, the Legislature cannot arrogate to itself the jurisdiction of a further appellate Court and

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enact that the language used in its earlier enactment means something other than the Court has determined. It can, if it so pleases, use other language expressing its meaning more clearly. It transcends its true function when it undertakes to say that the language used has a different meaning and effect to that given it by the Courts, and that it always has meant something other than the Courts have declared it to mean. Very plainly is this so when, as in this case, the declaratory Act was not passed until after the original Act had been construed, and judgment pronounced. For these reasons the subsequent legislation has no effect upon this case ... Notwithstanding the lucidity of the above position stated by Middleton JA, there is some case law which appears to be in conflict with his position. See Mathew v Guardian Assurance Co. (1918), 58 s.c.R. 47, Gold Seal Ltd. v Dominion Express Co. and A.-G. Alberta (1921), 62 s.c.R . 424, and particularly Western Minerals Ltd. v Gaumont and A.-G. Alberta, [1953) 1 s.c.R. 345 in which Mr Justice Cartwright expressed grave doubts about following the Beauharnois case in so far as it negatived the power of the legislature to declare the law retrospectively or otherwise on matters within its proper constitutional jurisdiction. However, the notion of legislative supremacy in Canada is by no means absolute: see, for example, B.C. Power Corporation Ltd. v Royal Trust Company, [ 1962) s.c.R. 642, 34 D.L.R. (2d) 196 (reproduced in chapter 5, at p. 169). The jurisdiction of the Supreme Court of Canada to act as a decision-maker is both appellate and original, the former through ordinary appeals from the provincial courts of appeal or the Exchequer Court, the latter through a unique form of advisory opinion by way of direct reference of specific constitutional questions from the federal government to the court under section 55 of the Supreme Court Act, R.s.c. 1952, c. 259. While the whole question of the reference power will be considered in detail in chapter 8: Governmental Practices, it is useful at this point to examine the leading case legitimizing the reference power, as an example of the patterns of interaction between the legislature, the executive, and judiciary contemplated by the BNA Act and permitted through constitutional precedent and practice. A.-G. Ontario v A.-G. Canada (1912] A.C. 571, (1912), 3 D.L.R. 509

Judicial Committee of the Privy Council: Earl Loreburn LC, Lord Macnaghten, Lord Atkinson, Lord Shaw, and Lord Robson This was an appeal from a judgment of the Supreme Court of Canada (Justices Girouard and Idington dissenting) of October 11, 1910. Sir Robert Finlay KC, Wallace Nesbitt KC of the Canadian Bar), A. Geoffrion KC (of the Canadian Bar), and Geoffrey Lawrence, for the appellants. E.W. Newcombe KC (DeputyMinister of Justice for Canada), and A. W. Atwater KC for the Dominion of Canada.

The suit raised an important question namely, whether the Governor-General of Canada has power under the Constitution of the Dominion to frame and refer to the Supreme Court for their opinion questions as to the Constitutional powers of the Provinces, the effect of Provincial statutes, and other matters of importance. The Governor-General in Council, purporting to act under section 60 of the Supreme Court Act, 1906, referred to the Supreme Court certain questions as to the powers inter se of the Canadian Parliament and the Legislatures of the Provinces to incorporate

95/Initial Phases of Decision companies, and as to the effect of such incorporation. The questions thus propounded were framed to obtain the opinion of the Supreme Court as to whether companies incorporated under Provincial statutes have power or capacity to do business outside the territorial limits of the incorporating Province. They affect the standing of a great number of companies incorporated by the Provinces since the Confederation in 186 7, and now carrying on business in two or more Provinces, and they may also concern the legislative control over companies incorporated in the several colonies before their entry into Confederation. Although the questions are of such vital im portance to the Provinces, they complain they were not consulted in the framing of them. Every previous reference under section 60 of the Supreme Court Act has been made with the consent of the Provinces concerned, but the question of jurisdiction has never before been directly raised or decided. At the same time the Governor-General in Council re-. ferred to the Supreme Court certain other questions as to the competency of the Provincial Legislature of British Columbia to authorize the Government of that Province to grant exclusive fishery rights in certain inland waters and parts of the sea, and as to the validity and effect of the Insurance Act, 1910, passed by the Parliament of Canada. The Attorneys-General for seven of the Canadian Provinces protested against the jurisdiction of the Supreme Court to entertain any of those references, and applied that they should be struck out. They contended that the British North America Act did not authorize the Parliament of Canada to enact section 60 of the Supreme Court Act, which, they submitted, was therefore ultra vires and was a direct interference with the exclusive power bestowed on the Provincial Legislatures by the British North America Act. The Dominion, on the other hand, contended that no such conflict or difficulty arose. The matter was argued before the Supreme

Court which, by a majority of four Judges against two, decided that they had jurisdiction to entertain and answer the references submitted to them by the Governor-General in Council. From that opinion the present appeal was preferred. London, May 16, 1912. The Lord Chancellor in delivering thein. Lordships' judgment said the real point raised in this most important case was whether or not an Act of the Dominion Parliament authorizing questions either of law or fact to be put to the Supreme Court and requiring the Judges of that Court to answer them on the request of the Governor in Council was a valid enactment within the powers of that Parliament. Much care and learning had been devoted to the case, and their Lordships were under a deep debt to all the learned Judges who had delivered their opinions under this anxious controversy. In 1867 the desire of Canada for a definite Constitution embracing the entire Dominion was embodied in the British North America Act. There could be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand and the Provinces on the other hand covered the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-government was withheld from Canada. Numerous points had arisen, and might hereafter arise, upon these provisions of the Act which drew the dividing line between what belonged to the Dominion or to the Province respectively. An exhaustive enumeration being unattainable (so infinite were the subjects of possible legislation), general terms were necessarily used in describing what either was to have, and with the use of general terms came the risk of some confusion, whenever a case arose in which it could be said that the power claimed fell within the description of what the Dominion was to have, and also within the description of what the Province was to have. Such apparent over-

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lapping was unavoidable, and the duty of a Court of Law was to decide in each particular case on which side of the line it fell in view of the whole statute. In the present case, continued his Lordship, quite a different contention is advanced on behalf of the Provinces. It is argued, indeed, that the Dominion Act authorizing questions to be asked of the Supreme Court is an invasion of Provincial rights, but not because the power of asking such questions belongs exclusively to the Provinces. The real ground is far wider. It is no less than this - that no Legislature in Canada has the right to pass an Act for asking such questions at all. This is the feature of the present appeal which makes it so grave and far-reaching. It would be one thing to say that under the Canadian Constitution what has been done could be done only by a Provincial Legislature within its own Province. It is quite a different thing to say that it cannot be done at all, being, as it is, a matter affecting the internal affairs of Canada and, on the face of it, regulating the functions of a Court of law, which are part of the ordinary machinery of government in all civilized countries. Broadly speaking, the argument on behalf of the Provinces proceeded upon the following lines. They said that the power to ask questions of the Supreme Court, sought to be bestowed upon the Dominion Government by the impugned Act, is so wide in its terms as to admit of a gross interference with the judicial character of that Court and, therefore, of grave prejudice to the rights of the Provinces and of individual citizens. Any question, whether of law or fact, it was urged, can be put to the Supreme Court, and they are required to answer it with their reasons. Though no direct effect is to result from the answers so given, and no right or property is thereby to be adjudged, yet, say the appellants, the indirect result of such a proceeding may be and will be most fatal. When the opinion of the highest Court of Appeal for all Canada has been given upon

matters both of law and of fact, it is said it is not in human nature to expect that, if the same matter is again raised upon a concrete case by an individual litigant before the same Court, its members can divest themselves of their preconceived opinions; whereby may ensue not merely a distrust of their freedom from prepossession, but actual injustice, inasmuch as they will in fact, however unintentionally, be biassed. The appellants further insist that although the Act in question provides for requiring argument, and directing that counsel shall be heard before the questions are answered, yet the persons who may be affected by the answers cannot be known beforehand, and therefore will be prejudiced without so much as an opportunity of stating their objections before the Supreme Court has arrived at what will virtually be a determination of their rights. This view, which was most powerfully presented, has a twofold aspect. It may be regarded as a commentary upon the wisdom of such an enactment. With that this Board is in no sense concerned. A Court of law has nothing to do with a Canadian Act of Parliament, lawfully passed, except to give it effect according to its tenor. No one who has experience of judicial duties can doubt that, if an Act of this kind were abused, manifold evils might follow, including undeserved suspicion of the course of justice and much embarrassment and anxiety to the Judges themselves. Such considerations are proper, no doubt, to be weighed by those who make and by those who administer the laws of Canada, nor is any Court of law entitled to suppose that they have not been or will not be duly so weighed. So far as it is a matter of wisdom or policy, it is for the determination of the Parliament. It is true that from time to time the Courts of this and of other countries, whether under the British flag or not, have to consider and set aside, as void, transactions upon the ground that they are against public policy. But no such doctrine can apply to an Act of Parliament. It is applicable only to the transactions of indivi-

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duals. It cannot be too strongly put that with the wisdom or expediency or policy of an Act, lawfully passed , no Court has a word to say. All, therefore, that their Lordships can consider in the argument under review is whether it takes them a step towards proving that this Act is outside the authority of the Canadian Parliament, which is purely a question of the Constitutional law of Canada. In the interpretation of a completely selfgoverning Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again, if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (as, for example, a power to make laws for some part of his Majesty 's dominions outside of Canada) or otherwise is clearly repugnant to its sense. For, whatever belongs to self-government in Canada belongs either to the Dominion or to the Provinces, within the limits of the British North America Act. It certainly would not be sufficient to say that the exercise of a power might be oppressive, because that result might ensue from the abuse of a great number of powers indispensable to self-government, and, obviously, bestowed by the British North America Act. Indeed, it might ensue from the breach of almost any power. It is then to be said that a power to place upon the Supreme Court the duty of answering questions of law or fact when put by the Governor in Council does not reside in the Parliament of Canada? This particular power is not mentioned in the British North America Act, either explicitly or in ambiguous terms.

In the 91 st section the Dominion Parliament is invested with the duty of making laws for the peace, order, and good government of Canada, subject to expressed reservations. In the 10 I st section the Dominion is enabled to establish a Supreme Court of Appeal from the provinces. And so when the Supreme Court was established it had and has jurisdiction to hear appeals from the Provincial Courts. But of any power to ask the Court for its opinion, there is no word in the Act. All depends upon whether such a power is repugnant to that Act. The provinces by their counsel maintain, in effect, the affirmative. They say that when a Court of Appeal from all the Provincial Courts is authorized to be set up, that carries with it an implied condition that the Court of Appeal shall be in truth a judicial body , according to the conception of judicial character obtaining in civilized countries and especially obtaining in Great Britain, to whose Constitution the Constitution of Canada is intended to be similar, as recited in the British North America Act, 1867. And they say that to place the duty of answering questions, such as the Canadian Act under consideration does require the Court to answer, is incompatible with the maintenance of such judicial character or of public confidence in it or with the free access to an unbiassed tribunal of appeal to which litigants in the Provincial Courts are of right entitled. This argument in truth arraigns the lawfulness of so treating a Court upon the ground that a Court liable to be so treated ceases to be such a judiciary as the Constitution provides for . The argument on behalf of the provinces was presented substantially as just stated, though not in identical words. But, however presented , no argument which falls short of this could claim serious attention. If, notwithstanding the liability to answer questions, the Supreme Court is still a judiciary within the meaning of the British North America Act, then there is no ground for saying that the impugned Canadian Act is ultra vires.

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In the course of the discussion both here and in the Canadian Courts full reference was

made to the law and practice observed by the Judicial Committee, House of Lords, and His Majesty's Judges. It appears that the idea of questions being put by the Executive Government to the Supreme Court of Canada was suggested in the first instance by the fourth section of the Act of William IV. For the earliest Canadian Act on this subject (that of 1875) adopts in effect the words of the fourth section. This analogy, no doubt, has some value, inasmuch as this Committee, exercising most important judicial functions, is undoubtedly liable to be asked questions of any kind by the authority of the Crown, and the procedure is used from time to time, though rarely and with a careful regard to the nature of the reference. On the other hand, it must be remembered that the members of the Judicial Committee are all Privy Councillors, bound as such to advise the Crown when so required in that capacity. Upon the whole, it does seem strange that a Court, for such in effect this is, should have been for three-quarters of a century liable to answer questions put by the Crown, and should have done it without the least suggestion of inconvenience or impropriety, if the same thing when attempted in Canada deserves to be stigmatized as subversive of the judicial functions. In regard to the House of Lords, there is no doubt that when exercising its judicial functions as the highest Court of Appeal from the Courts of the United Kingdom, that House has a right to summon the Judges and to ask them such questions as it may think necessary for the decision of a particular case. That is a very different thing from asking questions unconnected with a pending cause as to the state or effect of the law in general. But there is also authority for saying that the House of Lords possesses in its legislative capacity a right to ask the Judges what the law is, in order to better inform itself how if at all the law should be altered. The last in-

stance of this being done occurred some 50 years ago, when the right was expressly asserted by Lords of undoubtedly high authority. It is unnecessary further to consider this latter claim of the House of Lords, which in fact has very rarely been put to use, because it is a claim resting upon the unwritten law of the Constitution and said to be within the privilege of one branch of the Legislature, whereas the point to be decided in the present appeal is whether under a particular written Constitution a Parliament can entrust to the Executive Government a similar power. Still it has a bearing upon the supposed intrinsic abhorrence with which their Lordships are asked to regard the putting of questions, otherwise than by litigation, to a Court of law. Very little assistance is afforded by the almost or altogether obsolete practice of his Majesty's Judges in England being questioned by the Crown as to the state of the law, if indeed it can be said that there ever was any legitimate practice of that kind. Since 1760, when Lord Mansfield on behalf of his Majesty's Judges did furnish an answer, though with evident reluctance, as to the Crown's right to summon Lord George Sackville before a Court-martial, no instance of such a proceeding has been adduced. Earlier practice in bad times is of no weight, and as the unwritten Constitution of England is a growth, not a fabric, it may be that desuetude for 150 years has rendered unconstitutional, in the sense in which that term is understood in England, any attempt to repeat such an experiment. If the point ever arises it must be settled upon the Judges of England either assenting or refusing to comply with the request. It will then be a question what is the duty appertaining to their office, which is a very different question from that now before the Board . It is more to the purpose to consider what has been the practice in Canada under the British North America Act, and how that practice has been regarded by Courts and the Judicial Committee. The needs

99/Initial Phases of Decision of one country may differ from those of another, and Canada must judge of Canadian requirements. The first step towards authorizing the Executive Government of the Dominion to obtain the opinion of the Supreme Court by a direct request was taken in 1875 by the Canadian Parliament. By the terms of the 1875 Act any question might be put to the Supreme Court. Since then, in 1891, and again in l 906, fresh Acts were passed, providing for the same thing with more detail, though not in wider terms, and it is the l 906 Act which gave rise to the present appeal. Between 1875 and to-day the Supreme Court from time to time has been asked and has repeatedly answered questions put to it in accordance with these Acts of the Canadian Parliament. And it is very important that in six instances, between the years 18 7 5 and 1912, the answers given by that Court have been the subject of appeal to the Judicial Committee, under a power to appeal which was comprised in the Canadian Acts, and which gave authority to this Board to entertain such appeals, as though they were appeals from the ordinary jurisdiction. In all cases the appeal was entertained; in some cases the answers of the Supreme Court were modified by their lordships; and in one case Lord Herschell, delivering the opinion of the Board, declined to answer some of the questions upon the ground that so doing might prejudice particular interests of individuals. These circumstances were much and legitimately dwelt upon on behalf of the Canadian Attorneys-General, as shewing that the Acts now alleged to have been ultra vires were in fact acted upon, and so treated as valid, not only by the Court in Canada, but also on appeal in Whitehall. It was urged, on the other hand, for the Provinces, and with perfect truth, that in no one of these cases was this point ever raised, and that the Judicial Committee would be indisposed to raise it when the parties to the appeal concurred in desiring a determination. It seems that this does not dispose of the argument. The Board

would certainly be at all times averse to taking any objection which would hinder the ascertainment of any point of law which the parties desired in good faith to have determined. But it is not easy to believe that, if there is any force in the contention of the now appellants, the Judicial Committee would have so often failed even to advert to a departure so serious as is now maintained, from what is due to the independence and character of Courts of Justice. It is clear, indeed, that no such apprehension ever occurred to any of the great lawyers who heard those cases. And that circumstance militates very strongly against the view now put forward, that it is repugnant to the British North America Act and subversive of justice to require the Court to answer questions not in litigation. Great weight ought also to be attached to another significant circumstance. Nearly all the Provinces have themselves passed provin cial laws requiring their own Courts to answer questions not in litigation, in terms somewhat similar to the Dominion Act which they impugn. If it be said, as it was said, that section l O1 of the British North America Act forbids this being done by the Dominion Parliament, this argument cannot apply to the Provincial Legislatures, because section IO l does not apply to the Provinces. Either then these Provincial Acts are valid, while a similar Act passed by the Dominion is invalid, which seems very strange, or the Provincial Acts as well as that of the Dominion are ultra vires upon the general ground already dwelt upon - that a Court of Justice ceases in effect to be a Court of Justice when such a duty is laid upon it. Certainly it is remarkable that for 35 years this point of view has apparently escaped notice in Canada, and a contrary view, now said to menace the very essence of justice, has now been tranquilly acted upon without question by the Legislatures of the Dominion and Provinces, by the Courts in Canada, and by the Judicial Committee ever since the British North America Act established the present Constitution of Canada. It is difficult to resist the conclusion that

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the point now raised never would have been raised had it not been for the nature of the questions which have been put to the Supreme Court. If the questions to the Courts had been limited to such as are in practice put to the Judicial Committee (e.g., must Justices of the Peace and Judges be re-sworn after a demise of the Crown?), no one would ever have thought of saying it was ultra vires. It is now suggested because the power conferred by the Canadian Act, which is not and could not be wider in its terms than that of William IV., applicable to the Judicial Committee, has resulted in asking questions affecting the Provinces or alleged to do so. But the answers are only advisory, and will have no more effect than the opinions of the Law Officers. Perhaps another reason is that the Act has resulted in asking a series of searching questions very difficult to answer exhaustively and accurately without so many qualifications and reservations as to make the answers of little value. The Supreme Court itself can, however, either point out in its answers these

or other considerations of law. What in substance their Lordships are asked to do is to say that the Canadian Parliament ought not to pass laws like this because it may be embarrassing and onerous to a Court, and to declare this law invalid because it ought not to have been passed . Their Lordships would be departing from their legitimate province if they entertained the arguments of the appellants. They would really be pronouncing upon the policy of the Canadian Parliament which is exclusively the business of the Canadian people and is no concern of this Board. It is sufficient to point out the mischief and inconvenience which might arise from an indiscriminate and injudicious use of the Act, and leave it to the consideration of those who alone are lawfully and constitutionally entitled to decide upon such a matter. Their Lordships will therefore humbly advise his Majesty that this appeal ought to be dismissed. Appeal dismissed .

Could the Supreme Court of Canada ever refuse to answer questions put to it by the governor in council? In answering questions, should the court be permitted to comment on the ' policy' of legislation for which they are asked to rule as to the constitutional validity, in view of the fact that the court's opinion is advisory in nature and not binding on the federal government? ls it possible to rule as to the constitutional validity of legislation without considering the 'social policy' behind it? Could a government ever refuse to follow the opinion of the Supreme Court of Canada on a reference which it had submitted to the court? The following case spelled the death knell of the Canadian 'new deal' legislation designed to counter the economic problems of the depression and introduced by Prime Minister R. B. Bennett's Conservative government in 1934 and 1935 .

Reference Re Natural Products Marketing Act

[1936) S.C.R . 398 (affirmed, sub nom. A .-G. British Columbia v A.-G. Canada, [1937) A.C. 377 , [1937) l D.L. R. 691)

Supreme Court of Canada Reference by His Excellency the Governor General in Council to the Supreme Court of

Canada, in the exercise of the powers conferred bys. 55 of the Supreme Court Act (R.s.c., 1927, c. 35), of the following question: Is The Natural Products Marketing Act,

101/Initial Phases of Decision 1934, being chapter 57 of the statutes of Canada, 1934, and according to its long title 'An Act to improve the methods and practices of marketing of natural products in Canada and in export trade, and to make further provision in connection therewith' and to its amending Act, The Natural Products Marketing Act Amendment Act, 1935, being chapter 64 of the statutes of Canada, 1935. The Minister observes that doubts exist or are entertained as to whether the Parliament of Canada had jurisdiction to enact the said Acts, or either of them, in whole or in part, and that it is expedient that the question should be referred to the Supreme Court of Canada for judicial determination. The Committee, accordingly, on the recommendation of the Minister of Justice, advise that the following question be referred to the Supreme Court of Canada, for hearing and consideration, pursuant to section 55 of the Supreme Court Act Is The Natural Products Marketing Act, 1934, as amended by The Natu . ·al Products Marketing Act Amendment Act, 1935, or any of the provisions thereof and in what particular or particulars or to what extent, ultra vires of the Parliament of Canada? E. J. LEMAIRE, Clerk of the Privy Council The judgment of the Court was delivered by DUFF CJ: Counsel on behalf of the Dominion based his argument in support of the validity of this statute upon two grounds. It is argued, first, that it is competent legislation under the general authority ' to make laws for the peace, order, and good government of Canada'; and, second, it is competent legislation in relation to matters coming within the second of the enumerated heads of section 91 - 'The regulation of trade and commerce.' It will be convenient to discuss first the last mentioned ground. In substance, we are concerned with sections 3, 4 and 5 of the statute. By section 3, the Governor General is em-

powered to 'establish a Board to be known as the Dominion Marketing Board to regulate the marketing of natural products as hereinafter provided.' By section 4 (I) the Board is invested with power '(a) to regulate the time and place at which, and to designate the agency through which the regulated product shall be marketed, to determine the manner of distribution, the quantity and quality, grade or class of the regulated product that shall be marketed by any person at any time, and to prohibit the marketing of any of the regulated product of any grade, quality or class.' 'Marketed' is used in an extended sense as embracing 'buying and selling, shipping for sale or storage and offering for sale.' The Board is also empowered, (c) to conduct a pool for the equalization of returns received from the sale of the regulated product ... (/) to require any or all persons engaged in the production or marketing of the regulated product to register their names, addresses and occupations with the Board, or to obtain a licence from the Board, and such licence shall be subject to cancellation by the Board for violation of any provision of this Act or regulation made thereunder.' Section 5 contains provisions for marketing schemes under which the marketing of a natural product, to which the scheme applies, is regulated by a local board under the supervision of the Dominion Board. For the purposes of the discussion, it will not be necessary further to particularize the enactments of the statute. These enactments, in our opinion, are not enactments within the contemplation of the second head of section 91, 'The regulation of trade and commerce' in the sense which has been ascribed to those words by decisions which are binding upon us and which it is our duty to follow ... The enactments in question, ... in so far as they relate to matters which are in substance local and provincial are beyond the jurisdiction of Parliament. Parliament cannot acquire jurisdiction to deal in the sweeping way in which these enactments operate with such

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local and provincial matters by legislating at the same time respecting external and interprovincial trade and committing the regulation of external and interprovincial trade and the regulation of trade which is exclusively local and of traders and producers engaged in trade which is exclusively local to the same authority (King v. Eastern Terminal Elevators). It .should also be observed that these enactments operate by way of the regulation of dealings in particular commodities and classes of commodities. The regulations contemplated are not general regulations of trade as a whole or regulations of general trade and commerce within the sense of the judgment in Parson's case .. . The scheme of this statute in respect of its essential enactments would not appear to be practicable as a legislative scheme: 'in view of the distribution of legislative powers enacted by the Constitution Act, without the co-operation of the provincial legislatures' to quote from the judgment of the Judicial Committee in Re the Board of Commerce Act. Turning now to the contention that this statute is a valid exercise of the power of Parliament under the introductory clause of section 91, there is a preliminary observation to be made. This argument has been pressed upon us in support of six of the statutes which have been referred to us for consideration. These are the statutes relating to the Minimum Wages, to Limitation of Hours of Work, to a Weekly Rest Day; to Employment and Social Insurance; to Farmers' Creditors Arrangements and to the statute immediately under consideration, the Natural Products Marketing Act. The discussion which follows was written with special reference to the first three of these statutes; the argument upon the reference relating to them being that, apart altogether from the circumstances that the subject matters of the enactments are subjects of international agreements in respect of which international obligations have been assumed, they are dealt with in aspects

which do not fall under section 92 and can only be the subject matter of legislation under the initial clause of section 9 l. What follows, however, in substance pertains to the argument as presented in support of all the statutes mentioned and it has been thought convenient to produce it in this place. It is important not to lose sight of the language of the statute itself. The initial words of section 91 empower 'the Queen by and with the advice and consent of the Senate and the House of Commons to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.' By section 92, 'in each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects' enumerated. These classes of subjects include (No. 13) Property and Civil Rights in the Province. By section 94, 'Notwithstanding anything in this Act, the Parliament of Canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any Act in that behalf the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making provision for such uniformity shall not have effect in any province unless and until it is adopted and enacted as law by the legislature thereof.' Section 94, it will be observed, has no application to Quebec. Language could not be more plain or, indeed, more explicit to declare that the subjects, Property and Civil Rights, are not subjects assigned to the Parliament of Canada under the initial words of section 91. We are not concerned with the enumerated

103/Initial Phases of Decision subjects assigned to Parliament under the second limb of that section; or with the concluding paragraph of the section which, as the Courts have recognized, has obviously no application to the first limb of the section, which alone is now pertinent. It is settled by the decisions of the Judicial Committee that the phrase 'Property and Civil Rights' is used in the 'largest sense,' subject, of course, to the limitations arising expressly from the exception of the enumerated heads of section 91, and impliedly from the specification of subjects in section 92 ... The legislation admittedly affects civil rights and interferes with, and controls, and regulates the exercise in every one of the provinces of the civil rights of the people in those provinces; but it is said that the real subject matter of the legislation is not these civil rights, which are controlled and regulated, but something else. The initial clause of section 91 has been many times considered. There is no dispute now that the exception which excludes from the ambit of the general power all matters assigned to the exclusive authority of the legislatures must be given its full effect. Nevertheless, it has been laid down that matters normally comprised within the subjects en·1merated in section 92 may, in extraordinary circumstances, acquire aspects of such paramount significance as to take them outside the sphere of that section. The argument is mainly supported by two sentences in the judgment of the Board in A.G. for Ontario v. A . G. for Canada. The judgment of the Board in that case was directed to the answers to be given to certain questions submitted by the Governor General in Council to this Court, all of which questions immediately concerned the jurisdiction of a provincial legislature in respect of the prohibition of certain phrases of the liquor traffic. The two sentences occur in the discussion of the seventh question which relate to the jurisdiction of the Ontario Legislature to enact a section of a statute of that Province entitled 'An Act respecting local option in the matter

of liquor selling.' In the course of that discussion, their Lordships dealt with the general authority given to the Parliament of Canada under the first of the introductory enactments of section 91 which is quoted above, and their Lordships observed, ' ... to those matters which are not specified among the enumerated subjects of legislation, the exception from s. 92, which is enacted by the concluding words of s. 91, has no application; and, in legislating with regard to such matters, the Dominion Parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by s. 92. These enactments appear to their Lordships to indicate that the exercise of legislative power by the Parliament of Canada, in regard to all matters not enumerated ins. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92. To attach any other construction to the general power which, in supplement of its enumerated powers, is conferred upon the Parliament of Canada by s. 91, would, in their Lordships' opinion, not only be contrary to the intendment of the Act, but would practically destroy the autonomy of the provinces. If it were once conceded that the Parliament of Canada has authority to make laws applicable to the whole Dominion, in relation to matters which in each province are substantially of local or private interest, upon the assumption that these matters also concern the peace, order and good government of the Dominion, there is hardly a subject enumerated ins. 92 upon which it might not legislate, to the exclusion of the provincial legislatures.' Their Lordships proceeded, in the two sentences which are now mainly relied upon, 'Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their

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regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada.' It seems to us right, if these two sentences are to be properly understood, that they should be read with the preceding sentences; and experience seems to shew that there has been a disposition not to attend to the limits implied in the carefully guarded language in which the Board expressed itself. It has been assumed, apparently, that they lay down a rule of construction the effect of which is that all matters comprised in any one of the enumerated subdivisions of section 92 may attain 'such dimensions as to ... cease to be merely local or provincial' and become in some other aspect of them matters relating to the 'peace, order, and good government of Canada' and subject to the legislative jurisdiction of the Parliament of Canada. The difficulty of applying such a rule to matters falling within the first subdivision, for example, of section 92, which relates to the amendment of the provincial constitutions 'notwithstanding anything in this Act,' must be very great. On the face of the language of the statute, the authority seems to be intended to be absolute. In other words, it seems to be very clearly stated that matters comprised within the subject matter of the constitution of the province 'except as regards the office of Lieutenant-Governor' are matters local and provincial, and that they are not matters which can be comprised in any of the classes of subjects of section 91. Then the decision in the Montreal Park & Island Railway v. City of Montreal seems to be final upon the point that local works and undertakings, subject to the exceptions contained in subdivision no. 10 of section 92 and

matters comprised within that description, are matters local and provincial within the meaning of section 92 and excepted from the general authority given by the introductory enactment of section 91. The same might be said of the solemnization of marriage in the province. Marriage and divorce are given without qualification to the Dominion under subdivision 26 of section 91, but the effect of section 92 ( 12), it has been held, is to exclude from the Dominion jurisdiction in relation to marriage and divorce the subject of solemnization of marriage in the province. It is very difficult to conceive the possibility of solemnization of marriage, in the face of this plain declara tion by the legislature, assuming aspects which would bring it within the general authority of the Dominion in relation to peace, order, and good government, in such fashion, for example, as to enable the Dominion to prohibit or to deprive of legal effect a religious ceremony of marriage. The like might be said of no. 2, Taxation within the Province; the Borrowing of Monies on the Sole Credit of the Province; Municipal Institutions in the Province; and the Administration of Justice, including the constitution of the Courts and Procedure in Civil Matters in the Courts. ... In the Board of Commerce case the Judicial Committee had to consider legislation by which a Dominion Board was constituted and empowered, broadly speaking, to inquire into, and prohibit, profiteering and practices in connection therewith in dealings in the necessaries of life. In particular, the Board had authority to regulate the prices of such necessaries of life. The question arose upon a case stated as to the validity of an order made by the Board regulating the prices of ready made clothing in certain establishments in Ottawa. The validity of the order was attacked by the associations of manufacturers concerned and was supported by counsel on behalf of the Board and of the Dominion. The litigation raised the concrete question inter partes as to the

105/Initial Phases of Decision legality of the particular order; and the answer to that question turned upon the answer to the question concerning the validity of the legislation, which it was, therefore, essential to determine. The statute was supported on various grounds and, among others, on the ground that in the year 1919, when it was enacted, the evils of hoarding and high prices in respect of the necessaries of life had attained such dimensions 'as to affect the body politic of Canada.' Nobody denied the existence of the evil. Nobody denied that it was general throughout Canada. Nobody denied the importance of suppressing it. Nobody denied that it prejudiced and seriously prejudiced the well being of the people of Canada as a whole or that in a loose popular sense of the words it 'affected the body politic of Canada.' Nevertheless, it was held that these facts did not constitute a sufficient basis for the exercise of jurisdiction by the Dominion Parliament under the introductory clause in the manner attempted. The Board said that in special circumstances, such as those of a great war, the interest of the Dominion in the matters might conceivably become of such paramount and overriding importance as to lie outside the heads of section 92 and not be covered by them . But it is, they held, quite another matter to say that under normal circumstances, general Canadian policy can justify interference, on the scale of the statutes then in controversy, with the property and civil rights of the inhabitants of the provinces ... The reluctance of the Courts to give effect to such arguments as that now under consideration is illustrated also in Snider's case. The legislation in question there was framed for the purpose of dealing with industrial disputes and authorized the Minister of Labour to take steps to convene, in the case of such a dispute, a Board composed of a representative of the workmen, a representative of the employer, and a third person to be nominated by the Minister of Labour himself. The Act prohibited a strike or lock-out pending the con-

sideration of a dispute by the Board. The importance of the matters dealt with by the statute, the fact that the statute was making a provision for meeting a condition which prevailed throughout the whole of Canada and for dealing with industrial disputes which, in many and, indeed, most cases, would affect people in more than one province, the fact that the machinery provided had proved to be a valuable instrument in the interests of industrial peace, were not disputed. Nevertheless, the Board negatived the existence of 'the general principle that the mere fact that Dominion legislation is for the general advantage of Canada, or is such that it will meet a mere want which is felt throughout the Dominion, renders it competent if it cannot be brought within the heads enumerated specifically in section 91.' ... On behalf of the Dominion it is argued that the judgment in the Aeronautics case constitutes a new point of departure. The effect of that judgment, it seems to be argued, is that if, in the broadest sense of the words, the matters dealt with are matters 'of national concern' matters which 'affect the body politic of the Dominion,' jurisdiction arises under the introductory clause. One sentence is quoted from the judgment in the Aeronautics case which we will not reproduce because we do not think their Lordships can have intended in that sentence to promulgate a canon of construction for sections 91 and 92. We see nothing in the judgment in the Aeronautics case to indicate that their Lordships intended to detract from the judicial authority of the decisions in the Combines case and Snider's case. In the Aeronautics case, it is true, their Lordships called attention to the circumstance that, by section 132, the Dominion possesses powers to legislate in relation to matters which, in the domestic sense, would fall within section 92 when these matters have become affected by an international obligation by which Canada is bound; and in the subsequent case, reported in the same

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volume of the Appeal Cases, the Radio Reference, it was held that matters affected by an obligation arising under an international arrangement, not falling within section 132, but constituted in virtue of powers acquired in course of the recent constitutional developments, would fall within the general authority of section 91 because such international obligations were not comprehended within any of the specific subjects enumerated within section 91 or section 92; and in the Aeronautics case, as already observed, the authority of the decision in the Fort Frances case is expressly recognized . The judgments in the Combines case, the Fort Frances case, Snider's case, obviously have no reference to legislation dealing with matters of civil right from the international point of view . We are bound, in our view, by the decisions in the Combines case and in Snider's case as well as by the decision in the Fort Frances case, and, consistently with those decisions, we do not see how it is possible that the argument now under discussion can receive effect. To summarize: in effect, this statute attempts and indeed, professes, to regulate in the pro-

vinces of Canada, by the instrumentality of a commission or commissions appointed under the authority of the statute, trade in individual commodities and classes of commodities. The powers of regulation vested in the commissions extend to external trade and matters connected therewith and to trade in matters of interprovincial concern; but also to trade which is entirely local and of purely local concern. Regulation of individual trades, or trade~. in individual commodities in this sweeping fashion, is not competent to the Parliament of Canada and such a scheme of regulation is not practicable ' in view of the distribution of legislative powers enacted by the Constitution Act, without the co-operation of the provincial legislatures' to quote from the judgment of the Judicial Committee in the Board of Commerce case. The legislation, for the reasons given, is not valid as an exercise of the general authority of the Parliament of Canada under the introductory words of section 91 to make laws 'for the peace, order, and good government of Canada.'

Why would the federal government have submitted its own legislation (the Natural Products Marketing Act, 1934 and its amendments) to the Supreme Court of Canada for a reference opinion in 1936 when the legislation was considered to be 'of national concern' and so necessary to remedy the economic evils of the depression? Wouldn't it have been more logical for the federal government to have waited for one of the provinces or a private person affected to attack the constitutional validity of the legislation? And couldn't the federal government have 'bought time' in this manner, allowing the legislation to have some beneficial economic effect for two or three years before a province or private person was able to have it struck down at their initiative? In light of the Board of Commerce and the Snider case precedents, do you really think the legal advisers to the federal government had much hope that the court would uphold the constitutional validity of the act, notwithstanding the practical necessity for national economic regulation to overcome the depression in Canada? Note the following comments by F. R. Scott in a symposium in 15 Can. Bar Rev. 393, 489-90 (1937). Another important consequence of these holdings is the doubt they cast upon the possibility of Dominion-Provincial co-operation as an escape from constitutional difficulties. Hitherto it has,been thought that whatever problem there

might be with regard to legislative jurisdiction, the difficulty could be overcome by joint action by all the legislatures. If the Dominion added all its powers to those already possessed by the provinces, surely, it seemed, anything

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and everything might be accomplished. On several occasions the Privy Council and the Supreme Court of Canada have suggested that this is a proper method of procedure. In the very decisions under review Duff c.J., discussing the Natural Products Marketing Act, quoted from the judgment in the Board of Commerce Case and said that such a scheme of regulation as set up by the Marketing Boards was not practicable 'without the cooperation of the provincial legislatures'; while the Privy Council tempered their destruction of the Dominion treaty-making power with the helpful reminder that 'It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped.' Nevertheless, in the judgment on the Marketing Act in the Supreme Court there was no consideration whatever of the fact that every province in Canada had co-operated with the Dominion in setting up Marketing Boards, and had enacted special legislation to provide for this co-operation. Ten legislatures in Canada had acted to attain an end unanimously desired, yet the key-statute was declared ultra vires and the whole structure destroyed. The Dominion Act by section 12 provided that if any parts of the Act were ultra vires, none of the other provisions should be inoperative on that account, but should be considered as separate enactments; and the provincial statutes were intended to supply

any legislative power lacking in the Dominion. In the Privy Council Lord Atkin, after repeating the empty formula that 'satisfactory results' for both Dominion and Provinces 'can only be obtained by co-operation', went on to warn that 'the legislation will have to be very carefully framed, and will not be achieved by either party leaving its own sphere and encroaching upon that of the other. In the present case their Lordships are unable to support the Dominion legislation as it stands. They will therefore humbly advise His Majesty that this appeal should be dismissed.' Thus the courts take the view that even where there is complete co-operation between all Canadian legislatures, each one contributing its share of legislative capacity, still the scheme thus established will be destroyed, if, perchance, one legislature has made a slip in the wording of its contributory statute and has in fact included some subject matter beyond its jurisdiction. Instead of considering that this mistake is rectified by the other supporting statutes, it may be looked upon as fatal. So co-operation between the Dominion and the provinces, as in the case of the marketing legislation, may be of no use whatever in the way of overcoming constitutional difficulties, and leaves the courts as free as before to set aside legislation of which they disapprove. This legalistic straining at technicalities will do little to enhance the prestige of the courts. The Dominion Marketing Act was not an isolated statute, but was part of a national scheme and should have been interpreted as such.

Also note the following exchange in the House of Commons on I 0-11 February 1936, between R. B. Bennett, Leader of the Opposition and Mackenzie King, the Prime Minister. Mr BENNETT: ... The next question raised in the speech from the throne has to do with the references to the Supreme Court of Canada as to the validity of a number of statutes that were enacted at the last session of parliament. Well, Mr. Speaker, I find it a little difficult to understand just why, suddenly, all these cases are referred to the Supreme Court of Canada.

Was the Lemieux act referred to the Supreme Court of Canada, or was it on our statute books for ten, fifteen or twenty years? Was there a lawyer of repute who did not believe it was ultra vires of this parliament? Yet it was acted upon until a case was heard, and then it was decided alike in Canada and Great Britain that the act was unconstitutional. Why should these

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statutes have been thus referred? Let us see. In the United States they have a rule that you cannot refer a theory to the court ; it must be an actual case under the act. In all their statutes that were declared unconstitutional there was no reference to the judges of the Supreme Court of the United States. The cases originated by the proper action of somebody alleging a grievance ; they were heard by judges in the first instance ; the evidence was produced and ultimately the Supreme Court of the United States passed upon their validity. In this country we have a statute that permits a reference to the Supreme Court of Canada. In most of the provinces they have statutes that permit references to the provincial supreme courts of doubtful questions in order that the executive may be advised. But long years ago some of the provinces maintained that it was unconstitutional to do this ; that no such reference should be made of hypothetical cases. Lord Loreburn, speaking for the judicial committee of that day, decided that the point was not well taken, and he used these words: ' - but the answers are only advisory and will have no more effect than the opinions of the law officers.' He made it quite clear during the course of the argument, as well as in the judgment, that the court would not feel bound entirely by mere advice given in hypothetical cases that perchance might be modified by reason of the facts of a particular instance that might be brought before them for consideration. Now what have we? Just let us look at the spectacle we have. Last year, standing here on this side of the Speaker, the present Minister of Justice (Mr. Lapointe) denounced these statutes as being unconstitutional. The privy council have said that is just as legal as the opinion of the court in a hypothetical case. He comes into office and he takes the very statutes that he said were illegal and sends them down to the Supreme Court of Canada, asking that court to say whether they are legal or illegal after he has said they are

illegal. That is the position. I am bound to say that the argument of the cases was not left to the hon. gentleman himself; that they were argued with great care, great ability and great thoroughness by representatives of the federal power supporting the statutes. In other words we have this anomaly; on his reputation as a lawyer the Minister of Justice denounced the validity of these statutes; speaking as a lawyer he said, ' These are invalid and unconstitutional.' Now, as a minister, he employs counsel to go down to the Supreme Court of Canada and say they are legal in every particular. Mr LAPOINTE: I have so much admiration and respect for the legal acumen of my right hon. friend that I wanted the court to decide the question. Mr BENNETT: There is an old saying, 'Beware of the Greeks when they come bearing gifts,' and when the hon. gentleman gives that as his reason I think he is pretty hard put to it for reasons. Here is the position: Will the decision of the Supreme Court of Canada end the matter? Will there be an appeal to the privy council? Hon. members will remember that representatives of at least two of the provinces appeared and said, 'We want only to preserve our right to appeal.' They did not argue; they reserved their right to appeal. That is what they said. I do not know to what extent that meant that they had antecedently determined that the statutes were valid qua this court and that they were going to take an appeal in any event, but I do say that we have a very anomalous situation and one that has never arisen in this country before. The Lemieux act, which is a striking illustration, was discussed in this parliament by eminent lawyers. Its constitutionality was always in doubt, but it never reached any reference to the Supreme Court of Canada or, in fact, to any court until a case came up in which the defendant pleaded the unconstitutionality of the statute. The judge of first instance, the late Mr. Justice Orde, decided that it was in-

109/Initial Phases of Decision valid, and the privy council ultimately upheld that view. Would that not have been a much nicer way to proceed? There would have been no difficulty in having a case brought up; there were those ready and willing to bring up a case. There were employers ready and willing to test the constitutionality of these statutes. It would have been a very simple thing to do, and then you would have had the facts developed, facts of which the judges may not take judicial notice. One of our great difficulties, as lawyers well realize , is that courts cannot take judicial notice of everything. There is a limited number of matters about which courts may take judicial notice, and the fact is that a court, having no knowledge of particular facts in a case, is unable to guess as to what the facts may be. Therefore the courts object strenuously to giving judgments in hypothetical cases. Shortly put, the case before the court is: is this statute constitutional in whole or in part? There might be illuminating circumstances brought out in the course of the examination of witnesses that would indicate that some of those statutes that upon their face might look invalid were valid and, conversely, there might be statutes that on their face looked valid which, by reason of circumstances and facts that might be developed in the examination of witnesses, would appear to be otherwise in point of law. I only protest against this wholesale reference to the courts of large numbers of statutes when it is possible to determine their validity in the light of real circumstances. I am forbidden by the rules of this house, or at least by a precedent in Great Britain which, I take it, is binding here, to discuss cases which are sub judice. I would like to say something, for instance, as to the evidence that might have been forthcoming in connection with any case brought up under the marketing act, the evidence of those who had to do with the marketing act in British Columbia, the utilization of a dominion officer as an agent, the utilization of a provincial officer as the agent of the federal authority, and so on. All those

matters lend themselves to exact evidence, as these were not statutes under which cases did not arise. The Minister of National Defence (Mr. Mackenzie) knows quite well that out in Vancouver there has been a very great deal of difficulty in connection with matters that arose out of the provincial statute, and that the operation of the provincial and federal statutes together brought about a condition which many people thought highly acceptable, while others were equally strong in their view that it was undesirable. I mention these cases ; I think they indicate a willingness to refer to the court matters that are purely questions of theory, that should be tested in the light of facts. I need give only one more illustration. It will be remembered that the Canada Temperance Act was a statute about which there was great controversy. Finally in Russell and the Queen the privy council decided that the act was constitutional. You will remember, however, that the provisions of an act passed by this parliament at the instance of Mr. McCarthy, providing for a federal licensing system , were held to be ultra vires. There was no judgment given because the form of reference to the privy council was under an imperial statute, the provisions of which were availed of. On the other hand you had the provincial statutes with respect to licensing that were tested in litigation, not by the reference of theories but by real cases that had to do with the real judgment of the matters. Mr McKENZIE KING : ... As regards the reference to the supreme court of several enactments passed at the last session of parliament, the leader of the opposition criticized the Minister of Justice for having appointed counsel to uphold the legislation. I wonder what his criticism would have been if the Minister of Justice had appointed someone to oppose it. The Minister of Justice was kinder to my right hon. friend than I was prepared to be. I suggested to the minister that we ought to ask my right hon. friend whether he would not accept a retainer, or, as he often gener-

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ously acts without a retainer, whether he would not go before the supreme court and argue on behalf of his own legislation. The Minister of Justice said , however, that he thought that might put the right hon. gentleman in an embarrassing position. I must say I agree with him, for if the legislation could not be supported it would be indeed very embarrassing to the right hon. gentleman. I should, however, have liked to see my right hon. friend trying to defend that legislation before the court, and that for two reasons: In the first place, he would have done it very well, and in the second, I would wish him to feel that the desire of the present government was to give the legislation every possible opportunity that could be afforded to have its validity proved . That step at least has been taken, and I think my right hon. friend will agree with me that the government has adopted the right course in endeavouring to uphold to the utmost of its power the legislation which this parliament put through. The fact that

we have referred the legislation to the court, shows that we are carrying out what we had promised at the previous session we would do if we were returned to power. I cannot agree with the leader of the opposition when he says that it would have been much better - nicer, I think was the word he used - to have allowed all this legislation to remain on the statute books, until here and there actions were started and litigation commenced in the courts. I do not want to refer to a matter of domestic policy in another country, but I think that possibly it is appropriate to call attention to the confusion and the difficulty that have arisen in the United States as a consequence of legislation which had been on the statute books and had been administered for a period of years being declared ultra vires by the supreme court. We have tried to avoid anything of the kind happening in Canada, and in doing so I believe we have taken an entirely right step.

Modern government has resulted in a great proliferation of specialized boards, commissions, and agencies at both the federal and provincial level, acting under the authority of either parliament or one or more of the provincial legislatures. To a large extent, they are as important as constitutional decision-makers as the primary judges or legislators, and in some cases, even more so. Note the authoritative sanction provided for the delegation of decision-making functions of a regulatory nature by the well-known judgment of the Judicial Committee of the Privy Council in the following case: Hodge v The Queen (1883), 9 App. Cas. ll 7 Judicial Committee of the Privy Council Appeal from a decision of the Court of Appeal (June 30, 1882), allowing the respondent's appeal from a decision of the Court of Queen's Bench (June 25, 1881); by which last-mentioned decision it was ordered that a certain examination made on the 19th day of May, 1881, by and before the police magistrate of the city of Toronto, on the information and complaint of one Thomas Dexter, whereby

the appellant was convicted for that he the appellant did on the 7th day of May, 1881, unlawfully permit and suffer a billiard table to be used and a game of billiards to be played thereon, in his tavern in the conviction named and described as the St. James' Hotel, situate within the city of Toronto during the time prohibited by the 'Liquor License Act,' (Revised Statutes of Ontario, c. 181) for the sale of liquor therein, against the form of the resolution of the License Commissioners for

I I I/Initial Phases of Decision

the city of Toronto for regulating taverns and shops, passed on the 25th of April, 1881, should be and the same was quashed. The appellant at the time of the alleged offence was the holder of a liquor license, issued on the 25th of April, 1881, by the Board of Licence Commissioners for the city of Toronto, under 'the Liquor License Act' of the Province of Ontario, in respect of the St. James' Hotel, which license remained in force until the 1st of May, 1882. The appellant was also then the holder of a license dated the 24th of February, 1881, issued under the authority of the' Municipal Act' (Revised Statutes of Ontario, c. 174, sec. 461, by the corporation of the city of Toronto, authorizing him to carry on the business or calling of a keeper of a billiard saloon with one table for hire, which lastmentioned license remained in force until the 31st of December, I 881. The facts are stated in the judgment of their Lordships. The judgment of their Lordships was delivered by SIR BARNES PEACOCK: The appellant, Archibald Hodge, the proprietor of a tavern known as the St. James' Hotel, in the city of Toronto, who, on the 7th of May, 1881, was the holder of a license for the retail of spirituous liquors in his tavern, and also licensed to keep a billiard saloon, was summoned before the police magistrate of Toronto for a breach of the resolutions of the License Commissioners of Toronto, and was convicted on evidence sufficient to sustain the conviction if the magistrate had authority in law to make it. The conviction is as follows, viz. 'CONVICTION 'Canada : Province of Ontario, county of York, city of Toronto, to wit: ' Be it remembered, that on the 19th day of May, in the year of our Lord one thousand eight hundred and eighty-one, at the city of Toronto, in the county of York, Archibald G.

Hodge, of the said city, is convicted before me, George Taylor Denison, Esquire, police magistrate in and for the said city of Toronto, for that he, the said Archibald G. Hodge, being a person who, after the passing of the resolution hereinafter mentioned, received, and who, at the time of the committing of the offence hereinafter mentioned, held a license under the Liquor License Act, for and in respect of the tavern known as the St. James' Hotel, situate on York Street, within the city of Toronto, on the seventh day of May in the year aforesaid, at the said city of Toronto, did unlawfully permit, allow, and suffer a billiard table to be used, and a game of billiards to be played thereon in the said tavern, during the time prohibited by the Liquor License Act for the sale of liquor therein, to wit, after the hour of seven o'clock at night on the seventh day of May, being Saturday, against the form of the resolution of the License Commissioners for the city of Toronto for regulating taverns and shops, passed on the twenty-fifth day of April, in the year aforesaid, in such case made and provided. 'Thomas Dexter, of said city, license inspector of the city of Toronto, being the complainant. 'And I adjudge the said Archibald G. Hodge, for his said offence, to forfeit and pay the sum of twenty dollars, to be paid and applied according to law; and also to pay to the said Thomas Dexter the sum of two dollars and eighty-five cents for his costs in this behalf; and if the said several sums be not paid forthwith, then I order that the same be levied by distress and sale of goods and chattels of the said Archibald G. Hodge; and in default of sufficient distress, I adjudge the said Archibald G. Hodge to be imprisoned in the common gaol of the said city of Toronto and county of York, at Toronto, in the county of York, and there be kept at hard labour for the space of fifteen days, unless the said sums and the costs and charges of conveying the said Archibald G. Hodge to the said gaol, shall be sooner paid.'

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On the 27th of May, I 881, a rule nisi was obtained to remove that conviction into the Court of Queen's Bench for Ontario, in order that it should be quashed as illegal, on the grounds, I st, that the said resolution of the said License Commissioners is illegal and unauthorized; 2nd, that the said License Commissioners had no authority to pass the resolution prohibiting the game of billiards as in the said resolution, nor had they power to authorize the imposition of a fine, or, in default of payment thereof, imprisonment for a violation of the said resolution; 3rd, the Liquor License Act, under which the said Commissioners have assumed to pass the said resolution, is beyond the authority of the legislature of Ontario, and does not authorize the said resolution. It will be observed that the question whether the local legislature could confer the authority on the License Commissioners to make the resolution in question is not directly raised by the rule nisi. On the 27th of June, 1881, that rule was made absolute, and an order pronounced by the Court of Queen's Bench to quash the conviction. The judgment of the Court, which seems to have been unanimous, was delivered by Hagarty, C.J., with elaborate reasons, but finally it will be found that the decision of the Court rests on one ground alone, and does not profess to decide the question which on this appeal was principally discussed before their Lordships. The Chief Justice, in the course of his judgment, says: • It was stated to us that the parties desired to present directly to the Court the very important question whether the local legislature, assuming that it had the power themselves to make these regulations and create these offences, and annex penalties for their infraction, could delegate such powers to a board of commissioners or any other authority outside their own legislative body.' And , again, he adds: 'We are thus brought in face of a very serious question, viz., the power of the Ontario

legislature to vest in the License Board the power of creating new offences and annexing penalties for their commission.' And concludes his judgment thus, referring to the resolutions: 'The legislature has not enacted any of these but has merely authorized each board in its discretion to make them. • It seems very difficult , in our judgment, to hold that the Confederation Act gives any such power of delegating authority, first of creating a quasi offence, and then of punishing it by fine or imprisonment. 'We think it is a power that must be exercised by the legislature alone. •In all these questions of ultra vires the powers of our legislature, we consider it our wisest course not to widen the discussion by considerations not necessarily involved in the decision of the point in controversy. 'We, therefore, enter into no general consideration of the powers of the legislature to legislate on this subject; but, assuming this right so to do, we feel constrained to hold that they cannot devolve or delegate these powers to the discretion of a local board of commissioners. 'We think the defendant has the right to say that he has not offended against any law of the Province, and that the convictions cannot be supported.' The case was taken from the Queen's Bench on appeal to the Court of Appeal for Ontario, under the Ontario Act, 44 Viet. c. 27, and on the 30th of June, 1882, that Court reversed the decision of the Queen's Bench, and affirmed the conviction. Two questions only appear to have been discussed in the Court of Appeal, I st, that the legislature of Ontario had not authority to enact such regulations as were enacted by the Board of Commissioners, and to create offences and annex penalties for their infraction; and, 2nd, that if the legislature had such authority, it could not delegate it to the Board of Commissioners, or any other authority outside their own legislative body.

113/lnitial Phases of Decision This second ground was that on which the judgment of the Court of Queen's Bench rested . The judgments delivered in the Court of Appeal by Spragge, C.J., and Burton, J.A., are able and elaborate, and were adopted by Patterson and Morrisson, JJ., and their Lordships have derived considerable aid from a careful consideration of the reasons given in both Courts. The appellant now seeks to reverse the decision of the Court of Appeal, both on the two grounds on which the case was discussed in that Court and on others technical but substantial, and which were urged before this Board with zeal and ability. The main questions arise on an Act of the legislature of Ontario, and on what have been called the resolutions of the License Commissioners. The Act in question is chapter 181 of the Revised Statutes of Ontario, I 877, and is cited as 'the Liquor License Act.' Sect. 3 of this Act provides for the appointment of a Board of License Commissioners for each city, county, union of countries, or electoral district as the Lieutenant Governor may think fit, and sects. 4 and 5 are as follows: 'Sect. 4. License Commissioners may, at any time before the first day in each year, pass a resolution, or resolutions, for regulating and determining the matters following, that is to say: '(].) For defining the conditions and qualifications requisite to obtain tavern licenses for the retail, within the municipality, of spirituous, fermented, or other manufactured liquors, and also shop licenses for the sale by retail, within the municipality, of such liquors in shops or places other than taverns, inns, alehouses, beer-houses, or places of public entertainment. '(2.) For limiting the number of tavern and shop licenses respectively, and for defining the respective times and localities within which, and the persons to whom, such limited number may be issued within the year from the

first day of May on one year till the thirtieth day of April inclusive of the next year. '(3.) For declaring that in cities a number not exceeding ten persons, and in towns a number not exceeding four persons, qualified to have a tavern license, may be exempted from the necessity of having all the tavern accommodation required by law. '(4.) For regulating the taverns and shops to be licensed. '(5.) For fixing and defining the duties, powers, and privileges of the inspector of licenses of their district. 'Sect. 5. In and by any such resolution of a Board of License Commissioners the said board may impose penalties for the infraction thereof.' Sect. 43 prohibits the sale of intoxicating liquors from or after the hour of seven of the clock on Saturday till six of the clock on Monday morning thereafter. Sect. 5 l imposes on any person who sells spirituous liquors without the license by law required, or otherwise violates any other provision of the Act, in respect of which violation no other punishment is prescribed, for the first offence a penalty of not less than twenty dollars and not more than fifty dollars, besides costs, and for the second offence imprisonment with hard labour for a period not exceeding three calendar months. Sect. 52. For punishment of offences against sect. 43 (requiring taverns, &c., to be closed from seven o'clock on Saturday night until six o'clock on Monday morning), a penalty for the first offence of not less than twenty dollars with costs, or fifteen days imprisonment with hard labour, and with increasing penalties for second, third, and fourth offences; and sect. 70 provides that where the resolution of the License Commissioners imposes a penalty it may be recovered and enforced before a magistrate in the manner and to the extent that by-laws of municipal corporations may be enforced under the authority of the Municipal Act. License Commissioners were duly appointed

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under this statute, who, on the 25th of April, 1881, in pursuance of its provisions, made the resolution or regulation now questioned in relation to licensed taverns or shops in the city of Toronto, which contains (inter alia) the following paragraphs, viz., • Nor shall any such licensed person, directly or indirectly as aforesaid, permit, allow, or suffer any bowling alley, billiard or bagatelle table to be used, or any games or amusements of the like description to be played in such tavern or shop, or in or upon any premises connected therewith, during the time prohibited by the Liquor License Act, or by this resolution, for the sale of liquor therein. 'Any person or persons guilty of any infraction of any of the provisions of this resolution shall, upon conviction thereof before the police magistrate of the city of Toronto, forfeit and pay a penalty of twenty dollars and costs; and in default of payment thereof forthwith, the said police magistrate shall issue his warrant to levy the said penalty by distress and sale of the goods and chattels of the offender; and in default of sufficient distress in that behalf, the said police magistrate shall by warrant commit the offender to the common gaol of the city of Toronto, with or without hard labour, for the period of fifteen days, unless the said penalty and costs, and all costs of distress and commitment, be sooner paid.' The appellant was the holder of a retail license for his tavern, and had signed an undertaking, as follows : 'We, the undersigned holders of licenses for taverns and shops in the city of Toronto, respectively acknowledge that we have severally and respectively received a copy of the resolution of the License Commissioners of the city of Toronto to regulate taverns and shops, passed on the 25th day of April last, hereunto annexed, upon the several dates set opposite to our respective signatures hereunder written, and we severally and respectively promise, undertake, and agree to observe and perform the conditions and provisions of such resolution. '2nd May, Tavern. A.G. Hodge. (L.S.)'

He was also the holder of a billiard license for the city of Toronto to keep a billiard saloon with one table for the year 1881, and, under it, had a billiard table in his tavern. He did permit this billiard table to be used as such within the period prohibited by the resolution of the License Commissioners, and it was for that infraction of their rules that he was prosecuted and convicted ... Assuming that the local legislature had power to legislate to the full extent of the resolutions passed by the License Commissioners, and to have enforced the observance of their enactments by penalties and imprisonment with or without hard labour, it was further contended that the Imperial Parliament had conferred no authority on the local legislature to delegate those powers to the License Commissioners, or any other persons. In other words, that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body, and by that body alone. The maxim delegatus non potest delegare was relied on. It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circum-

HS/Initial Phases of Decision stances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. It it obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into his own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law, to decide. Their Lordships do not think it necessary to pursue this subject further, save to add that, if by-laws or resolutions are warranted, power to enforce them seems necessary and equally lawful. Their Lordships have now disposed of the real questions in the cause. Many other objections were raised on the part of the appellant as to the mode in wnich the License Commissioners exercised the authority conferred on them, some of which do not appear to have been raised in the Court below, and others were disposed of in the course of the argument, their Lordships being clearly of opinion that the resolutions were merely in the nature of municipal or police regulations in relation to licensed houses, and

interfering with liberty of action to the extent only that was necessary to prevent disorder and the abuses of liquor licenses. But it was contended that the provincial legislature had no power to impose imprisonment or hard labour for breach of newly created rules or by-laws, and could confer no authority to do so. The argument was principally directed against hard labour. It is not unworthy of observation that this point, as to the power to impose hard labour, was not raised on the rule nisi for the certiorari, nor is it to be found amongst the reasons against the appeal to the Appellate Court in Ontario. It seems to have been either overlooked or advisedly omitted. If, as their Lordships have decided, the subjects of legislation come within the powers of the provincial legislature, then No. 15 of sect. 92 of the British North America Act, which provides for 'the imposition of punishment by fine, penalty, or imprisonment, for enforcing any law of the Province made in relation to any matter coming within any of the classes of subjects enumerated in this section,' is applicable to the case before us, and is not in conflict with No. 27 of sect. 91; under these very general terms, 'the imposition of punishment by imprisonment for enforcing any law,' it seems to their Lordships that there is imported an authority to add to the confinement or restraint in prison that which is generally incident to it, - 'hard labour;' in other words, that 'imprisonment' there means restraint by confinement in a prison, with or without its usual accompaniment, 'hard labour.' The provincial legislature having thus the authority to impose imprisonment, with or without hard labour, had also power to delegate similar authority to the municipal body which it created, called the License Commissioners.

The whole question of a provincial legislature's right to delegate some of its legitimate decisionmaking functions given to it by the BNA Act to subordinate agencies which it has created is now well settled as a result of the Hodge case. As long as the legislature is acting within the limits prescribed by section 92 of the BNA Act, and does not abdicate or completely relinquish all of its powers in an area to its subordinate agency, then such delegation is valid.

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However, what happens if a provincial legislature attempts to delegate certain of its decisionmal