Constitutional Amendment in Canada 9781487595784

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CONSTITUTIONAL AMENDMENT IN CANADA

CANADIAN GOVERNMENT SERIES R. MAcG. DAWSON, Editor 1. DEMOCRATIC GOVERNMENT AND POLITICS By J. A. CORRY 2. THE GOVERNMENT OF CANADA By R. MACGREGOR DAWSON 3. CONSTITUTIONAL AMENDMENT IN CANADA By PAUL GÉRIN-LAJOIE 4. THE CANADIAN HOUSE OF COMMONS: REPRESENTATION By NORMAN WARD 5. THE GOVERNMENT OF PRINCE EDWARD ISLAND By FRANK MACKINNON 6. CANADIAN MUNICIPAL GOVERNMENT By KENNETH GRANT CRAWFORD 7. PIONEER PUBLIC SERVICE By J. E. HODGETTS

8. THE GOVERNMENT OF NOVA SCOTIA By J. MURRAY BECK

9. THE OFFICE OF LIEUTENANT-GOVERNOR By JOHN T. SAYWELL 10. POLITICS IN NEW BRUNSWICK By HUGH C. THORBURN 11. THE PUBLIC PURSE: A STUDY IN CANADIAN DEMOCRACY By NORMAN WARD 12. PROCEDURE IN THE CANADIAN HOUSE OF COMMONS By W. F. DAWSON 13. THE CANADIAN GENERAL ELECTION OF 1957 By JOHN MEISEL 14. THE GOVERNMENT OF MANITOBA By M. S. DONNELLY 15. THE MODERN SENATE OF CANADA By F. A. KUNZ

CONSTITUTIONAL AMENDMENT IN CANADA BY THE HONOURABLE

PAUL GÉRIN-LAJOIE LL.B., D.PHIL. (OxoN.) Minister of Education of the Province of Quebec

TORONTO U N I V E R S I T Y OF T O R O N T O PRESS

Copyright, Canada, 1950 University of Toronto Press Reprinted in the United States of America, 1960 by Book Craftsmen Associates, Inc., New York Reprinted in U.S.A., 1966

TO MY FELLOW CANADIANS AND TO THEIR POLITICAL LEADERS WHO HAVE IT WITHIN THEIR POWER TO WRITE AN ADDITIONAL AND FINAL CHAPTER TO THIS BOOK

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PREFACE SINCE I started to work on the subject of this book in the autumn of 1945—when I took up at Oxford a Rhodes Scholarship which the second world war had barred me from using in 1939—events have been running fast. My mind turns towards my ancestor, Antoine Gérin-Lajoie, who wrote the history of the establishment of responsible government in Canada,1 and I realize that his great-grandson's book on constitutional amendment may well become the history of Canada's final stages in the development of complete national sovereignty (in terms of law)—the power and means to amend the Canadian Constitution through entirely Canadian agencies. If this book appears at this time, however, I owe it largely to the assistance which I have received from many sources. My first indebtedness is towards my friend and "supervisor" at Oxford, Professor K. C. Wheare. During more than two years, he has followed the progress of my work, reading my manuscript chapter after chapter, and lavishly giving his counsel and encouragement. Upon my return to Canada, my friend, Pierre-E. Trudeau, Professor Frank R. Scott, Professor J. A. Corry, Professor Maximilien Carón, and, above all, the editor of the Series in which this book appears, Professor R. MacGregor Dawson, have read my entire manuscript and have generously contributed constructive suggestions as well as criticisms. They have also, to various degrees, freely given advice and information whenever I have called upon them. I also wish to express my gratitude to the staff of Rhodes House Library, at Oxford, to the library staff of the Commonwealth Relations Office, in London, and to the editorial staff of the University of Toronto Press for their unfailing courtesy and their efficient aid. On the occasion of two prolonged stays in Switzerland, in 1946 and 1948, Professor Marcel Bridel, of the Law Faculty l

Dix ans au Canada, de 1840 à 1860 (Québec, 1888). vii

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of the University of Lausanne, guided me in my study of Swiss constitutional law and government, and introduced me to people in all spheres of life to get me acquainted with the actual working of federal government in Switzerland. Although I refer very little to the Swiss Constitution in this book, the knowledge of it which I acquired while in Switzerland gave me a new perspective of the Canadian Constitution and Canadian federalism which I have found most valuable. My final but foremost thanks should go to my wife. She has not only typed and re-typed my manuscript, but she has done some research and collected material. Most of all, she has followed the progress of my work from the very beginning, discussed with me almost every point in issue and given her wise counsel. It is no formality to say that without her help and encouragement this work would not have been possible. Montreal April 28, 1950

P. G.-L.

FOREWORD THE publication of this book as the third volume in the Canadian Government Series makes it a series in fact as well as in name. A fourth volume is now in the press. It may be well to point out at this time that no attempt is being made in the series to cover systematically the field of Canadian government; for it is believed that any such plan would unduly stimulate the writing and production of books of inferior grade. New volumes which are considered suitable in subject matter and of sufficiently high quality will be added from time'to time, and it is confidently expected that the series will make a substantial contribution to the better understanding of Canadian government. Dr. Gérin-Lajoie's study of the amending power under the Canadian constitution furnishes an admirable illustration of the effectiveness of this process of allowing the series to grow in the direction of the interests of the individual authors. He is a young Montreal lawyer, who graduated from the Law Faculty of the University of Montreal in 1942 and has recently obtained the degree of Doctor of Philosophy from Oxford where he studied under the distinguished constitutional authority, Professor K. C. Wheare. He is naturally concerned with the legal-political aspects of Canadian government, and he reflects to a degree the attitude of French-speaking Canada in the province of Quebec. Dr. Gérin-Lajoie presents the most searching analysis yet made of what material is properly to be included in the Canadian written constitution ; he reviews in detail the history of past amendments with their legal and political significance; he discusses the vexed questions of the circumstances surrounding the amending power and possible solutions for the future. Inasmuch as these matters present some of the most vital and urgent constitutional problems which confront Canada to-day, the book adds to its very real permanent value a current interest and importance as well. The discussions of more than one Dominion-provincial conference ix

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have been directed to this field, and at least one other conference in the future will be devoted to the same topic. It will be perceived (on reading Chapter VII) that the position taken by Dr. Gérin-Lajoie on some aspects of his subject is not that of the editor of the series. The point is mentioned here simply to make clear that the editor takes no responsibility for opinions expressed by the authors, nor, it is hoped, do they take any responsibility for the opinions of the editor. A marked divergence of views is not of great moment in a series such as this, and no special set of opinions or philosophy will be found to run through the volumes. Indeed, a certain conflict of opinion may well be considered desirable, particularly if these conflicts spring from corresponding differences in the Canadian environment. The essential criteria which the editor will always endeavour to apply will be the political significance of the study and the general excellence of its presentation.

R. MACG. DAWSON

CONTENTS PREFACE FOREWORD*. By R. MACGREGOR DAWSON . . . . INTRODUCTION 1. The British North America (No. 2) Act, 1949

. . .

2. The Constitutional Conference of January 1950 .

.

vii ix xiii xiv

. xxxv

Part I. THE CONSTITUTION OF CANADA I. The Constitution Defined II. The Flexibility of the Constitution

3 24

Part II. How PAST AMENDMENTS WERE SECURED III. How Past Amendments Were Secured . . . .

47

1. The British North America Act, 1871 . . . 2. The Parliament of Canada Act, 1875 . . . 3. The British North America Act, 1886 . . . 4. The Canada (Ontario Boundary) Act, 1889 . 5. The Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2 6. The British North America Act, 1907 . . . 7. The British North America Act, 1915 . . . 8. The British North America Act, 1916 . . . 9. The British North America Act, 1930 . . . 10. The Statute of Westminster, 1931 . . . . 11. The British North America Act, 1940 . . . 12. The British North America Act, 1943 . . . 13. The British North America Act, 1946 . . . 14. The British North America Act, 1949 . . . Note on the Statute Law Revision Acts . .

50 58 60 62

xi

71 74 84 90 91 93 104 109 117 121 129

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Part III. THE AMENDING PROCESS TO-DAY IV. An Address from Both Houses of Parliament

. 135

V. The Participation of the Provinces

153

VI. The Role of the British Parliament

185

VII. Conflicting Views on the Amending Process .

. 204

Part IV. PROPOSALS FOR A NEW AMENDING MACHINERY VIII. Changes of Procedure Advocated in the Past IX. An Approach to the Future

. 221 256

APPENDICES A. The Statute of Westminster, 1931 285 B. Resolution of the House of Commons of Canada embodying an Address to His Majesty With a View to the Enactment at Westminster of the British North America Act, 1946 289 C. Some Statements of Leading Public Men at Ottawa since Confederation Respecting the Consent of the Provinces as a Prerequisite to Constitutional Amendment 292 D. Proposal for a General Procedure to Amend the Constitution Drafted by a Sub-committee of Experts Representing the Federal and Provincial Governments (New Brunswick not attending) in February and March 1936, Pursuant to a Resolution of the DominionProvincial Conference, 1935 301 E. The British North America (No. 2) Act, 1949 . . . 313 BIBLIOGRAPHY

317

INDEX

327

INTRODUCTION AT the time of going to press, the procedure for amending the Constitution of Canada has become, as never in the past, a topic of actual interest, and it attracts much public attention despite its highly technical aspects. Hopes that this question might be settled in the near future have arisen from the recent Constitutional Conference of Federal and Provincial Governments1 and from the spirit of co-operation and determination which reigned over its proceedings. The Standing Committee which was formed by the Conference is at present endeavouring to work out the details of an over-all procedure of amendment which would be acceptable to all governments in Canada and be embodied in the Constitution. The Canadian public has shown its interest in the work of the Committee by studying and discussing in the press, and in private and public meetings, the problem of an amending procedure under its several aspects. This renewed interest in such a time-honoured question dates from a double announcement made in the Speech from the Throne, at the opening of the first session of the newly elected Parliament, at Ottawa, on September 15, 1949. First, the Senate and the House of Commons were to be asked to approve addresses requesting the Parliament of the United Kingdom to vest in the Canadian Parliament the general power to amend the Constitution of Canada except in relation to certain matters. Secondly, the federal Government was to seek to consult and reach agreement with the Governments of the provinces upon a procedure for making within Canada any other amendments to the Constitution.2 These decisions of the Canadian Government constitute a turning point of major importance in the constitutional development of Canada and may well prove to have been decisive towards reaching a permanent solution of the Confederation-old question of the procedure to amend the Constitution. 'January 10 to 12, 1950. Can. H. of C. Debates (unrevised), September 15, 1949, p. 4.

2

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THE BRITISH NORTH AMERICA (No. 2) ACT, 19491 The first of the two steps announced in the Speech from the Throne was actually carried into law by the enactment at Westminster, on December 16, 1949, of the British North America (No. 2) Act, 1949.2 The resolution for an address to His Majesty the King setting out the terms of the measure as proposed by the federal Government was moved in the Canadian House of Commons by the Prime Minister, Mr. Louis St-Laurent, on October 17, 1949. It was proposed to add to the enumerated powers of the Parliament of Canada under section 91 of the British North America Act, 1867, the following: 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 to3 schools or as regards the use of the English or the French language.

The Prime Minister explained at length the consequences which had resulted from the lack of any over-all amending procedure in the act of 1867 and he pointed at the different processes which had been followed from time to time, in the past, to amend the Constitution. He stressed the fact that each time a proposed amendment had dealt with subjects 'Although some of the implications of these latest constitutional developments may be more fully understood after the reader has covered the rest of the book, the student of current affairs will not hesitate to read this introduction as given and use it as a vantage point from which he can best see and appreciate the entire2 scene. The text of the Act appears as Appendix E, infra, pp. 313-14. 3 Votes and Proceedings of the House of Commons of Canada, October 17, 1949, or Can. H. of C. Debates (unrevised), same date, p. 828. The introductory paragraph of section 91 of the act of 1867 after which the proposed clause was to be inserted reads: "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 corning 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 in 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 hereinafter enumerated; that is to say,—".

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assigned exclusively to the jurisdiction of the federal Parliament, this Parliament had secured from Westminster the passage of the amendment without consulting the governments of the provinces. The purpose of the proposal under consideration was therefore only to change "the venue where the amendments can be made."1 Mr. St-Laurent explained, furthermore, that great care had been taken "to avoid any possibility of infringing upon provincial jurisdiction, upon the rights of provincial legislatures or provincial governments, upon the fundamental principles dealing with schools or with the use of the two official languages of this country."2 No declaration was therefore made in the proposed measure about where exactly the division line might strike between such matters and those concerning exclusively the federal Parliament or Government. This role was left to the courts. In the course of the debate which followed, the advisability of devising a procedure for making within Canada all amendments to the Canadian Constitution, without resorting to the action of any external agent, was not a subject in issue. The Leader of the Opposition in the House of Commons, Mr. George Drew, made this point clear at the outset of his comments on the Government resolution.3 The main Opposition objection as set forth by Mr. Drew was two-fold. In the first place, the "piece-meal procedure" and the "tearing of the constitution in two,"4 as proposed by the Government, would not remove the existing constitutional anomalies and difficulties but would only result in more confusion and uncertainty. In the second place, in view of the statements which had been made already by "some of the provincial premiers on behalf of the governments chosen by the people of those provinces,"5 it was in the interest of future harmony in Canada that the proposed measure be left in abeyance until the federal and provincial governments could meet together and discuss the whole subject of a new procedure to amend the Constitution. 'Can. H. o) C. Debates (unrevised), October 17, 1949, p. 835; the full text of Mr. St-Laurent's speech is at pp. 828-35. 'Ibid., October 17, 1949, p. 834. l lbid., October 17, 1949, pp. 835-41. 'Ibid., October 17, 1949, pp. 839-40. s lbid., October 17, 1949, p. 835.

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The objections raised already by the premiers of some of the provinces were set forth in an exchange of correspondence with the Prime Minister of Canada.1 On September 15, 1949, in conjunction with the announcement made on the same day in the Speech from the Throne, the Prime Minister had forwarded to the premiers of the several provinces a letter seeking, on behalf of the federal Government, the opportunity to meet and consult with the governments of the provinces. The purpose of the proposed consultation was to explore the possibilities of devising a new method of amending the Constitution in relation to matters which concerned jointly the federal and provincial authorities. Mr. St-Laurent referred, in his letter, to the Government's desire that a method be worked out to enable the amendment of any part of the Constitution in Canada. He then explained the two-fold process followed by his Government for this purpose : My colleagues and I recognize that the working out of a satisfactory method of making all kinds of amendments will not be easy, and the government has accordingly decided to submit to our parliament, at the forthcoming session, an address requesting an amendment of the British North America Act by the United Kingdom parliament which would vest in the parliament of Canada the authority to amend the constitution of Canada but only in relation to matters not coming within the jurisdiction of the legislatures of the provinces, nor affecting the rights and privileges of the provinces, or existing constitutional rights and privileges with respect to education and to the use of the English and French languages. Such an amendment would give the Canadian parliament the same jurisdiction over the purely federal aspects of our constitution that the provincial legislatures already possess over the provincial constitutions, while giving both to provincial rights and jurisdiction and to the historic rights of minorities an express assurance of legal protection which we feel they should have. We recognize that amendments may be required from time to time in the national interest of those provisions of the constitution l The correspondence was tabled in the House of Commons on October 17, 1949, and was printed as an appendix to Can. H. of C. Debates (unrevised), October 17, 1949, at pp. 870-7; the original letter of the Prime Minister of Canada to the premiers of the provinces was also printed ibid., September 16 and 19, 1949, pp. 25-6, 69; for later correspondence, see ibid., October 24 and 31, November 8, December 8 and 10, 1949, pp. 1107-8, 1319, 1577-8, 2676, 3169.

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which concern both federal and provincial authorities, and that it would be desirable to devise a generally satisfactory method of making such amendments in Canada whenever they may be required. The federal government would appreciate the opportunity of consulting with the governments of all the provinces on this matter in the manner most convenient to the provincial governments, at an early date after the conclusion of the forthcoming session of parliament. . . .l The premiers of many of the provinces were unwilling to leave such a two-fold course to be adopted unchallenged. In their replies to the Prime Minister, the premiers of Quebec and Alberta, Maurice L. Duplessis and Ernest C. Manning, protested against the proposed unilateral action of the federal Parliament and requested most outspokenly that the Government resolution before the House of Commons be held in abeyance until the proposed constitutional conference could meet. The Premier of Ontario, Leslie M. Frost, in more reserved language, expressed some doubt "as to the advisability of dealing with the matter piecemeal without first attempting general agreement."2 He also believed that the proposed abolition of appeals to the Privy Council, which was no doubt a matter within the competency of the federal Parliament but was bound nevertheless to affect the provinces, particularly in view of the proposed constitutional change, should also be held in abeyance until the conference of the federal and provincial governments. The Premier of Nova Scotia, Angus L. Macdonald, concurred with Mr. Frost on this point, while the Premier of Saskatchewan, T. C. Douglas, suggested that "some measures should be adopted to make the Canadian Supreme Court more representative than it is at present, in order that those who find it necessary to appeal decisions of the lower courts may feel more confident than they are at present that these matters are being approached from the broadest possible viewpoint."3 The Premier of Manitoba, Douglas Campbell, writing before the 'The letter appears as Appendix B to Can. H. of C. Debates (unrevised), September 19, 1949, p. 69. "Frost to St-Laurent, October 7, 1949, ibid., October 17, 1949, pp. 874-5. "Douglas to St-Laurent, September 20, 1949, ibid., October 17, 1949, p. 876.

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INTRODUCTION

text of the proposed Government resolution was known, stated that "before agreeing to any specific proposals" his government would "examine carefully the manner in which the provincial position is to be protected."1 The premiers of the other provinces simply agreed to participate in a constitutional conference without commenting on the proposed unilateral step of the federal Parliament. When the debate on the Government resolution opened in the House of Commons, the Prime Minister, Mr. StLaurent, had already replied to the Letters of the provincial premiers. As regards the request to delay action on the proposed abolition of appeals to the Privy Council he explained the feeling of his government that, "since the judgment of the Privy Council2 indicated clearly and unequivocally that the federal Parliament possesses exclusive jurisdiction to legislate respecting a final court of appeal for Canada, it would not be an appropriate subject for consultation with the provincial governments, but that Parliament should, without further delay, discharge the responsibility placed upon it by the constitution."3 Mr. St-Laurent similarly rejected the request to delay action on the resolution to have the Parliament of Canada vested with new powers of constitutional amendment. As regards the right of the federal Parliament to proceed with the proposed resolution, he discarded objections arising out of any "compact" or other similar theory, as put forward by Mr. Duplessis in particular, and he affirmed that "there is no doubt about our power to have this change of venue made without consulting the provincial authorities and without their acquiescence."4 With reference to the advisability—as opposed to the obligation—of consulting the governments of the provinces, Mr. St-Laurent explained that since the proposed amendment "relates only to that part of the constitution which is of exclusive concern to the federal Campbell to St-Laurent, October 6, 1949, ibid., October 17, 1949, p. 875. ^Attorney-General for Ontario and Others v. Attorney-General for Canada and Others, Attorney-General for Quebec (Intervene^, [1947] A.C. 127; [1947] 1 D. L.R. 801. »St-Laurent to Macdonald, October 3, 1949, Can. H. of C. Debates (unrevised), October 17, 1949, p. 871. «St-Laurent to Duplessis, October 13, 1949, ibid., October 17, 1949, p. 874.

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authorities, and leaves to the courts the responsibility for deciding any disputes as to the limits of our jurisdiction, it was our view that it would not be appropriate to consult the provincial authorities or to ask them to share our responsibility for a proposal which relates exclusively to matters within federal jurisdiction."1 The provincial premiers all stood on their positions. In the House of Commons, Mr. St-Laurent followed the same line as in the correspondence and he was supported by an overwhelming majority. A Progressive Conservative amendment to defer action on the resolution until the proposed constitutional conference could deal with the whole problem of an amending procedure was ruled out of order2 and another amendment to the same effect was later negatived by 137 votes to 38.3 In his closing remarks, Mr. St-Laurent reiterated in a few words the view he had expressed on behalf of the Government in 1943, 1946, and earlier in 1949.4 He said: The position of our party is, and always has been, that at confederation the sovereign powers of the Canadian nation were allocated, part of them to the central parliament and part to the provincial legislatures, with anything unprovided for in that specific allocation left within the general powers of the central parliament; and it has been the view consistently held by the Liberal party that provincial powers should be respected. The corollary of this respect for all the portions of the national sovereignty allocated to the provinces is—our party has contended— that the powers allocated to the central authority can be exercised by that central authority through the members elected by the people to represent them in the central parliament, without any control by the provinces or, I should say, by the premiers of the provincial governments. For a long time, that was the traditional view of the official opposition.5 Although the greater part of the debate in the House of Commons dealt with the Government proposal from the viewpoint of the provinces, attention was paid to other aspects of this important constitutional change. From the 'St-Laurent to Campbell, October 12, 1949, ibid., October 17, 1949, p. 875. 'Ibid., October 17, 1949, pp. 841, 856. 3 Ibid., October 27, 1949, p. 1210. «See infra, pp. 112-13, 119-20, 127, n. 2. ''Can. H. of C. Debates (unrevised), October 27, 1949, p. 1214.

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C.C.F. benches, Mr. Stanley Knowles urged that matters so fundamental to Canadian democracy as the right to a yearly session of Parliament and the right to a general election at least once every five years should not be left to the will of a mere parliamentary majority. The provisions of the Constitution which guaranteed these rights "should be entrenched beyond any possibility of amendment,"1 he said. He therefore moved that the Government resolution be amended by adding, after the word "language," the following: or as regards the requirement of section twenty of this Act [1867] that there shall be a session of the Parliament of Canada at least once each year, or as regards the requirement of section fifty of this Act that no House of Commons shall continue for more than five years.2

The Prime Minister, on behalf of the Government, agreed to the proposal though suggesting that a proviso be added to allow an overwhelming majority in Parliament to postpone elections in time of war. Small drafting changes were also suggested and accepted so that the Knowles amendment, as finally agreed to by 147 against 27,3 read: or as regards the requirements that there shall be a session of the 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.

The Senate passed, on November 9, 1949, after only a short debate, an address to the King similar in terms to that passed by the House of Commons.4 It should be explained, however, that a first notice of motion for such an address had been given in the Senate on October 4, 1949, l lbid., October 18, 1949, p. 892; the whole speech of Mr. Knowles is at pp. 887-93. "Con. H. of C. Debates (unrevised), October 18, 1949, p. 892. *Ibid., October 27, 1949, p. 1209. 'Can. Senate Debates (unrevised), November 1, 3, 8 and 9, 1949, pp. 189205, 219-23, 231-8, 239-45; Minutes of the Proceedings of the Senate, November 9, 1949, p. 199.

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at the same time and in the same terms as the Prime Minister's notice of motion in the House of Commons.1 Later, when Mr. St-Laurent's resolution was amended and was passed in its amended form, in the House of Commons, leave of the Senate was asked to withdraw the original notice of motion and to give notice of a substitute motion conforming with the amendments adopted in the House of Commons.2 This incident serves to illustrate the anomaly and the possible difficulties involved in the procedure of concurrent addresses— as opposed to a joint address—of both Houses of Parliament, as explained in Chapter IV of this book.3 The British Parliament concurred in the wishes of the Canadian Houses of Parliament as expressed in their address to the King, by passing the British North America (No. 2) Act, 1949. Although the bill was not in any way controverted in the British Houses, attention was drawn to its restricted effect and to the special position of the provinces under the Canadian Constitution. In the House of Lords, Viscount Addison introduced the bill to which he referred as one that "will authorize the Canadian Parliament to amend the Canadian Constitution in relation to matters which are solely within the jurisdiction of that Parliament."4 After the Leader of the Opposition had expressed his concurrence, Viscount Simon made a few noteworthy observations. He said : . . . It so happens that the constitutional development of Canada has been a subject to which I have professionally had to attend over a very long span of years. . . . Your Lordships will notice—though we did not, of course, need to have a Committee stage—that the language of Clause 1 of the Bill is such that it carefully preserves the rights of the Provinces of Canada. Canada, of course, is a Federation—we took part the other day in adding the last, the tenth of the Provinces, Newfoundland, to the Federation of Canada—and the Provinces are jealous of their rights as against a Dominion. That being so, your Lordships will notice that the language of the Bill very properly preserves matters coming within the classes of8 subjects assigned exclusively to the Legislatures of the Provinces. . . . 'Co». Senate Debates (unrevised), October 4, 1949, p. 69. 3 'Ibid., October 31, 1949, p. 181. Infra, pp. 150-2. *Br. H. of L. Debates (unrevised), November 22, 1949, col, 810. 'Ibid., cols. 811-2.

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In the House of Commons, after the bill was introduced by the Secretary of State for Commonwealth Relations, Mr. Philip Noel-Baker, a short debate took place from which the following may be quoted: Mr. Bramall (Bexley) : In rising to join with the speakers on both Front Benches in supporting this Bill I wish to make reference to the terms of the only operative Clause of the Bill. The Clause indicates that although Canada is taking, as we have long expected she would take and as she has every right to take, this step in ending the anomalous position about her Constitution, she still leaves with us the sole power to amend very important sections of it. ... It is noteworthy that this great nation, to which my right hon. Friend has so rightly and eloquently paid tribute, should in these important and difficult matters—we know that they present great difficulties in any federation—of the powers of the provinces and, particularly in Canada, the respective rights of the two languages, still have such close unity with us that she is content to leave in the hands of this House the custodianship of those important parts of her Constitution. . . . Mr. P. Noel-Baker: . . . My hon. Friend the Member for Bexley (Mr. Bramall) is right in what he said about the powers which still remain with this Parliament. He is probably aware that the provincial legislatures of the provinces of Canada can amend their own provincial constitutions. They have full power in that regard. With regard to matters which are of mixed federal and provincial importance, the Canadian Government are holding, on 10th January next, a conference of the federal and provincial governments, and it may be—it may not, of course—that as a result of that conference we may be asked to pass another Bill. We must wait and see.1 It should be observed that the Act as assented to by the King is not entirely similar to the draft bill set out in the addresses of both Houses of Parliament of Canada. The Canadian proposal suffered several drafting changes before it was actually introduced and passed in Parliament at Westminster. A comparison of the Act2 with the Canadian draft bill3 discloses the following differences: (a) In the title, the phrase "as respects" read: "relating to"; l Br. 2 See 3

H. of C. Debates (unrevised), December 2, 1949, cols. 1464-6. Appendix E, infra, pp. 313-14. See Minutes of Proceedings of the Senate of Canada, November 9, 1949, p. 199.

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(¿>) In the preamble, the phrase "the Senate and the House of Commons" read: "the Senate and Commons"; (c) In the 2nd line of section 1, the figure "1867" was followed by a comma; (d) In the same line, the word "hereby" did not appear; (e) In the 4th line of the new Class 1, the word "provinces" read with a capital "P"; (/) In the 5th line, the word "Constitutional" read with a small "c"; (g) In the 7th line, the word "province" read with a capital"?"; (h) In the 8th line, the words "French language" were followed by a comma; (i) In the 13th line, the word "provided" was not followed by any comma; (j) In the 15th line, the word "Canada" was followed by a comma; (k) In the 17th line, the word "members" read with a capital "M"; (/) Section 2, which has been entirely redrafted, read: "2. This Act may be cited as the British North America Act, 1949 (No. 2), and the British North America Acts, 1867-1949, and this Act may be cited together as the British North America Acts, 1867-1949 (No. 2)." These drafting changes show how carefully proposed amendments to the Constitution of Canada, as adopted by the Canadian Houses of Parliament, are scrutinized by British parliamentary counsel before being introduced in Parliament at Westminster. They are subject to an independent draftsmanship.1 In this case, the changes suggested by British parliamentary counsel were transmitted for approval, through the Commonwealth Relations Office, to the High Commissioner for Canada in London. The Department of External Affairs at Ottawa, in consultation with the Department of Justice, agreed to the suggested changes and instructed the High Commissioner in London accordingly. No formal action through the Governor-General-inCouncil was found necessary. Such a procedure does not J

See infra, pp. 188-9.

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appear to be fully in accord with the terms of the Canadian address which requested that a measure be laid before the Parliament of the United Kingdom "to be expressed as follows" and thereafter set out the draft bill which suffered the above changes. Turning to the substance of the British North America (No. 2) Act, 1949, one feature calls for comment at once. The new power of the Parliament of Canada, added among those expressly enumerated in section 91 of the act of 1867, is a power to amend from time to time the "Constitution of Canada" except as regards certain matters. What is the "Constitution of Canada"? No document bears any such name or title. Moreover, this phrase is not found anywhere in the constitutional documents of Canada. The Report of the Conference on the Operation of Dominion Legislation, 1929, at one place, referred generally to the "Constitution Acts" of Canada. But this phrase was soon found to be inappropriate and was dropped, for the purpose of the Statute of Westminster, in favour of the phrase "British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder."1 Why then, does the act of 1949 (No. 2) refer to the "Constitution of Canada" and what does this phrase mean? As will be explained in Chapter I hereafter, the "Constitution of Canada" may mean either the whole body of basic rules governing the central State organization and activity in Canada, or only that restricted set of documents which forms the "fundamental law" of the land, unalterable by the unilateral action of any legislative body in Canada. The 1949 (No. 2) amendment has not altered these concepts although the scope of the "fundamental law" has been slightly restricted. The Statute of Westminster, 1931, still safeguards from the unilateral action of any legislative body in Canada a number of documents as such, although many provisions of these documents have come within the ambit of the legislative power of the federal Parliament through the 1949 (No. 2) amendment, in the same way as a number of other provisions were already within the amending power 'See infra, pp. 8-9.

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of either the federal or the provincial legislative bodies under previous constitutional documents.1 On the other hand, a few documents which were hitherto "safeguarded" have come entirely under the amending and repealing power of the federal Parliament as a result of the 1949 (No. 2) amendment. For instance, the amendments of 1875 and 1895, which were not specifically named in the safeguarding clause of the Statute of Westminster but were "safeguarded" only because they dealt with matters outside the competence of the federal Parliament,2 are no longer "safeguarded" because their subject matter is now fully within the competence of the federal Parliament. Nevertheless, these few documents are so closely related to those expressly safeguarded that they still might be included under the heading "fundamental law." Moreover, the 1949 (No. 2) amendment appears to be only a temporary device pending agreement upon an over-all procedure of constitutional amendment, as will be noted in reviewing the proceedings of the Constitutional Conference of January 1950. This alone would seem to be a sufficient reason for not upsetting the determination of the body of Canadian "fundamental law" as it existed before the 1949 (No. 2) amendment and which should, as a whole, become subject to an over-all procedure of amendment. Whether the phrase "Constitution of Canada" in the act of 1949 (No. 2) refers to this body of "fundamental law" or generally to the whole body of constitutional rules does not actually matter. All constitutional rules outside the "fundamental law" were already within the competence of the federal Parliament before the amendment, since the competence of Parliament had no limits except those set down in the "fundamental law." The only possible addition to the competence of the Parliament of Canada was therefore the competence over the "fundamental law." Attention should be drawn, however, to the closely similar language of section 92 of the act of 1867 which empowers the legislature of any province to make laws in relation to "the l See infra, pp. 40-3. "See infra, pp. 12 ff.

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Amendment . . . of the Constitution of the Province. . . ." The "Constitution of the Province" means the whole body of basic rules governing provincial State structure and machinery.1 The corresponding and similarly worded clause inserted in section 91 by the 1949 (No. 2) amendment as regards the amendment of the "Constitution of Canada" may therefore be presumed to refer also to the whole body of constitutional rules, whether part of the "fundamental law" or not, although many of these rules were already within the competence of the federal Parliament. For the sake of uniformity, however, the phrase the Constitution will be used until the end of this introduction in the same sense as in the rest of the book, i.e. in the sense of "fundamental law" as defined in Chapter I hereafter. Quotation marks will be used whenever the phrase "Constitution of Canada" shall be intended as an express reference to the wording, the scope of which does not matter, of the 1949 (No. 2) amendment. The new power of the Parliament of Canada to amend the "Constitution of Canada" is expressly subject to a number of exceptions which may be divided into five separate groups without altering the wording used in the amending act. Under the latter's terms, the new power of amendment does not apply as regards: (a) "Matters coming within the classes of subjects by this Act [1867] assigned exclusively to the Legislatures of the provinces"; or (¿0 "Rights or privileges by this [1867] or any other Constitutional Act granted or secured to the Legislature or the Government of a province"; or (c) "Rights or privileges by this [1867] or any other Constitutional Act granted or secured . . . to any class of persons with respect to schools" ; or (d) "The use of the English or the French language"; or (e) "The requirements that there shall be a session of the 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 'See infra, pp. 40-1.

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XXVÜ

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 onethird of the members of such House." As appears from this language, the 1949 (No. 2) amendment does not exclude from the operation of the new amending power of the federal Parliament any specific sections or provisions of the Constitution. It excludes matters which are described therein in more or less general terms. Parliament and, ultimately, the courts are left with the task of determining in each particular instance if an amendment or a proposed amendment by the federal Parliament falls within the "reserved" category. The last three of the five groups of "reserved" matters are probably the least susceptible to difficulties of interpretation. The wording used for the schools and the language groups is wide enough to safeguard from the legislative action of the federal Parliament, not only the well-known sections 93 and 133 of the Confederation Act, but also any provisions relating to schools or to the use of the English or the French language in any British or Canadian acts uniting provinces to Canada or creating new ones. The fifth group of "reserved" matters involves sections 20 and 50 of the Confederation Act which provide for a session of Parliament at least once each year and for a maximum life of five years for the House of Commons. These two provisions do not fall within the new federal power, except for a proviso which calls for comment. In time of real or apprehended war, invasion, or insurrection, the life of the House of Commons may be prolonged indefinitely by Parliament if such prolongation is not opposed by the votes of more than one-third of the members of such House. It should be noticed that this proviso does not require the favourable votes of either two-thirds of the members voting or two-thirds of all the members of the House. It requires only that the proposed prolongation be not opposed by the registered votes of more than one-third of the membership of the House at the time of voting—i.e.

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INTRODUCTION

vacant seats excluded. It is therefore sufficient that a bill extending the life of the House of Commons in the circumstances mentioned above be passed by simple majority votes in the Senate and in the House of Commons, like any other bill, and that the votes registered against the bill in the House of Commons do not exceed the one-third figure described above. Under this system, the mere abstaining from voting or absence from the House would not amount to a negative vote as if an actual two-thirds majority of all members of the House had been required. The first two groups of "reserved" matters have been the subject of much controversy since the passage of the amendment. It may be suggested here, however, that a close examination of the terms of the Act should not leave much doubt of their true scope. The provision describing the first group—"matters coming within the classes of subjects by this Act [1867] assigned exclusively to the Legislatures of the provinces"—has been so drafted as to match the language of section 92 of the Confederation Act under which "In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated . . . " The whole sphere of exclusive legislative jurisdiction of the provinces under section 92 therefore appears to be expressly safeguarded from the operation of the new power of the federal Parliament. The second group of reserved matters—"rights or privileges by this [1867] or any other Constitutional Act granted or secured to the Legislature or the Government of a province"—is so wide in scope that it even embraces the other. The first group, as pointed out, is specific in terms. The second is general so as to include, it seems, everything that a province, as a body politic—i.e. legislature and government, as opposed to mere geographical unit or social community within a larger political entity—possesses or exercises under the Constitution, and the manner in which it may or should so possess or exercise; this group includes, it seems, everything that pertains to provincial self-government as explained in Chapter V of this book.1 l

lnfra, particularly at pp. 161-4.

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Strictly speaking, a power to legislate may not be a "right or privilege." But the exclusiveness of the legislative powers of the provinces under section 92 of the Confederation Act is no doubt a "right or privilege" enjoyed by the provinces. Provincial legislatures possess as a "right or privilege," for instance, that subject matters such as the amendment of the constitution of the province, or property and civil rights in the province, or the administration of justice, do not become the subject of legislation by the federal Parliament. It is similarly a "right or privilege" of the legislatures that the provinces be not excluded from the sphere of concurrent legislation covering agriculture and immigration (section 95). Other examples of such "rights or privileges" are the legislatures' property rights in lands, mines, minerals and other assets (sections 109, 110, 113, etc.) ; their right to the integrity of the territories under their jurisdiction (sections 5, 6 and 7 of the act of 1867, section 3 of the act of 1871, etc.); their right not to have their acts disallowed by the GovernorGeneral-in-Council after the one year time limit provided by the Constitution (sections 56 and 90 of the act of 1867) ; etc. . . . It should be kept in mind, however, that the language of the 1949 (No. 2) amendment does not exclude from the operation of the new amending power of the federal Parliament the provisions of the Constitution setting down these or any other rights or privileges of the provincial legislatures or governments, but only the rights or privileges themselves. The actual result of this exclusion is to exclude from the operation of the new federal power certain constitutional provisions, but only in so far as any amendment or proposed amendment to these provisions would alter rights or privileges of a provincial legislature or government. In the same way, the restriction upon the new federal power of amendment cannot be regarded as a restriction with respect only to the constitutional provisions setting down provincial rights or privileges in express terms. Parliament is precluded from making any amendment—actually, from making any law at all—which would have the effect of altering any rights or privileges of the legislature or the government of a province. Parliament is thus precluded, in

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INTRODUCTION

particular, from enlarging its own sphere of jurisdiction. Federal and provincial powers, in Canada, together "cover the whole area of self-government"1 so that neither may be enlarged without correspondingly curtailing the others. Should Parliament attempt, therefore, to extend its legislative jurisdiction under section 91 of the Confederation Act, for instance, or to enlarge its power to perform treaty obligations of Canada under section 132, though without amending expressly any of the provisions setting down provincial rights or privileges, it would curtail "rights or privileges . . . granted or secured to the Legislature or the Government of a province" by the Constitution and thus exceed its powers under the 1949 (No. 2) amendment. The new amending power of the federal Parliament may now be determined more affirmatively. It would no doubt be misleading, and even inaccurate, to describe this power as one to amend the federal part of the Constitution, since it does not include the power to extend the federal sphere of jurisdiction. It may be more correctly described as a power mainly to alter the structure of the central government machinery and the rules governing its functioning. For instance, the Senate could be remodelled or abolished; the basis of representation in the House of Commons could be changed ; the rule providing that money bills should originate in the House of Commons could be repealed. Restrictions put on the exercise of certain powers by the federal Parliament could similarly be repealed or disregarded. Such is the provision that the privileges, immunities, and powers of the Senate and the House of Commons, as determined by the Parliament of Canada from time to time, shall not exceed those held by the House of Commons of the United Kingdom. The new amending power also embraces provisions which secured certain rights or privileges to the people of Canada generally, or to the people of the provinces as distinct communities but not as quasi-sovereign political entities. For instance, Parliament could repeal, disregard, or make exceptions to the rule that articles of the growth, Attorney-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571, at pp. 581, 583-4.

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XXXÍ

produce, or manufacture of any one of the provinces shall be admitted free into each of the other provinces. There are finally in the Constitution a number of sundry matters which come under the new federal power of amendment because they have no bearing on provincial rights or privileges as defined above. Such are, for instance, the preamble and the title of the British North America Act, 1867. The power of constitutional amendment vested in the federal Parliament by the British North America (No. 2) Act, 1949, thus applies only to classes of amendments which the federal Houses of Parliament were already competent, as will be explained in Chapter V,1 to request and secure from the Parliament of the United Kingdom without consulting the governments of the provinces. The Act only changed the venue where certain classes of amendments could be made, to use Mr. St-Laurent's words, in addition to giving a legal sanction to a situation which had been established by a definite constitutional practice. Of course, to have translated into statute law the former constitutional or "conventional"2 position does not make it any more proper, on its merits, and more suited to Canadian needs based on Canada's historical background and development. Moral grounds still exist in support of some foim of provincial participation in amendments affecting rights or privileges secured by the Constitution to provincial communities as distinct geographical and social units, though not as separate political entities.3 The new power of the federal Parliament has been assimilated to the power which the provincial legislatures already possessed under section 92, item 1, of the Confederation Act, to amend "the Constitution of the Province."4 It was claimed that the federal Parliament was to be in the same position as the provincial legislatures had been since 1867. It is true that the addition to section 91 matches to a large extent the language of section 92. But the comparison does 1 ! Infra, at pp. 168-82. As used by Dicey; see infra, pp. 3, 4, and n. 2. «See infra, pp. 172-82. 4 See Mr. St-Laurent's statements, Can. H. of C. Debates (unrevised), October 17 and 27, 1949, pp. 834, 1217; also Mr. St-Laurent's letter to the provincial premiers quoted in part supra, pp. xvi-xvii.

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INTRODUCTION

not take into account the specific checks and restrictions set by the Constitution upon the provincial power of amendment.1 Moreover, the constitutional set-up to which the provincial power of amendment applies is fundamentally different from the federal. A province is a small unitary state. Its government exercises its authority over a community which has never existed otherwise than as a single political unit, or part of a larger one. The federal sphere of government, on the contrary, embraces communities which have existed—and do still exist for certain purposes— as separate political entities, and have retained rights, within the central government set-up, as distinct geographical and social units. Such rights were made secure by the Constitution, in 1867, and were not left to the will of a mere parliamentary majority at Ottawa. The likeness in substance of the federal and provincial amending powers is therefore far from perfect. The 1949 (No. 2) amendment did not alter the method of amending the Constitution in respect of the matters excluded from the operation of the new power of the Parliament of Canada. The result of such exclusion was to preserve the method of amendment in use since Confederation—an act of Parliament of the United Kingdom. Attention should be drawn in this respect to the situation, to be described in Chapters V and VI, under which the federal Houses of Parliament in Canada are precluded from requesting, and the British Parliament from enacting, any amendment affecting rights or privileges of the provincial legislatures or governments without the latter's agreement. The act of 1949 (No. 2) has not altered this situation. On the contrary, if the Act is seen in the light of the debate which preceded the adoption of the address to the King by the federal Houses of Parliament, and in the light of the situation which will be described in Chapter V, the specific exclusion of provincial rights and privileges from the new sweeping powers of the federal Parliament constitutes an admission by the federal Parliament itself of its incompetence to deal with such matters. This exclusion, of course, does not have the effect 1

See infra, pp. 40-1.

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XXXÜÍ

of positively entrenching provincial rights or privileges. But, without giving such a legal sanction to what appears to be an established constitutional position, it constitutes a further confirmation of this position in fact. As regards the rights or privileges secured by the Constitution with respect to schools, or with respect to the use of the English or the French language, the situation is different, as will be explained in Chapter V. These matters were not safeguarded by the provincial sovereignty argument against interference at the request of the federal authority alone. They were not rights or privileges granted to any provincial legislature or government. Nevertheless, there were other grounds than strictly legal ones precluding the federal Houses of Parliament from interfering with such rights or privileges.1 The restriction provided by the 1949 (No. 2) amendment would appear as a recognition of the binding character—in moral and political terms, though not in strict law—of those grounds. The restriction respecting the requirements of the Constitution that there shall be a session of Parliament at least once each year, and that no House of Commons shall continue for more than five years (subject to a proviso in case of war), would not appear to have any effect on the right which Parliament previously possessed by constitutional practice to request from the British Parliament the enactment of any amendment on these matters.2 The restriction in the act of 1949 (No. 2) would appear only as a move to inspire the confidence of the Canadian people in the democratic "intentions" of the Government and Parliament of the day at Ottawa. The circumstances which surrounded the inclusion of this restriction in the amendment all lead to such an interpretation.3 One might seriously question, however, the wisdom of tying (or trying to tie) the hands of the federal Parliament in this regard. It should be pointed out, here, that the act of 1949 (No. 2) is not safeguarded, in law, against amendment merely at the request of the federal Houses of Parliament any more 'See infra, pp. 172-82. 'See infra, pp. 168-72. "See Can. H. of C. Debates (unrevised), October 18, 20 and 27, 1949.

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INTRODUCTION

than the "reserved" matters are safeguarded, in law, against such amendment. The Act is itself a "reserved" matter in the sense that it can only be amended by the British Parliament. But the pre-requisites to such action at Westminster are determined as for any other amendment, according to the specific object of the amendment.1 The reasons given above,2 in particular, why a mere request from the federal Houses of Parliament is not adequate to secure amendments affecting powers, rights or privileges of the provincial legislatures or governments, or rights with respect to schools, or with respect to the use of the English or the French language, would similarly apply to any proposed amendment of the 1949 (No. 2) act which would change the status quo in respect of the method of securing such amendments. The British Parliament did not play an important role in this latest constitutional development of Canada since it only complied with the wishes of the Canadian Houses of Parliament. But it is noteworthy that reference was made in the course of the short debates, both in the House of Lords and in the House of Commons, to the special position of the provinces under the Canadian federal system. Such short and casual observations obviously throw no light on the attitude which the British Parliament would take in the extreme case where a provincial government would carry to London its opposition to an amendment requested by the federal Houses of Parliament with respect to provincial rights or privileges.3 It may be suggested, however, that the specific exclusion of these matters, in the circumstances explained above, from the new federal power of amendment would provide an additional reason which the British Parliament could set forth for declining to act upon such a federal request. The Canadian Parliament could very well be told that it had itself recognized the limits of its right and authority to speak on behalf of the Canadian people, and that the British Parliament therefore feels so much more justified not to exceed such limits and to impair provincial rights. 'See infra, Chapters IV, V, and VI, pp. 135-203. pp. xxxii-xxxui. 'This hypothesis is considered in Chapter VI, infra, pp. 185-203. 2

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The provinces have gained, however, a more practical advantage from this latest amendment. Prior to this constitutional change, when the British Parliament alone could pass amendments which have now come to be within the competence of the Parliament of Canada, it is conceivable that an amendment enacted at Westminster, merely upon a federal request, might have affected provincial rights or privileges. The provinces would then have been faced with a fait accompli. To-day, should the federal Parliament assume the competence to pass an amendment to the Constitution which might appear to anyone as an infringement of provincial rights or privileges, the courts might be called upon to decide the matter. No similar recourse was possible against amendments passed by the Parliament of the United Kingdom. The power vested in the federal Parliament by the British North America (No. 2) Act, 1949, thus defined and circumscribed in the above pages, appears in the final analysis as a very restricted power. Despite its apparently sweeping terms embracing the whole "Constitution of Canada," it is a power of exception which was added to the other specified powers of amendment already set out in the Confederation Act and in subsequent constitutional documents.1 The problem of an over-all procedure of constitutional amendment remained unsolved. THE CONSTITUTIONAL CONFERENCE OF JANUARY 1950 The second step announced by the federal Government in the Speech from the Throne of September 15, 1949, dealt with this problem of an over-all procedure for amending the Constitution. After referring to the proposal which was to vest the federal Parliament with a limited power of constitutional amendment, the Speech from the Throne announced that the federal Government would seek early consultation with the governments of the provinces with a view to agreeing upon an appropriate procedure for making 'See infra, pp. 40-3.

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INTRODUCTION

within Canada "such other amendments to the constitution as may from time to time be required."1 On the same day, the Prime Minister of Canada forwarded to the premiers of the several provinces a letter inviting the co-operation of their governments to devise a "generally satisfactory method" of making within Canada any amendments of "those provisions of the constitution which concern both federal and provincial authorities."2 All ten provinces agreed to meet with representatives of the federal Government, and delegations headed by the provincial premiers and by the Prime Minister of Canada convened at Ottawa, on January 10, 1950, as the Constitutional Conference of Federal and Provincial Governments3—the first inter-governmental conference ever to be held in Canada solely on the subject of constitutional reform. Meanwhile, the Prime Minister, Mr. St-Laurent, discussed the purpose of the meeting at a press conference and dissipated any fears that a new procedure of amendment might be forced upon any of the provinces. He indicated that he did not think a new procedure to deal with provincial rights and privileges, which were excluded from the 1949 (No. 2) amendment, could be carried into force unless there was unanimous agreement among the federal and several provincial governments.4 He repeated this opinion at the Conference and referred to some of his earlier statements to the same effect in the House of Commons.5 At the outset of the proceedings, all provincial premiers agreed that the power to amend the Canadian Constitution should rest within Canada. Moreover, some of them advocated strongly the consolidating and redrafting of the Constitution so as to make it an entirely Canadian document, enacted and located in Canada.6 Few premiers proposed any l Can. 2

H. of C. Debates (unrevised), September 15, 1949, p. 4. This letter was referred to, supra, pp. xvi-xvii; complete references to the correspondence are at p. xvi, n. •See: Constitutional Conference of Federal and Provincial Governments, January 10-12, 1950, Proceedings (Ottawa, 1950). «Montreal Gazette, December 23, 1949. ^Proceedings, pp. 9-10. 'See particularly Mr. John B. McNair, Proceedings, pp. 24 ff.

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XXXVÍÍ

definite amending scheme, but the Ontario proposal of 19351 was frequently referred to as a suitable basis of discussion. The Premier of Nova Scotia, Angus L. Macdonald, presented a detailed submission based on this proposal.2 The The Canadian Prime Minister explained that the federal Government would not make any proposal. He said that since it was obvious that the federal Parliament would participate in any amending procedure, his Government felt that "the representatives of each of the provinces should put forward their views as to the most appropriate form of provincial participation."3 The most notable aspect of the opening proceedings was the way in which the Conference dealt with the 1949 (No. 2) amendment. The premiers of six provinces (Ontario, Quebec, Nova Scotia, New Brunswick, Saskatchewan and Alberta) objected to the amendment as it stood and insisted that it should be reconsidered by the Conference. The Premiers of three other provinces (Manitoba, British Columbia, and Prince Edward Island) proposed the consideration of an over-all procedure of amendment and thereby took for granted that the 1949 (No. 2) amendment should be reconsidered. The premier of the tenth province (Newfoundland) was the only one who did not touch upon the question. The Premier of Saskatchewan, Mr. Douglas, was most outspoken when he said: . . . The interpretation that we place on the step already taken is simply that action had to be initiated by someone, in some form, but that the content of the amendment was not necessarily designed to be permanent. If this is the proper interpretation, then we concur in the action of parliament, and congratulate the Prime Minister on his initiative. If, however, it is the thought of the Prime Minister and of the Dominion Government that the British North America (No. 2) Act, 1949, will permanently mark the area of unilateral action by the dominion parliament, then we wish to state quite definitely that it is unacceptable to us. We do not like it either in form or substance.4 'See infra, pp. 245-6. ^Proceedings, pp. 17-21, 51-4. 'Ibid., p. 10; also at pp. 84-5. *Ibid., p. 35.

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INTRODUCTION

The Premier of Nova Scotia, Mr. Macdonald, approached the question of the 1949 (No. 2) amendment from a different angle. He pointed out that the amendment raised serious problems of interpretation. First of all, he said, "what is meant by the phrase 'the Constitution of Canada?' " And he concluded: Mr. Prime Minister, I think it obvious at best that until these questions are answered it will be impossible to1 proceed with the discussion for which this Conference was called. The premiers of Ontario, Quebec and Alberta, Mr. Frost, Mr. Duplessis and Mr. Manning, did not raise the issue of the merits or demerits of the amendment, but objected to the piecemeal manner in which the problem had been handled by the federal Government and Parliament.2 The Premier of New Brunswick, Mr. McNair, who advocated the consolidating and redrafting of the Constitution, simply added that the 1949 (No. 2) amendment "should be most carefully reviewed before being carried into Canada's proposed new constitution."3 Mr. St-Laurent replied on behalf of the federal Government that he had no objection to the discussion of the whole problem of the procedure for amending the Constitution. He had no desire to let the 1949 (No. 2) amendment stand as an obstacle to an over-all solution on which the Conference might reach agreement. He made it clear, however, that he was not suggesting that the federal Government would be prepared to ask for the repeal of the amendment if no over-all procedure was agreed to.4 Mr. St-Laurent explained that he could not admit the amendment of 1949 (No. 2) was an encroachment on provincial rights. But he could agree to the repeal of this amendment on the grounds that "the existing constitution may very well lack some things which we would agree it should contain." He went on: As an illustration, there has been a suggestion in the views put forward here that the provincial legislatures should be the l lbid., p. 19. "Ibid., pp. 13, 15, 41-2. 3 Ibid., p. 25. As to the position taken by the premiers of Manitoba, British Columbia, and Prince Edward Island, see ibid., pp. 26-32. 'Ibid., pp. 46-7, 54-5, 68-9.

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bodies speaking for the population of their own respective provinces in respect of some of the matters within the jurisdiction of the federal authorities. That is not there now. It perhaps would be quite proper that it be there, and we are quite prepared to consider with you gentlemen putting there something that is not already provided for.1 At the end of the second day of the Conference, a committee composed of the Attorney-General of Canada and the attorneys-general of the provinces was set up to draft a plan which might be agreeable to all and might serve as a basis for further discussion. On the following morning, the Committee submitted to the Conference a unanimous report recommending that the provisions of the British North America Acts, 1867 to 1949, and other constitutional acts, be grouped under six different heads and be made subject to amendment as follows : (1) Provisions concerning only the Parliament of Canada: by act of the federal Parliament alone ; (2) Provisions concerning only the legislatures of the provinces: by act of the legislatures concerned; (3) Provisions concerning the federal Parliament and one or more, but not all, of the provincial legislatures: by acts of the federal Parliament and of the legislatures concerned; (4) Provisions concerning the federal Parliament and all the provincial legislatures: by acts of the federal Parliament and of "such majority of the legislatures and upon such additional conditions, if any, as may be decided upon;" (5) Provisions concerning "fundamental rights (as for instance but without restriction, education, language, solemnization of marriage, administration of justice, provincial property in lands, mines and other natural resources)," and the amendment of the amending procedures: by acts of the federal Parliament and of the legislatures of all the provinces; (6) Provisions which should be repealed. It was also recommended that the process of amendment in respect of groups (3) to (6) inclusive be capable of being initiated by one or more of the provincial legislatures or by the federal Parliament. The Committee finally expressed the opinion that the Ubid., p. 68; see also pp. 70-1.

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INTRODUCTION

subject of delegation of powers should be placed upon the agenda of the Conference.1 This report was accepted by the full Conference and a standing committee composed of the attorneys-general or their representatives was set up to iron out the details of this basic agreement. The federal and provincial governments agreed to submit to the Committee, "with the least possible delay," their views respecting the classification of each section of the British North America Act, 1867, as amended, and of all other constitutional documents of Canada. It would then fall upon the Committee to use its best efforts to harmonize the views of the federal and provincial governments and to report to them the results of its work. The full Conference would re-assemble in due course to determine finally the amending procedure to be recommended to the several legislative bodies concerned.2 The Conference thereupon adjourned after making arrangements for the appointment of a secretariat to the Standing Committee. At the time of writing, no further development has been made public. It will be noticed that, despite the indubitable spirit of co-operation which reigned over its proceedings, the Conference did not carry the federal and provincial governments closer to an agreement than the Committee of 1935-36,* although the sanction by a conference is, of course, of more value than the sanction by a committee. The Conference only agreed to group the provisions of the Constitution under six different headings with different procedures of amendment. The Standing Committee has been left with the task of reaching agreement on two most difficult problems: 1. Grouping the provisions of the Constitution; 2. Determining "such majority of the legislatures" and "such additional conditions, if any" to be required for amendments concerning the federal Parliament and all provincial legislatures. Wide divergences of opinion on these problems were shown during the Conference. For instance, Mr. Frost made the sugges1

Appendix V, ibid., p. 117. 'See the resolution respecting the Standing Committee of the Conference, Appendix VI, ibid., p. 118. «See infra, pp. 246-9.

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tion that it might be proper to require the concurrence of the legislatures of all the provinces to make amendments with respect to the legislative jurisdiction of the provincial legislatures. And so as to avoid any misunderstanding he added : I am conscious of the fact that this includes all of Section 92.1 But Mr. Douglas vigorously opposed any such suggestion. He said at one point: I submit, Mr. Chairman, that these things which are basic to a provincial economy certainly cannot be classified as fundamental in terms of requiring unanimous consent. . . . If you put all of 92 into the clause [headed "fundamentals"] then you must have unanimous consent. It seems to me you are going to put the Canadian people in a straightjacket if you do that.2 Mr. Douglas went further. He even objected to Mr. Macdonald's suggestion that item 13 (Property and civil rights in the province) and only two other items of section 92 be included under the heading "fundamentals." He said: I especially want to mention again, as I did this morning, the question 13 under 92, namely, property and civil rights. Certainly if that comes under the clause requiring unanimous consent it would postpone for many a day the making of many of the changes that are now being recognized as socially desirable, and which are now in effect in other parts of the world, such as contributory social security programs, national labour codes, and things of that sort.3 He had previously said with reference to Mr. Macdonald's proposal : . . . That would be imposing a rigidity upon amendment of the constitution which would make the position no better than it has been. So far as the amendment of the constitution is concerned, it still lies with the parliament of Canada by an address to Westminster. While that is a difficult procedure, I would much rather have a difficult procedure than an impossible procedure. In our opinion too rigid a procedure would be an impossible procedure. We prefer to have it the way it is rather than impose too great a rigidity in the amendment.4 Proceedings, p. 50. *Ibid., p. 79. 3 Ibid. *Ibid., p. 60.

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INTRODUCTION

Although such differences of political philosophies, which engender correspondingly different conceptions of Canadian federalism, leave one in doubt as to the ultimate result of negotiations through the Standing Committee, it should be observed that circumstances are much more pressing for an agreement to-day than they were in 1936. The sense of Canadian nationalism, particularly as it arose out of Canada's participation in international affairs since the second world war, calls for the repatriation of Canada's Constitution and for dealing with it through entirely Canadian agencies. Almost every Canadian admits to-day that the amending of the Constitution through an act of Parliament at Westminster is a vestige of colonialism which is hardly in accord with Canada's status as a fully grown-up nation and which should be abandoned by Canada as by all other Commonwealth countries. The present process of amendment is also unsatisfactory because it is uncertain. On the one hand, many students of the Constitution and political observers who favour constitutional reforms involving changes in the allocation of legislative jurisdiction claim that such reforms are barred by the impossibility "in practice" of securing them without the agreement of all provincial governments. On the other hand, the practice in recent years of more or less automatic action at Westminster, merely upon requests from the federal Houses of Parliament, has given rise in some quarters to fears that such practice might be followed in cases involving rights or privileges of the provincial legislatures or governments, despite the situation described in Chapters V and VI hereafter. Moreover, the enactment of the British North America (No. 2) Act, 1949, has created a state of uneasiness with respect to certain rights of the provincial communities within the central government machinery, and, rightly or wrongly, even with respect to the rights and privileges of the provinces as bodies politic which are said to be safeguarded by the 1949 (No. 2) amendment. Observations made at the January, 1950, Conference, by the premiers of almost every province, are significant in this respect.

INTRODUCTION

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All these factors lead one to believe that the general desire, which was exhibited at the Conference, to reach an early agreement upon an over-all procedure of amendment was genuine and more determined than ever in the past. The task of reaching such an agreement appears to-day to be compelling. It stands as a challenge to the sense of nationhood of the Canadian people and to the capacity for statesmanship of its political leaders. Let us hope that the challenge will be taken up successfully!

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PART I

THE CONSTITUTION OF CANADA

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CHAPTER I

THE CONSTITUTION DEFINED THE constitution of a country, defined in general terms as the body of basic rules governing State organization and activity, may not always be readily determined as a distinct part of public law. The exact location of its common boundary with administrative law is a matter of convenience and personal choice which rests with each individual student of law or official codifier. In the United Kingdom, where there is no codified constitution, the sources of the body of rules which is called the British constitution are complex and are not distinct in form from the sources of the other branches of law. They lie partly in legislation; partly in judge-made law; partly in "the law and custom of Parliament"; partly in conventions which have grown up and have evolved according to changing needs. In continental Europe and, indeed, almost all over the world, there has been no smooth and progressive development of political institutions such as in Britain. From time to time, great revolutions have overturned the established order; or a nation has freed itself from the rule of a foreign master; or a new state has emerged from the union of smaller political units; or other analogous causes have brought the need for an extensive reshaping and a formal determination of political institutions. Moreover, the method of laying down rigid general principles has received more favour than under the flexible British system. As a result, it has long been the practice to embody most of the constitution in a single document intended to be the "fundamental law" of the country, although even here statute law, conventions, and rules developed by the courts, may still find an important place in the constitution. Nevertheless they are only subsidiary sources, dependent on the "fundamental law." For this reason, such a "fundamental law," or the document containing it, is itself called "the Constitution."1 'Written with a capital "C" as being the title of a document. 3

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This distinction between the word "constitution" as used in Great Britain, in its broad and primary meaning, and the phrase "the Constitution" as used elsewhere with reference to a document containing actually only the fundamentals of the law of the constitution, is of the utmost importance for the sake of clarity and understanding. The distinction, however, is not only as to the scope of the object involved; it is also as between legal systems. Outside Great Britain, the document called "the Constitution" is regarded as being over and above all other rules of law—a characteristic unknown to the British legal system which admits of no "fundamental law" other than those which emanate from the supreme Parliament. Such a constitutional document is usually protected against alteration by the simple process of legislation. This safeguard becomes more necessary, of course, in the Constitution of federal states1 where the legislative power is not vested entirely in a single authority but is allocated partly to a central government and partly to regional autonomous governments. Under this dual system of "fundamental law" and "ordinary" law, one may avoid the use of the ambiguous word "constitution" with reference to the whole body of constitutional rules, irrespective of whether they happen to be embodied in the actual document. The phrase "the Constitution" may be used to describe the document or set of documents containing the "fundamental law," while the whole body of constitutional rules may conveniently—and quite correctly, as Jennings points out— be described as "constitutional law," despite Dicey's reference to it as "so-called constitutional law."2 'The word "federal" is used throughout this book both with reference to the central government, as in the phrase "the federal Cabinet," and with reference to the type of government under which the exercise of the sovereign powers of the State is divided between a central government and regional governments as in Canada, the United States, Switzerland, Australia. (For a definition or description of that type of government, see K. C. Wheare, Federal Government (London, 1946), pp. 1-34.) In French, a practice has developed in recent years, particularly amongst French Swiss writers, under which the word "fédératif" is used with reference to the type of government, as in the phrase "un Étal fédératif," while the word "federal" is applied only to the central government organization as in the phrase "le cabinet fédéral." Although the word "federative" exists in the English language, the word "federal" seems to be indistinctly used. I have2 therefore adhered to this practice. Dicey distinguished what he called the "conventions of the constitution" (i.e. constitutional practices and tacit understandings) from "the law of the constitution" (i.e. rules enforced by the courts), and he regarded only the latter

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5

In Canada, some writers refer to the British North America Act, 1867, as amended from time to time, as being "the Constitution" (sometimes written with a small "c"). Others insist on referring to it only as "the written part of the constitution." The lack of uniformity in terminology is easily explained. Most students of constitutional law in Canada were instructed first in English constitutional law and many of them have thus been accustomed to use the word "constitution" in its broad meaning as it is used in Great Britain. Furthermore, Canada does not possess any constitutional document called "the Constitution" or "the Constitution Act." Her constitutional rules are to be found in British and Canadian acts of Parliament, in British orders-in-council, in the conventions of the constitution inherited from Britain or developed on Canadian soil. Judicial decisions also constitute an important source of constitutional law especially in that part involving the Canadian federal system. Although a number of rules from these sources might have been regarded since their enactment as being in the nature of a "fundamental law," they lacked the cohesion of a document or of a definite set of documents distinct from the rest of-the law. For instance, the constitutional rules embodied in acts of Parliament of the United Kingdom (such as the British North America Act, 1867) were no doubt in the nature of a "fundamental law" since they were outside the repealing and amending power of the Canadian Parliament and provincial legislatures. But many British acts which applied to Canada dealt with topics of no constitutional bearing at all, such as matters of administrative law1 or even of private law. There was no difference in form between these acts and those which might be termed "constitutional"; they all had the same force of operation (the later in date superseding as the true constitutional law while Jennings considers both as coming under this heading. See: A. V. Dicey, The Law of the Constitution (9th éd., London, 1939, where the text as last revised by the author in 1914 appears intact), pp. 22-35; W. Ivor Jennings, The Law and the Constitution (3rd éd., London, 1943), pp. 65-73. The whole subject matter of the above paragraphs is treated, particularly with reference to the British constitution, in F. W. Maitland, The Constitutional History of England (Cambridge, 1908), pp. 526-39; Dicey, op. cit., pp. 1-35; and the more critical work of Jennings, especially at pp. 7-8, 32-40, 61-78. 'The term must be used in spite of its vagueness.

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the earlier ones), since any idea of a "fundamental law" is unknown to the British legal system. All British acts applying to Canada were thus equally "fundamental law" in the eyes of the Canadian legal system although they did not all embody constitutional rules.1 This was the position when Canada was still, in terms of strict law, a colony. But since the enactment of the Statute of Westminster, 1931, the characteristic of "fundamental law" in Canada applies only to a restricted set of constitutional documents. As we shall see, this set of documents does not appear in a unified form under a single cover, like The Constitution of the United States or La Constitution de la République française, where amendments are plainly called amendments. Nevertheless, in view of its characteristic of "fundamental law" which places it beyond the ordinary competence of any legislative body in Canada—which is distinctive of any "Constitution" in the restricted sense of the word—this set of documents ought to be termed, it seems, The Constitution of Canada. By section 2 and section 7(2) of the Statute of Westminster federal and provincial legislation in Canada were removed from the operation of the Colonial Laws Validity Act, 1865, and are not now subject to the legislative supremacy of the United Kingdom Parliament.2 All British acts which still applied to Canada in 1931 thereby fell under the repealing and amending power of the appropriate legislative 'See in this respect H. McD. Clokie, "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), pp. 1-32, particularly at pp. 3-10. "Section 2 of the Statute of Westminster reads as follows: "2. (1) 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." Sub-section (2) of section 7 of the Statute reads: "(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." The full text of the Statute appears as Appendix A to this book, infra, pp. 285-8.

THE CONSTITUTION DEFINED

7

bodies in Canada on an equal footing with the acts passed by these bodies themselves. That is to say, British acts ceased to be "fundamental law" in Canada. As a measure of exception, however, a number of constitutional documents were excluded from the operation of the Statute and remained subject to the legislative supremacy of the Parliament of the United Kingdom. This restriction did not result from any desire on the part of the British authorities to preserve a means of control over the Canadian Constitution. It was requested by the Canadian federal and provincial authorities themselves in order to preserve a number of constitutional documents as a "fundamental law," unalterable by the simple process of legislation at Ottawa or in the provincial capitals, until agreement could be reached in Canada upon a more appropriate method of safeguarding this characteristic of "fundamental law." No such agreement has yet been reached, and the Statute of Westminster is still the controlling instrument.1 The exclusion of a number of documents from the operation of the Statute and, thereby, the determination of the present "fundamental law" of Canada is provided by section 7(1) of the Statute which is set forth in these terms : 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.

As a result of this provision, the Colonial Laws Validity Act, 1865—which was being rendered fully inoperative as regards Canada and its provinces by section 2 and section 7 (2) of the Statute mentioned above—shall continue 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. Accordingly, under section 2 of the Colonial Laws Validity Act, any federal or provincial law in Canada which is or shall be in any respect repugnant to the provisions of the British North America Acts, 1867 to 1930, or repugnant to any order, rule, or regulation made under the authority of these acts, shall, to the extent of 'The attempts made to devise a new method of constitutional amendment are reviewed in Chapter V I I I , infra, pp. 221 ff.

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such repugnancy, be void and inoperative.1 The competence of the several legislative bodies in Canada is not only exclusive of the power of formal repeal, amendment, or alteration of certain acts and orders, but exclusive of the power to pass any law or any provision of law incompatible with any of them. The Colonial Laws Validity Act, 1865, appears, then, as the first document excluded from the operation of the new repealing and amending powers conferred upon the Parliament of Canada and the provincial legislatures in 1931. Within the scope determined by the Statute of Westminster, it stands at the forefront of Canadian constitutional documents. This act which was originally enacted to define and circumscribe the principle underlying the supremacy of the acts of Parliament of the United Kingdom in the colonies to-day serves to preserve and to determine the characteristic of "fundamental law" in Canada of all documents which are subject to it. The effect of the Statute of Westminster upon the Act was only to restrict its operation to certain constitutional documents. To determine which documents are subject to-day to the Colonial Laws Validity Act and thus, together with that Act, make up the Constitution of Canada is not so simple a matter as the wording of section 7(1) of the Statute quoted above might lead one to expect. Of course, the task of defining the Constitution in the Statute of Westminster was not an easy one. The Conference on the Operation of Dominion Legislation, 1929, had drafted a clause of general application which was intended to safeguard "the Constitution Acts of the Dominion of Canada, the Commonwealth of Australia, and the Dominion of New Zealand."2 Although Section 2 of the Colonial Laws Validity Act, 1865, reads as follows: "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 2inoperative." The full clause reads: "(1) Nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution Acts of the Dominion of Canada, the Commonwealth

THE CONSTITUTION DEFINED

9

the clause was open to criticism in many respects, the reference to "the Constitution Acts" of Canada in itself raised a serious problem of interpretation. Both Australia and New Zealand were governed by "Constitution Acts," but no act relating to Canada bore that title. The whole clause was therefore dropped at the Imperial Conference, 1930. A few months later, a conference of the representatives of the federal and provincial governments in Canada met at Ottawa and agreed to the present section 7 of the Statute in which the documents to be excluded from the new powers of the several legislatures in Canada were described in these words : . . . the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.1

The first part of the quotation—"the British North America Acts, 1867 to 1930"—is a statutory expression defined in the British North America Act, 1930. Its origin goes back to the British North America Act, 1886, which provided for its own citation together with the original act of 1867 and the British North America Act, 1871, as the "British North America Acts, 1867 to 1886." In turn, the British North America Acts passed in 1915, 1916, and 1930 added themselves to the list so that the expression appearing in section 7(1) of the Statute of Westminster covers the act of 1867 together with the five amending British North America Acts of 1871, 1886, 1915, 1916, and 1930.2 When this definition was provided for in 1930, the British North America Act, 1916, had already been "repealed" by the of Australia, and the Dominion of New Zealand, otherwise than in accordance with the law and constitutional usage and practice heretofore existing." (Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, referred to hereafter as Report of the Conference on the Operation of Dominion Legislation, 1929, London, Cmd. 3479, par. 66.) 'The stages which preceded the enactment of this clause as well as of the whole Statute of Westminster are set out in some detail, infra, at pp. 96 ff. 2 H. McD. Clokie has suggested that the act of 1916 providing for a one-year extension of the term of the then existing Parliament was dropped when the fourth definition was made in the act of 1930. ("Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), p. 10; also, Canadian Government and Politics (Toronto, 1944), p. 270.) This suggestion does not seem to be in accord with the terms of the act of 1930 itself which provides for the definition as follows: "3. This Act may be cited as the British North America Act, 1930, and the British North America Acts, 1867 to 1916, and this Act may be cited together as the British North America Acts, 1867 to 1930."

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Statute Law Revision Act, 1927. But, as we shall see later,1 the several Statute Law Revision Acts passed from time to time by the British Parliament do not alter the law and ought therefore in this connection to be disregarded. Although the main provision of the amending act of 1916 is spent, its citation clause is still needed to understand the definition of 1930 which refers to it.2 The phrase "British North America Acts, 1867 to 1930," thus defined in 1930 and used in the Statute of Westminster is greatly deficient if the framers of the Canadian clause in the Statute (section 7) intended to refer expressly not only to the original act of 1867 but also to all its amendments. Four British acts passed in 1875, 1889, 1895 and 1907 respectively, which may be considered as amending acts, as will be seen in the following chapter, are not mentioned in the above definition. This oversight was acknowledged incidently at Ottawa in a proposed constitutional amendment embodied in an address to His Majesty which came before Parliament in 1936 but was turned down by the Senate for reasons not relevant here. The draft bill which dealt with questions of jurisdiction in fiscal matters provided that it should "apply and have full force and effect notwithstanding anything contained in the British North America Acts, 1867 to 1930, the British North America Act, 1907, the Parliament of Canada Act, 1875, the Canada (Ontario Boundary) Act, 1889, the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2, . . ."3 The citation clause of the draft bill, however, was less ambitious. It included under the title "British North America Acts, 1867 to 1936," only the act of 1907 and the proposed act of 1936, in addition to the series of 1930.4 It was thought appropriate, it seems, that the collective title "British North America Acts" should cover only acts which, individually, bore the title "British l

lnfra, p. 131.

2 Sce 3

the definition of 1930 quoted supra, at p. 9, end of n. 2. It continued: " . . . or any Acts, orders, rules and regulations passed or made thereunder or pursuant thereto establishing a province or admitting a colony or province into the Union or affecting the constitutional relationship between Canada and a province." (Can. II. of C. Journals, 1936, pp. 333-4, 337-8.) *Ibid. Further reference to this proposal of constitutional amendment is made, infra, at p. 149 and n.

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11

North America Act." No attempt was made to give a collective title to all the constitutional documents cited above. It was not until 1940 that the first amendment to the Constitution following the enactment of the Statute of Westminster was actually secured. Its citation clause, modeled on that of the proposed act of 1936, simply provided that the new act could be cited together with the British North America Acts, 1867 to 1930, and the British North America Act, 1907, as the British North America Acts, 1867 to 1940. This provision, of course, did not bring the act of 1907 under the express terms of the safeguarding section of the Statute of Westminster because it left unaltered the statutory definition of 1930 and bore no indication that the new expression should be substituted for that of 1930 in the Statute.1 The form of citation provided by the act of 1930 and used in the Statute also fails to include all amending acts which have been passed since 1930 or may be passed in the future. Such important amendments have actually been enacted in 1940, 1946 and 1949.2 It would be ironical enough if these amendments as well as those of the future should lack the protection which was originally intended to extend in broad terms to the "Constitution Acts" of Canada.3 The events which led to the dropping of this latter phrase and the drafting of the Canadian clause of the Statute at the federal-provincial Conference of 19314 would lead one to believe that this change of wording was intended to place 'H. McD. Clokie has expressed a different opinion: "Finally, in 1940, a new definition retroactively inserts the Act of 1907, together with the new Act of 1940, in the series of British North America Acts, 1867 to 1940. . . . One may speculate on the effect of this recent amendment on the Acts as preserved by the Statute of Westminster. The procedure of tacking an earlier Act to the short title section of a post-statute amendment is undoubtedly a reprehensible method of producing a retrospective change in the provisions of the Statute of Westminster." ("Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), p. 11; see also p. 2.) It is submitted here that the "new definition" of 1940 applies to a new expression ("1867 to 1940," instead of "1867 to 1930") which has nothing to do with the Statute of Westminster and is given only for the purpose of future reference. "Including the 1949 (No. 2) amendment, the British North America Act, 1943, providing for the postponement of the readjustment of seats in the House of Commons due to take place after the census of 1941, though an amending act still appearing on the statute book, had a purely temporary character and is now spent. 'See supra, p. 8 and n. 2. •These events will be reviewed in Chapter III, infra, pp. 96-102.

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beyond any doubt the incompetence of both the federal and provincial legislative bodies in Canada to deal with the act of 1867 and all its amendments. The result would not appear to be fully in accord with such intention. The lack of any express reference, in the safeguarding clause of the Statute, to four amending acts prior to 1931 and to all subsequent ones does not mean, however, that these acts are not safeguarded against alteration by the unilateral action of any legislative body in Canada. On the contrary, the existence of such a safeguard becomes apparent from the moment one asks oneself what body in Canada might be competent to repeal or to alter these acts, or to affect them in any way. As pointed out earlier,1 both provincial and federal legislation in Canada were removed from the operation of the Colonial Laws Validity Act. The provincial legislatures as well as the federal Parliament were empowered to enact legislation repugnant to the British acts applying to Canada. But, while providing for this new power, the Statute of Westminster also expressly precluded both Ottawa and the provinces from enacting any law repugnant to the "British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder." The distribution of legislative jurisdiction provided by these documents was therefore safeguarded. For instance, an act of the legislature of the province of Quebec providing that the Supreme Court of Canada should be, in future, the exclusive ultimate court of appeal in all cases originating in the province of Quebec, notwithstanding anything in the Judicial Committee Acts of 1833 and 1844 and notwithstanding any royal prerogative, would be unconstitutional and invalid because repugnant to the British North America Act, 1867, which allocated to the federal Parliament alone the power to "provide for the constitution, maintenance, and organization of a general court of appeal for Canada."2 1 Supra, 2

pp. 6-7. Section 101. See Attorney-General for Ontario and Others v. AttorneyGeneral for Canada and Others, Attorney-General for Quebec (Intervener), [1947] A.C. 127; [1947] 1 D.L.R. 801. Under this power, the federal Parliament has actually provided, in 1949, that the Supreme Court of Canada shall have such exclusive ultimate appellate jurisdiction for Canada, by passing an "Act to amend the Supreme Court Act," assented to on December 10, 1949, and brought

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When the Statute of Westminster was framed this safeguard was not considered to be adequate. A separate clause was drafted expressly to confine Ottawa and the provinces to their respective fields of jurisdiction in the exercise of their new powers. This provision appears as sub-section (3) of section 7 of the Statute. It reads : (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.

This provision does not simply preclude Ottawa and the provinces from using their new powers to encroach upon each other's jurisdiction; it restricts these powers to matters "within" their respective legislative competence. This distinction is not without importance since the powers of the federal Parliament are not only limited by those of the provincial legislatures; they are also limited by the terms of the Constitution, that is, of the British North America Acts, 1867 to 1930, and of any other documents which may be considered hereafter as enjoying the status of "fundamental law." For instance, previous to the amendment of 1946, the Act of Confederation provided that the province of Quebec should have a fixed number of members in the House of Commons and that the representation of the other provinces should be based on that of Quebec under certain rules.1 This provision precluded the federal Parliament from enacting, for example, that all the provinces should be represented on the basis of one member for every 40,000 of population although such action would not have encroached upon the legislative jurisdiction of the provinces. This situation does not conflict with the well-known doctrine that the powers distributed between Ottawa and the provinces cover the whole area of self-government within Canada.2 The Judicial Committee carefully circumscribed into force by proclamation of the Governor-General-in-Council as of the date of publication thereof in the Canada Gazelle, Extra No. 16, December 23, 1949; see Canada Gazelle, vol. 86 (1950), pp. 43, 71. 'Section 51 of the British North America Act, 1867; see also section 52. z A Homey-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571, at p. 581.

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this doctrine when it laid it down in 1912. Lord Loreburn said in delivering the judgment of the Board: " . . . If the text [of the Constitution] is explicit the text is conclusive, alike in what it directs and what it forbids. . . . If the text says nothing expressly . . . 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."1 The powers of the Parliament of Canada are thus limited by the terms of the Constitution in general, and not only by the few provisions of that Constitution determining the legislative powers of the provinces. The federal power to make laws for the peace, order, and good government of Canada in relation to all matters not exclusively assigned to the provinces, as provided by section 91 of the Confederation Act, holds only subject to the terms of the entire Act and of the other safeguarded documents. One may now ask oneself whether a federal or a provincial law altering or affecting in any way one of the amending acts not expressly included in the phrase "British North America Acts, 1867 to 1930," would be a law "in relation to matters within the competence" of the Parliament of Canada or of a provincial legislature, as the case might be, in accordance with sub-section (3) of section 7 of the Statute of Westminster mentioned above. The answer to this question turns upon the definition that one gives of what constitutes an amending act. It will be the object of a later chapter to offer such a definition and to examine each amendment individually.2 Be it sufficient to say here that an essential feature of an amending act is that it performs a service which no machinery under the Constitution can perform because it is repugnant to the terms of that Constitution. That is to say, an amending act deals, essentially, with a matter which is not within the competence of any of the legislative bodies in Canada. Under section 7(3) of the Statute, the federal Parliament and the provincial legisl lbid., 2

at pp. 583-4. Chapter III, infra, pp. 47 ff.

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15

latures are precluded from dealing with any such matter which is not within their respective competence, quite apart from the document in which the matter was last dealt with— whether it be one of the British North America Acts, 1867 to 1930, or not. A brief glance at these unspecified acts will, perhaps, clarify their position. The amendment of 1875, for example, replaced original section 18 of the Confederation Act which determined the extent of the power of the Canadian Parliament to define the privileges, immunities, and powers of the Senate and House of Commons.1 Such a determination as originally made by the act of 1867 was a matter outside the competence of Parliament—and, of course, of the provincial legislatures. This is the reason why an amending act at Westminster was needed to make a change in it. By the amendment of 1875 the matter acquired a new form; the determination of the power of Parliament to define its own privileges was altered. But this determination of power—the "matter" of the amending act—was not brought within the competence of Parliament ; nothing in the amending act itself would warrant such a contention. It seems, therefore, that in dealing with the act of 1875 the federal Parliament would deal with a matter outside its competence and thereby contravene the provisions of the Statute of Westminster.2 The amendment of 1889 which altered the boundaries of Ontario is a simpler case.3 Under the act of 1867 the federal Parliament was not competent to alter provincial boundaries. The amending act of 1871, however, provided that such alterations could be made in Canada by concurrent legislation of Ottawa and of the province or provinces concerned.4 The alteration of provincial boundaries is therefore a matter clearly outside the competence of the federal Parliament acting alone, quite irrespective of the document where such boundaries might be defined. 'This amending act will be examined, infra, pp. 58 ff. This was the situation up to the enactment of the British North America (No. 2) Act, 1949. As explained in the Introduction to this book, the amending act of 1875 should still be considered as part of the Constitution although its provisions are now probably within the repealing and amending power of the Parliament of Canada. (See supra, p. xxv.) 'This act will be examined, infra, pp. 62 ff. 'See infra, p. 42. 2

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The amending act of 1895 raises a peculiar problem.1 It is one of those acts passed "for removing doubts" concerning the validity of certain Canadian acts.2 The act of 1895 is considered in this study as dealing with a matter which was outside the competence of the Canadian Parliament and it is accordingly considered to be outside the repealing and amending power of that Parliament on the grounds explained above. Should the federal Parliament decide to pass a law amending or affecting in any way this amending act the question of the constitutionality of such a step might be raised before the courts. Only one question would then require to be answered: Did the act of 1895 perform a service which was actually within the competence of the Canadian Parliament or not? Should the answer be yes, the service performed ivas within the competence of the Canadian Parliament, the act of 1895 would fall under the unfettered powers of that Parliament. Should the answer be no, it would seem that the Canadian Parliament could not deal with the act because it would be attempting to deal with a matter outside its competence.3 The act of 1895 is accordingly considered here as part of the fundamental law of Canada, subject to this reservation. The amending act of 1907 relating to the federal subsidies paid annually to the provincial governments need not be examined here, and its status as an amendment will be fully considered later.4 It is sufficient to say that inasmuch as it is an amendment it performed a service which could not be performed in Canada. To that extent its object was, and still is, a matter outside the competence of the federal Parliament, and as such, could not be dealt with by the unilateral action of Parliament. As regards amendments subsequent to 1931 the problem does not appear to be in any way different. The act of 1940 made a change in the allocation of legislative jurisdiction between the federal Parliament and the provincial 'For additional details, see infra, pp. 71 ff. "The quotation is from the title of the amending act itself, the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2. 3 The observations made with respect to the amendment of 1875, supra, at p. 15,4 n. 2, apply here similarly. Infra, pp. 74 ff.

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legislatures by inserting the topic of unemployment insurance among the federal powers in section 91 of the Confederation Act.1 Such a change in the allocation of jurisdiction is clearly not a matter falling within the competence of any legislative body in Canada. It has been suggested that although the provinces would be precluded from repealing the act of 1940 the federal Parliament could do it on the ground that it would thus deal with a matter within its own competence.2 This suggestion is based on the assumption that the amendment of 1940 dealt purely and simply with unemployment insurance—a matter now within the competence of Ottawa. But only a superficial view of the amendment, it seems, may lead to such an assumption. Strictly, the matter involved was the allocation of legislative jurisdiction (on unemployment insurance), and thus the federal Parliament in dealing with the amendment would be dealing with a matter affecting its own legislative power. This is precisely what section 7(3) of the Statute of Westminster precludes in restricting the powers of the federal Parliament to matters "within" its competence. The amendment of 1943 was made to postpone until the end of the war then in progress the readjustment of seats in the House of Commons which was due to take place after the decennial census of 1941.3 This amendment is now spent. But before becoming so, it was a document obviously outside the amending power of the federal Parliament. Any Canadian law providing, for example, that such readjustment should have been made only five years after the end of the war would have been totally invalid. The matter dealt with in the amending act—the time of the readjustment of seats— was a matter outside the competence of the federal Parlia*The amendment is examined, infra, pp. 104 ff. 2 This suggestion was made by K. C. Wheare in the recent editions (London, 1942 and 1947) of his book The Statute of Westminster and Dominion Status. He wrote: "Since the passing of the Statute, there has been enacted the British North America Act, 1940, which places unemployed [sic] insurance under the exclusive control of the Dominion Parliament. This Act is not safeguarded by section 7(1) of the Statute and it seems therefore that it may be repealed by the Dominion Parliament. At the same time it appears to be safeguarded against repeal by the Provinces by section 7(3) of the Statute" (p. 188, n. 2, in both editions.) In the 1947 edition, K. C. Wheare added: "The same is true of the B.N.A. Acts of 1943 and 1946." 3 See infra, pp. 109 ff.

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ment under the Confederation Act. Any alteration made by an amending act at Westminster in the time originally fixed for the readjustment of seats cannot be regarded as having rendered the Canadian Parliament any more competent than it was before to deal with that matter. The same reasoning applies to the amendment of 1946. Section 51 of the British North America Act, 1867, providing for the decennial readjustment of scats in the House of Commons and determining how this task should be carried out, was replaced by a new one.1 The amending act is not one of the British North America Acts, 1867 to 1930, expressly safeguarded by section 7(1) of the Statute of Westminster. But again the subject matter is outside the competence of the federal Parliament which is therefore precluded from dealing with the amendment because it would thus deal with this very matter which is not within its powers.2 As to the British North America Act, 1949, which brought Newfoundland into the Confederation, the safeguard of section 7(3) of the Statute of Westminster similarly applies. The terms under which a province of Canada does exist as a province are not a subject matter within the competence of the federal Parliament any more than of any provincial legislature under the British North America Acts, 1867 to 1930. It may be pointed out that, quite apart from the question of competence developed in the above paragraphs, any attempt to deal with one of the "forgotten" amending acts would involve repugnancy to the safeguarded British North America Acts, 1867 to 1930, unless it were a repeal pure and simple of the amending act. Such a repeal would mean a return to the safeguarded original provisions, while any other attempted amendment would mean departing from the terms of these safeguarded provisions as well as from the new ones. An amendment, for example, to section 51 of the Confederation Act as modified in 1946 would involve either a return to the original section 51 or the enactment 1 See 2

infra, pp. 117 ff. The observations made with respect to the amendment of 1875, supra, p. 15, n. 2, apply here again.

THE CONSTITUTION DEFINED

19

of provisions different from it. This second alternative would involve repugnancy to a safeguarded document. We have considered so far the Colonial Laws Validity Act, 1865, the British North America Acts, 1867 to 1930, (i.e. 1867, 1871, 1886, 1915, 1916, 1930) and their amending acts either previous or subsequent to 1931 (i.e. 1875, 1889, 1895, 1907, 1940, 1943, 1946, 1949) as well as the possibility of any future amendments. Should the Statute of Westminster itself be included in this list of constitutional enactments safeguarded against repeal or alteration by the unilateral action of the federal Parliament? This point does not appear to have received much consideration from the commentators of the Statute. K. C. Wheare, in the most elaborate study published on the Statute, devotes to it only a short six-line paragraph which is not very conclusive.1 Of course, the Statute is silent on the point and any answer has to be reached by inference. Considering the Statute as a whole, the powers which it extends to Canada are not unrestricted powers. In the previous pages the restrictions provided by section 7(1) and section 7(3) have been dealt with. How could it be argued then, that such restricted powers, which are derived from an external authority, include the power to abrogate or to alter the restrictions thus imposed and maintained upon them? Such a contention would be a contradiction in terms. The power to amend the Statute would involve the negation of the restrictions expressly provided by the Statute. It would mean either that these restrictions are not restrictions, or that the authority which enacted them is no authority, in law, over the several legislative bodies in Canada. Neither of these alternatives, of course, can be admitted under the present legal system in Canada. This argument proceeds from the assumption that any amendment would seek to extend existing powers in Canada. One may wonder whether the federal Parliament and the '"Is there any power to amend the Statute itself? The words 'existing or future Act of Parliament' in s. 2(2) seem to exclude the Statute from the amending power of a Dominion Parliament. But the unrestricted repeal of the Colonial Laws Validity Act in s. 2(1) seems to justify the view that in this sub-section at any rate a power to amend the Statute is conceded." (The Statute of Westminster and Dominion Status, p. 163.)

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provincial legislatures have the power to abridge their respective powers by amending or repealing part of the Statute. As enacted in 1931, the Statute provides in section 10 that sections 2 to 6 should not extend to Australia, New Zealand, and Newfoundland unless later adopted by the respective Parliaments of these countries.1 The Statute further provides that the adoption of any of these sections could similarly be revoked thereafter. There seems to be no ground to deny a similar power of revocation to the federal Parliament and the provincial legislatures in Canada despite the lack of any express provision to this effect in the Statute. It should be observed, however, that the revocation of the adoption of the Statute (or part of it) is something fundamentally different from an effective repeal. An act of revocation by a legislature is an act which can be repealed or amended as any other act ; but a repeal to be effective should be made by one possessing an authority superior to that of the legislature. The act of a legislature limiting its own powers is in fact only an act providing a form for the exercise of those powers. It amounts to providing that the legislature will not do certain things except by first going through a certain process, one possible process being the repeal or amendment of that act. Thus the revocation by the Parliament of the Commonwealth of Australia of its adoption of sections 2 to 6 of the Statute of Westminster (as provided for by section 10(2) of the Statute) would simply mean that laws repugnant to British acts, for instance, could have force of law in Australia only if enacted by the British Parliament, or, if enacted by the Australian Parliament itself, after first providing anew for the application to Australia of sections 2 to 6 of the Statute of Westminster. Such a revocation would not, therefore, constitute an abandonment of powers but would simply make the exercise of such powers conditional upon the accomplishment of certain formalities. Similarly, when section 10(1) of the Statute of Westminster provided that sections 2 to 6 of the Statute would not extend to Australia unless adopted by the Parliament of Australia has now adopted these provisions of the Statute by passing the Statute of Westminster Adoption Act, 1942; New Zealand has taken a similar step by passing the Statute of Westminster Adoption Act, 1947.

THE CONSTITUTION DEFINED

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Australia, it did not delay the vesting of powers and privileges provided by these sections. The actual vesting took place on the very day on which the royal assent was given to the Statute—on December 11, 1931. The effect of section 10(1) was only to make the exercise of the new powers conditional upon the accomplishment of a formality: the adoption of sections 2 to 6 of the Statute by the Commonwealth Parliament. As such accomplishment depended on no will other than that of the Parliament which was being vested with the new powers, the limitation provided by section 10(1) cannot be said to be one as to the substance of the powers, but only as to their form. In Canada, the federal Parliament and the provincial legislatures may, no doubt, provide forms for their legislation. They may determine the conditions of operation of such legislation. The legislature of a province may well provide, for instance, that the Colonial Laws Validity Act shall in future apply to the laws made by that legislature, just as it may provide that all the laws of Turkey shall have full force and effect within the limits of the jurisdiction of that legislature. Later, the legislature could enact that the Colonial Laws Validity Act should no longer apply to the laws of the province. It would thus do no more than exercise the sovereign power granted to the provincial legislatures by the Statute of Westminster. But this is by no means an effective repeal of the Statute or part of it. It is by no means a return to the position as it was previous to 1931 when the federal Parliament and the provincial legislatures in Canada had no authority to override British legislation which applied to Canada. It would thus appear that Canadian legislative bodies cannot effect a return to their former position and effectively repeal parts of the Statute. Such inability does not result from any restriction in the Statute. It is based on the inability of a sovereign power to limit its sovereignty. The Statute of Westminster ought therefore to be considered as part of the "fundamental law" of Canada. Acts of Parliament of the United Kingdom such as those considered up to now are not the only group of safeguarded constitutional documents. Section 7(1) of the Statute of

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Westminster expressly mentions, in addition to the British North America Acts, 1867 to 1930, "any order, rule or regulation made thereunder." This phrase embraces the three British orders-in-council of 1870, 1871, and 1873 admitting Rupert's Land and the North-Western Territory, British Columbia, and Prince Edward Island respectively into the Union.1 These orders-in-council were made under the provisions of the act of 18672 and cannot, therefore, be repealed or amended by the unilateral action of any legislative body in Canada. They are accordingly part of the Constitution. A third and last group of safeguarded constitutional documents is purely Canadian in origin. Under the British North America Act, 1871, the Parliament of Canada was expressly empowered to create new provinces out of the territories not included in any province and to give them constitutions. The Act provided, however, that the Canadian Parliament would not be competent to alter the provisions of its own acts establishing new provinces. The Manitoba Act, 1870, the Alberta Act, and the Saskatchewan Act were thus passed by the federal Parliament.3 In 1930, when amendments were desired in the terms of these acts mainly for the purpose of restoring to the Prairie Provinces the natural resources which were originally withheld from them, an act of the Parliament of the United Kingdom was necessary and was accordingly passed. This British North America Act, 1930, provided that the new terms could later be altered by concurrent legislation of the federal Parliament and of the legislatures of the provinces concerned without any action at Westminster. Under the British North America Act, 1871, the Parliament of Canada was also empowered to alter, with the consent of the legislature of any province, the boundaries of such province.4 The Statute of Westminster did not bring any change in 'The effective dates of union to Canada are as follows: Rupert's Land and the North-Western Territory: July 15, 1870; British Columbia: July 20, 1871; Prince Edward Island: July 1, 1873. 2 See infra, p. 41. 3 The Manitoba Act, 1870, was confirmed retroactively by the British North America Act, 1871. The effective dates of coming into being of the Prairie Provinces are as follows: Manitoba: July 15, 1870; Alberta and Saskatchewan: July 420, 1905. These special powers will be examined, infra, p. 42.

THE CONSTITUTION DEFINED

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this position. Since 1931, the federal Parliament is no more empowered than it was before to change or repeal by its unilateral action any of its own acts establishing the provinces of Manitoba, Alberta, and Saskatchewan, or any of the acts passed concurrently by itself and by one or a number of the provinces to alter any provincial boundaries, nor can it amend the agreements embodied in the British North America Act, 1930. It is true that none of these acts are mentioned in the safeguarding section 7(1) of the Statute of Westminster. But in amending or repealing any of them by its unilateral action, the federal Parliament would pass laws repugnant to the British North America Act, 1871, or to the British North America Act, 1930, and it would exceed its competence as determined by these safeguarded acts. The documents considered in the previous pages and classified under three broad headings—acts of Parliament of the United Kingdom, British orders-in-council, and acts of Parliament of Canada (sometimes passed concurrently with acts of one or of a number of the provincial legislatures)— thus make up the "fundamental law" of the country which is safeguarded against repeal or amendment by the unilateral action of any legislative body in Canada. They may properly be known as The Constitution of Canada.

CHAPTER II

THE FLEXIBILITY OF THE CONSTITUTION IN any country the Constitution must prove susceptible of taking smoothly the mould of successive generations if violent outbreaks—coups d'état and revolutions—are to be avoided. Under the political institutions existing in Canada, there are various means of attaining a certain degree of adaptibility. The first is found in what has been called the "flexible portions of the British North America Act." This expression was used particularly with respect to section 118 of the Confederation Act, which determines the amount of the federal subsidies to the provinces.1 This section, which was intended to be one of the most unalterable of the Act in providing for a "full settlement of all future demands on Canada," proved to be, as early as 1869, one of the most flexible. The "full settlement" has been considered as a minimum amount for which the federal treasury is liable but which does not preclude Ottawa from spending its revenues as it sees fit in additional grants. On more than a score of occasions since Confederation the amount of the subsidies has been changed by the federal Parliament without any constitutional amendment.2 Under "flexible portions" of the Confederation Act, one may include also the several sections regulating certain aspects of the machinery of the State (for instance, elections)3 only "until the Parliament of Canada otherwise provides," or even (as for the seat of the government at Ottawa)4 "until the Queen otherwise directs." A number of sections dealing with provincial constitutions also come within this category as they are under the immediate and exclusive amending power of the provincial legislatures.5 'J. A. Maxwell, "A Flexible Portion of the British North America Act," Canadian Bar Review, vol. XI (1933), pp. 149-57. 2 A more detailed account of the constitutional problem raised by these additional grants will be given in relation to the British North America Act, 1907, infra, pp. 74 ff. 'Section 41 of the British North America Act, 1867. 'Section 16. 'Section 92(1). 24

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25

Although many such provisions were intended to serve their purpose only until the new Confederation and the newly separated provinces of Quebec and Ontario could legislate for themselves, other provisions dealt with matters (such as the powers and functions of the Governor-General and of the Lieutenant-Governors)1 which had naturally their place in a Constitution; but these provisions were given something of the British constitutional flexibility by being made alterable simply through legislation of the federal Parliament or of a provincial legislature. Conventions play a different part altogether in the development of the Canadian Constitution. It was emphasized at the beginning of this study that a Constitution contains only the fundamentals of the law of the constitution and that it is supplemented by conventions and by legislation. This principle applies widely to Canada and it helps to explain the preamble of the British North America Act, 1867, which recites that "the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united . . . , with a Constitution similar in Principle to that of the United Kingdom." It was often remarked that the Constitution of Canada resembled much more closely that of the United States than that of the United Kingdom. The truth is that the document of 1867 largely reflects the American federal system so far as its express terms are concerned ; but it also establishes—or rather maintains-—simply by way of reference, the main political institutions of Britain, namely those contained in the conventions of the constitution. Nevertheless, we are not concerned here with the place—very important, indeed!—of conventions in the whole body of Canadian constitutional law. Our concern is restricted to their part in the process of moulding the written fundamental law to changing needs. It is easy to understand how much conventions may change the working of the fundamental law if it is borne in mind that conventions are the flesh giving a form to the skeleton Constitution. A Constitution may thus have a result far from that intended by its framers. Although such "Section 12.

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a development usually takes place en marge of the Constitution without conflicting with its express terms, the opposite may also arise. It is an unquestioned rule of law that usage, however well established, can never supersede the provisions of an act of Parliament. But law and practice, Constitution and government, are quite different matters. What is prohibited in law and cannot be recognized by the courts may well become an established practice which will never be or is not even susceptible of being submitted to the courts. This situation may happen in the internal working of government or in the relations of government with government whenever private rights are not directly involved. A situation then arises where a political stand according to the law but in violation of such practice would be faced by disapproval at the general elections, or by universal disobedience, or even by revolution. The force of things prevails over the force of law.1 Such a situation (where conventions override the acts of Parliament) arose in Canada mainly with respect to Imperial and Commonwealth relations. Under sections 55, 56, and 57 of the British North America Act, 1867, for example, the King on the advice of his Ministers in the United Kingdom originally gave instructions to the Governor-General concerning the assent and reservation of the bills passed by the Canadian Houses of Parliament; the Governor-General, according to his discretion, but subject to such instructions, assented to or reserved the bills or even withheld his assent completely; after assenting to a bill, he forwarded an authentic copy of the act to one of His Majesty's principal Secretaries of State (the Colonial Secretary) ; and within two years after its receipt by the Secretary of State such an act was subject to disallowance by the King on the advice of his British Ministers. These sections 55, 56, and 57 are still in the Constitution and have full force of law. Despite the text of the law the constitutional position and practice as recognized or established at Imperial Conferences 'See, inter alia, the study of the late Justice P. B. Mignault: "Quelques aperçus sur le développement du principe de l'autonomie au Canada avant et depuis le 'Statute of Westminster' de 1931," Transactions of the Royal Society of Canada (1932), Section I, pp. 45 ff.

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are quite different. At the Conferences of 1929-30, applying the principles laid down in 1926,l it was recognized as an established principle that the British Government would not advise the King to give the Governor-General any instructions to reserve bills presented to him for assent; and if a discretionary power of reservation existed it could be exercised by the Governor-General only "in accordance with the constitutional practice in the Dominion," in which case, as regards the signification of the King's pleasure, "it would not be in accordance with constitutional practice for advice to be tendered to His Majesty by the British Government, against the views of the Government of the Dominion concerned." In all these matters—instructions to the GovernorGeneral, the discretionary power of reservation which the Governor-General may have, the signification of the King's pleasure—the King or his representative in a Dominion acts on the exclusive advice of his Ministers in the Dominion concerned. This was considered to be an established practice up to the point that it could be formally recognized by an amendment to the Constitution of any Dominion which so desired.2 The position is the same with respect to the power of disallowance of Dominion legislation formerly exercised by the King on the advice of his Ministers in the United Kingdom. Such power can no longer be exercised.3 "The main principles which are relevant here are contained in the following quotations from the Imperial Conference, 1926, Summary of Proceedings (referred to hereafter as Imperial Conference, 19S26 (London, Cmd. 2768): "They [Great Britain and the Dominions] are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations". . . . (p. 14). "In our opinion it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty's Government in Great Britain or of any Department of that Government" . . . . (p. 16). " . . . It is the right of the Government of each Dominion to advise the Crown in all matters relating to its own affairs" . . . . (p. 17). i Report of the Conference on the Operation of Dominion Legislation, 1929, pp. 14-15. The Report was approved by the Imperial Conference, 1930 (Summary of Proceedings—referred to hereinafter as Imperial Conference, 19SO— London, Cmd. 3717, p. 18). 3 Report of the Conference on the Operation of Dominion Legislation, 19Ü9, p. 12.

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Change has also occurred in the practice under which the acts of the Canadian Parliament were forwarded to London by the Governor-General, in accordance with section 56 of the British North America Act, 1867, which provides for the power of disallowance of federal legislation. The obligation of the Canadian Government under this section was implemented by the Publication of Statutes Act1 which provided for the delivery to the Governor-General by the clerk of the Parliaments, after each session, of a certified copy of the new statutes. The Imperial Conference, 1926, recognized that it was not wholly in accordance with the constitutional position of the Governor-General that the latter be the formal official channel of communication between the Government of the United Kingdom and the Governments of the Dominions. It was thought that the channel of communication should be from Government to Government direct.2 This new procedure, so far as Canada was concerned, came into force on July 1, 1927. From then until 1942, although the text of the Constitution was still unchanged, after each session of Parliament a bound copy of the statutes (certified by the clerk of the Parliaments) was sent direct by the Canadian Secretary of State for External Affairs to the British Secretary of State for Dominion Affairs. Moreover, in 1942, "in view of the complete obsolescence of the power of disallowance, and in order to bring the actual practice into conformity with the constitutional position," as later explained by Prime Minister Mackenzie King in the House of Commons,3 the transmission to London was stopped. Under the Publication of Statutes Act, however, the clerk of the Parliaments remained under the obligation to forward to the Governor-General, after each session, a copy of the new statutes. Actually he did send it to the Secretary of State for External Affairs who, since 1942, simply deposited it in the library of Parliament. In 1947, the Canadian Parliament finally amended4 the Publication of Statutes Act by deleting all references to disallowance of Canadian acts in London and reservation ^Revised Statutes of Canada, 1927, c. 2. *Can. H. of C. Debates, 1943, p. 1829

^Imperial Conference, 1926, p. 16. *Can. Statutes, 11 Geo. VI, c. 44.

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of the Governor-General's assent, and by relieving the clerk of the Parliaments of his former obligation.1 In the field of internal government the growth of convention has brought about no development comparable in extent to those which have taken place in Imperial and Commonwealth relations. However, certain sweeping powers conferred by the Constitution upon one authority or another in Canada have fallen in almost complete disuse or have been considerably restricted in their exercise, at least by usage if not by the force of convention.2 For instance, it is no longer proper for the Lieutenant-Governor of a province to withhold his assent to bills presented to him, as provided by sections 90 and 55 of the British North America Act, 1867.3 The exercise of the power of reservation vested in the Lieutenant-Governor4 and of the power of disallowance of provincial legislation conferred upon the Governor-General5 'Those developments were explained by Mr. Mackenzie King in reply to questions by Mr. Jean-François Pouliot in the House of Commons in 1940 and 1943 (Can. H. of C. Debates, 1941, p. 671; ibid., 1943, p. 1829), and by Mr. Louis St-Laurent in introducing the amendment to the Publication of Statutes Act, in 1947 (Can. H. of C. Debates, 1947, pp. 3426-7). ""Usage" is given the meaning of a practice which is not considered as a binding rule, while this characteristic is essential to a "convention." 3 Can. Departmen of Justice, 1937, Memorandum on Office of LieutenantGovernor of a Province: Its Constitutional Character and Functions (Ottawa, 1946), particularly pp. 14-15, 17-19; also Eugene Forsey, "Disallowance of Provincial Acts, Reservation of Provincial Bills, and Refusal of Assent by Lieutenant-Governors since 1867," Canadian Journal of Economics and Political Science, vol. IV (1938), pp. 47-59. See however, with respect to a refusal of assent by the Lieutenant-Governor of Prince Edward Island, in 1945: Eugene Forsey, "Disallowance of Provincial Acts, etc. . . , 1937-47," ibid., vol. XIV (1948), pp. 94-7; and Frank MacKinnon, "The Royal Assent in Prince Edward Island: Disallowance of Provincial Acts, Reservation of Provincial Bills, and the Giving and Withholding of Assent by Lieutenant-Governors," ibid., vol. XV (1949), pp. 216-20. 4 See Memorandum on Office of Lieutenant-Governor of a Province, pp. 19-22; also, Eugene Forsey, both loc. cit.', Frank Milligan, "Reservation of Manitoba Bills and Refusal of Assent by Lieutenant-Governor Cauchon, 1877-82," Canadian Journal of Economics and Political Science, vol. XIV (1948), pp. 247-48; J. R. Mallory, "The Lieutenant-Governor as a Dominion Officer: The Reservation of Three Alberta Bills in 1937," ibid., pp. 502-7; Frank MacKinnon, loc. cit. 6 K. C. Wheare, Federal Government, pp. 238-9; the whole question of the influence of convention upon the working of the Constitution is studied at pp. 20-21, 237-41. See also: Report of the Royal Commission on Dominion-Provincial Relations referred to hereafter as the Rowell-Sirois Report (Ottawa, 1940), Book I, pp. 49, 253-4; Can. Department of Justice, 1937, Memorandum on Dominion Power of Disallowance of Provincial Legislation (Ottawa, 1946), particularly pp. 32-46; W. P. M. Kennedy, The Constitution of Canada (2nd éd., Oxford, 1938), pp. 415-31; R. MacG. Dawson, The Government of Canada (Toronto, 1947), pp. 253-8. J. R. Mallory, "Disallowance and the National Interest: The Alberta

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have been considerably restricted, although in the latter case usage is by no means definite. But, here again, in strict law the powers are unaltered and unrestricted.1 The extent to which usage and convention may operate upon the Constitution with respect to internal government has been well summarized by Professor K. C. Wheare: Usage and convention cannot alter the rules of law which govern the distribution of powers between general and regional governments. They may nullify certain legal powers by making it constitutionally improper to exercise them, and in this way actually restrict in practice the extent of the powers of general and regional governments. They may establish certain rules which require that some powers should not be exercised except with certain consents or after consultation. Here again in practice the extent of a power may be affected, but in law the power is still there and it may be used. Above all, usage and convention cannot make it possible for a general or regional government to make laws on a topic which is, by the terms of the constitution, beyond its power.2

The basis of usages and conventions worked out in spite of the Constitution lies in political strength and political manœuvres.3 There also lie the limitations upon the process. As regards Imperial relations the political strength of the Canadian Government (resulting mainly from the strength of the nation itself) grew up to a point, after 1867, where the British Government could not have continued for long to enforce all the legal powers which it had over its Canadian colony without being met with stubborn opposition. The gradual adaptation of Imperial relations through convention was thus the result of the growing strength of the Government of Canada and of the Governments of the other Dominions. As regards federal-provincial relations a different situation arose. No such disequilibrium of political strength has taken place between the federal Government on the one part and the Governments of the provinces on Social Credit Legislation of 1937," Canadian Journal of Economics and Political Science, vol. XIV (1948), pp. 342-57; and the articles of Eugene Forsey and Frank MacKinnon referred to above. 1 In re Disallowance and Reservation, [1938] S.C.R. 71. *0p. cit., p. 238. 8 The basis of conventions evolved merely en marge of the Constitution, without conflicting with its terms, may be different. Such conventions grow up simply by the force of things in the absence of any provision of law and do not suppose a conflict, at least latent, between possible supporters of the strict law and the promoters of a new order at variance with it.

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the other. Within certain limits they are still able to face one another—in the political field—on equal terms. Moreover, the strength of the provincial Governments varies considerably from one province to another, so that a step taken by the federal Government against one of the smaller provinces might not be politically possible against a larger one. The growth of any convention conflicting with the Constitution is therefore restricted by two important factors: the equilibrium of political strength between the federal authority and the provinces generally—so that any one authority cannot indefinitely either ignore the law or abuse it without being met with a check of some kind ; and the disequilibrium among the provinces themselves—so that, in the relations between the federal Government and the provinces individually, there may not be the uniformity of attitude among the provinces which is necessary to establish a convention. But in spite of these limitations, usage and convention are by no means negligible factors for flexibility in the Constitution of Canada. Progressive judicial interpretation is also an important element of change. The Constitution, as seen in Chapter I, is a body of rules laid down in writing. Under the Canadian federal system the courts have been assigned the duty of determining the precise meaning and scope of these rules whenever doubts arise. Indeed in interpreting the Constitution as a whole the courts may stress one characteristic more than another; they may put the emphasis on one clause instead of another; they may give a wide construction to a particular power and a narrow one to another; but they may never decide against the express terms of the documents. They may extend or restrict the scope of what is already provided for; but they may never replace it. With this wide latitude of interpretation, the courts, although they cannot formally modify the Constitution, may bring about considerable change in its working. They may put upon certain clauses a construction far different from that intended by the framers of the documents.1 From time to time they l The merit of the contention that the courts have actually put on clauses of the British North America Act, 1867, a construction far different from that intended by the Fathers of Confederation is irrelevant here.

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AMENDMENT IN CANADA

may reverse the trend of their interpretation; the picture of the pendulum swinging between federal and provincial viewpoints has become a commonplace in Canadian constitutional literature and discussions. In this way, the courts have had an opportunity to play and have actually played a leading part—though one not uniformly praised—in the constitutional development of Canada. No review of past judicial decisions will be made here to illustrate this process. This task has been very ably done elsewhere.1 No attempt will be made to assess how much the personality of the judges and the distance of the seat of the ultimate tribunal judging Canadian cases2 should be held responsible for the result; neither will any suggestion be made of how much the trends of judicial interpretation may have actually responded to the trends of opinion in Canada itself.3 It is sufficient here to have indicated the important function performed by the tribunal of final appeal in the working and in the continuous development of the Canadian federal system, whatever may be the rigidity of the Constitution to be interpreted.4 Finally there remains the most drastic method of change : the formal amendment. Obviously, only a limited number of provisions in the Constitution have the flexibility which allows the federal Parliament to deal with them by legislation. The growth of conventions takes time and works only under certain circumstances where politics have the final word. Judicial interpretation can never change the 'See, inter alia, K. C. Wheare, op. cit., pp. 72-5, 78, 229-37, where there are also references to other federal states; W. S. Edwards, Evidence and memorandum before the House of Commons Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, (Ottawa, 1938), pp. 20-5; William F. O'Connor, Report to the Honourable the Speaker of the Senate on the British North America Act, 1867 (Ottawa, 1939), most of which deals with this subject. Within the last twenty years or so, the Canadian Bar Review has also published from time to time leading articles with reference to one or to a number of specific decisions. 2 The final court of appeal for Canada in civil and constitutional matters was, until 1949, the Judicial Committee of the Privy Council in England. 3 In this respect, see O. D. Skelton, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 27-8. 4 On the whole subject of judicial interpretation as a means of constitutional development in Canada, see R. MacG. Dawson, The Government of Canada, pp. 154-60.

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Constitution in what it directs or what it forbids. Moreover, the views of the courts are not always shared by the Governments. A direct method of change is therefore necessary. Although this may appear to be a much simpler and quicker process, in practice it may not prove easier at all. In many cases, however, it is the only means of putting through a desired change; and often, indeed, it operates quite smoothly. This method raises a peculiar problem in Canada. Alone among federal states—indeed, among all self-governing countries—Canada has a Constitution without any comprehensive scheme for its amendment. The only method of amending this Constitution embodied in acts of Parliament of the United Kingdom or in documents depending on such acts is a new act of Parliament. As already seen,1 this situation persists in spite of the principle of Canadian sovereignty embodied in the Statute of Westminster. Since the Imperial Conferences of 1926 and 1930, however, it is acknowledged that the United Kingdom would not pass any amending act without a Canadian request of some sort.2 Even before that period, the Mother Parliament was unlikely to pass any important constitutional amendment on its own initiative since the original Act of Confederation was passed only after the provinces affected by it had formally expressed their views in resolutions of their respective legislatures and by the voice of their representatives at the London Conference of 1866. The Act itself refers to these views by reciting, at the outset of its preamble that "the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion." But why does the Act lack a comprehensive scheme for its alteration in Canada without the necessity of action by the Parliament of the United Kingdom whenever a change might be desired? The possibility of providing for such an amending procedure in the Act itself does not appear to have ever been openly considered in the course of the pre-Confederation debates. One of the very few references to the problem of '•Supra, çp. 6 ff. See also infra, pp. 135-6. 2 This point will be considered in detail in Chapter IV infra, pp. 136 ff.

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future amendment is in the following words of D'Arcy McGee: "We go to the Imperial Government, the common arbiter of us all, in our true Federal metropolis—we go there to ask for our fundamental Charter. We hope, by having that Charter that can only be amended by the authority that made it, that we will lay the basis of permanency for our future government."1 More than six years earlier, however, in October 1858, Cartier, Ross, and Gait, who had been appointed a Special Committee of the Executive Council of Canada to go to England for various purposes, submitted to Sir Edward Lytton, the Secretary of State for the Colonies, a formal memorandum on confederation. In a confidential letter sent on the same day to Lytton by the members of the Committee, one finds the following lines on the subject of future amendment of any confederation scheme: "It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people but would be the Constitution provided by the imperial parliament, thus affording the means of remedying any defect, which is now practically impossible under the American Constitution."2 This quotation would seem to ^Parliamentary Debates on the subject of Confederation, commonly known as Confederation Debates (Provincial Parliament of Canada, Quebec, 1865), p. 146. This would appear to be the only reference to the problem of future amendment made by a member of the Ministry. From the Opposition front benches, however, the acute mind of Antoine-Aimé Dorion pointed at the possible implications of the lack of an amending procedure, although Dorion's words, in view of his party's position, throw no light on the "intentions" of the "Fathers." After expressing his fears that confederation might be only one step towards legislative union, Dorion said: "What. . . would prevent the Federal Government from passing a set of resolutions in a similar way to those we are called upon to pass, without submitting them to the people, calling upon the Imperial Government to set aside the Federal form of government and give a legislative union instead of it?" (Ibid., p. 263.) The only other reference, it would appear, was made by Arthur Rankin who erroneously thought that the federal Parliament would have full constituent powers; he said, in particular: ". . . we should remember that the House of Commons, or Parliament of British America, will have power to make such modifications and changes as the interests of the country may render advisable." (Ibid., p. 918.) I acknowledge my indebtedness to Professor Frank R. Scott for these and other references to Confederation Debates. "Quoted in O. D. Skelton, The Life and Times of Sir Alexander Tilloch Gait (Oxford, 1920), p. 242; also in W. P. M. Kennedy, Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929 (Toronto, 1930), pp. 537-8.

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indicate that the problem of future amendment was not one completely unthought of by the Fathers of Confederation. Moreover, there is every evidence that the Fathers were well acquainted with the American constitutional system where the amending process was an important feature. The main question is then: Why was the problem more or less deliberately left untouched in the Constitution and in the previous draft bills, resolutions, and discussions? Looking at the situation as it was in the years 1864-67, one will recall that the status of the British North American provinces was not far from that of simple colonies. A new Constitution was to be enacted by Imperial statute, as the Union Act, 1840, had been enacted less than twenty-five years before the Quebec Conference, or as the Constitutional Act, 1791, had been previously enacted, all without any provision for their own amendment. As late as 1852, New Zealand had obtained from the Parliament of the United Kingdom a Constitution1 which similarly had no general provision for its amendment. In 1900, when the Australian states were united into one federation, important changes had already taken place in Imperial relations and the new Commonwealth Constitution2 which was enacted at Westminster reflected this change in providing for a comprehensive scheme of amendment.3 This picture of the situation, however, is not complete. First, the new Canadian Constitution was substantially the work of Canadian statesmen and of Canadians generally, which was not true of the previous constitutional enactments relating to Canada. Moreover, in 1857, an act of Parliament of the United Kingdom4 had conferred on New Zealand a general power to alter its Constitution of 1852 save in respect to certain specified provisions.6 A year and a half >Br. Statutes, 15 & 16 Viet., c. 72. *Br. Statutes, 63 & 64 Viet., c. 12. •See O. p. Skelton; Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 28-9. *Br. Statutes, 20 & 21 Viet., c. 53. 6 For a short account of the amending power then conferred on New Zealand, see: A. Berriedale Keith, Responsible Government in the Dominions (2nd éd., Oxford, 1928), vol. I, pp. 354-5. It is only in 1947 that New Zealand acquired full power of constitutional amendment by the enactment at Westminster of the New Zealand Constitution (Amendment) Act, 1947.

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before the London Conference the Colonial Laws Validity Act, 1865, was enacted with a provision, among others, that "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."1 This Act was no doubt fresh in the mind of the Colonial Office representatives when the British North America Act was finally drafted in January and February 1867, and would have justified the incorporation of a comprehensive scheme of amendment in the new Constitution. Furthermore, all the drafts of the Confederation Act, from the Quebec resolutions to the Act as assented to by the Queen, provided for a general constituent power in the hands of the provinces, the only restriction being as regards the office of Lieutenant-Governor2—a safeguard of the monarchical system. The granting of such power was no revolutionary step and was known to be in accordance with the state of Imperial relations at that time. This is clearly indicated by the following words of Lord Carnarvon in introducing the bill in the House of Lords: "Lastly, and in conformity with all recent colonial legislation, the Provincial Legislatures are empowered to amend their own Constitutions."3 One may argue that such power has possibly been considered of little significance because its exercise was subject to control by the federal Government through the latter's power of reservation and disallowance of provincial acts. But a similar control would have operated on any federal constituent power through the Imperial power of reservation and disallowance which was still in use at the time of Confederation. The possibility of providing for an amending process in the i-Br. Statutes, 28 & 29 Viet., c. 63, sec. 5. 2 J. Pope, Confederation Documents (Toronto, 1895), where most of the drafts appear. See at pp. 46, 105, 133, 151, 158n., 172, 199, 235, 269. 'Quoted in William F. O'Connor, Report to the Honourable the Speaker of the Senate on the British North America Act, 1867 (Ottawa, 1939), Annex 4, p. 77.

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federal field can hardly have been set aside deliberately on the ground that it was repugnant to the nature of a British statute or to Imperial supremacy generally. On the contrary, the above circumstances would lead one to believe that the framers of the Canadian Constitution were well aware of the British policy in this respect and that they had other reasons to leave the matter aside. In the 1860's the state of unrest, which had continued in Canada since the events of 1837-38 and the drastic constitutional changes of 1840, reached a new height with the beginning of the American civil war. No doubt, this psychological situation to which the Maritime Provinces were no strangers evoked a desire for a stronger authority among the British North American provinces and for more permanency in their political institutions. D'Arcy McGee was only echoing such a general feeling when, in 1865, he addressed the provincial Parliament of Canada in the words quoted above.1 On the other hand, some degree of flexibility or adaptability was provided in the federal scheme proposed at the Quebec Conference of 1864 by the allocation of jurisdiction on subject matters such as "the peace, welfare and good government of the federated provinces," and "the regulation of trade and commerce," (assigned to the federal Parliament); or "property and civil rights, excepting those portions thereof assigned to the general parliament" and "all matters of a private or local nature, not assigned to the general parliament," (left to the provinces).2 This complex situation where both permanency and flexibility were desired may have minimized in the mind of many Fathers of Confederation the possible need for amendment in the future. One will also recall that the framers of the Constitution had many delicate problems to tackle before they could reach agreement. The determination of a process of amendment would have undoubtedly proved to be crucial. The Fathers may have set this problem aside to avoid a further difficulty. There was no strong need for a special process of amendment l

Supra, p. 34. "These quotations from the Quebec Resolutions (29 and 43) are found in substantially identical terms in the British North America Act, 1867, sections 91 and 92.

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since the act embodying the confederation scheme could always be amended at Westminster. The procedure in Canada for requesting the enactment of such amendments was a problem which could be faced later, and it would be up to the British Government and Parliament, then, to decide in what circumstances and upon what kind of request they should act. It has been suggested that John A. Macdonald may have used his influence to exclude the question of an amending process with the hope that in due course he could induce the provinces to accept a position of subordination which would leave the power of initiating amendments in the hands of the federal Parliament.1 This hypothesis is very plausible in view of Macdonald's well-known preference for a legislative union or, as a second best, for a federal system with a strong central authority. Moreover, the federal Government and Parliament were intended to play a leading part in the life of the new Confederation and the provinces were being given no official and direct means of communication with the Crown or the British Government, the only recognized channel being the Governor-General — the head of the federal executive. Nevertheless, whatever means may have been contemplated with a view to formulating desires of constitutional change, one point seems beyond doubt : the Imperial authority stood as the final judge on any possible proposal of amendment, as it stood in the case of achieving Confederation itself. The Imperial authority was thus considered as the ultimate safeguard of the rights granted to the provinces and to minorities by the Constitution. The circumstances mentioned in the previous paragraphs together with the Confederation debates leave no other explanation for withholding from the federal Parliament the power to amend the Constitution. Moreover, this view of the situation was clearly affirmed four years after Confederation by the Macdonald-Cartier Government. The federal Government was then seeking a constitutional amendment with a view to *N. McL. Rogers, "The Constitutional Impasse," Queen's Quarterly, vol. XLI (1934), p. 482.

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empowering the Parliament of Canada to create new provinces in the territories not included in any existing province and also to confirm the Manitoba Act, 1870.l In a memorandum submitted to the Privy Council of Canada, Sir Georges-Etienne Cartier, for Sir John A. Macdonald, concluded his observations with the following lines: "It is absolutely necessary that the Province of Manitoba, as well as any which may hereafter be erected, should hold the same status as the four Provinces now composing the Dominion—and British Columbia, when it comes in—and like them, should hold its Constitution subject only to alteration by the Imperial Legislature."2 This recommendation was actually sanctioned by the Canadian Parliament and was acted upon by the Imperial Parliament in the British North America Act, 1871.3 One could not expect to find a clearer indication that in the mind of the Fathers of Confederation the Imperial Parliament was intended to safeguard the provinces against constitutional changes at the mere will of the federal Parliament. No mention has been made yet of the so-called compact theory of Confederation which was put forward from time to time to explain the absence of any amending scheme in the Constitution, and to justify the claim that every province ought to have a right of veto on any proposal of amendment. This omission is intentional. The whole controversy on this much debated question seems to turn around the meaning one gives to such words as "compact," "treaty," "contract," etc. Nobody will deny, it seems, that the British North America Act, 1867, is the result of an agreement reached at the Quebec Conference of 1864 and later modified in London by some defacto representatives of the distinct territories now making up the provinces of Ontario, Quebec, Nova Scotia, and New Brunswick. On the other hand, who would dare suggest that the Confederation Act simply gave the Imperial sanction, without modification, to a treaty 'This amendment, the British North America Act, 1871, will be examined in next chapter, infra, pp. 50 ff. 2 "Copy of Correspondence between the Imperial and Canadian Governments relative to the Manitoba Act; etc.," Can. Sessional Papers, 1871, No. 20, 2nd return, p. 4. 'Section 6.

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entered upon by four politically distinct provinces through their respective fully authorized executives and ratified by their respective legislatures? No purpose would be served by attempting once more to determine the true nature of the agreement reached in 186467 between four of the British North American communities and embodied in the British North America Act, 1867. It is sufficient to add this to what was said in the previous paragraphs. It cannot be contended that the problem of an amending process was deliberately set aside by the Fathers of Confederation on the ground that the Constitution would be a pact unalterable in any respect save by unanimous consent of the provinces. A most striking denial of any suggestion of that kind appears in the words of Cartier, Ross, and Gait, already quoted,1 when they stress the point that the proposed Constitution could later be amended more easily than the American Constitution which, actually, did not require the unanimous consent of the states for any amendment. On the other hand, it cannot be doubted that many provisions, now embodied in the British North America Act, 1867, were considered essential to the federal scheme and it must have been thought, therefore, that the British Parliament would never alter them in substance against the express will of any province. Apart from the general principles contained in these two propositions, it does not appear that the framers of the Constitution ever considered the problem of a provincial veto over amendment proposals. Moreover, the dividing line between essential and non-essential provisions varies considerably according to the authority one quotes among the Fathers of Confederation and the officials of the British Government of 1866-67. As said earlier, the whole matter seems to have been deliberately left to circumstance and finally to the arbitration of the Imperial authority. The general statement that no comprehensive constituent powers were conferred on Canada in 1867 calls for certain observations. First, the lack of any amending scheme applies only to the federal Constitution. The provinces of Canada *Supra, p. 34.

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have no rigid Constitution—that is a Constitution as defined at the outset of this study1—and their legislatures were vested in 1867 with the general power to determine as they wish their respective State structure and machinery, save as regards the office of Lieu tenant-Governor2 and subject to certain specific checks and restrictions.3 This general power of amendment applies to those provisions in the Confederation Act itself which relate to provincial constitutions. Secondly, the federal Constitution contains a number of provisions to which we have already referred as "flexible portions of the British North America Act."4 These provisions are alterable at the will of the federal Parliament. In the third place, specific constituent powers were conferred on the British Cabinet and on the Parliament of Canada with respect to new provinces and to the "territories." Section 146 of the act of 1867 empowered the Queen, with the advice of Her Privy Council for the United Kingdom, to unite Newfoundland, Prince Edward Island, and British Columbia, or any one of them, to Canada on addresses from the Houses of Parliament of Canada, and on addresses from the houses of the respective legislatures of those colonies or provinces. That section similarly provided for the union of Rupert's Land and the North-western Territory upon addresses from the Houses of Parliament of Canada.5 Under the British North America Acts of 1871 and 18866 the Parliament of Canada was empowered to establish new provinces and to make provision for their constitution and for their representation in the Senate and in the House of Commons. The Canadian Parliament was also empowered to provide from time to time for the representation of the "territories" 1 Supra, pp. 3-4. "Section 92(1) of the British North America Act, 1867. 3 For instance: the power of reservation of the Lieutenant-Governor and the power of disallowance of the Governor-General-in-Council (sections 90, 55, 56, 57) ; certain rights and privileges with respect to denominational schools (section 93); the use of the _English language in Quebec (section 133); the limits of certain electoral divisions in Quebec (section 80) ; the continuance of laws existing at Confederation (sections 65, 129) which last restriction is no longer in force since the enactment of the Statute of Westminster, 1931, (see infra at pp. 94 ff.) 'Supra, pp. 24-5. 'British orders-in-council under that provision of the British North America Act, 1867, were actually made in 1870, 1871, and 1873. See supra, p. 22. •These acts will be examined in Chapter III, infra, at pp. 50-8, 60-2.

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in any or both Houses of Parliament. These powers have an important bearing on the Constitution. For instance, the granting of two senators to Manitoba when the province was created in 18701 effected a fundamental change in the composition of the Senate as determined by section 22 of the original act which provided for three divisions equally represented: Ontario, Quebec, and the Maritime Provinces.2 This was only the first of several modifications which have been made in the composition of the Senate without any act of Parliament of the United Kingdom but simply in pursuance of certain provisions of the Constitution. Finally, certain specified powers of constitutional amendment have occasionally been provided for since 1867. In the early years of the Confederation, the British North America Act, 1871, empowered the Parliament of Canada, acting with the consent of the legislature of any province, to increase, diminish, or otherwise alter the limits of such province, upon such terms and conditions as might be agreed to by the legislature concerned.3 The only other instance of a specified amending power dates from 1930 when a British North America Act was passed to confirm agreements reached between Ottawa and the provinces of Manitoba, Saskatchewan, Alberta, and British Columbia respectively. Each agreement provided that its provisions could be modified by agreement confirmed by concurrent statutes of the Parliament of Canada and of the legislature of the province concerned.4 'By the Manitoba Act, 1870. 2 It will be recalled that section 147 of the Confederation Act determined the number of senators to be allocated to Newfoundland and Prince Edward Island in case of their entry into the Confederation; but the representation of British Columbia and of the other territories was left undetermined. 'Changes in provincial boundaries ought to be considered as constitutional amendments because those boundaries were originally determined by the Confederation Act. More detailed explanations in this respect will be found under the Canada (Ontario Boundary) Act, 1889, infra, pp. 62 ff. The most recent instance in which the above power of amendment was used is the Canadian statute 10 Geo. VI, c. 29—"An Act to amend the Quebec Boundaries Extension Act, 1912"—passed in 1946. The Legislature of the Province of Quebec consented to the provisions of this act in 1947 by the Act 11 Geo. VI, c. 5—"An Act respecting the conditions of annexation of Ungava to the Province of Quebec." The Canadian statute later came into force on March 31, 1947, by proclamation of the Governor-General-in-Council. (Canada Gazette, vol. 4LXXXI (1947), p. 1202.) The four agreements are set out in the schedule to the British North America Act, 1930. The clauses providing for the amendment of the agreements are

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These several means, however, of modifying parts of the Constitution are only exceptions. The Constitution lacks any comprehensive scheme for its amendment. It will be the object of the following pages to investigate the problem raised by this gap in the constitutional system of Canada. section 24 in the case of Manitoba and Alberta, and section 26 in the case of Saskatchewan and British Columbia. The Alberta Natural Resources Act, No. 2 (1931), and the Saskatchewan Natural Resources Act, No. 2 (1931), and the Natural Resources Transfer (Amendment) Act, 1938, and the Natural Resources Transfer (Amendment) Act, 1941, are instances of acts of the federal Parliament passed to amend the above agreements. Concurrent acts were passed by the legislatures of the provinces concerned.

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PART II

HOW PAST AMENDMENTS WERE SECURED

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CHAPTER III

HOW PAST AMENDMENTS WERE SECURED THE phrase "Amendments to the Constitution" applied to the Constitution of Canada does not convey a definite meaning. The Constitution of Canada is not made up of a document called the Constitution and of a definite set of amendments. As seen in Chapter I, the Constitution is a body of documents determined by the terms of the Statute of Westminster. It includes British acts of Parliament and orders-in-council, acts of the Parliament of Canada, and acts of the provincial legislatures. Some of these documents are expressly mentioned by their titles in the Statute of Westminster. Others come under its terms in view of their object. But none of them is called "Constitution" or "Amendment to the Constitution." They may be classified as constitutional documents only by looking at their contents. On most occasions since the original "fundamental law" of the Confederation was enacted under the name "British North America Act, 1867," British acts affecting this "fundamental law" were similarly entitled "British North America Act" with the mention of the year of their enactment. This was done in the case of the British North America Act, 1871, the British North America Act, 1886, and others. But British parliamentary draftsmen occasionally departed from this practice although there does not appear to be any positive reason for their doing so. The Parliament of Canada Act, 1875, is an example. British acts relating to the Constitution of Canada also exhibit a second characteristic. They do not always formally add, or replace, or modify a section or a number of sections of previous constitutional documents. They often constitute enactments of their own which supersede existing constitutional provisions or fill in apparent gaps in the original document without embodying their provisions into the latter. For instance, the British North America Act, 1871, empowered the Parliament of Canada to establish new provinces in the 47

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territories not included in any province, but it did not insert in the text of the British North America Act, 1867, its provisions to this effect. To determine whether an act of the British Parliament is an amendment to the Constitution of Canada one must look at its contents and see whether it contains the elements of an amendment. This process obviously involves a large amount of interpretation and personal judgment which hardly leads to absolute certainty. Moreover, British legislation is not the only source of the present "fundamental law" of Canada. In the years which followed 1867, new provinces and territories were united to Canada, provinces were erected out of the territories, provincial boundaries were altered, the agreements embodied in the British North America Act, 1930, were modified, without any intervention of the Parliament of the United Kingdom. At least some of these constitutional developments ought to be regarded as amendments to the Constitution. But our investigation here is restricted to amendments which involved the general amending machinery—an act of Parliament of the United Kingdom. A constitutional amendment may be defined in general terms as a change in the text of the Constitution as it stands at a given time. The word "change" has a very wide meaning here. It includes an alteration in the existing text of the Constitution; but it also includes the addition to the existing documents of a new one which should be interpreted together with the former and supersedes them in so far as its sense requires. The essential element of the concept of "change" in the above definition is the moving from one constitutional position to another which is repugnant to, or goes beyond, the terms of the Constitution. This characteristic of repugnancy requires, however, some explanation. In an amendment the change is no doubt in accord with the procedure of amendment existing under the Constitution, that is an act of Parliament at Westminster. Thus, the change may be said to be in accord with the Constitution. It is in accord with it in the sense that it is not achieved by revolutionary means. But otherwise it is repugnant to

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the Constitution. It has an object which cannot be constitutionally achieved save by the special process provided for the amendment of the Constitution—the special process through which the sovereign power over and above the Constitution is exercised. For the purpose of this study, the first criterion of an amendment is therefore an object which required an act of Parliament of the United Kingdom because it could not have been achieved by any other means. Such a change, in order to be a constitutional amendment, must be a change in the Constitution. Before 1931, the British Parliament legislated for Canada on matters which could not be termed "constitutional" but which had the characteristic of "fundamental law" in the Canadian legal system. For instance, the British Parliament at one time passed the Canada Copyright Act, 1875, which dealt with a matter of private law. Another time the British Parliament passed the Cape Race Lighthouse Act, 1886, which gave force of law both in Canada and in Britain to an intergovernmental agreement respecting the transfer of Cape Race Lighthouse to Canada. Such acts had no effect on the Constitution. They ought not to be regarded as constitutional amendments. Moreover, the phrase "the Constitution" means the Constitution as it stands from time to time. The original Constitution of the Confederation consisted of the British North America Act, 1867, together with the Colonial Laws Validity Act, 1865, which determined the true extent of the powers given by the act of 1867. Whenever an amending act at Westminster, or a British order-in-council, or a Canadian act, either coupled with a provincial act or not, was added to these documents, the Constitution was thereby enlarged. A later amendment either to one of the original acts or to any such later act or order-in-council is therefore an amendment to the Constitution as it stood at the time of such amendment. The object of this chapter will be to examine the process followed in the past in securing constitutional amendments. In each case, however, before proceeding to such examination, justification will have to be shown on the basis of the

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above criteria for classifying a document as an amendment. This task is all the more important since all writers on Canadian constitutional law and Canadian government are not in complete agreement about what are the amendments made to the Constitution since 1867.* 1. THE BRITISH NORTH AMERICA ACT, 18712 The object of this early amendment was primarily to remove doubts about the competence of the Canadian Parliament to establish new provinces in the "territories," and to provide for their constitution and their representation in the Senate and the House of Commons. Such doubts had arisen when the creation of a first province—Manitoba—was under 1 H. McD. Clokie called attention to this situation in his article "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), pp. 1-2, 11-12. Reference to conflicting opinions will be given hereafter under each amendment concerned. 2 An earlier act of the British Parliament, the Rupert's Land Act, 1868, is not considered here as an amendment within the terms of the definition given above. This position calls for an explanation in view of the special nature of the Act. Five months after Confederation, in December, 1867, the Houses of Parliament of Canada petitioned the Queen by way of an address, in pursuance of section 146 of the British North America Act, 1867, praying Her Majesty to unite Rupert's Land and the North-Western Territory with Canada and to grant to the Parliament of Canada authority to legislate for the future welfare and good government of all these territories. The law officers of the Crown in England advised that in spite of the provisions of the act of 1867 the address could not be implemented unless the Hudson's Bay Company first surrendered the rights it had over Rupert's Land under its old charter. The Rupert's Land Act, 1868, was then enacted for the purpose of empowering Her Majesty in Council to accept such a surrender from the Company. The Act thus affected the British Crown's own position with respect to Rupert's Land—a matter which was of no immediate concern to Canada and had no immediate bearing on the Constitution of Canada. The Rupert's Land Act, however, exceeded this limited object. Its section 5, the last of the Act, provided that it should be competent for Her Majesty by order-in-council, on an address from the Houses of Parliament of Canada, to unite Rupert's Land to Canada. This provision was, in part, a repetition of section 146 of the act of 1867 and it therefore introduced nothing new in the Constitution. But the Act further provided that upon such union the Parliament of Canada should have full authority to legislate for the peace, order, and good government of the new territory, a power requested by the Canadian address of December 1867. This important provision vested Ottawa with complete jurisdiction over Rupert's Land, although it was to become effective only later by the order-in-council of June 23, 1870, uniting Rupert's Land and the NorthWestern Territory to Canada. Accordingly, when this order-in-council was made, full legislative authority over Rupert's Land was regarded as already granted to the federal Parliament in Canada and provision was only made for a similar authority over the North-Western Territory. Later, provision was expressly made in the British North America Act, 1871, for the jurisdiction of the federal Parliament over all Canadian territories not included in any province.

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discussion in the Canadian Parliament in the spring of 1870. Negotiations had been completed for the transfer of Rupert's Land and the North-Western Territory to Canada, and the formal transfer by order-in-council was expected to take place shortly. Anticipating this step, the federal Parliament had passed the Manitoba Act, 1870, establishing the province of Manitoba, which was to become effective on the day of the formal union of all the new territories to Canada. A year earlier, in 1869, the Canadian Parliament had enacted the North-West Territories Act providing for the general government of the territories expected to be transferred to Canada. However, before this act had become effective by such transfer part of the territories concerned was thus erected into a distinct province. The Constitution of 1867 contained no express provision empowering Ottawa to create provinces. Under section 146 it was made lawful for the Queen-in-Council, on an address from both Houses of Parliament of Canada, to admit Rupert's Land and the North-Western Territory into the union, on such terms and conditions as might be expressed in the address and as the Queen might think fit to approve, but "subject to the provisions of this Act." Actually, in December, 1867, the Canadian Houses of Parliament had petitioned Her Majesty praying that both territories be united to Canada and that "authority to legislate for their future When the Rupert's Land Act was passed, however, it extended the powers of the federal Parliament under the act of 1867 and might therefore be considered as an amendment. From the procedural point of view, on the other hand, section 5 of the Rupert's Land Act under consideration was enacted in pursuance of an object mentioned in section 146 of the Confederation Act and following an address of the Canadian Houses of Parliament, the procedure provided by this section. Of course, the Rupert's Land Act may not be wholly assimilated to orders-incouncil passed under section 146. In case of conflict the Rupert's Land Act would supersede the act of 1867 while an order-in-council would always remain subject to it. For the purpose of the present classification, however, the Rupert's Land Act may be associated with such orders-in-council since it performed a service contemplated by section 146 of the Confederation Act and was enacted after the procedure of an address to the Queen laid down in this section had been followed up. Such constitutional developments are outside the scope of this review. (The immediate historical background of the order-in-council of June 23, 1870, and the Rupert's Land Act, 1868, may be studied in the preamble and the several schedules to the order-in-council and in the short preamble to the Act. One may also refer to Can. H. of C. Journals, 1867-68 and 1869.)

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welfare and good government" be granted to the federal Parliament.1 Such an unrestricted power had been granted over Rupert's Land—though it was not yet effective—by the Rupert's Land Act, 1868, and was expected to be granted over the whole territories by the order-in-council effecting their union to Canada. Such order-in-council was later passed as expected. The legislative authority—at first sight unrestricted—thus vested in the federal Parliament over the North-Western Territory was obviously subject to the same limitation as the order-in-council conferring it; it was "subject to the provisions of this Act"—the British North America Act, 1867. This restriction did not apply to federal jurisdiction over Rupert's Land which was granted by act of Parliament. But even in this case it was questionable whether a provision of the Rupert's Land Act, 1868, set forth in so general terms, superseded all specific provisions of the Confederation Act. Doubts were therefore cast on the power of the federal Parliament to enact certain provisions of the Manitoba Act, 1870, especially those relating to the representation of the new province in both Houses of Parliament. The granting of seats in the Senate was upsetting the whole scheme of 1867 with respect to that House.2 The allocation to Manitoba, in the first instance, of four seats in the House of Commons—which was an over-representation in relation to the other provinces—was hardly in accord with the principle of "representation by population"3 said to be embodied in section 51 of the Confederation Act. Although such doubts were not fully shared by the Canadian Government and still less by the Colonial Office in London4 it was thought 'Co». H. of C. Journals, 1867-8, pp. 67-8, 98, 108. The address is also annexed as a schedule to the order-in-council of June 23, 1870, uniting Rupert's Land and the North-Western Territory to Canada. Sections 21, 22, 26-28, and 147 of the British North America Act, 1867. See supra, pp. 41-2. 3 A principle which suffered much distortion until the British North America Act, 41946, was enacted. The Earl of Kimberley said in introducing the bill in the House of Lords: "The Law Officers of the Crown were of opinion that these Acts [the North-West Territories Act and the Manitoba Act] were valid, as not beyond the powers of the Canadian Parliament; but doubts having been expressed the Canadian Parliament had addressed the Crown for an Act in the Imperial Parliament confirming their validity." (Br. Parí. Debates, 3rd series, vol. 206, p. 1171).

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expedient to remove them since the perpetuation of such a situation could have added to the disquiet then existing in the Canadian West. The primary purpose of the British act of 1871 was therefore to confirm the validity of the Manitoba Act, 1870, and that of the North-West Territories Act of 1869 relating to the entire new territory. It was thought appropriate, however, that the proposed act should also contain general provisions to dispense with the necessity of repeated applications to the Imperial Parliament for legislation on matters of similar nature or others that could be settled in Canada.1 The Act as assented to by the Queen empowers the Parliament of Canada to establish new provinces in the "territories," and to provide at the time of such establishment for their constitution and their representation in Parliament. It was added, however, that the Canadian Parliament would not be competent to alter any of its own acts thus establishing new provinces. In the words of Sir Georges-Etienne Cartier, quoted above,2 the purpose of this provision was to ensure that Manitoba and any other new province should hold the same status as the four provinces then making up the Confederation, "and like them . . . hold its Constitution subject only to alteration by the Imperial Legislature." The Act further empowered the Parliament of Canada to provide from time to time for the administration, peace, order, and good government of any territory not included in any province. It is under the express authority of this clause that Ottawa is still administering directly the Northwest Territories. Finally, section 3 provided that Parliament might, with the consent of the legislature of any province, modify the boundaries of such province.3 This section offers a special interest since it introduced in the Constitution the principle of federal-provincial co-operation for the purpose of constitutional amendment, although it was restricted to a particular topic. x

This account is mostly based on the "Correspondence between the Imperial and Canadian Governments relative to the Manitoba Act," Can. Sessional Papers, 1871, No. 20, 2nd return, pp. 1-5. *Supra, p. 39. 'This power has already been examined, supra, p. 42.

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It would appear from this short analysis that although the provisions of the act of 1871 are of the utmost importance in the Constitution they introduced in it no revolutionary principle. The powers conferred were contended to be already more or less implied in the act of 1867. At any rate the new statute did no more than fill in apparent gaps with provisions fully consistent with the general structure of the original Constitution. One would be led to believe, it seems, that the procedure followed to secure from the Parliament of the United Kingdom this first amendment to the young Constitution of Canada was of great importance, since it was creating a precedent. In such a field where no written rule was laid down precedents would later have much weight. It may be doubted, however, whether the Government of the day, at Ottawa, took the matter so seriously. Its attitude may be variously interpreted in this respect. But, happily enough, the federal Parliament showed much concern in it, and the procedure adopted is entirely due to its vigilance and its timely intervention. On January 2, 1871, a Committee of the Privy Council for Canada had approved a memorandum of the Minister of Justice concerning the constitutionality of the Manitoba Act, 1870, and had advised the Governor-General "to move the Earl of Kimberley1 to submit to the Imperial Parliament a measure confirming the Act of the Canadian Parliament above referred to, and containing the other provisions enumerated in the said annexed memorandum." In compliance with this advice the Governor-General forwarded to London the minute of the above meeting of the Privy Council and the memorandum of the Minister of Justice, together with a letter asking for the appropriate action. Although the despatch expressly stated the objects of the proposed measure to be submitted to the British Parliament, it contained no draft bill.2 Had the Imperial Government followed to the letter the 'The Colonial Secretary. '"Correspondence between the Imperial and Canadian Governments relative to the Manitoba Act," pp. 1-3.

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course suggested, a dangerous precedent would have been set since an amendment to the Constitution would have been secured without any intervention of Parliament in Canada. Circumstances, however, modified that course of action. From Downing Street, the Colonial Secretary sent to the Governor-General a short reply which included the following paragraph : In compliance with the wishes of your Government, I have caused a Bill to be prepared, of which I annex a copy and on learning that its provisions meet their views, I shall be prepared to introduce it into the Imperial Parliament during the coming session.1 The delay occasioned by this very appropriate attitude made possible a complete change in procedure. Up to this point, the matter had been one exclusively between Governments. Moreover, as one would expect, no publicity had been given to it. On the day following the opening of the session of 1871 at Ottawa the Leader of the Opposition in the House of Commons inquired what were the intentions of the Government with respect to the "wholly unconstitutional" Manitoba Act passed during the previous session. Sir John A. Macdonald informed the House of the decision taken by the Government and of the correspondence exchanged with the Colonial Office. He said that he had received "the draft of a Bill for the purpose of confirming the Act . . . and also making all provision for the future, with which he would not now trouble the House." He added that "he trusted the settlement or arrangements effected could be transmitted to England by the next mail, with the object of submission to the Imperial Parliament."2 The House was more jealous of its prerogatives than Sir John might have expected. Four days later, Edward Blake again brought the matter up. He protested against the course of action taken by the Government and moved that there be laid before the House, "copies of all correspondence between the Canadian and Imperial Governments relative to the Manitoba Act, and to any Imperial legislation conl lbid., p. 3. "Can. H. of C. Debates, 1871, pp. 11-13.

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templated in reference to the North-West; with copies of any drafts of bills proposed to be submitted to the Imperial Parliament on the subject." Sir John did not object to the motion which was carried without opposition.1 The Government had not yet acted on the reply of the Secretary of State for the Colonies. It was not until February 27 that a Committee of the Privy Council for Canada approved a memorandum of Sir Georges-Etienne Cartier recommending that a draft bill be transmitted to London for submission to the Imperial Parliament. On the following March 1, a copy of all correspondence together with a copy of the minute of the above meeting of the Privy Council and of accompanying documents were tabled :'n the House of Commons.2 On the same day an Opposition motion came before the House requesting that action by Parliament rather than by the Government only should form the basis of the proposed Imperial legislation.3 Edward Blake and Sir Alexander Gait brilliantly supported this resolution and insisted on the importance of establishing the principle, once and for all, that legislation affecting Canada should only be undertaken in London when sought by the people of Canada through their representatives. This principle was considered of still greater consequence "when the legislation sought was of a character which would alter in a material point the compact upon which the union itself was formed." The Government attempted to justify its action on the ground that Parliament had already approved of the measure by passing the Manitoba Act, 1870, which the Imperial act was intended to confirm. However, it was clearly shown in the course of the debate that the draft bill was far more than such a simple ratification.4 The mere removal of the Manitoba Act from the ordinary repealing and amending power of the federal Parliament was by itself an entirely novel feature. As might be expected in such circumstances the Opposition motion was defeated — as well d., pp. 64-5; Can. H. of C. Journals, 1871, p. 21. 'Can. H. of C. Journals, 1871, p. 40; Can. Sessional Papers, 1871, No. 20, 2nd return. *Can. H. of C. Debates, 1871, pp. 220, 601. 'Ibid., pp. 601-9, 647-51.

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as a second one moved in sub-amendment—in favour of a Government motion concluding with an approval of the proposed legislation but without any pronouncement on the procedure. Under persistent pressure from the Opposition, however, the House finally concurred by 137 votes to none in the amendment moved by L. H. Holton: "But this House is of the opinion that no changes in the provisions of the British North America Act should be sought by the Executive Government, without the previous assent of the Parliament of this Dominion."1 David Mills later proposed, from the Liberal Opposition benches, a number of resolutions on the constitutional problems raised by the creation of new provinces. The House was called upon to express the opinion in particular, though not as a distinct issue, that any alteration of the principle of representation in the House of Commons as fixed by sections 51 and 52 of the act of 1867, "without the consent of the several Provinces that were parties to the compact," would be a violation of a fundamental principle in our Constitution.2 There was no debate and no vote on the resolutions.3 This very attitude, in the circumstances, indicated the House's disapproval of their contents. Finally, both Houses of Parliament concurred in an address to Her Majesty reciting the provisions of the draft bill and praying that a measure embodying those provisions be submitted to the Imperial Parliament.4 The bill was partly re-drafted in London although no substantial alteration was made. The measure was introduced in the House of Lords by the Earl of Kimberley and it passed both Houses of Parliament of the United Kingdom without any debate.5 Thus, after much controversy and hesitation about the process to be followed, the first amendment to the Constitution of Canada had been adopted. The Canadian Parliament had denied the Government any competence to seek on its own initiative a constitutional change from London 'Can. H. of C. Journals, 1871, p. 148. *Ibid., pp. 253-4. 'Can. H. of C. Debates, 1871, p. 1002. 'Can. H. of C. Journals, 1871, pp. 155-6, 291-4, 300-1. 6 Br. Parí. Debates, 3rd series, vol. 206.

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and had affirmed in time its exclusive right to petition Her Majesty for such purpose.1 The federal authority had acted on its own, without involving the provinces in the process. The British Houses of Parliament had passed automatically the measure submitted to them; but the Colonial Office had taken the liberty of finally re-drafting the bill embodied in the address of the Canadian Parliament. 2. THE PARLIAMENT OF CANADA ACT, 1875 Only four years after Parliament at Ottawa had so emphatically denied the Government any right to request from London amendments to the Constitution, a new amendment was sought by the administration and was, this time, secured from the Imperial Parliament without any previous action by the Canadian Parliament. In the early months of 1873 the Canadian Houses of Parliament had passed, and the Governor-General had assented to, an act providing for the examination of witnesses on oath by committees of the Senate and of the House of Commons.2 The constitutionality of such an act was much in doubt. Under section 18 of the British North America Act, 1867, the privileges, immunities and powers of the Senate and of the House of Commons were to be determined by act of the Parliament of Canada, but were never to exceed those held by the House of Commons of the United Kingdom "at the passing of this Act" (1867). At that time the British Commons had no wide powers such as those provided for in the Canadian legislation of 1873, although a British act 'It has been stated by a few students of the Canadian Constitution that the British North America Act, 1871, was passed by the Imperial Parliament at the request of the Canadian Government alone. (O. D. Skelton, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, p. 31; F. R. Scott, ibid., p. 80; H. McD. Clokie, "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), pp. 18-19; K. C. Wheare, The Statute of Westminster and Dominion Status, p. 178, which is based on Skelton's evidence mentioned above.) This opinion results no doubt from an oversight easily explained by the intricate situation which arose out of the abortive attempt of the Canadian Government to secure the enactment of the amending act at Westminster without first obtaining the assent of Parliament at Ottawa. Eugene Forsey pointed out that historical error in his review of the Special Committee's Proceedings and Evidence and Report (Canadian Journal of Economics and Political 2 Science, vol. II (1936), p. 596, n. 2). Can. Statutes', 36 Viet., c. 1.

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of 18711 had filled in the gap. The law officers of the Crown in England therefore advised that the Canadian act was ultra vires of the Parliament of Canada, and the Queen-inCouncil disallowed it.2 In February, 1875, the Canadian Government requested the Secretary of State for the Colonies and the Imperial Government to secure from Parliament at Westminster "the passage of an Act removing all doubts as to the right of the Parliament to possess the power to pass an Act providing for the examination of witnesses on oath by Committees of the Senate and House of Commons."3 No draft bill was submitted and no suggestion was made as to what form such act might take. A reply came from the Colonial Office in the following June informing the Canadian Government that a bill to give effect to the Canadian wishes had passed the House of Lords and would now follow its course. The Act, as later assented to, modified section 18 of the British North America Act, 1867, so as to leave the privileges, immunities, and powers of the Senate and of the House of Commons to be determined by act of Parliament of Canada, provided only that they should not exceed those held "at the passing of such Act"—that is, from time to time—by the House of Commons of the United Kingdom. The Act further validated a previous Oaths Act, of 1868, which had escaped the vigilance of the law officers of the Crown in England and had not been disallowed. When this course of action became known outside governmental circles at Ottawa its regularity was not left unchallenged. At the following session of Parliament the Opposition brought up the question, recalling the events of 1871 and the process then laid down unanimously by the House of Commons—the process of a parliamentary address to the Queen.4 From the Government benches—where the l Br. !

Statutes, 34-35 Viet., c. 83. "Papers relative to the disallowance of the Act 36 Victoria, Chap. 1," Can. H. of C. Journals, 1873, pp. 5-12; also a Proclamation of the GovernorGeneral, Canada Gazette, vol. VII (1874-73), p. 1. '"Correspondence, etc. with the Imperial Government relating to the introduction and passage, through the Imperial Parliament, of an Act chaptered 38, Victoria 38 & 39," Can. Sessional Papers, 1876, No. 45. «Co». H. of C. Debates, 1876, pp. 1140-1.

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Liberal party had now taken the place of Sir John A. Macdonald and his followers—it was pointed out that the case was altogether different from the previous one. The act of 1875, it was said, had been called for by Parliament itself since it was only confirming the power which the Canadian Houses had assumed they had in passing the Oaths Act; furthermore, the amendment was not abridging the powers of Parliament, but it was rather extending them; and, of course, the provinces were not at all affected by the change. The Prime Minister, Alexander Mackenzie, conceded, however, that "it might have been better even then to have proceeded by address. And he admitted frankly it should be so whenever a change was wanted."1 But he refused to accept an Opposition motion of censure which was finally withdrawn after all speakers had agreed that an address to the Queen was the only fully appropriate way of seeking from the Imperial Parliament amendments to the Constitution. This time, however, the amendment had been secured on the executive's request alone. The provinces had had no part in the process.2 And the bill, entirely drafted in England, had passed the Houses of Parliament of the United Kingdom without any question or debate.3 3. THE BRITISH NORTH AMERICA ACT, 1886 The object of this act was to empower the Parliament of Canada to provide from time to time for the representation of the "territories" in the Senate and in the House of Commons. The constitutional amendment of 1871 had empowered Parliament to create new provinces and to provide for their representation in both Houses. But no provision had been made for the representation of the territories not included in any province. The purpose of the act of 1886 was to fill in this gap. An address was passed by both Houses at Ottawa4 praying l

lbid., p. 1142. *In the debate at Ottawa there was an interesting intervention by Sir John A. Macdonald on this subject of provincial participation in the amending process. See the quotation from Can. H. of C. Debates, 1876, in Appendix C, infra, p. 292. 3 Br. Parí. Debates, 3rd series, vols. 224-5. 'Can. H. of C. Journals, 1886, pp. 182, 215.

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Her Majesty to cause a measure to be laid before the Imperial Parliament to give to the Parliament of Canada the desired power. In moving the address in the name of the Government, Sir John A. Macdonald recalled the process followed in 1871 to secure a change in the Constitution and he said that he was accordingly seeking the consent of Parliament before petitioning Her Majesty with a view to a new constitutional change. As the address contained no draft bill the Opposition asked if one would be prepared at Ottawa and if the House would have an opportunity of seeing it. Although Sir John seems to have misinterpreted the question, his reply does not lack interest. He said that "it would be rather an act of presumption for us to pass an Act here, and send it to England and ask them to pass that Act. That would be rather absurd. We ask that they shall pass an Act containing certain provisions, and they will do it in such apt phrase as the parliamentary draftsmen will settle. The draft we send is merely a suggestive one, and I shall lay it before the House, and I have no doubt it will receive the sanction of the House."1 Despite the confusion of this reply—the Parliament of Canada could have approved a proposed draft bill to be submitted to London without "passing an Act"— it appears that the Canadian Government then thought it inappropriate to embody any draft bill in the formal address. Sir John later communicated to the House of Commons the measure which he intended to submit as a suggestion to the Imperial Government.2 A bill in slightly modified form was introduced in Parliament at Westminster and was passed without debate.3 No question of consultation with or consent of the provinces had been raised at any stage of the process. It should be observed that this act, like the amendment of 1871, did not alter the text of the British North America Act, 1867. Both are separate enactments and their provisions were in no way integrated into the original document. But as they added to the powers provided for in 1867 they constitute amendments. l

Can. H. of C. Debates, 1886, pp. 866-8. /Wd., pp. 1205-6. *Br. Parí. Debates, 3rd series, vols. 305-6.

2

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This act does not appear to have ever been classified as an amendment to the Constitution.1 The reason for this omission—if it is not simply an oversight—probably lies in the object of the Act, which was to determine the boundaries of the province of Ontario. Such a determination may have been considered as not affecting the Constitution. Nevertheless, provincial boundaries were a matter expressly dealt with in the British North America Act, 1867, to say nothing of subsequent constitutional documents bringing new provinces into the Confederation. Section 7 of the act of 1867 provided that the provinces of Nova Scotia and New Brunswick should have the same limits after the union as they had at the passing of the Act. Section 6 provided that the province of Canada as it then existed should be severed into the two parts which formerly constituted the provinces of Upper and Lower Canada and which should become the provinces of Ontario and Quebec respectively. Any change in the provincial boundaries thus determined by the act of 1867 ought to be considered as an amendment to the Constitution. In 1889, however, there was no need for an act of Parliament of the United Kingdom to make such an amendment. The British North America Act, 1871, as already seen,2 provided that the Parliament of Canada might, with the consent of the legislature of any province, modify the boundaries of such province. It has once been suggested that the act of 1889 effected a revision of the disputed ManitobaOntario boundary which had been determined by arbitral decision of the Judicial Committee and by subsequent orderin-council in England, and that such an order-in-council could not be dealt with in Canada.3 This assertion, however, is not substantiated either by the facts or by the legal documents. The preamble to the act of 1889 shows clearly that 'The Act now appears for the first time in the 1948 edition of the publication of the King's Printer, Ottawa (éd., Maurice Ollivier) British North America Acts and Selected Statutes. *Supra, pp. 42, 53. 3 H. McD. Clokie, "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), p. 7.

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the Manitoba-Ontario boundary as determined by order-incouncil, in 1884, was unaltered by this act.1 Furthermore, the British North America Act, 1871, did not limit in any way the power given to the Parliament of Canada, acting with the consent of the legislatures of all the provinces concerned, to "increase, diminish or otherwise alter the limits" of any of the provinces. Under the Act, the manner in which such limits may have been fixed previously is irrelevant and the order-in-council of 1884 could have been dealt with in Canada as well as any other order-in-council or act of Parliament determining provincial boundaries. The reason why an act of Parliament of the United Kingdom was used appears from the order-in-council of 1884 itself. Ever since the union of Rupert's Land and the North-Western Territory to Canada, the boundary of Ontario to the north and to the west had been a matter of dispute between the Government of the province and the Government of Canada. It had finally been agreed to set up a board of arbitration to adjudicate upon the dispute. A unanimous award was made in August 1878 fixing the true area of Ontario at more than twice the area which had been recognized by the federal Government as correct.2 Early in 1879 the legislature of Ontario accepted the award,3 but the federal Government refused to take a similar step under the British North America Act, 1871. Furthermore, the federal Parliament passed an act4 enlarging the area of the province of Manitoba and extending it eastward, in particular, to the westerly boundary of Ontario — without attempting to determine where this boundary was actually located.5 The legislature of Manitoba had already passed, three months earlier, an act with a view to this extension of boundaries and giving its consent to it under the act of I See 2

infra, p. 70, n. 1. See Dominion Annual Register and Review (ed. Henry J. Morgan, Montreal), 1878, pp. 189-94. ^Ontario Statutes, 42 Viet., c. 2. '•Can. Statutes, 44 Viet., c. 14. 'When the province of Manitoba was set up by act of the Canadian Parliament in 1870, its easterly boundary was not common with the westerly boundary of Ontario. Part of the North-West Territories (which were under the jurisdiction of the Parliament and Government of Canada) lay between the two provinces.

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1871. The change of boundaries came into force on July 1, 1881.x The province of Manitoba thus acquired an interest in the disputed territory and became a third party to the dispute. The Governments of Ontario and Manitoba later agreed to submit the matter to the arbitration of the Judicial Committee of the Privy Council and a joint case was prepared.2 The first question submitted for adjudication was whether or not the arbitral award of 1878 was binding upon the federal Government and Parliament and upon the provinces of Ontario and Manitoba The second question, in case the first should be answered in the negative, was as to the location of the correct boundary between Ontario and Manitoba. The third was whether, in case legislation should be needed to make the decision of the Privy Council binding, concurrent acts of the Parliament of Canada and of the legislatures of Ontario and Manitoba would be sufficient, or whether an Imperial act would be necessary. When the case was argued in London, this third question —the only one of interest here—was not given much consideration. The counsel for Ontario and for Manitoba do not appear to have referred to it. The counsel for the federal Government, Christopher Robinson, explained that the British North America Act, 1871, authorized the federal Parliament with the consent of the legislature of any province, to "increase, diminish, or otherwise alter" the boundaries of such province. It had been suggested, he said, that this provision presupposed known and definite boundaries in which a definite change was made. This was obviously not the case at present. The Lord Chancellor replied at once: "I suppose nothing but Imperial legislation would be satisfactory to either party, because it is manifest that if there is not Imperial legislation the same thing would happen 'By proclamation of the Governor-General-in-Council dated June 13, 1881. See Can. Statutes, 1882, pp. xxii-xxiv. *Can. Sessional Papers, 1884, No. 145. The federal Government at first declined to be a party to the case but later agreed to it so far as it related to the definition of the westerly boundary of Ontario. A detailed account of the boundary dispute from its origin up to the arbitral decision of the Privy Council in 1884 is given in C. W. R. Biggar, Sir Oliver Mowat (Toronto, 1905), vol. I, pp. 369-423.

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over again which happened in the case of the award—the party who did not like the conclusion would come and say he was not bound by it."1 The concurrence of all parties concerned which is needed under the act of 1871 would then be lacking. The Board itself later adopted the views of the Lord Chancellor. Its decision, as confirmed by Imperial orderin-council of August 11, 1884, reads "that without expressing an opinion as to the sufficiency or otherwise of concurrent legislation of the Provinces of Ontario and Manitoba, and of the Dominion of Canada (if such legislation should take place), their Lordships think it desirable and most expedient that an Imperial Act of Parliament should be passed to make this decision binding and effectual."2 Following this decision of the Judicial Committee, all parties proceeded on the assumption that Imperial legislation should be passed. In 1889 when the federal Government finally agreed to request the enactment of such legislation and moved an address to the Queen in the Canadian Parliament, David Mills said from the Opposition benches that he was pleased with the Government motion but that he would have been better pleased if the Government had introduced a bill simply confirming an act already passed by the legislature of Ontario on the subject. He recalled that in view of the powers granted by the British North America Act, 1871, a reference to Westminster was unnecessary.3 He did not labour his point, however, and no reply was given from the Government benches. This seems to be the only occasion where the necessity or the desirability of Imperial legislation was questioned following the decision of the Privy Council. The British act of 1889 was only passed, however, after a new disagreement between Ottawa and Ontario had been smoothed away. The Judicial Committee had confirmed so much of the award of 1878 as had been argued before it— that is the westerly boundary and the western part of the '"Copy of the shorthand notes of the argument before the Privy Council . . .", Can. Sessional Papers, 1886, No. 28, pp. 288-9. *Can. Sessional Papers, 1885, No. 123b, pp. 2-3. 3 Can. H. of C. Debates, 1889, p. 1654.

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northerly boundary of Ontario. This northerly boundary was thereby placed substantially to the north of the height of land which had generally been considered up to that time as the northerly boundary of both Ontario and Quebec. Moreover, the principles laid down by the arbitrators of 1878 and by the Privy Council to determine the northerly boundary of Ontario applied similarly to the northerly boundary of Quebec. The decision of the Privy Council thus had far-reaching effects which the federal Government was reluctant to accept. Ottawa contended that the Judicial Committee had exceeded its terms of reference in adjudicating not only on the common boundary between Ontario and Manitoba, but also on part of the northerly boundary of Ontario which was adjoining the North-West Territories. To this extent, it was said, the decision was invalid.1 London rejected this claim and declined to act upon a draft bill submitted by Ottawa.2 But after other causes or pretexts for delay had failed or had been dropped,3 the federal Government finally agreed to the confirmation, not only of the Judicial Committee decision, but of the whole boundary award of 1878. Pending such agreement between the interested parties the Imperial Government had been unwilling to proceed with the legislation proposed by the Judicial Committee. In forwarding to the Governor-General at Ottawa a copy of the order-in-council of August 11, 1884, the Colonial Secretary said that he would be glad to be informed whether it was desired that the Imperial legislation proposed in it J This contention was later briefly explained in the House of Commons by Sir John A. Macdonald and David Mills (Can. H. of C. Debates, 1889, p. 1654). Maps showing the disputed territories will be found, inter alia, in Correspondence, Papers and Documents, 18G6-1888, relating to the Northerly and Westerly Boundaries of the Province of Ontario (Toronto: By order of the Legislative Assembly. 1882); and in C. W. R. Biggar, op. cit.. vol. I. Such maps should be read together with the Canadian act of 1881 extending the boundaries of Manitoba.2 Lansdowne to Knutsford, April 16, 1888, enclosing minute of the Privy Council for Canada, April 13, 1888, and draft bill; Colonial Office to the Registrar of the Privy Council, May 17, 1888, at the Public Record Office (London), C. O. 42, vol. 796, No. 8122; Registrar of the Privy Council to Under-Secretary of State for the Colonies, June 14, 1888, ibid.. C. O. 42, vol. 797, No. 11882. 'See C. W. R. Biggar, op. cit., vol. II, pp. 459-63. A further cause of delay was the attempt of the federal Government to bring the whole Quebec boundaries in the proposed Imperial act. See infra, pp. 68-9.

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should be promoted by Her Majesty's Government in London. He added: "In that case a draft of the Bill which is thought proper should be transmitted to me for the consideration of Her Majesty's Government."1 Following this recommendation of the Imperial Government, the Ontario Government repeatedly pressed Ottawa to take steps with a view to confirming legislation at Westminster and it submitted draft bill after draft bill for this purpose.2 The Premier of Ontario, Oliver Mowat, also communicated directly with the Colonial Office3 and, on two occasions, in the summer of 1887 and 1888 respectively, he secured personal interviews with heads and officials of the Department in London.4 It was only in the spring of 1889 that the federal Government came to an agreement with Ontario and moved a resolution in the Canadian House of Commons for an address to Her Majesty which was ultimately passed by both Houses.6 The province of Ontario, by an address of its Lieutenant-Governor-in-Council to Her Majesty, formally concurred in the request of the federal Houses for an Imperial act. The provincial address stressed the fact that the legislature of the province was not in session and that the interests of the province required the confirmation of the boundaries as proposed in the address without waiting for the next session.6 The province of Manitoba had an interest in the proposed legislation since its common boundary with Ontario was to be determined by it. But in so far as this boundary was involved the proposed legislation was simply confirming the arbitral decision of the Judicial Committee and Manitoba J Lord Derby to the Governor-General, August 27, 1884, Can. Sessional Papers, 1885, No. 123b, p. 1. 2 See, inter alia, the Lieutenant-Governor of Ontario to the Secretary of State of Canada, November 22, 1884, ibid., pp. 4-6; also a despatch of February 26, 1886, Can. Sessional Papers, 1886, No. 28a. 'Colonial Office to Mowat, August 27, 1887, at the Public Record Office, C. O. 42, vol. 792, No. 16745 (where reference is made to a communication from Mowat to the Colonial Office enclosing a draft bill, both of which are missing from the record); Colonial Office to Mowat, July 13, 1888, and Mowat to Colonial Office, July 16, 1888, ibid., C. O. 42, vol. 797, No. 14223. 4 C. R. W. Biggar, op. cit., vol. II, p. 541. 6 Can. H. of C. Journals, 1889, pp. 383-5; Can. Senate Journals, 1889, pp. 246-7. "Address from the Lieu tenant-Governor of Ontario in Council to Her Majesty the Queen, May 27, 1889, Can. Sessional Papers, 1892, No. 71, p. 42.

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therefore raised no objection to it. The position of Quebec was slightly different. The proposed legislation, by agreement between Ottawa and Ontario, not only confirmed the award of 1878 but embraced all the boundaries of Ontario. Up to that time, the boundary between Quebec and Ontario was in no way a matter of dispute. But, until the arbitral awards of 1878 and 1884 were made, the height of land had generally been regarded as the northerly boundary of Quebec and Ontario. The Government of Quebec, under the premiership of Honoré Mercier, therefore claimed that the QuebecOntario boundary to the north of that line up to James Bay had never been determined and that such determination could not be made without the consent of both provinces. This was the point made in an official protest to Ottawa against the proposed Imperial legislation.1 It would appear, however, that the northern part of the Quebec-Ontario boundary as described in the resolution of the federal Houses was not and could not have been a matter of dispute. This conclusion may be inferred from a number of documents tabled in Parliament at Ottawa2 and from the explanatory words of Sir John A. Macdonald on the proposed resolution with a view to Imperial legislation.3 The fact that the Leader of the Opposition, Wilfrid Laurier (later Sir Wilfrid), a political friend of Honoré Mercier and a representative of the province of Quebec in the House of Commons, did not oppose the resolution moved by the Government is also significant.4 It would seem that the reason put forward in Quebec's official protest was only a pretext for withholding the consent of the province to the settlement of Ontario's boundaries until a satisfactory settlement of Quebec's northerly boundary was reached. As already pointed out, the Judicial Committee decision was bound to have effects on that boundary. The federal Government had therefore attempted to settle the question at the same time as the Ontario boundary question by bringing all of the Quebec boundaries under the proposed Minute of the Executive Council of Quebec, April 24,1889, ibid., pp. 17-18. "Ibid., pp. 3-44. *Can. H. of C. Debates, 1889, pp. 1329-30, 1363, 1654-58. «See ibid.

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Imperial legislation. But in 1889, since no agreement with the Government of Quebec was in sight, the federal Government dropped its original plan and decided to proceed with the determination of the boundaries of Ontario without further delay. The real motive behind the protest of Quebec against this move seems to have been a desire to block any separate settlement of the Ontario boundary question in the hope that the pressure for such a settlement would force the federal Government to reach an early agreement with Quebec. Whatever may have been the real grounds of Quebec's disagreement, the federal Houses voted the address to the Queen without opposition on the assumption that the proposal did not alter the westerly boundary of that province. By decision of the Governor-General-in-Council, the address was forwarded to the British Secretary of State for the Colonies together with a minute of the Privy Council (for Canada) pointing out that the Quebec Government had been invited to join in the address, but had refused to do so on account, it seemed, of disagreement respecting the northerly boundary of the province. The minute added that no question could be raised as to the boundary between Ontario and Quebec which had been defined by a proclamation of 1791.1 The Canadian address to the Queen included no draft bill. It simply requested that a measure be submitted to the Parliament of the United Kingdom "declaring and providing the following to be the westerly, northerly and easterly boundaries of the Province of Ontario. . . ." There followed a description of the boundaries.2 When the despatch of the Governor-General enclosing the address reached the Colonial Office, in June 1889, Mowat was already in London and, upon the request of the Colonial Secretary himself, was consulted by the Parliamentary Counsel about the drafting of the bill.3 The bill as finally drafted and as enacted by the Imperial Parliament does not lack significance. It throws light on 'Minute of a Committee of the Privy Council, June 4, 1889, Can. Sessional Papers, 1892, No. 71, pp. 42-3. 'Can. H. of C. Journals, 1889, pp. 385-6. 'Memorandum by Lord Knutsford; Colonial Office to Parliamentary Counsel; Colonial Office to Mowat, July 4, 1889, at the Public Record Office, C. O. 42, vol. 800, No. 12968.

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the nature of the role assumed by the British authorities in the amendment of the Canadian Constitution. Moreover, it stresses the consideration then paid in London to what would no doubt to-day be called with emphasis the "rights" of the provinces. Its preamble refers to the request of the Canadian Houses of Parliament; to the assent of the Government of Ontario ; to the preservation of the existing boundaries of Quebec; and to the preservation of the boundaries of Manitoba as determined by the Privy Council.1 Actually, upon receipt of the addresses of the Canadian Houses and of the Ontario Government, the Colonial Secretary had given instructions to draft a bill "which is simply to declare the lines of boundary agreed upon [between Ottawa and Ontario]."2 Later, after a bill had been drafted, a high official of the Colonial Office pointed out in a memorandum intended for the Colonial Secretary that "The recitals [in the bill] about the boundaries of Quebec and Manitoba show why special consent of the Governments of these Provinces is unnecessary."3 The single enacting clause of the Act—apart from the short title section—simply provides that "It is hereby declared that the westerly, northerly and easterly boundaries of the province of Ontario are those described in the address set forth in the schedule to this Act." The Act was passed in 'The preamble of the Act—the Canada (Ontario Boundary) Act, 1889— reads: "Whereas the Senate and Commons of Canada in Parliament assembled have presented to Her Majesty the Queen the address set forth in the schedule to this Act respecting the boundaries of the province of Ontario: "And whereas the Government of the province of Ontario have assented to the boundaries mentioned in that Address: "And whereas such boundaries so far as the province of Ontario adjoins the province of Quebec are identical with those fixed by the proclamation of the Governor General issued in November, 1791, which have since existed: "And whereas such boundaries, so far as the province of Ontario adjoins the province of Manitoba, are identical with those found to be the correct boundaries by a report of the Judicial Committee of the Privy Council, which Her Majesty the Queen in Council, on the llth day of August, 1884, ordered to be carried into execution: "And whereas it is expedient that the boundaries of the province of Ontario should be declared by authority of Parliament in accordance with the said address:" 2 Memorandum by Lord Knutsford, at the Public Record Office, C. O. 42, vol. 800, No. 12968. 'Memorandum by Wingfield, ibid.

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the British Houses of Parliament without any debate or any question.1 5. THE CANADIAN SPEAKER (APPOINTMENT OF DEPUTY) ACT, 1895, SESSION 2 This act has also been generally disregarded—though not as universally as the Canada (Ontario Boundary) Act, 1889— by the few students of Canadian political institutions who have cared to list the amendments to the Constitution since 1867.2 The circumstances of its enactment, however, do not leave much doubt as to its true nature. The Constitution of 1867 contained no provision for a Deputy-Speaker of the Senate although it provided for a Deputy-Speaker of the House of Commons.3 On many occasions since Confederation it had been proposed to cover this gap by legislation of the Canadian Parliament. But such legislation had never been passed because it was contended in many quarters to be repugnant to the provisions of the British North America Act, 1867. In 1893, however, the federal Government decided to ignore the objections. A bill was introduced in the Senate and was allowed to pass on division after its constitutionality had been seriously challenged in a lengthy debate.4 It came before the House of l

Br. Parí. Debates, 3rd series, vols. 337-9. *Row ell-Sirois Report, Book I, p. 136, in conjunction with Book III, pp. 200-6; Maurice Ollivier, Problems of Canadian Sovereignty (Toronto, 1945), pp. 363-80; O. D. Skelton, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 31-36. Curiously, after disregarding the act of 1895 in his list of constitutional amendments which totalled seven, O. D. Skelton said in his evidence that after 1871 two amendments had been passed by the United Kingdom Parliament on an executive request alone from Canada, namely: in 1875 and in 1895 (ibid., p. 36); and later he reiterated his former assertion that only seven amendments had been made, thus excluding the act of 1895 (ibid., p. 38). The act of 1895 was not included in the compilation of Canadian constitutional documents, British North America Acts and Selected Statutes, when first published in 1943. It was included, however, in the French version one year later and it now appears in the new English edition of 1948. The Act was first classified as an amendment, it seems, by H. McD. Clokie in his comprehensive review of British acts passed specially for Canada since 1867, "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. V I I I (1942), pp. 8-12. It is also listed in R. MacG. Dawson, The Government of Canada (Toronto, 1947), pp. 140-41. 'Section 47. 4 Can. Senate Debates, 1893, pp. 310-98.

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Commons towards the end of the session and, upon Opposition pressure, it was dropped.1 At the following session of Parliament the bill was reintroduced in the Senate with an additional clause providing that the Act should come into force only upon the publication of a proclamation to this effect in the Canada Gazette. It was explained that this clause would allow time to secure the opinion of the law officers of the Crown upon the validity of the Act before the latter came into force. The bill passed both Houses, though not without opposition.2 It is most interesting to note from the parliamentary debates the course of action contemplated in case the Act would be considered ultra vires in England. Auguste-Réal Angers, speaking for the Government in the Senate, said that "it would then be in order to petition the Imperial Parliament for the necessary amendment to the British North America Act to empower this House to elect a Speaker under the circumstance mentioned in the Bill."3 The Prime Minister, Sir John Thompson, spoke quite differently in the House of Commons. He said that his Government contemplated asking the Imperial Government to submit the Act to the law officers of the Crown, "in order that, if the doubts of its constitutionality are shared by them, Her Majesty may be pleased to give direction that Her Majesty's Government may initiate in Her Imperial Parliament, legislation to amend the British North America Act to the extent of authorizing the Senate to elect a Deputy Speaker under the circumstances I have mentioned."4 No question and no debate arose from this statement, which is rather surprising in view of the policy so emphatically asserted and pursued by the Canadian Parliament in previous instances of constitutional amendment. Actually, just over one year later, without any further intervention of the Canadian legislature, the Imperial Parliament passed the Canadian Speaker (Appointment of 'Con. H. of C. Debates, 1893, pp. 3537-47, 3557-61. *Can. Senate Debates, 1894, pp. 224, 256-63, 266. Can. H. of C. Debates, 1894,3 pp. 4943-45. Can. Senate Debates, 1894, p. 224. *Can. H. of C. Debates, 1894, p. 4944.

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Deputy) Act "for removing doubts as to the validity" of the Canadian act.1 The Act as assented to by the Queen is in a form which may explain why many writers have overlooked this document in enumerating the amendments to the Constitution. Instead of embodying a constitutional provision of a general character it simply provides for the confirmation of the Canadian act of 1894. The enactment of an Imperial act, however, to overcome provisions of a safeguarded constitutional document ought to be regarded as an amendment. It is possible, as seen earlier,2 that the act of 1895 which was passed only "for removing doubts as to the validity" of a Canadian act was unnecessary and added nothing to the powers of the Canadian Parliament under the act of 1867. In such a case, the act should not be considered as an amendment. However, for the purpose of this study it is sufficient that the act should relate to the Confederation Act and have effect notwithstanding anything contained in that act. Although the question as to whether the act of 1895 actually altered the act of 1867 remains open for the courts, in the meantime the enactment of such a bill to interpret a constitutional document is outside the competence of any legislative body in Canada and ought therefore to be regarded prima facie as an amendment. The Imperial act of 1895, in so far as it is an amendment, does not have the effect of bringing the Canadian act3 thus confirmed by it into the category of safeguarded documents. There is nothing to preclude the federal Parliament from simply repealing this act. But any change in the text of the act would fail to benefit from the "constitutionalizing" action of the Imperial act which covered specifically and exclusively the Canadian act of 1894. Any amendment to this act would therefore not be any more valid than the act itself before its confirmation at Westminster.4 The amendment of 1895 was to be the last one passed in 'There was no debate on the bill in2 the Imperial Parliament. Br. Parí. Debates, 4th series, vol. 36. Supra, p. 16. "Can. Statutes, 57-58 Viet., c. 11, now Revised Statutes of Canada, 1927, c. 149. 4 This situation has been altered by the 1949 (No. 2) amendment. See Introduction, supra, et pp. xxiv—xxxi.

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England without any formal address from the Canadian Houses of Parliament. On the merits of the Canadian act respecting the Speaker of the Senate, the federal Parliament had been unanimous. The only objection to it had been that a constitutional amendment should have been sought first. Parliament had also been unanimous on the desirability of securing such an amendment if it should be considered necessary after the passing of the Act. These circumstances may explain the apathy of Parliament concerning the method of petitioning the Imperial Government, a method which had raised so much debate in 1871 and 1875.

6. THE BRITISH NORTH AMERICA ACT, 1907 In order to determine its status as an amendment this act must first be put in its proper setting, for it constitutes only one episode in the laborious history of the federal subsidies to the provinces. It is not within the scope of this study, however, to retrace that history in detail. This task has been very ably done elsewhere.1 Let us only recall that section 118 of the Confederation Act, after determining the amount of the federal subsidies to the provinces, provided that "such grants shall be in full settlement of all future demands on Canada." Ironically enough, this provision passed through history as the "finality clause." But two years had not elapsed after Confederation before the Macdonald-Cartier Government decided to grant an additional subsidy to Nova Scotia. The avowed purpose of this move was to quiet Nova Scotia which had never been reconciled to the Confederation settlement. The principle involved in the step, however, was far-reaching; and the Opposition at Ottawa fought the measure on broad constitutional grounds. The British North America Act, 1867, they claimed in one of their motions, "does not empower the Parliament of Canada to change the basis of union thereby 'The most extensive studies are the following: Wilfrid Eggleston and C. T. Kraft, Dominion-Provincial Subsidies and Grants, being a study prepared for the Rowell-Sirois Commission and published in mimeographed form (Ottawa, 1939); J. A. Maxwell, Federal Subsidies to the Provincial Governments in Canada (Cambridge, Mass., 1937). J. A. Maxwell has also published a number of articles which are referred to in his book.

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fixed and settled."1 They called for action in "a constitutional way." Later, in the words of a motion by L. H. Holton, they contended that "any disturbance of the financial arrangements . . . provided for in the British North America Act, unless assented to by all Provinces, would be subversive to the system of Government under which this Dominion was constituted."2 Even after the measure was passed by both Houses of Parliament, the legislature of the province of Ontario voted an address to the Queen praying that a measure be submitted to the Imperial Parliament "for the purpose of removing all colour for the assumption, by the Parliament of Canada, of the power to disturb the financial relations established by the British North America Act (1867), as between Canada and the several Provinces."3 At the following session of Parliament the matter was brought again before the House of Commons. Sir John A. Macdonald maintained his stand but allowed a curious resolution to be passed whereby the House, by a majority of 134 to 10, expressed the opinion "that no further grant or provision, beyond those made by the Union Act and the Act respecting Nova Scotia, should in the future be made out of the revenues of Canada for the support of the Government or Legislature of any of the Provinces."4 As J. A. Maxwell puts it, this affirmation was "mere blague."5 The constitutional ground for the action of the federal government was, in the words of the Government of the day at Ottawa, "the undoubted privilege of Parliament to fix and determine the amount of all expenditure chargeable on the public funds of the Dominion."6 The amount of the federal grants determined by section 118 of the Confederation Act was thus interpreted as a maximum for which the federal 'Can. H. of C. Journals, 1869, p. 231-2. 'Ibid., p. 260. 'Journals of the Legislative Assembly of the Province of Ontario, 1869, pp. 54-56; the address to the Queen and the resolutions upon which it is based will also be found in Can. Sessional Papers, 1870, No. 25, pp. 2-3. The address was not implemented in London. (See infra, pp. 140-1.) 'Can. H. of C. Journals, 1870, pp. 126-7. '"A Flexible Portion of the British North America Act," Canadian Bar Review, vol. XI (1933), p. 151. This article gives a short and interesting account of this first step in the path of "better terms." 'Can. H. of C. Journals, 1870, p. 125.

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treasury was liable and a minimum to which the provinces were entitled, but which did not preclude Ottawa from spending its revenues as it saw fit in additional grants. Such an interpretation was upheld by the law officers of the Crown in England1 and it has never been questioned since then either in Parliament or before the courts. Once the precedent had been established, claims for "better terms" came from one province after another. On two occasions, collective action was taken at in ter provincial conferences, in 1887 and in 1902. Shortly after the Conference of 1902, the federal Government headed by Sir Wilfrid Laurier decided to re-open the whole problem of subsidies. Sir Wilfrid proposed to call the provinces together at Ottawa in the hope that they might agree among themselves on a comprehensive solution of the problem. This agreement might then form the basis of a constitutional amendment which would substitute a new scale of grants for that provided by section 118 of the British North America Act, 1867, or by any British order-in-council bringing new provinces into the Confederation, or by any act of the Parliament of Canada establishing new provinces.2 In this way, Sir Wilfrid apparently hoped to achieve what the Fathers of Confederation had been unable to ensure: "a final and unalterable settlement." At the least, he expected that this procedure would lead to a degree of stability unattained in the past. Before going into the events of 1906 and 1907 which led to the enactment at Westminster of the British North America Act, 1907, it may be well to consider, in the light of this historical background, the status and the effect of the Act from a purely constitutional point of view. The Act substituted new grants for the grants or subsidies then paid under section 118 of the Confederation Act. Under the Colonial Laws Validity Act, the Canadian Parliament was precluded from repealing or amending the act of 1907, or 'Granville to the Governor-General, August 23, 1869, Can. Sessional Papers, 1870,2 No. 25, p. 6. Any reference to section 118 of the Confederation Act made hereafter shall be taken as a reference also to similar provisions of all such orders-in-council and acts of Parliament.

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from passing any legislation repugnant to it. The Constitution was thus amended in so far as the federal Parliament became bound to honour a higher "minimum scale of subsidies" than that provided by section 118 of the original act. But nothing in the amending act, however, curtailed the power theretofore enjoyed by the federal Parliament to spend its revenues as it saw fit in additional grants. The Statute of Westminster does not appear to have altered this situation. The act of 1907 is not one of "the British North America Acts, 1867 to 1930," and its provisions are not embodied in any of these acts.1 However, the subjectmatter of the Act—the amount of the minimum grants to be made by Ottawa to the provinces, and the terms of payment of these grants—is not "within the competence of the Parliament of Canada" as required by section 7(3) of the Statute of Westminster.2 Ottawa is competent to make grants to the provinces in addition to the grants provided by the act of 1907 and it is competent to determine the terms of payment of any such additional grants; but this is a matter altogether different from any power to alter the amount and the terms of Ottawa's "liability" towards the provinces. The "liability" when originally fixed by section 118 of the Confederation Act was a matter outside the competence of Parliament. This matter is now determined by the act of 1907 which is not an act expressly safeguarded under section 7(1) of the Statute of Westminster; but nothing in it can be construed as bringing the matter of Ottawa's "liability" towards the provinces within the competence of the Canadian Parliament under section 7(3) of the Statute. The act of 1907 is therefore an amendment to the Constitution, fully safeguarded, it would appear, against repeal or alteration by the unilateral action of the federal Parliament. ! The British North America Act, 1907, after determining a scale of grants to be made yearly by Ottawa to the provinces, simply provides in subsection (5) of section 1 that "The grants payable under this Act shall be substituted for the grants or subsidies . . . 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, . . . and 2those provisions shall cease to have effect." See the argument developed supra, pp. 12 ff.

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The Conference which was convened in 1906 to discuss the federal subsidies to the provinces had a special character. A provincial premier, Lomer Gouin, was elected chairman and, at the first meeting, the Prime Minister of Canada explained that his Government would be ready to discuss with the provincial representatives "whatever proposals they might, after conference among themselves, agree in submitting." The provincial delegates actually conferred alone; the federal representatives attended meetings only to receive joint resolutions from the provinces and, to a certain extent, to discuss these resolutions with the provincial representatives.1 The Conference was thus partly interprovincial and partly federal-provincial. The provinces agreed to renew the financial claims formulated at the interprovincial Conference of 1902 which in turn repeated those of the previous Conference of 1887, reserving, however, the right of any province to submit forthwith in writing to the Government of Canada any claims which it might have to larger sums than those set out in the resolutions of 1902. Premier McBride of British Columbia, availing himself of this right, invoked the peculiar needs of his province arising out of a mountainous terrain, scattered population, geographical isolation, and other factors, and he asked for the appointment of a commission to investigate his claim fully. Following the recommendation of Sir Wilfrid Laurier the Conference declared it inadvisable to refer any such claim to arbitration and it recommended that an additional allowance of $100,000 annually for ten years be granted to British Columbia. Premier McBride thereupon dissociated himself from this decision of the other provincial representatives and he withdrew from the Conference.2 The federal Government decided to proceed with the proposed adjustment of subsidies which had been approved by all provinces except British Columbia. Parliament was asked to pass an address to the King praying that a measure be laid before the Imperial Parliament for the purpose of 'Proceedings of the Conference between the Government of Canada and the various provincial Governments, 1906, Can. Sessional Papers, 1906-7, No. 29a. 2 Ibid., pp. 3-13. For a more detailed account, see Wilfrid Eggleston and C. T. Kraft, op. cit., pp. 30-3, 177-8; J. A. Maxwell, Federal Subsidies to the Provincial Governments in Canada, pp. 108-11.

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"repealing the provisions of section 118 of the British North America Act, 1867, . . . and substituting therefor the scale of payments" adopted at the Conference.1 The address also provided that such payments should be "a final and unalterable settlement of the amounts to be paid yearly to the several provinces," a wording which might appear stronger than the "full settlement of all future demands on Canada" of original section 118. But on this point, Sir Wilfrid had not yet finished moving the adoption of the address when he admitted the futility of any guarantee of finality "but the determination of Parliament itself." He went so far as to say that Parliament might continue as in the past and do "like the Romans who thought they had the law of the twelve tables which could not be altered, still they managed to circumvent that law by enacting other laws."2 However, Sir Wilfrid was attempting to establish the precedent that no change in the scale of subsidies should thereafter be made save by amendment to the Constitution. The finality clause might have had no constitutional value to this effect but it was not without some moral value in showing the "intentions" of the Canadian Parliament. The proposed address was therefore passed by both Houses at Ottawa with the finality clause unchanged.3 In the meantime British Columbia prepared to oppose the federal proposal before the Imperial authorities. Sir Wilfrid had given notice of his resolution embodying the address to His Majesty on March 18, 1907.4 One week later the Legislative Assembly of British Columbia passed a resolution protesting against the federal proposal of constitutional amendment. On March 30, by order of the Lieutenant-Governor-in-Council, Premier McBride was appointed a "Special Agent and Delegate" to proceed to London and to bring the case of the province before the British Government. The Executive Council of British Columbia 1 Can. H. of C. Journals, 1906-7, pp. 346-7; Can. H. of C. Debates, 1906-7, pp. 5288 ff. 2 Can. H. of C. Debates, 1906-7, p. 5308. 3 Can. H. of C. Journals, 1906-7, pp. 349, 463, 512-13, 515-16, 604-5; Can. H. of C. Debates, 1906-7, pp. 5395, 7052-4, 7701, 7775-80. *Can. H. of C. Debates, 1906-7, pp. 4861-2. The final concurrence of the Senate was secured only on April 27 following.

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later approved a memorandum to be submitted to the Colonial Office by McBride. The memorandum first stressed the point that the appointment of a commission of inquiry was the only appropriate way to arrive at a decision upon the claims of British Columbia for special treatment. Secondly, it was submitted that "the proposed amendment to the 'British North America Act,' allowing $100,000 a year for ten years as a final and unalterable settlement for the recognized claims of British Columbia would inflict an injustice, both because of the inadequacy of such compensation and by reason of the fact that the Province would be deprived of the right to have such claims further recognized or considered." McBride then proceeded to London with credentials issued at Ottawa in the name of the Governor-General.1 The precise object of this "mission" does not appear clearly from the documents available and it will therefore not be possible to appreciate fully the significance of the results achieved. Was it McBride's intention to oppose the passing of the proposed amending act altogether? Was it to press for the inclusion of a higher additional grant than the $100,000 already provided for? Was it to bring the matter to arbitration by a provision to this effect in the act? None of these alternatives seems believable. It would seem more probable that McBride asked the Secretary of State for the Colonies to exert his influence upon Ottawa to bring the point of grievance to arbitration though not compelling them to it; and, more than anything else, McBride insisted on deleting the finality clause. The result is well known. On this last point McBride succeeded; but this was the limit of his success. The position taken by the British Government appears from official documents. While in London, Premier McBride secured interviews with the Secretary of State for the Colonies, Lord Elgin, with the Parliamentary Under-Secretary of State for the Colonies, Mr. Winston Churchill, and with officials of the Colonial Office. A few days before the bill ^'Correspondence and Papers connected with the Hon. Richard McBride's Mission to England," Sessional Papers of British Columbia, 1908, pp. C 7-18.

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was introduced in Parliament, McBride received from Downing Street a letter which is worth quoting at length. The letter under the signature of one H. Bertram Cox and dated June 5, 1907 reads as follows: I am directed by the Earl of Elgin to inform you that His Lordship has given the most careful consideration to the documents which you presented to him and to the views advanced against the proposed amendment of the British North America Act fixing the scale of payments to be made by the Dominion of Canada to the several provinces. 2. Lord Elgin fully appreciates the force of the opinion expressed that the British North America Act was the result of terms of union agreed upon by the contracting provinces and that its terms cannot be altered merely at the wish of the Dominion government. 3. But, in this case, besides the unanimous approval of the Dominion parliament, in which British Columbia is of course represented, to the proposed amendment of section 118 of the British North America Act, His Lordship is bound to take into account the fact, that at the conference of 1906 the representatives of all the other provinces of Canada have concurred in fixing at $100,000 annually for ten years the additional allowance payable to British Columbia, while rejecting the claim of Manitoba, Alberta and Saskatchewan for additional grants, and that they also rejected the proposal that the claim of any province should be referred to arbitration. 4. His Lordship feels, therefore, that in view of the unanimity of the Dominion government and of all the provincial governments, save that of British Columbia, he would not in the interests of Canada be justified in any effort to override the decision of the Dominion parliament or to compel the reference of the question to arbitration. 5. I am to add that no mention will be made in the Imperial Act of the settlement being "final and unalterable," such terms being obviously inappropriate in a legislative enactment. 6. His Lordship also desires it to be understood that he expressed no opinion upon the sufficiency or otherwise of1 the quantum of extra contribution awarded to British Columbia.

The bill was introduced in the House of Commons by Mr. Winston Churchill. After referring to the interprovincial 'Report on the Mission of the Hon. Richard McBride to England, ibid., pp. C 2-3; also quoted at length by O. D. Skelton, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 34-5.

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Conference of 1906, to the special treatment granted to British Columbia, to the resolution of the Legislative Assembly and to the petition of the Government of the province against the finality clause, Mr. Churchill said that he did not pretend to go into the merits of the claim. But he went on to say that, "On the other hand, he would be very sorry if it were thought that the action which His Majesty's Government had decided to take meant that they had decided to establish as a precedent that whenever there is a difference on a constitutional question between the Federal Government and one of the provinces, the Imperial Government would always be prepared to accept the Federal point of view as against the provincial. In deference to British Columbia the words 'final and unalterable' applying to the revised scale had been omitted from the Bill."1 Later on, answering questions and giving further explanations on the bill, Mr. Churchill gave a somewhat different reason for the deletion when he said: "The Prime Minister of British Columbia and others thought that the words 'final and unalterable' should not be inserted in the Bill. It is true those words were in the Address of the Dominion Parliament but they were not inserted in the Bill by the Parliamentary draftsman on the ground that they were unusual and unsuitable in an Act of Parliament."2 The decision of the British Government had apparently been taken without consultation with the Canadian Government. This would not be too surprising since the Canadian address included no draft bill—although the desired objects were laid down in specific terms in it. The task of drafting the bill therefore rested with the British Government. At any rate, at one moment or another Ottawa made representations to London against the deletion of terms appearing in the address of the Canadian Houses. This point was made clear by the Earl of Elgin in introducing the bill in the House of Lords. The British Government answered that it was not possible to incorporate the words of the address in the bill, but they agreed to move an amendment l

Br. Parí. Debates, 4th series, vol. 175, pp. 1616-17. "Ibid., vol. 176, p. 754.

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to the bill that the Canadian address be put as a schedule to it.1 The bill was finally passed in this form. It will be the object of a later chapter to study the implications of this whole episode. At this stage, however, it may be well to inquire into the significance of the step taken by the British Government in omitting the words "final and unalterable settlement" proposed by the Canadian Government and Parliament. Of course these words would have been without effect in so far as the Parliament of the United Kingdom was concerned, and in this sense they may have been deemed "unsuitable." But they could have been considered as binding upon the Canadian Parliament—although it is doubtful whether such words would have precluded Parliament from spending its revenues as it saw fit in additional grants. At any rate, they would have constituted (at least for a certain time) a moral barrier in the way of "better terms." Undoubtedly the British Parliament could have passed the bill—including the controversial words—without appearing ridiculous, since it could have considered them of some effect, whether legal or simply moral, on the Canadian Parliament. The above quotations would indicate, however, that the British Government diplomatically used a legal argument which would allow them to comply with the substance of the federal request though giving to the objecting province some reason for satisfaction. It should also be noted that the amendment did not deprive the provinces of any of their rights. On the contrary it assigned them federal subsidies much higher than those provided for in 1867. The opposition from one province was motivated only by a claim for still "better terms." In such circumstances, had the British Parliament passed the bill in spite of British Columbia's complete opposition— and there is no conclusive evidence that the bill in its final form was still opposed by Premier McBride—this could not be interpreted as a rejection of the doctrine of unanimous consent for amendments depriving the provinces of one of their rights. This is the only amendment which was the subject of such a dispute in London. l

Br. Parí. Debates, 4th series, vol. 178, pp. 467-8.

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7. THE BRITISH NORTH AMERICA ACT, 1915 The amendment of 1915 effected an important change in the constitutional structure of the Confederation. Its object was twofold. First, it recast the composition of the Senate. The three original divisions of Ontario, Quebec, and the Maritime Provinces were maintained; and the provinces of Manitoba, British Columbia, Saskatchewan, and Alberta, which had been granted senators on various bases at the time of their respective entry into Confederation, were erected into a fourth division, the Western Provinces, with six senators to each province. The second object of the amendment was to provide that a province should always be entitled to a minimum number of members in the House of Commons equal to the number of senators representing that province. The first part of the amendment was not subject to any controversy and it was agreed to by the federal Parliament without opposition. In the session of 1914, the Canadian Government had introduced in the House of Commons four bills to increase to six members the representation of each of the four Western Provinces in the Senate. This step was fully in accord with the Constitution in so far as the provinces of Saskatchewan and Alberta were concerned. Doubts were raised, however, concerning the power of Parliament to take such action with respect to Manitoba. In the case of British Columbia there was agreement about the need of a constitutional amendment. But, before the bills came up for discussion, the Government decided to drop them and to move a resolution requesting a constitutional amendment at Westminster. It was proposed to give a comprehensive and definite solution to the question of the Western representation in the Senate instead of dealing with it piecemeal as in the past. The Western Provinces were being recognized as a fourth geographical region of Canada for the purpose of such representation. However, the representation of the territories not yet included in any province, and the representation of Newfoundland, in the event of her union with Canada, were not included in this new plan for a comprehensive solution. The representation

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of the "territories" was left to the discretion of the federal Parliament under the powers granted by the British North America Act, 1886,1 and the number of seats to which Newfoundland should be entitled was simply increased from four, as it was under section 147 of the Confederation Act, to six.2 The fact that the whole reform was largely within the powers of the Parliament of Canada under the British North America Act, 1871, and under the Canadian acts establishing the provinces of Saskatchewan and Alberta explains the absence of any opposition to it, either in Parliament or by the provincial governments. The proposal respecting a minimum representation for each province in the House of Commons raised a different problem and it must be seen in the light of its historical background. Since the end of the last century the Maritime Provinces had failed to keep pace with the increase of population in the rest of Canada and their representation in the House of Commons had decreased accordingly. Following the census of 1911 the representation of Prince Edward Island was to be reduced to three members, while it had already been reduced from six to five shortly after 1891, and from five to four in 1903. Various judicial and political steps had been taken to avert such a logical outcome, but always unsuccessfully. In 1907, a member of Parliament for Prince Edward Island, J. J. Hughes, moved a resolution in the House of Commons for a constitutional amendment providing that the Maritime Provinces should not at any time have fewer representatives in the House of Commons than the number respectively assigned to them when they entered the Confederation.3 The general concensus of opinion in Parliament at that time was that the provinces ought to be consulted before any such step was taken by the federal Houses. This is clearly shown by the statements of the Prime Minister and of the Leader of the Opposition.4 'See supra, pp. 41-2, 60. The "territories" are not, at present, given any representation in the Senate. 2 See the explanations of the Prime Minister, Sir Robert Borden, in the House of Commons, and the words of Sir Wilfrid Laurier. Can. H. of C. Debates, 1914, pp. 5278-82. 'Con. H. of C. Journals, 1906-7, p. 135. 4 See Appendix C, infra, at pp. 292-3.

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The House finally agreed to adjourn the debate on this motion in order that its members, in the words of the mover for the adjournment, "may consider it from the standpoint of the other provinces and consult with the local governments, who ought to be consulted before it is further considered, or, at any rate, before the resolution is adopted by this House."1 The question was accordingly taken up at an interprovincial conference in 1910, but the discussion was held over until a further conference which was convened in 1913 by the Premiers of Ontario and Quebec.2 Various proposals were then submitted asking the Conference to recommend the determination, by way of constitutional amendment, of irreducible minima in the representation of the Maritime Provinces. After three different motions to this effect had been dropped, it was finally resolved "That this Conference expresses the opinion that, not representing the Provinces for the purposes of this matter of representation, it declines to take any action in regard to it."3 At the following session of Parliament, the Government introduced a bill to readjust the representation of the provinces in the House of Commons on the basis of the census figures of 1911. Sir Robert Borden referred to the "unfortunate situation" which confronted the Maritime Provinces and more particularly Prince Edward Island whose representation, according to the census figures, should be reduced to three members. After a reference to the Inter provincial Conference of 1913, he went on to say: "Under these circumstances, as the provinces at the conference to which I have alluded had declined to take any action or pass any resolution on the subject—although I understand there were a good many expressions of sympathy—it did not seem possible for us to come to this Parliament and propose any remedy."4 l Can. H. of C. Debates, 1906-7, col. 2204. The full debate is reported at cols. 2147-204. ^Minutes of the Proceedings in Conference of the Representatives of the Provinces, October, 1913 (no place), p. 5. Extracts from these Minutes appear in Can. Sessional Papers, 1914, No. 119. 'Minutes of the Proceedings . . . , p. 26; Can. Sessional Papers, 1914, No. 119, p. 5. *Can. H. of C. Debates, 1914, p. 615. A larger and no less significant extract of Sir Robert Borden's speech will be found in Appendix C, infra, at pp. 293-4.

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Nevertheless, Sir Robert explained that the number of seats to be allocated to Prince Edward Island had been left in blank in the Redistribution Bill. He desired that the question be left open for consideration by the committee to which the bill would be referred. Sir Robert had obviously in mind the possibility of a constitutional amendment which might be proposed by the committee, although he did not say so expressly.1 The Special Committee on the Readjustment of Representation actually considered the special question of Prince Edward Island's representation. In the course of its investigation it heard the representatives of the Government of the province. The Premier himself, J. A. Matheson, and one of his colleagues, John McLean, appeared personally before the Committee and they presented the case of the province to have its representation restored to six members as it was at the time of the Island's entry into the Confederation. The Committee did not agree with this claim, but it recommended the enactment of a constitutional amendment at Westminster to provide that a province should always be entitled to a minimum number of members in the House of Commons equal to the number of senators representing such province.2 Prince Edward Island, which had four seats in the Senate, would thereby retain its four seats in the House of Commons. Although such a rule would not give an immediate advantage to the other Maritime Provinces—Nova Scotia and New Brunswick—these provinces would be assured a minimum representation of ten members each. In the last days of the session, Sir Robert Borden moved in the House of Commons that an address be presented to His Majesty praying that a measure be laid before the United Kingdom Parliament to amend the British North America Act, 1867, in the manner set forth in a bill attached to the address. The bill embodied the recommendation of the Special Committee on the Readjustment as well as provisions altering the composition of the Senate as mentioned above. After a short debate, the address was passed by the 'See the full speech of Sir Robert, Can. H. of C. Debates, 1914, pp. 611-19. 'Can. H. of C. Journals, 1914, p. 673.

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House.1 In the Senate, it was moved in amendment to the bill that the section providing for a minimum representation of each province in the House of Commons should not take effect until the consent of the legislatures of the several provinces had been obtained. But this proposal was rejected on division.2 No similar consent was requested in respect to the clause modifying the composition of the Senate. A curious development then took place. An amendment was moved and was passed by the Senate providing that the proposed amending act should not take effect until the termination of the existing Parliament.3 The House of Commons refused to concur in that amendment;4 the Senate persisted in it;5 and the session ended before any further step could be taken. At the following session, Sir Robert Borden reintroduced his resolution and secured the concurrence of the House of Commons.6 The Senate adopted a position closely similar to that of the previous year but differing in one important respect. It resolved, in amendment, that the first part only of the proposed British act— that dealing with the composition of the Senate—should not take effect until the termination of the then existing Parliament.7 The Commons finally concurred in that amendment as well as in another made by the Senate.8 At Westminster, the bill embodied in the Canadian address was passed by both Houses of Parliament without any debate, although, in the House of Lords, reference was incidently made to the unanimous approval of the Canadian Parliament.9 No province had raised any objection to the proposed amendment or made any representations as to the passing of the bill without its formal consent.10 l lbid., pp. 722-3; Can. H. of C. Debates, 1914, pp. 5277-306. 'Can. Senate Debates, 1914, p. 902. 'Ibid., pp. 902-11. «Care. H. of C. Debates, 1914, p. 5376. 'Care. Senate Debates, 1914, p. 912. «Cow. H. of C. Debates, 1915, pp. 1459-66. 'Can. Senate Debates, 1915, pp. 218-23. "Care. H. of C. Debates, 1915, pp. 2327-41. °Br. H. of L. Debates, 5th series, vol. 18, p. 1052. 10 It has occasionally been suggested that Prince Edward Island opposed the amendment. (See, for instance, Prime Minister St-Laurent's statement in Care. H. of C. Debates (unrevised), October 17, 1949, p. 831.) This is probably a reference to the attitude of the Government of the province, first, in objecting

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The British North America Act, 1915, is a landmark in the history of the process of requesting and securing amendments to the Constitution. For the first time, a complete draft bill to be submitted to the Parliament of the United Kingdom was embodied in the address to the King and was later enacted without modification. In all previous instances of amendments passed upon a parliamentary request from Canada—in 1871, 1886, 1889, and 1907—the joint address had been drafted substantially in the following terms : We, Your Majesty's most dutiful and loyal subjects, the Senate and Commons of Canada, in Parliament assembled, humbly approach Your Majesty for the purpose of representing that it is expedient . . . [here followed the reasons for and the object of the proposed amendment] . . . and praying that Your Majesty may be graciously pleased to cause a measure to be laid before the Imperial Parliament for the purpose of ... [here was restated the object of the proposed amendment] . . . All of which we humbly pray Your Majesty to take into favourable consideration.1

The address of 1915 did not recite the circumstances of the proposed amendment. It simply prayed that a bill, the proposed text of which was set out, be submitted to the Parliament of the United Kingdom for enactment. It read as follows: We, etc. . . . humbly approach Your Majesty praying that he may graciously be pleased to give his consent to submitting a measure to the Parliament of the United Kingdom to amend certain provisions of the British North America Act, 1867, in the manner following, or to the following effect: An Act to amend the British North America Act, 1867. Be it enacted . . . etc. . . . to the Redistribution Bill introduced in the federal Parliament in 1914 (not a constitutional amendment) which, on the basis of the last census figures, would have reduced the Island's representation in the House of Commons to three members; secondly, in insisting before the House of Commons Special Committee on the Readjustment of Representation that the Island's representation should be restored to its original six members. But there does not appear to be any evidence that the province objected to Ottawa's decision to secure a constitutional amendment once it was clear that no settlement more favourable to Prince Edward Island would be agreeable to the federal Government. 'This quotation is from the address of 1886, Can. H. of C. Journals, 1886, pp. 182, 215. For the addresses of 1871, 1889, and 1907 see the references given supra, pp. 57, 69, 79. The address of 1907 also appears as a schedule to the British North America Act, 1907.

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All of which we humbly pray Your Majesty to take into your favourable consideration.1

What Sir John Macdonald, in 1886, had considered to be "rather absurd" as well as "an act of presumption"2 was now about to become a practice. Moreover, the draft bill embodied in the Canadian address was enacted without any change. The Government and Parliament of the United Kingdom simply recorded the will of the Canadian people strictly as expressed by their representatives. It is also significant that, for the first time, the phrase "Parliament of the United Kingdom" was substituted for the phrase "Imperial Parliament" in the address of the Canadian Houses. As in most instances of constitutional amendment up to that time, the new provisions respecting the composition of the Senate were not incorporated into the act of 1867, and neither were the original provisions expressly repealed. The comprehensive new scheme was enacted in a statute standing by itself and was given effect "notwithstanding anything in the British North America Act, 1867." On the other hand, the provision of section 2 of the act of 1915, relating to a minimum representation for each province in the House of Commons, was integrated into the original act as section 5lA. 8. THE BRITISH NORTH AMERICA ACT, 1916 The object of this amendment was to lengthen the term of the existing Parliament for one year. The five-year maximum life of the House of Commons under the act of 18671 was then due to expire in October, 1916. In order to avoid elections at a critical stage of the war in which Canada was engaged, it was therefore necessary to resort to the extraordinary procedure of a constitutional amendment. A joint address from both Houses of Parliament, in a form identical to that used in 1915, was unanimously passed for the purpose. No one questioned the process followed and the provinces were not referred to in the Commons 'Can. H. of C. Journals, 1915, pp. 190-1, 248, 322-3. 2 See supra, p. 61. 'Section 50.

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debate.1 At Westminster no debate arose and the bill embodied in the Canadian address was enacted without any modification. 9. THE BRITISH NORTH AMERICA ACT, 1930 This further amendment to the Constitution of Canada did not embody any new provision in the text of the British North America Act, 1867. Moreover, it did not in the slightest degree affect that act. Its object was to transfer to the provinces of Manitoba, Saskatchewan, and Alberta the natural resources lying within their respective boundari es which had been withheld from them at the time of their erection into provinces; it also re-transferred to British Columbia the lands remaining unalienated in the "Railway Belt" which had been ceded to Canada when the province entered Confederation. The act of 1930 is thus an amendment to the (safeguarded) acts of the Parliament of Canada creating the three Prairie Provinces and to the Imperial order-in-council admitting British Columbia into Confederation. This peculiarity of the act of 1930 accounts for the fact that the act was not listed in the Rowell-Sirois Report under the title "British North America Act and Amendments."2 The act of 1930 is nevertheless an amendment to the Constitution as defined at the outset of this work. The process followed to secure its enactment from Westminster was again that of a joint address from the Houses of Parliament of Canada to the King. But this address was itself the result of conferences, negotiations, and agreements in Canada to which reference should be made. In November, 1927, a Conference of the federal and provincial governments had examined, as part of the larger l Can. H. of C. Journals, 1916, pp. 62, 75, 76; Can. H. of C. Debates, 1916, pp. 622-35, 755; Can. Senate Journals, 1916, pp. 39, 45, 46; Can. Senate Debates, 1916,2 pp. 54-62. Book III, pp. 179-206; in Book I, p. 136, reference is made to six amendments only (therefore excluding the act of 1930) to the British North America Act. In 1935, Maurice Ollivier had already drawn up an identical list and had mentioned "the Constitution" as having been amended six times. (Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 56-7.) He later added to the list the act of 1930. (Problems of Canadian Sovereignty, Toronto, 1945, p. 376.)

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problem of financial relations, the possibility of restoring the natural resources to the Western Provinces. The suggestion met with general approval as did the proposal to grant special treatment to the Maritime Provinces by implementing the recommendations of the Duncan Report. The representatives of Quebec and Ontario concurred in this agreement in principle while emphasizing that they had no special claim to urge for themselves.1 Shortly afterwards, the federal Government entered into discussions with each of the four Western provincial Governments; Commissions of inquiry were appointed; agreements were reached; detailed memoranda were signed with each Government and were approved by the Parliament of Canada as well as by the legislatures of the provinces concerned. The bill embodied in the Canadian address to His Majesty recited these facts and was to give force of law to the agreements which all appeared as a schedule to the bill. During the short debate in the Canadian House of Commons the Government was asked if the consent of the provinces not directly concerned by the amendment had been obtained. Prime Minister Mackenzie King referred to the views expressed by the provincial representatives at the Conference of 1927 and he added that he did not think it necessary to have any formal submission of the address to the provinces other than those to which it exclusively related.2 Later, in the Senate, the question was pressed further and Senator Raoul Dandurand gave a comprehensive reply for the Government. First, consent in principle had been given by all the provinces at the Conference of 1927. Secondly, the proposed amendment did not affect the general basis of the Confederation as determined by the act of 1867 or any of its amendments. It related exclusively to the constitutional documents—Imperial orders-in-council and acts of Parliament of Canada—providing for entry of the Western Provinces into Confederation. These documents were passed under the authority of section 146 of the act of 1867 and of sections 2 and 5 of the amending act of 1871, without the 1 Precis of Discussions, Dominion-Provincial Conference, November 3 to 10, 1927, (Ottawa, 1928) pp. 23, 25-6. 'Can. H. of C. Debates, 1930, p. 2628.

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intervention of any of the provinces then part of Canada. In such circumstances it would not be an assumption of power on the part of anyone, Senator Dandurand concluded, to maintain that these documents might be amended without the intervention of provinces which were not affected by them. Towards the end of the debate it was added by Senator Donnelly that, at any rate, the matter had been very fully advertised and discussed throughout the country and that, since none of the provinces had offered any objection, their silence might well be taken as consent.1 At Westminster, the bill embodied in the address of the Canadian Houses was enacted without alteration. It may be recalled that all four agreements thus confirmed by act of Parliament of the United Kingdom provided that they might be amended by concurrent statutes of the Parliament of Canada and of the legislature of any province concerned. This was the second instance of a joint federal-provincial action specifically provided as a means of constitutional amendment.2 10. THE STATUTE OF WESTMINSTER, 19313 It will not be surprising to see the Statute of Westminster included among the amendments to the Constitution: its main purpose was to remove—subject to certain limitations— federal and provincial legislation in Canada from the operation of the Colonial Laws Validity Act, 1865, which was part of the Constitution.4 But the Statute is also an amendment to the British North America Act, 1867, although it does not appear to have ever been classified as such. The Statute of Westminster left unimpaired the division of powers between the federal government and the provinces as determined by the act of 1867. It did not affect the provisions dealing with the internal machinery of central or provincial government. The Confederation Act, however, contained another group of provisions which dealt with Imperial relations and safeguarded the supremacy of the United Kingdom over the several legislative bodies in Canada. l Can. Señale Debates, 1930, pp. 348-51. 2 See supra, p. 42. 3 See Appendix A, infra, pp. 285-8. 4

See supra, pp. 7-8, 49.

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In this respect, the Statute brought a major change in the act of 1867. Section 12 of that act provided for the powers and functions of the Governor-General of Canada "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."1 A similar provision was enacted in section 65 with respect to the powers and functions of the Lieutenant-Governors of the provinces. It was further provided in section 129 that "all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union . . . shall continue in Ontario, Quebec, Nova Scotia and New Brunswick respectively . . . ; 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, . . ."2 The repeal of pre-Confederation Imperial statutes extending to Canada was thereby expressly withheld from the powers granted to the Parliament of Canada and to the provincial legislatures. The purpose of these provisions, when enacted in 1867, was only to safeguard the application of the Colonial Laws Validity Act. The provisions were, nevertheless, part of the Confederation Act and, as such, were abrogated by the Statute of Westminster which provided that it shall be competent for the Parliament of Canada and for the provincial legislatures (according to their respective jurisdiction) to repeal or amend any act of Parliament of the United Kingdom (except the constitutional documents expressly safeguarded) in so far as such act was part of the law of Canada or of any of its provinces.3 The Statute therefore modified to that extent the act of 1867. Such a construction was put on the Statute by the Judicial Committee shortly after 1931. The then Lord Chancellor, Viscount Sankey, delivering the judgment of the Board in •Italics added. Italics added. 'Section 2(2) and section 7(2) of the Statute. 2

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the British Coal Corporation case, in 1935, said: "It is true that before the Statute, the Dominion Legislature was subject to the limitations imposed by the Colonial Laws Validity Act and by s. 129 of the [British North America] Act. . . . But these limitations have now been abrogated by the Statute."1 The Judicial Committee thereby rejected the argument advanced by counsel in the case that the Statute, in view of subsections (1) and (3) of its section 7, did not affect section 129 or any other section of the British North America Act, 1867.2 As interpreted by the Committee, section 7 of the Statute "excludes from the competence of the Dominion and Provincial Parliaments any power of 'repeal, amendment or alteration' of the Act [of 1867]" ;3 but it does not mean that the Statute did not actually amend the Act. The Committee maintained the same opinion in 1947, in the case concerning the power of the Parliament of Canada to abrogate all appeals to the Privy Council. The Lord Chancellor, Lord Jowitt, then said: "Sub-section (1) of section 7 is in general terms, and it was urged that to interpret the Statute as vesting in the Dominion Parliament a power which it did not before possess was in effect to repeal or amend or, at least, to alter the British North America Act. But their Lordships cannot accept this reasoning. Necessarily the effect of the Statute is to amend and alter the Act in so far as from the operation of the Statute there arises a new power in the Legislatures both of the Dominion and the Provinces. The question is, in which Legislature the power is vested with regard to this particular subject-matter."4 The Statute of Westminster was not, however, primarily an amendment to the act of 1867. The purpose of its framers, in so far as Canada was concerned, was to remove Canadian legislation, both federal and provincial, from the operation of the Colonial Laws Validity Act and from other fetters which had their basis outside the Confederation Act. '•British Coal Corporation v. the King, [1935] A.C. 500, at p. 520. 'Ibid., pp. 503-4. Ibid., p. 520. ^Attorney-General for Ontario and Others v. Attorney-General for Canada and Others, Attorney-General for Quebec (Intervener), [1947] A. C. 127; [1947] 1 D.L.R. 801. 3

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The Statute transcends the whole body of Canadian constitutional law. This characteristic explains why the Statute may have been placed in a category of its own instead of being classified in chronological order among the amendments to the act of 1867.1 Moreover, this characteristic of transcendency, together with the enactment of a special clause in the Statute safeguarding the status quo as to the amending process and the division of powers in Canada, may have led students of the Canadian Constitution to overlook incidental effects of the Statute upon the act of 1867. But, quite apart from these considerations, the Statute comes under the heading of this chapter as fully as any of the other amendments examined here, since the Colonial Laws Validity Act, which was principally affected by the Statute, as well as the British North America Act, 1867, formed part of the original Constitution of the Canadian Confederation.2 The process followed to secure the enactment of the Statute of Westminster, despite the requirements resulting from the Commonwealth-wide operation of the Statute, did not differ in essentials from the customary procedure to secure any amendment to the Constitution of Canada. The first steps towards the enactment of the Statute date from the Imperial Conference of 1926, when special consideration was given to such questions as the operation of Dominion legislation and Merchant Shipping legislation. A number of general principles were laid down and it was agreed that a Commonwealth-wide committee should be set up to inquire fully into these matters and to make recommendations to a subsequent Conference.3 The proposed committee met as the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, in the autumn of 1929. Among the recommendations included in its Report were draft clauses which, it was suggested, could be embodied in a bill to be enacted by the Parliament of the United Kingdom upon the consent and 'See inter alia: O. D. Skelton, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, p. 37; Rowell-Sirois Report, Book III, p. 179; Maurice Ollivier (éd.), British North America Acts and Selected Statutes, 1867-1948, pp. 5, 60, 123. 2 See supra, p. 7-8, 49. ^Imperial Conference, 1926, pp. 16-19.

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request of the several member-states of the Commonwealth. One of these clauses removed Dominion legislation from the operation of the Colonial Laws Validity Act and established the legislative sovereignty of the Dominion Parliaments in so far as British acts and orders-in-council had hitherto constituted a fetter upon it.1 Later in its Report, the Conference considered the effect of the acquisition of full legislative powers by the Parliaments of the Dominions possessing federal constitutions.2 The Conference recalled that Canada alone among the Dominions had no power to amend its Constitution Act without legislation by the Parliament of the United Kingdom. It was pointed out "that the question of alternative methods of amendment was a matter for future consideration by the appropriate Canadian authorities and that it was desirable therefore to make it clear that the proposed Act of the Parliament of the United Kingdom would effect no change in this respect. It was also pointed out that for a similar reason an express declaration was desirable that nothing in the Act should authorise the Parliament of Canada to make laws on any matter at present within the authority of the Provinces."3 The Conference accordingly recommended the enactment of a clause dealing with those matters in the following terms : (1) Nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution Acts of the Dominion of Canada, the Commonwealth of Australia, and the Dominion of New Zealand, otherwise than in accordance with the law and constitutional usage and practice heretofore existing. (2) Nothing in this Act shall be deemed to authorise the Parliaments of the Dominion of Canada and the Commonwealth of Australia to make laws on any matter at present within the authority of the Provinces of Canada or the States of Australia, as the case may be, not being a matter within the authority of the Parliaments or Governments of the Dominion of Canada and of the Commonwealth of Australia respectively.4

It is significant to note, further in the Report, a reminder by the Conference of its own terms of reference which dealt ^Report of the Conference on the Operation of Dominion Legislation, 1929, par. 53. "Par. 62. "Par. 63. "Par. 66.

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only with the constitutional position of the Governments and Parliaments of the Dominions without any mention of the special problems presented by federal Constitutions. The Conference had accordingly not been called upon to consider any matters relating to the legislative powers of the provinces in Canada and the states in Australia. But the Report adds, no less significantly: "The federal character of the Constitutions of Canada and Australia, however, gives rise to questions which we have not found it possible to leave out of account, inasmuch as they concern self-government in those Dominions."1 Following these introductory words the Report points out that the recommendations made earlier with regard to the Colonial Laws Validity Act do not deal with the problems of provincial and state legislation. Therefore, "in the absence of special provision, Provincial and State legislation will continue to be subject to the Colonial Laws Validity Act and to the legislative supremacy of the Parliament of the United Kingdom, and it will be a matter for the proper authorities in Canada and in Australia to consider whether and to what extent it is desired that the principles to be embodied in the new Act of the Parliament of the United Kingdom should be applied to Provincial and State legislation in the future." 2 Following the Conference, the Report was considered fully in the several parts of the Commonwealth. At Ottawa, a debate took place in May, 1930, when the Government asked the House of Commons for approval of the Report. The document was subjected to careful scrutiny and strong objections were made to it by the Conservative Opposition.3 It was maintained, in particular, that no action should be taken on the Report without first obtaining the formal consent of the several provinces.4 The draft clauses which it was proposed to embody in an act of Parliament of the United Kingdom concerned not only the central government 'Par. 68.

2

Par. 71. The Conservative case was put forward in detail by Mr. C. H. Cahan. Can. H. of C. Debates, 1930, pp. 2576-86. 4 See in this respect the words of Mr. R. B. Bennett, then Leader of the Opposition, speaking on the Speech from the Throne at the opening of the session of 1930, quoted in Appendix C, infra, p. 297. 3

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of Canada and its relations to the other member-states of the Commonwealth, but concerned also the provinces and their relations to the federal authority. The Opposition urged that one matter of particular concern to the provinces was the process of constitutional amendment. It was contended that any proposed enactment dealing with this matter—whether designed to bring about a substantial change or not—should previously receive the formal consent of the provinces. Furthermore, objection was taken to the drafting of the proposed clause which withheld from the federal Parliament any power to repeal or alter the Constitution "otherwise than in accordance with the law and constitutional usage and practice heretofore existing." There was actually no law or constitutional usage or practice at all by which the Parliament of Canada could thus repeal or alter the Constitution. The recommendation that provincial legislation should continue to be subject to the Colonial Laws Validity Act and to the legislative supremacy of the Parliament of the United Kingdom, while federal legislation was to be freed from these fetters, also involved the federal nature of the Canadian Constitution. The adoption of that recommendation of the Conference would have resulted in a one-sided increase of jurisdiction to the benefit of the federal Parliament, thereby disturbing the equilibrium between the federal authority and the provincial authority which were equally subject, within their respective jurisdictions, to that external limitation upon their sovereignty. No specific reference was made, in the debate, to the provisions of the British North America Act, 1867, which safeguarded the legislative supremacy of the Parliament of the United Kingdom. The Opposition argument was based on the wider ground that the federal character of the Canadian State, as determined and safeguarded by the several existing constitutional provisions, was involved by the proposed changes and, to a large extent, was being altered. Nevertheless the Report was adopted by the House without any previous indication of intention on the part of the Government to modify the course of action contemplated. In the following September, shortly before the opening of

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the Imperial Conference called to consider the Report of 1929, Howard Ferguson, Premier of Ontario, forwarded to the Prime Minister of Canada a letter accompanied by an elaborate memorandum.1 He claimed that radical constitutional changes were contemplated and he set forth the case of the provinces for consultation before any action was taken. In particular, he asserted that "no restatement of the procedure for amending the Constitution of Canada can be accepted by the Province of Ontario that does not fully and frankly acknowledge the right of all the Provinces to be consulted and to become parties to the decision arrived at." The "compact" theory of Confederation, as it has been called, was thus expounded and given its widest interpretation for the first time by a person in as responsible a position as the head of the Government of Ontario. Quebec and other provinces made similar representations. By that time, however, a general election had brought about a change of government at Ottawa. The former Conservative Opposition had now the responsibility of power while the country was already deeply committed to a course which had been traced in its entirety by the Liberal opponents whom they had so strongly criticized. Premier R. B. Bennett proceeded to the Imperial Conference, 1930, which opened on October 1 of that year, and explained that his Government was faced with a peculiar problem. The Summary of Proceedings describes this problem as it was put before the Conference by the Prime Minister of Canada. "A special question arose," the report reads, "in respect to the application to Canada of the sections of the Statute proposed to be passed by the Parliament at Westminster, (which it was thought might conveniently be called the Statute of Westminster), relating to the Colonial Laws Validity Act and other matters. On the one hand it appeared that approval had been given to the Report of the Conference on the Operation of Dominion Legislation by resolution of the House of Commons of Canada, and accord'The letter and the memorandum were published in the Toronto Globe, September 20, 1930; they are largely reprinted in R. MacG. Dawson, Constitutional Issues in Canada, 1901-1931 (Toronto, 1933), pp. 28-34, and in William F. O'Connor, Report to the Honourable the Speaker of the Senate on the British North America Act, 1867 (Ottawa, 1939), Annex 4, pp. 134-9.

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ingly, that the Canadian representatives felt themselves bound not to take any action which might properly be construed as a departure from the spirit of that resolution. On the other hand, it appeared that representations had been received from certain of the Provinces of Canada subsequent to the passing of the resolution, protesting against action on the Report until an opportunity had been given to the Provinces to determine whether their rights would be adversely affected by such action." The report goes on: "Accordingly, it appeared necessary to provide for two things. In the first place it was necessary to provide an opportunity for His Majesty's Government in Canada to take such action as might be appropriate to enable the Provinces to present their views. In the second place it was necessary to provide for the extension of the sections of the proposed Statute to Canada or for the exclusion of Canada from their operation after the Provinces had been consulted. To this end it seemed desirable to place on record the view that the sections of the Statute relating to the Colonial Laws Validity Act should be so drafted as not to extend to Canada unless the Statute was enacted in response to such requests as are appropriate to an amendment of the British North America Act. It also seemed desirable to place on record the view that the sections should not subsequently be extended to Canada except by an Act of the Parliament of the United Kingdom enacted in response to such requests as are appropriate to an amendment of the British North America Act."1 The Conference agreed on a number of clauses and recitals, mostly reproduced from the Report of 1929, to be embodied in the proposed Statute of Westminster. In accordance with the wishes of the Canadian representatives, however, any reference to Canada and its provinces was deleted from the safeguarding clause as proposed by the Report.2 It was intended that a section dealing exclusively with the Canadian position should be inserted "after the representations of the Provinces have received consideration."3 ^Imperial Conference, 1930, pp. 17-18. Par. 66. The clause is quoted supra, p. 97. ^Imperial Conference, 1930, p. 20. 2

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Upon his return to Canada, the Prime Minister communicated with the various provincial governments and called a federal-provincial Conference to be held at Ottawa in April, 1931. The representatives of the ten governments in Canada there arrived at a unanimous conclusion concerning the draft clauses of the Statute of Westminster and agreed, in particular, on a special Canadian clause which now appears in the Statute as section 7.1 Mr. Bennett later explained to the House of Commons why this Conference was held. He said: "It is not necessary at this time to relate fully the attitude of the provinces, but they agreed that inasmuch as their constitutional rights as defined by the original Act might be amended in the opinion of the governments of those provinces by this Parliament by a majority vote they should have an opportunity before any such action was taken to present their views and make known their decisions."2 The opinion of the provincial governments that their rights "might be amended" was therefore considered by the federal Government as a sufficient ground for federal-provincial consultations. Before the Conference was held, however, some provincial governments had provided further ground for such consultations by expressing the desire that provincial legislation as well as federal legislation be removed from the operation of the Colonial Laws Validity Act.3 On the following June 30, Prime Minister R. B. Bennett introduced in the House of Commons a resolution for a joint address of both Houses to His Majesty requesting the enactment of a statute by the Parliament of the United Kingdom." The several recitals of the resolution referred to the conferences which had taken place in London from 'No formal draft of the proceedings of the Conference was prepared. (See Mr. Bennett's statement, Can. H. of C. Debates, 1931, p. 642.) The above account is based on the Prime Minister's report to the House. (Can. H. of C. Debates, 1931, pp. 3197-8.) 'Can. H. of C. Debates, 1931, p. 3197. 'As to the avowed incompetence of the federal authorities to decide, without first securing the approval of the provincial governments, that provincial legislation should thus be brought under the terms of the proposed Statute of Westminster, see Mr. Ernest Lapointe's express statement (Can. H. of C. Debates, 1931, p. 3201) which refers in turn to the paragraphs of the Report of the Conference on the Operation of Dominion Legislation, 1929, partly quoted supra, pp. 97-8. "Can. H. of C. Debates, 1931, pp. 3191 ff.; Can. H. of C. Journals, 1931, pp. 423-6.

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1926 to 1930 and, as well, to the federal-provincial Conference of April, 1931. The address itself was drafted in a form similar to that adopted in 1915, the Senate and Commons of Canada humbly praying His Majesty that he might graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom, pursuant to certain declarations and resolutions made at the Imperial Conferences of 1926 and 1930, and pursuant to certain other resolutions made at the federal-provincial Conference of 1931, "the said Act to contain the following recitals and clauses, or recitals and clauses to the following effect."1 There followed, unnumbered, the two recitals which are now paragraphs 2 and 3 of the preamble to the Statute, and the clauses which appear in sections 2, 3, 4, 5, 6, 7, and 11. The address was adopted by the House on June 30 and was concurred in by the Senate six days later.2 A small incident, in the course of the Commons debate, throws additional light on the attitude of the federal Government of the day towards the claim for consultation and consent by the provinces. Mr. J. L. Ralston submitted, from the Liberal Opposition benches, that it would seem more proper to reverse the order of paragraphs 2 and 3 of the special clause adopted at the federal-provincial Conference. Mr. Bennett said, in reply, that "some question arose as •The text of the address as introduced in theHouse of Commons read as follows: "To the King's Most Excellent Majesty: "Most Gracious Sovereign: "We, Your Majesty's most dutiful and loyal subjects, the [Senate and] Commons of Canada, in Parliament assembled, humbly approach Your Majesty praying that You may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom, pursuant to certain declarations and resolutions made by the Delegates of Your 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 held at Westminster in the years of Our Lord One Thousand Nine Hundred and Twenty-six and One Thousand Nine Hundred and Thirty, and pursuant to certain other resolutions made by the Delegates of Your Majesty's Government in Canada and of the Governments of all the Provinces of Canada, at a Dominion-Provincial Conference held at Ottawa on the seventh and eighth days of April in the year of our Lord One Thousand Nine Hundred and Thirty-one, the said Act to contain the following recitals and clauses, or recitals and clauses to the following effect: . . ." (Can. H. of C. Journals, 1931, p. 424.) The words"Senate and" were added by the Senate. 'Can. H. of C. Journals, 1931, p. 429; Can. H. of C. Debates, 1931, p. 3224; Can. Senate Journals, 1931, pp. 196-9, 207; Can. Senate Debates, 1931, pp. 321-6.

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to the modification in any respect of the conclusions arrived at by the interprovincial Conference, and in view of the fact that the conclusions were initialled by representatives of all the provinces, we did not feel at liberty to change a single letter in them."1 The Commonwealth-wide operation of the proposed Statute, however, joined with the desire to have it enacted with the least possible delay, called for more flexibility than that statement seemed to allow. It explains why Mr. Bennett cautiously added these words: "I doubt not the draftsman in combining the various sections of the bill will take that into consideration, for he is in no sense bound by their order." Earlier in the debate, Mr. Bennett had explained that the task of numbering the sections of the proposed Statute and, by implication, of determining their order had been left to the draftsmen in the United Kingdom. He had also said that the recitals of the proposed Statute were not stated at length in the Canadian address and that others might possibly be added by the draftsmen.2 In the Statute as finally enacted in December, 1931, the change suggested by Mr. Ralston had actually been carried out and three recitals had been added to the two-paragraph preamble adopted at Ottawa. As regards the enacting clauses of the Statute, three out of the five which did not appear in the Canadian address were special clauses relating exclusively to Australia, New Zealand, and Newfoundland. Among the other two, one provided for the meaning of the word "Dominion" and the other for the short title "Statute of Westminster, 1931." Subject to these qualifications, the Statute was enacted at Westminster in the form proposed by the Canadian Houses of Parliament. 11. THE BRITISH NORTH AMERICA ACT, 1940 The steps followed to secure this constitutional amendment are of the highest interest since, for the first time, a change was made in the allocation of powers provided for in 1867. The authority to legislate on unemployment insurance was thereby transferred from provincial to federal jurisdiction. "Can. H. of C. Debates, 1931, p. 3215.

'Ibid., p. 3198.

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As one would well expect, unemployment insurance was not expressly assigned, in 1867, either to the federal authority or to the provinces. When such matters as this became the talk of the day, in the 1920's and the 1930's, they were generally recognized in Canada as falling within provincial jurisdiction under general item 13—"Property and Civil Rights in the Province"—of section 92 of the Confederation Act. In 1935, however, the Conservative Government, at Ottawa, secured from Parliament the enactment of a number of measures known as the Bennett New Deal. Among them was the Employment and Social Insurance Act, 1935. The Government had found a constitutional basis for such legislation in certain provisions of the Confederation Act, particularly in the light of recent decisions of the Privy Council. The Liberal Opposition, although favouring schemes of nation-wide operation, such as those proposed, maintained the view that the measures before them were not within the powers of the federal Parliament. The proper way of attaining the Government's objective was, in their opinion, by constitutional amendment or co-operation with the provinces. The Government was urged at least to submit the measures to the courts for an opinion on their validity.1 Shortly after this new body of legislation was enacted, general elections brought the Liberal party into power. One of the first actions of the new Government, in the autumn of 1935, was to refer the contentious enactments to the Supreme Court for an advisory opinion. By judgment of June 17, 1936, the Employment and Social Insurance Act, 1935, among others, was declared to be ultra vires of the federal Parliament.2 This decision was affirmed by the Judicial Committee on January 27, 1937.3 At the opening of the session of 1938, at Ottawa, the Speech from the Throne announced that the co-operation of the provinces had been sought with a view to an amendment 'Can. H. of C. Debates, 1935. See the explanations of Premier R. B. Bennett, pp. 279-82, 298; the speeches of Mr. King and Mr. Lapointe, pp. 736-54, 824-30; and 2particularly Mr. King's final statement, pp. 1620-2. /n re The Employment and Social Insurance Act, [1936] S.C.R. 427. 'Attorney-General for Canada v. Attorney-General for Ontario and others, [1937] A.C. 355.

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of the British North America Act which would empower the Parliament of Canada to enact a national scheme of unemployment insurance. It added: "My ministers hope that the proposal may meet with early approval, in order that unemployment insurance legislation may be enacted during the present session of Parliament."1 Actually, on November 5, 1937, the federal Government had communicated with the several provincial governments and asked their views in principle on a proposal of constitutional change. A draft amendment to the British North America Act, 1867, was later submitted for consideration. By March, 1938, five provinces had approved the draft amendment while a sixth, Ontario, had agreed to a constitutional change in principle. Alberta, New Brunswick, and Quebec, however, had so far declined to join in.2 Then, for over two years, no development took place. It would appear from the declarations of the Prime Minister and of the Minister of Labour during this stalemate period of 1938 and 1939 that the Government, although it was cautious not to commit itself to the necessity of unanimous provincial consent, was unwilling to proceed with the proposed amendment as long as some provinces objected to it.3 On June 25, 1940, a week after the Rowell-Sirois Report was made public, Prime Minister Mackenzie King finally announced to the House of Commons that all nine provinces had assented to the proposed constitutional amendment.4 He tabled in the House copies of the latest correspondence with the premiers of Quebec, New Brunswick, and Alberta, and he suggested that all correspondence relating to the proposed constitutional amendment appear together in the Votes and Proceedings. "These," he said, "are historic l Can. 2

H. of C. Debates, 1938, p. 2. See the Prime Minister's account to the House. Can. H. of C. Debates, 1938,3 pp. 1746-7. Such declarations of Mr. King and Mr. Rogers may be found in Can. H. of C. Debates, 1938, pp. 61-2, 1747, 3561, and Can. H. of C. Debates, 1939, pp. 62, 1136-7, 2892-3. 4 The Rowell-Sirois Report recommended, among other constitutional reforms, that the federal Parliament be empowered to establish a system of compulsory unemployment insurance (Book II, pp. 25, 38-9). The Report, however, which is dated May 3, 1940, and which was tabled in the House of Commons on May 16, does not appear to have had any relation to the developments that led to the Prime Minister's announcement, on the following June 25, and to the ensuing action by Parliament.

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documents," a characteristic which he later emphasized.1 The Minister of Justice then moved a resolution for an address to the King embodying a draft bill to be submitted to the British Parliament. In only one province (British Columbia), however, had the legislature been called upon to assent to the proposal. The consent of the provinces had been extended by means of a letter of each provincial premier to the Prime Minister of Canada.2 In moving his resolution, Mr. Ernest Lapointe referred to the decision of the Privy Council, in 1937, and quoted from the recommendations of the Rawell-Sirois Report. He then went on to say: "Ever since the decision of the Privy Council it has been the intention that Parliament should acquire the necessary power to enact unemployment insurance legislation . . . Always we have tried to get the approval of the several provinces to an amendment of this kind, but it is only recently that unanimity has been signified in the matter."3 The Prime Minister spoke on the same lines. He said: "The difficult but most necessary part of the whole business was to get the consent of the several provinces. That has not been an easy matter." And later on: "As a matter of fact, not having received the consent of all nine provinces until this year, we could not possibly before this particular session have introduced in a manner which would avoid all questions a measure for the amendment of the British North America Act."4 In the same speech, however, the Prime Minister said: "We have avoided the raising of a very critical constitutional 1 Can. H. of C. Debates, 1940, pp. 1108, 1118. The correspondence appears as an appendix to Votes and Proceedings of the House of Commons of Canada, June 25, 1940. ! The Premier of British Columbia had already extended the consent of his Government to the Prime Minister of Canada when he secured from the legislature of his province the passing of a resolution agreeing to the proposed amendment. (Journals of the Legislative Assembly of the Province of British Columbia, 1937, p. 155; for reference to correspondence, see n. 1 above.) Early in 1938, the legislatures of New Brunswick and Alberta had passed resolutions asking that any action on the proposal be deferred until the wider field of federal-provincial relations could be considered. (Journals of the Legislative Assembly of the Province of New Brunswick, 1938, pp. 177-8; Journals of the Legislative Assembly of the Province of Alberta, 1938, p. 169.) The legislatures had taken no further action when the premiers of these provinces informed the Prime Minister of Canada, two years later, that their respective Governments no longer opposed the proposed amendment. 'Can. H. of C. Debates, 1940, p. 1110. *Ibid., pp. 1117-18.

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question, namely, whether or not in amending the British North America Act it is absolutely necessary to secure the consent of all the provinces, or whether the consent of a certain number of provinces would of itself be sufficient. That question may come up, but not in reference to unemployment insurance, at some time later on. For the present at any rate we have escaped any pitfall in that direction. . . ."1 Stress was laid on this statement, further in the debate, when the following exchange of words took place between Mr. J. T. Thorson and the Minister of Justice: Mr. Thorson: . . . But I would not wish this debate to conclude with an acceptance, either direct or implied, of the doctrine that it is necessary to obtain the consent of the provinces before an application is made to amend the British North America Act. Fortunately, this is an academic question at this time. Mr. Lapointe: May I tell my hon. friend that neither the Prime Minister nor I have said that it is necessary, but it may be desirable. Mr. Thorson: The Prime Minister has made it perfectly clear that the question does not enter into this discussion, in view of the fact that all the provinces have signified their willingness that this amendment should be requested.2

The address to the King moved in the House of Commons differed slightly in form from that passed on previous occasions. Until then, it had been the practice to petition His Majesty by means of a joint address of both Houses of Parliament. The Commons first passed the address with the following opening words: "We, Your Majesty's most dutiful and loyal subjects, the Commons of Canada," etc. They then forwarded the address to the Senate asking them to fill in the blank with the words "Senate and." In 1940, this process of strictly joint action was abandoned and each House passed an individual address, although both were in identical terms.3 No reference appears ever to have been made to this change of form and no reason was given for it. The bill as submitted to Parliament and finally enacted at Westminster differed slightly in terms from the draft bill l

lbid. *Ibid., p. 1122. *Can. H. of C. Journals, 1940, Second Session, pp. 149-50; Can. Senate Journals, 1940, Second Session, pp. 129-30, 136.

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embodied in the Canadian address.1 This change—purely in the form of the bill—was made in London without any consultation with the Canadian Government. The royal assent was given within thirteen days of the Senate concurrence with the House of Commons, at Ottawa, after an expedited passing through both Houses at Westminster. When the Government was asked, in the British Commons, whether or not the provincial legislatures were in agreement with the proposal, Sir William Jowitt—the Solicitor-General— replied that he had no information about this ; and he added : "It is a sufficient justification for the Bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has been left over at their request in accordance with their wishes."2 12. THE BRITISH NORTH AMERICA ACT, 1943 The object of this amendment was to suspend until after the war then in progress the operation of the constitutional provisions requiring that the representation of the provinces in the House of Commons be readjusted following the decennial census of 1941. Although this measure was purely temporary it had a peculiar importance in view of the situation existing in Canada at that time. Under section 8 of the British North America Act, 1867, a general census of the population of Canada was taken in 1941 as it had been every ten years since 1871. At the opening of the session of 1943 at Ottawa, the Speech from the Throne announced that Parliament would be asked to proceed during the coming session with a redistribution in 'Section 1 of the draft bill embodied in the Canadian address read as follows: "1. Section ninety-one of the British North America Act, 1867, is amended by adding thereto as Class 2A the following: '2A. Unemployment Insurance.' and inserting such Class in the enumeration of the Classes of Subjects set forth in section ninety-one aforesaid, immediately after Class two." Section 1 of the British North America Act, 1940, as assented to, reads: "1. Section ninety-one of the British North America Act, 1867, is amended by inserting therein, after item 2 'The regulation of trade and commerce', the following item: '2A. Unemployment insurance.' " 2 Br. H. of C. Debates, 5th series, vol. 362, col. 1181.

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accordance with the requirements of section 51 of the act of 1867.1 Nearly five months had elapsed after this announcement was made and no action had yet been taken when, on June 14, 1943, the Prime Minister told the House of Commons that the Government would seek the postponement of the redistribution until the end of the war. The following day, the text of a proposed address to the King praying for the necessary enactment at Westminster appeared on the order paper of the House.2 The reasons given for this decision appear from the preamble of the resolution embodying the address3 as well as from the Prime Minister's statement.4 Experience had shown that readjustments may give rise to sharp differences of opinion about the appropriate delimitation of electoral divisions within each province, and it seemed highly desirable to avoid such differences while Canada was at war. Moreover, if a readjustment took place at that time, a number of members of Parliament absent on war service would be unable to express their views on changes affecting the limits of their own constituencies. It was also stated that the census of 1941 had been taken during the progress of hostilities when enlistment in the armed forces and employment in war industries had brought about an abnormal increase of population in some provinces and a decrease in others.5 The peculiar system of redistribution provided by the original section 51 of the British North America Act, 1867 (as construed by the Judicial Committee), and by other provisions as well, need not be explained here.6 It is sufficient "Can. H. of C. Debates, 1943, p. 2. The following account is based mostly on reports which appeared in the press between June 15 and July 31, 1943. The Montreal Gazette, of June 15, 16, 23, July 6, 8, 16,19, 20, 21, 22, 23, 24, 26, 28, and 31, 1943, in particular, may be consulted. The amendment is also the subject of an interesting article entitled "L'Amendement à la Constitution canadienne," by Roger Duhamel, in L'Action Nationale, vol. XXII ¡1943(2)], pp. 5-17. 'Can. H. of C. Journals, 1943-44, pp. 582-3. 'Can. H. of C. Debates, 1943, pp. 3599-600. 6 This statement hardly had any bearing on the resolution since even after the war—if it ended before 1950 or 1951—the redistribution of seats was to be made6 on the basis of the 1941 census. This system as well as the situation arising out of it was explained in detail by the Minister of Justice, Mr. Louis St-Laurent, in moving the resolution. (Can. H. of C. Debates, 1943, pp. 4336-7.) See also: R. MacG. Dawson, The Government of Canada, pp. 362-5. !

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to recall that a readjustment under such rules, in 1943, would have left Ontario with eight seats over the seventy-four to which a strict representation by population entitled her on the basis of Quebec's pivotal representation of sixty-five. The Maritime Provinces and Alberta would together have similarly retained an over-representation of five seats. On the other hand, a redistribution would have reduced the number of members for Manitoba and Saskatchewan by three and four respectively, bringing the representation of these provinces in line with that of Quebec. Admittedly, the Constitution worked unfairly. But its suspension at that time was far from remedying the situation. The advantage to be gained by Manitoba and Saskatchewan only aggravated the under-representation which Quebec and British Columbia suffered to the benefit of Ontario and other provinces. It is not surprising, then, that the news of the Government proposal of constitutional amendment was bitterly received in Quebec. Shortly after the Prime Minister's announcement of June 14, the Legislative Assembly of Quebec unanimously protested against the proposal and requested the federal authorities to modify their decision. On the same day, the Premier of the province, Mr. Adélard Godbout, forwarded to the Canadian Prime Minister an official note along these lines. Despite such opposition, however, on July 5, the Minister of Justice, Mr. Louis St-Laurent, moved in the House of Commons the resolution embodying an address to His Majesty, which was in the same form as that used in 1940. After a relatively short debate, the House concurred in the resolution by 115 votes against 9.1 Two days later the Senate passed a similar resolution with only six dissenting votes as against thirty-nine in favour.2 In the course of the Commons debate, the leaders of the main Opposition parties agreed with the Government. The measure was opposed only by a number of private members from Quebec who disputed its merits and more particularly maintained that the proposed constitutional change could 'Can. H. of C. Journals, 1943-44, pp. 582-4. 'Can. Senate Journals, 1943-44, pp. 294-5, 299-300.

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not properly be made in view of the opposition of the Quebec Legislative Assembly. The Minister of Justice denied the soundness of any such contention. But his reply was more than a mere denial. It was the expression of a positive doctrine dealing with the Gordian knot of the whole process of constitutional amendment. This reply was in such plain English—in a jurist's language rather than that of a politician—that it will not fail to find a prominent place both in constitutional theory and in the development of constitutional practice. Here is the relevant extract of Mr. St-Laurent's speech : When it comes to making amendments to our constitution I would like to suggest to hon. members that there appears to be a fundamental distinction to be observed. Confederation was not really a pact between provinces. As a matter of fact, there was only one province of the United Canadas, Upper and Lower, at the time confederation came into existence. But it was nevertheless the system worked out by responsible prominent leaders of the population of the areas which then constituted, on the one hand, the united province of Upper and Lower Canada, and on the other hand the maritime provinces, and it was provided that under this system provincial legislatures and provincial governments would be established to deal with certain matters over which they were allocated exclusive jurisdiction. The courts have held that the provinces in the exercise of jurisdiction in the field allocated to them are sovereign states. There are other matters which were not so allocated for administrative purposes to provincial legislatures or to provincial governments, but which were either expressly allocated to the federal parliament or which come under the residual clause under which parliament is competent to deal with them. I would readily concede to hon. members that if there were to be any suggested amendment to change the allocation of legislative or administrative jurisdiction as between the provinces, on the one hand, and the federal parliament, on the other, it could not properly be done without the consent of the organism that was set up by the constitution to have powers that would assumedly be taken from that organism. Apart from the matters that are expressly allocated to the provincial legislatures and provincial governments, there are other matters which the representatives of the inhabitants of the provinces who sit in this parliament are the competent persons to deal with; and here in this instance is something having to do with representation in this house. That is something which is not

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allocated to the provincial legislatures or to the provincial governments. That is something which interests the inhabitants of the provinces, but the inhabitants of the provinces as electors have sent representatives to this national parliament to represent them, and I suggest that when dealing with matters in that category the members elected by the people of the provinces, who are also the people of Canada, are those who have to take their responsibility in determining whether they are in the interest of Canada or otherwise. The example that was given by the hon. member [the British North America Act, 1940] is a case where it was eminently proper that the consent of the legislatures be obtained because it meant transferring to this parliament jurisdiction which in 1867 had been allocated to those legislatures. I submit that it would have been quite improper to take away from the provinces without their consent anything that they had by the constitution. That, I think, Mr. Speaker, disposes of the objection founded on the protest of the Quebec government or the Quebec legislature. They may have expressed their opinion, but in respect of matters concerning representation in this house they are merely electors, and they are represented here by members of parliament who have been elected by them and by the other electors of the respective constituencies in which they have their homes.1 The passing of the address to His Majesty by both Houses of the Canadian Parliament marked, in Quebec, the starting point of a campaign of public opinion against the measure and the beginning of an attempt to prevent action on it at Westminster. On July 9, the Leader of the Opposition in the Legislative Assembly of the province, Mr. Maurice Duplessis, forwarded to the Prime Minister of Canada a telegram including the text of a message to be transmitted through official channels to the Prime Minister of Great Britain. The message concluded with a prayer that Westminster might refuse to proceed with the federal request which constituted a violation of "the rights of the provinces." Mr. King plainly refused to transmit this message. In his reply of July 15 to Mr. Duplessis he reiterated the point made by Mr. St-Laurent that the matter in question concerned the federal Parliament alone. He said that the readjustment of representation in Parliament "might be 'Con. H. of C. Debates, 1943, pp. 4365-6. The full debate is reported at pp. 4335-67.

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described as one of the 'Dominion rights,' in the same way as it has become a usage to describe the field of provincial jurisdiction as the field of 'provincial rights.' " And he went on to say: It is my understanding that you have always been opposed to federal interference in the field of "provincial rights" and you would, I am sure, be the first to protest if a member of the federal Parliament attempted to intervene officially in any readjustment of the representation in the Legislative Assembly of Quebec. . . . You will, I am sure, agree that a member of the legislature of a province, in his official capacity would be no more justified in intervening in a matter of "Dominion rights" than there would be [sic] for intervention by a federal member of Parliament in a matter which comes within provincial jurisdiction.1

As a final reason for his refusal, the Prime Minister said that the granting of Mr. Duplcssis' request would be the negation of Canada's equality of status with the United Kingdom and would mark a return to the colonial status. He added: "It is true that it is still legally necessary to ask the Parliament of Great Britain to amend the British North America Act. That situation, however, is acceptable only so long as such amendments are made automatically and without question on the request of the appropriate representatives of the Canadian people."2 Subsequently, in reply to a further letter from Mr. Duplessis, Mr. King said in a more polemic tone: "Your attitude shows that you wished to have a matter of purely Canadian concern decided by the Parliament of Great Britain."3 In the meantime, Mr. Duplessis made a number of public speeches throughout the province. Premier Adélard Godbout communicated with the other provincial premiers asking them to join him in urging the federal Government to stop its proceedings until the consent of the provinces had been secured. The Secretary General of the newly formed political party, the Bloc populaire canadien, described the Government's action as a "coup de force constitutionnel." Mr. Frédéric Dorion, a member of Parliament, broadcast his 'The Montreal Gazette, July 16, 1943, where the letter appears at length. Ibid. "Letter of July 24, 1943. Reported in full in the Montreal Gazette, July 28, 1943. 2

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own protest. Several non-partisan organizations made their opposition known, one of them forwarding to the Prime Minister of Canada the text of a message to be transmitted to the Prime Minister of Great Britain. On July 19, Mr. Maxime Raymond, a member of Parliament and leader of the Bloc populaire party, urged that a non-partisan body in Quebec take the initiative of a collective protest and send an emissary to London. "This emissary will not ask the Imperial Parliament to settle our domestic problems," he said. "On the contrary, he will point out to it that because of the opposition of Quebec, it has not the right to register, by its vote, the decision of Ottawa."1 On July 22, the Canadian Press reported that a former member of Mr. Mackenzie King's Cabinet, Mr. P. J. A. Cardin, had cabled personally to the Prime Minister of Great Britain, Mr. Winston Churchill, and to the Leader of the Government in the House of Lords, Viscount Cranborne, protesting against the proposed constitutional change. By this time, however, action had already been taken at Westminster. On July 20, the measure was introduced and read a first time in the House of Lords. The following day, after an expedited passing through the remaining stages in that House,2 it went to the House of Commons where Mr. Anthony Eden had already made known the request of the Canadian Government that the bill be submitted to Parliament "as a matter of urgency." The bill was passed without opposition on July 22,3 and the royal assent was given on the same day. The Canadian Government had refused to let the British authorities know through official channels that the Legislative Assembly and the Government of Quebec as well as a number of non-partisan national bodies in that province opposed the constitutional change. Some members of Parliament in Great Britain, however, were privately informed of this opposition. When the bill came before the House of Commons questions were put to the Government in this 'The Montreal Gazette, July 20, 1943. *Br. H. of L. Debates, 5th series, vol. 128, cols. 607, 677-8. *Br. H. of C. Debates, 5th series, vol. 391, cols. 900-1, 1100-4.

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respect. But the political situation in Canada and the case for provincial consent were in no way set before the House. The following extracts from the debates may give an idea of how the whole matter was handled: Mr. G. le M. Mander: . . . I have received a communication from the Dominion of Canada pointing out that the Measure now before us was objected to by one Province and met with a certain amount of opposition in the two Houses of Parliament. In view of the fact that these representations have been made, would the right hon. Gentleman1 say to what extent there appears to be any difference of opinion among the Provinces? . . . Mr. J. Maxton: I should like to reiterate the point made by the hon. Member for East Wolverhampton [Mr. Mander] . . . I should like the right hon. Gentleman to give us precise particulars of how this was brought before the two Houses in Canada, what debate took place, and what opposition was expressed. Mr. Attlee: I have no detailed information with regard to the Debate. My information is that it [the Canadian address] was carried in both Houses by very large majorities. . . . I have no information as to any Province objecting, but, in any case, the matter is brought before us by an Address voted by both Houses of Parliament, and it is difficult for us to look behind that fact. After all, in this House we carry things, and sometimes we have minorities, but they become the Act of the Legislature. . . . Mr. C. Stephen: . . . The right hon. Gentleman . . . says that the fact that both Houses have passed it [the address] should be sufficient for this House. The fact that the Act [the Statute of Westminster, apparently] laid it down that this House had to give its assent to any such changes also shows that this House has a certain interest in the matter to see that minorities are not simply steam-rollered by majorities. I think the right hon. Gentleman might have taken the trouble to inform himself a little more fully as to the position in Canada. He seems to know very little about it. That is not the proper way for the responsible Minister to bring it before the House. Sir Edward Grigg: I suggest that it is really improper in the present circumstances for the House to question the discretion of a sovereign Parliament in the Commonwealth of Nations. It is only owing to a technical legislative peculiarity that it comes to the House at all, and it is very improper that the House should question the discretion of a national and absolutely sovereign Parliament. I hope that that will be accepted by the House and that this legislation will be passed without further comment. . . .2 'Clement R. Attlee, Secretary of State for the Dominions and Deputy Prime Minister, later Prime Minister, who had moved the second reading of the bill. IBr. H. of C. Debates, 5th series, vol. 391, cols. 1101-3.

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The Act was passed at Westminster in the exact terms proposed by the Canadian Houses except for a small change. The short title section of the draft bill, as embodied in the address, included an express mention of the British North America Act, 1907, in addition to the British North America Acts, 1867 to 1940. Such a mention served no purpose since the once "forgotten" act of 1907 had been included in 1940 in the expression "British North America Acts, 1867 to 1940."1 It was therefore dropped before the introduction of the bill in Parliament at Westminster. The suggestion for the deletion was made by the British parliamentary counsel and transmitted by the Dominions Office to the High Commissioner for Canada in London. The latter concurred in the suggestion on behalf of the Canadian Government, upon instructions from the Secretary of State for External Affairs acting on the advice of the Minister of Justice. 13. THE BRITISH NORTH AMERICA ACT, 1946 When Mr. St-Laurent moved the resolution with a view to a constitutional amendment, in 1943, he stressed the unfairness of the existing system of redistribution. He said that a change would have to be undertaken sooner or later to make possible the proper representation of the provinces in the House of Commons, although no attempt should be made at that time because of the war to determine a permanent pattern.2 The British North America Act, 1946, later established such a pattern.3 The Act replaced the original section 51 of the British North America Act, 1867, by a new one providing for the representation of the provinces on a strictly proportional basis. Former limitations upon this principle were dropped,4 'See supra, p. 11. *Can. H. of C. Debates, 1943, pp. 4336-7. A general account of the purpose of the Act and of the controversies which took place before its enactment was given in the Canadian Bar Review, vol. XXIV (1946), pp. 609-13, under title "The Latest Amendment to the British North America Act." 4 In addition to limitations existing under provisions of the British North America Act, 1867, a peculiar feature of the old system of redistribution resulted from provisions of the Quebec Boundaries Extension Act, 1912 (of the Statutes of Canada). These provisions have also been abrogated, though not by the process of enactment at Westminster. See supra, p. 42, and n. 3. 3

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except that by which a province is entitled to a minimum number of members in the House of Commons equal to its number of representatives in the Senate.1 The territories not included in any province, were given one representative.2 The amendment was secured at Westminster upon the usual procedure of an address to the King passed by the two Canadian Houses of Parliament. As in 1940 and 1943, each House passed an individual address, although both were in identical terms. There was no consultation with the provincial governments. This latter course was the subject of controversy and opposition both in and out of Parliament. The Progressive Conservative Opposition, in the House of Commons, maintained that the provinces ought to be consulted before Parliament addressed His Majesty with a view to any constitutional amendment under which the rights, privileges, or responsibilities of the provinces might be affected or under which minorities might be affected. They moved, in amendment to the resolution embodying the proposed address, "that the Government be required to consult at once the several provinces and upon satisfactory conclusion of such consultations be authorized to present" the said address to His Majesty.3 Although this proposal also secured the support of minor parties in the House and of a small number of independent members and of dissenting Liberals, it was defeated by 108 votes to 48.4 'Section 51A of the act of 1867 as inserted therein by the 1915 amendment ; see supra, pp. 84 ff. 2 The text of the amendment in this respect reads: "The Yukon Territory as constituted by Chapter forty-one of the Statues 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." It is arguable whether this provision renders entirely inoperative the power of the Parliament of Canada under the 1886 amendment (see supra pp. 60 ff.) to provide as it may see fit for the representation in the House of Commons of any territories not included in any province. 3 Mr. J. G. Diefenbaker's speech gives a fair idea of the Progressive Conservative views put forward on this point. Reference was made, in support of such views, to the opinion repeatedly expressed in the past by former Prime Ministers and Ministers of Justice of Canada from both parties. (Can. H. of C. Debates, 1946, pp. 2228-35.) *Can. H. of C. Journals, 1946, p. 374. The main resolution was later agreed to by 107 votes to 22. (Ibid. pp. 375-6.) The discrepancy between the two votes is accounted for by the fact that some members did not want to oppose the proposed constitutional amendment after they had unsuccessfully supported the move for previous consultation with the provinces.

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Similar views were put forward in the Senate, though not reduced to a motion.1 The Government of the province of Quebec protested against the attitude of the federal Government shortly after the Minister of Justice, Mr. Louis St-Laurent, introduced the resolution in the House of Commons. In a letter to Mr. St-Laurent, the Premier of Quebec, Mr. Maurice Duplessis, explained the views of his Government on the appropriate method of securing constitutional amendments and he requested the Minister to delay any further step towards the approval of the resolution until the consent of the provinces was asked and obtained.2 Following the passing of the address to the King by the Canadian Houses of Parliament, the Quebec Government made a further protest by means of an order-in-council.3 This action, however, was in no way an attempt to prevent, at this late stage, the enactment of the proposed amendment, which was actually favourable to Quebec. The order-in-council, which included twenty-four recitals, was in the nature of a statement of principles denying the federal Government's recent assertion of power and re-affirming as a right the claim for provincial consultation and consent before the carrying out of any constitutional amendment. There was no protest from any other provincial government and Quebec's protest was not carried any further. The considered opinion of the federal administration was given by Mr. St-Laurent in the House of Commons. The Minister developed the same line of argument as in 1943, though he was pressed a little further in his explanations. He submitted that since both the federal and the provincial bodies politic enjoy full sovereignty within the limits of their respective jurisdiction, matters assigned to the provinces cannot be touched without the consent of the bodies possessing such sovereign jurisdiction over them. On the other hand, the federal Parliament can deal with matters coming under its own jurisdiction without submitting to 'The resolution was agreed to by the Senate by 24 votes to 7. (Can. Senate Journals, 1946, pp. 322-4, 353-5.) 2 Letter of May 30, 1946, reported at length in Le Devoir (Montreal), June 1, 1946. 'July 5, 1946. See Quebec Official Gazette, July 6, 1946.

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"the superintendence of any provincial legislature." So it was with respect to the readjustment of representation in the House of Commons, which is a matter assigned in express terms to the federal Parliament by section 51 of the British North America Act, 1867. "Of course," Mr. St-Laurent admitted, "there are rules expressed in the section which can be modified only by the legislative body which enacted them. . . . " But, "subject to such action as may be taken by the Parliament of the United Kingdom," the Parliament of Canada "is the only body having been given jurisdiction in that regard in 1867."1 In other words, the Government contended that since the jurisdiction given to the federal Parliament over certain matters is exclusive, no other body than this Parliament is competent, under the Constitution, to decide on amending the constitutional rules which govern the exercise of that jurisdiction. Such is the situation with respect to anything in the act of 1867 and its amendments which does not fall under provincial jurisdiction. When Mr. St-Laurent was asked if, according to his line of argument, section 133 concerning the use of the English and French languages could be dealt with without the consent of the provincial legislatures, his answer was: "Legally I say it can."2 The Act as passed at Westminster is a transcript of the bill embodied in the Canadian address except for one detail. The incident of 1943 relating to the short title section of the amending act of that year repeated itself to the letter. Although the Governments of Canada and of the United Kingdom had then agreed that the phrase "British North America Acts, 1867 to 1940" included the British North America Act, 1907, the latter was again expressly mentioned in addition to the former in the Canadian draft bill. The British Government deleted the useless reference to the act of 1907 after securing the consent of the Canadian Government through its High Commissioner in London in the same manner as in 1943.3 In the British Houses of Parliament no debate took place. l

Can. H. of C. Debates, 1946, pp. 1936-7, 2621. 'Ibid., p. 2621. "See supra, p. 117.

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It was explained that the bill had to come before that Parliament because under a clause in the Statute of Westminster the amendment of the British North America Act, 1867, was an excluded measure and, therefore, still required the assent of Westminster. The words of Mr. Anthony Eden, in the House of Commons, give an idea of the spirit in which both Houses agreed to the passing of the bill without question: "I think that it is quite clear to the House that this Bill deals with a matter which is entirely within the discretion and judgment of the Canadian Legislature. In a sense, therefore, this is a purely formal Bill, and, in the circumstances, I hope that the House will join in agreeing with the Government to accede to the request of our Canadian friends."1 14. THE BRITISH NORTH AMERICA ACT, 1949 The object of this act was to bring Newfoundland into the Confederation by confirming the Terms of Union agreed to by the Parliament of Canada and the Government of the Island. Although such a step had been contemplated as far back as 1864, when Newfoundland participated in the Quebec Conference, and had later been considered a number of times, it was only in 1949 that the plan matured. It does not fall within the scope of this study either to retrace the history of that long road towards union with Canada or even to show in detail how this goal was finally reached.2 Points of constitutional significance alone will be discussed. Following Newfoundland's participation in the Quebec Conference of 1864 and its subsequent refusal to join in the confederation scheme, provision was made in the British l Br. H. of C. Debates, 5th series, vol. 426, col. 390. For the debate in the House of Lords, including a speech by Viscount R. B. Bennett, see: Br. H. of L. Debates, 5th series, vol. 142, cols. 695-701. 2 For an historical account of the confederation issue in Newfoundland up to 1945, see R. A. MacKay (éd.), Newfoundland: Economic, Diplomatic, and Strategic Studies (Toronto, 1946), pp. 411-59. As to the developments which finally brought about the union, see: Report and Documents Relating to the Negotiations for the Union of Newfoundland with Canada (Ottawa, 1949); also the Prime Minister's speech in introducing in the Canadian House of Commons the bill to approve the Terms of Union of Newfoundland with Canada (Can. H. of C. Debates, 1949, pp. 283-90).

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North America Act, 1867,* for the later union of the Island to Canada by order of the Queen-in-Council, upon addresses from the Houses of Parliament of Canada and from the Houses of the Legislature of Newfoundland, on such terms and conditions as might be expressed in the addresses and as the Queen might think fit to approve, subject to the provisions of that act (1867). The provision applied similarly to Prince Edward Island and to British Columbia. The union of Newfoundland could therefore have taken place at any time after 1867, without any amendment to the Constitution of Canada but simply under the provisions of that Constitution, by order of the Queen or the King-in-Council, upon mutual agreement of the interested parties through their elected representatives. This was the process followed for the union of British Columbia and Prince Edward Island in 1871 and 1873. When the project of Newfoundland's union to Canada was about to mature, shortly before 1949, constitutional developments both in Commonwealth relations generally and in the internal situation of Newfoundland in particular, had rendered this procedure inappropriate and impossible to follow. One reason was, as explained by Prime Minister St-Laurent in the House of Commons,2 that the King no longer exercised the royal prerogative in respect of Canadian affairs on the advice of his Ministers for the United Kingdom, but did so only upon the advice of his Ministers responsible to the Canadian Parliament. The procedure of a British orderin-council contemplated by section 146 of the Confederation Act was therefore not in accord with the principles now governing the relations between the Government of the United Kingdom and the Governments of the other member states of the Commonwealth, any more than with the principles governing the position of the King as head of those respective states. The second reason was that Newfoundland had no legislature by means of which to address His Majesty as provided for by the act of 1867. The Island's constitution had been suspended in 1933 by an act of the Parliament of 'Section 146. See supra, p. 41. *Can. H. of C. Debates, 1949, p. 287.

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the United Kingdom,1 and the country subsequently administered by a Commission of Government appointed by the British Government under new letters patent. There was finally a third reason. Under the agreement reached between the Government of Canada and the Government of Newfoundland on the terms of union, it was proposed to depart from the provisions of the British North America Act, 1867, in two respects. The first was relative to education. Under section 93 of that act, provision was made for certain guarantees for denominational schools with, as sanction, an appeal to the Governor-General-in-Council and the enactment of remedial laws by the Parliament of Canada in the event of any violation of those guarantees by provincial authorities. The proposed terms of union included guarantees analogous to those of section 93, but left their sanction to the courts. The other departure from the provisions of the Confederation Act was a restriction upon the freedom of interprovincial movement of goods as determined by section 121 of the Act.2 The proposed terms of union provided that the Parliament of Canada should not prohibit or restrict the manufacture or sale of oleomargarine in Newfoundland (except at the request of the legislature of Newfoundland), but that oleomargarine should not be sent or carried from Newfoundland into any other province, unless the Parliament of Canada otherwise provided or unless the manufacture and sale of that product in all provinces became lawful. Such departures from the provisions of the Confederation Act were not possible under section 146 of that act which authorized the union of Newfoundland to Canada by British order-incouncil, on such terms and conditions as the Queen might think fit to approve, but "subject to the Provisions of this Act [1867]." The only appropriate procedure, therefore, to bring Newfoundland into Confederation, so far as Canada was concerned, was that of an amendment to the Constitution. The process followed in achieving union involved action 'The Newfoundland Act, 1933. 'Section 121 reads: "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."

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not only by the appropriate authorities in Canada and by the Parliament of the United Kingdom as the only authority competent in law to amend the Canadian Constitution, but also by the authorized representatives of Newfoundland. This part of the process is of no direct concern to us in this study. It is sufficient for our purposes that the legislative authority supreme in law over Newfoundland, being the same as the authority competent to amend the Constitution of Canada, has passed the necessary measure for the union. It might be recalled, however, that such action was taken at Westminster only upon the expressed will of the people of Newfoundland. A National Convention had first been elected to enquire into the economic and financial position of the Island and to make recommendations to the British Government regarding possible future forms of government; these recommendations were subsequently to be submitted to the people at a national referendum. The Convention began its sittings in September, 1946. One delegation was sent to London, and another to Ottawa, where a memorandum containing proposed arrangements for the entry of Newfoundland into Confederation was drafted. Finally, on June 3, 1948, the people of Newfoundland were called to the polls to make their choice out of three alternative proposals, with the following result: for continuation of commission of government for a five-year period, 22,311; for confederation with Canada, 64,006; for restoration of responsible government, 69,400. As no form of government had received an absolute majority of the votes cast, a second poll was held on July 22, 1948, to choose between the two forms which had received the most votes. Confederation led with 78,323 votes, as against 71,334 for responsible government. A new delegation appointed by the Government of Newfoundland went to Ottawa and, on December 11, 1948, signed with representatives of the Canadian Government a memorandum of agreement including proposed Terms of Union, which memorandum was later approved by the Government of Newfoundland. The process followed on the Canadian side was simpler. In the spring of 1947, the federal Government agreed to

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receive a delegation from the Newfoundland National Convention "to ascertain . . . what fair and equitable basis may exist for federal union" of the two countries.1 The delegation conferred with representatives of the Canadian Government from June 25 to September 29 of that year. Proposed arrangements for the union were drafted2 and were later communicated by the Prime Minister of Canada to the Governor of Newfoundland with an intimation that, upon the expressed will of the people of Newfoundland that the Island should become a province of Canada, "The Canadian Government, subject to the approval of Parliament, would for its part be prepared to take the necessary constitutional steps to make the union effective at the earliest practicable date."3 Upon the announcement of the result of the second referendum in Newfoundland, the Canadian Prime Minister said that he considered such result "clear and beyond possibility of misunderstanding" and he added that his Government would be glad to receive authorized representatives of Newfoundland to negotiate the terms of union.4 Negotiations opened in Ottawa on October 6, 1948, and concluded on December 11, 1948, with the signing of a memorandum of agreement including the proposed Terms of Union.5 The agreement was first submitted to Parliament at Ottawa in a "Bill to approve the Terms of Union of Newfoundland with Canada." The bill, without any preamble, included a single clause which provided that "The agreement set out in the schedule to this Act is hereby approved." The schedule contained the memorandum of agreement. There was some opposition to the bill in the House of Commons on the ground that the provinces should have been consulted ; but this contention was put forward more strongly later in the course of the debate on the resolution for an address to His Majesty. The House of Commons passed the bill on February 11, 1949, within four days from its ^ee "Exchange of letters between the Governor of Newfoundland and the High Commissioner for Canada . . .," Report and Documents Relating to the Negotiations for the Union of Newfoundland with Canada (Ottawa, 1949), pp. 45-6. 2 Ibid., pp. 47-57. 'Ibid., pp. 57-71. 'Ibid., pp. 76-7. & Ibid., pp. 79-91; the memorandum of agreement appears at pp. 13-29.

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introduction in the House,1 and the Senate concurred in it on February 17 after a short debate.2 The royal assent was given the following day.3 By the enactment of this act, Parliament simply approved the Terms of Union agreed to by the Government. In order to secure the necessary enactment at Westminster, however, Canada did not depart from the usual procedure of addresses from both Houses to the King. A resolution to that effect was moved by Prime Minister St-Laurent4 in the House of Commons and was agreed to,6 though not without opposition, after a thorough debate on the process which was being followed to secure the proposed enactment at Westminster. The leader of the Progressive Conservative Opposition contended that the Constitution should not be varied "in any important way" except by consultation with the provinces, and that the proposal now before the House was of great concern to the provinces. He therefore moved in amendment to the resolution that "the Government of Canada be required to consult at once the Governments of the several Provinces and that upon a satisfactory conclusion of such consultations" the proposed address be presented to His Majesty.6 Neither the Leader of the Opposition nor any of his colleagues said what they meant by "upon a satisfactory conclusion of such consultations." They would not say if they felt the concurrence should be secured of all the provincial governments, or of a number of them, before the federal Government could proceed with the proposed address to His Majesty. When it was moved by Mr. Wilfrid LaCroix that those words be deleted and replaced by "after they [the provinces] will have given their consent," they voted against this sub-amendment which was rejected by 191 votes as J Ca«. H. of C. Journals, 1949, p. 65. The debate is reported in Can. H. of C. Debates, 1949, pp. 283-310, 326-69, 394-413, 418-65, 471-2. 'Can. Senate Journals, 1949, p. 95. The debate is reported in Can. Senate Debates, 1949. pp. 67-84, 86-91, 106-8. 'Can. Statutes, 13 Geo. VI, c. 1. •Can. H. of C. Journals, 1949, pp. 68-9. 'Ibid., pp. 83-5. 'Can. H. of C. Journals, 1949, p. 69; Can. H. of C. Debates, 1949, pp. 496-501.

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against 12 in favour.1 The Progressive Conservative amendment was subsequently negatived by 137 votes against 66.2 In the Senate, a resolution for an address to His Majesty similar to that passed by the House of Commons was agreed to almost without debate.3 The Leader of the Government, Senator Wishart McL. Robertson, explained that matters of national concern such as that before the House were assigned by the Constitution to the federal authority, but that it was the duty of the Senate, "which was set up by the Fathers of Confederation to protect minority and territorial rights, to satisfy itself that no territorial or minority interest will be prejudicially affected by the entry of Newfoundland as a province of Canada."4 The matter then came up before the British Parliament where a thorough debate took place. Objections did not arise, however, concerning the merits or demerits of the proposal of confederation. It was agreed that this was a matter only for Canada and Newfoundland to settle between themselves. Objection was taken to the manner in which the Government of the United Kingdom claimed to have ascertained the will of the people of Newfoundland. This point was clearly put forward in an amendment moved in the House of Commons: This House, without prejudice to the merits of the proposed union of the Dominions of Canada and Newfoundland, is not satisfied that the procedure preliminary to the introduction of this Bill has been constitutionally correct and just, is not persuaded that the will of Newfoundland has been established as clearly and unmistakeably as is necessary for a surrender of sovereignty and a lasting change of status, and, observing that the terms of union have been debated in the Canadian Parliament for a fortnight but have not been debated in Newfoundland at all, declines to approve the Agreement until it has been considered and approved l Can. 2

H. of C. Journals, 1949, pp. 73-5. /iid., pp. 75-6. The full debate is reported in Can. H. of C. Debates, 1949, pp. 493-534, 538-81, 598-606. A few days earlier, in the course of the debate on the address in reply to the Speech from the Throne, Prime Minister St-Laurent had reiterated his views expressed in 1943 and 1946 about the appropriate process to follow in order to secure amendments to the Constitution; see Can. H. of C. Debates, 1949, pp. 84-5. *Can. Senate Journals, 1949, pp. 95-6; Can. Senate Debates, 1949, pp. 108-12. 'Can. Senate Debates, 1949, pp. 109-10.

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in the Legislature of Newfoundland and an Address presented to His Majesty in accordance with Section one hundred and fortysix of the British North America Act, 1867.1

The process followed by the British Government to secure an expression of the will of the people of Newfoundland was vigorously defended by the Secretary of State for Commonwealth Relations and by the Attorney-General,2 in particular, and the amendment was negatived by 217 votes to 15. After its passing by the House of Commons, the bill was agreed to by the House of Lords where similar objection was taken to the process followed with respect to Newfoundland, but was not pressed very far.3 The Act as assented to by the King on March 23, 1949, contains only three sections. By section 1, the agreement containing the Terms of Union set out in the schedule to the Act is confirmed and given the force of law. By section 2, the Newfoundland Act, 1933 (save one section relating to the guarantee of certain securities of Newfoundland), is repealed. Section 3 provides for the citation of the Act as the British North America Act, 1949, and for its citation together with the British North America Acts, 1867 to 1946, as the British North America Acts, 1867 to 1949. The substance of the Act is therefore not to be found in its several sections, but in the schedule annexed to it, a form which had already been used for the amendment of 1930.4 The Act is entirely similar in terms to the draft bill included in the Canadian address except for section 2 which did not appear in the address at all. The Canadian Government had considered that the repeal of the Newfoundland Act, 1933, was a matter for the Government and Parliament of the United Kingdom to decide and had accordingly refrained from requesting it. It was no doubt with a view to the possible addition of such a clause that the Canadian address, instead of praying for the laying before the Parliament of the United Kingdom of "a measure . . . to be expressed as l

Br. H. of C. Debates, (unrevised) March 2, 1949, col. 389. Véiá., March 2, 1949, cols. 371-81; March 9, 1949, cols. 1262-75. debate is reported at cols. 371-472, 1261-97. 3 Br. H. of L. Debates, (unrevised) March 15, 1949, cols. 309-49. 4 See supra, p. 92.

The full

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follows," as in 1946,l prayed for the laying of "a measure containing the recitals and clauses hereinafter set forth." 2 It does not appear that any of the provincial governments protested at Ottawa or in London against the enactment of the measure without previous consultation with the provinces. The premiers of Quebec and Nova Scotia, Maurice Duplessis and Angus L. Macdonald, stated publicly that such consultation should take place3 but they made no formal demand or protest. NOTE ON THE STATUTE LAW REVISION ACTS It seems proper to say a word, though incidentally, before closing this chapter, of the British enactments which have been4 called "Forgotten Amendments to the Canadian Constitution." Under this title Professor Frank Scott referred to some of the Statute Law Revision Acts passed from time to time since 1861 by the Parliament of the United Kingdom. The object of these acts is to clear the British statute law of enactments which either have ceased to be in force or have become unnecessary, but which have not been expressly repealed. Since 1868 Revision bills have been prepared by the Statute Law Committee which was formed at the time by the Lord Chancellor, Lord Cairns, to make arrangements for and to superintend the publication of a revised edition of the statutes.6 No enactments are thus repealed unless they are considered by the Committee to be already expired, spent, superseded, or obsolete.6 The first Statute Law Revision Act which affected the Constitution of Canada dates from 1893.7 The seventy-six page schedule to the Act, describing the enactments repealed, includes several sections of the British North America Act, 1867. Among them are the sections originally providing for the first appointments to the Senate (sections 25, 127), the holding of the first federal ^Can. H. of C. Journals, 1946, pp. 272-3; also Appendix B, infra, at p. 290. *Can. H. of C. Journals, 1949, p. 83. 3 See for instance the Montreal Gazette, June 18, 1948; October 9, 1948. 4 F. R. Scott, "Forgotten Amendments to the Canadian Constitution," Canadian Bar Review, vol. XX (1942), pp. 339 ff. 'Before that time England never had any "Statutes Revised." 6 For more detailed information on the subject of statute law revision, see: Letter of the Lord Chancellor (Lord Cairns) to Sir John G. Shaw Lefevre, July 9, 1868, in the Statutes Revised, First Edition, vol. I (London, 1870), p. v; the Preface to the Statutes Revised, Second Edition, vol. I (London, 1888); the explanatory note under "The Statute Law Revision Act, 1927," in Halsbury's Statutes of England, vol. 18 (London, 1930), pp. 1183-4; Wharton's Law Lexicon, (14th éd., London, 1938), pp. 951-2, under "Statute Law Revision Acts." 'The Statute Law Revision Act, 1893.

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and provincial elections (sections 42, 43, 89), the first summoning of the Ontario and Quebec legislatures (section 81).' The Act also repealed the clause providing for the construction of the "Intercolonial Railway" connecting the Maritimes with the other provinces of Canada (section 145) which did not lack symbolical and historical value in the Confederation Act. Further on, the list of repeals includes the Rupert's Land Act, 1868, in toto. It will be remembered that section 5 of this Act is historically the necessary complement of the order-in-council of June 23, 1870, uniting Rupert's Land and the North-Western Territory to Canada.2 The Canadian Constitution was also involved, though to a lesser extent, in later Revision Acts.3 Parts either unnecessary or spent of the constitutional amendments of 1871, 1875, 1886, and 1915 were thus repealed. The amendment of 1916 was repealed, in toto, in 1927. Searches in the Colonial Office records for the period immediately preceding the enactment of the two Revision Acts of 1893 reveal no trace of any consultation with the Canadian Government respecting the proposed repeals although such consultations took place with respect to the proposed repeal of certain provisions of private law.4 All Revision Acts affecting Canadian constitutional documents were passed, it seems, even without Canadian knowledge at all. This is indicated in particular by the fact that they were not printed, at the time of their enactment, in the sessional editions of the Canadian statutes, as was the custom with respect to the British acts relating to Canada. Moreover, when the British North America Act, 1867, was published as an appendix to the Revised Statutes of Canada in 1906 and in 1927, the changes effected by the several Statute Law Revision Acts were not taken into account. In the constitutional literature, attention seems to have been called to these "Forgotten Amendments" for the first time in 1942, although the "correct" form of the British North America Act, 1867, could be found in the Revised Statutes of some of the provinces previous to that time.6 J A similar section (19) providing for the first summoning of the Parliament of Canada, was not repealed. 2 See supra, p. 50, n. 2. "The Statute Law Revision (No. 2) Act, 1893; The Statute Law Revision Act, 41898; the Statute Law Revision Act, 1927. See for instance: Governor-General to Colonial Secretary, March 13, 1888, at the Public Record Office (London), C. O. 42, vol. 795, No. 6085; GovernorGeneral to Colonial Secretary, December 27, 1888, ibid., C. O. 42, vol. 796, No. 1132; Governor-General to Colonial Secretary, October 4, 1889, ibid., C. O. 42, vol. 800, No. 20666. 6 F. R. Scott, op. cit. See also a mise-au-point by G. S. Rutherford, Canadian Bar Review, vol. XX (1942), p. 573. Such a "correct" form of the British North America Acts and other statutes as appears, for instance, in Halsbury's Statutes of England, may now be found in the publication of the King's Printer, Ottawa, British North America Acts and Selected Statutes, 1867-1948.

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These considerations are, however, of little importance since the Statute Law Revision Acts are not really amendments. The act of 1893, which is in almost standard form, provides that "The enactments described in the schedule to this Act are hereby repealed, subject to the provisions of this Act. . . ." Then the Act provides, among other safeguards, that such repeals "shall not affect the binding force, operation, or construction of any statute, or of any part of a statute, whether as respects the past or the future." The English courts have, on several occasions, re-affirmed this basic principle.1 They declared that the Statute Law Revision Acts do not change or in any way affect the law. The effect of these acts is only that enactments which have ceased to be in force or have become unnecessary may be omitted from the revised edition of the statutes. When determining what the law is, these so-called repeals are not to be taken into account. One may wonder, then, what is the "correct" form of the British North America Acts and of the other constitutional documents of Canada. For the purpose of ascertaining the law, the "correct" form is undoubtedly the one which is unabridged by the Statute Law Revision Acts. Similarly, if one looks for a Constitution historically as complete as possible, the "correct" form is the unabridged one. On the other hand, in any revised edition of the statutes published by authority in the United Kingdom, the abridged version is the "correct" one. The King's Printer at Ottawa, however, or any other authority or person in Canada who publishes the constitutional documents, is in no way bound by the version of the British revised statutes. It would seem more proper to adopt, then, a version from which the law may be ascertained and which at the same time has the advantage of including clauses of historical significance which would otherwise be omitted. Moreover, the deletion of provisions "repealed" by one of the Revision Acts might make the other provisions impossible to understand. For instance, the short title and citation clause of the "repealed" British North America Act, 1916, is necessary to determine the meaning of2 such phrases as "the British North America Acts, 1867 to 1930." It is therefore submitted here that any edition of the Constitution in its up-to-date form published in Canada should include the full original terms of each constitutional document, save only as regards effective amendments made from time to time. The Statute Law Revision Acts do not fall in such a category. 'Cases cited in Halsbury's Statutes of England, vol. 18, p. 1184, under the Statute Law Revision Act, 1927. ! See supra, pp. 9 ff.

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PART III

THE AMENDING PROCESS TO-DAY

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CHAPTER IV

AN ADDRESS FROM BOTH HOUSES OF PARLIAMENT THE survey given in the preceding chapter shows that the failure of the Confederation Act to provide a process for its own amendment did not prevent a number of amendments being actually made. From time to time controversies arose about the process to be followed or about the conditions under which amendments were possible. Even to-day, a glance at the constitutional literature of the past twenty years shows that this problem is not solved. Yet from the early days of the Confederation a number of rules were recognized; others developed as years went by; and to-day one may speak of the amending process without entering the domain of pure theory. 1 The Constitution of Canada—apart from the few provisions which are alterable under a specified process—can only be amended by an act of Parliament of the United Kingdom. This is the result of a situation which was explained at length in Chapter I and which may be summarized in a few words. The Constitution is embodied in, or rests upon, acts of the British Parliament. Under the Colonial Laws Validity Act, 1865, the legislature or parliament of a "colony" has no power to pass any law repugnant to the provisions of any British act extending to the "colony" unless it does so in accordance with a constituent or amending power provided by a British act. No such power regarding the Constitution of Canada was ever granted to any parliament, legislature, or other agency in Canada. On the other hand, the Statute of Westminster, 1931, has not removed Canada from the operation of the Colonial Laws Validity Act in so far as the Constitution—as defined in Chapter I—is concerned. The only means left to alter the Constitution is then, in each case, a further enactment by the Parliament 135

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of the United Kingdom. The necessity of such an enactment at Westminster is the one feature of the amending process which is determined entirely by law proper and does not result in any way from convention. Any attempt to alter the Constitution or to override it by other means would be repudiated and declared null and void by the courts. The reason why such a situation still subsists, particularly since the Statute of Westminster, is no secret. Were it not for the lack of agreement among the Canadian people, first as to the wisdom of abandoning the status quo, and secondly as to what the new process should be, the necessity of "travelling abroad" to secure any constitutional amendment would have been removed long ago. To-day, still, such a lack of agreement is the only bar in the way of "nationalization of the Canadian Constitution." It will be the object of a later chapter to review the efforts made up to now by Canadian statesmen and by students of the Constitution to devise an amending process which would be more in accord with the national status of Canada and which would meet with the necessary agreement among the Canadian people. Although an enactment by the Parliament of the United Kingdom is the necessary ultimate stage of the process of constitutional amendment, such action can be taken only upon a proper request from Canada. According to some writers, section 4 of the Statute of Westminster conclusively settled this question.1 Section 4 provides that "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." What1 See, for instance, Maurice Ollivier, Problems of Canadian Sovereignty (Toronto, 1945), pp. 335-6. Prime Minister St-Laurent seemed also to hold that view in 1949 when he said, in the debate on the address to His Majesty prior to the enactment of the British North America Act, 1949, that "Under the terms of the Statute of Westminster the action of the parliament of the United Kingdom cannot be effective in respect to Canada without joint addresses by our houses of parliament." (Can. H. of C. Debates, 1949, p. 495.)

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ever may be the legal value of this provision1 it can hardly apply to acts amending the Constitution of Canada. Section 7(1) of the Statute expressly provides that "nothing in this Act shall be deemed to apply to the repeal, amendment or alteration" of the Constitution of Canada as defined therein. This restriction on the operation of the Statute of Westminster applies to section 4 as well as to any other part of the Statute.2 By constitutional convention, however, the Parliament of the United Kingdom is definitely precluded from enacting any amendment to the Canadian Constitution without a formal request from Canada. The Constitution of 1867 was itself the work of Canadian statesmen and it was enacted in response to a desire expressed by the provinces coming under it. Its preamble even refers in terms to such a desire. This policy followed by the British Government towards Canada at the initial stage of the Confederation became thereafter a uniform and ever strengthening practice. None of the several amendments made to the Constitution up to now was enacted at Westminster without a previous formal request. With respect to British legislation extending to Canada outside the strictly constitutional field the practice was similar.3 In 1926, this practice was sufficiently well established and binding for the Imperial Conference of that year to place formally on record—apart from the general declaration of equality of status between Great Britain and the Dominions4—that "the constitutional practice is that legislation by the Parliament at Westminster applying to a Dominion would only be passed with the consent of the J In this respect, see: K. C. Wheare, The Statute of Westminster and Dominion Status, pp. 153-7; W. Ivor Jennings, The Law and the Constitution, pp. 142-8; W. Ivor Jennings and C. M. Young, Constitutional Laws of the British Empire (London, 1938), pp. 103-6, 110-12; British Coal Corporation and Others v. the King, [1935] A. C. 500, at p. 520, where Lord Sankey said: "It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired; indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute. But that is theory and has no relation to realities." "This opinion is shared by K. C. Wheare, among others, op. cit. p. 188. 3 See H. McD. Clokie, "Basic Problems of the Canadian Constitution," Canadian Journal of Economics and Political Science, vol. VIII (1942), pp. 15-16. 'Imperial Conference, 1928, p. 14. See supra, p. 27, n. 1.

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Dominion concerned."1 Three years later, the Conference on the Operation of Dominion Legislation—whose Report was approved by the Imperial Conference, 19302—was still more explicit in terms. In "a statement embodying the conventional usage," the Conference referred to the necessity of "request and consent."3 British acts amending the Constitution are not excluded from these general declarations as they later were from the terms of the Statute of Westminster. The effect of such statements in the official reports of Imperial Conferences is not to create conventions. The statements are simply declaratory. They serve a valuable purpose, however, in removing any possible doubt on the intention of their authors to be bound by a particular practice. The intentional element of a convention—which is not always patent-—is thus established with certainty.4 3

While the Parliament of the United Kingdom is precluded from enacting any constitutional amendment without a proper request from Canada the only competent voice of Canada for this purpose is that of the federal power. The provincial authorities—either executive or legislative—have no locus standi to move the British Parliament or Government with a view to securing an amendment to the federal Constitution. Since 1867, no amendment has ever been secured upon a request merely from a province. This situation by itself would not be without importance in order to determine the existence of a constitutional convention. But, moreover, positive attempts to initiate constitutional amendments and to secure their enactment at Westminster have occasionally been made by the provinces. Invariably, these attempts ¡Imperial Conference, 1926, p. 18. ^Imperial Conference, 1930, p. 18. ^Report of the Conference on the Operation of Dominion Legislation, 1929, par. 54. 4One may wonder what the word "consent" added to "request." A precedent or a practice is only the material element of a constitutional convention. The formal element—which, of course, is essential to it—is the belief by the actors of the precedents that they were bound by a rule to act as they did. Jennings mentions a third element as essential to a convention: a reason for the rule. This may be considered as a subdivision of the formal element. See W. Ivor Jennings, op. cit., pp. 129-31.

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have been turned down in a way which leaves no doubt about the recognition of a binding general rule to this effect. The first example of the initiative being taken by a province in a constitutional matter occurred less than eight months after Confederation. It arose out of dissatisfaction in Nova Scotia regarding the terms of union which—it was alleged—were imposed on the province without the consent of either the people or their constitutional representatives. In February, 1868, the House of Assembly of the province unanimously passed an address to the Queen praying Her Majesty to cause the British North America Act to be repealed in so far as it affected the province. This request for severance from the Confederation was forwarded through the Lieutenant-Governor of the province and the GovernorGeneral of Canada—the official channel—to the British Secretary of State for the Colonies. A delegation from Nova Scotia was appointed under the authority of a resolution of the House of Assembly to proceed to London and to set forth the case of the province before the British Government and Parliament. The federal Government, on the other hand, did not fail to have its own representative in London, in the person of Charles Tupper, to state its views.1 The Colonial Secretary replied that no Imperial intervention was to be expected. He denied that the Confederation Act had been passed against the will, or even without the approval, of Nova Scotia and he took the view that the province should look to Ottawa for the redressing of her grievances.2 Simultaneously with the passing at Halifax of the above address to the Queen, a petition to the same effect addressed to both Houses of the Imperial Parliament was signed by 36 out of the 38 members of the House of Assembly of Nova Scotia and by 16 out of the 19 members elected by the province to the House of Commons at Ottawa. Arrangements for the presentation of the petition were made in London by Joseph Howe and the other members of the ^The address to the Queen from the House of Assembly of Nova Scotia as well as other documents appears in Can. Sessional Papers, 1867-8, No. 66. Buckingham to Governor-General Lord Monck, June 4, 1868, Br. Parí. Papers, 1867-8, vol. XLVIII, p. 527; also in Journal and Proceedings of the House of Assembly of the Province of Nova Scotia, 1868, Appendix No. 9, pp. 2-4.

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Nova Scotian delegation mentioned above. The petition was presented to the House of Commons on May 15, 1868, and, a few weeks later, to the House of Lords.1 By this time, however, the determined attitude of the British Government was known and it was clearly futile to press for severance any further. A motion was therefore proposed praying simply for the appointment of a Commission to go to Nova Scotia for the purpose of examining the causes of the alleged dissatisfaction with a view to their removal. The motion was negatived by 183 votes to 87 after the Under-Secretary for the Colonies had said that they "had no business to inquire into the local arrangements of the North American Provinces. By doing so," he added, "we should be going back for some thirty years in colonial policy."2 A similar motion was proposed in the House of Lords without any more success.3 The second instance of a request to the British Government by a province with a view to a constitutional change arose as a development of this episode. In spite of the plain rebuff, the legislature and Government of Nova Scotia persisted in their determination to obtain the repeal of the British North America Act. The federal Government succeeded, however, in entering and carrying on negotiations with Joseph Howe and one of his fellow representatives of Nova Scotia in the federal Parliament, A. W. McLelan. It was soon agreed that the province would receive special financial treatment from Ottawa over and above the grants provided by section 118 of the Confederation Act.4 The federal Parliament approved the scheme and passed the necessary legislation in spite of strong opposition on constitutional grounds. After the law officers of the Crown in England had advised that such legislation was within the powers of the Parliament of Canada under the Constitution,5 l Br. 2

H. of C. Journals, vol. 123, p. 178; Br. H. of L. Journals, vol. C. p. 378, Br. H. of C. Journals, vol. 123, p. 248; Br. Parí. Debates, 3rd series, vol. CXCII, cols. 1658-96, the above quotation being at col. 1683. 3 Br. H. of L. Journals, vol. C, p. 378; Br. Parí Debates, 3rd series, vol. CXCIII, cols. 679-710. Correspondence and Documents relative to the affairs of Nova Scotia, Can. Sessional Papers, 1869, No. 9. 'See supra, pp. 75-6.

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the Legislative Assembly of the province of Ontario passed an address to the Queen praying, in substance, that the text of the British North America Act be amended so as to provide that the federal Parliament should have no power to disturb the financial relations established between Canada and the several provinces in 1867.1 The address was forwarded to Ottawa by the Lieutenant-Governor of Ontario and was later transmitted to London by the Governor-General acting on the advice of his Ministers.2 The reply from the Colonial Office was not long in coming. It stated that "The British North America Act (1867) embodied the terms of Confederation agreed upon through their Representatives by the different Provinces in the Union, and Her Majesty's Government would not feel justified in proposing to the Imperial Parliament to deprive the Parliament of Canada qf any power which that Act has assigned to them." After recalling the opinion of the law officers of the Crown concerning the validity of the Canadian act of 1869 respecting Nova Scotia, the Colonial Secretary concluded that under these circumstances he had been unable to advise Her Majesty to accede to the prayer of the Ontario legislature.3 In later years, British intervention in Canadian affairs was again sought unsuccessfully a number of times by some of the provinces. For instance, in 1874, British Columbia complained of the failure of the federal Government to carry out the provisions of the Pacific Railway clause in the terms of union of the province with Canada. Three years later, Prince Edward Island addressed London with a view to obtaining its share of the fishery award arising out of the Treaty of Washington. Part of the full award had been handed over by Britain to the Canadian Government which refused to share it in turn with the provinces affected by the fishery rights. A further petition by Prince Edward 'Part of the address is quoted supra, at p. 75. ^The Lieutenant-Governor of Ontario to the (Canadian) Secretary of State for the Provinces, December 28, 1869; Minute of the Privy Council for Canada, January 7, 1870; the Governor-General to Granville, January 11, 1870, Can. Sessional Papers, 1870, No. 25, pp. 2-7. 'Granville to the Governor-General, February 19, 1870, ibid., p. 14.

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Island was made in 1886 with respect to the alleged failure of the federal Government to maintain a continuous steamboat service between the province and the mainland, as it was bound to do under the terms of union of the province with Canada. In none of these cases was there any request for severance from the Confederation or for constitutional amendment. On the contrary, these petitions sought for British intervention in the internal government of Canada with a view to enforcing—rather than altering—the Constitution (either the original act or some particular "terms of union") or any rights compatible with it.1 For our present purposes, however, it is not without interest to note that a policy of non-intervention was uniformly adhered to by the British Government whatever may have been the object of the requests by the provinces. A further attempt by the provinces2 to secure constitutional amendments from Westminster developed out of the interprovincial Conference of October, 1887, but was not carried very far. This attempt might have assumed some importance in view of the collective nature of the action then planned by the provinces. It would hardly have been proper for the British Parliament to alter the federal Constitution of Canada at the request of a single province. Upon a collective action the case might have been different. It is not necessary to consider in detail the circumstances and the results of this interprovincial Conference of 1887.3 The Conference was convened by Premier Mercier of Quebec after consultation with Premier Mowat of Ontario. The federal Government declined an invitation to attend and only five of the then seven provinces of Canada agreed to send delegates. After the close of the Conference, the two 'A short and interesting account of these petitions, among others, is given by J. A. Maxwell, "Petitions to London by Provincial Governments," Canadian Bar 2Review, vol. XIV (1936), pp. 738-49. This review does not claim to be exhaustive of all provincial petitions to London with a view to constitutional amendments. The instances reported here may be regarded simply as illustrations of a policy from which the British Government does not appear ever to have departed. 'Short accounts of the Conference—though not conveying a completely true picture of the situation—are given by Norman McL. Rogers, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 97-105, and by Maurice Ollivier, Problems of Canadian Sovereignty, pp. 368-72.

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absentee provinces—British Columbia and Prince Edward Island—refrained from extending their co-operation which was sought by the other provinces with a view to securing the enactment at Westminster of the numerous constitutional amendments agreed to at the Conference. The legislative assemblies of Quebec, Ontario, and Manitoba concurred in the Resolutions of the Conference but did not go any further than "communicating ' this concurrence to the federal Government.1 The only provinces which showed some determination were Nova Scotia and New Brunswick. The House of Assembly of Nova Scotia passed an address to the Lieutenant-Governor of the province requesting him to transmit a copy of the Resolutions with an intimation of their approval by the House, through the usual channels to the Colonial Secretary with a view to securing the enactment by the Imperial Parliament of amendments to the act of 1867 in accordance with the Resolutions.2 The House of Assembly of New Brunswick took a similar action.3 In both provinces, however, the second chamber withheld its support. The Legislative Council of Nova Scotia negatived a motion for concurrence in the Resolutions4 while the Legislative Council of New Brunswick went so far as to pass an address to the Queen praying Her Majesty to decline to take any action on the Resolutions.6 In London, the Colonial Office did not take any decision because it waited for the views of the provinces other than Nova Scotia and New Brunswick, and for the those of the federal Government, which were never conveyed.6 1 Journals of the Legislative Assembly of Quebec, 1888, pp. 71-7, 83; Journals of the Legislative A ssembly of Ontario, 1888, pp. 78-83, 97-9 ; Journals of the Legislative Assembly of Manitoba, 1888, pp. 65-76, 83-4. It should be recalled that Ontario and Manitoba had no second chamber. In Quebec, the question of concurrence in the Resolutions of the Conference does not appear to have come before the Legislative Council at all. ^Journals of the House of Assembly of Nova Scotia, 1888, pp. 71, 105-6. 3 Journals of the House of Assembly of New Brunswick, 1888, pp. 59-66, 87. 1 Journals of the Legislative Council of Nova Scotia, 1888, pp. 58-9. 6 Journals of the Legislative Council of New Brunswick, 1888, pp. 49-56, 60-8. 6 See: Lansdowne to Sir Henry Holland, November 12, 1887, and Holland to Lansdowne, December 16, 1887, at the Public Record Office (London), C. O. 42, vol. 791, No. 23879; Lansdowne to Holland, March 3, 1888, ibid., C. O. 42, vol. 795, No. 5474; Administrator of the Government to Knutsford, June 4, 1888, and Knutsford to Stanley, July 6, 1888, ibid., C. O. 42, vol. 796, No. 12289; Stanley to Knutsford, July 26, 1888, and Knutsford to Stanley, July 30, 1888, ibid., C. O. 42, vol. 796, No. 14192.

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A further event which is by far the most significant in this matter of provincial requests of constitutional amendment to London happened as lately as 1935. The State of Western Australia then petitioned both Houses of Parliament of the United Kingdom—as well as the King—with a view to secession from the Australian Commonwealth. This object could not be achieved through the process of constitutional amendment embodied in the Australian Constitution but only through an act of Parliament at Westminster. The principle of secession had been approved by the people of Western Australia in a referendum and the petition was subsequently passed by both houses of the State Parliament and signed by the leaders of all parties. In London, a joint Select Committee of Lords and Commons to which the petition was referred reported that it was not proper to be received since it prayed for legislative action which the Parliament of the United Kingdom would be incompetent to take except upon "the definite request of the Commonwealth of Australia conveying the clearly expressed wish of the Australian people as a whole."1 The Committee said that the State of Western Australia had no locus standi in asking for legislation at Westminster in regard to the Constitution of the Commonwealth.2 It is a well-established convention of constitutional practice, one reads in the Report, that the Parliament of the United Kingdom should not interfere in the affairs of a Dominion save at the request of the Government or Parliament of such Dominion; "that is to say, in effect, that interference should only take place at the request of such Dominion . . . speaking with the voice which represents it as a whole and not merely at the request of a minority. That rule was well established before 1900, and has been consistently acted upon as an undoubted Constitutional Convention."3 This language does not leave any doubt that London would similarly deny to the Canadian provinces any locus standi in requesting the enactment of amendments to the Constitution of Canada. : A11 the above details appear from the Report by the Joint Committee of the House of Lords and the House of Commons on the Petition of the State of Western Australia (London, 1935, H. L. 75), pp. ii-xxvii; the quotation is at p. x, par. 13. 2 ¡ Ibid., p. ix, par. 9. Ibid., p. viii, par. 7.

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4 Among the federal organs of government the legislative branch alone is competent to formulate a request for amendment. By a well-established constitutional convention the executive is denied this competence. The preceding chapter has shown how this rule was originally laid down in 1871, when the first occasion arose to seek an amendment to the Constitution.1 The Government of the day at Ottawa addressed the British Colonial Secretary without any special mandate from Parliament. Before the results of this initiative matured, however, the matter was brought before the Canadian House of Commons which then formally declared that no change in the provisions of the Confederation Act should be sought by the Government without the previous assent of Parliament. The proposed amendment was subsequently enacted at Westminster upon a joint address from both Houses of Parliament of Canada. In two later instances of amendment, this procedure was not followed. In 1875, on the first of these occasions, the object of the amendment was only to remedy a technicality in the Constitution which had caused the Queen-in-Council— the British Government—to disallow a Canadian act on grounds of unconstitutionality. This act was in no way contentious and the Canadian Government had considered the steps to have the situation corrected as a purely administrative business. The admission by the Government that "it might have been better even then to have proceeded by address" and that "it should be so whenever a change was wanted"2 is an indication that the rule laid down in 1871 was then accepted as binding and that the course followed in 1875 was only a slip. In 1886 and 1889, when it was proposed to seek further amendments to the Constitution, a joint address was passed by both Houses at Ottawa.3 When Sir John A. Macdonald moved the first of these addresses he explained that his Government was thus following the procedure specifically laid down in 1871. This statement which recognizes the binding effect of the rule formulated by the first Parliament 1 Supra, 2

pp. 54 ff. See supra, p. 60.

"See supra, pp. 60, 69.

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of the Confederation assumes a special significance since it was made in the first instance of amendment arising after the unfortunate case of 1875. Then came, in 1895, the second amendment to be passed upon a request from the Government alone.1 The circumstances of its enactment closely resemble those of 1875. The true nature of the Act as a constitutional amendment was almost unnoticed and there was clearly no intention of departing from the recognized procedure. In subsequent years up to the present time, no change in the Constitution was ever secured from Westminster without a previous request from the Canadian Houses of Parliament. One feels justified in inferring from these facts a fully binding constitutional convention and not only a mere practice. The belief of successive Governments at Ottawa that they were bound not to act without the assent of Parliament was reaffirmed more than once and cannot be doubted. The two lapses of 1875 and 1895 do not in any way weaken the convention. In both cases the object of the amendment was only to remedy, in the original document of Confederation, small technical points. In both cases, Parliament had actually agreed in principle to the amendments. Moreover, both amendments were enacted to validate Canadian acts which had been held by the law officers of the Crown in England to be ultra vires of the Canadian Parliament. To-day, only the courts can declare an act of Parliament to be ultra vires. Canadian acts are no longer subject to the opinion of the law officers of the Crown in England, an operation which, unlike court decisions, did not involve any publicity and thereby made executive action possible before Parliament and the public in Canada became aware of the situation calling for an amendment. All these circumstances point to the amendments of 1875 and 1895 as exceptions to a general rule which is now confirmed by an unbroken practice since the beginning of this century. One may be tempted to recall the course followed in 1936 with respect to the abdication of King Edward VIII. The Canadian Government, without consulting Parliament, then 'See supra, pp. 71-4.

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passed an order-in-council "requesting and consenting to" the enactment by the British Parliament of His Majesty's Declaration of Abdication Act. Prime Minister Mackenzie King later explained that this action was perfectly "legal" under section 4 of the Statute of Westminster which requires the "request and consent" oí the Government alone to make British acts applicable to Canada.1 This attitude led a distinguished student of the Canadian Constitution, Dr. W. P. M. Kennedy, to point to the requirement of parliamentary action in the case of Australia and to ask the following question without suggesting any answer to it: "Does the absence of any similar rule for Canada in s. 4 mean in proper circumstances, such as a change in the British North America Act, that 'request and consent' may come through Canadian order-in-councils ?"2 There appears to be a striking answer to this query. Nothing in the Statute of Westminster shall apply to the amendment of the Constitution.3 Whatever may be the meaning of section 4 of the Statute it has no bearing on the process of requesting amendments to the British North America Act or to other documents of the Constitution. Although the Abdication Act was of paramount constitutional importance to Canada it did not affect in any way the safeguarded documents making up the Constitution and did not, therefore, constitute a breach of the convention requiring parliamentary action in Canada before any amendment to the Constitution is enacted. Moreover, even if section 4 were applicable to constitutional amendments as well as to other British acts, its mere silence on the subject of parliamentary action could not properly be regarded as impairing the binding force of a definite convention which requires 'Can. H. of C. Debates, 1937, pp. 40-5. Under section 4 of the Statute, no British act shall extend or be deemed to extend to Canada unless the "Dominion" has requested, and consented to, its enactment. This provision is generally agreed as requiring no more than a mere Government request from Canada. For Australia, a special section of the Statute—section 9(3)—provides that "the request and consent referred to in section four shall mean the request and consent of the Parliament and Government of the Commonwealth." No similar provision was made in respect to Canada. 2 "Canada and the Abdication Act," University of Toronto Law Journal, vol. II (1937-38), p. 118. 'Section 7(1) of the Statute. See supra, pp. 7, 136-7.

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such action in respect to a particular class of British acts affecting Canada—a class under which the Abdication Act did not fall—namely, amendments to the Constitution. It should be added that Mr. King and Mr. Lapointe felt it proper to explain on behalf of the Government that, although their action by simple order-in-council was within their powers under section 4 of the Statute of Westminster, they had followed that course on account of the emergency.1 Mr. Bennett, then Leader of the Opposition in the House of Commons, pointed out that section 4 of the Statute was framed in the form in which it appears precisely "for the purpose of meeting an emergency which might arise, just as an emergency arose in this case."2 These authoritative statements would lead one to believe that even in matters which do not affect the Constitution (the safeguarded documents) British legislation should not, in normal circumstances, be extended to Canada otherwise than at the "request and consent" of Parliament at Ottawa. The competence which rests exclusively with Parliament in respect of constitutional amendments relates only to the formulating of the requests to London. The actual transmitting of these requests appertains, of course, to the functions of the executive, although in this matter of amendment of the Constitution the practice deviates from the normal procedure of communication between the Government of Canada and the Government of the United Kingdom. The address as passed by the Canadian Houses of Parliament is transmitted to the King by the Governor-General in his capacity as personal representative of His Majesty in Canada. At the same time, the Department of External Affairs, through its High Commissioner in London, informs the Commonwealth Relations Office of the text of the proposed amendment.3 l

Can. H. of C. Debates, 1937, pp. 40-5, 79.

*Ibid., p. 27. 'Originally, the requests were transmitted to London by the GovernorGeneral as the official channel of communication with the British Government. It was the practice for the Canadian Houses of Parliament, each time they formulated a request for an amendment, to pass an address to the Governor-General praying him to transmit their request to London. Then, upon the favourable advice of his Ministers, the Governor-General complied with this prayer. (An

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5

The rule requiring parliamentary action before any amendment is sought from Westminster was laid down at Ottawa, in 1871, by the House of Commons alone. By its very terms, however, the resolution establishing the rule required not only the assent of that House, but "the assent of the Parliament of this Dominion," thus referring to both Houses.1 Actually, the proposed amendment of 1871 was enacted at Westminster upon a joint address from the Senate and House of Commons of Canada. So were all subsequent amendments up to now (except the two cases where neither House was involved in the process). In 1936, when the Senate turned down a proposal for a constitutional amendment which had been agreed to by the Commons, the matter was not pressed any further.2 The necessity of securing the concurrence of both Houses as a prerequisite to any constitutional amendment was never questioned. Indeed, so long as the legislative body at Ottawa is composed of two chambers, and so long as the constitutional relations between the two remain as they are now, it would be very improper to dispense with the action of either the Senate or the Commons. example of such an address to the Governor-General will be found in Can. Senate Journals, 1889, pp. 246-7, and Can. H. of C. Journals, 1889, p. 403; the minutein-council relating to the same request of amendment is printed in Can. Sessional Papers, 1892, No. 71, pp. 42-3.) In 1927, the Governor-General ceased to act as the official channel of communication. Yet, because the Canadian request still took the form of an address to the King, praying him that he might cause a measure to be laid before his Parliament of the United Kingdom, this address was, and still is, transmitted to His Majesty by the Governor-General as his personal representative in Canada. At the same time, however, the British Government is informed through normal diplomatic channels of the text of the proposed amendment in order that it may give any assistance and information in connection with the introduction of the amending bill in the British Parliament. The old procedure of an address to the Governor-General was adhered to in 1930 and 1931 when the enactment of the British North America Act, 1930, and of the Statute of Westminster was requested (Can. Senate Journals, 1930, p. 391, and Can. H. of C. Journals, 1930, pp. 465-6; Can. Senate Journals, 1931, p. 208, and Can. H. of C. Journals, 1931, p. 512). But that procedure has now been abandoned and the Canadian Houses of Parliament take no step beyond passing the address to the King. 'See supra, p. 57. 2 The object of this proposed amendment was twofold: 1. To remove any doubts about the right of the provinces to levy certain retail sales taxes and taxes on the patronage of hotels, restaurants, and places of amusement or entertainment (this was to be done by amending section 92 of the British North America Act, 1867); 2. To enable the Government of Canada to guarantee

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6

From the very beginning of the Confederation the request of the Canadian Houses of Parliament took the form of a joint address to the Sovereign representing certain facts and praying that a measure be submitted to the Imperial Parliament for certain purposes.1 This form was actually inherited from the pre-Confederation regime. A number of amendments to the Union Act of 1840 (which united the then provinces of Upper and Lower Canada) had been secured by this procedure.2 In 1865, the houses of the legislature of United Canada had also proceeded by way of an address to Her Majesty to seek the enactment of a confederation scheme based on the Quebec Resolutions of 1864. In this case, however, the Legislative Council and the Legislative Assembly each passed a separate address instead of uniting in the same document.3 The form of a joint address remained unchanged for almost the first fifty years of the Confederation. In 1915, while Canada began to affirm her distinct personality in Commonwealth and international affairs, this form was still adhered to. For the first time, however, the address included the text of a draft bill which His Majesty was prayed to submit to the Parliament of the United Kingdom.4 It should be noted that this draft bill contained no preamble. In later years, from 1930 onwards, it became a practice to recite in the bill that "the Senate and Commons of Canada in the debts of the provinces. As then explained by the Minister of Justice in the House of Commons, this proposal of amendment was made upon the express desire of some of the provincial governments and with the consent of all. The Senate refused to concur with the House of Commons in an address requesting the enactment of the amendment at Westminster. (Can. H. of C. Journals, 1936, pp. 333-4, 337-8; Can. Senate Journals, 1936, pp. 174-6, 227-8; also, Can. H. of C. Debates and Can. Senate Debates for 1936.) 'See supra, p. 89. ! See, for instance, the joint address praying for the restoration of the official use of the French language, Journaux de l'Assemblée Législative de la Province du Canada, 1844-45, pp. 294-5, 305. The ensuing Union Act Amendment Act, 1848 (Br. Statutes, 11-12 Viet., c. 56), as well as subsequent amendments to the Union Act, 1840, are quoted in W. P. M. Kennedy, Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929 (Toronto, 1930), pp. 532-5. 'Journaux du Conseil Législatif de la Province du Canada, 1865 (Deuxième session), p. 130; Journals of the Legislative Assembly of the Province of Canada, 1865 (Second Session), p. 202. See supra, pp. 89-90.

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Parliament assembled have submitted an address to His Majesty praying" for the enactment of the provisions thereafter set forth. The preamble to the proposed amendment of 1930 also contained additional recitals which referred to the circumstances of the enactment.1 In the case of the Statute of Westminster, the form of the Canadian request did not depart from the practice then in force. The only difference was that no formal draft bill was embodied in the address; the proposed recitals and clauses of the Statute—• so far as Canada was concerned—• were simply recited one after the other, leaving to the parliamentary draftsmen of the United Kingdom the task of numbering them.2 This course was followed to reduce to a minimum the delays involved in the preparation of a statute which had to be acceptable to all member states of the Commonwealth. The form of the request in use since 1940 is that of concurrent and identical addresses to the Sovereign from each of the two Houses of Parliament of Canada.3 The address is a simple prayer to the King that he may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom in the terms which are set forth thereafter. The address does not include any preamble. The proposed amendment, which is in the form of a draft bill, contains a single recital referring to the request of the Senate and Commons of Canada. The reasons for the amendment and the circumstances which led to it may find some expression, however, in the preamble to the resolution of each House agreeing that an address be presented to His Majesty.4 This procedure—which might appear curious to anyone unfamiliar with its historical background—amounts to a request to the British Government. Originally, the address was forwarded to the Colonial Secretary who had the duty 'Can. H. of C. Journals, 1930, pp. 414-15. This preamble is now the preamble to the British North America Act, 1930, where it may be read. 2 See supra, pp. 102-4. 'See supra, p. 108. 4 As an illustration of this procedure, the resolution of the House of Commons of Canada, of June 20, 1946, embodying an address to His Majesty with a view to the enactment, at Westminster, of the British North America Act, 1946, is reproduced as Appendix B to this study. (Infra, pp. 289-91.)

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to "advise" the King—or the Queen—concerning the course to be followed upon it. To-day, although the request is addressed and transmitted to the King who is the symbol of the association between Canada and Great Britain, among others, in the Commonwealth, the matter is actually handled by the Commonwealth Relations Office—until 1947, the Dominions Office—as the appropriate Department of the British Government. The precise form of the Canadian request is actually of little importance. There is no convention regulating the matter because no Government ever felt bound by a particular form and because there was no good reason to be so bound while the nature and the form of the relations between the Governments of the United Kingdom and of Canada—as a part of the whole system of Commonwealth relations—were in continuous evolution. The form now in use since 1940 is still susceptible of modification. One feature of the request, however, appears to be settled by a practice which approximates to a convention: the amendment proposed by the Canadian Houses must be laid down in specific terms before a request is transmitted to London. This practice has been constantly followed since 1915, and any departure from it would hardly be in accord with the autonomous status of Canada within the Commonwealth. It should be observed that it may not be entirely without importance whether the process followed is that of concurrent addresses or of a single joint address from the Houses of Parliament. In the latter case, the address is first passed by either House and sent to the other for concurrence. There, it may be amended and returned to the former House as any bill. This situation arose with respect to the proposed British North America Act, 1915.1 What would be the outcome of a situation in which both Houses passed individual addresses which were not in identical terms? From the point of view of parliamentary procedure, the process of a joint address seems preferable, although, in the four most recent instances of amendment—in 1940, 1943, 1946, and 1949—-the other course was followed.2 : See 2

supra, p. 88. As regards the 1949 (No. 2) amendment, see Introduction, supra, pp. xx-xxi.

CHAPTER

V

THE PARTICIPATION OF THE PROVINCES Is a request from the Canadian Houses of Parliament all that is required in order to secure an amendment to the Constitution? While the federal organs of government alone are competent to voice a proper request, do they also enjoy an exclusive competence to determine if an amendment should be sought and what form it should take? In other words, is the power of the Houses of Parliament at Ottawa to speak for Canada as a whole constitutionally subject to certain prerequisites? Should the governments of the provinces intervene at some stage of the process? 1 This problem, which is still to-day a subject of discussion, is as old as Confederation itself. As early as 1869, it was brought to the floor of the House of Commons by Holton's motion claiming that "any disturbance of the financial arrangements . . . provided for in the British North America Act, unless assented to by all Provinces, would be subversive to the system of Government under which this Dominion was constituted." The debate and vote on this motion, however, have little bearing on the issue now under examination since the object sought was not to curb the right of Parliament to request the enactment of constitutional amendments, but to curb the power which Parliament claimed it had under the Constitution to grant subsidies to the provinces as it saw fit.1 Two years later, when the proposed British North America Act, 1871, was under discussion, David Mills unsuccessfully sought from the House of Commons a commitment to the necessity of provincial assent previous to any alteration of the principle of representation in the House of Commons as settled by the act of 1867.2 Nevertheless, on repeated occasions during the first sixty J See 2

supra, pp. 74-5. See supra, p. 57.

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years of Confederation, the leading public men of Canada all recognized, in unambiguous statements, the necessity of securing the concurrence ot the provinces before any major amendment was requested from Westminster.1 As formulated, this principle was flexible enough, it seems, to be reconcilable with the fact that a number of amendments were enacted, from time to time, without any previous reference to the provinces. Such was the situation in 1914, when Sir George Ross wrote in more flamboyant than strictly accurate language: "The doctrine of consent stands at the threshold—is, in fact, the flaming sword of the Constitution."2 The question was brought to the fore, in 1930-31, by the events which preceded the enactment of the Statute of Westminster. Premier Howard Ferguson, of Ontario, protested against any action being taken by the federal Government and Parliament on the Report of the Conference on the Operation of Dominion Legislation, 1929, without first obtaining the consent of the provinces.3 His memorandum to the Prime Minister of Canada simply expounded a doctrine which had been accepted in its broad lines by most public men since Confederation, but which had never been so forcibly set forth at such a critical moment. The support given to the claim by the other provincial premiers and its acceptance (in substance, at least) by the Prime Minister of Canada—especially at a time when, already, the difficulty of amending the Constitution was said to bar the way to any proposed social legislation from Ottawa—led to a strong reaction in a number of scholarly circles in Canada. The most elaborate and reasoned reply came, in 1931, from Norman McL. Rogers—then professor at Queen's University and later a member of Mr. Mackenzie King's Cabinet—who rejected the compact theory of Confederation as unfounded ^ome of these statements—to which further reference will be made in the following pages—are printed in Appendix C to this book. (Infra, p. 292 ff.) 2 The Senate of Canada (Toronto, 1914), p. 112. Further on, Sir George Ross admitted that the interpretation of this rule was, in Burke's words, "a matter of reason and judgment." The provinces would have no ground of complaint against an amendment passed without their consent, he said, so long as any of their rights or privileges under the Constitution were not prejudiced by it. (Ibid., p. 118.) "See supra, pp. 99-100.

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in history and in law as well as in constitutional practice and in convenience.1 This new contribution to constitutional theory proved to be only the beginning of a flow of literature on the subject. Since then, the most contradictory doctrines have been asserted with an equal assurance. Opposing conclusions are drawn from the same historical facts. The necessary distinctions between instances which have very little in common are often overlooked. General theories are built upon single instances or cas d'espèce. Occasionally, some assertions even run close to wishful thinking as these words of Professor Frank Scott, written in 1945, seem to do: "An established convention leaves little doubt that we can amend our constitution whenever a mere majority of our Senate and House of Commons demand it (even when, as the opposition of Quebec to the amendment of 1943 showed, a provincial legislature opposes the change). . . ."2 2 The whole problem of provincial participation in the amending process cannot be brought under a single rigid rule. It must be analysed and examined under its several aspects. This was the method followed in September, 1931— previous to the enactment of the Statute of Westminster3 but following the passing of the Canadian address requesting its enactment—by the then President of the Canadian Bar Association, Mr. Louis St-Laurent, in his presidential address at the annual meeting of the Association. Mr. St-Laurent was then far from contemplating the role which he was later called upon to play in the political life of his country. His 1 "The Compact Theory of Confederation," Papers and Proceedings of the Canadian Political Science Association, vol. Ill (1931) pp. 205-30. This paper is largely reprinted in R. MacG. Dawson, Constitutional Issues in Canada, 1900-1931, pp. 34-45, and in William F. O'Connor, Report to the Honourable the Speaker of the Senate on the British North America Act, 1867, Annex 4, pp. 139-48. ^'Constitutional Adaptations to Changing Functions of Government," Canadian Journal of Economics and Political Science, vol. XI (1945), p. 331. Since 1930, the problem of provincial consent has been discussed in leading articles or other works; see the bibliography at the end of this book (pp. 317 ff.) There is, in addition, a profusion of material on the subject in Can. H. of C. Debates and in the provincial submissions to the Dominion-Provincial Conferences of 1941 and 1945. See also Chapter VII, infra, p. 204 ff. 3 The Statute was assented to and came into force on December 11, 1931.

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words, therefore, give a special significance to the unequivocal stand which he took as Minister of Justice, in 1943 and 1946, with respect to the proposals of constitutional amendment then under discussion, and later as Prime Minister. The relevant extract from his address of 1931 is quoted here at length since no one could expect a more lucid exposition of the particular aspect of the problem with which it deals. At one point of his address Mr. St-Laurent reviewed the events which immediately led to the proposed Statute of Westminster and he finally referred to the federal-provincial Conference of April, 1931, called for the purpose of considering the terms of the proposed Statute. He then went on to say : Now fears have been expressed in some quarters that this consultation of the Provincial Governments might be regarded as recognition that their acquiescence is required before any amendment can be made to the constitution of Canada and the timehonoured controversy over the compact theory of Confederation has again rather prominently come to the fore. I do not intend to trouble you with any views of mine on that question, either as an abstract proposition of law or as a disputable assertion of fact, but I may perhaps be permitted to suggest that the constitutional documents themselves do set up as legal right and duly bearing units [sic] the Dominion on the one hand and the Provinces on the other.

Mr. St-Laurent explained that these units are invested by the constitutional documents both with property rights and with legislative jurisdiction. "It would hardly be suggested," he said, "that it might be proper to transfer the property rights of any one of them to any other without the acquiescence of that one."1 He then went on : Now as regards legislative jurisdiction as early as 1883 in the case of Hodge v. the Queen (1884), 9 A. C. 117, at p. 132, the following language was used to state 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 1 Mr. St-Laurent referred here, of course, to the transfer of property rights by way of constitutional amendment, and not under certain specific provisions of the Constitution such as section 92, item 10 (c), which authorizes the federal Parliament to legislate in relation to certain works situated wholly within one province by declaring that such works are for the general advantage of Canada or for the advantage of two or more provinces.

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enacted 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 circumstances 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." Mr. St-Laurent added that this conception of the true character and position of the provincial legislatures had endured up to the present time. He pointed out that in Hodge v. the Queen it had been expressed with respect to the legislature of one of the four original provinces. But he explained why in his view the constitutional status of the provinces which came into Confederation after 1867 could not be regarded as different from that of the original four. He then continued: Now, it may be that while both the Dominion and the Provinces remained subject to the legislative jurisdiction of His Majesty's Parliament of the United Kingdom, that Parliament had, in theory, full power to vary the distribution of legislative jurisdiction between them. But after the declaration of 1926 that both the United Kingdom and the Dominions are autonomous communities equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, it would hardly seem probable that the Parliament of the United Kingdom would undertake to legislate for the territory of any one of those Dominions, unless it be expressly declared in the Act that that Dominion had requested and consented to the enactment of the proposed legislation. And if the United Kingdom and the Dominions are equal in status and in no way subordinate one to another in any aspect of their domestic or external affairs, does not the provision of section 92 of the Act of 1867, that in each province the legislature may exclusively make laws in relation to the amendment from time to time of its constitution, except as regards the office of LieutenantGovernor, seem to indicate that the Houses of the Dominion Parliament would have no jurisdiction to request or to consent to enactments that might extend or abridge Provincial legislative autonomy? It is true that one of the proposed sub-sections of

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the Statute of Westminster is to declare that nothing in that Statute 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; but the declaration of the Imperial Conference purports to be a statement of the established constitutional position, and if it is so in fact, is anything further required to make it clear that the constitution of the provinces can be amended or affected only by the provinces themselves? Section 92 excludes federal jurisdiction over them, and the declaration of 1926 does seem to state a constitutional position that precludes interference with them by any other Parliament to which they are said to be in no way subordinate.1

The whole argument might then be put briefly into two propositions : 1. In law, within the limits of subjects and area determined by section 92 of the British North America Act, 1867, the provincial legislatures are "supreme" and admit of no possible interference by the federal Parliament, just as the federal Parliament is "supreme" and admits of no interference by any provincial legislature in its own sphere. 2. In view of the Balfour declaration of 1926, it would hardly seem proper for Westminster to interfere with the powers, rights, or privileges of any of the "supreme" legislative bodies governing the "autonomous" Canadian community without the consent of any such legislative bodies. The word "supreme" as applied to the provincial legislatures calls for some comment. In Hodge v. the Queen, its precise meaning appears from the context which speaks of "authority as plenary and as ample . . . as the Imperial Parliament in the plenitude of its powers possessed and could bestow." That "plenary" authority, however, which is also "exclusive," as the opening words of section 92 of the Confederation Act expressly state,2 remains subject to a federal check through the power of disallowance of provincial legislation. This power, however, which is vested in the federal executive (not in Parliament) may be, in theory, a power to paralyse a provincial legislature; but it does not include the ^'Presidential Address," Canadian Bar Review, vol. IX (1931), pp. 532-4. 'Section 92 reads: "In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated"; etc.

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power to substitute any federal legislation for the disallowed provincial one; it does not, in any circumstances, empower the federal authorities to invade the provincial sphere of legislation. The status of the provincial legislatures—not as resulting from an abstract theory of federalism, but as determined by the constitutional enactments themselves—admits, therefore, of no entering whatsoever by the federal Parliament into the legislative area of the provinces under section 92 of the Confederation Act. The federal power of disallowance thus appears only as a limitation or a check upon the so-called sovereignty of the provincial legislatures—a limitation or a check which does not affect the "plenitude" and "exclusiveness" of the authority of those legislatures. Indeed, it is not quite proper to speak of the sovereignty of a legislative body in a federation. That so-called sovereignty is restricted in numerous ways by the terms of a constitution which limits the jurisdiction of such legislative body to certain classes of subjects; which provides that certain matters be dealt with in a certain manner and that certain rights be not infringed, etc. It may therefore appear an abuse of language to speak of sovereignty in relation to any legislative body in Canada, whether central or provincial, when in reality one is referring to a "plenary" and "exclusive" authority. But some analogy between a true sovereign and a legislative body in a federation justifies, it seems, the use of the word sovereignty in relation to the latter since such a body is subject to no superior legislative authority. Such a sovereignty or supremacy is sufficient to preclude the federal Houses of Parliament in Canada from securing from Westminster, upon their exclusive authority, the enactment of an amendment which might abridge provincial powers under section 92 of the Confederation Act. In attempting to do so the federal Houses would arrogate to themselves an authority superior to that of the provinces— an authority which has no basis whatever in the Constitution —moreover, an authority which would involve the negation of the "plenary" and "exclusive" authority of the provincial

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legislatures, as explained above, and would thereby destroy the whole federal scheme of government established by the act of 1867. Many students of the Constitution would maintain, here, that nothing was stranger to the spirit of the Fathers of Confederation than any idea of provincial veto. It is ironical enough that such an assertion should be resorted to by those very scholars who claim that the Canadian Constitution was not interpreted, as it should have been, as a "living document" by the courts. Although the accuracy of the above assertion is disputable,1 it is quite irrelevant here. At the time of Confederation, the Colonial Office in London still played a considerable part in the political life of Canada. A glance at the records of the Department for that period shows how regularly and to what extent the Governor-General then communicated with Downing Street. Under such circumstances, an abridgement of provincial sovereignty against the will of a province might have been considered to be within the realm of possibilities. But there is no evidence to show that one could have expected it to take place as a matter of course, simply upon the request of Ottawa. On the contrary, the attitude taken by the British authorities before finally enacting the 1889 and 1907 amendments in their present form shows clearly that the British Government paid high regard to the views of the governments of the provinces in matters affecting the latter's rights and privileges.2 Only the discretion and the authority exercised at Westminster in respect to Canadian affairs at the time of Confederation and for some years thereafter could have made possible any interference with the powers, rights, or privileges of a provincial government against the latter's will. Those times, however, are over. Since the beginning of this century, more particularly since the declaration of 1926 that Great Britain and the Dominions are autonomous communities, in no way subordinate one to another,3 Parliament 'See the distinctions made in this respect, supra, at pp. 39-40. See infra, pp. 193-4. ^Imperial Conference, 1926, p. 14. 2

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at Westminster is precluded from interfering with any of the several autonomous and co-ordinate legislative bodies through which the Canadian community governs itself. Although the argument developed above refers in terms only to section 92 of the British North America Act, 1867, it applies to all powers, rights, or privileges possessed under any provision of the Constitution by a province as a body politic. Such is the legislative power of the provinces over education, subject to certain guarantees, under section 93 of the original act—a supplement to section 92. The powers of the federal Parliament and Government, on the other hand, as determined by a number of provisions—such as section 91 (general legislative powers), section 94 (unification of laws in common law provinces), sections 96 and 100 (appointment of judges of the higher provincial courts, and fixing of their salaries), section 101 (maintenance of a general court of appeal for Canada), section 132 (implementing of certain international treaties)—are in the same position since they are the exact complement of the provincial powers and cannot be altered without, by implication, correspondingly altering the latter.1 Such is also the power which the provinces possess concurrently with the federal Parliament, under section 95, to make laws in relation to agriculture and immigration—a power which could be rendered practically inoperative by extensive federal legislation, but which could not be abrogated altogether. The federal power of disallowance of provincial statutes is one which pertains in the highest degree to provincial sovereignty. One might say that it nullifies it completely. Whatever may be the legal value of this contention which finds no ground in practice, the power is regulated by some provisions of the Constitution (sections 56 and 90 of the act of 1867), apart from constitutional conventions. For instance, it is exercisable only within a certain period of time. No change ought to be made in these provisions without the consent of the provinces since a limitation upon their J The federal powers are the exact complement of the provincial ones, and vice versa, since both together "cover the whole area of self-government." (Attorney-General for Ontario v. Attorney-General for Canada, [1912] A. C. 571, at pp. 581, 583-4.)

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sovereignty—and, therefore, their sovereignty itself—would be involved. Reference has already been made to the property rights of the provinces.1 One would hardly suggest, Mr. StLaurent said, that it might be proper to take these rights away from a province without its consent. This proposition derives logically from the principle of provincial sovereignty as defined by the Judicial Committee. Property rights set out in constitutional provisions such as sections 109, 110, 113, 117, of the Confederation Act, ought not, therefore, to be repealed or amended without provincial consent. The British North America Act, 1930, similarly deals with provincial property rights—those of the Western Provinces. The agreements sanctioned by this act can be amended in Canada by concurrent statutes of the federal Parliament and of the legislature of any province concerned. It would obviously be improper for the federal Houses of Parliament to attempt to override the provinces by seeking an amendment directly from Westminster without the required provincial consent. Section 118 of the Confederation Act and the provisions of the British North America Act, 1907, which are now substituted for them (inasmuch as they provide a minimum scale of federal subsidies to which the provincial governments are entitled) under definite terms,2 section 124 (respecting the continuation of the lumber dues in New Brunswick) and section 125 (exempting the federal and provincial property from taxation) also invest the provinces with rights which could not be touched without infringing upon provincial sovereignty. The territorial integrity of the provinces—the first attribute of sovereignty—is also safeguarded under the Constitution. Reference to the boundaries of the four original provinces of the Confederation is found in sections 5, 6, and 7 of the act of 1867. These boundaries as well as those of the new provinces were later dealt with from time to time in a number of documents. In 1871, provision was 1 Supra, 2

p. 156. See the explanations given supra, pp. 74-7.

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made in the Constitution for the alteration of provincial boundaries by act of the Parliament of Canada subject to the consent of the legislatures of the provinces affected.1 No one will doubt that any attempt by Ottawa to secure from Westminster, against the will of a province concerned, a change either in this provision of the British North America Act, 1871, or in provincial boundaries themselves would be most improper. Finally, if the consent of the provinces is thus required in certain cases of constitutional amendment, it ought to be similarly required to secure any of the following changes of a general nature: a total revision of the Constitution; the adoption of a new general amending process; the repeal or amendment of section 6 of the act of 1871 which provides that it shall not be competent for the Parliament of Canada to alter any of its own acts establishing new provinces. These constitutional changes could provide an open door for any specific amendment whatever. An attempt to secure any of them without the consent of the provinces concerned— in the first two, of all the provinces—would therefore constitute the most sweeping infringement of provincial sovereignty.2 Nothing has been said yet of provincial constitutions as dealt with in numerous provisions of the British North America Act, 1867, and of later constitutional documents. By virtue of section 92, item 1, of the original act, the amendment of these constitutions is a matter coming under the exclusive competence of the legislatures of the provinces. It would therefore be most improper for the Houses of Parliament of Canada to address the British Government with a view to a constitutional amendment in complete disregard of such an attribution of sovereignty. The office of Lieutenant-Governor is a matter excluded from this provincial power. But this restriction does not mean that the consent of the provinces is not required to secure an amendment to the provisions regulating such matter. On the contrary, a particular aspect of provincial self-government or provincial sovereignty is inJ See 2

supra, pp. 42, 53. No student of Canadian political institutions ever suggested, it seems, that a new amending process might properly be secured without the unanimous agreement of the federal and provincial governments.

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volved and no alteration of it by way of constitutional amendment ought to take place without provincial consent. It would seem, therefore, that each province holds the key to constitutional amendment in all these matters pertaining to its sovereignty as a body politic. This appears to be the position resulting from the terms of the Constitution—more particularly of the act of 1867—seen in the light of the Privy Council decisions and of the constitutional conventions now governing the relations between Canada and the United Kingdom. The problem of provincial consent was not always presented in this manner by the public men who were vested with the actual government of Canada since Confederation. But, whether they referred—usually in a cursory fashion—to the compact of Confederation, or to the status of self-government enjoyed by the provinces, they all agreed that the federal Houses of Parliament had no authority from any source to cause a constitutional amendment to be enacted at Westminster without the consent of the province whose rights, powers, or privileges might be adversely affected by the amendment. The statements of past Prime Ministers and Ministers of Justice of Canada collected in Appendix C of this book indicate clearly the line of thought maintained in this respect at Ottawa since the early years of the Confederation.1 It is true that between 1935 and 1940 Mr. Mackenzie King and some of his Cabinet colleagues, including Mr. Lapointe, have been reluctant to commit themselves openly to this old doctrine.2 But in 1943, 1946, and 1949, Mr. St-Laurent, as Minister of Justice, and as Prime Minister, removed any doubt that might have been entertained as a result of this reluctance, when he reaffirmed in Parliament3 the views which he had put forward, just over a decade earlier, as President of the Canadian Bar Association. Appendix C, infra, p. 292 ff. It was considered unnecessary to include in that already long appendix any of the numerous statements dealing exclusively with the necessity of provincial concurrence in devising a new amending process. Such a necessity is implied in nearly all the quotations given. Moreover, occasional reference to some of these express statements will be made in Chapter VIII. "See supra, pp. 106-8. 3 See supra, pp. 112-13, 119-20, 127, n. 2; see also Introduction, pp. xix, xxxvi.

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The constitutional practice since Confederation, on the other hand, is also fully in accord with the above principles. The first amendment affecting a province as a body politic was made in 18891 when the boundaries of Ontario were the subject of an act of Parliament at Westminster. At that time, the province of Ontario, as well as the federal Houses of Parliament, expressly requested the passing of the Act while, on the other hand, the British Government ensured that the territorial rights of the adjoining provinces of Quebec and Manitoba would not be affected by the measure.2 In 1907, the federal Houses and the federal Government requested from London the enactment of an amendment in spite of British Columbia's opposition, but the British Government gave way to one of the province's objections in deleting from the draft bill the words denoting finality despite Ottawa's insistence that they should be kept.3 By this amendment the fights of the provinces were affected in so far as they were enlarged by the increased scale of minimum federal subsidies to the provinces, a scale originally provided by section 118 of the Confederation Act and by provisions of subsequent constitutional documents which brought new provinces into the Confederation. But this increase of subsidies did not in any way impair the rights of the provinces or enlarge their responsibilities. The claim of British Columbia for a better "special treatment" was obviously not based on any constitutional right. Actually, the general object of the amendment—an increase of subsidies—was fully within the powers of the federal Parliament under the Constitution. Such an increase is an amendment only as a result of the procedure followed to achieve it—an act of Parliament at Westminster—of which the outcome was to make the increase irreducible save by further constil The previous British North America Act, 1871, dealt with a matter relating to provincial sovereignty in providing in section 3 that the boundaries of the provinces might be altered in Canada without reference to Westminster. This provision, however, far from bringing a change in the rights of the provinces, simply confirmed the necessity of securing the consent of any province affected by a proposed alteration of boundaries. The provisions of sections 2 and 6 of the Act, dealing with the creation and the status of new provinces, did not, of course, affect the sovereignty of the then existing provinces. "See supra, pp. 66-70. «See supra, pp. 78-83.

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tutional amendment. The act of 1907 is therefore an amendment of a peculiar kind. Provincial consent, then, could hardly have been required on the ground that provincial rights or responsibilities were truly affected. On the other hand, the words conveying finality which had been proposed by the federal Houses of Parliament might have been regarded—although this is very doubtful—as impairing the right which the provincial governments then possessed to have their financial claims reconsidered by the federal Government from time to time as the latter saw fit. But, since the contentious words were deleted in London, unanimous provincial consent could not have been required on that ground and, accordingly, it does not matter for our present purposes whether British Columbia finally agreed to the amendment or not. The British Government altered the federal proposal in so far as the latter might have affected the rights or privileges of the Government of that province. In 1930, when the Western Provinces were vested with full property rights over the natural resources within their respective boundaries, the necessary constitutional amendment was secured as a result of separate agreements reached between the federal Government and each of the provinces concerned.1 One year later came the Statute of Westminster —the first amendment ever to require the unanimous concurrence of the provinces with the federal Government. At first, the federal authorities maintained that the constitutional rights of the provinces were not affected by the proposed enactment and they accordingly intended to act exclusively upon the will of the federal Houses of Parliament. Nevertheless, the claim for federal-provincial consultation was met after the governments of some of the provinces represented that their rights "might be" altered as a result of the proposed Statute, which included a restatement of the procedure for amending the Constitution. The subsequent desire to remove provincial as well as federal legislation from the operation of the Colonial Laws Validity Act was a further reason for consultation with the provinces. Finally, the address of the Canadian Houses requesting the enactment of the Statute 'See supra, pp. 91-3.

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at Westminster was passed after the several provincial governments had reached a unanimous agreement with the federal Government.1 The only other instance of a constitutional amendment affecting the provinces as bodies politic—actually, the only instance of alteration ever made in the allocation of legislative jurisdiction under the Constitution—arose in 1940. Here again, the then nine provincial governments of Canada assented to the proposed change before the Canadian Houses were called upon to address His Majesty, in the usual manner, with a view to the enactment of the amendment at Westminster. The qualifying words then used by Mr. King, Mr. Lapointe, and others in Parliament, can hardly lessen the significance of the facts themselves—the long delay of months and years of inaction at Ottawa after the proposal of amendment was originally announced by the federal Government while, on the other hand, the unanimous consent of the provinces was still lacking.2 The significance of these facts is particularly striking when the amendment is seen in the general setting described in the above pages. One readily sees, now, that the necessity of provincial consent in certain cases of amendment is not based on assumed historical grounds, or on the "intentions" of the Fathers of Confederation, or on any notion of compact, or even on precedents as such. The several objections to the necessity of consent which are nearly all directed against one or another of these grounds need not, therefore, be specifically refuted here. The basis for the requirement of provincial consent is much stronger and more definite. It is, on the one hand, law proper—the constitutional enactments as interpreted by the courts—in so far as each province is thereby constituted as a body politic supreme within its own sphere and free from interference by the federal Houses of Parliament. The complement of this legal basis, on the other hand, is found in a most definite constitutional convention in so far as a province is in no way subordinate to the United Kingdom or its Parliament and is, therefore, subject to no 'See supra, pp. 98-103. "See supra, pp. 106-8.

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interference from this source. In short, the argument may be put in the form of a dilemma : any proposed constitutional amendment lacking provincial acquiescence could only be enacted, at Westminster, upon the assumed authority either of Westminster itself or of the federal Houses requesting its enactment. Both are denied, however, any such authority to deal with provincial sovereignty: in one case, by a definite and unchallenged constitutional convention ; in the other, by law proper confirmed by a uniform constitutional practice. It would seem, therefore, that no amendment in this category can be secured in a proper manner without provincial acquiescence.1 3 What is the situation, now, as regards amendments in matters not pertaining to provincial sovereignty? Is it within the power of the federal Houses of Parliament to address a request to Westminster without regard to the views of the provincial authorities? This aspect of the problem was not touched on by Mr. St-Laurent in his presidential address of 1931. But in 1943, 1946, and 1949, while reaffirming the necessity of provincial concurrence in matters affecting provincial sovereignty, he maintained that in all other matters the federal Houses of Parliament alone were competent to take a decision with a view to constitutional amendment. In answer to a question, he went so far as to say that "legally" the federal Houses had the power—the exclusive power—to decide as to the amendment or the repeal of section 133 of the Confederation Act which provides for the official use of both the English and French languages.2 It seems difficult to agree with this line of thought. Its basis, as inferred from the words of Mr. Mackenzie King and Mr. St-Laurent, amounts to this reasoning, in appearance simple: certain provisions of the Constitution deal with the rights and responsibilities of the provinces; others, with the rights and responsibilities of the federal Government and 'The effect of the British North America (No. 2) Act, 1949, on this situation is explained in the Introduction, supra, pp. xxvi ff. 2 See supra, pp. 112-13, 119-20, 127, n. 2. The reader should also refer to the Introduction of this book as to the effect of the British North America (No. 2) Act, 1949, on the situation described in this section of Chapter V.

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Parliament. Mr. Mackenzie King, in a letter to Mr. Duplessis, used the expressions "provincial rights" and "Dominion rights."1 "Subject to such action as may be taken by the Parliament of the United Kingdom," Mr. StLaurent explained,2 the Parliament of Canada is "the only body having been given jurisdiction," in 1867, in all matters regarding the central government; therefore, subject to such action as may be taken by the Parliament of the United Kingdom, the Parliament of Canada alone is competent to direct how the Constitution should be amended in regard to these matters. One will recall that it was not contended in the preceding pages that the provinces have an exclusive competence to request from the British Parliament amendments relating to their own powers, rights, or responsibilities. Such a contention might have logically called for the recognition of a similar power at the hands of Parliament at Ottawa in matters relating to the central government. But there is no ground for any such view, which, indeed, would lead to most fantastic conclusions. For instance, it would mean that the Quebec legislature might properly cause the English language to be abolished as an official language in the provincial legislature and courts by bringing about an amendment to section 133 of the Confederation Act mentioned above— for the status of the English language in Quebec as safeguarded by this constitutional provision is the exclusive responsibility of the Quebec provincial authorities (unlike the guarantees regarding education provided by section 93 of the Confederation Act). Furthermore, if the constitutional provisions relating exclusively to provincial government were "legally" alterable upon the exclusive request of the provincial legislatures, it would seem to follow that no action by the federal Houses is required in order to cause the Parliament of the United Kingdom to enact certain amendments to the Constitution of Canada—while convention does seem to require such action. The point was made in the previous section of this chapter that the provinces are sovereign within the area and subject l

Supra, pp. 113-14.

"See supra, p. 120.

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to the limitations established by the Constitution. This situation precludes the federal Houses from taking any action which would amount to an alteration of either this area or these limitations within which the provinces are sovereign masters. At the same time, however, the provincial legislatures are incompetent to take any action which would amount to an alteration of either this area or these limitations which are the very limits of their sovereignty. Obviously, a limited power does not include the power to remove the limitations imposed upon it. This would be a contradiction in terms. Similarly, the sovereignty of the federal Government and Parliament is limited by an area of jurisdiction and by a number of constitutional provisions setting down that certain matters be dealt with in a certain manner. Again, such a limited sovereignty can hardly serve as a basis for any action amounting to an alteration of the limits imposed on that sovereignty. "Law," therefore, as resulting from the terms of the Constitution, does not provide the grounds for any unilateral action by the federal power with a view to constitutional amendment—despite the latter's contention to the contrary in 1943 and 1946. If such grounds exist, they must be found—as indeed, the basis of any process of unilateral or multilateral action must be found—outside the scope of law proper. In approaching this problem, one is tempted to consider the federal character of the Constitution of 1867 and of present-day political institutions as evolved out of that original document. The Constitution complied with an essential principle of federalism in withholding from the central legislature any general power of constitutional amendment. This feature of the Canadian Constitution is particularly significant in view of the general power of amendment expressly granted to the provinces as regards their respective constitutions—partly provided for in the Confederation Act itself—while the federal Parliament was given the power to amend only a few specified provisions relating to the central government.1 On the other hand, though fully willing to ^See supra, pp. 36-7.

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respect the fundamental character of Canadian political institutions, one may contend that many provisions of the Constitution dealing with the internal machinery of government at Ottawa have little or no relation at all with federalism. Such are, for instance, the sections of the Confederation Act providing that the privileges, immunities, and powers of both Houses of Parliament shall be determined by Parliament itself subject to certain restrictions (section 18) ; that there shall be a session of Parliament once at least every year (section 20) ; that a senator shall not be capable of being also a member of the House of Commons (section 39) ; that twenty members shall constitute a quorum of the House of Commons (section 48) ; that the maximum life of each House of Commons shall be five years (section 50). Such provisions might be found in any sort of Constitution, whether federal or not, and they are in no way designed as guarantees to provincial communities as such. Accordingly, Canadian statesmen generally regarded them, in the past, as alterable at Westminster upon the will of the federal Houses of Parliament alone.1 This view is in line with the British doctrine of parliamentary sovereignty, and there does not appear to be any serious objection to the application of this doctrine to Canada. Moreover, the practice followed up to now confirms that view of the constitutional position. The list of past amendments includes only three cases where no feature of Canadian federalism was involved. In 1875, section 18 of the Confederation Act respecting the privileges, immunities, and powers of both Houses of Parliament was replaced by a new section; in 1895, provision was made for a Deputy-Speaker of the Senate; in 1916, the life of the existing House of Commons was extended for one year. All these amendments were secured upon the sole request of the federal power, without any question or suggestion of provincial participation in the process.2 To-day, the propriety of this procedure is almost universally acknowledged ^his view appears either expressly or by implication from almost all the statements in Appendix C, infra, pp. 292 ff. "See supra, pp. 60, 72-3, 90-1.

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in Canada and, no doubt, any Government and Parliament at Ottawa would follow these precedents.1 The situation is different as regards aspects of the central government machinery which relate to the federal character of the State. This heading covers the constitutional provisions which established or safeguarded certain rights or privileges in favour of provincial communities as distinct from the people of Canada as a whole. Thus, when the Constitution provided (sections 51, 5lA, 52) that the total number of seats in the House of Commons should be apportioned among the provinces of Canada under certain rules,2 it created a right in favour of each provincial community. This right has nothing to do with provincial government. On the contrary it relates only to the central government. Nevertheless, it was provided in favour of each province in the right of its separate entity as a geographical and social unit. The rules governing the composition of the Senate (as provided by the amendment of 1915 which superseded sections 21, 22, 26, 27, 28, and 147 of the Confederation Act) similarly safeguard a right of representation by provinces and by geographical regions. It may be doubted whether the provisions respecting the mode of appointment of senators and their tenure of office (sections 24, 29, 32) should be similarly regarded as safeguarding regional interests. It seems reasonable to say, however, that in view of their link with the above provisions they should not be considered separately. The provision that there shall be two Houses of Parliament (section 17) and the provision relating to the decennial census (section 8) are essential corollaries of the provisions respecting the composition of the Senate and of the House of Commons 'The amendment of 1907, in so far as it increased the liabilities of the federal Government towards the provinces without impairing the rights or enlarging the responsibilities of the latter (see supra, pp. 165-6) might be considered as coming in this category. In such a case, the provincial consent which was sought by the federal Government before that amendment should not be regarded as invalidating the above rule. That consent was not sought as a prerequisite to an increase of the constitutional liabilities of the federal Government, but as a means of reaching a final settlement—either in law or only morally. As seen earlier, this object failed. "The territories not included in any province were also given representation, though on different bases, under the British North America Act, 1886.

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and they accordingly created rights in favour of the provincial communities. Another constitutional provision which concerns the several provincial communities as separate and distinct units is found in section 121 of the Confederation Act. Under this section all articles of the growth, produce, or manufacture of any province shall be admitted free into any of the other provinces. Section 97 of the Confederation Act provides that until the laws relative to "Property and Civil Rights" in Ontario, Nova Scotia, and New Brunswick, and the procedure in the courts of these provinces, are made uniform, the judges of the courts of these provinces appointed by the federal government shall be selected from the respective Bars of these provinces. Section 98 provides that the judges of the courts of Quebec shall be selected from the Bar of that province. These provisions are further instances of rights guaranteed to individual, provincial communities although they relate to matters within federal jurisdiction. In this last instance, however, there is ample ground to argue that these rights were extended to the provinces as bodies politic to ensure that their laws should be interpreted by persons sufficiently familiar with their legal systems. These provisions should, then, be considered to be as unalterable without provincial concurrence as any of the provincial rights mentioned in the preceding section of this chapter. The situation is slightly different in respect to what are generally called minority rights. As already seen,1 section 93 of the Confederation Act respecting the rights of confessional minorities in matters of education ought not to be amended without the concurrence of the provinces since limitations upon provincial sovereignty are involved. Similarly, the provision of section 133 respecting the status of the French and the English languages in Quebec ought not to be altered without the concurrence of Quebec. The status of the two languages in the federal sphere, however—a status also safeguarded by section 133 of the original act— has no connection with provincial government in Quebec. 1

Supra, p. 161.

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Moreover, the constitutional guarantees respecting the French language should be considered as extended to the Frenchspeaking minority of Canada as a whole. It may be safely assumed, however, that such guarantees would not exist if French was not the language of a majority in at least one of the provinces. Accordingly, one has been accustomed to consider the Quebec provincial community—and the Quebec provincial community has been accustomed to consider itself—as being the main force behind the whole Frenchspeaking minority of Canada. It does not seem improper, therefore, to consider the provision of section 133 respecting the French language in the federal sphere as a guarantee extended primarily—though far from exclusively—to the Quebec provincial community. It is agreed that these several fundamental rights—rights of representation upon a certain basis, rights respecting the language, etc.—are not enjoyed by the provinces as sovereign political units but only as distinct geographical and social units within the Confederation. The political entity provides a legal argument against any encroachment of the rights concerning provincial government, while the geographical and social entity does not provide any such argument respecting the other rights of the provincial communities. But these are only different ways of considering single communities within single sets of boundaries and with single historical backgrounds. They are only different ways of extending to the same people rights equally fundamental. One might even argue that the rights relative to representation in Parliament and those relative to the language are more important than most of the rights relative to provincial sovereignty considered individually. Although the consent of the provinces is not required by law whenever a constitutional change is proposed in respect to representation in Parliament or to minority rights, the nature of the constitutional guarantees concerning these rights would seem to preclude the people of Canada as a whole—or their representatives—from acting without regard to the views of the respective communities affected by the change. It is not a question of whether the Confederation Act is

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really in the nature of a compact or not. What one should keep in mind is that the final Confederation scheme was the result of long negotiations in which the four original provinces each had a distinct voice and in which the Colonial Office and the British parliamentary draftsmen had, towards the latest stage, a decisive word. The scheme came into being through an act of Parliament of the United Kingdom which provided for a central government in Canada subject to definite conditions. Thus the Parliament of the United Kingdom, by its own action but only after hearing the views of all interested parties and mostly in accordance with these views, safeguarded the provincial communities against a simple majority vote at Ottawa which might have affected provincial rights of representation in the federal Parliament or other rights mentioned above. To-day, Parliament at Westminster has no longer any right of supervision or any final word in Canadian affairs. But this development in Commonwealth relations would not warrant, it seems, a federal assumption of exclusive authority to deal with fundamental rights extended to the provincial communities— rights which were so carefully safeguarded in the Constitution against any unilateral action by Ottawa. One might object that the Constitution does not provide any means for allowing the provincial communities to express their respective opinions in these matters, either directly (by referendum) or by competent representatives. The Constitution provides only two ways for the expression of the people's will in Canadian politics: federal elections and provincial elections. The first afford no means of expressing, and still less of pressing, the views of the respective provincial communities as such, since the representatives thus chosen become individual members in a national assembly and in no way members of a provincial group which would be heard and would vote as the single voice of a provincial community.1 "Attention might be called, in this respect, to section 80 of the British North America Act, 1867, which provided that the Legislative Assembly of Quebec shall be composed of 65 members to be elected to represent the then 65 electoral divisions of Lower Canada subject to alteration by the Legislature of the province. There was a proviso, however, "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

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In provincial elections, on the other hand, the representatives chosen are entrusted with the government of the provincial state, and not with matters concerning the general government of Canada—although the latter may involve guarantees given to a province as a geographical and social unit. Of these two objections the second is only technical. Constitutionally, it is true that a provincial government and a provincial legislature are entrusted only with the government of the provincial body politic. De facto, however, they are in a position—and they are the only bodies provided by the Constitution which are in such a position—where their voice on any matter concerning their province as a distinct entity (whether political or otherwise) within the Confederation might be considered as the voice of the province on such matter. This de facto situation was generally recognized by the leading public men of Canada up to 1943, and it was accordingly taken for granted that the provincial governments ought to have their say in the amendment of the constitutional provisions relating to representation in Parliament or to minority rights, although the necessity of provincial concurrence in amendments of this category was not discussed as often as the necessity of provincial concurrence when the sovereignty of the provinces is involved. With regard to representation, Laurier and Borden both expressed themselves most clearly while other public men used general terms from which the same line of thought may be inferred.1 As recently as 1932, when suggestions were made with a view to amending the system of redistribution of seats provided by section 51 of the act of 1867, Mr. Lapointe and other members of Parliament urged that the question be put before the provincial governments at to this Act [divisions which had a majority of English-speaking population], unless the Second and Third Readings of such Bill have been passed by the Legislative Assembly with the Concurrence of the Majority of the Members representing all those Electoral Divisions or Districts [italics added] 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." It has never been suggested publicly—though I have heard it suggested in private conversation—that such a scheme of voting by regional groups might be used in the House of Commons in connection with certain constitutional amendments affecting regional interests. 'See Appendix C, infra, pp. 292 ff.

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the federal-provincial Conference which it was then proposed to call.1 A similar attitude was taken about the question of Senate reform—a question which was actually submitted to the federal-provincial Conference of 1927.2 As regards alterations to minority rights, the undoubted necessity of unanimous provincial concurrence was the subject of numerous and most emphatic statements. Apart from referring to Appendix C to this book, one may recall, here, the words used in this respect by Norman McL. Rogers -—generally a stout opponent of any doctrine of unanimous provincial consent—when he was a member of the federal Cabinet. Speaking of minority rights, he said : "Those rights, after all, are grounded anciently in the treaty of Paris, in the Proclamation of 1763 and in the Quebec Act. They are inviolable. They at least are the basis of the partnership; they at least may be expressed in terms of a compact. . . . With respect to them I believe there is the strongest possible case for requiring unanimous consent."3 Up to now, no amendment has been made or sought in respect to minority rights. As regards parliamentary representation, on the other hand, a number of changes were secured and the practice here is not in accord with the above line of thought. The first case arose in 1871, when the federal Parliament was expressly empowered to create new provinces and to give them representation both in the Senate and in the House of Commons. The amendment was requested by Ottawa without any consultation with the provinces and without any claim to such consultation being expressed by the provincial governments. The House of Commons declined to endorse David Mills's resolution that any alteration of the principle of representation as determined by sections 51 and 52 of the Confederation Act without the consent of the several provinces would be a violation of a fundamental principle of the Constitution.4 The federal *Can. H. of C. Debates, 1932-33, pp. 1592-3. "See: Can. H. of C. Journals, 1925, pp. 6-7, 105; Can. H. of C. Debates, 1925, pp. 911-57; Can. Senate Journals, 1925, pp. 113, 340; "Précis of Discussions, Dominion-Provincial Conference, November 3 to 10,1927," Can. Sessional Papers, 1928, No. 69, pp. 6, 10-11. 3 Can. H. of C. Debates, 1938, p. 1185. See also Can. H. of C. Debates, 1939, 4 p. 1136. See supra, p. 57.

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attitude and the provincial indifference are largely explained by the fact that the enactment of 1871 was generally not regarded, at that time, as extending new powers to Ottawa, but simply as removing doubts in respect to powers said to be already implied in the Constitution. Indeed, no one could have expected new territories to become part of Canada, as expressly provided for by the act of 1867, without being entitled to representation in Parliament.1 In 1886, a new enactment supplemented the amendment of 1871 by providing that the territories not included in any province could also secure representation in both Houses at the discretion of Parliament itself. No reference was made to the provincial governments.2 It cannot be doubted that both these instances of amendment weigh heavily against the necessity of federal consultations with the provincial governments before any change in the constitutional provisions relating to parliamentary representation. On the other hand, they can hardly serve as precedents to refuse any constitutional competence to the provinces to express their opinions or even to oppose a proposed amendment, since the provincial governments may be said to have then acquiesced in the amendments. Moreover, these amendments did not alter, in absolute terms, the representation of the original provinces, but simply added to it in order to give representation on more or less the same basis to the new provinces and territories. The next amendment relating to representation in Parliament was made in 1915. It dealt first with the composition of the Senate. This reform was never discussed with the provincial governments; no claim for provincial consultation was ever made by the provinces or in the federal Parliament. An explanation for this provincial inaction was given earlier in this study; the objects of the reform were largely within the constitutional powers of Ottawa and, at the same time, the scheme provided for in 1867 Avas kept as the basis of the new one.3 With regard to the second part of the 1915 amendment, the provision entitling a province to a minimum 'See supra, pp. 52-3. See supra, pp. 60-2.

2

'Supra, pp. 84-5.

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representation in the House of Commons equal to its representation in the Senate, the situation was different. For many years, the federal Government had refused to take any such action without first obtaining the views of the provinces. Steps were only taken—and with the greatest circumspection1—after an interprovincial conference called to consider the problem of the representation of the Maritime Provinces in the House of Commons had declined to take any action, although it showed a good deal of sympathy with their particular situation.2 No provincial opposition to the amendment was ever voiced.3 Such was the situation in 1943 when a further proposal for amendment concerning parliamentary representation was put forward by the federal Government. Because the provinces, through their respective governments, had never felt aggrieved by any of the federal proposals of amendment, they had never claimed the right to have their say in devising the proposed amendments or in deciding on them. On the other hand, it seems that it was generally taken for granted in high political circles at Ottawa that no amendment in this category would be pressed against the will of any provincial government, particularly if the province objecting was adversely affected by the proposal.4 The federal Government took a different view of the question in 1943 when it was decided to postpone until after the war the redistribution of seats due to take place after the decennial census of 1941. No regard was paid to the unanimous protest of the Quebec Legislative Assembly against the proposed amendment, which deprived the province, for a certain time, of its proper proportion of seats in the House of Commons. Moreover, for the first time, a Government at Ottawa felt it proper to justify such a course by laying down a general principle. In its view, a provincial legislature was totally incompetent to speak on behalf of its own provincial community whenever the matter involved ^his is a reference to Sir Robert Borden's own words quoted supra, at p. 86, and to the hearing of Prince Edward Island's provincial authorities before the Select Committee of the House of Commons which recommended the constitu2 tional3 amendment. (See supra, p. 87.) See supra, p. 86. 4 See supra, p. 88, particularly n. 10. See supra, pp. 176-7.

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was one relating exclusively to the machinery of central government. The Minister of Justice, Mr. St-Laurent, maintained that "in respect of matters concerning representation in this House" the Government and legislature of a province "are merely electors, and are represented here by members of Parliament who have been elected by them and by the other electors of the respective constituencies in which they have their homes."1 He based his views on socalled legal grounds which have been examined in previous pages.2 In 1946, after saying that the Parliament of Canada "can deal" with minority rights as well as with parliamentary representation and any other matter not pertaining to provincial sovereignty "without requesting the consent or submitting to the superintendence of any provincial legislature,"3 Mr. St-Laurent developed the theme that Parliament ought to be guided in these matters by what is "fair," what is "just," what is "proper according to the standards of human decency."4 Although the question was not put in the House of Commons, one may wonder if, in the absence of any legal provision governing the matter, and in view of the political structure of Canada and of its historical background, it would not be "fair" and "just" and "proper according to the standards of human decency" that a provincial community be allowed to express its views in the right of its separate entity before any fundamental rights guaranteed to it by the Constitution are modified or abolished. The amendment of 1946 which altered the basis of representation in the House of Commons passed unopposed by any provincial government. The Quebec Government asserted that no such step should be taken without first securing the views of the provinces and it protested against the process followed by the federal Government and Parliament. But no objection was taken to the substance of the amendment. Moreover, no protest of any nature came from the Government of the province of Ontario—the province most adversely 'See supra, p. 113. See supra, p. 168 ff. "Can. H. of C. Debates, 1946, p. 2621. 'Ibid., p. 2622.

2

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181

affected by the change.1 Nevertheless, the case has some value as a precedent since the federal Government, on this occasion, strongly reaffirmed the general doctrine put forward in 1943, and defended it against persistent attacks from the Opposition in the House of Commons. In 1949, when Newfoundland was brought into the Confederation by means of a constitutional amendment, the provinces were not consulted, despite an Opposition request in the House of Commons2 that they should be consulted. This amendment has some bearing on the issue now under study only in so far as the Terms of Union departed from the provisions of the British North America Act, 1867. Under that act, it was competent for the federal Houses of Parliament, without reference to the provinces, to consent to the union of Newfoundland with Canada under any terms and conditions, subject to the provisions of the act of 1867. The fact that the union was effected by legislation at Westminster instead of by an order of the King-in-Council is only a technical point which should not be taken as making the federal Houses less competent to act alone on behalf of Canada. The departures from certain provisions of the Confederation Act, however, are points of substance which raise the issue of the assumed exclusive competence of the federal power. The departure respecting provincial jurisdiction over education in Newfoundland did not affect any of the powers, rights, or privileges of the other provincial communities of Canada either as self-governing political entities or as distinct geographical and social units within the federal State. On the basis of the argument developed in the previous pages, such a departure from the terms of the Confederation Act would not have afforded any ground to support a provincial claim for consultation before action by the federal Houses of Parliament. The departure from section 121 of the Confederation Act in setting restrictions on the free movement of oleomargarine from Newfoundland into the other provinces of Canada might have been considered a matter of concern to the 1 Se& 2

supra, p. 119. See supra, pp. 126-7.

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several provincial communities as such1—although, of course, it did not affect the then existing rights or privileges of those communities. In proceeding to the amendment in that respect on its exclusive authority, Ottawa acted simply in accordance with Mr. St-Laurent's doctrine that the federal Houses alone are competent whenever provincial self-government is not involved. The situation as it stands to-day with respect to constitutional provisions relative to parliamentary representation, minority rights, and other rights or privileges of provincial communities as distinct geographical and social units may now be summarized in a few lines. The federal exclusive power to request amendments from Westminster—a power resulting entirely from convention, and in no way from law proper—is not restricted either in law or by a positive constitutional convention. Moreover, a practice of action by the federal Houses without the active co-operation of the provincial governments, and even in disregard of any opposition from that source, has been built up upon a fair variety of cases within the subject matter of representation. The views expressed by the authorized spokesmen of the federal Government in 1943 and 1946 in relation to the procedure which was then followed to secure amendments—views which were reiterated in later years by Prime Minister St-Laurent and members of his Cabinet—give to that practice a binding force which one can hardly escape from acknowledging.2 Nevertheless, the moral grounds in support of some form of provincial participation in securing amendments in this category have not lost their value and ought still to be taken into consideration—particularly when a general amending machinery is to be devised. 4

Whenever the express consent of a province is required, how should it be given? Is the provincial Government a competent body to express it? Or should the consent come from the legislature? >See supra, p. 173. 'The reader is reminded to refer to the Introduction of this book as to the effect of the British North America (No. 2) Act, 1949, on this situation.

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This question has never been the subject of much consideration and no uniform practice has been built up. In 1889, when the boundaries of Ontario were dealt with, the province extended its consent through its LieutenantGovernor-in-Council. However, the Ontario Government expressly stated that this method was not the most proper; it justified its action on grounds of urgency—the legislature not being in session—and in view of the legislature's approval, which could be inferred from earlier resolutions on the subject.1 The consent of the provinces in 1907 is of little interest, since the amendment of that year required no provincial consent. It may be recalled, however, that this consent was extended by the representatives of the provincial governments assembled in conference.2 The amendment of 1930 respecting the natural resources of the Western Provinces was passed as a result of agreements reached between the Government of Canada and the Government of each province concerned and subsequently approved by the respective legislatures of these provinces.3 A year later, the clauses of the proposed Statute of Westminster were agreed to by the provincial premiers assembled in special conference at Ottawa. No confirming action was taken by the legislatures.4 The last amendment to involve the participation of the provincial authorities was that of 1940, which transferred unemployment insurance to federal jurisdiction. Provincial consent to the specific proposal of amendment submitted by Ottawa was extended through letters of the respective provincial premiers to the Prime Minister of Canada.5 One may therefore conclude that constitutional practice is satisfied by mere executive action whenever the consent of a province is necessary. The propriety of this process may be seriously questioned. If it is improper for the federal Government to take steps in constitutional matters without the concurrence of Parliament, it would seem equally improper for a provincial Government to take a similar action without the concurrence of the provincial legislature. It must be recognized, however, that 'See supra, p. 67. "See supra, pp. 92-3. 6 See supra, pp. 106-7.

2

See supra, p. 78. 'See supra, p. 102.

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the implications of a mere executive action are not identical in both cases. If the federal Government were allowed to secure constitutional amendments without previous action by Parliament, the country might suddenly be faced with a fait accompli. When the provincial governments, on the other hand, agree to a federal proposal without first consulting their respective legislatures, the question involved cannot have been kept secret so easily. Public opinion in a province most probably has had time to oppose the federal scheme and even to press for its consideration by the legislature. Yet this situation should not be regarded as lessening the need for the establishment of a definite practice of legislative action—either by an act or by a resolution. Under responsible government, the powers of a "supreme" legislature and, more generally, the fundamental law of a province, are not matters to be altered without the consent of such legislature—or of the people, should there be any machinery for a direct reference to it. The power of constitutional amendment is not administrative in character and is not properly to be exercised by an executive unless expressly delegated to it. Moreover, action by the legislatures is the procedure expressly set down in the Confederation Act1 to amend the constitutions of the provinces. It seems only proper that the same procedure be followed whenever a province is called upon to concur with any other legislative body, in Canada, in a proposed alteration of the fundamental law as embodied in the federal Constitution. 'Section 92, item 1.

CHAPTER VI

THE ROLE OF THE BRITISH PARLIAMENT WE have already seen that no action may be taken at Westminster without a previous request from Canada.1 It would seem that the British Parliament is also bound by a positive duty to act in accordance with any such request which is properly made. Furthermore, this duty involves important responsibilities which should not be overlooked. Among the several addresses for the purpose of constitutional amendment passed by the Canadian Houses of Parliament since 1867, only one was not immediately acted upon in London. This instance dates from as late as 1920, when the federal Parliament tried to secure the express power to give an extra-territorial effect to its legislation.2 This question was of Common wealth-wide interest and was finally settled by the Statute of Westminster as a result of the Imperial Conferences of 1926 and 1930. The present constitutional position, however, under which the Parliament of the United Kingdom is bound to enact any amendment to the Canadian Constitution properly requested by the people of Canada, cannot really be deduced from precedents. It is the result of the long but steady development of the selfgoverning status of Canada—and, as well, of the other member states of the Commonwealth—a development which culminated in the declarations of 1926 and 1929-30 and, to a certain extent, in the Statute of Westminster. The history of this long development need not be recalled, however, in order to determine the position as it exists to-day. This position was defined in a few words in 1925 by Prime Minister Mackenzie King. "The convention governing the amendment of the Canadian constitution to-day," he said, "is that whenever the people of Canada proceed in a constitutional way to ask the British parliament as their agent— 1 Supra, 2

pp. 136 ff. Can. H. of C. Journals, 1920, pp. 443, 493; Can. Senate Journals, 1920, pp. 372-3, 408-9. 185

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because it is practically as their agent that they ask the British parliament to do this—to amend the constitution in a particular way, the British parliament will always proceed so to act in accordance with that request."1 This statement, made when the Canadian address of 1920 had not been acted upon in London, may appear to be a simple assertion rather than a true statement of the constitutional position. Yet the Imperial Conference of the following year was solemnly to confirm this view in proclaiming that Great Britain and the Dominions "are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs... ."2 These words and the rest of the Balfour Declaration provided only the general principle underlying Commonwealth relations. Their full implications and the means of translating them into practice were studied in 1929 by the Conference on the Operation of Dominion Legislation. The recommendations of this Conference respecting Canada included the proposal to remove federal legislation from the operation of the Colonial Laws Validity Act.3 The similar removal of provincial legislation from this fetter was held to be a matter for consideration by the proper authorities in Canada.4 A federal-provincial Conference eventually agreed to it in April, 1931.5 Both these recommendations were given effect, a few months later, in the Statute of Westminster.6 At the same time, however, the power of constitutional amendment was specifically excluded from the new powers extended to the several legislative bodies of Canada. Should this restriction be regarded as an acknowledgement, both by Britain and Canada, that the constitutional status of Canada with respect to constitutional amendment was not one of full autonomy? Should this restriction in the Statute of Westminster be regarded as a qualification of the Declaration of 1926 after investigation by the Conference of 1929? 'Can. H. of C. Debates, 1925, p. 333. ^Imperial Conference, 1926, p. 14. ^Report of the Conference on the Operation of Dominion Legislation, 1929, par. 50-3. *Ibid., par. 71. See supra, pp. 97-8. "See supra, p. 102. «Sections 2 and 7(2).

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This question ought to be answered in the negative. Nothing in the Report of 1929 or in the Statute of Westminster justifies such a construction. The Conference of 1929 took for granted, at the outset of their proceedings, the principles involved in the Balfour Declaration. They "considered their task to be merely that of endeavouring to apply the principles, laid down [in 1926] as directing their labours, to the special cases where law or practice is still inconsistent with those principles."1 The withholding of the power of constitutional amendment from the Canadian legislative bodies may indicate, therefore, an inability or an unwillingness to translate fully into law the constitutional status of the Canadian "community."2 But it cannot be regarded as a partial repudiation or a qualification of this constitutional status which the Conference of 1929 took for granted. Why, then, withhold in law a power which is said to exist by convention? The reason is simple: Canada had a federal Constitution.3 Neither the federal Parliament nor the provincial legislatures individually were competent to cause constitutional amendments to be enacted. In a number of cases, concurrent action by the federal power and by the provinces was required—as seen in the previous chapter. On the other hand, there seems to have been a lack of agreement in Canada about which specific cases of amendment required the concurrence of the provinces with the federal Houses of Parliament and which did not. Moreover, a number of Canadian public men considered the rule requiring the unanimous concurrence of the provinces, as described4 in section 2 of Chapter V, to be too rigorous, and were unwilling to give it permanence by laying it down in a statute. In addition to these reasons which subsist to-day, it seems that at the time of the Imperial Conferences and of the Statute of Westminster the legal supremacy of the British Parliament still extended to a number of Canadians a feeling of security against constitutional changes at the *Report of the Conference on the Operation of Dominion Legislation, 1929, par. s15. The word is quoted from the Balfour Declaration. See supra, p. 186. ^Report of the Conference on the Operation of Dominion Legislation, 1929, par. 62-3. 'Supra, pp. 155 ff.

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mere will of a majority either at Ottawa or among the provinces.1 Under these circumstances, the Report of 1929 simply acknowledged that "the question of alternative methods of amendment was a matter for future consideration by the appropriate Canadian authorities."2 Later, the Statute of Westminster safeguarded the status quo by specifically excluding the amendment of the Constitution from the new powers extended to the Parliament of Canada and to the provincial legislatures.3 As a result of these developments, the British Parliament is now in the following position. On the one hand, by the Balfour Declaration it acknowledges the "equal status" of Canada with the United Kingdom and, therefore, the right of the Canadian "community" to secure any constitutional amendment which it desires; on the other hand, by the Statute of Westminster the British Parliament expressly consents to remain as the only legal instrument of amendment of the Canadian Constitution. If this legal position is to be reconciled with the constitutional position, as it must be, one must recognize that the British Parliament is bound to act as an instrument of amendment, without interference on its part, whenever it is requested to do so by the Canadian "community." The British Parliament is bound not to interfere in Canadian politics either by its positive action or by withholding the use of its parliamentary machinery which it has consented to maintain as the only instrument for the amendment of the Canadian Constitution. This position under which the British Parliament simply carries out the Canadian wishes implies that the constitutional amendments enacted at Westminster must be in the exact terms agreed to in Canada. Although all amendments to the Constitution of 1867 were based upon a Canadian request setting down the objects in view, it is only since 1915 that a proposed amending act to be passed at Westminster is drafted in Canada and submitted as such to London.4 This latter practice was in force in 1926 and was 'See infra, pp. 226-9. «Par. 63. 'Section 7(1). 4 See supra, pp. 89-90.

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fully in accord with the principles of the Balfour Declaration. In 1940, 1943, and 1946 minor changes in the drafting of the proposed amending acts were made at some stage after the passing of the addresses in the Canadian Houses of Parliament and before the introduction of the bills in the British Parliament. In the first of these three instances the British Government (on the recommendation of its parliamentary draftsmen) made these changes without securing the approval of the Canadian Government,1 which is hardly in accord with the fundamental principles governing the relations between Canada and the United Kingdom. In the other cases, Canadian approval was first secured.2 That position, however, does not preclude the British authorities from looking at the drafting of the proposed amending acts to ensure that it is appropriate to an act of Parliament of the United Kingdom. If Canada is content to use the United Kingdom parliamentary machinery for its own purposes, it must accept the rules governing that machinery. This situation explains that the proposed amending acts drafted in Canada and approved by the Canadian Houses are subject to scrutiny by the British parliamentary draftsmen. As a result of this examination, slight changes might be suggested and consultations between London and Ottawa might be necessary. This is the manner in which the drafting modifications of 1943 and 1946 have occurred— with the approval of the Canadian Government, but without reference to the Canadian Houses.3 Such action by the federal executive without the sanction of the Houses may have been dictated by the circumstances in view of the unimportance of the changes involved. Yet, it is an anomaly hardly in accord with the rule of parliamentary rather than of simple executive action at Ottawa as a prerequisite to constitutional amendment. 4 Since the Declaration of 1926, public men both in Britain and in Canada always readily recognized that it was the duty of the United Kingdom Parliament to enact any 'See supra, pp. 108-9 See supra, pp. 117,120. As regards the 1949 (No. 2) amendment, see Introduction, supra, at pp. xxiii-xxiv. *Supra pp. 117, 120. "See supra, pp. 145 ff. 2

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constitutional amendment properly requested by Canada. A point which was less emphasized and which was never precisely defined is the responsibility attached to this duty— the responsibility to ensure, before acting upon any request of amendment, that such a request is proper. Indeed, if the "equal status" of Canada and the United Kingdom means anything, the British Parliament ought to entertain only requests from the Canadian community which are expressed through constitutional means. This principle was established long ago and received a new and most formal sanction as lately as 1935 when Westminster refused "to receive" the Petition of the State of Western Australia on grounds already examined.1 The Joint Committee of the House of Lords and the House of Commons then appointed to consider the Petition reported that "to receive" it indeed would not be outside the competence of Parliament "in the strict legal sense. But it would be outside its competence, if the established constitutional conventions of the Empire are to be observed, as observed they must be."2 The attitude of the British Parliament on this Petition shows without possibility of doubt that whenever the British Parliament or Government are in receipt of a petition from a Dominion they feel bound to determine first whether, in view of the object involved in each particular case, the petition is brought before them constitutionally.3 It was seen in Chapter IV that Westminster would most probably not enact any amendment to the Constitution of Canada without a request from the federal Government.4 This rule is recognized by all constitutional writers in Canada. Some add, however, that the British Parliament would require no more than this request. The previous approval of the federal Houses as well as the concurrence of the prov*See supra, p. 144. *Report by the Joint Committee of the House of Lords and the House of Commons on the Petition of the State of Western Australia (London, 1935, H. L. 75), p. x. 'The above Report on the Petition of Western Australia dealt with a petition addressed to the British Houses of Parliament while the Canadian requests of constitutional amendment always took the form of an address to the King (see supra, p. 150), a process which amounts to petitioning the Government. Yet, the constitutional conventions which are binding upon Parliament in its relations with the Dominions ought to be equally binding on the Government. *Supra, pp. 138-44.

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inces (in certain cases) might be requirements binding upon the Canadian Government; but should the latter decide to disregard them, Westminster would not be competent to interfere with this decision and to press the fulfilment of the other requirements.1 The contention that the British Parliament would be content with a request from the Canadian Government without any previous action by the Canadian Houses of Parliament is grounded on nothing but a mere feeling. There is no legal argument or convention in its support. There is not even a single precedent in this century. The two amendments of 1875 and 1895, where no previous parliamentary address was passed, were enacted in special circumstances which stress that these amendments were exceptions to a general rule—exceptions no longer possible to-day.2 On the other hand, how could one speak of equality of status between Canada and the United Kingdom and yet allow Westminster to amend the Constitution of Canada upon a request which does not satisfy the constitutional requirements set down by the Canadian community? And, is there a conventional rule more firmly established in Canada than that requiring parliamentary action before the federal Government may request a constitutional amendment from London?3 More emphasis is generally put on the second contention— the contention that Westminster is not constitutionally competent to look behind a federal request at the wishes of the provincial governments. Here again the "equality of status" would seem to preclude the British Parliament from enacting any amendment to the Constitution of Canada unless the prerequisites set down4 in Chapter V are satisfied. But to determine the present position, this general principle 'Among recent writings see J. A. Corry, Democratic Government and Politics (Toronto, 1946), pp. 31, 374. s See supra, pp. 145-6. 'See supra, pp. 145-8. In 1935, the Joint Committee of the Lords and Commons on the Petition of Western Australia pointed to the lack of "a general demand by the citizens of the Commonwealth, constitutionally expressed in the Commonwealth Parliament and transmitted by the Commonwealth Government" (Report, p. viii). This statement seen in its context might be regarded as an indication by the British Parliament itself that nothing short of a parliamentary address would be considered a proper request for constitutional amendment. *Supra, pp. 153 ff.

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should be seen in the light of certain events of constitutional importance. It would appear, in the first place, from the statements made in the British House of Commons at the time of the enactment of the 1940, 1943, and 1946 amendments,1 that the British authorities do not actually look behind the requests of the Canadian Houses and that, on those three occasions—the only ones subsequent to the enactment of the Statute of Westminster apart from the 1949 amendment respecting the union of Newfoundland to Canada2—they considered their role upon such requests to be purely automatic. Indeed, the language used to this effect by Mr. Attlee, in 1943, could not have been clearer. This attitude indicates, it seems, a total disregard of the constitutional position of Canada as described in Chapter V and is, therefore, hardly in accord with the declaration of equality of status to which the United Kingdom was a party. As a non-Canadian scholar puts it, "it is obviously a matter of importance that . . . the United Kingdom Parliament should be careful not to permit itself to become the agent of the Dominion alone."3 There is still time for Whitehall and Westminster to recognize their true constitutional position in this respect. While the British authorities do not actually look, upon their own initiative, behind the addresses of the Canadian Houses of Parliament, nothing would preclude a provincial government or legislature, it seems, from carrying their protest to London and reminding the British authorities of their true constitutional position. It was seen earlier that the provinces have no locus standi to address London with a view to an amendment of the Constitution of Canada.4 It would be an altogether different matter to maintain here that the provincial governments have no locus standi to point out to London that a federal request of amendment impinges upon the constitutional rights appertaining to the provinces as quasi-sovereign states. The difference between the two cases may be seen in a proper light by referring !Sec supra, pp. 108-9, 115-16, 120-1. AnR. MacG. Dawson, op. cit., p. 147. 'Quoted in Dawson, loc. cit. For original, see Can. H. of C. Debates, 1946, pp. 2621-2.

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seem to preclude the British Government and Parliament from looking at the merit or demerit of any amendment requested by Canada through constitutional means. If the only definite requirement in this respect is an address from the federal Houses of Parliament, action at Westminster should therefore be automatic upon receipt of such an address. It has furthermore been contended, however, that such action at Westminster would be automatic upon a mere executive request from Canada.1 This proposition is entirely different from the one above. It is based on the assumption that, as a result of the equality of status between Canada and Great Britain, the Governments of the two countries must deal with one another as equals on a basis of comity and that any inquiry by the British Government and Parliament into the antecedents of the request would involve asserting tutelage over domestic affairs in Canada. Such a construction upon the terms of the Balfour Declaration, in particular, and the events of 1926-31, in general, seems entirely unwarranted. Attention has been drawn earlier to the careful language of the 1926 Declaration which referred to "communities" and not to "Governments."2 There was a reason for this. Any agreement reached between the Canadian executive and foreign Governments such as the French or the American Government, for instance, has no force of law in Canada unless enabling or confirming legislation is passed by the Canadian Parliament. Even such action might not be sufficient should the subject matter involved be one exclusively assigned to the legislatures of the provinces. But relations between the Canadian and British Governments are entirely different in character, since any consequent action which the British Parliament might take in respect of the Canadian Constitution would have full force of law in Canada without any further action by the Canadian Parliament or the legislatures of the provinces. Canadian legislative bodies could thus be placed before a fait accompli. This situation requires, it seems, that the Canadian and British Governments should not deal with one another as equals on a basis of comity when the alteration of the Canadian Constitution is involved, but that the »J. A. Corry, op. cit., pp. 31, 374.

2

Supra, pp. 195-8.

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217

British Government, and ultimately the British Parliament, should act only upon requests of the Canadian "community" expressed through constitutional means. It has already been suggested that such a position would be entirely in accord with the Balfour Declaration and the events of 1926-31. One may object that the Government and Parliament of the United Kingdom might thus be placed in a position where they would have to decide between opposing views in Canada as to the appropriate constitutional means of formulating requests of amendments. This result seems inevitable. The evident purpose of the Canadian clause (section 7) of the Statute of Westminster was to perpetuate the existing constitutional position and to repudiate the complete consequences of Dominion status so far as constitutional autonomy is concerned. Although this does not, in theory, negative Canada's equality of status as a "community," it might, in practice, draw the British Parliament into deciding what are or are not appropriate constitutional means of requesting amendments—just as happened on the Petition of the State of Western Australia in 1935.1 The precise role of the British Parliament in the process of constitutional amendment is actually a subject of controversy to the point that the opponents of any rigid theory concerning the consent of the provinces widely disagree among themselves as to what this role is. At the other extreme of Professor Corry's view that the British Government and Parliament would act upon a mere executive action from Canada, one finds the opinion of a parliamentary counsel of the Senate, as lately as 1939, that "Now, as in the beginning deliberately intended, the Imperial Parliament is ... the arbiter and executor as between this Dominion and its provinces as to when and how and to what extent, if at all, the British North America Act shall be amended."2 Yet, the most common view to-day is the one taken by Professor Dawson3 and Professor Clokie,4 in particular, that British action would be automatic upon a request from the Canadian Houses of Parliament. 'See supra, pp. 198-200. "William F. O'Connor, Report to the Honourable the Speaker of the Senate on the British North America Act, 1867, Annex 4, p. 152. "See op. cit., pp. 142-3, 146. "See op. cit., pp. 22-4, 32.

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PART IV

PROPOSALS FOR A NEW AMENDING MACHINERY

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CHAPTER VIII

CHANGES OF PROCEDURE ADVOCATED IN THE PAST THE situation described in Part III of this book involves much uncertainty and is hardly in accord with the status of Canada as a fully sovereign nation. It is not surprising, therefore, that the adoption of machinery for the amendment of the Canadian Constitution through entirely Canadian agencies has been advocated from time to time in the past. It is only in comparatively recent years, however, that efforts to secure such machinery have gained some public support. For the first fifty years of Confederation the problem was not seriously considered. It had not been brought up in the pre-Confederation debates and conferences, except for two or three references of little significance,1 and it was not likely to arouse much interest until the new nation of 1867 was fairly well launched and new national forces emerged. This lack of general interest does not mean that no reference to the problem was made during the whole of that early period. In 1883, for instance, a Toronto periodical, The Bystander, claimed that the power of constitutional amendment ought to be vested in Canada. But, in the editor's view, this power should not be entrusted to Parliament. It should be given to the sovereign people who also ought to have the right to initiate constitutional changes. The writer made it clear that it was not to be desired that change should be made easy. But, in his view, the vesting of the legal power somewhere in Canada was indispensable.2 From the early years of this century, John S. Ewart consistently claimed for Canada the fullest degree of autonomy within the Commonwealth, including the power of constitutional amendment. He repeatedly referred to the Constitution of Australia, enacted in 1900, which provided for its own amendment by the Australian people without recourse to Westminster.3 'See supra, pp. 33-4. 'The Bystander, N.S., No. 4 (1883), pp. 261-2. 'See, inter alia, The Kingdom of Canada, Imperial Federation, The Colonial Conferences and other Essays (Toronto, 1908). 221

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These were isolated cases and were considered as the claims of extremists if not of real anti-imperialists. It was only with the participation of Canada in the first world war that the problem of the amending process became a topic of discussion among the so-called moderate elements of the country. Under the premiership of Sir Robert Borden, Canada then played a more important part than ever before in Imperial councils and began to manifest in international affairs an entity distinct from that of the United Kingdom. A first important stage was achieved in that direction when Canada obtained a seat at the Peace Conference of 1919 and, a year later, became a member of the League of Nations. It will be recalled that in 1915 the traditional form of Canadian request to London for constitutional amendment was altered so as to include the text of a draft bill to be enacted as such at Westminster.1 About the same time, Sir Clifford Sifton called the present method of amendment "an anachronism and an absurdity." He suggested either that a committee representative of the federal and provincial governments be set up or that a real national convention elected directly by the people be called in order to draft an entirely new Constitution which would include a process for its future amendment. Whichever of these two courses might be adopted, Sir Clifford strongly advocated that any new Constitution should be submitted to a direct vote of the people.2 It was only after the end of the war that the question came up openly in Canadian parliamentary circles. Mr. Mackenzie King, then Leader of the Opposition, led the way when he spoke in the House of Commons, in March, 1920, on the treaty of peace with Bulgaria. Referring incidentally to a proposed address to the King which had already been brought before the House with a view to securing an amendment of the Constitution,3 he said : Perhaps it would be more in accord with the status which Canada has as a self-governing dominion or nation within the 'See supra, pp. 89-90. ! An interesting account of Sir Clifford Sifton's proposals is given by John W. Dafoe, Clifford Sifton in Relation to His Times (Toronto, 1931), at pp. 460-78. See also: Sir Clifford Sifton, "Some Canadian Constitutional Problems," Canadian Historical Review, vol. Ill (1922), pp. 3 ff. 'This address of 1920 was referred to, supra, p. 185.

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British Empire if, instead of presenting an address to His Majesty to ask His Majesty's consent to the Parliament of the United Kingdom amending the British North America Act in the two particulars mentioned, the Government should consider the advisability of an address being presented to His Majesty to have powers given to the Parliament of Canada, subject to the concurrence of the several provinces of the Dominion, to amend the Constitution of Canada in such particulars as may be agreed upon as a result of conference between the provincial and federal authorities and approved by this Parliament and the legislatures of the different provinces. . . . Both Australia and New Zealand have the right to amend their own Constitutions in the particulars mentioned therein. Why should this Parliament not have the same powers to amend its own Constitution, subject to the safeguards that are necessary to comply with the spirit of the Act of Confederation, as have these other nations within the British Empire?1

The Minister of Justice, Mr. C. J. Doherty, replied that he was most heartily at one with Mr. King. Moreover, he said that before the matter arose in the House he had taken up the question with the attorneys-general of the several provinces.2 There is no available information concerning these consultations and they had no positive result. As might have been expected, the reception extended to this general proposal by the public was far from uniform. In French Canada, Premier Taschereau said that he could not consent to any amendment which would affect civil law, property and civil rights, education, language and religion, powers over taxation, or a fixed representation of Quebec in Parliament. The French-Canadian press generally reflected the paradoxical position in which French Canadians find themselves in striving for the fullest degree of Canadian autonomy while remaining unwilling to abandon any external safeguard against possible encroachments by the federal power on the rights guaranteed to the provinces and to minorities. Premier Martin of Saskatchewan maintained that nothing could be gained, though something might be lost, by removing the ties which bound Canada to the British Parliament. A number of English-speaking newspapers, like the Toronto Globe and the Montreal Gazette approved the idea while insisting on the necessity of providing for the "Cow. H. of C. Debates, 1920, pp. 468-9. 'Ibid., p. 479.

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concurrence of all the provincial legislatures with the federal Parliament in the case of any amendment. But the newspaper which proved to be the most outspoken and aggressive in its support of the proposal was the Winnipeg Free Press. This paper agreed that the privileges of minorities and certain special rights of the provinces guaranteed by the Constitution must be protected and their amendment made contingent upon the approval of the provinces concerned. For other changes a two-thirds majority of the people in two-thirds of the provinces expressed in a referendum should be adequate. "But the suggestion put out at Ottawa," the Free Press added, "that any provincial legislature should be given power to veto every proposal to amend the Constitution is not tolerable. It would place the whole Dominion at the mercy of the most backward section."1 Then, from year to year, the parliamentary debates at Ottawa registered new claims for a change in the existing procedure of amendment.2 At first the power of constitutional amendment had been claimed in Canada as an essential element of national sovereignty. But now the birth of a labour political movement and the parallel desire for social and economic reforms were bringing a new element into the discussion. Since most of the suggested reforms could not be carried into law by the federal Parliament without first securing constitutional changes, a number of people were led to advocate a simpler method of constitutional amendment than that requiring action by the British Parliament. The first note in the open was struck by this group in the House of Commons, in 1924, when one of the few labour members of Parliament, Mr. J. S. Woodsworth, introduced a motion in general terms which stated that "the governing powers of Canada as constituted by the British North America Act as amended and as altered from time to time hereafter, ought to possess under the British Crown the same powers with regard to Canada, its affairs and its people, as the Parliament of Great Britain possesses in regard to Great Britain, its affairs and its people."3 'An account of these several expressions of opinion is given in an editorial article of The Round Table, No. 39 (1920), pp. 654-9. 2 For instance, Can. H. of C. Debates, 1923, pp. 2895, 4660. *Can. H. of C. Journals, 1924, p. 67.

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Early in the debate, much concern was shown about the rights of the provinces. In order to palliate objections from this source it was proposed to add a proviso that no constitutional amendment should be effected without the consent of the majority of the provinces, in which majority—a curious detail—the provinces of Nova Scotia, New Brunswick, Quebec, and Ontario should form part.1 This unwarranted distinction between the original provinces of the Confederation and the others—a distinction founded on the idea that the original provinces would have been parties to a compact, but not the others—was not calculated to facilitate agreement on Mr. Woodsworth's proposal and the latter was finally withdrawn.2 It was generally agreed, in the course of the discussion, that the federal Parliament and the several provincial legislatures combined together had the same powers with regard to the affairs of Canada as the Parliament of Great Britain had with regard to the affairs of Great Britain, save for the power of constitutional amendment. Mr. Mackenzie King and Mr. Ernest Lapointe emphasized, however, that this restriction did not imply any state of inferiority or subordination since it resulted from the free will of the Canadian people and would be removed whenever they wished. As to the merits of the suggestion that the power of constitutional amendment should be vested entirely in Canadian hands, largely divergent views were expressed. On the whole, the Government's position was that such a step was desirable although it was a matter which could not be settled without agreement between Ottawa and the several provinces. The federal Parliament had not the competence to take the step proposed in the motion. On the Opposition side, the Conservative leader, Mr. Arthur Meighen, said that the present situation was in no way a source of difficulty in securing necessary amendments while, on the other hand, it was "infinitely better" to preserve it since it was the most adequate safeguard of minority rights.3 A year later, after the Industrial Disputes Investigation Act was declared by the Privy Council to be ultra vires of the 1

JMd.

2

Ibid.

"The full debate is reported in Can. H. of C. Debates, 1924, pp. 508-41.

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federal Parliament,1 a new attempt in the same direction was made by Mr. W. F. Maclean. This time, the proposal was in the form of an address to His Majesty with a view to an enactment by the Parliament of the United Kingdom. The proposed bill provided that in future the British North America Act might be amended by a majority vote of each House of Parliament at Ottawa save that the rights guaranteed to minorities should not be affected.2 Few members were prepared to accept the method of amendment suggested. Mr. Lapointe, for the Government, explained that Parliament could not arrogate to itself such rights and he developed in detail the argument that the provinces have rights under the Constitution which cannot be dealt with without their consent.3 He intimated that the question raised in the motion was one which might properly be brought up at the Conference of the federal and provincial governments which the Government intended to call in the near future. Mr. Meighen reiterated his views expressed a year earlier. In order to meet the objections raised, Mr. Woodsworth proposed, in amendment to the motion, to make the new power of Parliament conditional, in each instance of amendment, upon securing the consent of all the provinces—an unprecedented rigidity, indeed! After a sub-amendment was moved and opposing views were expressed, the issue was much confused and the motion was withdrawn.4 It appears from these debates of 1924 and 1925 that the demand for a new amending device was growing although it was still far from unanimous. In the words of Mr. Mackenzie King, a great number of Canadians considered the process requiring action by the British Parliament as one extending "a sense of greater security to the different prov1 Toronto 2

Electric Commissioners v. Snider, [1925] 2 D.L.R. 5. The text of the enactment proposed in the address read as follows: "1. This Act may be cited as the British North America Act, 1925. "2. The Parliament of the Dominion may amend the said British North America Act [of 1867] when it may see fit to do so, but it is not empowered to pass any amendment affecting the rights guaranteed in the said Act to minorities. "3. The proposed law for the alteration of the said Act must be passed by an absolute majority of each House of Parliament." (Can. H. of C. Journals, 1925, p. 44.) 'Extracts from Mr. Lapointe's speech are quoted in Appendix C, infra, at pp. 295-6. l Can. H. of C. Journals, 1925, pp. 45, 49; the full debate appears in Can. H. of C. Debates, 1925, pp. 284-341.

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inces of the Dominion and to the Dominion itself."1 Moreover, the advocates of a change largely disagreed among themselves about what the new process should be. Actually, no comprehensive and matured proposal had yet been put forward. Such was the situation in the autumn of 1926, when the Imperial Conference met in London. The Conference laid down the general principle of the autonomy and the equality of status enjoyed by the several member states of the Commonwealth. The full implications of this declaration in respect to the legislative competence of the Dominions were left to be considered at a later date by a committee of experts which would report to the next Imperial Conference.2 Thus the Canadian representatives at the Conference, Prime Minister Mackenzie King and Minister of Justice Ernest Lapointe, came back from London with a question to be solved before this committee of experts would meet: was Canada ready to substitute a new device for the old legislative supremacy of the United Kingdom Parliament in regard to the Canadian Constitution? Or should this fetter still be retained as a measure of exception while the general legislative supremacy of Westminster would be abandoned? Neither Mr. King nor Mr. Lapointe can have entertained illusions as to the possibility of reaching an early agreement upon a new amending machinery. The question had been put before the public without much success by the debates of 1924 and 1925 in the House of Commons. When the report of the Imperial Conference of 1926 was discussed in Parliament, Mr. Lapointe strongly maintained—as he had done in 1924 and as he was to do on repeated occasions in following years—that a condition which was dependent upon the free will of the Canadian people alone could not imply a state of subordination or inferiority.3 He added that this condition which precluded Canada from securing amend*Can. H. of C. Debates, 1924, p. 524. 'Imperial Conference, 1926, Summary of Proceedings, pp. 14-18. 3 Mr. R. B. Bennett later apparently took an opposite view when he stated that the possession of the right to amend one's own Constitution is the supreme test of equality of status. (Can. H. of C. Debates, 1930, p. 24.) The difference between these two positions is only one as between law and practice—a difference and even an opposition quite familiar in British institutions. Mr. Lapointe very properly insisted on the constitutional position—the position in practice and not in strict law.

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ments to her Constitution without an enactment at Westminster would exist as long as the Canadian people wished it to do so. In the meantime, any proposed changes "shall have to be made by the parties to the contract."1 Nevertheless, the Government at Ottawa, impelled by the Prime Minister and the Minister of Justice, favoured a change in the existing procedure, and the Balfour Declaration afforded an occasion for pressing their views. Moreover, the Government was committed, as we have already seen, to submit the question to the prospective federal-provincial Conference.2 This Conference of the representatives of the several governments in Canada met at Ottawa in November, 1927.3 Among the constitutional problems appearing on its agenda was the "Procedure in Amending the British North America Act." This item came up for discussion on the second day of the Conference—an indication of the importance attached to it. Mr. Lapointe introduced the subject by submitting that Canada, in view of her equality of status as declared at the Imperial Conference, and in view of the cumbersome procedure now required, should have the power to amend her own Constitution and that legislation should be asked from the United Kingdom for this purpose. He suggested that, in future, amendments might be made by the federal Parliament after consulting the provincial legislatures. In the event of "ordinary" amendments being contemplated the concurrence of a majority of the provinces might be required, while in the event of fundamental amendments involving such questions as provincial rights under items 12, 13, and 14 of section 92 of the Confederation Act, or "Con. H. of C. Delates, 1926-27, p. 1709. A further debate during the session of 1927 at Ottawa on the subject of the amending process arose upon a motion of Mr. Woodsworth. Although the motion dealt with the necessity of securing actual amendments to the Constitution, the question of a new process of amendment was inevitably brought into the discussion. The opinions expressed are closely similar to those put forward in 1924 and 1925. The Minister of Justice stressed the rights of the provinces in the3 matter. (Can. H. of C. Debates, 1926-27, pp. 1036-58.) The following account of the Conference is based on the "Précis of Discussions, Dominion-Provincial Conference, November 3 to 10, 1927," Can. Sessional Papers, 1928, No. 69, also issued separately by the King's Printer, Ottawa. 2

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rights of minorities under sections 93 and 133, the concurrence of all the provinces should be required. There was a considerable amount of support for this proposal, either in its entirety or with minor modifications. But the opposition voiced by a number of provincial representatives was indeed very strong. The Précis of Discussions of the Conference summarizes in this way the grounds for disagreement: "It was contended that there was no widespread demand for such a change; that if Canada had the right of herself to amend her constitution all sorts of demands for changes would be made; that on no occasion had the Imperial Government refused a demand for amendment; that to submit all sorts of proposals to the provincial governments for approval would stir up local party strife and arouse sentiment and feeling; that inasmuch as theDominion's charter came from London, Canada should go to London for amendments thereto and that under the conditions as proposed amendments might become too easy to secure."1 There was obviously no possible agreement in sight. At the conclusion of the discussion, the Minister of Justice simply stated that the federal Government would carefully consider all the opinions expressed at the Conference. Any hope of giving full effect to the 1926 declaration of equality of status between Great Britain and the other Commonwealth countries had thereby vanished. Two years later, when the committee of experts which had been agreed to in 1926 met as the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, the Canadian representatives were therefore not in a position to agree to the abolition of the legislative supremacy of the Parliament of the United Kingdom regarding the Constitution of Canada. It was pointed out to the Conference that the question of alternative methods of amendment was "a matter for future consideration by the appropriate Canadian authorities" and provision was made to ensure that the proposed Statute of Westminster would effect no change in this respect.2 Mr. Lapointe later explained in reply to a question 1 Ibid., p. 12. 'Report of the Conference on the Operation of Dominion Legislation, 19%9, par. 63, 66.

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in the House of Commons that "the Dominion Parliament is certainly one of the main appropriate Canadian authorities" referred to in the Report and that "certainly the parties to the pact of Confederation have also the right to be consulted and the right to discuss any new methods proposed."1 It was seen earlier how some of the provinces claimed the right to be consulted before any action could be taken on the Report of 1929; how after a change of Government at Ottawa, this claim was met; and how unanimous agreement was reached upon the clauses of the proposed Statute of Westminster at a federal-provincial Conference held at Ottawa in April, 1931.2 This Conference was not called upon, however, to consider the possibility of devising a new amending process. On the contrary, it was concerned only with safeguarding the status quo in this respect. Premier R. B. Bennett then stated that he intended to convene another Conference at a later date to consider the conditions under which the Confederation Act might be amended in the future. This proposal met with the general approval of the provincial representatives.3 The Statute of Westminster, as finally enacted, included the clause which had been drafted at the federal-provincial Conference with a view to retaining the procedure of an act of Parliament of the United Kingdom as the only means of constitutional amendment. In May, 1931, following the inter-governmental Conference at Ottawa, and the above statement by Mr. Bennett, Mr. J. S. Woodsworth again brought the subject of a new amending machinery before the House. His motion simply stated that "it is desirable that Canada should have the right to amend her own constitution, but that in proceeding to make any amendment, scrupulous care should be taken to safeguard the rights of minorities."4 Mr. Hugh Guthrie, Minister of Justice since the change of Government of 1930, spoke more openly than ever before of the necessity of securing for Canada the right to amend her Constitution 'Can. H. of C. Debates, 1930, p. 2573. *Supm, pp. 99-102. 3 Montreal Gazelle, April 8 and 9,1931 ; also a later statement by Mr. Bennett, Can. H. of C. Débales, 1931, p. 3203. «Cow. H. of C. Journals, 1931, p. 181.

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without each time going to Westminster. He pointed out, however, that the language of the motion was not sufficient. The autonomy of the provinces should be safeguarded. He said that he favoured the setting up of a parliamentary committee and the subsequent summoning of a federalprovincial Conference to consider the whole problem. But preparation was needed in order that such steps might be profitable. Mr. Lapointe, from the Opposition benches, fully agreed with Mr. Guthrie's proposal, though reminding the House of his view that no state of subordination was involved in the present position of Canada. "In that matter" of constitutional amendment, he said, "the Imperial Parliament is not really a dominating power; it acts as a trustee and as a guarantor, merely gives effect to the will of the Canadian people."1 In an earlier debate he had stated that the British authorities would gladly relinquish the exercise of their present functions, and that they did not hesitate to say so, owing to the serious situation which would face them in the event of an amendment being requested by Ottawa and objected to by some of the provinces.2 Generally there was wide support for the idea of securing for Canada the power of constitutional amendment. It was evident that the Canadian people and their representatives at Ottawa had travelled a long way since Mr. Woodsworth had first moved a resolution on the subject seven years earlier. Yet, in view of the serious objections raised against its wording the motion was withdrawn following the above assurance given by Mr. Guthrie in the name of the Government.3 While these developments were taking place in governmental and parliamentary circles, the problem received an unprecedented attention in the press and in scholarly circles. Following the Imperial Conference of 1926 the Winnipeg Free Press renewed its demand for a change in the amending machinery in order to bring it into accord with the status l Can. H. of C. Debates, 1931, p. 1477. ''Can. H. of C. Debates, 1930, p. 2573; see also Can. H. of C. Debates, 1931,3 p. 3202. Can. H. of C. Journals, loc. cit. The debate is reported in Can. H. of C. Debates, 1931, pp. 1466-89.

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of autonomy now fully recognized for Canada. In the spring of 1927, the Canadian League, an association for the study of Canadian problems, suggested that the federal Parliament should be empowered to alter the Confederation Act like any other statute subject to a number of conditions: (a) No amendment affecting sections 91 and 92, or the basis of representation in the House of Commons or in the Senate, should be valid unless approved by the legislatures of a majority of the provinces or, alternatively, by a majority of the Canadian electors voting in a national referendum and by a majority of voters in a majority of provinces; (¿) No amendment to section 93 should apply to a province unless assented to by the legislature of that province ; (c) No amendment to section 133 should be valid unless assented to by the legislature of Quebec. Furthermore, it was proposed that any amendment rejected by the Senate after it had passed the House of Commons in two successive sessions might be submitted to the people in a national referendum by the Governor-General and, upon its approval by a majority of the voters, be deemed to have been passed by the Senate.1 In 1929, Mr. Brooke Claxton, later a member of the federal Cabinet, insisted that the Constitution should be made as flexible as possible, though he admitted that some provincial check on a federal power of amendment might be necessary. His proposal was to require the concurrence of the legislatures of a majority of the provinces or, at the option of the federal Government, the direct approval of the people in a national referendum where the double majority of the Canadian voters as a whole and of the voters in a majority of the provinces should be required. Any amendment affecting the rights of a minority, however, would require the concurrence of the province concerned through either of the two methods mentioned above.2 Shortly afterwards the Winnipeg Free Press largely ] See Maurice Ollivier, Evidence before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, p. 50; also Maurice Ollivier, Problems of Canadian Sovereignty, pp. 384-5. 2 "The Amendments of the British North America Act," McGill Nevis, June 1929, partly quoted by Maurice Ollivier, both loc. cit.

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concurred in this proposal. But the editor emphasized that in no case should the right to oppose a proposed amendment be exercised by the provincial legislature—a body which is bound to think provincially, he said. Ratification should be sought "from the people of the provinces who are citizens both of the Dominion and the provinces, and therefore competent to decide between conflicting interests." The Free Press also suggested that, subject to limitations covering the rights of minorities, federal legislation to amend the Confederation Act should come into effect unless the Governments of a number of provinces asked for a vote of the people.1 In January, 1932, in an address delivered at the Cercle Universitaire de Montréal, Mr. Lapointe renewed his proposal made at the federal-provincial Conference of 1927. He stressed the need for a new device of amendment saying that the present system was uncertain, vague, and far from satisfactory. In future, he suggested that proposed constitutional changes should be made subject to ratification by the legislatures of either all or a majority of the provinces according to the object of the amendment. With respect to the approval of the federal Parliament, however, Mr. Lapointe added a new feature to his original plan. He suggested that a two-thirds majority vote in each House should be required.2 Mr. Lapointe later explained that such a course—which was adopted in the United States—would be a safeguard against too easy alterations of a "national character" and would prevent the Constitution becoming "the plaything of political parties" which might enjoy a mere majority in Parliament.3 This latter part of Mr. Lapointe's proposal was subject to criticism from Professor F. H. Underhill who qualified it as "an almost insuperable obstacle" to any amendment. The Senate as constituted at present, he said, would probably 'August 1, 1929; also quoted in part by Maurice Ollivier, loc. cit. 2 The address is published under title "Le Statut de Westminster," in La Revue Trimestrielle Canadienne, mars 1932, pp. 1-18; a short quotation from the address is given by Maurice Ollivier, loc. cit. 3 See discussion of that point before the Special Committee on the British North America Act, Proceedings and Evidence and Report, 1935, pp. 58, 64.

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oppose any proposal of amendment. It should be provided that a constitutional measure passed in two successive sessions by the House of Commons and rejected by the Senate might be submitted direct to the people by the Governor-General-in-Council. On the other hand Professor Underhill expressed strong objection to the suggestion made by the Winnipeg Free Press, in particular, that the consent of the provinces, whenever required, should be sought from the people in a referendum. He regarded the ordinary elector as incompetent to understand many of the technical considerations involved in a constitutional change. Moreover, he considered the representative assemblies to be ahead of the people as a rule. Provincial ratification should therefore be sought from the legislatures.1 A further point made by Professor Underhill and later emphasized by other scholars related to section 92(13) of the Confederation Act—"Property and Civil Rights in the Province"—which, under Mr. Lapointe's plan, could not be altered save with the concurrence of all the provinces. There was generally no objection to protecting the Quebec Civil Code against encroachments by Ottawa. But it was urged that this safeguard should not be an obstacle to the transfer to the federal area of jurisdiction, upon the consent of a majority of the provinces, of such matters as social insurance, company law, and others relating to the whole economy of Canada.2 From 1930 to 1935, the constitutional literature on the problem of the amending process abounded but came nearly all from a single school of thought which obviously did not represent all the thinking elements of the country. The claim for a change in the existing procedure mainly reflected a desire for widespread constitutional reforms—for a greater concentration of power in the hands of the federal Parliament. There was a general agreement that the strongest safeguards should be extended to the constitutional provisions relative to religion, language, and education. Outside this strictly limited field, however, it was suggested that '"Constitutional Amendment in Canada," Papers and Proceedings of the 2 Canadian Political Science Association, vol. VI (1934), pp. 248-9. Ibid.

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amendments should be made possible without what some writers called "undue formalities."1 In opposition to this school stood a large number of Canadians who were not so eager for constitutional changes and who favoured the strongest safeguards for provincial autonomy. Premier Howard Ferguson had made himself their spokesman very successfully in 1930.2 Since then, they had merely entrenched themselves in their positions which appeared to be quite secure. It was the role of the "reformers" to assail these positions—a situation which explains the one-sided literature of those years. There were very few active supporters of the middle course advocated by Mr. Lapointe which aimed at vesting Canada with the power of constitutional amendment without unduly endangering present provincial autonomy. Such was the situation when the session of 1935 opened at Ottawa. That session was the last of the existing Parliament and the Conservative Government of Mr. Bennett had failed to take the steps suggested by the Prime Minister himself and by the Minister of Justice four years earlier.3 A federal-provincial Conference had taken place at Ottawa in January, 1933, but the question of a new amending process had not been discussed.4 Without waiting any further Mr. Woodsworth moved a new resolution in the House of Commons to the effect that "a special committee should be set up to study and report on the best method by which the British North America Act may be amended so that while safeguarding the existing rights of racial and religious minorities and legitimate provincial claims to autonomy, the Dominion Government may be given adequate power to deal effectively with urgent economic problems which are essentially national in scope." The wording of this motion was, no doubt, much more acceptable than that of any of the previous motions. Moreover, public opinion had moved considerably within the previous decade. These two factors 'See the several writings for that period in the bibliography at the end of this study, infra, pp. 318-23. "See supra, pp. 99-100. 'Supra, pp. 230-1. 'See the Montreal Gazette, January 17 to 20, 1933.

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favoured an easy passing of Mr. Woodsworth's motion. Mr. Lapointe pointed out that it seemed "a little queer that one party to an agreement should study the methods of changing the agreement by itself without inviting the other parties to participate in the discussion." But the setting up of a Committee of the House of Commons was a preliminary step which could only lead to a federal-provincial Conference. Mr. Hugh Guthrie emphasized, on behalf of the Government, that full agreement with the provinces would eventually be required in order to secure a new amending device. The motion was agreed to and a select committee was set up.1 The Committee met eleven times from February 18 to June 18, 1935,2 hearing in evidence the opinions of a number of federal Government officials and of university professors.3 At one of its early meetings the Committee decided to invite each of the provincial governments to submit their views either in writing or through a representative. Telegrams were accordingly sent to the attorneys-general of the provinces, but none of them accepted the invitation. They almost unanimously expressed the view that the question of a new amending process could not be dealt with in the manner proposed, but that it was a matter for consideration by an inter-governmental conference. The Committee made its final Report to the House on June 19, 1935, expressing the opinion that the views of the provinces on the subject matter of the resolution should be obtained, if possible, and that a federal-provincial Conference should be held "as early as possible in the present year" to study the question. In order to leave the proposed Conference entirely free in ^Can. H. of C. Journals, 1935, pp. 44, 120, 141; Can. H. of C. Debates, 1935, pp. 217-30. 2 Although the "Report" of the Committee says that ten meetings were held, the "Minutes of Proceedings" record eleven of them. (Proceedings and Evidence and Report, 1935, pp. v-ix. The "Report" of the Committee is at pp. x-xiii.) 3 The list of witnesses is as follows: W. S. Edwards, K.C., Deputy Minister of Justice; Dr. O. D. Skelton, Under-Secretary of State for External Affairs; Dr. Maurice Ollivier, K.C., Joint Law Clerk, House of Commons; Dr. W. P. M. Kennedy, Professor of Law, University of Toronto; Dr. F. R. Scott, Professor of Law, McGill University; Dr. N. McL. Rogers, Professor of Political Science, Queen's University; Dr. Arthur Beauchesne, K.C., Clerk of the House of Commons (op. cit., p. iii).

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that study, the Committee refrained from recommending any form of procedure though urging the adoption of a "recognized yet flexible method of amendment."1 The work of the Committee was, however, much more profitable than the conclusion of this Report might lead one to believe. First, the meetings of the Committee brought the question afresh before the public. Secondly, the recommendations of the Report led, within six months, to the convening of an inter-governmental conference where the question of a new amending device was considered. Finally, the evidence submitted to the Committee was most valuable in throwing light on many problems connected with the amending process and in giving expression to a good number of suggestions for a new procedure of amendment. The first witness to appear before the Committee, Mr. W. S. Edwards, was the only one to suggest that the present system was satisfactory and that nothing might be gained by fixing a precise method of amendment. In his view the power of constitutional amendment enjoyed by the other member states of the Commonwealth was a burden to them.2 The six other witnesses all maintained that a new device should be agreed to as soon as possible and they each made their own formal proposal for an amending process. Dr. O. D. Skelton presented a very able submission covering the many aspects involved in moulding a Constitution to the needs of successive generations. He concluded by setting forth his plan for a new device of amendment. He thought that certain aspects of the Constitution—Imperial and national, as he calls them—could be most appropriately dealt with by action of the federal Parliament alone. Since every province is entrusted with the power to alter its own organization of government there seemed to be no reason why the federal Parliament, "checked and hampered by the wider diversity of interests," might not safely be accorded the same privilege. The Senate is a marginal case which might be considered of provincial concern though the arguments to this effect are far from bearing the same weight '/iíá., pp. x-xiii. *Ibid., pp. 2, 8-9.

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as in the case of the American or the Australian Senates. But when it comes to the strictly federal element of the Constitution—the relations between Ottawa and the provinces, and the distribution of powers between them—Dr. Skelton submitted that "the consensus of Canadian opinion, the weight of experience elsewhere and the inherent requirements of a federation clearly call for participation by both Dominion and provinces."1 As regards Ottawa's action in this bilateral process, Dr. Skelton saw no necessity, in view of the strong sectional interests represented in both Houses of Parliament, to require more than a simple majority vote in each House. There was even much to be said, in his view, for the Australian and the Swiss precedents of allowing proposals of amendment to be submitted to the people if, after repeated attempts, one House refused to concur with the other. Perhaps provision could be made, in such a case, for a two-thirds majority in the House agreeing to the proposed amendment. The South African method of a joint sitting of both Houses also deserved consideration. As regards the form of the provincial co-operation Dr. Skelton rejected both alternatives of action by the provincial Government and of action by the people in a referendum. He considered the first method too informal and the second unsuitable for dealing with technical questions. A vote by the provincial legislature appeared to him as the alternative best adapted to Canadian needs. A number of three, five, or seven years might be specified as the period within which provincial concurrence would be possible and after which a proposal of amendment not properly concurred in would lapse. The degree of provincial consent is no doubt the most controversial aspect of the amending process in Canada. In Dr. Skelton's view, the consent of a simple majority or of a two-thirds majority of the provinces should be sufficient as a general rule. On most questions there seemed to be no valid argument for requiring unanimous action by the provinces. Such a rule would give Canada "the most rigid J Dr. Skelton's proposal appears ibid., at pp. 42-4; his definition of the various aspects of the Constitution is reported at pp. 29-31.

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and unworkable constitution in the world." It should be possible to provide for this unanimity rule, however, when it comes to special rights like those respecting education (section 93, of the Confederation Act), the use of the English and French languages (section 133), the solemnization of marriage in the province (section 92, item 12), the administration of justice in the province (section 92, item 14). Dr. Skelton added: "Section 92, subsection 13 (property and civil rights in the province), has some claim to be included in this category if it is defined as covering private contractual rights and provisions for the holding or transfer of property, say, the points on which the Civil Code of Quebec differs from the law prevailing in other provinces, and is not construed so broadly as to prevent federal action, if desired, in the fields of general social and economic legislation, matters of public policy rather than private right."1 Dr. Maurice Ollivier submitted a proposal which followed the general lines of Dr. Skelton's plan though departing from it in some important respects.2 Under his suggested amending machinery, amendments could only be initiated in the House of Commons by the Government of the day, possibly as a result of inter-governmental consultations. The amendment would take the form of a bill requiring the concurrence of the Commons by a two-thirds majority. The same qualified majority would be required in the Senate. Failing such concurrence by the Senate, however, the bill could be reintroduced in the Commons at the following session and, upon securing again a two-thirds majority vote, it would be deemed to have been passed by the Senate. Following the assent of the Governor-General, the act should be sent to the several provincial authorities for submission to the provincial legislatures in the form of a ratification bill. Action should be taken by the provinces, either concurring in the proposal or rejecting it, within one year from the date of the royal assent at Ottawa. Should a legislature fail to take action within the prescribed period of time it should be deemed to have assented to the federal act. This act 1 Ibid., 2

p. 44. Dr. Ollivier's proposal appears ibid., at pp. 58 ff.

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would come into force upon a proclamation by the GovernorGeneral-in-Council following the concurrence of the proper number of provincial legislatures. Dr. Ollivier suggested that, as a general rule, favourable action by a majority of the provinces should be required. However, he qualified this rule by adding a number of provisoes : (a) In the case of an amendment affecting the federal government alone, no provincial concurrence should be required ; (b) In the case of an amendment affecting one province only, the concurrence of the legislature of this province should be required without any other provincial concurrence ; the same rule should apply in the case of an amendment affecting the representation of a province in the Senate or in the House of Commons; (c) In the case of an amendment affecting the boundaries of the provinces, or the provisions of sections 93 or 133 of the Confederation Act, or of items 12, 13, and 14 of section 92, the concurrence of all the provinces should be required, provided, however, that the concurrence of only a majority of the provinces should be required in the case of any amendment relating to social services, whenever such services are for the general advantage of Canada or whenever some of the provinces have declared themselves unable financially to bear the burden involved by such services. The procedure of a referendum was, at first, strongly opposed by Dr. Ollivier as being "too cumbersome, too complicated, and too expensive."1 Later in his evidence, however, following an interjection by Mr. Lapointe, he admitted that such a procedure might be advisable after a refusal of the provincial legislatures to concur with Ottawa. It might provide a way of securing the people's choice between the opposing views of the federal and provincial governments.2 Towards the end of his testimony, Dr. Ollivier advocated the appointment of a commission entrusted with drafting a new Constitution which would be based on the British North l lbid., p. 59. *Ibid., p. 63.

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America Act. This new Constitution would be divided into several parts each being subject to different formalities for its amendment. The main object of this step would be to bring about the repeal of the British North America Acts and to have the Canadian Constitution embodied exclusively in a Canadian act1 in order that it might not be any more subject, in law, to amendment by the Parliament of the United Kingdom.2 Professor W. P. M. Kennedy proposed a plan which is closely similar to that of Dr. Skelton.3 He strongly opposed the procedure of a referendum as inconsistent with Cabinet government. He believed that it had been invented by politicians for "passing the buck."4 Professor N. McL. Rogers confined his suggestions for a new device to general principles.6 He pressed the point, however, that the formulation of a new procedure of constitutional amendment was a matter for consideration by a conference in which Ottawa and the provinces would be represented.6 He also advocated a consolidation and restatement of the Constitution, which is much needed particularly from the standpoint of education in Canadian history and government.7 Dr. Beauchesne did not submit any definite proposal for a new amending machinery. Most of his submission dealt with his suggestion that J Dr. Ollivier did not suggest that such act should be passed concurrently by the federal Parliament and by all the provincial legislatures. It is difficult to see how such act could be safeguarded against repeal or alteration by Ottawa alone. 2 Ibid., pp. 61-2. Dr. Ollivier seems to have forgotten that, as a matter of abstract law, Westminster could amend or repeal any Canadian act as well as any British act relating to Canada. (See in this respect the illuminating pages of Jennings, The Law and the Constitution, pp. 148-51.) By constitutional convention, however, the supremacy of Westminster—which is a legal fiction—• is limited to the extent of precluding Parliament from amending or repealing without the request of Canada, the British North America Acts as well as any Canadian statute (either embodying the Constitution or not). The enactment in Canada of a Canadian Constitution (for instance, by concurrent statutes of the federal Parliament and the provinces) and the repeal of the present British acts on the subject would therefore operate only a change of form. This change is, no doubt, highly desirable in many respects. But it would not affect at all, from a strictly legal and abstract point of view, the supremacy of the Parliament of the3 United Kingdom over the Canadian Constitution. Ibid., pp. 73-7; Dr. Kennedy's full evidence is at pp. 69-80, 92-3.

'Ibid., Ibid., *Ibid., 'Ibid., 6

p. 76. pp. 107-12; full evidence at pp. 96-121. pp. 109-11. pp. 111-12.

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a National Constituent Assembly should be set up to draft a new Constitution for Canada.1 The only other witness to appear before the Committee of 1935 was Professor Frank Scott. He submitted a plan which went far beyond any other proposal in the degree of flexibility suggested.2 He stressed the difference between "minority rights" and "provincial rights" and argued that the latter did not deserve the same consideration as the former. He then went on to urge that on all matters which do not touch minority rights the best method of constitutional amendment would be a majority vote in the Canadian Parliament without any provincial participation at all. Moreover, the vote of Parliament should in all circumstances be taken in a joint session of both Houses. As regards minority rights and the new amending device, Professor Scott agreed that any change should require, in addition to this federal action, the concurrence of all the provincial legislatures of Canada. He included among such minority rights the constitutional provisions respecting the representation of the provinces in the House of Commons (sections 51, 5lA), education (section 93), language (section 133), the solemnization of marriage (section 92, item 12). Although Professor Scott was willing to consider the Civil Code of Quebec as a minority right he could not agree to so consider the whole item of "Property and Civil Rights in the Province." He therefore suggested that Ottawa's wide power of constitutional amendment mentioned above should include the power to abridge provincial jurisdiction over "Property and Civil Rights" simply by adding any topic to the list of federal legislative powers under section 91 of the Confederation Act.3 In answer to a question by the Ubid., pp. 125-138. 2 His evidence appears ibid., pp. 80-92. 'Professor Scott suggested that the new amending procedure might be embodied in a section to be added to the British North America Act in the following terms: "Section 148 "1. Any provisions of this Act except those enumerated in subsection 2 hereunder may be amended by a majority vote of the members of both houses of the Dominion Parliament assembled in joint session. "2. The following provisions of this Act, namely, Section 51,

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chairman of the Committee, Professor Scott said: "I quite agree that the degree of flexibility which I am urging will be a novel thing in relation to a federal constitution; but I do not see why we should attempt to say now, other federations are like this, therefore we must be like them."1 He could have said more properly: "The degree of flexibility which I am urging will be a novel thing; but I do not see why we, in Canada, should stick to a federal system of government." Shortly after the hearings of the Committee, Mr. Brooke Claxton made his own proposal in the Canadian Journal of Economics and Political Science? Like Professor Scott he believed that, except for a few reserved subjects, the amendment of the Constitution should be made by a simple majority vote of both Houses of the federal Parliament sitting in joint session. The concurrence of all the provincial legislatures might be required for amendments to sections 51, 5lA, 93, 133 and section 92, items 12, 13, and 14 of the act of 1867, save that Parliament should be able to add to its powers under section 91 with the consent of only a majority of the provincial legislatures. A province failing to express its dissent within one year of the passing of a proposed amendment at Ottawa would be deemed to have concurred in it. The procedure of a referendum was expressly rejected. The Special Committee reported to the House of Commons Section 5lA, Section 92, ss. 1, Section 92, ss. 12, Section 92, ss. 13, except those portions thereof assigned to the Dominion Parliament by section 91 as from time to time amended by the method of subsection 1 above; Section 93, Section 133, And this section, may be amended by a majority vote of the members of both houses of the Dominion Parliament assembled in joint session, with the subsequent assent of all the provinces. "3. A province shall be deemed to have assented to an amendment unless, within one year from the vote in the joint session of the Dominion Parliament, it has notified the Secretary of State for Canada that a majority of the members of its legislature have voted against such assent being given; provided that so long as the Legislature of Quebec shall consist of two houses the majority vote shall be taken at a joint session of the Legislative Assembly and the Legislativel Council." (Ibid., pp. 86-7.) lbid., p. 90. 2 Vol. I (1935), pp. 430 ff., under title "Social Reform and the Constitution."

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on June 20, 1935.1 In the following December, after the Conservative Government had been defeated at the polls, a federal-provincial Conference met at Ottawa upon the invitation of the new Liberal administration of Mr. King. Among the seven items on the agenda was the procedure for amending the British North America Act.2 The Subconference set up to study this question met in private during three successive mornings under the chairmanship of the Minister of Justice for Canada and was attended by the attorneys-general of all the provinces as well as by other ministers and technical advisers. It had before it the proceedings, evidence, and report of the Special Committee of the House of Commons of 1935, together with memoranda—which were not made public—containing additional suggested methods of amendment. The Sub-conference agreed that the power to amend the Canadian Constitution should be vested in Canada "provided that a method of procedure therefore [sic] satisfactory to the Dominion Parliament and to the provincial legislatures be devised."3 The details of any such method, however, would require to be worked out by experts before the Sub-conference would be in a position to discuss the question of a new procedure. It was accordingly agreed that the Minister of Justice should convene a meeting of appropriate officials of the federal and provincial governments for this purpose and that a new full conference should later be held to consider any proposal made by the committee. At the last meeting of the Sub-conference the Minister of Justice intimated that the invitations for the proposed meeting of experts were being prepared on that very day. Although the conclusions of the Sub-conference discussions appeared to be unanimous as to their substance, the representative of New Brunswick cast a negative vote against the final resolution as he felt unable to agree to it in its entirety.4 In the concluding speeches of the Conference there were a good many expressions of satisfaction at the result achieved l Can. 2

H. of C. Journals, 1935, pp. 596-9. Dominion-Provincial Conference, 1935. Record of Proceedings (Ottawa, 1936), p. 22. *Ibid., p. 37. 4 The report of the Sub-conference appears ibid., at pp. 37-8; it was "received" by the Conference without modification (see at pp. 48-9).

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on this constitutional question. It was stated that more progress had then been made than ever before in the intergovernmental conferences of the past thirteen years.1 It may therefore be regretted that no detailed report on the opinions expressed and the memoranda submitted has ever been published. A nineteen-page booklet, however, published by the Deputy Attorney-General for Ontario, Mr. I. A. Humphries, with reference to the work of the Conference, sets out in full the memorandum, including a concrete proposal for an amending machinery, which was submitted by the Attorney-General for Ontario, Mr. A. W. Roebuck, and supported by the Attorney-General for Manitoba, Mr. W. J. Major.2 The Ontario proposal, in common with all previously suggested schemes, divided the Constitution into several parts and required a different process of amendment in each case. The salient features of the proposal may be summarized in a few paragraphs: (a) In all matters pertaining only to the central government machinery and having no relation to the federal character of the State, the power of amendment should be entrusted to the federal Parliament alone; (¿») In all matters pertaining to the provinces exclusively and in matters of mutual concern to the central government and to the provinces, amendments should be made by joint action of the federal Parliament and of the legislatures of two-thirds of the provinces representing at least fifty-five per cent of the total population of Canada according to the figures of the then last decennial census; under this heading were included, among others, the provisions relating to the composition of the Senate and to the distribution of powers, save items 12, 13, and 14 of section 92; (c) In all matters relating exclusively to one province, and in all matters of common concern to the central government and to one or more provinces, but not all of them, amendments should be made by joint action of the federal 'See in particular the remarks of the representatives of Ontario and Manitoba, ibid., at pp. 50 55. Observations on a Proposed Method of Amending the British North America Act (no place, no date [Toronto, 1936]).

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Parliament and of the legislature or legislatures of the province or provinces to which the matter relates; (d) In certain matters of provincial and minority rights which might be termed "fundamentals," amendments should be made by joint action of the federal Parliament and of the legislatures of all the provinces of Canada; under this heading were included section 92, items 12, 13 (in totd), and 14, as well as sections 51, 5lA, 93, and 133 of the act of 1867; (e) In all cases, action by the federal Parliament should mean, as in the case of ordinary legislation, a simple majority vote in each House, except that in the event of the Senate declining to concur in an amending bill passed by the House of Commons, and the House of Commons passing the same bill again at the next following session of Parliament, a joint sitting of both Houses should be held for the purpose of considering the bill and of taking a vote which should then be deemed to be the final vote of the Senate ; (/) Recourse to the Parliament of the United Kingdom for the enactment of constitutional amendments should accordingly be abolished except as regards amendments to the amending process; the Ontario proposal also set forth that no alteration should be made in this process except by consent of the federal Parliament and of the legislatures of all the provinces. The Ontario proposal attached much importance to the retaining of the United Kingdom Parliament "as the arbitor [sic] in this matter of vital concern." This peculiar feature was considered necessary in order to ensure the continuance of the method of amendment proposed.1 A committee of experts representing the federal Government and the provinces as agreed to at the federal-provincial Conference of 1935 convened at Ottawa early in 1936.2 'See ibid, at pp. 9, 10, 18. No official report of the proceedings was published. On March 24, 1936, however, the Attorney-General of Saskatchewan, Mr. T. C. Davis, reported in detail to the Legislative Assembly of his province on the progress made by the Committee to that date. His speech, published in pamphlet form under title The Canadian Constitution and Its Amendment (Regina, 1936), largely forms the basis of the following account of the work done in committee and subcommittee. Additional information, including the text of the draft proposal for a general procedure to amend the Constitution referred to hereafter, was obtained from a private source (I acknowledge my indebtedness to Mr. Graham Spry, Agent General for the Province of Saskatchewan in the United Kingdom, for a copy of Mr. Davis's pamphlet). 2

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It was decided in principle at the outset of the proceedings— New Brunswick dissenting—that a new section be drafted to be added to the British North America Act, 1867, to provide for the amendment of the Constitution within Canada. A sub-committee was appointed to work out the details of the plan and to draft the proposed amending clause as well as the necessary amendments to the Statute of Westminster. The Sub-committee met in the first days of February of that year and adjourned its sittings shortly thereafter to report the results of its activities to the several provincial governments. When the meetings were resumed, in March following, it was possible to reach agreement on many matters and even to draft a proposal for a general procedure of constitutional amendment. When the Sub-committee adjourned, however, the unqualified assent of some of the provinces to that draft proposal was still lacking. For reasons which were not made public, but which no doubt had to do with the lack of agreement among the provinces, the Sub-committee never resumed its work and the full Committee did not meet again.1 Thus ended, without any formal statement on record, the most serious and, at times, most promising attempt ever made in Canada to devise a proper machinery for the amending of the Constitution. The tentative proposal drafted by the Sub-committee was twofold.2 It suggested the adoption of an address to His Majesty by the Senate and House of Commons of Canada requesting an amendment to the British North America Act, 1867, by adding thereto a section 148; and an amendment to the Statute of Westminster by replacing its section 7 by a new one. The proposed amendment to the Statute of Westminster need not detain our attention very long. Its effect was mainly to remove the present restriction under section 7(1) of the Statute3 as to the amendment of the British North America Acts in Canada. Such restriction was no longer to be necessary since the procedure for constitutional amend2ée

Mr. Lapointe's statements, Can. H. of C. Debates, 1937, pp. 433, 978. For text in full, see Appendix D, pp. 301 ff.

3

That section is quoted supra, p. 7; the Statute also appears in full as Appendix A, infra, pp. 285 ff.

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ment was to be provided for in a new section to the act of 1867. The proposed amendment to the Statute further empowered the Parliament of Canada to enact a consolidated Constitution (containing the proposed amending clause referred to hereafter) which was not to operate as new law but was to be construed as declaratory of the law as existing at the time of such enactment. The amendment of such Constitution thereafter was to be made in accordance with the procedure set out in its amending clause. It will be noticed that the power to enact such a consolidation of the Constitution was thus to be vested in the federal Parliament acting alone. The proposed amending clause to be enacted as section 148 of the British North America Act, 1867, was substantially on the same lines as the proposal made by the AttorneyGeneral of Ontario at the federal-provincial Conference of 1935. The Constitution was divided under four headings, each with a distinct procedure of amendment. The requirements under each heading about provincial participation in the procedure were identical to those set down in the Ontario proposal. In all cases, amendments were to be initiated in the House of Commons upon the recommendation of the Governor-General. Whenever the Senate should fail to concur with the Commons, a joint sitting of both Houses might be held during the same session to decide upon the issue. In cases requiring the concurrence of one or more Legislative Assemblies, the latter's failure to take any action, either by approving or disapproving a proposed amendment passed by Ottawa, was to be considered as an approval. The main and most important departure from the Ontario proposal relates to section 92, item 13—"Property and Civil Rights in the Province"—of the act of 1867, which was put under the heading of provisions alterable upon the consent of two-thirds of the provinces representing at least fifty-five per cent of the population of Canada. The Sub-committee experienced considerable difficulty in dealing with the provisions of the Confederation Act distributing the legislative powers between Ottawa and the provinces—mainly sections 91 and 92. The Attorney-General of Saskatchewan, Mr.

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T. C. Davis, explained that "Objections were raised by the Maritime Provinces, in particular, expressing a feeling that, with a two-thirds majority clause, the other six Provinces, might join up against them and force them to accept a change against their will."1 A so-called compromise proposal was therefore tentatively suggested under which items 13 and 16 of section 922 would still be left to be amended under the two-thirds and fifty-five per cent majority rule, but with the proviso that any dissenting province would not be affected by any such amendment and would continue to enjoy its exclusive legislative competence with respect to the subject matter or matters affected by such amendment. This was the most original feature of the whole proposal for a general amending machinery. One year later, in 1937, the federal Government appointed the Rowell-Sirois Commission to investigate certain aspects of federal-provincial relations. The Commission considered that its terms of reference did not extend to the question of the process to be followed for amending the Constitution and it accordingly refrained from making any observation or recommendation in this respect.3 Nevertheless, the problem did not escape the attention of the provincial governments and of several private bodies which appeared before the Commission.4 Although none of them submitted a detailed proposal for a new amending machinery, the Governments of Nova Scotia, Manitoba, Saskatchewan, and British Columbia, in particular, pressed the claim generally for a new scheme which would allow constitutional amendments to be made in Canada without recourse to the Parliament of the United Kingdom. Nova Scotia and Saskatchewan favoured the idea of dividing the Constitution into four distinct parts, each of which would be subject to different requirements for amendment. On the other hand, the iQp. cit., p. 15. Item 16 reads: "Generally all Matters of a merely local or private Nature in the Province." *Rowell-Sirois Report, Book II, p. 225. 4 Reference to the briefs and to the evidence submitted by the provinces will be found in the Report, loc. cit.; for other references, see the "Digest of Briefs and Evidence" published at the end of the last volume of the Proceedings of the Commission. 2

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Governments of Quebec, Ontario, and New Brunswick stated that, in their view, the Constitution as it stood ought not to be amended without the consent of all provinces. But there was a general agreement, either expressed or implied, among the provincial governments, that the question of a new procedure was not one for consideration by the Commission, but only by a body representative of the several governments in Canada. In Parliament, the appointment of the Select Committee of 1935 by the House of Commons and its lack of practical result—the ensuing inter-governmental consultations having failed—did not bring to an end the interest in the question of a new process of amendment. While the federal-provincial Committee of experts was still sitting at Ottawa, a debate arose in the Senate upon a notice given by Senator LynchStaunton that he would ask the Leader of the Government whether it was the intention of the Government to take steps to secure legislation from the British Parliament with a view to empowering the Parliament of Canada to amend, from time to time, the British North America Act as it might deem proper.1 No answer to this question could be expected at that time, but the occasion was taken to discuss the wisdom of abandoning the present system. The supremacy of Westminster was regarded by many senators as the only adequate safeguard of minority and provincial rights. The possible removal of this supremacy was a cause of much anxiety to them and was strongly opposed. Senator Dandurand, in closing the debate for the Government, made a very able plea in favour of a change of procedure, emphasizing that the vesting of Ottawa with an unfettered power of constitutional amendment was one thing and that entrusting this power to the federal Parliament and the provincial legislatures acting together under definite conditions was an entirely different thing which did not do away with minority and provincial rights.2 During the same session, in the House of Commons, when a proposed amendment to the Constitution—which was l Can. Senate Debates, 1936, pp. 198 ff. Vbid., pp. 559-65.

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never carried through1—was under discussion, almost every speaker agreed that the present procedure was not sound and that a change was most urgent.2 The sessions of 1937, 1938, 1939, in turn witnessed renewed appeals to that end. Later, the proposed British North America Act, 1940, provided a fresh occasion for discussing the question. There was now little disagreement about the wisdom of devising a new machinery. The question was only what the machinery should be.3 But the country was already engaged in the second world war and there were more pressing problems to be tackled. Later in the session of 1940, the question was again brought up in the course of the External Affairs debate. Premier Mackenzie King then felt proper to remind the House that the preservation of the present system could in no way be imputed to a state of subordination of Canada vis-à-vis the United Kingdom but only to the unwillingness or the hesitation of the Canadian people to change it. He explained that "If we continue to amend our constitution by way of presentation of an address to the United Kingdom Parliament it is because it suits our convenience so to do, or helps to meet feelings, for the present at any rate, which some entertain, with respect to the wisdom of preserving that method of procedure."4 The constitutional amendments of 1943 and 1946 provided not only a fresh occasion but also fresh grounds for pressing the devising of a new machinery. The unsuccessful opposition of Quebec to the first of these two amendments and the token protest made by the Government of the same province in the second case gave rise to serious doubts as to the value of the so-called guarantee provided by the supremacy of the British Parliament over the Canadian Constitution. On both occasions, in the House of Commons, the need for a new and definite process of amendment was emphasized.5 In the Senate, following the passing of the amendment of 1946 at Westminster, Senator McGeer-moved that a select 1 See supra, p. 149. *Can. H. of C. Debates, 1936, pp. 2795-873. 'Can. H. of C. Debates, 1940, pp. 1108-26.