COMMENTS
CHRONIQUES DE JURISPRUDENCE ET DE LEGISLATION
Beyond “Manner and Form”: Reading Between the Lines in
Operation Dismantle Inc. v. R.
J.R. Mallory*
The author discusses Operation Dismantle Inc.
v. R. and its implications for judicial review
of legislative and executive acts. The problem
is examined from the perspective of”manner
and form”, an issue which has seldom been
litigated in Canada, but which may now, in
light of the Constitution Act, 1982, be of greater
significance in Canadian law.
Lauteur commente Operation Dismantle Inc.
c. R. et les implications de cette decision au
niveau de contr8le judiciaire des actes 16gis-
latifs et ex~cutifs. Le problme est tudi6 sous
l’angle de la “mani~re et forme”, une ques-
tion rarement d6cid6e par les tribunaux mais
qui, A ]a lumire de la Loi constitutionnelle
de 1982, pourrait se voir attribuer une impor-
tance grandissante en droit canadien.
Operation Dismantle Inc. v. R.1 raises a number of questions relating
to the reach of the Canadian Charter of Rights and Freedoms,2 including
whether it covers only laws enacted by the legislature and not those enacted
under the prerogative, and the degree to which judicial review extends to
the executive. Broader questions were also raised, such as the extent to which
the Constitution Act, 19823 may increase the scope of judicial inquiry into
the internal procedures of the executive. One of the fundamental precepts
R.B. Angus Professor Emeritus of Political Science, McGill University.
1(1985), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 [hereinafter Operation Dismantle cited to
S.C.R.].
c. 11 [hereinafter the Charter].
2part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
3Being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
McGill Law Journal 1986
Revue de droit de McGill
1986]
COMMENTS
of the Westminster system has been the doctrine of parliamentary suprem-
acy, a doctrine that stemmed –
from “the revo-
lution of 1688 and the ultimate triumph of Parliament over both the Crown
and the courts.”‘4
as Bora Laskin put it –
Judicial review in the United Kingdom generally stopped short of an
inquiry into the internal procedures of Parliament and, on the whole, the
executive. The existence of a federal system has led, in Canada, to judicial
scrutiny of the jurisdictional limits of the several legislatures under the
Constitution. However the courts have never shown self-restraint in dealing
with subordinate agencies created by the legislature. In these matters the
courts have been unabashed in reviewing actions in both jurisdictional and
procedural terms, although in the past they were reluctant to look too closely
at ministers, even when they appeared to be acting judicially. Judicial review
of statutory bodies is, as Laskin said, “a core part of administrative law”.
In his view, “[j]udicial review in this area represents an adaptation of famil-
iar judicial modes of supervising inferior courts to the new regulatory and
adjudicative agencies which now dot the legal landscape.” 5
In dealing with ministers and legislatures, the courts – once the ques-
tion of jurisdiction has been settled – have shown great reluctance to inter-
vene. Not only are they sensitive to the feeling that they should not substitute
their own policy views for those of the other two branches of government
(at least overtly), but they have shown no disposition to examine the formal
structure of the executive or of the legislature by going behind a certificate
of the Clerk of the Privy Council that states that an order in council has
been duly passed, or one from the Clerk of the Parliaments, to discover
some flaw in the legislative process. Is it possible that the Charter, or to put
it more broadly, the Constitution Act, 1982, may tempt the courts to make
a bolder intrusion into the inner processes of the executive and the legis-
lature? Operation Dismantle gives some clues as to the answer, but some
of the other issues have yet to arise in the new constitutional context.
I. What was decided in Operation Dismantle?
The’issues in Operation Dismantle were whether the decision to test
the cruise missile posed a threat, contrary to the Charter guarantees of life,
liberty and security of the person, whether the courts had jurisdiction to
hear the case, and what remedies should apply. In essence the appellants
sought a remedy by way of declaratory judgment, injunction, and damages,
which are more commonly thought of as part of the law of tort or delict.
4B. Laskin, “The Judge as Legislator and Administrator” (1973) 11 Proc. & Trans. Royal
Soe’y of Canada (4th) 183 at 185.
5Ibid. at 186-87.
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In other words, they sought, through the Charter, to bring the actions of
governments and legislatures more squarely into the area of law where the
subject is protected from injurious actions by another against whom he has
no rights arising from contractual relations.
In particular the case hinged on reconciling section f(“reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society”) with section 7 (“the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”). While the decision disposes of some of
the most obvious questions about the capacity of the courts to review leg-
islative and executive acts in the light of the Charter, it does not throw
much light on an important secondary question: how far will the courts go
in reviewing the processes by which these acts are carried out? This question
is bound to arise, since the Court, in Operation Dismantle, has staked out
a fairly wide territory within which it will review the actions of both the
executive and the legislature.
In summary, a majority of the Court reached two basic conclusions. 6
“Cabinet decisions are reviewable by the Courts under s.32(l)(a) of the
Charter and the executive branch of the Canadian government bears a gen-
eral duty to act in accordance with the dictates of the Charter.”‘ 7 However,
the decision to test the cruise missile was not contrary to this duty since its
possible effects “are a matter of mere speculation.” s Wilson J., who delivered
a separate opinion, would have added that even acts under the prerogative
are reviewable, and even if the issue could be considered a “political ques-
tion” the Court nevertheless had a duty to review an executive act which
threatened the rights of the citizen. 9 And, she added that,
[t]here is at the very least a strong presumption that governmental action
concerning the relation of the state with other states, and not directed to any
member of the immediate political community, was never intended to be caught
by s.7 even although such action may incidentally increase the risk of death
or injury that individuals generally have to face.’ 0
Dickson C.J. concluded that the causal link between the action of the
government and the violation of the appellants’ rights under the Charter
was “simply too uncertain, speculative and hypothetical to sustain a cause
of action.”‘ Nevertheless he “had no doubt that the executive branch … is
6The majority decision was delivered by Dickson C.J. and concurred in by Estey, McIntyre,
Chouinard and Lamer JJ.
7Supra, note 1 at 443 [headnote].
8lbid.
9Ibid. at 444.
,0lbid.
“Ibid. at 447.
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CHRONIQUE DE JURISPRUDENCE
duty bound to act … in a manner consistent with the right to life, liberty
and security of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.”’12 Is it possible
that a subsequent court may be asked to take this decision a stage further
and to review the process by which the executive action was arrived at to
see if the procedure accorded with the principles of fundamental justice?
This issue seems not to have been addressed directly in Operation Dismantle.
Wilson J., while agreeing with the results of the majority decision, embarked
on a fuller and more detailed discussion of the issues, which she saw to be:
1) Is a decision made by the Government of Canada in relation to a matter
of national defence and foreign affairs unreviewable on any of the following
grounds:
(a) it is an exercise of the royal prerogative;
(b) it is, because of the nature of the factual questions involved, inherently
non-justiciable;
(c) it involves a “political question” of a kind that a court should not decide?
2) Under what circumstances can a statement of claim seeking declaratory
relief concerning the constitutionality of a law or governmental decision be
struck out as disclosing no cause of action?
3) Do the facts as alleged in the statement of claim, which must be taken as
proven, constitute a violation of section 7 of the Charter? and
4) Do the plaintiffs have a right to amend the statement of claim before the
filing of a statement of defence? 13
For present purposes, I intend to deal mainly with the first question, impor-
tant as the others are in relation to future actions under the Charter.
First of all, Wilson J. had no difficulty in disposing of the respondents’
claim to exemption because they were acting under the royal prerogative.
It was argued that the limitation in paragraph 32(l)(a), that the Charter
applies “in respect of all matters within the authority of Parliament”, was
restricted to powers exercised under the authority of statute law, and there-
fore, could not be applied to the exercise of the royal prerogative which was
a source of power existing independently of Parliament. But Wilson J. pointed
out that the limitation applies to the jurisdiction of Parliament according
to the division of powers under sections 91 and 92 of the Constitution Act,
1867, 14 in other words to those areas in which Parliament may legislate and
‘2Ibid. at 455.
‘1Ibid. at 463-92.
14(U.K), 30 & 31 Vict., c. 3 (formerly British North America Act, 1867).
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the government may take executive action.’ 5 She agreed with Le Dain J.,
who had pointed out in his judgment in the Federal Court, that the royal
prerogative is “within the authority of Parliament” because Parliament can
legislate if it chooses to do so in areas that have hitherto been left in the
realm of the prerogative.16 Therefore the prerogative falls under the Charter.
Was this a “political question” and thus an area in which American
courts would have refrained from acting; or should the Court have found
that the question could not be resolved because the evidence was so insub-
stantial and speculative that it could not be evaluated? The first proposition
is dubious because at the basis of American judicial restraint in such matters
is really the separation of powers, explicit in the American Constitution.
On the second point it seems clear that both Dickson C.J. and Wilson J.
felt that the Court had to deal with the issue and evaluate the evidence. She
said:
It seems to me … that the courts should not be too eager to relinquish
their judicial review function simply because they are called upon to exercise
it in relation to weighty matters of state. Equally, however, it is important to
realize that judicial review is not the same thing as substitution of the court’s
opinion on the merits for the opinion of the person or body to whom a dis-
cretionary decision-making power has been committed. The first step is to
determine who as a constitutional matter has the decision-making power, the
second is to determine the scope (if any) of judicial review of the exercise of
that power.’ 7
Thus, if the only question before the Court was “the wisdom of the
executive’s exercise of its defence powers in this case, the Court would have
to decline. It cannot substitute its opinion for that of the executive to whom
the decision-making power is given in the Constitution.”‘ 8 But it is not open
to the court “to relinquish its jurisdiction either on the basis that the issue
is inherently non-justiciable or that it raises a so-called ‘political question’.”‘ 9
I would conclude, therefore, that if we are to look at the Constitution for
the answer to the question whether it is appropriate for the courts to “second-
guess” the executive on matters of defence, we would conclude that it is not
appropriate. However, if what we are being asked to do is decide whether any
particular act of the executive violates the rights of the citizens, then it is not
only appropriate that we answer the question; it is our obligation under the
Charter to do S0.20
‘5Supra, note 1 at 463-64.
16Ibid, at 464.
17Ibid at 471.
I8Ibid, at 472.
19Ibid.
20Ibid.
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By pushing the issue towards its ultimate limits, Wilson J. posed a
hypothetical situation. Does, she asked, the imposition of conscription for
overseas service in wartime violate the rights of the citizen under section
7 of the Charter? Clearly it constrains his liberty and puts his life in jeopardy.
However, it is likely that a court would conclude that the challenge would
necessarily fail because it is subject to the limitation in section 1 of “such
reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society”. 2 1 On the other hand, a government decision
to “force a particular group to participate in experimental testing of a deadly
nerve gas” would hardly survive judicial review.22 Similarly the seizure of
people for military service without appropriate enabling legislation would
fail the Charter test in the courts even if the government adduced the argu-
ment of necessity.2 3
All of this leads her to conclude that the present case is one where it
is “not only appropriate that we decide the matter; it is our constitutional
duty to do so”. 24 After a full review of the argument she arrived at an even
more awkward question:
[T]here nonetheless remains the question of whether fundamental justice is
entirely procedural or whether it has a substantive aspect as well. This, in turn,
leads to the related question whether there might not be certain deprivations
of life, liberty or personal security which could not be justified no matter what
procedure was employed to effect them. These are among the most important
and difficult questions of interpretation under the Charter but I do not think
it is necessary to deal with them in this case. It can, in my opinion, be disposed
of without reaching these issues.25
Operation Dismantle does not raise that kind of issue, but clearly Wilson
J. is warning us that such an issue is bound to arise in the future. Meanwhile
the Court could dispose of the case by an acceptable, but easier, route. No
right is absolute; it is limited by taking account of the rights of others.
Furthermore, the concept of right must take account of “political reality in
the modern state”. 26 Action by the state, or for that matter, inaction, may
have the effect of increasing or decreasing the risk to lives and security of
citizens, but this does not, she says, “fall within the scope of the right
protected by s.7 of the Charter”.27 Nor can the need for the state to take
steps to protect itself from external threats in ways that incidentally increase
risks to the lives or personal security of citizens violate the Charter. “There
21 bid. at 473.
22Ibid.
23Ibid.
24Ibid. at 474.
25Ibid. at 488.
26Ibid.
27Ibid. at 489.
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is no liberty without law and there is no law without some restriction of
liberty ….-
28 Accordingly,
[a]t the very least, it seems, to me, there must be a strong presumption that
governmental action which concerns the relations of the state with other states,
and which is therefore not directed at any member of the immediate political
community, was never intended to be caught by s.7 even although such action
may have the incidental effect of increasing the risk of death or injury that
individuals have to face.29
Even though the motion made by the appellants in Operation Dismantle
failed, the Court has come some way towards clarifying the reach of section
7 and its relationship to section 1. That section, in Wilson J.’s words,
is the uniquely Canadian mechanism through which the Courts are to deter-
mine the justiciability of particular issues that come before it [sic]. It embodies
through its reference to a free and democratic society the essential features of
our constitution including the separation of powers, responsible government
and the rule of law. It obviates the need for a “political questions” doctrine
and permits the Court to deal with what might be termed “prudential” con-
siderations in a principled way without renouncing its constitutional and man-
dated responsibility for judicial review.3 0
This last quotation, it is submitted, raises issues which the Court may
have to face in the future, not only in connection with the Charter but also
in connection with Part V of the Constitution Act, 1982 which deals with
procedures for amending the Constitution. The Court has told us that it
will review executive decisions, and while on the whole it will not deal with
merit and attempt to substitute its judgment for that of the executive, Wilson
J. did foresee situations where the action taken by one of the other branches
of government could be so repellent as to justify the Court in overturning
it under the Charter. So the Court has a policy role after all.
II. A Wider Role for “Manner and Form”?
What about “reasonable limits prescribed by law as can be demonstr-
ably justified in a free and democratic society”? Can judicial review of
“prescribed by law” extend to “manner and form”? Implicit in the process
of judicial review of Parliament and the executive is the problem that the
guiding principles for judicial review arose out of judicial supervision of
subordinate bodies in both Britain and Canada. This kind of review is
generally considered to be the province of administrative law. While the
courts have generally accepted a self-denying ordinance not to substitute
their own view of the merits of decisions (as Wilson J. emphasized), they
28Ibid.
29Ibid. at 490.
301bid. at 491.
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have firmly resisted privative clauses which exclude them from considering
both vires and the rules of procedural fairness. Generally speaking, up to
now they have shown great deference to the principal branches –
both
Parliament and the Cabinet –
and have been chiefly active in reviewing
the delegated powers of subordinate bodies. In the future this may not be
the case.
One particular instance of this problem is the issue which is usually
called “manner and form”. As applied to parliamentary action this kind of
judicial review stems from the landmark South African case of Harris v.
Minister of the Interior31 in which the Appellate Division of the Supreme
Court of South Africa directly addressed the meaning of manner and form.
The South African Parliament had abolished the Cape Colony’s coloured
franchise by an ordinary act of Parliament, although that right had been
entrenched in the South African Constitution by the provision of a special
procedure for its amendment. As Sir Kenneth Wheare stated,
the prior and fundamental question was: “What is the Union parliament?”
Granted that an act of the Union parliament is always valid, when is the Union
parliament to be deemed to have passed an act of parliament? And the answer
to this question, says the court, is that whereas in relation to most matters the
Union parliament consists of the Governor-General and the two houses sitting
separately and it is deemed to have passed an act when the consent of all three
of these elements is obtained, in relation to matters contained in the entrenched
sections the Union parliament consists of the Governor-General and the two
houses sitting together and it is deemed to have passed an act when the consent
of the Governor-General and of two-thirds of the two houses sitting together
is obtained. If the proper procedure is not followed no act of parliament has
been passed …. 32
A more recent Canadian commentary has put the matter even more
succinctly:
The Harris case is the first to elaborate the idea that manner and form
provisions do not bind a sovereign Parliament in the sense of preventing leg-
islation, but rather define it. Although section 2(2) of the Statute of Westminster
conferred upon the South African Parliament the power to amend any Imperial
statute, according to the Appeal Division of the South African Supreme Court,
“Parliament” is to be read subject to the definition thereof in South Africa’s
constitution. 33
This question of manner and form in relation to the Constitution has,
with one or two exceptions of which I am aware, never been litigated in
31(1952), [1952] 2 S. Afr. L.R. 428, (sub nom. Harris v. Daanges) [1952] 1 T.L.R. 1245.
32K.C. Wheare, The ConstitutionalStructure ofthe Commonwealth (Oxford: Clarendon Press,
1960) at 78-79.
33K. Swinton, “Challenging the Validity of an Act of Parliament: The Effect of Enrolment
and Parliamentary Privilege” (1976) 14 Osgoode Hall L.J. 345 at 383.
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Canada even though there are several places in the Constitution where it
might arise. One of these is the now-repealed provision in section 80 of the
Constitution Act, 1867, which was within the power of the Quebec legislature
to be dealt with as part of the Constitution of the province. Under this
section, which was repealed in 1970, no redistribution of certain named
seats (mainly in the Eastern Townships) could be effected without the con-
currence of the majority of members representing those seats as expressed
in their vote on second reading of the bill and by a special resolution affirm-
ing that this had been done. In fact there were a number of redistributions
affecting these seats over the years, but the procedure was never followed.
Nevertheless, the existence of the provision was a serious obstacle to
Premier Jean Lesage’s attempt to rectify the imbalance between rural and
urban seats, although the original reason for the provision –
to protect
seats which represented predominantly English-speaking populations at
Confederation – had been largely vitiated by population shifts. Premier
Daniel Johnson, with a strong base in rural constituencies in the Lower
House and a secure majority in the Legislative Council, had no difficulty
in removing the constitutional safeguard by repealing section 80. Never-
theless, it remains a puzzle why an ingenious lawyer did not try to litigate
the matter, and thus seek to undo a redistribution measure on the ground
that it had not been effected in the proper form prescribed in the Consti-
tution. Had such an attempt been made, it is likely that the courts would
have followed the “enrolled bill” rule, refusing to consider matters of leg-
islative procedure, and simply looking to the face of the act. However, there
seem to have been some cases in which the courts in England would have
been willing to rule an act invalid had there been an error on its face.
Katherine Swinton, after reviewing the cases, concluded that
it is clear that there exists a rule which treats statutes as conclusive to some
extent. There is weighty’ precedent for the assertion that errors of law on the
face of the enrolled Act can cause invalidity, as can those on the original Act
to which royal assent was given. Whether a court can look further than the
face of the Act is not settled conclusively, yet Harris seems to alter the pre-
sumption of validity where special procedures exist.34
One possible opportunity for testing the limits of the “enrolled bill”
rule might have been a case which arose in the late 1940s in Prince Edward
Island. On 19 April 1945, the Lieutenant-Governor prorogued the Legis-
lature and withheld assent to a bill amending The Prohibition Act, presum-
ably for reasons of conscience. Shortly thereafter the government presented
the Bill to his successor, who gave it royal assent. In subsequent litigation
34Ibid. at 359.
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COMMENTS
the Supreme Court of Prince Edward Island ruled that the amending act
was invalid and that The Prohibition Act continued in force.35
Swinton summarizes the matter:
/
In that case, the Supreme Court of Prince Edward Island declared an Act
invalid because the Lieutenant-Governor assented thereto several months after
his predecessor withheld assent. In determining that his actions contravened
sections 55 and 90 of the B.N.A. Act, the Court made reference to the extrinsic
evidence of the Royal Gazette and made no mention of the enrolment principle
whatsoever. In adhering to that principle, the Court would have held the Act
valid, since the face of the Act showed the requisite consent of Crown and
legislature. 36
Indeed, the position of the Lieutenant-Governor is one of the areas of
the Canadian Constitution which might have given rise to constitutional
challenges on procedural grounds. The office is exempted from provincial
power to amend its own constitution, and the imposition of such democratic
procedures as initiatives and referenda might have created situations in
which the courts could have found themselves looking closely at legislative
procedures. However, that matter was disposed of in a reference case in
which the Judicial Committee of the Privy Council found that such pro-
visions had the effect of altering the position of the Lieutenant-Governor.37
Two other constitutional provisions may be of more importance. The
first is subsection 4(2) of the Constitution Act, 1982 (originally contained
in the British North America (No. 2) Act, 1949) which provides that the life
of Parliament may not be extended except “in time of real or apprehended
war, invasion or insurrection” and then only “if such continuation is not
opposed by the votes of more than one-third of the members of the House
of Commons”. This is clearly a case where a court might have to inquire
what Parliament actually was for this purpose.
The part of the Constitution Act, 1982 which has the greatest potential
for review is Part V, dealing with the amending procedure. There are a
number of conditions to be met which include the procedure for provincial
acquiescence, the type of amendment involved, and the delay provided for
provincial acquiescence, all of which might be subject to litigation by a
province or an interest group seeking to challenge the amendment. These
are issues of manner and form. The question of manner and form fell outside
the terms of Operation Dismantle, and therefore was not considered by the
Court except in the sense that it affirmed that the actions of governments
35Gallant v. R. (1948), [1949] 2 D.L.R. 425, 23 M.PR. 48. An account of the episode can be
found in E MacKinnon, The Government of Prince Edward Island (Toronto: University of
Toronto Press, 1951) at 157-60.
36Supra, note 33 at 366.
37Re The Initiative and Referendum Act (1919), [1919] A.C. 935.
490
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and legislatures are justiciable. Thus, the way is open for a more direct
challenge which will force future courts to question legislative procedure as
to manner and form.
III. Comparison with Australian Experience
Even though Australia does not have any constitutional provisions of
the Charter type, there are several Australian cases where the courts have
already ventured into this unfamiliar territory. As far back as 1930, the
Supreme Court of New South Wales issued an injunction to prevent a bill
from being presented to the Governor for royal assent on the ground that
the Constitution of New South Wales provided that there should be a ref-
erendum before the bill could be assented to.38 This case should perhaps
be distinguished, as Swinton points out, “on the basis that although the
procedure was statutory, its applicability to the New South Wales legislature
was compelled by the Colonial Laws Validity Act, an Imperial statute which
the legislature of New South Wales was powerless to alter.”‘ 39 More recently
there have been cases focusing on the meaning of section 57 of the Australian
Constitution which deals with double dissolutions to break a deadlock between
the two houses of the Australian Parliament.
Early in 1974 the Labour government of Prime Minister Gough Whi-
tlam, having found a number of its major bills obstructed in the Senate,
and no doubt hoping to strengthen its representation in both Houses, asked
the Governor-General for a double dissolution to resolve the matter. On 11
April 1974, a proclamation was issued asserting that the conditions of sec-
tion 57 had been met in respect of the named bills, and dissolving both
Houses. The resulting election returned the government with a reduced
majority in the Lower House and left the two main parties with equal
representation in the Senate, with the balance of power being held by two
independents. When Parliament reconvened, the bills in question were again
passed by the House but rejected by the Senate. A proclamation was then
issued which, under the terms of section 57, convened a joint session of the
two Houses to deal with the bills.
Two senators then sought injunctions and declarations to restrain the
holding of the joint session on a variety of grounds, the principal one being
that a joint session could only be held in respect of a single bill and that
38Trethowan v. Peden (1930), 31 S.R.(N.S.W.) 183 (S.C.), aff’d (sub nom. A.G. New South
Wales v. Trethowan) (1931), 44 C.L.R. 394 (H.C. Aust.), aff’d (1932), [1932] A.C. 526, 47
C.L.R. 97 (PC.) [hereinafter Trethowan].
39Supra, note 33 at 383.
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one of the bills in question had not been passed by the House within the
time limits prescribed and that accordingly the whole process was invalid.40
Double dissolutions in Australia have been rare, and as it turned out,
a host of questions could have been raised. Did they constitute a justiciable
matter? If so, did the senators have standing to institute proceedings? In a
related action the question arose as to whether the States were entitled to
institute proceedings. 41 Who were the proper parties to the action? Fur-
thermore, did the action lie against the Governor-General? This question
was immediately disposed of by the High Court, the Chief Justice declaring
without explanation that the Governor-General was not a proper party to
the proceedings and that his name should be struck out. Nevertheless, the
issue was not clearly resolved, although it would appear from Trethowan
that judicial remedies were available to prevent unconstitutional action by
a Governor and his ministers in the States. Why the Governor-General was
not part of the action was never explained.
The other important questions were, at least in part, resolved. Five of
the six members of the Court agreed that the validity of a joint session was
a justiciable issue. The Court further found that there was nothing in section
57 that prevented more than one bill from being brought before a joint
sitting, and that the specification of bills in the proclamation had no force
in itself. The members of the Court did not find that an injunction or a
declaration in advance of the joint sitting was appropriate in the circum-
stances, but their reasons varied. One felt that the issue was non-justiciable.
Two felt that an injunction was not possible because the High Court in 1911
had already ruled that it did not have jurisdiction to enjoin parliamentary
proceedings. 42 On the other hand Barwick C.J. and one other judge held
that the Court did not have jurisdiction to interfere with internal parlia-
mentary matters while a session was actually in progress, but that they could
assert jurisdiction if there were no other way to prevent unconstitutional
action.
The Court was again faced with the double dissolution issue after the
joint session had taken place.43 This case concerned the validity of one of
the pieces of legislation that had been passed (the Petroleum and Minerals
Act) and the Court went further into the terms of section 57 “even though
this requires the Court (contrary to the assumptions of Westminster) to
undertake a consideration of steps taken within parliament in the handling
40Cormack v. Cope (1974), 131 C.L.R. 432 (H.C. Aust.).
41State of Queensland v. Whitlam (1974), 131 C.L.R. 432 and 475.
42See Osborne v. Commonwealth (1911), 12 C.L.R. 321 (H.C. Aust.).
43Victoria v. Australia (1975), 7 A.L.R. I (H.C.).
McGILL LAW JOURNAL
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of proposed laws …. ,44 Not only did they find that the act in question had
not complied with the three-month interval which must elapse between the
passage of the bill by the House and its re-enactment, but the Court (while
noting the general undesirability of judicially determining the validity of
parliamentary proceedings) went on –
because of the exceptional nature
to deal with the meaning of the phrase “fails to pass”. The
of section 57 –
problem with this, as Geoffrey Sawer points out, “is rather that any realistic
assessment of the Senate’s conduct under this head must involve a detailed
consideration of the course of political events in the Senate.”‘ 45 Should the
Court take account of Senate debates, or the procedural steps there as rec-
orded in the Senate Journals? The latter would have been possible under
the Evidence Act, but the first would have been far less likely under the
Westminster system. In any event, the majority of the Court did neither. In
order to deal with the question in another way the Chief Justice and Gibbs
J. sought refuge in the concept of “reasonable time” for the Senate to con-
sider the measure. This, however, is no better. As Sawer observes, “this is
an excellent example of something Barwick C.J. has elsewhere criticized –
the judicial tendency to replace the words of the Constitution by completely
different words. S. 57 makes no mention of giving the Senate any ‘reasonable
time’. 46 Had the Court gone a little further, it might even have concluded
that when a double dissolution under section 57 failed to satisfy the judicially
determined conditions then the parliament so elected was illegal. This was
avoided by the Chief Justice’s unsupported statement that “[t]he dissolution
itself is a fact which can neither be void nor be undone.”’47 No doubt a court
can always find a way of upholding the legitimacy of institutions in order
to avoid a breakdown of the state, possibly by invoking the maxim salus
populi suprema lex.
These are dangerous waters. Courts are not well-equipped to deal with
the nuances of internal legislative procedures, and are on even less firm
ground when it comes to conventions of the constitution. In Australia, where
Chief Justice Barwick imported a novel convention into the Australian
Constitution in his memorandum of advice to Sir John Kerr at the time of
the dismissal of Prime Minister Gough Whitlam, the needless confusion is
exemplified. He was in effect asserting that the nature of Australian feder-
alism made a government responsible not only to the Lower House, but
also to the Senate. Similarly, in Canada, the confused jurisprudence of the
44G. Sawer, Federation under Strain: Australia 1972-1975 (Carleton, Aust.: Melbourne Uni-
versity Press, 1977) at 45-46.
45Ibid. at 49-50.
46Ibid at 50.
47Victoria v. Australia, supra, note 43 at 12.
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COMMENTS
Supreme Court in Reference Re Resolution to Amend the Constitution48 is
a further illustration of the difficulty, even if the outcome in that instance
created the conditions for a political solution.
The trouble is that eminent judges do not seem at their best when
dealing with conventions of a constitution, which tend to be modified from
time to time and from place to place. Lawyers, who are the product of an
elaborate discipline whose object is to discern the precise meaning of the
law as expressed by the legislature, have difficulty applying the rules of
construction to such insubstantial stuff. When they move outside the realm
of the law properly so called they are no more able to deal with it than
anyone else, and their normal habits of thought tend to force them to assert
precise meanings where no such precision exists.
IV. Possible Implications of Wider Judicial Review
What will happen if the Canadian courts are impelled by the Consti-
tution Act, 1982 to open up a wider range of issues? For one thing, they are
likely to look more closely at the way in which ministers exercise statutory
powers by applying the same rules of procedural fairness which in the past
have been applied chiefly to subordinate bodies. This the Federal Court of
Appeal did as far as back as 1973 in Lazarov v. Secretary of State of Canada.49
Singh v. Minister of Employment and Immigration shows that the Supreme
Court will not be easily satisfied with appellate procedures which seem to
deny the procedural fairness made explicit in section 7 of the Charter. Nei-
ther section 1 nor the existence of grave administrative inconvenience and
high cost justified the activity of the Minister of Employment and Immi-
gration in a procedure which lacked the basic requirements of a fair hearing.50
When ministers act collectively problems of a different order will arise.
The cabinet itself has no legal existence. Its powers are generally given legal
effect through the Governor-General in Council. But what is the Governor-
General in Council? According to one former Cabinet minister. “The gov-
ernor in council is a committee of the cabinet and not a full cabinet, as
some hon. members seem to think.”” s Robert Winters was describing what
is called the Special Committee of Council, a quorum of four ministers (not,
one imagines, the brightest or the busiest) who meet as required to approve
48(1981), [1981] 1 S.C.R. 753, (sub nom. Reference Re Amendment of the Constitution of
Canada (Nos 1, 2 and 3)) 125 D.L.R. (3d) 1.
49(1973), [1973] EC. 927, 39 D.L.I. (3d) 738.
50(1985), [1985] 1 S.C.R. 177, (sub nom. Re Singh and Minister of Employment and Immi-
gration) 17 D.L.R. (4th) 422.
51Canada, House of Commons Debates at 5126 (18 June 1956, R.H. Winters).
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[Vol. 31
the orders in council necessary to give legal effect to decisions taken else-
where in the cabinet or one of its committees. Furthermore, the Governor-
General in Council, in its proper form presided over by the Governor-
General with ministers present and engaged in the actual transaction of
business, has not met for over a hundred years, although in recent years it
has been summoned for ceremonial or symbolic purposes. It is unlikely that
a court will some day find that the procedure is flawed because the Governor-
General (described on the “face” of a batch of orders in council as present)
is never present but only “deemed to be present”. But such a possibility is
a disquieting thought.
If it is perhaps a trifle fanciful to think that the courts might not accept
arrangements, many of which pre-date Confederation, to cloak political
decisions in the archaic clothing of colonial constitutional practices, it might
be otherwise with more modem practices of cabinet government. What
about the complex rationalized structure of actual Cabinet decision making,
which does not always conform to constitutional rituals? What, for example,
is the validity of a Cabinet directive? Under the practice of the present
government the Priorities and Planning Committee may upon occasion take
decisions on behalf of the whole Cabinet;52 but do these decisions have legal
effect unless backed by an order in council? These questions seem not to
have been raised in Operation Dismantle, and are nowhere discussed in
Wilson J.’s judgment. No one seems to have bothered to ask how exactly
the decision to test the missile was reached, or by what body. Does this
mean that the Court will not consider them, or will the question be raised
some day in a form in which the Court will have to look at how the executive
branch of the government actually conducts its business?
Already the various language cases have turned on a sort of manner
and form issue: whether, for example, section 133 overrides general pro-
visions of the Constitution such as subsection 92(l). 53 In fact such a decision
could be justified by ordinary rules of statutory construction, but neverthe-
less the courts are having to look more closely at actual procedures under
the Constitution.
An even more intriguing possibility may be raised in Manitoba. Does
compliance with the 1985 Supreme Court ruling on the language of legis-
lation in Manitoba require that the Order Paper be in both languages in
521.D. Clark, “Recent Changes in the Cabinet Decision-Making System in Ottawa” (1985)
28 Can. Pub. Admin. 185 at 199.
53See, e.g., A.G. Quebec v. Blaikie (1979), [1979] 2 S.C.R. 1016, 101 D.L.R. (3d) 394.
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CHRONIQUE DE JURISPRUDENCE
order for a bill (in this case the re-enactment of the Highway Traffic Act
and the Summary Convictions Act) to be validly introduced in the legislature?54
The question which remains unresolved is how far the Court will go
in following Wilson J. when she says: “However, if what we are being asked
to do is decide whether any particular act of the executive violates the rights
of the citizens, then it is not only appropriate that we answer the question;
it is our obligation under the Charter to do so.”55
54See “Manitoba Law Invalid Even in French: Lawyer” The[Montreal] Gazette(16 September
1985) A-12 discussing Reference Re Manitoba Language Rights (1985), [1985] 1 S.C.R. 721,
(sub nom. Reference Re Language Rights under the Manitoba Act, 1870) 19 D.L.R. (4th) 1.
55Supra, note I at 472.
