Correspondence with and Opinion of
Hon. R. L. Kellock, Q.C.*
on Certain Questions of Interpretation
1. The Editor to Hon. R. L. Kellock
August 4, 1966.
Are you of opinion that the provisions of the B.N.A. Acts in the
following categories:
(i) setting out the powers of the Parliament of Canada;
(ii) setting out the powers of the Government of Canada with respect to
the appointment of judges, and those of the Senate and Commons with
respect to their removal;
(iii) setting out the powers of the Government of Canada with respect to
the appointment, instruction, and removal of Lieutenant-Governors;
(iv) setting out the powers of the Government of Canada with respect to
the reservation of provincial bills and disallowance of provincial acts;
(v) setting out the powers of the Parliament of Canada with respect to
the implementation of treaties,
are in each case provisions such that a law amending them would
be a law “affecting any provision of the Constitution of Canada
relating to (a) the powers of the legislature of a province to make
laws…. (etc.)” and so falling within s. 2 of the Formula, being the
unanimity rule?
2. Hon. R. L. Kellock to the Editor
August 19, 1966.
Before making any reply I think I would like -to have some idea
of what the argument is pro and con. Any opinion I might express
might well be very inadequate without this.
I
3. The Editor to Hon. R. L. Kellock
October 4, 1966.
Without repeating the question as I put it formally in my letter
of August 4th last, I should f irst say that the question whether
amendments to decrease federal powers (executive, legislative, or
judicial) fall under the unanimity rule –
how they compare in this
regard to amendments decreasing provincial powers –
depends upon
(i) whether a provision setting out a federal power (executive, legislative,
or judicial) is itself in each case a
Of the Queen’s Privy Council for Canada; formerly one of Her Majesty’s
Justices in the Supreme Court of Canada.
No. 4]
HONOURABLE R. L. KELLOCK, Q.C.
“…2 … provision of the Constitution of Canada relating to (a)
the powers of the legislature of a province to make laws, (b) the
rights or privileges granted or secured by the Constitution of
Canada to the legislature or -the government of a province…”
as a similar provision setting forth a provincial power would clearly be;
it were amended,
(ii) whether such a provision would be “affected”
if
especially amended so as to reduce its scope.
I do not think that anyone will doubt that (ii) must be answered
affirmatively; indeed, unless a provision is “affected” by being
amended, there seems scarcely any point in the protection given by
section 2 of the Formula to provincial powers.
In favour of an affirmative answer to (i), it can be argued that,
as each federal power necessarily forms the outer limit of provincial
power, legislative or other, therefore provisions setting out federal
powers must of necessity relate directly to “the powers of the legisla-
ture of a province to make laws” etc.
This, in effect, is to say that any provision which sets out the
power of either necessarily relates to the power of the other. In some
cases, indeed, e.g. s. 92 (10) B.N.A. Act, the same provision not only
relates to both but also in terms sets out both; which serves to demon-
strate the correlative character of the federal and provincial powers.
The contrary argument –
answering question (i) negatively –
(a) …
would appear to be based on the premise that the words “any provision
of the Constitution of Canada relating to …
the powers of
the legislature of a province…” etc. appear in the Formula by way
of contrast to what one might call “any provision of the Constitution
of Canada relating to the powers of the Parliament of Canada to
make laws”; so that in principle a provision of the B.N.A. Act falls
into one, but not both, of these categories. At least, those provisions
which in terms deal only with the powers of one, and only by cor-
ollary with the other, would be said to relate to the one, and not
to the other. On this basis it would be said that the provisions
for example of section 91 are provision[s] “relating to the powers
of the Parliament of Canada to make laws”, but not provisions
“relating to the powers of the legislature of a province to make laws”.
Likewise it would be said on this basis that the provisions, say, of
s. 92 (with the possible exception of 92 (10)), would be said to relate
to the powers of the legislature[s] of the provinces, but not to relate
to the powers of the Parliament of Canada.
Perhaps the kernel of ‘this position would be this: that a provision
relates to those only whom it mentions; or, that it relates to nobody
unless he is primarily dealt with. In sum, an extremely restrictive
construction is given to the term “relating to”. None but the most
immediate of relations is any relation at all.
McGILL LAW JOURNAL
[Vol. 12
This position appears to me to be that of Me. Pigeon in the en-
closed article; though I do not, I must confess, understand the point
he ds trying to make by ,use of Mann v. The Queen, which decisin
he in any case interprets rather more broadly perhaps than the actual
holding.
The fallacy in this position appears to me to lie in the following:
that while this theory would, in certain cases, produce consistent
results (unfavourable to federal authority) expected by its propo-
nents, namely
(1) curtailment of federal power could be secured without unanimity
by amending the wording of those provisions setting out federal powers; no
unanimity would be needed since, on this theory, provisions setting out
federal powers relate only to the “powers of Parliament” and not to the
“powers of the provinces” and do not therefore fall within s. 2 of the
Formula;
(2) curtailment of provincial powers could not be secured without
unanimity whenever the amendment changed the words of any provision
of setting out provincial powers, since such provisions would fall within s. 2
of the Formula;
yet nevertheless, on the same theory the following paradoxical results
would seem to follow:
(3) increases of federal power could be secured even without unanimity
by amendments carefully confined to the wording of provisions now setting
out federal powers, or amendments introducing new provisions conferring
federal powers; for on this theory these provisions do not “relate to the
powers of the legislature of a province”, and so do not fall within s. 2 of
the Formula;
(4)
increases of provincial power could not be secured without unanimity
unless the amendment in question carefully avoided touching the wording of
the provisions now setting out provincial powers; for to touch those provisions
in any way would be to affect them; and this, seeing that the provisions relate
to the powers of the legislature of a province, etc., requires unanimity by
s. 2 of the Formula. Hence, touching s. 92 in any way is to affect it, and
this requires unanimity.
There is of course a response by which the hopelessly paradoxical
consequences above can be avoided; but it is a response which seems
to be suicidal to the theory. This response would consist in urging -that,
whilst admitting that the provisions themselves setting out federal
powers do not “relate to” provincial powers –
scarcely indeed an
admission, for it is .the basis of the whole theory – yet nevertheless
AMENDMENTS to provisions setting out federal powers do affect
provisions “relating to the powers of the legislature of a province”
etc. In short, this response insists that s. 91 does not affect s. 92,
but that amendments to s. 91 do affect s. 92.
That provisions setting forth provincial powers are provisions
“relating to the powers of the provinces” no one need dispute. But
No. 4]
HONOURABLE R. L. KELLOCK, Q.C.
it is difficult to see how these provisions are any the more “affected”
by amendments to provisions setting forth federal authority, than
they are by such provisions themselves as they stood before they
were changed. It is hard to see why s. 91 does not, but a change in
s. 91 does, affect provisions relating to provincial powers.
But more than this; the response seems suicidal, for once ad-
mitting that amendments to provisions setting forth federal powers
do affect “provisions relating to -the powers of the legislature…”,
(by reason, apparently, of their legal impact thereon), there is really
not much room for any distinction based on the desirability or
favourability of the impact: the provision relating to the provincial
power has, happily or not, been “affected”, on their own showing.
In sum, to admit that an amendment to s. 91 “affects” s. 92 is to
admit this whatever be the direction of the amendment. Insistence
that s. 91 itself does not “affect” or relate to s. 92 becomes quite
irrelevant.
Me. Pigeon also appears to suggest that increases in provincial
powers do not affect provincial powers because the powers affected
are not yet provincial powers, until after the amendment, by which
they are increased. He does not, in short, interpret “affecting pro-
visions relating to the powers of the legislature” of a province, as
meaning, “extent of powers”, but rather “powers -in being”.
So much for close reasoning. The substance of the dispute is
between those who interpret s. 2 of the Formula as a one-way street
for reducing federal powers by two-thirds while requiring unanimity
to reduce provincial powers; and those who insist that, so. far as
unanimity extends, it is a two-way street.
If there be any constitutional presumption against a primacy for
provincial over federal authority, such a presumption would tend
against the former construction.
If my recollection of Justice Laskin’s article in 11 McGill L.J. be
correct (I do not have it to hand), he tended against the idea of a
one-way street. But it occurs to me that his analysis may be somewhat
clouded by a tendency to read the Formula as if it spoke of “amend-
ment affecting the powers of a province” rather than “amendment
affecting a provision relating to the powers of a province”. It there-
fore appeared to him, as it had to me perhaps (see Para. 3 of my
enclosed Memorandum of September 8, 1964) that the critical issue
was whether “affect provincial powers” meant “adversely affect
provincial powers”. Clearly, if unanimity depended on whether or
not the provincial power were affected, that question would be de-
cisive; for if “affect provincial powers” meant “adversely affect
provincial powers”, no increase of provincial powers, however much
McGILL LAW JOURNAL
[Vol. 12
at federal expense, could then be said to “affect provincial powers”,
and could never need unanimity. But if we follow the text more
closely and observe that the Formula is concerned not with affecting
powers, but rather with affecting provisions relating to powers, it no
longer seems to make much sense to speak of adversely affecting
provisions, however much sense it makes to speak about adversely
affecting powers.
To section 132, the same considerations above apply, of course;
but others perhaps also. For in some sense the power of treaty im-
plementation is already vested in Parliament, and the long-sought
modernization of this power would really involve merely the sub-
stitution of “Her Majesty” for “British Empire”. It could thus be
plausibly argued that the amendment would involve only a change
in the reference to the treaty-making authority who brings into
function the already-vested power of Parliament. On this view, amend-
ment of the kind indicated to s. 132 would probably require a two-
thirds majority under s. 5 of the Formula, though it seems arguable
that s. 6 applies, in which case if the exception 6 (a) applies, the
power is again subjected, apparently, by s. 5, to two-thirds –
other-
in
wise it is unilateral. Here again, nice questions are involved
whether you are really changing the functions of the Queen under
6 (a) ; or, if you are, whether -this change, favourable (at least not
to royal authority, cannot be said to be perfectly
unfavourable)
consistent with the vesting of Executive Government and authority
in the Queen by the B.N.A. Act, so as not really to bring 6 (a) into
play. If s. 6 applies, but not 6 (a), then of course Parliament could
amend s. 132 unilaterally under the Formula. This is startling, but
even more startling are other consequences of accepting the above
argument that the amendment of s. 132 involves no more than a
recasting of the internal federal treaty-making authority which has
power to bring s. 132 into operation (and involves no interference
with provincial authority, implementation being a now-vested federal
power.) To accept this would be to accept that Parliament can now
make this change unilateraly under the B.N.A. (No. 2) Act, 1949.
I have tried to expose my thoughts above with as little obscurity
as possible, and hope that you will find them readable. In order that
you would not utterly lose track by distended sentences, I have often
abbreviated the various parts of s. 2 of the Formula, even when I
used quotation marks; e.g. instead of “the powers of the legislature
of a province to make laws, (b) the rights and privileges granted or
secured to the legislature or the government of a province” I have
put “provincial powers”, and so on, where it would not mislead.
I trust that this will serve as some stimulus; and am most anxious
for the privilege of including you amongst our contributors.
No. 4″]
4.
HONOURABLE R. L. KELLOCK, Q.C.
Blake, Cassels & Graydon
Barristers, Solicitors
The Canadian Bank of Commerce Building
Toronto, 1
December 1, 1966.
Stephen A. Scott, Esq.,
Editor,
The McGill Law Journal,
3644 Peel Street,
Montreal, Que.
Dear Mr. Scott,
You have asked my opinion as to whether “the provisions of the
B.N.A. Acts of the following categories of classes –
(i) those provisions which set out the powers of the Parliament
of Canada;
(ii) those provisions which set out the powers of the Government
of Canada with respect to the appointment and removal of
judges, and those of the Senate and Commons of Canada
with respect to their removal;
those provisions which set out the powers of the Government
of Canada with respect to the appointment, instruction and
removal of Lieutenant-Governors;
(iii)
(iv) those provisions which set out the powers of the Government
of Canada with respect to the reservation of provincial bills
and disallowance of provincial acts;
(v) -those provisions which set out the powers of the Parliament
of Canada with respect to the implementation of treaties,
are provisions such that an Act of Parliament to amend the text of
the B.N.A. Acts as regards those provisions would be, in the words
of section 2 of the Fulton-Favreau formula,
“a law… affecting any provision of the Constitution of Canada
relating to
(a) the powers of the legislature of a province to make laws;
(b) the rights and privileges granted or secured by the Consti-
tution of Canada to the legislature or the government of a
province.”
With respect to paragraph (i) of your question, I assume you
are primarily concerned with the legislative powers of Parliament
such as are set forth in section 91 of the B.N.A. Act, rather than
with such sections as 18 and 105 which deal with matters quite foreign
in every way to the provincial sphere.
Dealing then with paragraph (i), the principle which has been
applied to the construction of sections 91 and 92 of the B.N.A. Acts
McGILL LAW JOURNAL
[Vol. 12
is that, while a law which is “in relation to” a particular subject
matter, for example, one given by section 91 exclusively to Parlia-
ment, may “affect” -the ambit of an exclusive legislative power given
to a provincial legislature by section 92, it will be operative notwith-
standing any such effect. A familiar illustration is afforded by the
effect of the enactment of the Insolvency Acts of 1875 upon the
operation of the Assignments and Preferences Acts of Ontario, and
again by their repeal in 1880, and once more by the later enactment
of the Bankruptcy Act.
In my opinion the word “affected” in section 2 of the formula is
used in the sense of “‘affecting the operation of”, the language em-
ployed in the proviso to section 94A of the B.N.A. Act, 14-15 Geo. VI,
ch. 32, namely,
“… no law made by the Parliament of Canada in relation to old
age pension shall affect the operation of any law, present or
future, of a provincial legislature in relation to old age pensions.”
In my view the draftsman of section 2 of the formula is to be
taken as having had in mind the same idea as had the draftsman and
the Imperial Parliament in the framing of section 94A.
Whether, therefore, federal legislation under the formula, if enact-
ed, be by way of express amendment of some head of section 92 or,
while being directed solely to the amendment of some head of section
91, has an indirect effect upon provincial jurisdiction, such legislation
would, in my opinion, be within section 2 and require the unanimous
consent of the provinces, whether its effect be to increase or decrease
the federal power.
With respect to paragraph (ii), it may well be that there is
sufficient interrelation between section 92, head 14 and sections 96
to 100 that an abandonment of federal jurisdiction under the latter
would enhance provincial jurisdiction. To the extent that this is so,
I would be of opinion that section 2 would apply.
With respect to paragraphs (iii) and (iv), my opinion is that
these are matters exclusively within the federal sphere and which,
moreover, by virtue of section 7 of the formula, are continued as
matters from which the provinces are expressly excluded. Accordingly
they fall within section 5 rather than section 2.
With regard to paragraph (v), my view is that a federal amend-
ment of section 132 of the B.N.A. Act, which would vest in Parliament
the power to withdraw from the provinces matters at present within
provincial jurisdiction by entering into a treaty with another country,
would clearly come within section 2 of the formula.
Yours truly,
R. L. KELLOCK
III. – From The Provinces
