NOTES
Note on the Nature of Legal Interest
in Constitutional Litigation
by Stephen A. Scott *
Well known as a civil liberties decision, Chabot v. Les Commis-
saires d’Ecoles de Lamorandi6re and A.-G. (Que.)’ is of significance
also upon the nature of the Attorney-General’s participation in litiga-
tion raising constitutional and other questions of ultra vires enact-
ments. With a seemingly-innocent procedural point raising very far-
reaching issues of substance, its lesson for the more jargon-minded
procidurier is perhaps that rights sui generis created uno flatu with
a procedural remedy ought cautiously to be construed secundum
subjectam materiam; putting the matter somewhat differently, the
academic, for his part, is likely to dwell on the dangers of allowing
procedural texts such dominance as to obscure the principles of the
substantive law.
Article 114 of the Code of Procedure2
‘Art. 114. The unconstitutionality of any statute of the Province or of
Canada, cannot be pleaded before the courts of original jurisdiction or of
appeal unless the party pleading the same has, at least eight days before
Editor-in-Chief, The McGill Law Journal; Third year law student.
1 [1957] B.R. 707. Judgment reversing the court below was given by Pratte J.;
Casey, J.; Hyde J. dissenting in part; Rinfret J. dissenting; Martineau J. dissen-
ting in part; Taschereau J.; and Owen J. dissenting in part. A majority found
for plaintiff; all save Rinfret J. agreeing that children could not be forced
in ‘neutral’ schools to receive Roman Catholic religious instruction against the
wishes of their parents. Those justices dissenting in part would, instead of
founding their order upon the true construction of the statute and regulations,
have found the regulations ultra vires insofar as they infringed upon the stated
principle.
2 Art. 114 a. of the Code of Procedure, originating in 19 Geo. V. c. 80 s. 1
(Que.), as amended by 9 Geo. VI c. 68 (Que.), went further to provide that
‘Whenever a party, in any proceeding, raises before the court the question of
the unconstitutionality of a law or part of a law of the Province or of Canada,
or the illegality or nullity of a proclamation of the Lieutenant-Governor or of
a proclamation or order of the Lieutenant-Governor in Council, only the reasons
or nullity can be invoked.’ The amending act of 9 Geo. VI inserted the words
extending the operation of Art. 114 a. to proclamations and orders, and similarly
added the last paragraph of Art. 114; and see note 3 infra.
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INTEREST IN CONSTITUTIONAL LITIGATION
137
the day fixed for the hearing, given to the Attorney-General notice of the
question which he intends to raise, with sufficient information to enable
him to understand the nature of his pretensions.
‘Upon such notice, the Attorney-General may intervene in the case on
behalf of the Crown, and take issue in writing on such questions.
‘The judgment of the court must mention such intervention and such
conclusions, on which it renders judgment as if the Attorney-General were
a party to the suit.
‘A copy of such judgment is forwarded without delay to the said
Attorney-General.
‘The foregoing provisions apply when the illegality or nullity of a
proclamation of the Lieutenant-Governor or of a proclamation or order of
the Lieutenant-Governor
in Council is raised before a court of original
jurisdiction or of appeal.’
was born in 1882 in ‘An Act to facilitate the intervention of the
Crown in civil cases, in which the constitutionality of Federal or
Provincial Acts is in question” 3, whose preamble, reciting that
‘Whereas, since Confederation, there have arisen and still arise daily
before the courts, in suits between private individuals, between corporations,
3 45 Vict. c. 4 (Que.), assented to 27th May, 1882. It read as follows:
‘1. No
question as to the constitutionality of any Act of the Province or of the
Federal Parliament, shall be raised before the Courts of Original Jurisdiction
or of Appeal, unless the party raising the same, shows to the Court that
he has, at least eight days before the day fixed for the hearing, given notice
to the Attorney-General of the question which he intends to raise, with sufficient
information to enable him to understand the nature of his pretensions; upon
such notice, the Attorney-General may intervene
in the case, on behalf of
the Crown, and take issue, in writing, on such questions, and the judgment
of the Court, whether it grant or refuse his conclusions, shall mention such
intervention and such conclusions, on which it shall render judgment, as if the
Attorney-General, were a party to the suit; and a copy of such judgment shall
be forwarded without delay to the Attorney-General. 2. This Act shall come
into force on the day of its sanction.’
Becoming s. 20 a. of the Code of Procedure of 1867 by virtue of R.S.Q.
1888, Art. 5856, this provision appeared with slight modifications as Art. 109
in the draft of the Code of Procedure of 1897, as contained in the Fourth Report
of the Commission for the Revision of the Code of Civil Prooedure (Quebec, 1896).
It attracted the attentions of the legislative committee created to scrutinize the
Report, who resolved ‘7. That article 109 be amended by substituting, for
the words: “No question as to the constitutionality of any statute of the
Province or of Canada can be raised before the courts of original jurisdiction
or of appeal, unless”, in the first three lines, the following:
“The uncon-
stitutionality of any statute of the Province or of Canada can be raised before
the courts of original jurisdiction or of appeal, only whenever”‘. (Journals of
Leg. Ass’y. December 22, 1896; committee’s report approved. See 31 Journals
of the Legislative Assembly at p. 213; Appendix No. 1 at p. 381.)
In the version brought into force by Proclamation of the Lieutenant-
Governor of 19th May, 1897, the provision appeared as Art. 114, with the textual
McGILL LAW JOURNAL
[Vol. 12
or between corporations and private individuals, questions of legislative
conflict between the Federal Parliament and Provincial Legislatures, and
more especially that of this Province, without there being any legal means
of permitting the Government
the legislative
prerogatives and rights of the Province, thus constituting an omission which
is prejudicial to the public interest’
to intervene and defend
bears reproduction in extenso to emphasize that the ‘intervention’
provided for is of a highly peculiar and exceptional character, here-
tofore unknown:
it creates in the Crown an interest of some sort
in the determination of a point of law.
In principle, no one, it would seem, not even the Crown, can
have an interest in a point of law as such, but only in legal rights
which, in consequence of facts, arise under the law; such is its interest
under Art. 114 b. in the beds of rivers, which it is allowed to assert
even in disputes between third parties inter se. The principle that
there is no interest in a point of law as such suffices, as the author
has emphasized elsewhere, 4 to support the result in Saumur V. A.-G.
for Quebec,5 where the appellant sought a declaration that a provincial
statute was ultra vires, he having however no other interest than
his feeling that the statute was enacted specifically to threaten his
civil liberties. But the question of the validity of an enactment is the
question whether or not the contents of that enactment form part
of the corpus of the law. Such a question is purely and simply a
question of law –
and this has certain important consequences.
First, no one can obtain advisory opinions from the Courts
except in pursuance of special statutory arrangements –
though the
dicta in the Saumur Case 6 condemning the declaratory judgment
(which, lacking any interest, the appellant could not have obtained
anyway) by supposed association with the advisory opinion, were, the
author has submitted, 7 gratuitous and wrong.
Second, the invalidity of the enactment, being matter of law
and not of fact, need not be –
pleaded.
Indeed, this provision, from its origin in 1882 until the Codifiers’
Fourth (and final) Report of November 7, 1896, spoke in terms not
of pleading such questions, but of raising them; and the old termino-
indeed ought not to be –
adjustments proposed by the Joint Committee, and with further alterations by
which the words ‘unconstitutionality… can be raised… only whenever.., the
party raising’ became
‘unconstitutionality… cannot be pleaded…
unless the party pleading’. The very material significance of the change of
the term raise to the term plead, is discussed below.
instead
4 Comment in (1965) 11 McGill L. J. 88.
5 [1964] S.C.R. 252.
6 Supra notes 4 and 5.
7 Loc. cit.
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INTEREST IN CONSTITUTIONAL LITIGATION
139
logy survived even the Report of the Joint Committee of both Houses,
concurred in by the Assembly. The variation in the Code as proclaimed
would thus seem a clear violation of s. 4 of the enabling statute (60
Vict. c. 48 (Que.), which provides that ‘The commission may make
the necessary alterations in the said roll which shall not alter the
substance thereof…’ ; consequently,
it may with great force be
argued that plead must be construed in the sense of raise unless
the variation is to be ultra vires. It is indeed remarkable that when
Art. 114 a. was added in 1929 8 the term used (despite its disappear-
ance from Art. 114) was raise; and the 1945 amendments 9 to both
those articles, increasing their scope to cover Proclamations and
Orders, again used the term raise, which therefore appears side by
side with plead in Art. 114.10
Third, if the invalidity of an enactment should not be pleaded,
still less ought a pronouncement of such invalidity to be concluded
for by way of relief; for no more than a pronouncement upon any
other pure question of law can it constitute relief stricto sensu. And,
fourth, by way of corollary of the foregoing, a pronouncement of
invalidity is not a direct but a collateral attack upon the enactment,
and does not operate to ‘quash’ it –
rather, the judge, in applying
fact to law, merely refuses to recognise it as part of the law.”
8 19 Geo. V. c. 80 s. 1 (Que.); assented to 22 February, 1929; note 2 infra.
99 Geo. VI c. 68 (Que.); assented to 1st June, 1945; note 2 infra.
10A comprehensive term covering both raise and plead is invoke; see e.g.
Tait J. in McCaffrey V. Ball (1889) 34 L.C.J. 91 at p. 98.
11 In Ministre de la Voirie v. Melcar Inc. [1964] B.R. 191, Tremblay C. J.
for the Court refrained at p. 195 from considering a constitutional question not
raised by the parties. It is of course common for courts to refrain from opening
questions of law not broached by the parties; that does not constitute a ruling
that they may not do so. In Eliosoff v. Comiti Paritaire du Camionnage [1964]
C.S. 483 Lamarre J. on certiorari against the Court of Sessions ruled upon
the validity of an order in council though the question had not been raised
below, and appeared to assume that compliance with Art. 114 was necessary
for him to do so.
The Magistrates Court appears to be strongly under the influence of a
doctrine to the effect that it cannot consider constitutional questions at all
even when such questions arise upon matters prima facie with their jurisdiction.
More especially have the Magistrates refused to consider such questions when
a finding of unconstitutionality would compel them to decline jurisdiction, a
position which must be contrasted with their apparent readiness in other respects
to construe the law relating to their jurisdiction –
subject always of course
to the supervision of the Superior Courts of Justice. Their doctrine on
constitutional questions would seem justified only upon the hypothesis that
they lack any jurisdiction to rule –
even subject to superior courts’ correction
upon any question of law as to their jurisdiction, whether such ruling be
–
affirmative or negative. See inter alia Bertrand v. Buissiares [1962] C.S. 480,
McGILL LAW JOURNAL
[Vol. 12
Accordingly, the pronouncement of the court, whether for or against
its validity, will, like any other pronouncement on a question of law,
have force for the future in exactly that degree –
no more and no
less –
that the courts abide by their precedents; though, obviously,
stare decisis may be either more or less stringent in constitutional
matter than in others.12
Fifth, the concept of res judicata applies to determinations of
rights, not to determinations of rules of law (whose authority, it has
[1962] R. P. 208; and also Vaillancourt v. Gagnd [1963] C.S. 77, where a
circular argument is used, and the conclusion is reached that the Magistrate’s
Court is bound by a provision giving it jurisdiction until that provision is
declared unconstitutional. In effect, the result of such practice is to give an
affirmative ruling upon the validity of the imprugned enactments, not to refrain
from such a ruling. It is perfectly true, as the Magistrates are concerned to
stress, that application may be made to the Superior Courts to control the
activities of the Magistrates carried on in pursuance of invalid enactments,
especially when the invalid enactment
is determinative of the Magistrates’
jurisdiction. But it is a non sequitur to suppose that the Magistrates are
therefore bound to take rather than to decline a jurisdiction based upon an
impugned enactment. Still more is it a non sequitur to suppose that they must
apply an impugned enactment to matters in respect of which their jurisdiction
is unchallenged.
12 Compare e.g. Viscount Simon’s observations for their Lordships’ Board in
A.-G. (Ont.) v. Canada Temperance Federation [1946] A.C. 193 at p. 206:
‘Their Lordships do not doubt that in tendering humble advice to His Majesty
they are not absolutely bound by previous decisions of the Board, as is the
House of Lords by its own judgments… But on constitutional questions it
must be seldom indeed that the Board would depart from a previous decision
which it may be assumed will have been acted on by both governments and
subjects’ with the dicta in the opinion of Reed J. for the United States Supreme
Court in Smith v. Allwright: ‘… we are not unmindful of the desirability of
continuity of decision in constitutional questions. However, when convinced of
former error, this Court has never felt constrained to follow precedent.
In
constitutional questions, where correction depends upon amendment and not
upon legislative action this Court throughout its history has freely exercised
its power to reexamine the basis of its constitutional decisions. This has long
been accepted practice, and this practice has continued to this day…’ (1944)
321 U.S. 649 at p. 665; and the remarks of Chief Justice Taney in the same
Court in Smith v. Turner (‘Passenger Cases’) (1849) 7 Howard 283 at p. 470:
‘After such opinions, judicially delivered, I had supposed that question to be
settled, so far as any question upon the construction of the Constitution ought
to be regarded as closed by the decision of this court. I do not, however, object
to the revision of it, and am quite willing that it be regarded hereafter as the
law of this court, that its opinion upon the construction of the Constitution
is always open to discussion when it is supposed to have been founded in error,
and that its judicial authority should hereafter depend altogether on the
force of the reasoning by which it is supported.’
It would appear that the
Privy Council judgment expresses greater reluctance to disturb constitutional
decisions than others; the U.S. Supreme Court decisions, less.
No. 1]
INTEREST IN CONSTITUTIONAL LITIGATION
141
or against the whole world –
been observed, rests only upon the distinct principles of stare decisis).
A may secure against B –
a decree
to the effect that he has a right of property, an immunity from
taxation, a power of appointment, a right to exact payment of a
certain sum of money from someone, and so forth, and that decree
may bind the parties, or the whole world (as certain decrees in rem
do) once the judgment becomes final and unappellable. But even
at the risk of being so brazen as to suppose anything to be impossible
for the Attorney-General, will anyone imagine that A (even if he
be Attorney-General) may obtain as against B a decree, with the
that the law is X or Y or Z ? An
binding force of res judicata –
enactment evidently cannot be law as between A and B and not law
as between A and C; the law is the same for all, and does not differ
between sets of parties; and anyone who seeks refuge in the argument
that a pronouncement of validity or invalidity (though given in
litigation between A and B) sustains or quashes the enactment as
against the whole world, will find this comfort cold when called upon
to explain whether default by the Attorney-General to appear or to
plead, or to appeal within the time limit, or his consent, will produce
a decree (in e.g. the Superior Court) binding the Legislature –
so
as to prevent, for instance, any reconsideration of the question in a
higher court in any future case. The self-evident absurdity in such
suggestions is derived partly from identifying the personality of
the Attorney-General with that of the Legislature – which, for that
matter, probably has none. But even as regards the exercise of
delegated legislative powers by proclamation or order in council, where
the absurdity it less apparent than where a statute is impugned as
ultra vires of the Legislature, who would contend that a default by
the Attorney-General to contest at first instance or to appeal in time,
would work a quashing of regulations forever ? And, indeed, in
Chabot’s case, no distinction was suggested between the application
of Art. 114 to regulations and its application to statutes. It
is
indeed, that so far is the gulf qualitative and not
submitted,
quantitative between stare decisis and res judicata, that a regulation
remains a legislative enactment howsoever specific it may be.13
1- Thus, even if in litigation between A and the Crown A challenges the
validity of a Crown regulation specifically prohibiting A by name from selling
liquor on January 1st, 1966, at a certain street address, still the decree should
not purport to invalidate or declare invalid the regulation itself, but rather to
declare that A has the liberty to do the specified thing; or, at most, that no
right title or interest will arise in the Crown to any fine or penalty in
consequence of doing the thing purported to be prohibited. This, it is submitted,
is not a quibble, but an application of a clear principle systematically to the
extreme case.
McGILL LAW JOURNAL
[Vol. 12
These considerations do not, however, appear to have been
present to the mind of Rinfret J. in delivering his dissenting opinion
in Chabot’s Case 14 in the Court of Queen’s Bench holding that a
failure by the appellant (in invoking the nullity of certain regulations
allegedly infringing religious liberties in education,) to appeal against
a successful intervention in the Court below by the Attorney-General
in defence of those regulations, precluded the appellant from raising
the question anew in the appeal he had taken against the school
commissioners with regard to his application for mandamus; and
concluding that the result of the intervention being final, the require-
ments of Art. 114 could not be satisfied by a new notice of eight days
in the Court of Appeal. His Lordship observed: 1r
‘… . la situation dtait la suivante: un jugement avait 6t rendu, par une
Cour comp6tente pour entendre la cause, tant sur la demande de mandamus
que sur Ia declaration d’inconstitutionnalit6; un pourvoi en appel avait
6t0 form6 dans les d6lais 16gaux contre les d6fendeurs sur ]a question de
mandamus, mais aucun appel n’avait 6t6 enregistr6 contre l’intervenant A
t6
l’encontre de la declaration d’inconstitutionnalit6. Cette question avait
td form6 dans les dlais lgaux, le
plaid~e et vidge; aucun appel n’ayant
droit d’appel s’6tait 6teint le 28 octobre 1955.
‘Devant cette situation, le demandeur a donna, le 16 janvier 1956, un
nouvel avis au procureur gdn6ral, en se basant sur l’art. 114 C.P., et cette
fois devant la Cour d’appel.
‘Quelle est la valeur de cet avis ? Le d~lai d’appel est de rigueur; l’on
ne peut pas, par une autre procedure, circonvenir l’art. 1209 C.P. Le droit
d’appel 6tant perdu, on ne peut pas le faire revivre. Ce serait, h mon avis,
Sl’encontre de l’ordre public que de permettre h un plaideur d’utiliser l’art.
114 C.P. pour faire 6chec aux prescriptions de rigueur de l’art. 1209 C.P.
Je ne vois pas que la situation en soit changde du fait que l’une des parties
en cause soit le procureur g6nral et que la question en jeu en soit une de
constitutionnalith.
‘L’article 114 C.P. dit bien que l’inconstitutionnalit6 d’une
loi de la
Province ne peut 6tre plaid~e A moins que la partie qui la plaide n’ait donn6
l’avis requis, et ce, devant les tribunaux tant de premire instance que
d’appel; mais il dit 6galement que le procureur g6n~ral, s’il intervient, doit
6tre considdr4 comme s’il 6tait partie au litige. Les dispositions de l’art.
1209 C.P. s’appliquent dans son cas comme dans tous les autres, en sa
faveur ou contre lui.
‘L’article 114 C.P. doit s’interpr~ter de fagon A ne pas entrer en
conflit avec l’art. 1209 C.P., et cette interprdtation est, je le soumets, la
l’avis du procureur ganaral ne peut 6tre donn6 devant le tribunal
suivante:
d’appel que lorsque la question d’inconstitutionnalit6 y est soulev~e et plaid~e
pour la premiere fois, sans avoir 6t6 prasentae au tribunal de premire
instance et sans que jugement soit intervenu pour trancher le litige d6jA
engag6.
14 Supra, note 1; [1957] B.R. 707 at p. 743-4.
1 Ibid.
No. 1]
INTEREST IN CONSTITUTIONAL LITIGATION
143
‘Lorsque la question d’inconstitutionnalit6 a
t6 soumise en premibre
t6 vidge par un tribunal competent, que le procureur
instance, qu’elle a
g~n~ral par son intervention est devenu partie au litige, le seul recours
ouvert au plaideur non satisfait est celui de rappel du jugement rendu;
faute par la partie int~ress~e de s’en prdvaloir, elle perd le droit de soulever
cette question de nouveau devant le tribunal d’appel.
‘Le second avis ne rencontre donc pas les exigences de l’art. 114 C.P.;
il doit 6tre rejet.’
It is quite evident in the foregoing remarks that his Lordship
wishes to interpret the section so as to make rulings of law part of
the object of the judicial decree; and his Lordship does not scruple
expressly to invoke res judicata: 16
‘L’un des moyens all~gu~s par le procureur g~n~ral au soutien de ses
conclusions est pr~cisment la question de chose juge…
‘… il y a oppos6 la pr6somption juris et de jure qui ddcoule de l’autorit6
de la chose jug~e; il a soutenu que se rencontrent ici les conditions de ]a
chose jugde:
identit4 d’objet, de cause, de parties et de choses.
‘I n’a pas fait valoir ( mon avis, ii l’aurait pu) l’estoppel by record
du droit britannique.
‘I serait, je le r~p~te, excessivement dangereux et contraire 4 l’ordre
public d’interprdter l’art. 114 C.P. de fagon A permettre la circonvention de
l’art. 1209 C.P. et h faire en mbme temps tomber la pr~somption qui s’attache
la chose jug~e.’
The answer to Rinfret J. is, evidently, that since Art. 114
purports to constitute an obstacle to raising an argument of law
in a Court of Appeal – which in principle the Court should apply
that article must not create obstacles beyond those
proprio notu –
needed to effectuate its purpose; which purpose is no more than an
eight-day notice to the Attorney-General to allow him to argue the
questions raised. Notice eight days prior to hearing satisfies this
purpose every bit as effectually when grounds of ultra vires have
been ruled on below as when they have not; and, moreover, on
principle the ordinary rules relating to interventions are inapplicable
insofar as those rules presuppose res judicata, seeing that matter
of law is not the object of a judicial decree. And more especially
must the Article be so understood when its literal terms not only
admit of, but invite, that construction. The formal judgment of the
Court merely refers to a second intervention by the Attorney-General
on notice under Art. 114 C.P.; and, apart from a remark by Hyde J.17
that appellant was entitled to his argument on prescribed notice, the
majority in no way deals with the fundamental issues arising from
the opinion of Rinfret J.
10 Ibid., p. 745.
17 Loc. cit. at p. 727.
McGiLL LAW JOURNAL
[Vol. 12
Had Rinfret J.’s opinion prevailed, the implications of a res
judicata in questions of constitutional law must ultimately have
raised serious issues for the Supreme Court of Canada, far trans-
cending the bounds of procedure. Even as it is, the article purports
to impose an eight-day notice as condition precedent to invoking
the nullity of various enactments 18 –
a nullity which, as has been
observed, is in principle applicable proprio motu by the Court, without
plea or argument. To impose such a condition precedent to invoking
nullity is to deprive the enactment of the consequences of its nullity
– which, at least as regards impugned statutes, is of very doubtful
constitutionality.” Can the Legislature competently protect its enact-
ments from the consequences of their nullity ? So to hold is to hold
that it may obliterate the difference between what is intra vires
and what is ultra vires, and give all the same effect as if intra vires.
1sIt has been assumed throughout that the proclamations and orders
in
council dealt with by Art. 114 are legislation. How far different considerations
apply to executive acts in the form of proclamations and orders in council, is
beyond the scope of the present note.
19 See e.g. Magistrates Privileges Act R.S.Q. 1964, c. 25, s. 6:
‘No action shall
be brought against a judge of the sessions, district judge, justice of the peace,
or any official whatsoever, by reason of any act done in virtue of a statutory
provision of Canada’or of the Province, for the reason that such provision is
unconstitutional.’ Even assuming that provincial legislation mitigating the
consequences of error of law is valid as legislation in relation to property and
civil rights in the province, it by no means follows that specific legislation,
singling out unconstitutional legislation for this treatment, is also valid. A
general elimination of the consequences of error of law might be legislation
in relation to civil rights which would only inter alia deal with ultra vires
legislation, incidentally affecting it. When ultra vires legislation is given special
attention by a statute, that statute is legislating in relation to ultra vires
legislaton. See B. C. Power v. B. C. Electric [1962] S.C.R. 642, where the
Supreme Court of Canada held (Abbott J. dissenting) that the Crown could not
invoke its immunity
to withhold from receivership property, the object of
litigation, which was taken under legislation whose constitutional validity was
itself impugned. That is a very extreme ruling; one need not go nearly so
far in order to concluded that the Magistrates Privileges Act purports invalidly
to deprive unconstitutional legislation of the results of unconstitutionality. The
B. C. Power decision goes much further, it means that had the Crown, in effect,
taken possession by an unequivocal tort –
its possession
would have been secure; but the mere passage of a void statute renders its
possession precarious. The B. C. Power decision says that not only must the
Province submit to all the ordinary legal consequences of the invalidity of its
enactments, but it must also suffer some extra ones for good measure.
a wanton outrage –
