McGILL LAW JOURNAL
[Vol. 26
NOTE
Opinion submitted to the Foreign Affairs Committee of the
House of Commons of the United Kingdom on the Role of
the United Kingdom Parliament in Relation to the British
North America Acts
Shortly after the Government of Canada tabled its proposed
constitutional resolution in the House of Commons at Ottawa on 3
October 1980, the Foreign Affairs Committee at Westminster, under
the chairmanship of Sir Anthony Kershaw, undertook an inquiry
that would culminate in a report to the House of Commons of the
United Kingdom on various aspects of constitutional reform in
Canada. Sir Anthony’s committee sought the advice and opinion of
constitutional specialists.
The Editors of the McGill Law Journal are pleased to publish
an opinion submitted by Stephen Allan Scott, an advocate in the
Bar of Quebec and Professor of Law, McGill University. As an
opinion it is printed without editorial emendation in quasi-facsimile.
This opinion was not received by the Foreign Affairs Committee
before its First Report, of 21 January 1981, British North America
Acts: The Role of Parliament, H.C. 42, Volume I (Report, with
Appendices) and Volume II (Evidence and Appendices).
January 14, 1981
John Rose, Esq.,
Clerk to the Committee,
Foreign Affairs Committee,
House of Commons,
London, England
SWIA OAA
Dear Mr. Rose,
I write in reply to your letter of 13 November inviting me to submit
a brief paper on the subject of the Committee’s order of reference, to which
your letter refers as “the role of the United Kingdom Parliament in relation
to the British North America Acts”.
In order that my discussion be kept reasonably brief and pertinent,
the
it is necessary
proposals which raise the question as to the nature of that role.
to make some reference
to the general nature of
On October 2, 1980, the Government of Canada published a Proposed
Resolution for a Joint Address to Her Majesty the Queen respecting the
Constitution of Canada, intended for passage by both houses of the Parlia-
Summary
1981]
NOTE
ment of Canada and transmittal to Westminster for implementation by the
Parliament of the United Kingdom.
In moments of pessimism – as I have already confessed to the Canadian
the temptation has
joint parliamentary committee studying this proposal –
been to adapt the language of William Butler Yeats to ask “What rough
to be
beast, its hour come round at last, slouches towards Westminster
born?” But I have come to the conclusion that it would be in accordance
with both the law and the practice of the constitution for the United
Kingdom Parliament to comply with a request in those, or in any comparable
terms, should one be made in due course. By a “comparable” request I
mean any request that the United Kingdom Parliament enact a statute
creating domestic Canadian constitutional amendment processes to supersede
the existing authority of the United Kingdom Parliament, and accompanying
notably a charter
this transfer of constituent power with other reforms –
even though these reforms may have
of guarantees of rights and freedoms –
significant effects upon the legislative or other authority of the Canadian
provinces.
My opinion, in -summary, is this.
(I.) As a matter of strict law, the legislative authority of the Parliament
of the United Kingdom to enact the proposed legislation, or any comparable
legislation, is absolute and without qualification of any kind.
(II.) As a matter of constitutional practice, amounting probably to a
convention of the constitution, the United Kingdom Parliament will, regard-
less of the subject or nature of -the measure, exercise its remaining legislative
authority for Canada on the basis that a request of the Senate and of the
House of Commons of Canada is both (1) a necessary, and (2) a sufficient,
condition for “Imperial” legislative action. In so doing the United Kingdom
Parliament will have no regard to whether there exist in Canada any
“domestic” Canadian constitutional practices or conventions, or whether, if
there be any, they have been complied with.
(III.) There is no settled convention in Canada restricting the cir-
cumstances in which the Senate and House of Commons of Canada can
to
properly approach
exercise its legislative authority with respect to the whole or any part of
Canada.
the United Kingdom Parliament with a request
I shall elaborate briefly on each of these matters. In so doing, it will
be convenient from time to time to use the term “Imperial Parliament” –
a phrase of more than merely colloquial standing (see s. 1- of the Colonial
Laws Validity Act, 1865, 28 & 29 Vict., c. 63 (U.K.)). It may be read inter-
changeably with the more formal but lengthy style “Parliament of the
United Kingdom”, or those of its predecessor Parliaments.
I. The Law
“[T]he King’s Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons of Great Britain, in Parliament as-
sembled, had, hath, and of right ought to have, full power and authority to
make laws and statutes of sufficient force and validity to bind the colonies
and people of America, subjects of the Crown of Great Britain, in all cases
whatsoever.” These blunt and succinct terms are those which the british
Parliament itself chose, in 1766, to state the law which, in its view, governed
McGILL LAW JOURNAL
[Vol. 26
–
its political relations with the colonies within the King’s dominions
more particularly, the North American colonies. The statute in which it did
so, An Act for the better securing the Dependency of His Majesty’s Domin-
ions in America upon the Crown and Parliament of Great Britain, 6 Geo.
3, c. 12 (G.B.), known in the American colonies as .the “Declaratory Act” (and
much later, by the Short Titles Act, 1896, styled The American Colonies Act,
1766) represented in effect a joinder of issue with what became prevailing
opinion in the “thirteen colonies”. Indeed it was one of the steps towards
the outbreak of the American Revolution. It survived the particular historical
circumstances which induced its passage, standing on the British statute book
until its repeal by the Statute Law Revision Act, 1964 (1964 c. 79) as one of
a number of enactments which were collectively declared
(s. 1) to be
“obsolete, spent or unnecessary or … superseded by other enactments”.
The more modern authoritative statement of Imperial legislative su-
premacy is of course that contained in the Colonial Laws Validity Act, 1865
(“in Imperial history clarum et venerabile nomen”: per Lord Birkenhead,
L.C., speaking for the Privy Council in McCawley v. The King, [1920] A.C.
691 at p. 709). Here the governing principle is stated more elaborately, and
also more generally as to its geographical application, than it had been in
1766. The rule of Imperial legislative supremacy is on this occasion implicit
in the statutory statement of the converse rule –
colonial legislative subordi-
nation –
found in sections two and three of the Act, which must be read with
the defining provisions of section one. But its effect is not on that account
any the less absolute.
This, then, was the legal position of Canada vis-h-vis the Imperial Parlia-
ment, on 11 December 1931, the date of enactment of the Statute of West-
minster, 1931, 22 Geo. 5 c. 4 (U.K.). It made two crucial reforms. Section
two (read with s. 7(2)) allowed the Canadian Parliament and provincial
legislatures to make laws repugnant to Imperial statutes. Section 4 provided
that “No Act of Parliament of the United Kingdom passed after the com-
mencement 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.”
It may be observed that section 4 of the Statute, read literally, makes
extension of Imperial Acts conditional, not upon the fact of “Dominion”
request and consent but rather upon mere statutory recital of that fact.
Section 4 thus technically depends for its effectiveness on Imperial bona
fides. The “sovereignty” which it confers on the “Dominion” accordingly
suffers what, in a formal sense at least, is a significant qualification. In
practical terms this qualification makes legally irrelevant (and so judicially
unreviewable) the sufficiency of “Dominion” request and consent (whether
as between central and local institutions, or as between legislative and
executive authorities, or otherwise).
Much more far-reaching than any qualification found in the text of
section 4 of the Statute of Westminster, 1931, is the effect on the Statute
of subsection 7(1). Opinions may differ as to the scope of the latter, but
on any view it is a provision of profound constitutional significance. Sub-
section 7(1) speaks categorically: “Nothing in this Act shall apply to the
repeal, amendment or alteration of- the British North America Acts, 1867 to
1930, or any order, rule or regulation made thereunder.”
19811
NOTE
Subsection 7(1) plainly overrides section 2, –
troversy the constitutional supremacy
America Acts, 1867 to 1930.
in Canada of
so placing beyond con-
the British North
Does subsection 7(1) also override section 4 –
so preserving intact to the
Imperial Parliament its absolute legislative freedom (as a matter of strict
law) to repeal, amend or alter the British North America Acts, 1867 [to
1930]?
In my opinion it does. And these considerations lead me to my conclusion.
A statute is not a theme upon which courts of law are invited to spin
variations, nor a suggestion thrown to them for whatever they may think it
worth. It is a peremptory exercise of arbitrary power. It must be taken to
mean what it says unless the clearest and most cogent grounds point to
some other conclusion.
Now subsection 7(1) uses the words “Nothing in this Act”. Section 4,
undeniably, is “in” the “Act”. It is in the Act quite as much as is section 2.
The words of subsection 7(1), if literally construed, therefore control section
4 quite as surely as they control section 2. Doubtless some reasons can be
advanced for regretting this literal reading of subsection 7(1), and for
preferring a narrower interpretation. But these reasons are, in my view, very
far indeed from supporting a conclusion that Parliament could not have
contemplated section 4 when it said, in categorical terms, that “Nothing
in this Act” (my emphasis) should apply to the repeal, amendment, or
alteration of the British North America Acts, 1867 to 1930.
It may be said, quite rightly, that no anomaly would have resulted had
subsection 7(1) been confined in its terms to controlling section 2, and that
no anomaly results from reading it in this way. But it is equally certain that
subection 7(1)
is applied as
controlling section 4 also –
so leaving the constitutional position of the
British North America Acts, 1867 to 1930 in law completely unchanged by
the Statute of Westminster, 1931.
is in no way bizarre in its operation if it
If subsection 7(1)
is to be applied otherwise than literally, clear and
cogent grounds must be advanced to show that the United Kingdom Parlia-
ment cannot have meant what it said.
He who would advocate an interpretation of subsection 7(1) sufficiently
restrictive to prevent its application to section 4 –
and its suppression of
that section, where the amendment of the B.N.A. Acts is in question, must
bear the burden of justifying such a departure from the principle of literal
interpretation. But the arguments available to him in attempting to discharge
his burden seem to do no more than allow him to show that it would have
been at least equally reasonable for the Imperial Parliament to adopt a
course of legislation other than that grammatically indicated by the text
of its enactment. Concede even that such a course would have been more
reasonable. The available arguments, however, stop far short of showing
that the Imperial legislature could not have meant, with reference to section
4, what it said, in unqualified terms, in subsection 7(1). The conclusion,
then, must be that subsection 7(1) does apply to, and does override, section
4. But as a contrast we can usefully consider the point that subsection 7(1)
is itself “in this Act”. To apply that subsection to itself would annihilate
its effect altogether. That such is not the proper construction does in this
McGILL LAW JOURNAL
[Vol. 26
instance follow as a matter of necessary implication. So subsection 7(1)
does not apply to –
subsection 7(1) itself.
does not override –
The Imperial Parliament, in sum, has, through the enactment of sub-
section 7(1) of the Statute of Westminster, 1931, retained what may be thought
of as an unrestricted power of appointment over public authority in Canada
legislative, executive, and judicial. As a matter of strict law, it retains,
–
in my view, absolute and unrestricted constituent authority for Canada.
Indeed, various Imperial Acts amending the British North America Acts have
employed language different in form (though indistinguishable in substance)
in the addresses
from that proposed in the requests contained
to the
Sovereign passed by the houses of the Canadian federal Parliament.
II. The Constitutional Practice at Westminster
What, then, is the constitutional practice?
Sir William Jowitt, then Solicitor-General and later Lord Chancellor,
seems to me to have provided the definitive statement of the constitutional
practice in the Westminster Parliament on amendments to the British North
America Acts. The passage of the British North America Act, 1940, provided
the occasion for his remarks. The Act of 1940 was of course a constitutional
amendment which altered the distribution of legislative authority as between
the Parliament of Canada and the legislatures of the Canadian provinces. On
10 July 1940, during passage of the bill in the House of Commons of the
United Kingdom (362 U.K. Parl. Deb., 5th Ser., H.C. 1177-1181) the honourable
member for Wolverhampton East (Mr. Mander) put this question: “In this
bill we are concerned only with the Parliament of Canada, but, as a matter
of interest, I would be obliged if the Solicitor-General would say whether
the Provincial Canadian Parliaments are in agreement with the proposals
submitted by the Dominion Parliaments ..
In responding, Sir William Jowitt spoke in these terms:
“… One might think that the Canadian Parliament was in some way
subservient to ours, which is not the fact. The true position is that at
the request of Canada this old machinery still survives until something
better is thought of, but we square the legal with the constitutional
position by passing these Acts only in the form that the Canadian
Parliament require and at the request of the Canadian Parliament.
My justification to the House for this Bill –
and it is important to
observe this –
is not on the merits of the proposal, which is a matter
for the Canadian Parliament; if we were to embark upon that, we might
trespass on what I conceive to be their constitutional position. The sole
justification for this enactment is that we are doing in this way what the
Parliament of Canada desires to do ….
In reply to the hon. Member for East Wolverhampton (Mr. Mander),
I do not know what the view of the Provincial Parliaments is. I know,
however, that when the matter was before the Privy Council some of
the Provincial Parliaments supported the Dominion Parliament. 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.”
19811
NOTE
This appears to me to be a statement of the greatest importance. First,
it is one made by a law officer of the Crown, and indeed by a person of
special legal eminence. Second, it is more or less contemporaneous with
the reforms of law and practice effected by the Imperial Conferences of
1926 and 1930 and by the Statute of Westminster, 1931. Third, it was made in
the course of debate on a bill transferring exclusive provincial legislative
jurisdiction to the Parliament of Canada. Fourth, it was made in direct
response to a question raised as to be the extent of provincial concurrence.
A similar position has been taken on other occasions. The British North
America Act, 1943, involved not the rights or powers of any province as a
legal entity, but, in a general way, the collective interests of its inhabitants
in the distribution of seats, as amongst provinces, in the federal House of
Commons. The Legislative Assembly and executive government of Quebec
protested against the measure, but an address to the Sovereign. was never-
theless carried through both houses of the federal Parliament. In the
course of passage of the bill through the United Kingdom House of Commons
(391 U.K. Parl. Deb., 5th Ser., H.C., Vols. 1100-1104) these remarks were made:
The Secretary of State for Dominion Affairs (Mr. Attlee): I beg to move
“That the Bill be now read a Second time.”
I would like to explain briefly to the House the circumstances in
which this Bill has been brought before the House.
The reason why the matter comes before this House is this: there
is no power conferred by the Act of 1867 on the Canadian Parliament
to deal with this matter. From time to time, the question has been
discussed in Canada of whether some method should not be devised
in order that Canada should amend its own Constitution, but there has
never been any agreement on that. At the time of the passing of the
Statute of Westminster, an express provision was made at the request
of the Government of Canada, taking out from the general powers then
conferred any power to amend or repeal the British North America
Act, and the procedure therefore for amending the British North America
Act remains as it was before the Statute of Westminster. This procedure
has for many years been followed on the basis of an Address presented
to the King by both Houses of the Canadian Parliament, and that is
what has been done on this occasion. I understand that the Address was
carried in both Houses by very large majorities. The Clauses of the Bill
follow substantially the terms of the Address passed in the Canadian
Parliament, and the Recital corresponds closely with that adopted on the
last occasion on which similar legislation was passed here.
Mr. Mander (Wolverhampton, East): I desire to facilitate the passage
of the Measure in every way, but there is one point that I should like
to raise and ask the right hon. Gentleman to comment on. I have re-
ceived 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 Parlia-
ment. In view of the fact that these representations have been made,
would the right hon. Gentleman say to what extent there appears to
be any difference of opinion among the Provinces?
McGILL LAW JOURNAL
[Vol. 26
Mr. Maxton (Glasgow, Bridgeton): I should like to reiterate the point
made by the hon. Member for East Wolverhampton (Mr. Mander). I
accept the assurance of the right hon. baronet that during his very
short visit to Canada he got a complete low-down on the whole situation,
but 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 was carried in both Houses by very
large majorities. Perhaps
the hon. Member for East Wolverhampton
(Mr. Mander) will consult with his Leader as to the specific point that
he put. 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 mino-
rities, but they become the act of the Legislature.
Mr. Stephen (Glasgow, Camlachie): I thought I heard the right hon.
Gentleman say that all parties were in agreement in Canada with regard
to this legislation, but it appears from what he has said subsequently
that that is not the case. There are parties which are not in agreement.
He also says that the fact that both Houses have passed it should
be sufficient for this House. The fact that the Act 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 (Altrincham): I suggest that it is really improper
in 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.
I quote lastly a question and written answer given in the United Kingdom
House of Commons on 10 June 1976 (912 U.K. Parl. Deb., 5th Ser., H.C., p.
719) because, although recent, the exchange occurred before the current
proposals were produced or (at least in their present form) even conceived:
“Mr. Cartwright asked the Secretary of State for Foreign and Common-
wealth Affairs what proposals he has received from the Canadian Govern-
ment about their plans to request the patriation to Canada of the
British North America Acts of 1867 to 1946.
“Mr. Hattersley: I have received no proposals from the Canadian
Government on this matter. The British North America Acts, which
contain the constitution of Canada, can be amended in certain important
respects only by Act of the United Kingdom Parliament. The Canadian
19811
NOTE
Prime Minister has expressed publicly the desire of the Canadian Govern-
ment that this power of amendment should be a matter of Canadian
competence and should no longer be exercisable by the United Kingdom
Parliament. If a request to effect such a change were to be received
from the Parliament of Canada it would be in accordance with precedent
for the United Kingdom Government to introduce in Parliament, and for
legislation in compliance with the
Parliament to enact, appropriate
request.”
These various remarks in the United Kingdom House of Commons are
doubtless already familiar to you. I have quoted them at length here
essentially to show that, at all events since 1931, governments of all political
persuasions in the United Kingdom have taken a consistent position on the
governing legis-
proper constitutional practice –
lative action by the United Kingdom Parliament for Canada.
perhaps “convention” –
That position appears to me to be essentially this: an address carried
through both Houses of the Parliament of Canada is, so far as the United
Kingdom Parliament is concerned, both a sufficient and a necessary con-
dition for an Imperial statute substantially in accordance with the request;
in
and this is so whether or not there exist practices or “conventions”
Canada pertaining to the circumstances when a federal parliamentary address
is proper, and whether or not in my given instance these practices have
been followed or these conventions complied with.
My opinion on this point is, I should emphasize, quite consistent either
with the presence or absence of pertinent conventions in Canada. I argue
simply that Westminster does not look behind the federal parliamentary
joint address.
If I am right, the existence and nature of conventions within Canada
will not be of direct or immediate interest to you. Before I proceed to speak
those which I have already
of them briefly, I wish to place my remarks –
made and those which follow in the concluding part of this submission –
in a rather wider context than they may themselves suggest.
Constitutional theorists have vied with one another for imagery suffi-
ciently vivid to convey, with enough force, the absblute nature, in the law of
the United Kingdom, of the legislative sovereignty of its Parliament. The
power to do all ‘save make a woman a man, or a man a woman’ is by Sir
traced to the mid-
Robert Megarry (A Second Miscellany-at-Law, p. 107)
seventeenth century. Dicey, quoting Leslie Stephen, spoke of an Act
providing for the killing of blue-eyed babies (Dicey, Law of the Constitution,
10th ed., p. 81).
I do not argue that any such extreme formulation is, at least for the
present, appropriate in any statement of the practice or the convention now
governing the United Kingdom Parliament’s surviving legislative authority
for Canada. Extreme and highly-coloured hypotheses of possible federal
requests can of course be invented.
The outright abolition of the Canadian federal system affords one
example; the elimination of one or more provinces another. How would it
be proper for the United Kingdom Parliament to respond to such requests?
My answer is that requests for cataclysmic changes would have to be judged
in the light of the circumstances. What might be unacceptable today might
be quite appropriate in the wake of rebellion or nuclear war.
McGILL LAW JOURNAL
[Vol. 26
For the moment, in dealing with the current proposals for an amending
formula and a charter of guarantees of rights and freedoms, it is enough
to assess them broadly, and having done so, – without entering upon the
merits or deficiencies of particular provisions –
conclude that, taken as
an aggregate, they (or any broadly similar scheme) are far from the extreme
cases where the United Kingdom Parliament might think itself obliged to
make itself the arbiter on the merits. We need not argue that every request,
however outrageous or extravagant, must be complied with on the spot.
What is the case made by those who advocate refusal by the United
Kingdom Parliament to act on such a proposal without the consent of all
– or at all events, of most – of the Canadian provinces? They must, and do,
argue essentially that the current proposals, or others that might resemble
them, differ from those enacted in the past by the United Kingdom Parlia-
ment without provincial concurrence. The current (or similar) proposals
would (it is alleged) be subversive of the federal system.
and I press this upon you –
that the United,
Kingdom Parliament cannot accede to any such argument about subversion
of the federal system without a very close review of the operation of the
Canadian federal system, and of the necessity or opportunity of the measures
proposed in, the light of the nature of that system. This means, in effect,
a review of the proposals on their merits.
To me it is evident –
The Committee have made it clear that it has no wish to embark upon
any such inquiry. It is evident that the United Kingdom House of Commons
would shrink from such an undertaking. This instinct is, in my view, sound.
For on the face of the proposals
their essential character may be
sufficiently ascertained to enable the United Kingdom Parliament to conclude
that they are not subversive of the federal system. The proposed amendment
mechanism (which is broadly comparable to that of the Australian federation)
protects the provinces to a degree quite acceptable in any normal federal
system. The charter of rights and freedoms is of a character comparable
to what may be found in the constitution of a modem liberal-democratic
federal state, or indeed in that of a community of states.
So much being evident on a cursory inspection –
necessarily undertaken
to ascertain what it is that the United Kingdom Parliament is being asked to
do, and what principles govern its proper response –
the scheme cannot
then be found subversive of the federal system unless the test is to be
simply whether or not it has an effect on the status or powers of the pro-
vinces.
But consider the nature of the inquiry to which such a test, if adopted,
would lead.
Any constitutional amendment formula necessarily has the most profound
impact on the constitutional system as a whole, including the status of the
provinces. In effect, the amendment formula indeed defines their status,
as it defines the status of all else.
Is the United Kingdom Parliament then to conclude that no “patriation”
no constitutional amendment formula –
is to be introduced without the
–
unanimous consent of all the provinces? If not all provinces,
then what
number? Will the consent of executive governments suffice? Does it matter
whether consent of a province has unreasonably been withheld? What are
reasonable grounds? Is it unreasonable to withhold consent to an amending
19811
NOTE
formula until concessions are made on collateral matters? What is the
history of the federal-provincial negotiations on an amending formula? Would
it be relevant to show that unsuccessful negotiations had been conducted
at various intervals over the past fifty-five years?
Surely the United Kingdom Parliament could not reasonably refuse to
act on a federal parliamentary joint address without reviewing such matters.
Surely it would not willingly undertake such a review. Surely it would
require most extravagant proposals to justify such a review. Surely neither
it, would
the amending formula under discussion, nor one resembling
remotely justify such a review.
If the Imperial Parliament rightly shrinks from embarking on such an
inquiry with reference to a proposed amending formula, still less is it likely
to wish to review on the merits a request for inclusion of a charter of,
guarantees of rights and freedoms. Yet without such a review I cannot
see how a federal parliamentary request could reasonably be refused. It
may be argued that a charter of this nature impinges on the powers of the
legislatures of the provinces. So of course it does, just as it impinges on
the powers of the Parliament of Canada. But even so, how could the United
Kingdom Parliament reasonably deny the Senate and House of Commons
of Canada the right to justify the opportunity, or even the necessity, of such
a charter to the proper functioning of a Canadian liberal-democratic federal
state?
Suppose, for example, that the federal Parliament is able to establish
the recurrence of serious abuses of basic liberties, –
including even inter-
ferences with freedom of movement within the federation –
and able too
to show the practical impossibility of securing provincial concurrence in
a suitable charter of guarantees. Would that not be relevant to an inquiry
by the Westminster Parliament as to whether the federal request was sub-
versive of the federal constitution? Suppose that the federal Parliament is
able to show that various provinces refuse to concur in a charter for reasons
quite extraneous to the merits of the guarantees, demanding, for example,
redistribution of legislative powers and public property in their favour.
Would that not be relevant to such an inquiry?
And in such an inquiry, would it not be pertinent to adduce as evidence
a catalogue of instances of violations of fundamental principles, which the
charter had as its purpose to guarantee as legal rights? Suppose that the
Senate and House of Commons of Canada pointed to provincial legislation
of the nature of acts of attainder. Legislation denying access to common
occupations on the basis of race or racial origin (e.g. a statute prohibiting
employment of white female labour in places of business or amusement
kept by “Chinamen’). Pseudoscientific legislation providing for compulsory
sterilization of mental “defectives” (at least one of whom later proves
capable of passing secondary school examinations). Legislation compelling
the press to publish government statements on its policies and to disclose
the sources of other information or criticism of those policies. Legislation
barring, save on terms fixed by statute, expenditure to promote views on
matters of public concern. Legislation allowing arbitrary interference with
the publication of books, films, and even toys and games (as, a statute
involving use of one language unless comparable
barring sale of games
versions are made available in another language; a bill proposing a similar
statute for films; with nothing to prevent similar legislation for books).
McGILL LAW JOURNAL
[Vol. 26
A long catalogue of such instances could easily be furnished. Of this
the Committee need have little doubt. But an inquiry into the working of
Canadian federalism which would compel
the houses of the Canadian
Parliament to justify their address to Westminster with such evidence would
be an inquiry which –
at all events in the present state of constitutional
evolution of the British Commonwealth –
the United Kingdom Parliament
could not readily or willingly undertake.
For these reasons, I argue that these, or comparable, proposals – being
very far from measures on their very face palpably outrageous and shocking
to the conscience of a liberal-democratic federal state –
cannot, consistently
with established constitutional practice, be subjected to scrutiny on the
merits by the United Kingdom Parliament, and still less refused enactment
outright without such a scrutiny.
I may add that I write as I do despite many and grave reservationsi
both as to the form and substance of the proposals, and after what seem
likely to prove largely fruitless and thankless efforts at their improvement.
III. The Constitutional Practice in Canada
I have argued that the relevant practices or conventions at Westminster
(that is, those governing the response of the United Kingdom Parliament to
an address of the Houses of the Canadian Parliament requesting an amend-
ment to the British North America Acts) depend neither upon the existence
of any practices or conventions in Canada as to the circumstances when
such an address is proper, nor upon compliance with such practices or
conventions if any exist.
It follows, in my submission, that if the question be pressed, “What are
those practices or conventions within Canada?”, the answer, whatever it
may be, does not affect the opinions which I have given above.
With this reservation, I shall state, very shortly, my reasons for thinking
that no settled convention or practice exists on the subject within Canada.
The nature of Canadian federalism is such that extreme efforts are
usually made to secure federal-provincial consensus on sensitive matters.
Few matters are more- sensitive than constitutional matters. Where it has
been proposed to transfer legislative authority from provincial to federal
authorities, the latter have necessarily exercised extreme caution before
proceeding with a request to Westminster. But this is explicable on normal
grounds of political prudence, and in itself does not involve any acknowledg-
ment of constitutional obligation. It would be most unfortunate if the federal
authorities were held obliged to act, from time to time, in the teeth o
provincial opposition, in order to maintain the principle that they were,
constitutionally, free to act without provincial consent.
I have already quoted Sir William Jowitt’s remarks, – made in con-
nection with the passage of the British North America Act, 1940, –
on the
irrelevance at Westminster of provincial consent. This Act, of course, trans-
ferred certain provincial legislative jurisdiction (unemployment insurance)
to the federal Parliament. Unanimous provincial consent was in fact obtained
on that occasion. On June 25, 1940, in the course of debate in the federal
House of Commons on the address to Westminster (223 Deb. H. Com. Can.
1108-1126), pressed on the necessity of provincial consent, the Rt. Hon. Ernest
1981]
NOTE
Lapointe, the Minister of Justice, summarized his position in this way: “May
I tell my hon. friend that neither the Prime Minister nor I have said that
it is necessary, but it may be desirable”.
I accept that some will adopt a view of the precedents contrary to my
own, and, pointing to the instances, where provincial consent has been secured
to transfers of legislative authority to the federal Parliament, infer the
necessity of provincial consensus, or even of unanimous provincial consent.
Even so (and assuming that it is possible to define what is meant by a
consensus), a proposal for a constitutional amending formula, or a proposal
for a charter of guarantees of rights and freedoms, is of a character quite
different from a transfer of authority from one level of government
to
another. On the facts, the precedents deal with quite different situations.
The Parliament of Canada, in a scheme like that now under consideration,
asks not for redistribution of power in its favour, but for an amending
formula and for a charter of guarantees applying alike to both levels of
government.
Especially in the light of the circumstances to which I have referred
above, bearing on the working of the federal system, –
is it unreasonable
for the Canadian federal Parliament to conclude that the securing of sovereign
legislative independence with a constitutional amendment procedure, and
the securing simultaneously of a guarantee of basic rights, each presents
an urgency which constitutionally justifies action although consensus cannot
be obtained, and all the more as consensus very possibly never may be
obtained?
I would not willingly be persuaded that such a parliamentary view of the
constitutional practice and convention in Canada is unreasonable.
AndI am
Yours faithfully,
Stephen A. Scott,
Advocate.
