NOTE
Thrice The Brinded Cat Hath Mewed
Stephen A. Scott *
I. By any other name would smell as sweet …
… a rose
Had the B.N.A. Act styled the provincial legislatures ‘parlia-
ments’, the fact, no one need doubt, would have been seized gleefully
by Lords Watson and Haldane; for the name itself, involving strictly
speaking little if any juridical consequence, might entail political
results like higher status in the public view and greater judicial
psychological readiness – or excuse –
to construe largely provincial
powers. Polemicists of the last century 1 did make the difference in
styles the basis of a controversy which, centring as it did largely on
the extent of the privileges of the houses of provincial legislatures,
not only assumed a rather dated appearance once the Privy Council
accorded 2 the legislatures broad authority to prescribe the privileges
of their respective houses, but also took on a look of sterility with the
vindication of their status as fully legislative (and not municipal)
bodies supreme in their sphere 3 operating directly in conjunction
with the Crown 4 in an ever-widening field of exclusive authority
which could only be evaded with confidence on the rare occasions
Second year law student of the Junior Board of Editors.
‘Fennings Taylor, Are Legislatures Parliaments ?
(Montreal, 1879). S. J.
Watson, The Powers of the Canadian Parliaments (Toronto, 1880). Taylor was
Deputy Clerk and Clerk Assistant to the Canadian Senate, and answered his own
question in the negative; Watson was Librarian of the ‘Parliament of Ontario’
and answered it in the affirmative. Taylor appropriately enough dedicated his
work to Sir John A. Macdonald (in a rather effusive inscription); Watson’s was
dedicated to Hon. Edward Blake –
not, in truth, inappropriately, but a trifle
incongruously : see note 10 infra.
2 Fielding v. Thomas [1896] A.C. 600.
3 Hodge V. The Queen (1883-4) 9 App. Cas. 117.
4 Liquidators of the Maritime Bank v. Receiver-General of N.B. [1892] A.C.
437.
5 Toronto Electrical Commissioners V. Snider [1925] A.C. 396 at p. 412.
No. 4]
when the nation, doubtless seeking refuge from its partly judicially-
imposed ills, held its orgies of drunkenness r in the banks.6
NOTE
In another context the dispute was not new found; secondary 7
sources indicate 8 an early 9 abortive attempt by the Newfoundland
House of Assembly to become ‘the Commons House of Assembly in
Parliament assembled’, and after Confederation successive Ministers
of Justice objected in reports on provincial legislation to the use of
the adjective ‘parliamentary’ in connection with provincial legisla-
tures; 10 nor does the controversy show signs of withering away with
age; renewed by the late Dr. Arthur Beauchesne and M. Louis-Philip-
pe Pigeon, Q.C., n it was most tantalisingly if obliquely raised by a
6 A.-G. for Alta. v. A.-G. for Can. [1939] A.C. 117.
7 The requisite primary sources were not available to the author.
s D. W. Prowse, History of Newfoundland, 2nd ed. (London, 1896) 434 : ‘Carson
and Kent, in the House of Assembly, kept up a continual quarrel with Boulton
[Chief Justice and President of the Council] and Simms [Attorney-General] …
When the lower branch styled themselves the Commons House of Assembly in
Parliament assembled, they were ordered to strike out the word “Parliament”.’
See also Lilly J. in Re Edward Kielley (1838) 2 Nfld. L.R. 72 at p. 82 : ‘it is not
long since the executive government, upon view of the style of Parliament which
the Legislature had arrogated to itself, disallowed the title as wholly inappli-
cable…’
9 The first Legislature was opened on January 1, 1833.
10 See Hodgins, Dominion and Provincial Legislation (1867-1895)
(Ottawa,
1896). At p. 80 Sir John A. Macdonald, reporting on 31 Vic. c. 30 (Ont.) recom-
mending drawing attention of the Ontario government to the objectionable words:
‘Parliamentary elections’ with amendment in view: ‘To avoid confusion, the Union
Act confines the name of Parliament to the general legislature –
the provincial
legislative bodies are styled uniformly as legislatures.’ Similarly at p. 261 Edward
Blake on 38 Vic. c. 7 (Que.); at p. 264-5 Edward Blake on 38 Vic. c. (Man.); at
p. 282 Edward Blake on 38 Vic. c. 41 & c. 42 (Que.); again at p. 800 Edward Blake
on 38 Vic. c. 2 (Man.); at p. 819 R. Laflamme concurring in the Deputy Minister’s
report on 40 Vic. c. 17 (Man.). For earlier uses of the term ‘Parliament’ in what is
new Canada, see Taylor, op. cit., p. 65 and pp. 101-102. The first representative
Legislature in Quebec met under the Constitutional Act of 1791, 31 Geo. III c. 31
(G. Br.), on December 17, 1792, and was described in the Journals of the Legis-
lative Council as the ‘Provincial Parliament’. In Upper Canada, Legislative
Councillors and ‘Knights, Citizens and Burgesses elected to serve in the Legis-
lative Assembly’ were summoned by Proclamation to a meeting of the ‘Provin-
cial Parliament’. The title ‘M.P.’ appears to have been used. In the Union Act
of 1841 (3 & 4 Vic. c. 35 (U.K.)), the word ‘Parliament’ appears in the mar-
ginal notes to ss. 30 (‘Place and times of holding Parliament’) and 31 (‘Duration
of Parliament’), but not in the text of the Act, which refers only to the ‘Legis-
lature’.
11 Beauchesne, Rules and Forms of the House of Commons of Canada 3rd ed.,
(Toronto, 1943), Introduction, p. xx ff. Omitted in 4th ed. (Toronto, 1958). Beau-
in
chesne adverts to pre-Confederation official use of the term ‘Parliament’
McGILL LAW JOURNAL
[Vol. 11
1955 Quebec statute 12 amending the Legislature Act 13 to provide as
regards members of the Legislative Assembly (commonly referred
to in the Canadian provinces as “M.L.A.’s”) :
’19a. Such members shall be entitled to the title of “Member of the
Provincial Parliament”, and shall have the exclusive use of the abbreviation
“1M.P.P.’:’
The last session of the Quebec Legislature saw Premier Lesage
introduce Bill 19 to transform the Attorney-General into a Minister
of Justice 14 with a view (let us be unkind) to keeping Attorney-
General Wagner, recently embroiled in controversies embarrassing to
the Government, happy and (from M. Lesage’s standpoint, hopefully)
quiet; is it too cynical to suspect that –
since in a period of provincial
self-assertion others in expansive mood may have to be given some-
thing from time to time to keep them (relatively) quiet and (hope-
fully) happy –
the term legislature in the B.N.A. Act may soon be
dismissed as generic only and quite compatible with the title ‘The
Parliament of Quebec’? The word Parliament, after all, is of French
origin, and means a ‘talk-fest’ –
sufficiently broad, indeed, to embra-
ce housewives at tea and scholars (and others) at Couchiching –
and
if so, perhaps only prompt action under the Trade Marks Act will
enable cigarette manufacturers and federal authorities alike to bring
passing-off suits when false goods are offered as Parliaments.
4
+
+
restricted and narrow authority –
reference to the Legislature, but concludes that the term is no longer applicable
to provincial legislatures in view of their restricted authority; even if the in-
ference be not a non sequitur, the premise –
is
surprising at so late a date. Concluding from the absence of a section analogous
in favour of the provinces to s. 18 of the B.N.A. Act (allowing Parliament to
confer on the Senate and Commons of Canada privileges as at Westminster) that
the provinces enjoy no similar power, he seeks to distinguish Fielding v. Thomas
(supra note 2) in rather obscure and very doubtful passages of his Introduction.
His conclusion on the point concerning us, at p. xxiv, is that ‘Whatever sover-
eign parliamentary powers these provinces enjoyed prior to 1867, they lost them
when their jurisdiction over about three-fourths of public affairs was taken
away from them.’ Pigeon’s reply is at (1943) 21 Can. Bar Rev. 826; he argues
inter alia that the words of B.N.A. Act s. 17 : ‘There shall be One Parliament
for Canada’ refer to Canada not as a geographical area but as the federal juristic
unit, and concludes that they do not preclude the provincial legislatures from the
status or title.
12 4 & 5 Eliz. II c. 16 (Que.); assented to December 15, 1955.
13 R.S.Q. 1941, c. 4.
14 Passed by the Legislative Assembly April 7, 1965, it has since become law.
The Minister remains ex officio Attorney-General.
No. 4]
NOTE
H. Let me not to the marriage of true minds
Admit impediments…
The Parliament of Canada enjoys exclusive authority to legislate
with respect to ’91:26 Marriage and Divorce’. Apart from their rele-
vant jurisdictions in regard to ’92:13 Property and Civil Rights in
the Province’ 15 and ’92:16 Matters of a Merely Local or Private
Nature in the Province’ 18 the provincial legislature enjoy exclusive
authority over ’92:12 The Solemnization of Marriage in the Province’.
The long and bitterly-controverted question whether impediments
to marriage under the ecclesiastical laws of various religious commu-
nities could under the laws of Quebec constitute civil impediments to
marriage, was only settled in 1921 in the negative by the Privy Coun-
cil decision in Despatie v. T’remblay 17 where Lord Moulton ruled for
the Board that ministers of religion acting as officers of civil status
empowered to keep registers were officers of state authorized to
solemnize marriages independently of the religious professions of the
parties; 18 that the guarantees under the treaty of cession and the
the exclusive federal au-
thority over ‘Marriage and Divorce’ by virtue of one or other of the following :
(i) the words ‘notwithstanding anything in this Act’ found in the opening para-
graph of s. 91; (ii) the so-called ‘deeming-clause’ at the conclusion of s. 91 :
‘And any Matter coming within any of the Classes of Subjects enumerated in
this section shall not be deemed to come within the Class of Matters of a local
or private Nature comprised in the Enumeration of the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the Provinces’ –
but the
latter only because the Board in A.-G. Ont. v. A.-G. Can. [1896] A.C. 348 at p. 359
declared per Lord Watson : ‘It was observed by this Board in Citizens Insurance
Co. of Canada v. Parsons that the paragraph just quoted “applies in its gram.
matical construction only to No. 16 of s. 92”. The observation was not material
to the question arising in that case, and it does not appear to their Lordships to
be strictly accurate. It appears to them that the language of the exception in
s. 91 was meant to include and correctly describes all the matters enumerated
in the sixteen heads of s. 92, as being, from a provincial point of view, of a local
or private nature.’
15 Which is overridden by –
or made subject to –
16 From which latter every matter is excluded which comes within ‘Marriage
is submitted) proper,
and Divorce’ by virtue of the literal, primary, and (it
application of the ‘deeming clause’ quoted in note 15 supra.
17 [1921] 1 A.C. 702.
18 Art. 127 of the Civil Code (a pre-Confederation statute) provided that : ‘The
other impediments recognized according to the different religious persuasions, as
resulting from relationship or affinity or from other causes, remain subject to
the rules hitherto followed in the different churches and religious communities …
The right, likewise, of granting dispensations from such impediments appertains,
as heretofore, to those who have hitherto enjoyed it.’ This article was thus held
to leave the law as before, to enact civil impediments and give effect to no others,
but to leave ministers (see Art. 129) free to decline to solemnize marriages objec-
tionable to them on religious grounds.
McGILL LAW JOURNAL
[Vol. 11
Quebec Act of 1774 were guarantees to individuals of liberty to
profess the Roman Catholic religion, and not guarantees to an institu-
tion of coercive power; that in Quebec one may change his religious
professions and submission to religious authority at will. This late
decision, given in the face of a steady stream of jurisprudence and
writing to the contrary, 19 merely vindicated the most minimal free-
dom of conscience against pretensions to a brazen and insolent
tyranny whose proponents, 20 we should do well to remember, included
Langelier,2′ Mignault, 22 and, most extreme, Loranger; 23 not surpris-
ingly, therefore, legislation was earlier introduced into Parliament
to correct what then seemed to be the state of the law, a situation
which many regarded as absolutely intolerable. Reference to the Su-
preme Court of Canada produced a majority decision 2 4 (Fitzpatrick
C.J., Davies, Duff and Anglin JJ.; Idington J. dissenting) holding
ultra vires of Parliament the enactment of a bill providing that:
‘Every ceremony or form of marriage heretofore or hereafter performed
by any person authorized to perform any ceremony of marriage by the laws
of any place where it is performed, and duly performed according to such
laws, shall everywhere within Canada be deemed to be a valid marriage,
notwithstanding any differences in the religious faith of the persons so
married and without regard to the religion of the person performing the
ceremony.’
and that
‘The rights and duties, as married people of the respective persons married
as aforesaid, and of the children of such marriage, shall be absolute and
complete, and no law or canonical decree or custom of or in any Province
in Canada shall have any force or effect to invalidate or qualify any such
marriage or any of the rights of the said persons or their children in any
manner whatsoever.’
though the judges, in answer to further questions, held unanimously
that the laws of Quebec did not render null unless contracted by a
Roman Catholic priest a marriage taking place in Quebec between
19 For relevant statutes, jurisprudence, and legal writing on the controversy,
see e.g. Lovell C. Carroll, Marriage in Quebec (Montreal, 1936), Chapter V : The
Religious Controversy, p. 46 ff.
20 Arguments asserting coercive jurisdiction to be a necessary part of Roman
Catholic religious liberty would on the same principle equally subject to coercive
ecclesiastical power all aspects of human activity, since all alike are equally open
to evaluation and censure on moral and religious grounds.
21 Cours de Droit Civil (Montreal, 1905), I, 250 ff.
22Droit Civil Canadien (Montreal, 1895), I, 358 ff.
23 Commentaire sur le Code Civil (Montreal, 1879), II : Du Mariage, 164 ff.
24
the Matter of the Authority of the Parliament of Canada to Enact a
1n
Proposed Measure Amending “The Marriage Act”. (1912) 46 S.C.R. 132.
NOTE
No. 4]
persons one of whom only is a Roman Catholic, 25 and held by a ma-
jority (Davies, Idington and Duff JJ; Anglin J. dissenting and Fitz-
patrick C.J. asking leave to decline to answer) that the same was true
even where both parties were Catholics. The Privy Council, 26 though
declining to interpret the existing law, affirmed the Supreme Court’s
ruling that the remedial Bill was ultra vires. Those seeking more
explanation for this judgment than the fact of its delivery by Vis-
count Haldane, L.C., may note that the ‘Marriage and Divorce’ power,
fortified though it was by the non obstante and ‘deeming’ clauses, did
not exclude or even override the provincial power over the solemniza-
tion of marriage, which, contrary to the ordinary rule 27
‘operates by way of exception to the powers conferred as regards marriage
by s. 91, and enables the provincial Legislature to enact conditions as to
solemnization which may affect the validity of the contract’
‘the directory regulation of the for-
and does not only extend to 28
malities by which the contract is to be authenticated’ such as could
be enforced, it had been argued, by fine and imprisonment without
nullity; so that 29
‘the jurisdiction of the Dominion Parliament does not, on the true construc-
tion of ss. 91 and 92, cover the whole field of validity’,
and an ideal opportunity for the application of the ‘aspect doctrine’
was allowed to escape.
Attention has not, it seems, been given to the implications of the
fact the provincial legislative authority extends, not to ‘Solemniza-
tion of Marriage in the Province’ but to ‘The Solemnization of Mar-
riage in the Province’; hence, not to the question whether marriages
shall be solemnized; but, rather, supposing them to require solemniza-
tion, how and by whom they should be solemnized. It is doubtless true
that the minds of the draftsmen were not directed to producing such
a distinction; but it is equally true that the use of the definite article
strongly points to a presupposition on their part that solemnization
was a necessary part of marriage; as their Lordships appear to have
been aware, without however investigating the implications: 30
‘There have doubtless been periods, as there have been and are countries,
where the validity of the marriage depends on the bare contract of the parties
without reference to any solemnity. But there are at least as many instances
25 It was much disputed whether a person by defying his ecclesiatical authori-
ties and obtaining celebration of his marriage by others did not sufficiently
indicate at least pro tanto his dissociation from his religious community.
2 [1912] A.C. 880.
27 Ibid., at p. 887.
28 Ibid., at p. 886.
29 Ibid., at p. 887.
30 Ibid., at p. 887.
McGILL LAW JOURNAL
[Vol. 11
where the contrary doctrine has prevailed. The common law of England and
the law of Quebec before confederation are conspicuious examples, which
would naturally have been in the minds of those who inserted the words about
solemnization into the statute. Prima facie these words appear to their
Lordships to import that the whole of what solemnization ordinarily meant
in the systems of law of the provinces of Canada at the time of Confedera-
tion is intended to come within them, including conditions which affect
validity. There is no greater difficulty in putting on the language of the
statute this construction than there is in putting on it the alternative con-
struction contended for.’
But if the necessity of a solemnization was merely presupposed,
then the provincial power has been predicated upon the continuing
place of solemnization in the institution of marriage, just as Parlia-
ment’s power of treaty implementation was (in the Privy Council’s
view 31) predicated upon the assumption that treaties would continue
to be ‘British Empire’ treaties; and in the former just as much as in
the latter case, the disappearance of the fact upon which the power is
predicated carries with it the disappearance of the power; ‘it is im-
possible to strain the section so as to cover the uncontemplated
event.’ 32 It must be with solemnization as it has been held to be with
treaty-implementation: contingency of the power is the legal conse-
quence of using in the definition of a power words importing a certain
premise.
Who then controls the jurisdictional fact –
the presence or absen-
ce of solemnization in the institution of marriage? If this be, as it
seems to be, part of the power of defining the conditions which pro-
duce a marriage, it would seem that Parliament has the sole power to
decide whether solemnization is to be among them. If this be so, and
if Parliament should prescribe that henceforth no solemnization is to
be required for a valid marriage; or if Parliament, enjoying as it does
the power of retrospective legislation on matters within its jurisdic-
tion, should abolish this requirement retrospectively (for all marria-
ges, or any class of them, or for particular marriages) –
the prov-
ince is indeed left with the sole power to prescribe what is a proper
solemnization, and to insist that a defective solemnization is absolu-
tely void; but the marriage will be valid because, where no solemniza-
tion is necessary, it becomes immaterial that there has in law actually
been no solemnization. The province’s power, essentially, is to make
solemnizations null; whether that makes a marriage null depends on
and in what cases – marriages need solemnization; it
whether –
has power, in the Privy Council’s words, ‘to enact conditions as to
solemnization which may affect the validity of the contract.’
31 A.-G. Can. v. A.-G. Ont. [1937] A.C. 326 (Labour Conventions Case).
32 Ibid. at p. 350.
No. 4]
NOTE
A little history can readily dispel that touch of skepticism which
formal and closely-reasoned arguments of this sort –
savouring as
they do of a certain scholasticism if not indeed seeming to smack
slightly of sophistry – may engender. The canon law generally
applicable throughout Europe until the Reformation regarded (until
the decree Tametsi (1563) under the Council of Trent) as valid mar-
riages those contracted (without the presence, much less the testi-
mony or benediction, of a priest, or a church ceremony) by simple
words of present consent (verba de praesenti), or by words of pro-
mise for the future followed by sexual intercourse (verba de futuro
subsequente copula). This was indeed the law of Scotland 33 until
July 1st, 1940,3
4 though as to England, the House of Lords, by the
merest chance, held, on equal division, that it never had been so; a
view strongly opposed by such pre-eminent legal historians as Pollock
and Maitland.35 Admittedly, much legislation is likely to appear on
33 See T. B. Smith, Q.C., LL.D., F.B.A., Scotland: The Development of its Laws
and Constitution (London, 1962), Chapter 10. Where a man and woman ‘ex-
changed consent to marry with genuine matrimonial intent, not in jest nor with
ulterior motive, from the time when such consent was exchanged ipsum matrimo-
niurn was constituted even before the union was consummated. Proof may be
made by parole or by writing. (p. 310). By promissio subsequente copula (see
Mackie v. Mackie 1917 S.C. 276) taken over from the canon law, if ‘parties who
had exchanged the promise de futuro matrirnonio had sexual intercourse with
each other, the effect of that sexual intercourse was to interpose a presumption of
present consent at the time of intercourse’ (p. 311) ; the promise had however to be
evidenced (though not constituted) by the man’s writing; and it had to be un-
conditional. The intercourse must be on the faith of the promise, though it will
be (rebuttably) so presumed if it follows thereon. A third form of irregular mar-
riage, ‘by habit and repute’, known to Scots law, was created by consent not
expressed but established rebus ipsis et factis : ‘a man and a woman cohabiting
together openly and constantly as if they were husband and wife, and so con-
ducting themselves towards each other for such a length of time in the society
or neighbourhood of which they are members as to produce a general belief that
they are married persons. Such cohabitation must be for a substantial time –
not
e.g. ten months…’ (p. 313). Dr. Smith gives it, as his opinion, supported by
jurisprudence, that the 1939 Act providing that ‘No irregular marriage by decla-
ration de praesenti or by promise subsequente copula contracted after the com-
mencement of this Act shall be valid’ did not by implication displace marriage
by habit and repute; for, conceding habit and repute to be probative only, he
regards them as probative of a tacit consent creative of marriage, and not as
giving rise to a presumed declaration de praesenti (p. 313-4).
34 Marriage (Scotland) Act, 1939; 2 & 3 Geo. VI c. 34 (U.K.); Postponement
of Enactments (Miscellaneous Provisions) Act, 1939; 3 & 4 Geo. VI c. 2 (U.K.).
s Reg. v. Millis, (1844) 10 Cl. & Fin. 534 (H.L.) Lords Brougham, Denman
and Campbell thought a marriage by present consent sufficient to constitute a
marriage so as to found a bigamy prosecution for going through a subsequent
ceremony; Lord Lyndhurst, L.C., Lord Cottenham, and Lord Abinger contra. The
McGILL LAW JOURNAL
[Vol. 11
as the enactment of such a law needs must do –
Canadian statute books before Parliament adopts marriage by sponsa-
lia subsequente copula as a means of wiping away the tears of ladies
wronged by their lovers; but can it be doubted that it is to Parliament,
and not to the legislatures, that would fall sole authority to dispense
not only with
–
solemnization as it now exists, but with present consent as well?
The same is a fortiori true of the introduction of marriage by habit
and repute.3 3 Were a provincial legislature to have power to require
even in such cases solemnization as a condition precedent to the vali-
dity of a marriage (and therefore to make its conclusion impossible
by failing to provide machinery for solemnization at the instance of
one party), which legislature would it be? The test laid down by
Duff C.J.C. in Kerr v. Kerr and A.-G. Ont.3 6 was that the Legislature
question put to reverse being defeated, the judgment of the Irish Queen’s Bench
was affirmed; it was itself equally divided two for and two against conviction,
though one of the justices supporting conviction thought the first marriage valid
only because celebrated by a Presbyterian minister; of the two opinions for
conviction, one was apparently withdrawn pro forma to permit an acquittal from
which error lay. T. E. James, ‘The English Law of Marriage’, in Graveson &
Crane, eds., A Century of Family Law (London, 1957), p. 28, ‘it must be con-
cidered as determined by the House of Lords in R. v. Millis that at common law,
as distinct from the ecclesiastical courts, there could never have been a valid
marriage in England before the Reformation, unless in early Anglo-Saxon times,
without the presence of a priest episcopally ordained, or afterwards, without the
presence of a priest or deacon.’ The ecclesiastical courts had on application en-
forced the celebration of a regular and formal marriage between the parties, but
until Reg. v. Millis the parties were regarded as already being married by virtue
of the irregular marriage, though without e.g. the benefits of dower. The judges
advising the House of Lords in that case tendered per Tindal, C.J. ‘our unanimous
opinion, that by the law of England, as it existed at the time of the passing of
the Marriage Act, a contract of marriage per verba de praesenti was a contract
indissoluble between the parties themselves, affording to either of the contracting
parties, by application to the Spiritual Court, the power of compelling the
solemnization of an actual marriage, but that such a contract never constituted
a full and complete marriage in itself, unless made in the presence and with
the intervention of a minister in holy orders.’ (10 Cl. & Fin. 655). Lord Hard-
wicke’s Act, 26 Geo. II, cap. 33 (G. Br.), 1753, had eliminated this machinery by
enacting ‘XIII. That in no Case whatsoever shall any Suit or Proceeding be had
in any Ecclesiastical Court, in order to compel a Celebration of any Marriage
in facie Ecclesiae, by reason of any Contract of Matrimony whatsoever, whether
per verba de praesenti or per verba de futuro…’ in addition to increasing the
formalities of regular and formal marriages by enforcing those prescribed by
the Book of Common Prayer : ‘all other Rules prescribed in the said Rubrick
concerning the Publication of Banns, and the Solemnization of Matrimony, and
not hereby altered, shall be duly observed.’ See Pollock and Maitland, History of
English Law, 2nd ed. (Cambridge, 1923) II, 368 ff.
36 [1934] S.C.R. 72, at p. 74. Here ‘the consents required are prescribed as ele-
ments in the ceremony’. (Loc. cit.; emphasis added.) At p. 75 : ‘The authority of
No. 4]
NOTE
had dealt ‘with the solemnities of the marriage and not with the
capacity of the parties’ and that a provincially-imposed condition of
parental consent precedent to solemnization was good because it
applied ‘to all marriages celebrated in Ontario, and to no marriages
but those celebrated in Ontario.’ But in what province is a marriage
celebrated which ex hypothesi is celebrated nowhere? No one would
apparently venture to suggest that a province is entitled to enact that
no marriage shall be recognized in the province save only such as are
celebrated (or if necessary, re-celebrated) therein. Duff C.J. is sug-
gesting, at most, (p. 75, 1. 5-8) that the province may put what condi-
tions it likes on those marriages that are solemnized in the province;
for it would seem that over none other but such marriages has a prov-
ince authority, (and such authority as it has extends only to condition
the validity of the solemnization.) If even one province, therefore –
or Canada as regards the Northwest Territories –
removed all for-
malities, could it not be said that a marriage which was nowhere
solemnized could be taken to have complied with the formalities
prescribed by a place where no formalities were necessary? But if we
must select a constitutionally-imposed place whose laws will be the
test of adequate solemnization, by what principle will such a place be
selected? Would it be the place where the intercourse took place, being
the last of the conditions prescribed by Parliament for a marriage by
sponsalia subsequente copula? And where indeed is the right place to
solemnize a marriage by habit and repute where both the habit and
the repute may have extended to a great variety of places? Can it be
denied that if Parliament may create such marriages it may likewise
prescribe that they shall be complete and ready for solemnization any-
where Parliament may wish –
and therefore, nowhere at all, if such
be its pleasure? Suppose Parliament, faced like the Roman Senate by a
crowd of women weeping on a question of marriage law, nevertheless
hardened its heart, and confined its innovations to marriage per verba
de praesenti. Again, the question arises, what place’s laws will be the
test of whether there has been adequate solemnization? The place
where the contract is expressly domiciled? But if the parties are free
to escape the laws of the province where it has been concluded merely
by so stipulating, then Parliament in creating such a form of marria-
ge may compel the parties wishing to avail themselves of it to domi-
cile the contract in a place like the Northwest Territories, where it
may enact what it pleases as to solemnization. The place where the
contract was concluded? But by what right can another province or
the Dominion to impose upon intending spouses an incapacity which is made
conditional on the absence of certain nominated consents is not in question.’ The
aspect doctrine is emphasized at p. 76 as allowing provincial legislation ‘in the
absence of legislation in the same field by the Dominion’.
McGILL LAW JOURNAL
[Vol. 11
place be denied the right to solemnize contracts already concluded
elsewhere? Is it always constitutionally-determined where a contract
of marriage was concluded ? The rules as to negotiations inter
absentes differ in Quebec from the English common law; and the rules
of private international law so far as the contract of marriage is
concerned are presumably within federal competence to change;
cannot Parliament then domicile the contract of marriage wherever it
pleases, and thereby secure control of solemnization? Could Parlia-
ment not declare simpliciter that A and B are married? Certainly
the legislatures cannot, so that Parliament must be able to do so; but
admitting this, on what principle could a place then be selected by
the Courts as the appropriate one for its solemnization? By what prin-
ciple even could the Courts look at the past dealings of the parties to
select a proper place of solemnization –
for the past dealings of the
parties could at most evidence Parliament’s motives for marrying
A and B by statute; it would not establish a situs for the statutory
marriage bond.
These illustrations, all based on historical instances, prove if they
prove anything, that the federal marriage power, if it is really a power
of legislating and not only of tinkering, must include the power to
dispense with solemnization; and if to eliminate it prospectively, then
to dispense retrospectively, and hence to validate marriages lacking
solemnization. It is submitted, indeed, that the Marriage Reference, if
rigorously confined to the actual and literal decision, is formally re-
conciliable with these conclusions, since Parliament did not, in the
impugned legislation, dispense with solemnization as a requisite to
marriage in all or some particular cases, but purported instead to
validate provincially-invalid solemnizations; Viscount Haldane has
himself shown us far more remarkable rationales 5 for distinguishing
unwelcome precedents.
Upon a cognate matter it may usefully be observed that it is alto-
gether too easily forgotten what preposterous results follow from dis-
tinguishing for constitutional purposes the ‘status’ from the ‘inci-
dents’ of marriage, a distinction plainly presupposed, for instance, by
the Quebec statute 3′ which in 1954 purported to deal with the inci-
dents of marriages by removing the condition (italicised below) from
Art. 188 of the Civil Code which had formerly read:
‘A wife may demand a separation on the ground of her husband’s adultery,
if he keeps his concubine in their common habitation.
Confined to a power in regard to status only, Parliament would
enjoy only a derisory dictionary-making power, including in its scope
37 3 & 4 Eliz. II, c. 48.
No. 4]
NOTE
only the exclusive right to say that ‘marriage’ subsists between A and
B; while the provincial legislatures, constrained no doubt to admit
that A is married to B, could proceed to remove one by one all the
incidents of that status, and, perhaps under a term of art of its own
invention, create as between A and C all the incidents now normally
associated with a marriage between A and B. ‘Marriage’, too, no less
than ‘Solemnization’, appears in the B.N.A. Act, and, no less than the
latter, its scope as an institution may be determined with reference
to all the incidents flowing from it in 1867. Perhaps, however, the
aspect doctrine provides support for a concurrent if subordinate prov-
incial power over some or all of the incidents, considered as ‘Property
and Civil Rights’; but this doctrine must equally work in favour of
Parliament. At least as regards s. 92:12, it seems clear that provin-
cial authority extends over all solemnization occurring in the province
and none whatsoever elsewhere; but it belongs to Parliament to pre-
scribe the role of solemnization in the institution of marriage, and to
say when it shall and shall not be necessary to a marriage.
+
4
+
III. A most sharp sauce …
Had the Ontario Unconscionable Transactions Relief Act 38 made
wide and general provision for the setting aside by the Courts of
harsh contracts; had it only incidentally included in their number
the contract of loan of money as one amongst many; little question
could have arisen as to its validity as a law in relation to property and
civil rights in the province; for, despite the Privy Council’s glossary
(affecting, encroaching, trenching, and the like) the B.N.A. Act
prohibits Parliament and the legislatures respectively from enacting
laws in relation to matters in the others’ sphere, not from making
laws affecting them. Had such been the statute, the only remedy
would have lain with specific federal legislation protecting loans by
way of exception. But the statute 39 dealt specifically and solely with
the price of a loan of money, which, in slightly abbreviated form, is
38 R.S.O. 1960, c. 410.
39 It empowered the Court to rewrite contracts of loan where ‘the court finds
that, having regard to the risk and to all the circumstances, the cost of the loan
is excessive and that the transaction is harsh and uncounscionable’, the cost being
defined to mean the whole cost including ‘interest, discount, subscription, pre-
mium, dues, bonus, commission, brokerage fees and charges’.
McGILL LAW JOURNAL
[Vol. 11
the plain and common English meaning of ’91:19 Interest’, as Judson
J. fairly stated, as held by the Supreme Court in Reference re Saskat-
chewan Farm Security Act 40 (affirmed by the Privy Council in A.-G.
for Saskatchewan v. A.-G. for Canada 41) where Rand J. stated
‘Interest is, in general terms, the return or consideration or compensation
for the use or retention by one person of a sum of money, belonging to, in
a colloquial sense, or owed to, another.’
The Supreme Court of Canada, reversing the Ontario Court of
Appeal, nevertheless held 42 in concurring opinions of Judson J. (for
himself and Taschereau C.J., Fauteux and Hall JJ.) and Cartwright
J.; Martland J.43 dissenting for himself and Ritchie J.; that the
statute was intra vires. The opinion of Judson J. appears to have been
founded upon two grounds: (i) a narrowing of the constitutional
definition of ‘interest’; (ii) an application of the aspect doctrine; and
though Cartwright J. expressed a general concurrence in*Judson J.’s
reasons for sustaining the statute, it is the latter ground that appears
to form the basis of his own opinion: 44
‘The Unconscionable Transactions Relief Act appears to me to be legisla-
tion in relation to Property and Civil Rights in the Province and the Adminis-
tration of Justice in the Province, rather than legislation in relation to
Interest. Is primary purpose and effect are to enlarge the equitable juris-
diction to give relief against harsh and unconscionable bargains which the
courts have long exercised; it affects, but only incidentally, the subject-
matter of Interest…’
In listing the submissions in appeal and concurring in them in toto,
Judson J. agreed that Interest if affected was so only incidentally,
and he proceeded to characterise the statute thus: 45
‘In my opinion it is not legislation in relation to interest but legislation
relating to annulment or reformation of contract on the grounds set out in
the Act, namely, (a) that the cost of the loan is excessive, and (b) that the
transaction is harsh and unconscionable. The wording of the statute indicates
that it is not the rate or amount of interest which is the concern of the
legislation but whether the transaction as a whole is one which it would be
40 [1947] S.C.R. 394, at p. 411.
41 [1949] A.C. 110.
42 [1963] S.C.R. 570.
43 It would appear to be a most desirable refinement to distinguish provincial
legislation which is merely inoperative so long as competing valid federal legisla-
tion is on the books, but which is intra, vires; from provincial legislation which,
being ultra vires stricto sensu is utterly void. Cf. Martland J. (i) at p. 582
finding the provincial competence unnecessary to consider in the presence of
what he holds to be competing federal legislation; and yet (ii) at p. 583 finding
that ‘the legislation in question is ultra vires’.
44 [1963] S.C.R. 570 at p. 579.
45 Ibid., p. 577.
No. 4]
NOTE
proper to maintain as having been freely consented to by the debtor. If one
looks at it from the point of view of English law it can be classified as an
extension of the doctrine of lesion dealt with in articles 1001 to 1012 of the
Civil Code. The theory of the legislation is that the Court is enabled to
relieve a debtor, at least in part, of the obligations of a contract to which
in all the circumstances of the case he cannot be said to have given a free
and valid consent. The fact that interference with such a contract may
involve interference with interest as one of the constituent elements of the
contract is incidental. The legislature considered this type of contract as
one calling for its interference because of the vulnerability of the contract
as having been imposed on one party by extreme economic necessity.’
But on the learned judge’s own showing, the contract is set aside
for no form of coercion (fraud, violence, etc.) other than the economic
necessity which produces a price for the loan of money –
a rate of
interest, if the old definition be still valid – which the legislature will
not allow because it finds it excessive, but of which control was placed
in federal hands as part of a scheme to give Parliament control of
capital accumulation. And if the Privy Council, in denying Saskatche-
wan power to postpone or reduce payment of principal so as to reduce
the cost of the loan, in terms declared that they were ‘not called on to
discuss, and do not pronounce on, a case where a provincial enactment
renders null and void the whole contract to repay money with
interest,’ 46 nevertheless it might be replied as in Doyle V. Falconer
that ‘if the elaborate judgment which was then pronounced has in
terms left open the question which is raised in the present case, it
has stated principles which go far to afford the means of determin-
ing that question.’ 47
The decision now determines the provincial authority; if it be read
so as to leave untouched the federal authority over interest as previ-
ously defined (price of a loan of money), then the Court has in effect
presented us with a most extreme application of the aspect doctrine:
for a law to reduce the rate of interest (in the wider sense) is at once
a law relating to ’91:19 Interest’ and to ’92:13 Property and Civil
Rights in the Province [excepting Interest]’. This is potentially a
revolutionary trend. Applied even in a more modest way in favour of
Parliament, can anyone deny that trading in stocks and bonds; insur-
ance; labour relations; marketing; manufacturing; instalment sales,
are not only ‘property and civil rights’ but also ‘trade and commerce’?
Why do my Lords suppose that the British treasury regulates hire-
purchase contract terms, or that the American SEC regulates stock
trading? Can a Wall Street crash be ‘trade and commerce between
the states’ but a Bay Street panic not even be ‘trade and commerce’?
46 [1949] A.C. at p. 126.
47 (1866) L.R. 1 P.C. 328 at p. 339.
McGILL LAW JOURNAL
[Vol. 11
Would the Court sustain desperately-needed federal legislation on
the financial markets of Canada, or is that a purely local matter for
Ontario, Quebec, and B.C.? Does the knife, in other words, cut both
ways?
But Judson J., after stating the earlier definition of interest, pro-
ceeds:
‘This is substantially the definition running through the three editions of
Halsbury. However, in the third edition (27 Hals., 3rd ed., p. 7) the text
continues : ‘Interest accrues de die in diem even if payable only at intervals,
and is, therefore, apportionable in point of time between persons entitled
in succession to the principal.’ The day-to-day accrual of interest seems to
me to be an essential characteristic. All the other items mentioned in the
Unconscionable Transactions Relief Act except discount lack this essential
characteristic. They are not interest. In most of these unconscionable schemes
of lending the vice is the bonus.’ 48
Now, had someone inquired of Judson J. when interest accrues,
his Lordship would doubtless have consulted Halsbury and advised
his questioner accordingly; but one thing his Lordship would most
certainly not have done: to stare at his questioner in surprise and
ask him, ‘Don’t you know what interest means? It is something that
accrues de die in diem. How could anything be interest which did not
accrue from day to day?’ If such a hypothetical reply seems prepos-
terous, that is precisely because accrual day-to-day forms no part of
what in common English is meant by interest; it is a rule of law about
interest, not a part of its definition; and most certainly not part of a
constitutional definition setting out the power of a Parliament. It
may be desirable, however, to keep Judson J.’s dictum in the perspect-
ive given by the context: his Lordship was seeking to show that
bonuses and the like were not of the essence of interest, and that
they lay upon ground which would support provincial legislation; not
that they were beyond the scope of effective federal legislative power
over interest, a subject upon which, as his Lordship himself demons-
trated, effective legislation cannot be enacted unless these devices can
be dealt with at the same time. Still, the dictum is for that very rea-
son capable of emasculating the federal power over interest, and is
both dangerous and unnecessary. The aspect doctrine would have
sufficed, once the Court by ruling that Parliament had not intended to
deal with bonuses had thereby enabled itself to reconcile formally
the provincial and federal legislation. Still, in the final analysis, the
provincial legislation sustained allows the cancellation of contracts
providing for interest pure and simple as defined by Judson J., and
greatly extends the scope of provincial authority and of the aspect
48 [1963] S.C.R. 570 at p. 575.
No. 4]
NOTE
371
doctrine: striking at bonuses and so forth carries with it the inci-
dental power to strike also at interest rates.
Can Parliament not enact a statutory definition of ‘interest’
without imperilling its constitutional power by a contraction pari
passu of the constitutional definition? Can a poor ventilating system
in the Supreme Court building render its inhabitants too susceptible
to the ‘winds of change’ blowing in from just across the Ottawa River?
Is it safer to defy the bleat of the lamb on Parliament Hill than the
roar of the lion on the bluffs of Quebec? Do federal judicial appoint-
ments boomerang against Parliament through obsessive fear of accu-
sations of partiality? Will Judson J.’s recipe for sauce for the goose
equally apply to brew sauce for the gander?
