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The Interpretation of the British North America Act

Published online by Cambridge University Press:  16 January 2009

W. P. M. Kennedy
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Extract

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.

Type
Research Article
Information
The Cambridge Law Journal , Volume 8 , Issue 2 , July 1943 , pp. 146 - 160
Copyright
Copyright © Cambridge Law Journal and Contributors 1943

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References

1 30 & 31 Vict. c. 3. This Act and its amendments can be conveniently consulted in Kennedy, , Statutes, Treaties and Documents of the Canadian Constitution (Oxford, 1930), at pp. 611 ff.Google Scholar

2 This doctrine is adequately illustrated by the words of Riddell, J. in Florence Mining Co. v. Cobalt Lake Mining Co. (1908) 18 C. L. R. 275, at p. 279Google Scholar: ‘In short the legislature within its jurisdiction can do everything that is not naturally impossible and is restrained by no rule human or divine… The prohibition “Thou shalt not steal,” has no legal force upon the sovereign body.’

3 Mr. Raphael Tuck, of Trinity Hall, Cambridge, and the Law School of Harvard University, provides a learned study of these minutiœ in ‘Canada and the Judicial Committee of the Privy Council’ in 4 Toronto Law Journal (1941), at pp. 33 ff.Google Scholar

4 The Resolutions of both these Conferences can be found in Kennedy, , op. cit., at pp. 541ff., 611ff.Google Scholar

5 ‘[Their Lordships]… adhere to the view which has always been taken by this Committee that the Federation Act exhausts the whole range of legislative power, and that whatever is not thereby given to the provincial legislatures rests with the [Canadian] parliament’: Hobhouse, Lord in Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, at p. 588Google Scholar. ‘Now, there can be no doubt that under this organic instrument [B. N. A. Act, 1867] the powers distributed between the Dominion on the one hand and the provinces on the other hand cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-government was withheld from Canada’: Lord Loreburn, L. C. in A.-G. for Ontario v. A.-G.for Canada [1912] A. C. 571, at p. 581.Google Scholar

6 This speech in extenso can be conveniently consulted in Hardinge, , The Fourth Earl of Carnarvon (Oxford, 1925), vol. III, p. 305.Google Scholar

7 Graves v. New York ex rel. O'Keefe (1939) 306 U. S. 466, at p, 491.Google Scholar

8 Kennedy, , op cit., at p. 559.Google Scholar

9 Reference as to the legislative competence of the Parliament of Canada to enact Bill No. 9 entitled ‘An Act to amend the. Supreme Court Act,’ [1940] S. C. R. 49.Google Scholar

10 Montreal Trust Co. v. Abitibi Power Co. (1942) O. R. 321, at pp. 340–41Google Scholar (per Masten J.A.).

11 The principle is as old as 1887. See Bank of Toronto v. Lambe (1887) 12 App. Cas, 575, at pp. 579, 587.Google Scholar

12 During the argument in Toronto Electric Commissioners v. Snider [1925] A. C. 396Google Scholar, Lord Haldane agreed that there was no Conference after that at Quebec in 1864. His agreement was evidently based on what he said in Great West Saddlery Co. v. The King [1921] 2 A. C. 91, at p. 116Google Scholar; ‘as matter of historical curiosity… the resolutions on which the British North America Act was founded… were passed at Quebec on October 10, 1864…’ As a matter of historical curiosity, the British North America Act was not based on these Resolutions, but, as we have seen, expressly and explicitly on those of the London Conference of 1866. See Lord Sankey L.C. in Edwards v. A.-G. for Canada [1930] A. C. 124, at p. 136.Google Scholar

13 See Eastman Photographic Company v. Comptroller-General of Patents [1898] A. C. 571, at p. 575Google Scholar (per Lord Halsbury L.C.). Cf, Macmillan v. Dent [1907] 1 Ch. 107, at p. 122Google Scholar (per Fletcher Moulton L.J.); Assam Railways and Trading Co. v. C. I. R. [1935] A. C. 445, at p. 458Google Scholar (per Lord Wright); Home Oil Distributors v. A.-G. for British Columbia [1940] S. C. R. 444Google Scholar. Cf. the use of Reports of the Imperial Conferences in British Coal Corporation v. The King [1935] A. C. 500.Google Scholar

14 [1930] A. C. 124, especially at pp. 136–137.

15 At p. 137.

16 [1935] A. C. 500, at pp. 518–519.

17 In re the Regulation and Control of Aeronautics in Canada [1932] A. C. 54Google Scholar. The passage beginning ‘It must no less’ (at pp. 70–71)Google Scholar is practically word for word from Jyord Carnarvon's speech.

18 Ambard v. A.-G. for Trinidad and Tobago [1936] A. C. 322.Google Scholar

19 (1874) L. R. 6 P. C. 31.

20 (1875) L. R. 6 P. C. 272.

21 (1879) 5 App. Cas. 115.

22 (1880) 5 App. Cas. 409.

23 (1881) 7 App. Cas. 96.

24 At p. 108.

25 (1882) 7 App. Cas. 829.

26 (1883) 9 App. Cas. 117.

27 At p. 130 (per Lord FitzGerald).

28 [1894] A. C. 31, at pp. 45, 46, 47 (per Lord Watson).

29 Amalgamated Society of Engineers v. Adelaide Steamship Co. (1920) 28 C. L. B. 129Google Scholar. ‘It is beyond any doubt that the doctrine of implied prohibitions can no longer be permitted to sustain a contention’ (at p. 160). The Commonwealth of Australia Constitution Act must speak ‘clear of any qualifications which the people of the Commonwealth, or, at their request, the Imperial Parliament have not thought fit to express’ (at p. 142).

30 [1894] A. C. 31, at p. 45.

31 [1896] A. C. 348.

32 At p. 361.

33 At p. 360.

34 A.-G. for Canada v. A.-G. for British Columbia [1930] A. C. III, at p. 118Google Scholar (per Lord Tomlin).

34 See previous page.

35 In re Regulation and Control of Aeronautics in Canada [1932] A. C. 54, at pp. 71–72Google Scholar (per Lord Sankey L.C.); In re Silver Brothers [1932] A. C. 514, at p. 521Google Scholar (per Lord Dunedin).

36 Canadian Pacific Wine Co. v. Tuley [1921] 2 A. C. 417, at pp. 422–423Google Scholar (per Lord Birkenhead: ‘It was contended… description’).

37 [1931] A. C. 310, at p. 326 (per Lord Atkin: ‘The view that… that ground’).

38 In re the Board of Commerce Act, 1919Google Scholar, and the Combines and Fair Prices Act, 1919 [1922] 1Google Scholar A. C. 191.

39 Fort Francis Pulp and Power Company v. Manitoba Free Press Company [1923] A. C. 695.Google Scholar

40 Toronto Electric Commissioners v. Snider [1925] A. C. 396.Google Scholar

41 A.-G. for Canada v. A.-G. for Ontario [1937] A. C. 326.Google Scholar

42 This power over ‘the regulation of trade and commerce’ is the one which Lord Atkin, obiter, would have rescued from the remarkable position assigned to it by inter pretation. (See note37, supra.) This effort has not been successful in that it has never been implemented by substantive judicial decisions; and so the power is relegated to a position utterly impossible to defend on the clearest terms of the Act, and one which makes any reliance on it barren and useless.

43 On this point, see House of Commons Debates, Ottawa (04 5, 1937), 2773ff.Google Scholar, and for a survey of these judgments, see 5 Canadian Bar Review (1937), at pp. 393–507.Google Scholar

44 A.-G. for Canada v. A.-G. for Ontario (the Employment and Social Insurance Act Case) [1937] A. C. 355, at p. 367Google Scholar (per Lord Atkin). For the taxing-power, see A.-G. for Alberta v. A.-G. for Canada [1939] A. C. 117Google Scholar; where Lord Maugham L.C. appears to modify somewhat the primâ facie reasoning of Lord Atkin. (See C. P. Plaxton (now Plaxton, J.Canadian Constitutional Decisions (Ottawa, 1939), at pp. lvi–lvii, lxxi.Google Scholar

45 In re the Regulation and Control of Aeronautics in Canada [1932] A. C. 54.Google Scholar

46 In re Regulation and Control of Radio Communication in Canada [1932] A. C. 304.Google Scholar

47 A.-G. for Canada v. A.-G. for Ontario [1937] A. C. 326.Google Scholar

48 Cf. the well-known rule in The Parlement Beige (1879) 4Google Scholar P. D. 129, which was not reversed on this point.

49 The King v. Burgess, Ex parte Henry (1936)Google Scholar C. L. R. 608.

50 Report of the Imperial Conference, of 1926, Part II.Google Scholar

51 After years of toil and trouble, in the midst of wide unemployment, the provinces at length in 1940 agreed to an amendment to the B. N. A. Act, 1867, which transferred ‘unemployment insurance’ to the Canadian Parliament (3 & 4 Geo. 6, c. 36 (U. K.)). The amendment came twenty years too late.