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Disallowance and the National Interest: The Alberta Social Credit Legislation of 1937*

Published online by Cambridge University Press:  07 November 2014

J. R. Mallory
J. R. Mallory*
Affiliation:
McGill University
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Extract

In the Canadian constitution, that which relates to the national interest is the responsibility of the federal government; while the provincial governments deal with those matters of local concern. In a perfectly static situation this division of labour would present no problem because the national interest would always assume the same form. But governments operate in a situation that is never static. Changes in techniques or beliefs, in the location of population, and in the political and economic conditions of the external world are taking place all the time. If there is an equilibrium within the Canadian federal system, it is a dynamic equilibrium in which those common purposes which are the proper concern of the federal government are in a constant state of flux. The national interest expands and contracts: it is ever shifting its ground.

It has been quite impossible to contain this elusive concept within the angular Victorian frame of the British North America Act. It would be unreal to suppose that the division of legislative power produced entirely water-tight compartments of action for the Dominion and the provinces. It could not. There is a large range of governmental activity which quite evidently may be the preserve of either the federal parliament or of the provincial legislatures, or, in fact, of both. Much of the difficulty which was created by the judicial interpretation of the constitution between the eighteen-nineties and the nineteen-thirties flowed from an attempt to make the enumerated heads of Sections 91 and 92 represent fields of exclusive legislative power. The only way in which this could be done was by interpreting away the meaning of several heads of Section 91 in order to preserve some meaning for Section 92. This search for water-tight compartments was unnecessary and contributed to the unsatisfactory decisions of those years. One of the results of this before 1939 was that it limited the effective range of action of Canadian governments—Dominion and provincial—to such activities as would commend themselves to a Victorian liberal.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 14 , Issue 3 , August 1948 , pp. 342 - 357
Copyright
Copyright © Canadian Political Science Association 1948

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Footnotes

*

This paper was presented at the annual meeting of the Canadian Political Science Association in Vancouver, June 18, 1948.

References

1 See Scott, F. R., “The Special Nature of Canadian Federalism” (Canadian Journal of Economics and Political Science, vol. XIII, no. 1, 02, 1947, p. 13).CrossRefGoogle Scholar

2 This point is developed in my “The Courts and the Sovereignty of the Canadian Parliament” (Canadian Journal of Economics and Political Science, vol. X, no. 2, 05, 1944, p. 165).Google Scholar

3 Fowke, V. C., Canadian Agricultural Policy: The Historical Pattern (Toronto, 1946).Google Scholar

4 Morton, W. L., “The Western Progressive Movement” (Canadian Historical Association Annual Report, 1946, p. 41).Google Scholar

5 Statutes of Alberta, 1936 (1st Session), c. 6.

6 Ibid., c. 5.

7 See evidence of Weir, Dean. Evidence on the Constitutionality and Economic Aspects of Social Credit before the Agricultural Committee of the Alberta Legislature, Session 1985 (Edmonton, 1935), pp. 2–3.Google Scholar

8 First Interim Report ‣ by Major C. H. Douglas (Edmonton, 1935), pp. 8–9.Google Scholar

9 Evidence of Larkham Collins. The Douglas System of Social Credit. Evidence Taken by the Agricultural Committee of the Alberta Legislature, Session 1934. Mr. Collins seemed to have been definitely of this opinion, quoting Major Douglas as follows: “It is not an insoluble problem, but a difficult one, and I should not like to give an offhand opinion as to what extent a unit the size of Alberta could act alone” (p. 10).

10 “In regard to Alberta, I should say, and I am open of course to correction by the legal talent here, that the first thing to do is to concentrate on the financial institutions and employ whatever powers you have got left, not to put too fine a point upon it, to penalize these institutions. You have got to get a sanction in the political field to bring to bear on this situation to get something done. It is not the slightest use as far as I can see going to the financial people and saying: ‘This has to be done because of the state of the world, because the people are starving in the midst of plenty.’ Whether because whom the gods destroy they first send mad, or for what reason, they seem impervious to any argument of that kind. They are simply pursuing a perfectly standardized scheme and nothing seems capable of deflecting them from it, so that you have to get some power of bringing these people to reason. The question is what power can you bring to bear in Alberta? Can you tax them heavily? Can you place restrictions on the carrying on of that business? Those are questions not for me but for you. How can you go up to a bank manager or a bank director and say, ‘Look here, if you do not do certain things, if you won't listen to what we have to say about this sort of thing we are going to make you feel it. We don't care how we make you feel it, but we are going to make you feel it. It is not personal; the questions at stake are much too great for anything of that kind, but we are going to locate you in the eyes of the public as being the people who are causing this trouble, and in every way possible which is still left to us, by our legislative powers, we are going to impose on you these things and we will take them off when you will do such and such, according to what we are advised by our expert advisers, but we have got you on the spot’.” Evidence of Major Douglas (ibid., pp. 96-7).

11 The letter ran as follows: “He [Aberhart] is doing nothing contrary to orthodox finance, with the possible exception of the repudiation of the Loan Council agreement, which was entirely due to the fact that Douglas himself, through the press, warned the people of Alberta of the possible consequences.… Refunding of interest rates is a well-known method employed by the orthodox financial system and had been going on ever since the depression started.… To say that Douglas would not come on invitation from the Alberta government is incorrect. The cables and letters exchanged clearly show that no direct invitation was ever issued until the last week in December, and then only after Douglas, by cable, had asked that his resignation be announced. The reason for the request to be relieved of his contract is quite obviously due to the fact that the Government was prepared to accept financial advice from their own appointee [Mr. R. J. Magor] ․ without reference to their chief reconstruction adviser, Major Douglas himself.” Toronto Globe, July 24, 1936.

12 “Close watch is being kept on the deliberations of the Alberta legislature and the various devices being set up for giving effect to the Alberta system of Social Credit.

“The suggestion is rather recurrent that much of what is being done is really an infringement upon the federal authority. But it is abundantly plain that there will be no interference here. Alberta gave its prophetic premier a mandate of the widest scope.

“Ottawa indicates no intention of allowing it to be said they frustrated his purpose to deliver the goods—or at least something on account on his extensive undertakings.” Ottawa Journal, Aug. 29, 1936.

13 Edmonton Journal, Dec. 31, 1936.

14 Ibid.

15 Canadian Annual Review, 1937–1938, pp. 468–9.Google Scholar

16 Ibid., p. 469.

17 Ibid., p. 469.

18 Edmonton Journal, Mar. 31, 1937.

19 Ibid., July 8, 1937.

20 Canadian Annual Review, 1937–1938, p. 470.Google Scholar

21 Ibid., p. 471.

22 Annual Report of the Social Credit Board to the Legislative Assembly of the Province of Alberta at the 1939 Session (mimeo.), p. 2. Copy in the Legislative Library, Edmonton.

23 Canadian Annual Review, 1937–1938, p. 471.Google Scholar

24 Ibid., pp. 471-2.

25 Canada, House of Commons Debates, 1938, p. 178.Google Scholar

26 Canadian Annual Review, 1937–1938, p. 111.Google Scholar

27 Journals of the Legislative Assembly of Alberta, Eighth Legislature, fifth session, 1937.

28 Toronto Evening Telegram, Oct. 5, 1937.

29 Cf. above p. 345, n. 10.

30 Journals of the Legislative Assembly of Alberta, fifth session, eighth legislature, Sept. 30, 1937.

31 Canada, Department of Justice, Memorandum on Dominion Power of Disallowance of Provincial Legislation, 10, 1937 (Ottawa, 1938), p. 33.Google Scholar

32 Ibid., p. 37.

33 Reference re the Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province. (1938) S.C.R. 71, per Duff C.J., p. 75.

34 Ibid., p. 77.

35 Ibid., p. 78.

36 Ibid. In the case referred to the chief justice himself had delivered the judgment of the Judicial Committee.

37 Ibid., p. 83.

38 Canada, House of Commons Debates, 1937 (unrevised), p. 2473.Google Scholar

39 See Constitutional Issues in Canada (Toronto, 1933), p. 432.Google Scholar “It is well to remember that this Dominion power is legally unimpaired, and the extent of its exercise rests on no more stable basis than the particular theory held at a given moment by the Minister of Justice or by the Cabinet.”

40 Dominion and Provincial Legislation (1867-1895) (Ottawa, 1896), pp. 376–7.Google Scholar

41 Ibid., pp. 61-2.

42 Canada, House of Commons Debates, 1938, p. 177.Google Scholar

43 Canadian Annual Review, 1937–1938, p. 49.Google Scholar

44 Cf. Plewman, W. R., Adam Beck and the Ontario Hydro (Toronto, 1947), p. 90.Google Scholar

45 “Then I quoted Blake with regard to federal interference in such matters; and recalling Sir Wilfrid's position when an analagous subject was before Parliament in 1896 I quoted him as follows: For, Sir, experience has taught us that this remedy of interference with local legislation has never been applied and probably never can be applied without friction, disturbance and discontent; that you cannot apply that remedy without causing as much dissatisfaction as satisfaction.” SirBorden, Robert, Memoirs (Toronto, 1938), vol. II, p. 590.Google Scholar The above passage refers to Mr. Lapointe's motion on the Ontario School Question in 1916.