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The Courts and the Sovereignty of the Canadian Parliament

Published online by Cambridge University Press:  07 November 2014

J. R. Mallory
J. R. Mallory*
Affiliation:
The University of Toronto
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Extract

One of the great elements of stability in the British constitution has been the sovereignty of parliament. The fact of parliamentary sovereignty has given the British constitution a flexibility which has enabled it to serve the changing needs of different periods by modifying the inflexibility of the common law by direct changes in positive law. Even before the period of deliberately created law the fiction of the king's conscience enabled the courts of equity to introduce an element of peaceful change into the legal structure of England.

The supremacy of the will of parliament involved in the notion of parliamentary sovereignty presupposes two things. Firstly, it assumes a single supreme legislature, and secondly it assumes the superiority of legislation over the will of the courts. If, as Walter Bagehot contended, the efficient secret of the British constitution lay in the almost complete fusion of the executive and legislative functions, it equally depended upon the supremacy of the legislative branch over the judiciary. It was no abrogation of that theory that it was the business of the courts to determine whether the subject was bound by the words of a particular expression of the will of the legislature. That was merely a protective device against an administrative abuse of power. What that theory cannot logically contain is the notion that the courts could say that the legislature was or was not exceeding its powers in legislating. For by definition those powers are unlimited.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 10 , Issue 2 , May 1944 , pp. 165 - 178
Copyright
Copyright © Canadian Political Science Association 1944

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References

1 Bagehot, Walter, The English Constitution (London, 1928, World's Classics edition (Oxford)), p. 9.Google Scholar

2 Hodge v. The Queen, 9 A.C. 117.

3 See letter and memorandum to the prime minister from the Hon. G. H. Ferguson, Sept. 20, 1930 (quoted in Dawson, R. M., Constitutional Issues in Canada, 1900-1031, London, 1933, pp. 28–34)Google Scholar, and Brief of New Brunswick to the Royal Commission on Dominion-Provincial Relations (Fredericton, 1937).Google Scholar

4 Creighton, D. G., “Federal Relations since 1914” (in Canada in Peace and War, edited by Chester Martin, Toronto, 1941).Google Scholar

5 Report of the Parliamentary Counsel to the Senate (Ottawa, 1939).Google Scholar

6 Taff Vale Railway Company v. Amalgamated Society of Railway Servants, (1901) A.C. 426.

7 E.g. in Donaghue v. Stevenson, (1932) A.C. 562, and Grant v. The Australian Knitting Mills, (1936) A.C. 107.

8 River Wear Commissioners v. Adamson, (1876) 1 Q.B.D. 546 (Ct. of App.), and Great Western Railway Company v. Owners of the S.S. Mostyn, (1928) A.C. 57.

9 Corry, J. A., “Administrative Law and the Interpretation of Statutes” (University of Toronto Law Journal, vol. I, 1936, p. 307).Google Scholar

10 Ibid., p. 305.

11 (1877) L.J.C.P. 648.

12 Landis, J. M., The Administrative Process (New Haven, 1938), p. 9.Google Scholar

13 Ibid., p. 89. And cf. Corry, J. A., The Growth of Government Activity since Confederation (Report of the Royal Commission on Dominion-Provincial Relations, Appendix, Ottawa, 1940), pp. 19–40 Google Scholar, for an excellent account of the reasons for the expansion of the activities of Canadian governments.

14 (1915) A.C. 120.

15 (1938) A.C. 708.

16 (1943) S.C.R. 1.

17 Willis, John, “Administrative Law and the British North America Act” (Harvard Law Review, vol. LIII, 12, 1939, p. 281).Google Scholar

18 Russell v. The Queen, 7 A.C. 829; and Hodge v. The Queen, already cited.

19 (1932) A.C. 304; (1932) A.C. 54.

20 (1923) A.C. 696.

21 (1922) A.C. 191.

22 (1887) 12 A.C. 575.

23 (1922) 1 A.C. 200.

24 (1939) A.C. 132.

25 Wheat. 316.

26 Report of the Committee on Ministers' Powers (Cmd. 4060/1932, H.M. Stationery Office, London)Google Scholar, Annex V, note by Harold Laski, p. 135. Mr. Justice Holmes's famous reference occurred in Lochner v. New York, 198 U.S. 45, 76. Heydon's Case is reported in (1584) 3 Co. Rep. 8.

27 Cf. Report of the Royal Commission on Dominion-Provincial Relations, Book I, pp. 58-9, 247-8; Appendix 2, pp. 52-8.

28 Report of the Parliamentary Counsel to the Senate.

29 (1887) 7 A.C. 96.

30 Clokie, H. McD., “Judicial Review, Federalism, and the Canadian Constitution” (Canadian Journal of Economics and Political Science, vol. VIII, 11, 1942, p. 543).Google Scholar

31 Ibid., p. 547.

32 Jackson, Robert H., The Struggle for Judicial Supremacy (New York, 1941), p. 289.Google Scholar

33 St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 94, per Stone J.

34 Burnett v. Coronado Oil and Gas Co., 285 U.S. 393, 406, per Brandeis J.

35 Corry, , “Administrative Law and the Interpretation of Statutes,” p. 291 ff.Google Scholar

36 Attorney-General of Ontario v. Attorney-General of Canada, (1896) A.C. 348.

37 The two are not unrelated phenomena in Canadian politics. See my “The Compact Theory of Confederation” (Dalhousie Review, vol. XXI, 10, 1941, p. 342).Google Scholar

38 For a discussion of the extent of the reversal see Jackson, The Struggle for Judicial Supremacy.