No CrossRef data available.
Article contents
Judicial Review, Federalism, and the Canadian Constitution*
Published online by Cambridge University Press: 07 November 2014
Extract
Thus far in the twentieth century Canadian statesmen have been faced with two major constitutional problems, one relating to external autonomy, the other to internal economy. The first of these was the adaptation of existing governmental procedures in such fashion as to make Dominion nationhood a political reality by institutionalizing the processes appropriate to what is now called “Dominion Status.” The second has been the development of a more closely integrated national economy within the framework of a federal system. It is not necessary to consider the advisability or soundness of pursuing either of these purposes; it is enough for the student of constitutional machinery that they have been widely assumed as desirable ends, pursuit of which is considered to be progress. The very fact, however, that the attainment of these aims has had to be sought consciously in the past twenty-five years, more than half a century after the establishment of the Dominion, indicates that they were hardly in contemplation in 1867. And, as there can be no progress without change, it must be recognized that the progressive fulfilment of Dominion national aspirations, externally and internally, must carry with it very considerable if not almost revolutionary alteration in Canadian constitutionalism.
The obvious purpose of the formulation of the principles of Dominion status was to place each of the Dominions on terms of constitutional equality with Great Britain. If each Dominion had inherited British institutions in their pure form, the result would have been the creation of half a dozen reproductions of the British constitutional system. But no Dominion was actually a simple replica of the British polity, and in consequence the declaration of the new status created almost as many problems as it solved. With regard to the external aspects, the Dominions differed among themselves as to the immediate desirability of the legal consequences of the new status, so the Statute of Westminster, 1931, was drawn in such a way as to apply automatically only to Canada, the Irish Free State, and South Africa; for the other Dominions, the Statute was to come into operation only when adopted by them. So, also, with regard to the internal aspects, special reservations were made in the Statute to protect the constitutional systems of Canada, Australia, and New Zealand from change.
- Type
- Research Article
- Information
- Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 8 , Issue 4 , November 1942 , pp. 537 - 556
- Copyright
- Copyright © Canadian Political Science Association 1942
Footnotes
*
This paper was read at the annual meeting of the Canadian Political Science Association in May, 1942.
References
1 Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, p. 19.
2 Riddell, W. R., The Constitution of Canada in its History and Practical Working (New Haven, 1917), p. 52 Google Scholar; Orpen v. Attorney-General for Ontario, 1924, 56 O.L.R. 327.
3 For an analysis of the agencies which have participated in interpreting the Constitution, see the writer's “Basic Problems of the Constitution: (iii) Who interprets the Constitution?” to be published shortly in the Canadian Bar Review.
4 E.g., the Canada Shipping Act, which Mr. E. R. Cameron reported in 1929 was known to be invalid in part, was assented to and appears in the Revised Statutes of 1927. It remained for the courts to invalidate it in 1934! ( Canadian Bar Review, vol. VIII, pp. 111–16Google Scholar; 1933 Ex. CR. 49).
5 Canada, House of Commons Debates, 1941, vol. I, p. 671.Google Scholar
6 Cf. Keith, A. B., Speeches and Documents on the British Dominions, 1918-1931 (Oxford, 1932), pp. 101–2.Google Scholar
7 City of Montreal v. Montreal Street Railway, 1912 A.C. 333.
8 The Liquor License Reference, Dom. Sess. Pap., 1885, No. 85. An act (48-49 Vict, c. 74) was then passed to suspend the liquor act of 1883 and the case went on appeal to the Judicial Committee (1896 A.C. 348).
9 He was afraid it was “an advance toward the American system, and proposed to transfer the responsibility of the Ministry of the day to a judicial tribunal”but he perceived that “the answer of the tribunal will be simply for the information of the Government. The Government may dissent from that decision, and it may be their duty to do so if they differ from the conclusion to which the court has come”( Canada, House of Commons Debates, 1890, vol. II, 4093, 4Google Scholar).
10 For an example of how lawyers wrestle with these problems, see the two Memoranda on the Office of Lieutenant-Governor and Disallowance of Provincial Legislation (1938) issued by the Department of Justice. The conclusion therein is simply that usage differs in the two cases.
11 Law of the Constitution (1st ed., 1885), p. 153.Google Scholar The phrase “official mendacity”was later modified to “diplomatic inaccuracy,”as it now stands in Dicey's last revision (8th ed., 1915), pp. 162 and 162n.
12 Ibid., p. 146.
13 SirPope, Joseph, Confederation Documents (Toronto, 1895), pp. 84–5, 87–8.Google Scholar
14 The Australian Constitution specifically limits parliamentary control of the judiciary: “But no exception or regulation prescribed by the Parliament shall prevent the High Court,”etc. (Article 73). It must be remembered that Mr. Inglis Clark, who drafted the judiciary sections, and Sir Samuel Griffith, who became first Chief Justice, were not only great admirers of the American judicial system, but urged the adoption of “separation of powers”in place of Cabinet government. See Hunt, E. M., American Precedents in Australian Federation (New York, 1930), pp. 19-20, 58 Google Scholar, for citation of authorities to this effect.
15 This was specifically asserted by Smuts. Cf. SirWalton, E. H., The Inner History of the National Convention of South Africa (London, 1912), p. 60.Google Scholar
16 Special Committee of the House of Commons (Can.) on the British North America Act, Proceedings and Evidence and Report (Ottawa, 1935), p. 10.Google Scholar
17 The succeeding remarks do not apply to the most careful and elaborate critique of Privy Council decisions which is to be found in a Report of the Parliamentary Counsel of the Senate on the Enactment of the British North America Act, 1867, Any Lack of Consonance between its Terms and Judicial Construction of Them and Cognate Matters (Ottawa, 1939).Google Scholar This otherwise admirable analysis suffers from what may be called the “true construction” fiction (i.e., that there is an absolute legal interpretation of the Act of 1867). It is possible, however, that the author was poking fun at his legal confrères, for after tearing the Privy Council decisions to pieces he does not suggest future reliance on Canadian judges (nor on Dominion politicians!) but on British parliamentarians. (See his concluding remarks, Annex 5, p. 152.)
18 Law of the Constitution (8th ed., 1915), p. 164.Google Scholar