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The Strange Case of a Provincial Constitution: The British Columbia Constitution Act*

Published online by Cambridge University Press:  10 November 2009

Campbell Sharman
Campbell Sharman
Affiliation:
University of Western Australia
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Abstract

Provincial constitutional documents have not usually been the subject of scrutiny by those concerned with the governmental process at the provincial level. It has been assumed that the major characteristics of provincial government have been shaped by constitutional rules derived from the British North America Act and from the conventions of British-style parliamentary government. A case study of the British Columbia Constitution Act shows that such assumptions are only partially true. The powers of the provinces to shape their governmental structures through constitutional adaptation are extensive and have been used in the case of British Columbia to make broad modifications to the style of constitutionalism in the province since its entry to Confederation in 1871. It is not that the term provincial constitution should become a household word but that the investigation of the operation and potential of provincial constitutions should be seen as an essential component to an understanding of the provincial governmental process.

Résumé

Les constitutions des provinces sont rarement étudiées par les spécialistes des processus gouvernementaux au niveau des provinces. Il est plutôt estimeé que les principes de fonctionnement des gouvernements provinciaux viennent des règies constitutionnelles inscrites dans l'AANB ou dans les conventions parlementaires de type britannique. En analysant l'Acte constitutionnel de la Colombie-Bntannique, on montre que ce n'est que partiellement vrai. Les pouvoirs des provinces pour modifier les structures gouvernementales par des adaptations constitutionnelles sont extensifs: la Colombie-Britannique y a eu recours pour modifier de facon significative ses structures depuis son entrée dans la Confederation en 1871. Ainsi, il faut donneraux constitutions des provinces la place qui leur revient, c'est-à-dire que leur analyse est un élément essentiel de la compréhension du processus gouvernemental provincial.

Type
Sommaire
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 17 , Issue 1 , March 1984 , pp. 87 - 108
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1984

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References

1 To avoid confusion with the Constitution Act of British Columbia, the British North America Act will be referred to as such in spite of its recent change of title. References to the British North America Act are to the Consolidation of the British North America Acts, 1867 to 1975, prepared by Driedger, E. A. (Ottawa: Department of Justice, 1976).Google Scholar

2 Section 92(1), re-enacted in the Constitution Act, 1982, section 45.

3 Cheffins, R. I. and Tucker, R. N., “Constitutions,” in Bellamy, D. J. et al. (eds.), The Provincial Political Systems: Comparative Essays (Toronto: Methuen, 1976), 257–68.Google Scholar

4 McConnell, W. H., Commentary on the British North America Act (Toronto: Macmillan of Canada, 1977), 108–36, 245–48.Google Scholar

5 That is, the Act provides in sections 56 and 90 for the disallowance and reservation powers and, in 92(IO)(c), for declaratory legislation by parliament. Note Mallory, J. R., Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954)Google Scholar, and McConnell, , Commentary on the British North America Act.Google Scholar

6 That is, the office of lieutenant governor is a national one and expressly beyond the ability of the provinces to amend: see BNA Act, section 92(1), and the Constitution Act, 1982, section 41.

7 See Duff, C. J., Reference Re Alberta Statutes, [1938] S.C.R. 100, 132–35;Google Scholar but note the brief commentary in Russell, Peter H. (ed.), Leading Constitutional Decisions (3rd ed.; Toronto: McClelland and Stewart, 1982), 308–09.Google Scholar

8 Cheffins and Tucker appear ambivalent on the potential for change. In the concluding paragraph of their article (see n. 3 above) they note the opportunity for experimentation. Yet in the body of the article they make no reference to any evolutionary pressures on provincial constitutions and they suggest no criteria for assessing the nature and extent of change. Indeed the general thrust of their argument is that there has been no change at all.

9 The Constitution Act, 1979, R.S.B.C, C. 62.

10 Note, however, that there are major differences in the format of these statutes, the implications of which are not examined in this article.

11 See Statute Revision Act, 1979, R.S.B.C, C. 394, section 3.

12 Driedger, , Consolidation of the British North America Acts, 1867 to 1975.Google Scholar

13 This point was established after consultation with the relevant officials in the premier's department. It is also assumed in Hardenbergh, W. S., “British Government in British Columbia” (unpublished doctoral dissertation, University of Illinois, 1954).Google Scholar A similar usage obtains in Ontario. See Schindeler, Fred, Responsible Government in Ontario (Toronto: University of Toronto Press, 1969), 28.Google Scholar

14 Constitution Act, sections 10–16.

15 Ibid., section 10.

16 See the exceptions to prohibitions on membership of the Assembly. Ibid., section 26.

17 Ibid., section 17.

18 Ibid., section 23(1).

19 Ibid., sections 22, 23(2). These requirements are now entrenched in the Canadian Charter of Rights and Freedoms, sections 4, 5.

20 Constitution Act, sections 51–53. The explicit power of the lieutenant governor to return bills (section 53) appears to be unique to British Columbia.

21 That is, to the extent to which it can control the formal machinery of the executive to prevent the proclamation of, or even the royal assent to legislation (see ibid.).

22 The Constitution Act, 1871 S.B.C. No. 146. The Act is reprinted in the Appendices to the Revised Statutes of British Columbia, 1979, Vol. 7Google Scholar, together with other historical documents. On the evolution of government in the province, note Hardenbergh. “British Government in British Columbia.”

23 Constitution Act, 1871, section 32.

24 See Hardenbergh, , “British Government in British Columbia,” 159–61Google Scholar, and note Forsey, E. A., The Royal Power of Dissolution of Parliament in the British Commonwealth (Toronto: Oxford University Press, 1943), particularly 223–27Google Scholar and Appendix D, and Ogg, F. A., English Government and Politics (2nd ed.; New York: Macmillan, 1936), 135–36.Google Scholar

25 Legislative Assembly Allowances and Pension Act, 1979, R.S.B.C. C. 228; Legislative Assembly Privilege Act, 1979, R.S.B.C, C. 229.

26 Constitution Act, sections 68–71.

27 Miscellaneous Statutes Amendment Act (no. 1), 1980, S.B.C., C. 36, section 3. On the events leading up to this change and the debate on the issue see British Columbia, Debates of the Legislative Assembly, 1980, Vol. 4, 2282–84, 2285–87;Google Scholar Vol. 6, 3035–42.

28 For the government position see the comments of the attorney-general, ibid., 1980, Vol. 6, 3039; for the opposition, see ibid., 1980, Vol. 6, 3035–43, particularly, the contributions of Mr. Nicolson.

29 Debate on the increase was very brief, partisan and did not raise constitutional issues: see ibid., 1973, Vol. 3, 2972–73. If offices other than ministers (such as the Speakership) were included, the 50 per cent threshold was passed at least a decade earlier.

30 Constitution Act Amendment Act, 1921 (1st Session). S.B.C., C. 12, section 3.

31 Ibid., 1973, S.B.C., C. 20, section 3.

32 Ibid., 1979, S.B.C., C. 6, section 1.

33 All consolidated statutes have the same preamble and it may have seemed incongruous to preserve a preamble which referred to a law-making authority outside the legislative source of the current consolidation.

34 Constitution Act Amendment Act, 1929, S.B.C., C. 14, section 2(1).

35 See Kitchin, G. W., “The Abolition of Upper Chambers,” in Rowat, D. C. (ed.), Provincial Governments and Politics: Comparative Essays (2nd ed.; Ottawa: Department of Political Science, Carleton University, 1973)Google Scholar, and note McConnell, , Commentary on the British North America Act, 125–28.Google Scholar

36 The “at least” refers to the attempt by British Columbia to apply legislation similar to that of the Alberta statute. The Direct Legislation Act, 1919, S.B.C., C. 21, was passed, and appears in the indexes of British Columbia statutes until the 1924 consolidation, when all trace of it disappears. It is probable that the Act was never proclaimed.

37 See Re Initiative and Referendum Act [1919], A.C. 935; Regina v. Nat Bell Liquors Ltd. (1922), 2 A.C. 128; and, in addition, note the comments in the Manitoba Court of Appeal, Re Initiative and Referendum Act [1917], 32 DLR 148.

38 While the matter is beyond the scope of this article, it seems likely that such incremental adaptation has already led to significant divergences in constitutional form between the provinces: note the list of statutes in Table 1 above.

39 To an extent this has already been done by the Alberta Bill of Rights, 1980, R.S.A. A-16, and the Saskatchewan Bill of Rights Act, 1978, R.S.S. S-9, but these enactments are couched more in terms of interpretation acts than as statements of constitutional principles. They have, in other words, more in common with the Human Rights Codes of other provinces than with any guarantiste constitutional tradition. By contrast, note the traditions of state constitutions in the United States: see the special issue of Publius 12 (1982) on state constitutional design in federal systems.

40 See Winterton, G., “Can the Commonwealth Parliament Enact ‘Manner and Form’ Legislation?” Federal Law Review 11 (1980), 167–202.Google Scholar In spite of its title and the obtuse nature of its particular conclusion, the article is a useful survey of the issue of entrenchment in Australia, Britain and Canada. Note that the Canadian Charter of Rights and Freedoms, section 4(2), has imposed a manner and form limitation on provincial legislative assemblies for the extension of their life beyond five years.

41 On September 21, 1982 the Legislative Assembly unanimously passed a resolution to amend the Canadian Charter of Rights and Freedoms by adding the enjoyment of property to the list of protected rights in section 7 of the Charter: see British Columbia, Debates of the Legislative Assembly, 1982, Vol. 17, 9299–309.Google Scholar

42 Since the level of government most likely to expropriate property is the provincial one, a provincially entrenched enactment would go a long way to achieving the ostensible goals of the British Columbia legislature.

43 Beer, S. H., British Politics in the Collectivist Age (New York: Vintage, 1969).Google Scholar