THE

VOL. XX

December, 1942

No. 10

BASIC PROBLEMS OF THE CANADIAN CONSTITUTION*

III . WHO INTERPRETS THE CONSTITUTION?No subject has aroused more controversy in recent years then

that of the interpretation of the Canadian constitution. Fortwenty years the topic has been argued by lawyers, debated bypoliticians, and disputed by publicists .

Yet, despite the excep-tional amount of attention devoted to the subject,_ it can hardlybe asserted that any greater certainty has been attained or thatagreement has been reached as to what is at stake .

That there isunusual confusion and uncertainty in, the matter may be inferredfrom the fact that no commentator in the' past two decades hasundertaken a comprehensive analysis or description of the con-stitutional system, a circumstance that is the more noteworthyin view of the very considerable literature of authority and dis-tinction in the first fifty years of the Dominion's existence .

Theonly conclusion that can be drawn with certainty from the numer-'ous discursive- polemics and more specialised inquiries o£ recentyears is that there exists widespread dissatisfaction with theconstitutional system as currently interpreted and understood .

The reason for the indecisive nature of the constitutionaldiscussions may be found in the circumstance that they have beenproceeding during a period of fundamental change in Canada'snational status . Much of the disputation has been devoted toexternal issues which have now actually been settled-such asthe extent of Canadian autonomy-or to historical and technicalanalysis of ancient grievances and their more recent counterparts-such as the possible violations of a federal compact or allegeddeparture of legal construction from original intentions . It wasundoubtedly necessary to have these points aired, but it is some-what unfortunate that attention has continued to be concentratedon them.

There is a limit to the utility of the appeal to history,* A previous article on this subject by Professor Clokie was published in

(1942) 20 Can. Bar Rev. 395 .

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particularly when it takes the form of prejudicial recital of pastwrongs or of a search for sure guidance in future conduct. Sucha radical and uncontemplated change has occurred in Canadianstatus that new courses have to be devised and novel adaptationsmade .

The basic change, it need hardly be said, lies in the attain-ment of Dominion Status, whether this be interpreted as independ-ent statehood of the Irish type or continuance of co-operativeassociation in the British Commonwealth . For, whatever maybe thought of it, the enunciation of the principles of DominionStatus created almost as many problems as it settled . At firstglance it might be thought that the consequence of the BalfovrReport of 1926 would simply be to accomplish the long demanded"assimilation" of colonial institutions to their English model.Certainly the intention specified in the Report was to place eachDominion on terms of constitutional equality with Great Britain.If each Dominion had inherited English institutions in their pureform, the effect would have been to establish half a dozen repro-ductions of the English constitution . In actuality, however, noDominion was a simple replica of the British polity ; each Dom-inion found itself faced with serious constitutional problems ofvarying degrees of difficulty .

Some of the Dominions, and amongthem Canada, sought an easy refuge in postponement of consider-ation of the issues involved, even though this meant the temporaryrejection of the full benefits of the new status.

So far as Canadais concerned this is somewhat remarkable, for she had been oneof the prime movers in demanding the new status .

At any rate,the device by which this was effected was the insertion of a Cana-dian section' in the Statute of Westminster, 1931, the evidentpurpose of which was to perpetuate the existing constitutionalposition and to repudiate the complete consequences of DominionStatus so far as constitutional autonomy is concerned .

Butevenif this was the intention, it was quite incapable of attainment .The authors of the Canadian section sought to have the best oftwo worlds, colonial subordination and Dominion equality .Superficially, they kept the law of colonial status intact ; but in

1 Section 7 : "Nothing in this Act shall be deemed to apply to the repeal,amendment or alteration of the British North America Acts, 1867 to 1930,or any order, rule or regulation made thereunder.

(2) The provisions of section 2 of this Act shall extend to laws madeby any of the Provinces of Canada and to the powers of the legislaturesof such Provinces .

(3) The powers confererd by this Act upon the Parliament of Canadaor upon the legislatures of the Provinces shall be restricted to the enact-ment of laws in relation to matters within the competence of the Parliamentof Canada or of any of the legislatures of the Provinces respectively ."

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reality, they had no in

of losing Dominion Status as amatter of practice. Accordingly, the conventions of DominionStatus were expected to override the law of colonialism .

Thiscurious contrast has already been considered in relation to con-stitutional amendments; a similar peculiarity will be found withrespect to constitutional interpretation.

The words of the Statute of Westminster profess to preservethe British North America Acts from Canadian tampering . Boththe Statute and the Acts are British enactments and are thereforeproperly subject to British interpretation .

The statutory foun-dation of British legal interpretation so far as Canada is concerned,is a British enactment of 1844.

Yet, by the second section of theStatute of Westminster, the Canadian Parliament may repeal (forCanada) the statute on which such interpretation rests .

This hasalready been set in motion .

When appeals for British interpreta-tion are brought to an end, the Statute of Westminster and theBritish North America Acts 'will be subjected exclusively toCanadian construction and may be treated for all practical pur-poses as if they were Canadian statutes . There is, of course,nothing very startling in this ; the same result has been accomplish-ed openly in South Africa by re-enactment there of the appropriatesections of the Statute of Westminster. But it is somewhatcurious that in Canada, where the Statute was supposed to havea specially protective function, the same thing is being accomplish-ed surreptitiously. -

.There is another consideration, too, which might cast doubt

on the efficacy of the "legal" protectionafforded the "constitution"by the Statute of Westminster .

Section 7 (1) of the Statute hasalready been shown to have a conventional meaning the reverseof the legal phrasing.-' May this not also be true for Section 7(3)?Nominally the jurisdiction of Dominion, and provincial legis-latures are thereby definitively limited ; but might not a similarconventional usage begin to override the, terms of this third sub-section as well as of the first?

Who is to declare that one meanswhat it says while the other does not? The ambiguity of theStatute is as pronounced in the matter of constitutional inter-pretation as it has been shown to be with regard to constitutionalamendment, and it makes the subject of interpretation well worthserious investigation .

The importance of the interpretation function is acknow-ledged by the extent to which it has been debated in recent years.The power of interpretation may not be as final, decisive, or

2 20 Can. Bar Rev. pp. 407-429.

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fundamental as that of amendment, but it is perhaps of morepractical importance from day to day. Until the rarely invokedamending power is set in motion, the constitution means whatits interpreters say. Indeed, even after a distinctive consti-tutional change has been formally introduced, its significancedepends on how it is construed .

The interpreters may not alwaysbe able to alter the "spirit" of the constitution, but at least theycan direct the application of this "spirit" to practical problems,and, in doing so, may gradually transform the whole system as aworking scheme .

The constitution, then, may be taken to meanwhat it is said to mean.

But said by whom?The Dominion of Canada was set up in 1867 with a consti-

tution founded on the British North America Act of that year .In some respects it was a curious constitution .

Every system hasaspects in which doubt exists as to the correct rule or procedureto be followed, and many written constitutions are found toposses inconsistencies and unworkable features . Canada'swritten constitution of 1867 not only had obscurities of term-inology and some unworkable features, it has also two additionalpeculiarities, much of the most basic portion of the system is notrecorded in the written document and much of the written portionis not to be taken literally . There is no question about the resaonfor these peculiarities. They are shared by most constitutionalsystems which have grown out of a British background and arethen reduced to writing.

The English constitution is a compositeof political traditions, rules of law, public declarations, and legis-lative enactments relating to public affairs and the rights andduties of citizens . These several aspects have never been col-lected or codified, and it is usually asserted that to do so would beimpossible without loss of the flexibility which is so much admired.Nevertheless, the attempt has frequently been made to record inwriting some of these principles for use outside Britain. TheBritish North America Act is an early example.

The Act of 1867 did not wipe the record clean and make acompletely fresh start, nor was it intended to be fully compre-hensive as a constitution .

It is itseif little more than one of a longline of constitutional documents, the enactment of a particular yeardevoted to a specific task-the federation of three colonies. For,though the Act did create central institutions for the new Dom-inion, it contained singularly little about the principles accordingto which they were to operate, and that little was false.-'

It is true' Among the few statements implying, but not specifying, cabinet gov-

ernment are :-section 13, Governor-General to mean Governor-General inCouncil unless otherwise specified ; section 20, annual parliamentary sessions ;

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that the preamble declared that the colonies desired to be federallyunited "with a 'Constitution similar to that of the United King-dom," but the whole Act was characterised by the archaic termin-ology of Blackstone's day, as a result of which there appears anold-fashioned and unintentional separation of powers, checksand balances (but no bill of rights) . 4 Everyone knew that thewords were not to be taken seriously in their literal or ,technicallegal meaning. There was no doubt in the minds of the Fathersof Confederation but that the Dominion was to possess "respon- .sible government", i.e ., cabinet government of the contemporaryBritish type, regardless of the wording of the statute .

Respon-sible government, it must be remembered, had been introduced-twenty years before confederation had been proposed andhadnotthen been given any statutory recognition.

Itwasto form abasicfeature of the constitutional system, although totally unrecordedin the Act of 1867 .

-The Canadian constitution is thus a tangled web of legal

rules and political and administrative practices governing thetransaction of public business with respect to private rights in thecountry and official relations with Britain and other countries.The-Act of 1867 is bûtone portion of this constitutional foundationit has no meaning apart from the whole body of common lawconstruction concerning the Crown, rule of law, jury trial, etc.,or apart from the conventional principles concerning ministerialresponsibility, parliamentary 'government, and modern demo-cratic procedures. Nevertheless, from the very first, a specialsignificance has been attached to the British North America Actand every effort is made to square constitutional practice with itsterms, "when properly understood ." Under these circumstancesit can be appreciated that Canadian constitutional history hasbeen one long field-day for "interpreters."

TheAct, it is needlessto say, made no provision for its own interpretation .

As a Britishstatute it would normally be left to the courts' for legal construc-tion . Yet this judicial interpretation was necessarily restricted

section 53, money bills to originate in the Commons after being first recom-mended (section 54) by the Governor-General ; section 18 (as amended),parliamentary privileges to correspond to those of British parliament .

4 The . only rights protected relate to education (section 93) and Frenchlanguage (section 133) .

e Not "English" courts.

One of the last vestiges of such jurisdiction(in habeas corpus proceedings) was abolished in 1862 by 25-6 Victoria c. 20.The sole remaining English judicial jurisdiction appears in the legal liabilityof the Governor-General under early statutes, a position that continuesthrough inability to discard the outmoded concept that he is not a viceroy .The Judicial Committee of the Privy Council, to be discussed later, is notan "English court" . In so far as it serves for overseas appeals it mayberegarded more as a British or imperial organ .

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by the "prerogative" aspects of the Act and the various usagesof colonial practice . As in all colonial constitutions, it wasthoroughly understood that the British authorities exercisedcertain political controls. At the same time, however, the con-cept of colonial autonomy led Canadian authorities to claim aconsiderable part in interpretation . The first fifty years of Con-federation is thus largely a period of struggle against Britishinfluence . The attainment of Dominion Status worked a con-stitutional revolution because it made possible the complete elimination of ail "external" interpretation on Canadian affairs .

Butbefore attempting to determine who has fallen heir to this inter-pretative function, it is necessary to inquire exactly what agencieshave previously engaged in this task .

There have been five external (British or imperial) organswhich have had a hand in shaping the Canadian constitution .The most authoritative declarations on Canadian affairs haveof course, emanated from the British Parliament . However, asthese declaratony statutes are indistinguishable from amendments,which have already been discussed,' nothing more need be saidof them . In any case, for all Canadian purposes, the BritishParliament has been little more than a recording body, certifyingdecisions taken elsewhere .

The second British interpreter of the constitution has beenthe Secretary of State for the Colonies .

This British official hadlong exercised this function .

It had been on his instructions thatthe several colonial governors had been ordered to follow theprinciples of ministerial responsibility .

After 1867, the ColonialSecretary continued to play an important, though graduallydiminishing, part, through his control of the royal veto' of Dom-inion legislation and of the Governor-General's appointment andinstructions as well as by his despatches explaining colonial policyon behalf of the British government.' In the earliest years theColonial Secretary maintained a fairly close supervision overCanadian affairs, being regularly consulted by the Canadian

6 20 Can . Bar Rev., pp . 395-407 .7 Under sections 55-7 of the Act of 1867 .

Acts to which the Governor-General gives assent may be disallowed and Bills to which assent has notbeen given may be reserved . There has been but one case of disallowance,the Oaths Act of 1873 . Of a score of reserved Bills, only four failed tosecure royal assent:-Governor-General's salary Bill of 1868, Copyright Billof 1872, Marine Telegraphs of 1874, and Shipping Bill of 1878 . Revelantdocuments are to be found in W. E . Hodgins, Dominion and ProvincialLegislation 1867-9 .5 (1896), pp . 6-60, 1281-1326 . There is no doubt thatthe threat of veto was influential . Cf . A . Todd, Parliamentary Governmentin the British Colonies (1894), p . 184, for the case of the Supreme Court Actof 1875 .

e E.g., Lord Ripon's despatch respecting commercial treaties, 1895.(British Parliamentary Papers, C . 7824 (1895) .

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authorities on doubtful points of constitutional practice .

Indeed,if the British Parliament assumed the task of clarifying by statutethe terms of the British NorthAmerica Act, the Colonial Secretaryundertook by his despatches to define the conventions of Canadianparliamentary government, especially with respect to the Gover-nor-General's relation to his ministers (as in the question of theappointment of additional or "deadlock" senators,' exercise of thepardoning power," etc.)

The Secretary was also appealed to indisputes between the Dominion and provincial governments onsuch matters as the dismissal of a lieutenant-governor," non-performance of the terms of union," etc. After 1900, however.as internal autonomy became firmly established in Canada, hegradually ceased to be a constitutional interpreter and becamesolely a medium for discussion between the British and Canadiangovernments op. matters affecting imperial interests and inter-national -obligations . Very shortly, too, he lost this functionwhen the British Prime Minister began to preside over ImperialConferences and Dominion ministers entered the Imperial WarCabinet.

The last proposal that the Colonial Secretary or ratherhis successor, the Dominion Secretary) should be consulted wasmade in the "dissolution crisis of 1926 ; but fortunately the Gov-ernor-General (Lord Byng) disregarded the Prime Minister's,(Mr, King's) suggestion." The same year, the Balfour Reportannounced the severance of all connection between the Britishministers and the Governor-General (and . King on Canadianaffairs), so that no further British ministerial intervention canoccur.14

A third source of British interpretation is to be found in theopinions of the Law Officers (Attorney-General and Soliciter-General) of the Crown. These opinions are the official legaladvice available to the British government on colonial as well asother important matters. As fax back as 1755, for instance, theLaw Officers had reported that the governor and council of NovaScotia were not authorized "to make laws till there can . be an

o Canadian Sessional Papers, 1877, no . 68 .to Loc. cit ., 1896, No . 16 .

-11 Br, Part . Pap., C . 2445 (1878-9) ; Can . Sess . Pap., 1880, No . 18 .la E.g., Lord Carnarvon's arbitration of the, British Columbia terms.

(Br. Part. Pap., C . 1217 (1875) ) .13 Can. Sess . Pap., 1926-7, No . 91 .14 "It is the right of the Government of each Dominion to advise the

Crown in all matters relating to its own affairs, and consequently it wouldnot be in accordance with constitutional practice for advice . t o be tenderedto His Majesty by His Majesty's Government in the United KingdomAn any matter pertaining to the affairs of a Dominion against the viewsof the Government of that Dominion ." (Br . Part . Pap., Cmd. 2768 (1926),p, 16) .

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assembly.""

The Colonial Secretary frequently took advantageof this source of definition, especially in connection with the vetoof Dominion legislation . 1 sInthe early years, too, the Canadianministers also sought these opinions on such topics as the alter-ation of original provincial subsidies," the validity of provinciallegislation," and such prerogative matters as the appointment ofQueen's Counsel."

However, appeals to the British Law Officersgradually fell into disuse, partly because there were Canadianlegal advisers for the Crown, but more particularly because otherand more authoritative sources of legal opinion came to the fore-with the additional advantage of judicial hearing and argumentbetween the interested parties.

The fourth imperial organ for constitutional interpretationis the Judicial Committee of the Privy Council. So far as Canadais concerned, the duties of the Judicial Committee arise in threeways. In the first place, under the Judicial Committee Act of1833 (Section 4), it may have referred to it great constitutionalproblems not suitable for adjudication in the ordinary fashion.Canadian examples of this are the Ontario-Manitoba boundarydispute of 1884 and the Labrador boundary dispute of 1927 .21In the second place, under the later Judicial Committee Act of1844, the Committee hears appeals from the Dominion and higherprovincial courts . This phase of its jurisdiction became mostmarked after 1867, though for the first ten years appeals, in theabsence of a Canadian Supreme Court, came entirely from theprovincial courts .21 Very frequently these appeals by HisMajesty's private subjects involve the construction to be placedon judicial, executive, and legislation functions in Canada withrespect to every phase of government . 22

Although the Committeeis technically only an advisory body and not strictly a court, itopinions are in fact always accepted by the Crown and are given

1, There are numerous opinions in the noted volumes of Chalmers andForsyth .

1e Cf. Hodgins, op . cit., pp. 17, 41, 1322 .17 Macdonald at time of first Nova Scotia readjustment, 1869.18 Hodgins, op. cit., passim . Very different is the situation revealed in

F. H. Gisborne and A. A. Fraser, Provincial Legislation 1896-19,20 (1922) .19 Can. Sess . Pap., 1873, No. 50 .20 These are not reported in the usual law reports but are separately

printed .21 After 1874, petitions for leave to appeal to the King-in-Council were

directed by the Colonial Secretary to go direct to the Privy Council Office,instead of through the Governor-General and himself as formerly . (D . A .O'Sullivan, Government in Canada (2nd ed ., 1887), p . 187) .

22 All Privy Council cases relating to constitutional matters have beencollected in E . R . Cameron, The Canadian Constitution and the JudicialCommittee, Vol. I: 1867-1915 (1915), Vol . 11 : 1915-29 (1930), and C . P .Plaxton, Canadian Constitutional Decisions of the Judicial Committee of thePrivy Council 1930-39 (1939) .

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status when necessary by_ order-in-council .

Lastly, the Committehas come to exercise a more purely advisory "Canadian" function .Under Dominion and provincial statutes, the advisory opinionswhich may be sought from Canadian courts are declared to bejudgments for appeal purposes and the referred issues can besubmitted to the Judicial* Committee.

There is, of course, noright on the part of the Canadian -authorities to require` theseopinions from the Committee, but since the establishment ofthe Supreme Court the Commtteè has consented to hear appealson advisory opinions. The first occasion arose in 1888 whenBritish Columbia was at odds with the Dominion over the owner-ship of mineral royalties.23Sincethat time the practice of sub-mitting them has grown considerably .

Of the first fifty constit-utional cases heard before the Judicial Committee (1867 to 1911),only twelve were appeals on such "references," but of the thirtyconstitutional appeals between 1930 and 1939, fifteen were ad-visory (seven of the last ten cases reported being of this nature) .24

From the above account it will be clear that of the Britishsources of constitutional interpretation already described, onlythe decisions of the Judicial Committee are now of any significance.

Yet even these are in process of liquidation.

From thevery first the Committee professed an intention of confiningappeals to large issues of public interest. It refused to hearelection appeals." , Appeals from Ontario and Quebec werealready regulated by provincial statutes, and when the SupremeCourt was established the first intention'had been to make it the"final" court of appeal for Canada. British pressure, however; re-sulted in the insertion of a clause saving the Crown's right togrant leave to appeal.

In the Canadian Criminal Code (Section .1025)26 criminal appeals were cut off; but at last' in, 1926, theCommittee admitted an appeal and ruled that this section wasultra vires of the Dominion Parliament." After the passage ofthe Statute of Westminster, 1931 ; this provision was re-enactedand upheld in a later case.26

Meanwhile, at the Imperial Con-ference of 1926, it was specifically declared that such appeals

23 Attorney-General for British Columbia v. Attorney-General for Canada,14 App. Cas . 295 . The idea of first securing them was apparently firstsuggested -by Blake in 1872 in the dispute over appointment of Queen'sCounsel.

(S. J. Watson, The Powers of Canadian Parliaments (1880) .pp .118-19) . It was not pursued by Macdonald . At,the same time, the Com-mittee refused to consider offering an opinion on New Brunswick schoollegislation . (Hodgins, op . cit ., p . 69) .

24 Calculated from the Cameron and Plaxton volumes, above .26 Theberge v. Landry, 2 App . Cas. 102 .26 Under 51 Victoria c . 43 (Can.) .27 Nadan v. The King, (1926] A.C . 482 .28 British Coal Corp . v . The King, [1935] A.C. 500 .

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should be determined entirely "in accordance with the wishes ofthe part of the Empire primarily affected .' 129 In 1939 a compr_-hensive bill was introduced in the Dominion Parliament for thepurpose of cutting off all appeals, civil as well as criminal, thoughits consideration by the Judicial Committee has been postponedfor the duration of the war. The procedure of waiting for theCommittee's report on this bill which has been approved by theSupreme Court" may be considered quite unnecessary. There canbe no doubt that it is now constitutionally within Canadiancompetence to remove this last vestige of British interpretationof the constitution .

This statement, it should be observed, hasnothing to do with the merits of such appeal, nor can it be invalid-dated by a possible decision to the contrary by the Judicial Com-mittee . Both Australia and the Irish Free State' , have shownhow Privy Council intervention can be curtailed or completelyeliminated, if this is desired. In any case, the Committee'sjurisdiction rests on British statutes which may be repealed inCanada so far as their Canadian effect is concerned . To theextent to which there is a prerogative basis for appeals, there needbe no doubt too that the Crown (with respect to Canada) can bebound by Canadian legislation .

Finally, among the external interpreters of the constitutionis that curious imperial organ, the Imperial Conference . TheImperial Conference came into existence in 1911 to supersede theearlier Colonial Conference . It has no standing at law; its im-portance springs from its membership, which includes the Britishand Dominion Prime Ministers. The Conference is thus essential-ly an informal body of responsible political leaders speaking forthe entire British Commonwealth of Nations. But it is notmerely an occasional consultative body, it has also served as adeclaratory organ, one which has made the most solemn pronoun-cements on the government of the far-flung empire, the mode ofconducting public affairs, and several overseas authorities . In1923, for instance, the Conference enunciated the procedure bywhich Dominions might enter into treaties with foreign states .32In 1926, by approving the Balfour Report, the Conference placedits imprimatur on the novel concept of a commonwealth of equal

" Br . Parl . Pap., Cmd. 2768 (1926)

p. 19.119401 S.C.R . 49 .

ai For all practical purposes Irish appeals ceased in 1926 when ActNo . 11 (Ir .) was passed to nullify a Privy Council decision (Lyman v.Butler, 1925, 2 I.R . 231) . Although the concept of Dominion legislationoverturning a British decision may be shocking to the legal profession, it isno more shocking to the layman than Dominion legislation repealing Britishlaws .

11 Br . Parl . Pap., Cmd. 1987 (1923) .

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nations and propounded new rules respecting the relation of theKing, Governors-General, and Dominion ministers, specificallyannouncing the withdrawal of all that remained of British inter-ference in Dominion affairs." As a body of politicians, the Con-ference of 1926 referred to a more expert gathering-not the LawOfficers or the Judicial Committee!-the legal aspects of DominionStatus which were then in conflict with the Balfour declarations .The special report on Dominion legislation was endorsed by thenext Conference (1930) 34 and, after approval by the severalDominions, its recommendations were incorporated in the Statuteof Westminster, 1931.

It may be doubted whether the interpretative role of theImperial Conference will ever again arise. As the essence ofDominion Status is the release of the Dominions from externalcontrol, the accomplishment of this purpose automatically bringsthis function of the Conference to an end. Henceforth, Dominionaffairs, including their constitution, are a matter for the individualDominions acting alone or (if appropriate) with the formal con-nivance of the British authorities. It will no more require theassent of any future Conference for Canada to secure release fromthe self-imposed limitations of Section 7 of the Statute of West-minster than it took Conference consent for Newfoundland to loseher status, the Irish Free State to repudiate hertreaty obligations,or Eire to enjoy neutrality at the outbreak of warin 1939 .

Before leaving the British and imperial sources of constitut-ional interpretations it must be noted that one feature stands outpre-eminently. Although there have been several such interpreters of the Canadian constitution, unity was always retainedby the unifying political principles of the parliamentary system.The nature of British government is such that the apparentdispersal of functions through different organs conceals the veryreal co-operation between them which results from the sovereigntyof Parliament acting under the guidance of the Cabinet. Thus,though the British agencies might appear to speak with differentvoices, there was nevertheless a unity of control. In 1873, forinstance, when the Colonial Secretary took the advice of the LawOfficers. and advised the Queen to disallow the Dominion Oath Actas ultra vires, this was remedied by British amending legislation.So in the Ontario-Manitoba boundry dispute, after the JudicialCommittee made its report in 1884 the necessary legislation togive effect to it was duly passed in 1889.

Likewise, as has beenshown, , when legal obstacles impeded the operation of the prin-

33 Loc . cit ., Cmd . 2768 (1926) .

-34 Loc . cit ., Cmd., 3717 (1930) .

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ciples of Dominion Status as declared by the Imperial Conference,legislation removed the difficulties. It is important to bear thisin mind because, in considering the Canadian interpreters whoare to fall heir to British functions, it will be necessary to askwhether a similar unity of control is likewise to be found amongthem .

When one turns to the internal or Canadian interpreters ofthe constitution it might be expected that the Canadian organswould be comparable to the British.

This is not the case,

Forone thing, instead of one Parliament directed by one Cabinet,there were at first five-and now ten--legislatures with as manyministries, each of which has claimed equal standing and hassought to take a hand in interpreting the constitutional system .It is impossible to have nearly a dozen sets of politicians attempt-ing definitive interpretation, especially when the only factorcommon to the several governments is a fictional "Crown." Inthis respect, it must be observed that Canadian develpoment hasbeen a repudiation of the chief modern British accomplishment-the concentration of the Crown's advisers in one body of respon-ponsible ministers . Indeed, as applied to Canada--and to thewhole British Commonwealth-the dogma of the unity of theCrown has become an increasingly meaningless and misleadingshibboleth . The Canadian equivalent of the Colonial Secretarymight be thought to be the Minister for External Affairs, but infact, this official exercises little power as such . There are, ofcourse, the Law Officers, the Attorneys-General for the Dominionand provinces, but here again we meet diversity instead of unity.There is no judicial committee of the Canadian Privy Council,though comparable functions are exercised by the DominionSupreme Court.

Theanalogy between Imperial Conferences andDominion-Provincial Conferences is far-fetched, for the latter hasso far attained no function of constitutional importance .

One may begin with the legislatures.

Legislative interpreta-tions have been made formally by statute and less formally byaddress, resolution or order of the several houses.

The statutesin particular have been subject to review by other bodies and havethus been defective as definitive interpretations of the constitution .So far as the Dominion Parliament is concerned its statutes havehad to run the gamut of the Governor-General (acting under theAct of 1867 and under instructions) and of the Colonial Secretary(acting indepentently or on the advice of the Law Officers) .

Since1878, with the withdrawal of these "veto" controls, it has still beenpossible for the Canadian courts (and, on appeal, the Judicial

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Committee of the Privy Council) to review legislative interpret-ations," as will be explained later. The provincial legislativeefforts have similarly been subject to the approval of the lieuten-ant-governor, the Governor-General, the Dominion Minister ofJustice (with or without consultation with the Colonial Secretary),and thecourts (provincial, Dominion, andthe Judicial Committee) .Nevertheless, despite these grave handicaps, there have beenmany significant aspects of effective legislative interpretation ofthe constitution . The Dominion Parliament hasbeen exceedinglyinfluential by its legislative determination of the judicial system,financial relations with the provinces, departmental organisationof the central government, civil service, electoral arrangements,etc,

As a result of the country's new status, too, the DominionParliament has gained a new capacity in regard to succession tothe throne, extra-territorial jurisdiction, and repeal of Britishlegislation other than the British North America Acts. Theprovincial lëgislatures, on the other hand, have been less successfulin imposing their interpretations because there has been no per-manent suspension of Dominion veto and no acknowledgementthat their views are of any significance beyond the provinceconcerned.

Moreover, it must be recorded that the Dominion House ofCommons has won a distinctive role in the less formal procedures .By resolution the House has asserted its right to control expenditures,31 the unconstitutionality of amendments sought without itsapproval,37 special protection for the French language,11 objectionto the grant of titles," and disapproval of an "acting" ministry .4oThat provincial assemblies have aped this function is true, buttheir effect, _when not intended to be purely political, has been oflocal and not national constitutional importance .41 Nor must it

35 "The declarations of the Dominion Parliament are not, of course,conclusive upon the construction of the British, North America Act ; butwhen the proper construction of the language used in that Act to definethe distribution of legislative powers is -doubtful, the interpretation putupon it by the Dominion Parliament in its actual legislation may properlybe considered." (Citizens Insurance Company v. Parsons, 1881, 7 App .Cas . 96 at 115) .

33 E.g ., on the occasion of the reservation of the Governor-General'sSalary Bill . Canada, House of Commons Journal, II (1869), pp. 82-3.. Cf.,the Laurier resolution of 1909, Loc. cit ., XLIV (1909), p . 211 .

37 Loc. cit ., IV (1871), pp. 149-50 .33 Loc. cit ., XXIX (1890), _pp . 107-8 .3s Loc. cit., LIV (1918), p . 313 .40 Loc. 'cit., LXIII (1926), p . 508 .41 From the very first provincial resolutions on national constitutional

topics have been attempted. The Ontario legislature (led by Mr. Blake)took the opportunity provided by the first Nova Scotia subsidy discussionto assert both that all provinces must be consulted and that provincescould initiate amendments to the British North America Act . (Watson,op . cit ., pp . 91-3 ; Can. Sess . Pap . 1870 ; No . 25) . In 1940, an Ontario vote

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be forgotten that the Dominion Parliament also exercises its new"national" functions in this fashion, as the real constituent bodyin securing amendments, as the body approving declarations ofwar, etc.

It might perhaps be considered that the Dominion Parliamentis merely a formal recording agency for decisions already takenelsewhere, in the same way that the British Parliament is onCanadian affairs.

This is not the case .

There is a real elementof consideration of problems permitted to the Houses, and thoughthe Prime Minister may usually defeat any undesired interpret-ation (such as that requiring provincial consent to a change inprovincial subsidies) 12 and may appeal to the nation (as did Mr.Meighen after a vote of censure in 1926), there are cases where theparliamentary pace has been set by the Opposition--as whenBlake's sentiments respecting the Governor-General's positionwere accepted by the Government and his resolutions accordinglywithdrawn" or when his resolutions on the subject of advisoryopinions on Section 93 of the British North America Act werecarried after being approved by the Government . 44

The Canadian interpreter who most closely corresponds tothe Colonial Secretary is the Dominion Prime Minister, acting inhis various capacities as chief of His Majesty's Privy Council forCanada, as Minister for External Affairs, or as leader of the dom-inant group of politicians in the Dominion House of Commons.The Prime Minster is responsible for the Governor-General'sconduct. At first. sight it might be thought that the Governor-General is a constitutional interpreter by virtue of his discretionarypowers .

This was apparently the original view of the ColonialSecretary, for he repeatedly instructed the governor to exercisehis own judgment on matters for which concurrence of the"Council" was not specified by the British North America, Act."The Canadian ministers, on the other hand, insisted that anydiscretion the Governor-General possessed related solely to im-perial interests (knowing very well that he then acted underinstructions from Westminster) . The Dominion view prevailedin the end and seems to have been practiced from the start.There are few clear examples of the Governor-General actingindependently of British or Canadian ministerial advice .

In anyof censure on the Dominion ministry, although providing a political excusefor a parliamentary dissolution, was of no constitutional significance.

as Can. H. of C. Jo ., II (1869), p. 260.°' Loc. cit ., IX (1875), pp. 318-19 .as Loc. cit ., XXIV (1890), p. 388.4s The correspondence is summarized in R. M. Dawson, Principle of

Official Independence (1922), pp . 202-4.

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case, ministerial responsibility must prevail . Long before 1926there was little doubt-and certainly none since"-that the Gover-nor-General's capacity is comparable to the King's . He mustrely on the Prime Minister, and if the latter will not accept respon-sibility for the Governor-General's interpretations of constitutionalpractice, another minister must be secured who will do so-or elsethe Governor must back-down. The controversies of 1396 and1926 make this evident . In the first case, a defeated ministry ,resigned when some post-election appointments were rejected by'the Governor-General ;41 in the second case, a ministry resigned onbeing refused a dissolution,4 $ but as the new ministry had noparliamentary majority and failed to get one by a general election,the Governor-General had to accept the former Prime Minster,again .

It need hardly be said that the Prime Minister- controlsthe more formal advice of the Privy Council for Canada in itsorders, minutes and resolutions determining prerogative matters49relating to external affairs, internal organization, or special warand emergency powers . And, until defeated, the Prime Ministerexercises a predominant influence on the course of action takenby theDominion Parliament in most of the matters already referredto . Thus the constitutional principles that "Parliament mustdecide" on Canada's course in time of war or that a plebisciteis necessary to release a ministry from an election pledge werereally those of the Prime Minister . The prestige of the PrimeMinister as leader of the majority party has been increased alsoby his new capacity as spokesman for the nation . The PrimeMinister was ex officio member of the Colonial and ImperialConferences, invited to join the Imperial War Cabinet and evenif not attending it to communicate directly with the BritishPrime Minister."

Since 1926, it is he who has attained ' sole

46 In the Balfour Report it was declared that the Governor-Generalis the "representative of the Crown, holding in all essential respects thesame position in relation to the administration o£ public affairs in theDominion as is held by His Majesty the King in Great Britain, and thathe is not the representative or agent of His Majesty's Government in GreatBritain or of any Department of that Government."

47 Can. Sess. Pap ., 1896, No . 7 .4s Loc . cit., 1926-7, No. 91 .49 On December 5, 1940, the Prime Minister explained the new pro-

cedure in transmitting Canadian legislation to British authorities as requiredby Section 56 of the Act of 1867 . The essential point was the eliminationof use of the Governor-General although called for by the law.

(Can. H.C . Deb., 1941, Vol. 1, p . 671 .

ss In the course of commenting on the peerage bestowed on Mr. Bennett,the Prime Minister referred to (unpublished) correspondence between him-self and the British Prime Minister . (Loc . cit ., 1941, June 14, p . 4324(unrevised) .

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right to advise the Sovereign on Canadian affairs. No provincialpremier has any such influence or status .

Next must be mentioned the Minister of Justice, who isalso Attorney-General and chief legal adviser to the Canadiangovernment . 51 Within his purview have fallen the determinationof the principles governing the veto of provincial legislation . 5-The Minister has also played an important part in dealing withthe British ministers respecting the Governor-General . The inter-pretation placed on the latter's functions by Blake, when Ministerof Justice, resulted in the issuance of a new commission andinstructions in 1878. In this connection it may be remarkedthat in case of dispute between the opinions of the DominionMinister and a provincial attorney-general, the former is neces-sarily decisive unless appeal is taken to the courts in matterswhere this is possible19 Until 1920, if not later, the Ministerof Justice acted as intermediary for British protests againstcertain types of provincial legislation which affected imperial orinternational interests.5 4

Finally, there are the courts of law. The usual Englishconstitutional function of the courts in elaborating the commonlaw principles and procedures of justice needs no elaboration.In Canada, however, the courts have assumed a non-English,but typically colonial duty of reviewing legislation relating toissues under litigation and of declaring that some colonial

51 Reference is frequently made to this advice, e .g., by the CommonsCommittee on Banking and Money with respect to the Alberta Bank Billas beyond Parliament's power (Votes and Proceedings, 1941, May 23) .Sometimes the Minister's opinion is challenged in the courts, as when theopinion against women senators given in 1922 was carried as far as theJudicial Committee (Edwards v . Attorney-General of Canada, [19301 A.C . 174) .

52 Note Sir John Macdonald's historic rules of 1868 (Hodgins, op . cit .,pp . 61-2) . The Minister's annual reports are a running commentary ofinterpretation . Reservation of provincial legislation for consideration bythe Minister of Justice (for the Governor-General) had occurred in somefifty instances before 1920 . After 1882 reservation on the advice of pro-vincial ministers had been discouraged (Hodgins, op . cit ., pp. 77-8) . Allreservation tended to fall into disuse after 1920, until it was revi% ed in1937 in the case of Alberta legislation . Disallowance occurred in aboutone hundred cases before 1924, after which it lapsed until revived in 1937also for Alberta legislation. Vide, in addition to Hodgins, op . cit., andGisborne and Fraser, op . cit ., two Memoranda prepared by the DominionMinistry of Justice in 1939 on Dominion Power of Disallowance of ProvincialLegislation and Office of Lieutenant-Governor of a Province . At times theprovinces have attempted appeal to British authorities against disallow-ance, e .g . in 1888 Manitoba sought to be heard by the Queen in Council(not the Judicial Committee) (Hodgins, op . cit ., p . 882) .

11 E.g. , in 1917 the Minister of Justice refused to recommend passageof British legislation to validate a British Columbia statute extending thelegislative term during the war . (Gisborne and Fraser, op . cit ., pp . 699-703) .

11 Numerous examples are to be found in Gisborne and Fraser, op . cit.,pp . 99, 243, 602-3, 809, etc.

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statutes are invalid as ultra vires of the enacting body .55 Canadianlegislatures, after 1867 as before, have been regarded as'limitedin scope because they exercise a jurisdiction specified in a Britishstatute," _ The ancient legal principle of colonial legislativesubordination has been clarified in 1865 by the Colonial LawsValidity Act, which had laid down the "repugnancy" rule(that is ) no colonial legislation was valid if conflicting with aBritish statute extending to the colony by express words ornecessary intendment) . As a result, the courts could apparentlyinvalidate Canadian legislation on two grounds-conflict with ageneral British statute -or passage by the wrong legislature_ under .the federal division of powers effected by the British NorthAmerica Act of 1867 . Generally speaking, repugnancy to Britishlegislation was guarded against by British veto or threat of aveto of Dominion legislation and Dominion veto of provinciallegislation .

There are apparently but three cases of Dominionstatutes being declared invalid as in conflict with British laws,two of them relating to curtailment of the Privy Council appealsand one relating to merchant shipping." This typically colonialaspect of judicial review was extinguished by the Statute ofWestminster, Section 7 (2) .

The chief ground for the declaration of invalidity of Cana-dian legislation has been incompatibility with the express .words-of the British North America Act of 1867.

So far as Dominionlegislation is concerned, this judicial veto has been used mostsparingly." The first invalidation did not occur until 1912,59and the only other example is apparently one of 1925 . 6° ®n theother hand, provincial legislation has been regularly and fre-quently vetoed by the courts. In the first ten years after

15"A, statute emanating from a legislature not having power to pass itis not law."

Theberge v. Landry, (1875), 2 App . Cas., 102, at p . 109 .es "In these cases it is the duty of the Courts, however difficult it may

be, to ascertain in what degree and to what extent authority-,to deal withmatters falling within these classes of subjects-exists in- each legislature,tand to define in the particular case before them the limits of their respec-ive Rowers."

Citizens Insurance v . Parsons (1881), 7 App, Cas . 96 at 108 .There were some early doubts about the applicability of the repug-

nàncy doctrine to Canada (e .g., Smiles v . Belford (1877), 1 O.A.R . 436) .Tlié-three cases referred to above are : Richelieu and Ontario Navigation Co .v._ S.S . Cape Breton, [19071 A.C . 112, holding that the appeals under theColonial Courts of Admiralty Act, 1890, were not hampered by the Supreme .Court Act ; Nadan v. The King, previously noted (n . 27) ; CanadianS:S . Lines Ltd. v. Emile Charland Ltd ., [19331 Ex . C.R . 49, to the effectthat the Merchant Shipping,.Act of 1894 overrode the Canadian ShippingAct . ea It was early declared that "it is not to be presumed that the legis-lature of the Dominion has . exceeded its powers, unless upon grounds reallyof a serious character."

Valin v. Langlois (1879),_ 5 App. Cas . 115 at p . 118) .s City of Montreal v. Montreal Street Railway, [1912] A.C . 333 .60 Toronto,Electric Commissioners v. Snider, [1925] A.C . 396 .

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Confederation, three cases were regarded as sufficiently importantto be carried to the Judicial Committee from provincial courts(there being no Dominion Supreme Court at the time), and onthe third occasion a disputed Quebec Act was held ultra vires .s lSince then numerous provincial statutes have been declaredinoperative in part or whole by provincial and Dominion courtsor by the Judicial Committee. This function of the courts isapparently intended to be preserved by the Statute of West-minster, Section 7 (3) . It must not be imagined that the roleof the courts as constitution-interpreters has been confined tothe construction of the terms of the legislative division of powers ;it has also been exercised in numerous questions relating toexecutive rights and duties with respect to Crown lands, excheats,royalties, appointments, etc. The continuance of this "executive"aspect of judicial interpretation, it would seem, is not protectedby the Statute of Westminster, Section 7 (3), which refers onlyto legislation. It is, however, fully in the common law traditionfor the courts to review executive conduct in the process ofdetermining private rights .

Since there is a current tendency to over-emphasize theimportance of judicial review, it is desirable to note its founda-tions somewhat carefully . This is especially appropriate whenthe repeal of the "repugnancy" rules and the prospective aboli-tion of Privy Council appeals has removed or threatens toremove its ancient basis. When the British North America, Actof 1867 was passed, the former colonial (thereinafter provincial)courts were continued as a single unitary judicial system for alllitigation under Dominion and provincial laws . The Act con-tained no declaration of the extent of the judicial function,which it was apparently assumed would remain as before."So far as the Dominion courts are concerned, the Act is purelypermissive, authorizing the establishment of a "General Court

si Quebec v. Queen Insurance Co . (1878), 3 App. Cas. 1090 .s2 The incomplete and incoherent records of the Quebec Conference

show the topic was discussed apparently as a choice between Dominionveto and judicial veto . (Pope's Confederation Documents (1895), pp . 85-88) .In the Canadian debates on the Resolutions, the same-and possibly inten-tional-confusion was displayed. A misuse is often made of the Dorion-Cartier colloquy (Confederation Debates, 1865, p. 690) . Dorion asked whois to hold the balance between provinces and centre ; Cartier answers, theImperial Government . This does not satisfy Dorion who refers to Britishneglect of Lower Canada interests. Cartier then takes another tack-theCourts . This, too, did not satisfy Dorion, for even after the AppellateCourt is established "we shall be represented by one judge against 6 or 7other origins." The most candid and knowing statement is made byCauchon (Ibid., pp. 697-8) . The most characteristic feature of all refer-ences to court action is the "colonial" expectation that inferior legislatureswill be held in check by the Judicial Committee of the Privy Council.

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of Appeal for Canada, and . . . . . of any additional Courts forthe better Administration of the laws of Canada."" The solerestrictions relate -to appointment and tenure of judges. To theextent that the courts are provincial, their jurisdictions may be.set by the respective provincial legislatures, but not in suchfashion as to restrict the appellate jurisdiction of the DominionSupreme Court when fixed by Parliament." The position of theCanadian courts is thus entirely dependent on legislative willand bears no resemblance to the American situation. TheSupreme Court of the latter country, it has been authoritativelyexplained, derives its significance from the definition of its juris-diction in "the Constitution of the United States, a positionwhich is different from that of any Canadian court, or of theJudicial Committee under the statute of William IV. The busi-ness of the Supreme Court of Canada. is to do what is laid downby the Dominion Parliament.""

Ordinarily,. in view of the prestige of the courts in theEnglish common law system, this would not be worthy of notice .Put, since the courts have claimed in Canada an exceptionaldegree of "judicial supremacy" (to use a term from the UnitedStates, where it applies), this is worthy of some consideration .If no direct legislative attack on the courts has as yet occurred,their -jurisdiction has been undermined by the extension ofministerial discretion and the creation of administrative boardsand commissions from whose decisions appeal to the courtsis either not permitted or made dependent on executive will.66The general effect of this was well-stated a few years ago asfollows : "If a legislature and executive, both with limitedpower, are permitted to prevent litigants, by the refusal of afiat or otherwise, from disputing in the court that the legislatureand executive have exceeded the limits of their constitutionalpowers, pro Canto, the rigid and written constitution is a deadletter."" This aspect of the matter has not yet come to defi-nitive judicial notice in the higher courts."

63 Section 101 ; Sections 97-99 .61 Crown Grain Co . v. Day, [19081 A.C . 502 .66 Attorney-General for British Columbia v. Attorney-General for Canada,

[19141 A.C . 153, at 162 .66 Cf. J. Willis (ed.), Canadian Boards at Work (1941), pp. 65-72, 115 $.67 F. A. Brewin, in a most informative little note, 14 Can. Bar Rev.,

pp . 621-7 .66 There are a number of provincial decisions admitting the restraint on

recourse to the courts. It may be noted that so far judicial views on theconstitutional validity of this kind of legislation has been sought voluntarily by the government by "references" . It is curious that in a notedcase of this type (respecting the Farmers' Creditors Arrangement Act,[19371 A.C . 391), the point of the finality of decisions by the administrative

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The Dominion courts may exercise an arbitral functionin disputes between governments, if authorized by provinciallegislation. It has rarely been employed by the Dominion insuits against a province or by province against province,s 9 asanother procedure is used and must now be examined .

In addition to the long-established "colonial" and "Ameri-can" procedures of judicial review which have been described,Canadian courts have participated in constitutional interpretation through "advisory opinions" on questions submitted by theseveral governments to the respective courts . This procedurewas first authorized by the Dominion Supreme Court Act of1875 and was followed by similar provincial legislation. It mustbe noted that the practice of rendering advisory opinions onstated questions outside the course of ordinary legislation hadbeen definitely repudiated by the United States Supreme Courtand runs counter to English common law tradition . However,legislative control of the judicial jurisdiction has made it pos-sible to impose this obligation on the Canadian courts despitetheir resistance." The position was thoroughly reviewed in oneof the "references" carried on appeal to the Judicial Committeein 1912, when it was authoritatively affirmed that "if, notwith-standing the liability to answer questions, the Supreme Courtis still a judiciary within the meaning of the British NorthAmerica Act, there is no ground for saying that the impugnedAct is ultra vires. 71

Curiously enough, this unwelcome obligation has providedthe most extensive field for judicial construction of the consti-tution . Indeed, it was in a special reference of 1885 that aDominion statute was first declared invalid.'- Since that timeBoard of Review was not touched on by the Judicial Committee . So far,some guarantee of judicial proceedings has been maintained by the appoint-ment of regular judges to these administrative courts .

69 E.g ., Canada v . Ontario, 42 S.C.R . 1 and [1910] A.C . 637 ; Ontario v.Quebec, 31 S.C.R . 516 .

70 In 1905, when the Dominion Supreme Court refused to answer whatit considered a hypothetical question (In re Sunday Labour Legislation,35 S.C .R . 581), this was specifically required by new legislation (6 EdwardVII, c . 50 (Can .) ) ; so, also, although the court had refused to hear appealsfrom provincial references (Union Colliery v. Attorney-General for BritishColumbia, 27 S.C.R . 637), this has likewise been required (12 George V,c . 78 (Can .) ) .

71 Attorney-General for Ontario v . Attorney-General for Canada, 11912]A.C . 571 at 585 . It was in the course of another reference case that theJudicial Committee expressed the opinion already cited as to the differencebetween Canadian and American judicial foundations (supra, note 65) .

78 The Dominion Liquor License Act of 1883 was referred to the courtsby a special statute, 47 Victoria, c . 32, s . 26, and upon the adverse opinionof the Supreme Court, a further act, 48-9 Victoria, c . 74, reciting thatopinion in a schedule, suspended the operation of the offending liquorlegislation . Subsequently the issue was taken to the Judicial Committee

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scores of references have been argued by the Attorneys-General-for the Dominion and provinces and this type of legal aid,is -now almost always employed in the major constitutionaldisputes." So accustomed is the legal profession to these opinionsthat they are regularly treated as ordinary decisions and appearin the case-books and digests as equally authoritative with usual-judgments. Not all of the "references" have been appealed tothe Jadicial Committee, though the most important ones havebeen . The value of this procedure for securing high legal advicebefore governmental authority is contested by private litigantsneeds no comment; but it must be noted that it has not alwaysprevented questionable statutes being invalidated many yearsafter passage- as in the case of the criminal appeals, shippingact, etc .

The use of references has not been confined to testinglegislative powers, but has occasionally been employed for deter-mination of executive powers as well .

One may well speculate today on the position of theseadvisory opinions once Privy Council appeals are abolished . Atpresent the opinions, "although advisory -only", are declared tobe "judgments" for appeal purposes'4- as also are provincialadvisory opinions under provincial legislation . But after elimi-nation of the Privy Council appeals, Dominion (but not pro-vincial) advisory opinions will necessarily lose this status andwill fall -back into the position of judicial dicta-unless someother provision can be made. This result seems to coincide withSir John Macdonald's original view of their place, for he neverdid anything to encourage judicial pretensions . When Blake,,who had been responsible for the first introduction of advisoryopinions, later proposed a resolution to extend their applicationto Section 93 of the British North America Act, Macdonald metthe suggestion with these words:"When I first read the hon.gentleman's resolution hastily, it occurred to me . . . . that itwas an advance towards the American system, and proposed totransfer the responsibility of the Minister of the day to ajudicial tribunal," but he found on closer inspection that Mr.Blake "has guarded against the supposition that such a decisionis binding on the Executive.

Ii is expressly stated-and that isone of the instances which shows that this resolution has beenmost carefully prepared - that such a decision is only for theinformation of the Government. The Executive is not relieved(Liquor License Reference, [18961 A.C . 348) . It cannot be said that thesubject had been clarified in this instance .

73In a ten year period (1930-39), of thirty-nine cases with a constitu-tional aspect heard before the Supreme Court nineteen were of this type .

74 R.S.C ., 1927, c . 35, see . 55-(6) .

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from any responsibility because of any answer being given bythe tribunal . If the Executive were to be relieved of any suchresponsibility, I should consider that a fatal blot in the propo-sition of my hon. friend . I believe in responsible government,I believe in the responsibility of the Executive . But the answerof the tribunal will be simply for the information of theGovernment . The Government may dissent from that decision,and it may be their duty to do so if they differ from the con-clusion to which the court has come." 75

If this should prove the line of development, constitutionalinterpretation by reference to the courts would be relegated to arole comparable to that of the Minister of Justice or of commissions of inquiry . When convention is at odds with law, orwhere policy dictates, these opinions may be disregarded ; if thelegal obstacles seem too great, they may precipitate a constitu-tional amendment.76

As one looks over the array of organs which have had andstill claim to have a voice in interpreting the constitution, itbecomes apparent that no certainty exists as to which Canadianbody is to exercise the decisive power of autonomous constitu-tional interpretation for which such a long struggle has beenwaged. Certainly, at first sight, it cannot be said that Dominionparliamentarians have been regarded as entitled to assume themantle cast off by British parliamentarians .

It is, -of course,impossible to have ten sets of politicians (in the several legis-latures) asserting their political supremacy, and it was to preventone of these (the Dominion politicians) usurping this power thatthe Canadian section was inserted in the Statute of Westminster.From a national standpoint this has meant that the legalrestraints on the Dominion Parliament, which have proved soembarrassing in the past when they sprang from colonial status,have been perpetuated under Dominion Status in the name offederalism . Yet it must not be inferred that the judges (andmore particularly judges of the Dominion Supreme Court) willprofit by British withdrawal from constitutional interpretation .The limitations of the Statute of Westminster have already beengiven a conventional gloss or modification in one aspect. TheDominion Parliament may make much wider use of its con-

75 Canada, House of Commons Debates, 1890, 11, pp . 4093-4 .76 The statutory reversal of law as expounded by Law Officers has

often occurred, as in the matter of the north-west territories, committeeoaths, copyright, deputy-speaker of the senate, etc.

Reversal of law declaredby judicial advisory opinion is not unknown, as in the amendments ensur-ing a minimum representation of the provinces, abolition of Privy Councilappeals in criminal matters, Dominion jurisdiction in unemploymentinsurance, etc.

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stituent powers . And the scope of judicial authority maypossibly be greatly curtailed .

That this doubt as to the ultimate capacity in constitutionalinterpretation has not been resolved is even more deplorablethan the failure to agree on an adequate amending procedure.Indeed, it may be considered a more pressing problem, for,while there is in practice a mode of securing amendments, thereis no device for reconciling the conflicting interpretations, ofparliamentarians and judges. At the moment, then, Canada isin the paradoxical position of having both parliamentary govern-ment without complete political responsibility and constitutionallimitations without adequate legal guarantees.

The problem in the Canadian constitution, it must beremarked, does not lie iii the existence of the two aspects, lawand convention, for this is found in nearly every country. TheCanadian difficulty lies in the confusion respecting the ultimateauthority as between them. In Britain, for instance, it isthoroughly understood that the will of the politicians will prevail,for the judges recognize parliamentary supremacy. In the UnitedStates, on the other hand, it is agreed. that the law dominates,for the politicians recognize judicial supremacy. The Canadianposition, however, presents a dilemma. There is no agreementas to whether law or convention, or the interpretation of judgesor parliamentarians, is to prevail. The two aspects of the con-stitution are so inextricably interwoven and mingled in thetangled web of constitutionalism that they cannot be dividedneatly for separate decision by the two sets of authorities . Therival interpreters are so frequently in conflict as to the purposes,methods, and scope of government in the country that a generalsense of confusion and frustration is created . No one can tellin advance which type of interpretation will be 'resorted to orwith what effect. The result is the perpetuation of numerouslegal absurdities and political inconsistencies, the nullification ofmuch national development, and the imposition of some rigidrestraints .on social and economic reform."

The fact is that, under present circumstances, reliance upon .legal construction of the constitution by judges imposes on thelatter an almost impossible task.

When the Act of 1367 is examined its deficiefices as a fundamental law for a modern country areglaringly apparent.

It contains too little of the basic law and too77 For some exposition of these difficulties, together with the argument

for political instead of legal construction, see the present writer's "JudicialReview, Federalism, and the Canadian Constitution", Canadian Journal ofEconomics and Political Science, VIII (1942), p. 537.

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much fiction. Its archaic terminology is too colonial, non-parliamentary, and anti-democratic to serve as the foundation ofdefinitive construction . Moreover, by this time, its federal pro-visions have become so encrusted with nineteenth-century inter-pretation as to be highly unworkable . Government functionsunder the Act today only because it has been transformed by anumber of conventional usages and principles which have littleor no standing in a court of law.

If the object really be to establish in Canada a fundamentallaw capable of protection and preservation by the courts, it will benecessary to revise the constitutional documents and redraft thefoundations in a more modern, coherent and comprehensive form .To accomplish this, the most satisfactory procedure would be theassembling of a constitutional conference . This would provideopportunity for settling the amending process, reconsideringDominion-provincial relations, defining private rights, and re-cording in reasonably modern language the principles underlyingparliamentary government . The difficulties, it is needless tosay, of bringing this endeavour to a successful conclusion arealmost insuperable. Any attempt to reformulate constitutionalprinciples would bring to the surface all the conflicts and antagon-isms latent in the country. The dangers of misstating the parlia-mentary principles would have to be faced-as they were inIreland-and the possibility of mistaken rigidity would be en-countered.

Indeed, although many influential voices have beenraised in support of holding such a constituent conference, it maybe suggested that, as previous Dominion-provincial meetings havebeen fairly fruitless on constitutional topics, so a more compre-hensive assemblage would fail for the same reasons.

If past performance is any guide to the future, a new con-stitution, though not entirely out of the question, may perhapsbe put aside as unlikely .

The existing foundations are more likelyto continue with some tampering here, modification there, andgenerous doses of "re-interpretation ." If this is the course follow-ed, the present dilemma is likely to be resolved by an increasingassertion of parliamentary supremacy and by a diminution of thejudicial control of interpretation . Such a development, whileundoubtedly removing many of the present difficulties in con-stitutional interpretation, inevitably forces a reconsideration ofits consequences for the federal system .

The University of Manitoba.

H. McD. CLOKIE