¹ 12, 13 & 14 Geo. VI, Ch. 81.

² 30 & 31 Vict., Ch. 3.

³ There has been much discussion over the reason for this omission, ostly fruitless. The best explanation seems to be that the Act of 1867 was a British statute and, like any other British statute, would be amended by the British Parliament if the need for change became apparent. See the discussion in Rogers, N. McL., “The Constitutional Impasse”, Queen's Quarterly, Vol. 41, pp. 482–3 (1934)Google Scholar.

⁴ The disabilities that derive from the absence of an amending clause do not touch the provinces, which are authorized by Section 92 (1) of the Act of 1867 to amend their constitutions, except with regard to the office of Lieutenant-Governor.

It was also anticipated that some specific provisions of the Act of 1867 respecting the national government might be changed without recourse to another act of Parliament. Many sections (e.g., 40) contain the clause “until the Parliament of Canada otherwise provides,” and several more the clause “until the Queen otherwise directs.” About twenty sections anticipate their own modification by these means and several have been changed in accordance with them.

⁵ Tarring, C. J., Chapters on the Law Relating to the Colonies (4th ed.; London, 1913), pp. 168 ffGoogle Scholar. Chief among these were the Renunciation Act, 1778, the Judicial Committee Acts, 1833 and 1844, and the Colonial Laws Validity Act, 1865.

⁶ Idem. Included here are the Colonial Courts of Admiralty Act, 1890, the Merchant Shipping Act, 1894, and the Geneva Convention Act, 1911.

⁷ Clokie, H. McD., “Basic Problems of the Canadian Constitution”, Canadian Journal of Economics and Political Science, Vol. 8, p. 4 (1942)CrossRefGoogle Scholar. I have drawn heavily on Professor Clokie's excellent article in this and the following paragraphs.

⁸ 22 Geo. V, Ch. 4, Sec. 4.

⁹ Sec. 2. See below, n. 16.

¹⁰ J. E. Read (now a judge of the International Court of Justice) prepared a list of “enactments of the Parliament of Great Britain which by their express terms or by necessary implication apply to the Dominion of Canada.” In this list are found fifty-three such enactments before 1867 and seventy-six after that date down to 1943, including both general and specific acts. It is reproduced in Ollivier, Maurice, Problems of Canadian Sovereignty (Toronto, 1945), Appendix III, pp. 465–469Google Scholar.

¹¹ Tarring, op. cit., pp. 183–184.

¹² Clokie, loc. cit., p. 5. It should be noted that these acts also authorize orders-in-council and that several such orders have been issued by the British government. R. MacG. Dawson states that “the acts and orders-in-council of the British Parliament, which have been passed since 1867 and which apply specifically to Canada, number thirty-two” (The Government of Canada [Toronto, 1947], p. 139)Google Scholar.

¹³ Clokie, loc. cit., pp. 7 ff., cites the same acts to the date of his writing. See also Dawson, op. cit., pp. 139 ff.

¹⁴ Canada Copyright Act, 1875, Canadian Speaker (Appointment of Deputy) Act, 1895, and the British North America Acts of 1916 and 1943.

¹⁵ In his Constitutional Issues in Canada (London, 1933)Google Scholar, R. MacG. Dawson held that the Act of 1867 had been amended eleven times and that “Four of these were temporary … three were largely declaratory and were passed ‘to remove doubts’ in the Act; and only four were genuine amendments, viz., those of 1886, 1907, 1915, and 1930” (pp. 3–4). On the other hand, an official government list of the amendments which was published in 1928 included the Rupert's Land Act, 1868, the Alberta Act, 1905, and the Saskatchewan Act, 1905 (British North America Act and Amendments, 1867–1927 [Ottawa], 1928)Google Scholar. Two witnesses before the Special Committee of the House of Commons in 1935 gave different opinions as to what constituted the amendments to the Act. Mr. O. D. Skelton, Undersecretary of State for External Affairs, listed seven amendments, while Dr. Maurice Ollivier, Law Clerk of the House of Commons, listed only six, omitting even the British North America Act of 1930 (Canada, Parliament, House of Commons, Special Committee on the British North America Act, Proceedings and Evidence and Report [Ottawa, 1935], pp. 31–35, 56–57Google Scholar). Indeed, Dawson himself, as we have seen, gives a different list in his Government of Canada. Constitutions of All Countries, Vol. I, published by the British Foreign Office in 1938Google Scholar, lists as amendments only the acts of 1875, 1907, 1915 and 1930.

¹⁶ Before 1865 any colonial act in conflict with British law applying to the colonies, whether statute or common, was invalid. The Colonial Laws Validity Act removed this restriction so far as common law was concerned; but colonial laws in conflict with British statutes applying to the colonies continued to be invalid.

¹⁷ Sec. 2.

¹⁸ Sec. 3.

¹⁹ Sec. 4.

²⁰ A similar provision (Sec. 8) protected the constitutions of Australia and New Zealand.

²¹ 59 & 60 Vict., Ch. 14.

²² These dealt with Quebec, 1774, 14 Geo. III, Ch. 83; fur trade and courts, 1821, 1 & 2 Geo. IV, Ch. 66; trade and lands, 1822, 3 & 4 Geo. IV, Ch. 119; seignorial rights, 1825, 6 Geo. IV, Ch. 59; and the union of the Canadas, 1840, 3 & 4 Vict., Ch. 35.

²³ 17 & 18 Geo. V, Ch. 42.

²⁴ Professor Clokie excludes 1916, but for other reasons, which do not appear to be borne out by the statutes. He says “A third definition was unhappily made in the temporary Act of 1916, but this was subsequently dropped from the fourth definition made in the Act of 1930, which added itself to the 1885 (sic) and 1915 lists. The result is that the British North America Acts, 1867 to 1930, aa protected by the Statute of Westminster, are the five following: those of 1867, 1871, 1886, 1915 and 1930” (loc. cit., pp. 10–11). I think this a valid conclusion, but not for the reasons stated. There seems to be no difference between the definition of 1916 and those of other years; it adds itself to that of 1915 and produces a new entity, the “British North America Acts, 1867 to 1916.” The Act of 1930 does not add itself to the definitions of 1886 and 1915, as Mr. Clokie suggests, but to that of 1916. The Act of 1916 was merely a temporary provision, and the question of its inclusion or exclusion is unimportant except for the principle involved. But it cannot have been included because it had been repealed in 1927.

K. C. Wheare lists 1916 as one of the protected statutes; he makes no mention of the difference to which Clokie refers, but at the same time does not allude to the fact of its repeal. The Statute of Westminster and Dominion Status (4th ed.; New York, 1949), p. 188Google Scholar.

²⁵ Wheare reached this conclusion, ibid., p. 187.

²⁶ The omission had gone unnoticed throughout the discussions at the time of the passage of the Statute of Westminster and was not mentioned before the 1935 Special Committee on the British North America Act. It was apparently recognized first by Wheare, ibid. (1st ed.; 1938), p. 188.

²⁷ It is not quite clear whether Professor Clokie thinks the Act of 1907 should be included or not. At one point on page 11 he says so, but in his final list on that page he does not include it. On page 12 he says that its inclusion is doubtful. In his argument, however, it is clear that he thinks that the Act of 1940 accomplished its own inclusion; and if the relevant phrase includes 1940, then it must include 1907 for the same reasons. Clokie is of the strong opinion that such extension of the definition was not right: “The procedure of tacking an earlier Act to the short title section of a post-Statute amendment is undoubtedly a reprehensible method of producing a retrospective change in the provisions of the Statute of Westminster … it involves the propriety of withdrawing surreptitiously from the Canadian Parliament part of the freedom to repeal British statutes when this freedom had been secured by a solemn public agreement embodied in the Statute of Westminster” (p. 11). It is not quite fair thus to accuse the British Parliament of with drawing this Act from the competence of the Dominion Parliament, for the deed was done at the latter's request. Like all such statutes, it was enacted at the request, and with the consent, of the Dominion Parliament; and the address of the latter body is identical with the statute as enacted. See Canada, House of Commons Journals, Vol. 80, pp. 149–150 (1940)Google Scholar.

²⁸ For good accounts of these efforts see Maurice Ollivier, op. cit., and the Proceedings and Evidence and Report of the Special Committee of 1935 on the British North America Act.

²⁹ Proceedings of the Constitutional Conference of Federal and Provincial Governments, January, 1950 (Ottawa, 1950), p. 7Google Scholar.

³⁰ Ibid., pp. 23 ff.

³¹ Ibid., pp. 23, 35, 42. The Premier of Quebec referred to the act as “most inappropriate and certainly a definite encroachment on provincial rights” (p. 68).

³² The use of the term “constitutional act” raises the interesting question whether some (i.e., non-constitutional) acts were meant to be excluded here. This is doubtful, however, since no such distinction exists in British law.

³³ See the Proceedings of the 1950 Conference where several attempts were made to formulate tentatively a list of these sections.

³⁴ See, for example, the remarks of the Premier of Nova Scotia who argued that such privileges are protected (ibid., p. 73). Prime Minister St. Laurent denied this contention (p. 70).

³⁵ There have been many of these, but the greatest effort, and the one upon which the most attention was centered, was that in connection with the investigations of the 1935 special committee whose report is cited above, n. 15.

³⁶ Proceedings of the Constitutional Conference of Federal and Provincial Governments, p. 117.

³⁷ The premier of Quebec, M. Duplessis, has already indicated that he considers the provisions regarding property and civil rights among the fundamental rights that should be thus protected (ibid., p. 9).