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The Interpretation of the British North America Act

  • W. P. M. Kennedy


In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.



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1 30 & 31 Vict. c. 3. This Act and its amendments can be conveniently consulted in Kennedy, , Statutes, Treaties and Documents of the Canadian Constitution (Oxford, 1930), at pp. 611 ff.

2 This doctrine is adequately illustrated by the words of Riddell, J. in Florence Mining Co. v. Cobalt Lake Mining Co. (1908) 18 C. L. R. 275, at p. 279: ‘In short the legislature within its jurisdiction can do everything that is not naturally impossible and is restrained by no rule human or divine… The prohibition “Thou shalt not steal,” has no legal force upon the sovereign body.’

3 Mr. Raphael Tuck, of Trinity Hall, Cambridge, and the Law School of Harvard University, provides a learned study of these minutiœ in ‘Canada and the Judicial Committee of the Privy Council’ in 4 Toronto Law Journal (1941), at pp. 33 ff.

4 The Resolutions of both these Conferences can be found in Kennedy, , op. cit., at pp. 541ff., 611ff.

5 ‘[Their Lordships]… adhere to the view which has always been taken by this Committee that the Federation Act exhausts the whole range of legislative power, and that whatever is not thereby given to the provincial legislatures rests with the [Canadian] parliament’: Hobhouse, Lord in Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, at p. 588. ‘Now, there can be no doubt that under this organic instrument [B. N. A. Act, 1867] the powers distributed between the Dominion on the one hand and the provinces on the other hand cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-government was withheld from Canada’: Lord Loreburn, L. C. in A.-G. for Ontario v. A.-G.for Canada [1912] A. C. 571, at p. 581.

6 This speech in extenso can be conveniently consulted in Hardinge, , The Fourth Earl of Carnarvon (Oxford, 1925), vol. III, p. 305.

7 Graves v. New York ex rel. O'Keefe (1939) 306 U. S. 466, at p, 491.

8 Kennedy, , op cit., at p. 559.

9 Reference as to the legislative competence of the Parliament of Canada to enact Bill No. 9 entitled ‘An Act to amend the. Supreme Court Act,’ [1940] S. C. R. 49.

10 Montreal Trust Co. v. Abitibi Power Co. (1942) O. R. 321, at pp. 340–41 (per Masten J.A.).

11 The principle is as old as 1887. See Bank of Toronto v. Lambe (1887) 12 App. Cas, 575, at pp. 579, 587.

12 During the argument in Toronto Electric Commissioners v. Snider [1925] A. C. 396, Lord Haldane agreed that there was no Conference after that at Quebec in 1864. His agreement was evidently based on what he said in Great West Saddlery Co. v. The King [1921] 2 A. C. 91, at p. 116; ‘as matter of historical curiosity… the resolutions on which the British North America Act was founded… were passed at Quebec on October 10, 1864…’ As a matter of historical curiosity, the British North America Act was not based on these Resolutions, but, as we have seen, expressly and explicitly on those of the London Conference of 1866. See Lord Sankey L.C. in Edwards v. A.-G. for Canada [1930] A. C. 124, at p. 136.

13 See Eastman Photographic Company v. Comptroller-General of Patents [1898] A. C. 571, at p. 575 (per Lord Halsbury L.C.). Cf, Macmillan v. Dent [1907] 1 Ch. 107, at p. 122 (per Fletcher Moulton L.J.); Assam Railways and Trading Co. v. C. I. R. [1935] A. C. 445, at p. 458 (per Lord Wright); Home Oil Distributors v. A.-G. for British Columbia [1940] S. C. R. 444. Cf. the use of Reports of the Imperial Conferences in British Coal Corporation v. The King [1935] A. C. 500.

14 [1930] A. C. 124, especially at pp. 136–137.

15 At p. 137.

16 [1935] A. C. 500, at pp. 518–519.

17 In re the Regulation and Control of Aeronautics in Canada [1932] A. C. 54. The passage beginning ‘It must no less’ (at pp. 7071) is practically word for word from Jyord Carnarvon's speech.

18 Ambard v. A.-G. for Trinidad and Tobago [1936] A. C. 322.

19 (1874) L. R. 6 P. C. 31.

20 (1875) L. R. 6 P. C. 272.

21 (1879) 5 App. Cas. 115.

22 (1880) 5 App. Cas. 409.

23 (1881) 7 App. Cas. 96.

24 At p. 108.

25 (1882) 7 App. Cas. 829.

26 (1883) 9 App. Cas. 117.

27 At p. 130 (per Lord FitzGerald).

28 [1894] A. C. 31, at pp. 45, 46, 47 (per Lord Watson).

29 Amalgamated Society of Engineers v. Adelaide Steamship Co. (1920) 28 C. L. B. 129. ‘It is beyond any doubt that the doctrine of implied prohibitions can no longer be permitted to sustain a contention’ (at p. 160). The Commonwealth of Australia Constitution Act must speak ‘clear of any qualifications which the people of the Commonwealth, or, at their request, the Imperial Parliament have not thought fit to express’ (at p. 142).

30 [1894] A. C. 31, at p. 45.

31 [1896] A. C. 348.

32 At p. 361.

33 At p. 360.

34 A.-G. for Canada v. A.-G. for British Columbia [1930] A. C. III, at p. 118 (per Lord Tomlin).

34 See previous page.

35 In re Regulation and Control of Aeronautics in Canada [1932] A. C. 54, at pp. 7172 (per Lord Sankey L.C.); In re Silver Brothers [1932] A. C. 514, at p. 521 (per Lord Dunedin).

36 Canadian Pacific Wine Co. v. Tuley [1921] 2 A. C. 417, at pp. 422423 (per Lord Birkenhead: ‘It was contended… description’).

37 [1931] A. C. 310, at p. 326 (per Lord Atkin: ‘The view that… that ground’).

38 In re the Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 [1922] 1 A. C. 191.

39 Fort Francis Pulp and Power Company v. Manitoba Free Press Company [1923] A. C. 695.

40 Toronto Electric Commissioners v. Snider [1925] A. C. 396.

41 A.-G. for Canada v. A.-G. for Ontario [1937] A. C. 326.

42 This power over ‘the regulation of trade and commerce’ is the one which Lord Atkin, obiter, would have rescued from the remarkable position assigned to it by inter pretation. (See note37, supra.) This effort has not been successful in that it has never been implemented by substantive judicial decisions; and so the power is relegated to a position utterly impossible to defend on the clearest terms of the Act, and one which makes any reliance on it barren and useless.

43 On this point, see House of Commons Debates, Ottawa (04 5, 1937), 2773ff., and for a survey of these judgments, see 5 Canadian Bar Review (1937), at pp. 393507.

44 A.-G. for Canada v. A.-G. for Ontario (the Employment and Social Insurance Act Case) [1937] A. C. 355, at p. 367 (per Lord Atkin). For the taxing-power, see A.-G. for Alberta v. A.-G. for Canada [1939] A. C. 117; where Lord Maugham L.C. appears to modify somewhat the primâ facie reasoning of Lord Atkin. (See C. P. Plaxton (now Plaxton, J.Canadian Constitutional Decisions (Ottawa, 1939), at pp. lvilvii, lxxi.

45 In re the Regulation and Control of Aeronautics in Canada [1932] A. C. 54.

46 In re Regulation and Control of Radio Communication in Canada [1932] A. C. 304.

47 A.-G. for Canada v. A.-G. for Ontario [1937] A. C. 326.

48 Cf. the well-known rule in The Parlement Beige (1879) 4 P. D. 129, which was not reversed on this point.

49 The King v. Burgess, Ex parte Henry (1936) C. L. R. 608.

50 Report of the Imperial Conference, of 1926, Part II.

51 After years of toil and trouble, in the midst of wide unemployment, the provinces at length in 1940 agreed to an amendment to the B. N. A. Act, 1867, which transferred ‘unemployment insurance’ to the Canadian Parliament (3 & 4 Geo. 6, c. 36 (U. K.)). The amendment came twenty years too late.

The Interpretation of the British North America Act

  • W. P. M. Kennedy


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