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Disallowance of Provincial Acts, Reservation of Provincial Bills, and Refusal of Assent by Lieutenant-Governors Since 1867

Published online by Cambridge University Press:  07 November 2014

Eugene Forsey
Eugene Forsey*
Affiliation:
McGill University
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Extract

Until last August, it was widely assumed that the Dominion's power to disallow provincial Acts was fast becoming obsolete. No disallowance had taken place since 1924; and the minister of justice, the Right Honourable Ernest Lapointe, speaking in the House of Commons on March 30, 1937, had said : “For many years the power of disallowance has not been resorted to by the government of Canada…. I do not think that in a federation such as this the power of disallowance could be exercised by the central government.” On the question of reservation of provincial bills, there was no official pronouncement; but as there had been no case of reservation since 1920, the same dictum would doubtless have been considered to apply to that power also. On August 17, 1937, the Dominion government disallowed three Alberta Acts, and two months later the lieutenant-governor of Alberta reserved three bills for the signification of the governor-general's pleasure. The discussion which arose out of these events has been more remarkable for heat than light. It seems pertinent, therefore, to try to set down clearly the constitutional law and practice governing these two powers, and incidentally the lieutenant-governor's power to refuse the royal assent outright.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 4 , Issue 1 , February 1938 , pp. 47 - 59
Copyright
Copyright © Canadian Political Science Association 1938

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References

1 House of Commons Debates, 1937, unrevised edition, p. 2473.

2 Provincial Legislation, vol. I, pp. 61–2.Google Scholar

3 This would seem to have some bearing on the contention that, because the report of the Imperial Conference Committee on Dominion legislation (1929) declared the disallowance of Dominion Acts and reservation of Dominion bills constitutionally obsolete, therefore the same holds true of disallowance of provincial Acts and reservation of provincial bills.

4 British Columbia Act of 1885, dealing with Chinese immigration.

5 Ontario Streams Acts, 1881, 1882, 1883.

6 Report embodied in P.C. 701.

7 Provincial Legislation, vol. I, p. 105.Google Scholar

8 Ibid., vol. I, p. 78.

9 Canadian Annual Review, 1925–1926, p. 408.Google Scholar

10 Sessional Paper of the House of Commons, no. 276 (1924), containing Minute of Council P.C. 752, May 5, 1924.

11 Journals of the Legislative Assemblies of the provinces, except Saskatchewan, 1907, and New Brunswick, 1887, 1889, 1893, and 1894, which I have not seen. The tables in Provincial Legislation contain two Acts and a bill reserved before Confederation.

12 Keith, A. B., Responsible Government in the Dominions (Oxford, 1927), p. 565,Google Scholar says that to 1906 there had been forty reserved bills: fourteen from Manitoba (assent given five), six from British Columbia (assent given five), six from Quebec, five from Prince Edward Island (assent given three), four from New Brunswick (all assented to), three from Ontario, and two from Nova Scotia (one assented to). He does not give the source of his information. Since 1906, there seem to have been, until 1937, only four more reservations, all from British Columbia. At p. 563 of Responsible Government in the Dominions, however, Keith seems to have confused two Nova Scotia reservations with refusals of assent, and at p. 750 he cites as a refusal of assent the reservation of a British Columbia bill by Mr. Dunsmuir. I have not been able to trace his footnote reference, on p. 750, to “Senate Debates, 1910–1911, pp. 445 ff”.Google Scholar

13 Senate Debates, 1882, pp. 367–70Google Scholar; House of Commons Debates, 1883, p. 827.Google Scholar The 1884 bill, introduced in the Commons, was withdrawn without debate. There were also private members' bills on the subject, 1880, 1881, 1885, 1886. See, for example, House of Commons Debates, 1885, pp. 882–6.Google Scholar

14 Responsible Government in the Dominions, p. 563.

15 Ibid., pp. 563, 750.

16 Ibid., p. 563, says that there were cases of refusal of assent in New Brunswick also in 1877 and 1879. He does not give his source, and I have not been able to find any trace of these cases.

17 Sessional Paper of the House of Commons, no. 276 (1924).

18 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865), pp. 33, 41–2.Google Scholar

19 Speech to the Canadian Club of Toronto, Sept. 15, 1937, pp. 21-2.

20 Confederation Debates, pp. 29, 41.

21 Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437.

22 Toronto Electric Commissioners v. Snider et al., [1925] 2 D.L.R. 5. See also the decisions in the recent Bennett New Deal cases.

23 See the decisions in the recent Bennett New Deal cases, and Mr. Cahan's speech in the House of Commons, April 5, 1937.

24 La Confédération canadienne, referred to in The Crisis of Quebec, 1914-1918 by Elizabeth Armstrong (New York, 1937), p. 213.Google Scholar