Constituent Authority and the Canadian Provinces
Stephen A. Scott *
I -The Regulation by Law of Canadian Lawmaking Processes ………………
529
II- Recasting the Lawmaking Process by Provincial Enactment …. ……. 532
532
533
1) The Obstacles to Provincial Constitutional Change ……………
2) Scope of the Manitoba “Initiative and Referendum Act” ……..
3) The Referendum as an Element of Legislation:
(i) Sufficient for legislation ……………………….. ..
(ii) Necessary to legislation …….
533
…………………… 533
4) Requisites for Legislation: Distinguishing Necessary from
Sufficient Conditions ………………………………… 535
5) Concurrent Processes of Legislation ……………………… 536
6) Entrenchment as a Solution to Instability of Alternative Processes 536
537
7) The Right to Entrench …………………………………………………………….
III -The
Initiative and Referendum Case and the Provincial Constitutions
1) The Statute and the Issues Arising from it ………………. 539
2) Interference with the Office of Lieutenant-Governor …………… 541
3) The Voter’
(“Submission”, “Referendum”) as an
“Negative”
Interference with the Lieutenant-Governor …………………. 542
4) The Positive Referendum (Initiative) and the
Lieutenant-Governor’s Powers ……………………………………………………….
548
550
5) Referendal Legislation and the Requirements of a “Legislature”
6) Primary and Delegated Legislative Power …………………. 554
556
7) The Holding in Re Initiative and Referendum Act ………………………
IV – The Consultative Referendum and the Provincial Constitutions …………
1) The Direct Legislation Act of Alberta ……………………….
2) The Holding in the Nat Bell Case ……………………………………………….
557
557
560
V -Problems
Suggested by the American Experience, and the Canadian
561
and A ustralian Cases …………………………………………………………………………….
……….. 569
1). The Recognition of Provincial Authorities ………
2) Sufficiency of Provincial Consents ……………………… 570
3) The force of Provincial Consents ……………………….. 570
…… 570
4) The time for ratification …………………………………………………
5) The meaning of “provincial legislature” ……………………. 571
572
6) Comprehensiveness of the most ‘difficult’ procedure ……………………
B.A., B.C.L.; Editor-in-Chief, McGill Law Journal (Vol. 12).
No. 4]
CONSTITUENT AUTHORITY
I. The Regulation by Law of Canadian Lawmaking Processes
Sir Ivor Jennings has perhaps epitomized the modern view of the
English law about ‘parliamentary sovereignty’ and the regulation by
law of the lawmaking process, in his phrase, ‘The law is that Par-
liament may make any law in the manner and form provided by the
law.” Where Dicey 2 saw ‘parliamentary sovereignty’ as much in
terms of a limitation on the competence of the courts as in terms of
the unlimited legislative competence of the (United Kingdom) Par-
liament, most modern authorities emphasize the latter, insisting that
the courts must in general enforce the laws prescribing the law-
making processes as they would any other laws, and that Parliament
(or other competent lawmaking authority, if we are not specifically
speaking of the United Kingdom) may by law alter those processes.
These principles are indeed implicit in the duty of the courts to notice
and apply the law to matters before them: purported enactments
made by those who -do not by law enjoy the power to make them, do
not form part of the law, and cannot be noticed or applied as part
of the law. This is no assertion of a special power to quash; to annul;
to set aside; to expunge; this is no claim of a special jurisdiction. It
is merely a denial that there is some special exception whereby
claims to power must be treated as lawful powers; usurped authority
as authority; illegal acts as legal; revolutionary acts as acts of the
existing legal order attacked by them; and legal discontinuity as
continuity. To treat even a simpler legislative process (like the United
Kingdom Parliament), not as a complex legal structure involving
hundreds of persons and existing only in abstracto, but rather as an
omnipotent human person who cannot stop himself from changing
his mind or bind himself in fetters, is, at best, to become ensnared
in one’s own crude metaphors, and, at worst, to indulge in meta-
physical claptrap. Problems, no doubt, exist. When is the appropriate
sanction absolute nullity, or an injunction, or a penalty, or something
else? What rules are to be considered constitutive of a legislative
body, and which merely of a lesser character? When will things be
presumed to have been properly done, and how strong will that pre-
sumption be? (Were a maniac to force the Clerk of the Parliaments
to certify, at gunpoint, a purported act vesting the maniac with
supreme powers, there are many who would re-examine the doctrine
1 W. Ivor Jennings, The Law and the Constitution, 3rd ed., (London, 1943),
p. 144.
2 A. V. Dicey, Introduction to the Study of the Law of the Constitution, now in
10th edition, (London, 1959).
McGILL LAW JOURNAL
[Vol. 12
that the Parliament roll is conclusive as being the record of a court,
and who, disinclined to the view that United Kingdom law obliges
obedience in the circumstances, would find hitherto unsuspected
resources in the plea nul tiel record.) But whatever problems there
be, the author is convinced, as he has suggested elsewhere, 3 that the
principles above stated are the only ones logically consistent with
the body of English law and that of the British Commonwealth in
general; and that they are indeed merely corollaries or applications
of “the ru:e of law”. Historical instances of successful revolutions
do not prove that they were not revolutions; even if judges, happily
or reluctantly, went along with the revolutions. Legal discontinuities
are not legal continuities because judges refrain from broaching the
subject. Nor are political ca:culations as to the likely malleable
behaviour of judges in a revolutionary situation any indication of –
and still less conclusive of – what is or can be prescribed by lazw
under the present legal order as being necessary for lawmaking.4
There is law which governs the lawmaking processes; it is applied
and enforced; it is from time to time altered; when it is altered the
new law displaces the old. In England, the Parliament Act, 1911,
provided for legislation, on certain conditions, by Crowdi and Com-
mons; which latter legislative process was so far considered
to
produce fully-fledged Acts of Parliament that the process was used
to enact the Parliament Act, 1949, which removed in part the con-
ditions imposed by the Act of 1.911 –
something unthinkable for a
mere delegate.
The scope of this essay dictates that, as a starting point, it be
taken for granted that in Canada law may be made according to
law, and not otherwise; a proposition for which, if authority be
required, it will be found in the greatly preponderant weight of
decided cases and learned authors, to the bulk of which references
may be found in the works already cited. The proposition will, of
course, find, for obvious reasons, more ready acceptance with regard
to a federal system, even though there is no logical connection between
the two as such.
The author is here concerned to probe the impact of changes in
the lawmaking processes of the Canadian provinces upon the con-
stitutional structure of Canada as a whole. It
is perhaps worth
3 (1966) 44 Can. Bar Rev. 366-372.
4 Compare H. W. R. Wade, ‘The Basis of Legal Sovereignty’, [1955] Camb. L. J.
172, with Jennings, op. cit., 5th ed. (London, 1959) p. 137 ff. and especially p. 318
ff., and Marshall, Parliamentary Sovereignty and the Commonwealth (Oxford,
1957), especially at pp. 43-46.
No. 4]
CONSTITUENT AUTHORITY
bearing in mind that though the most obvious changes in lawmaking
processes are thought of as a special c’ass called “constitutional amend-
ments”, this is more or less -a matter of degree, for all changes in
the law will have an impact, more or less obvious or obscure, proxi-
mate or remote, on the lawmaking process; the -impact of an Elections
Act being more obvious, that of a Bills of Exchange Act (on the
solvency of members of Parliament and therefore on their quali-
fications) less so. It is in this respect that the Kelsenian hierarchy
of laws or norms seems seriously oversimplified, failing as it does
to take account of the essential circularity, or wholeness, or “seam-
lessness” of the law.
Since the British North America (No. 2) Act, 1949, 5 the Parlia-
ment of Canada has apparently 6 enjoyed the power to recast the
structure of the Dominion lawmaking power into forms other than
those prescribed by sections 17 and following of the B.N.A. Act, 1867,
since these sections do not seem to fall within the exceptions made
to the power conferred by s. 91(1) of the B.N.A. Act, introduced in
1949. Nor does the attribution of Dominion lawmaking power to the
“Queen, by and with the Advice and Consent of the Senate and House
of Commons” seem to fall within the exceptions made to s. 91 (1). If
such be the case, it would seem open to the Parliament of Canada to
complicate the lawmaking processes with all manner of referenda,
special majorities, or other ‘entrenchments’, whether with a view to
to safeguarding civil liberties, or for other reasons. Compliance with
these complications could be made essential to valid lawmaking.
Probably section 6 of the Fulton-Favreau Formula of 1964 would have
closed the door to much of this type of action at the federal level,
except such as could be accomplished by changing the constitution
of the houses individually.
But it is in the provinces, however, rather than at the federal
level, that experiments of this sort are more likely, as history has
shown, and as the Premier of Quebec has lately suggested history
may again show. Such experiments are of course in themselves in-
teresting legally and politically, but their full importance can only
be appreciated once it is realized that, to -the extent that the provincial
legislatures may reconstruct themselves, they may very possibly also
be able to complicate any ultimate general constitutional amendment
G13 Geo. VI,-c. 81 (U.K.).
6 The argument contra would be that the new legislative process must remain
a “Parliament” (whatever essential characteristics that may be held to involve)
is to wield the powers inter alia conferred by s. 91. But even so, the
if it
relations between the two houses, and their respective constitutions, could be
enormously altered –
and even special majorities or a third house introduced.
McGILL LAW JOURNAL
[Vol. 12
procedure for Canada which speaks, as the Fulton-Favreau Formula
uniformly does, of action by the legislatures of the provinces.
It
is with the object of giving at least such indication as the
authorities permit, of the extent of the provincial constitutional
amendment power, that I engage in the following minute examination
of the few decided cases, in an effort to distill their precise authority.
What they decided is not so obvious as may at first reading be thought.
II. Recasting the Lawmaking Process by Provincial Enactment
1) The Obstacles to Provincial Constitutional Change
Western Canadian experiments with the “initiative” and “ref-
erendum” have given rise to the litigation which has produced at
once the best illustration of the problems of, and the most authori-
tative judicial pronouncements upon the limits of, the change, by
provincial enactment, of the lawmaking procedures of the Canadian
provinces.
The B.N.A. Act injects two specific arguable obstacles to the
recasting by the provincial legislatures of the law prescribing the
processes of lawmaking. 7 Two, but with this reservation: that these
“two” obstacles appear to overlap at one point at least; but, subject
to this, they may be divided into the two following:
First, is the qualification that the provincial legislature shall have
power with respect to, s. 92(1) “The Amendment from time to time
(notwithstanding anything in this Act) of the Constitution of the
Province except as regards the office of Lieutenant-Governor.”
[Emphasis added]. This seems clearly to preclude any provincial
enactment interfering with the participation of the Crown –
or such
participation at least as is prescribed expressly or impliedly in the
B.N.A Acts –
in the legislative process: in particular, the royal
assent to, and reservation of, bills, and (perhaps for partly different
reasons) the disallowance of Acts.
Second, are the words of the B.N.A. Act granting to the provincial
legislatures their powers: “In each province the Legislature may
exclusively make laws in relation to” & c. [Emphasis added]. It
is
7As to s. 92(1) generally, reference may be made to Rex ex, rel. Tolfree V.
Clark [1943] O.R. 319; [1943] 2 D.L.R. 554 (Hope J.); [1943] O.R. 501; [1943]
3 D.L.R. 684 (C.A.: Riddell, Fischer, Henderson, Gillanders and Laidlaw JJ. A.).
Leave to appeal refused:
[1944] S.C.R. 69; [1944] 1 D.L.R. 495. See also
R. ex rel. Brooks v. Ulmer [1923] 1 W.W.R. 1; 19 Alta. L.R. 12; 38 C.C.C. 207;
[1923] 1 D.L.R. 304; A.-G. for Sask. v. C.P.R. [1953] A.C. 594; North Cypress
v. C.P.R. (1904) 35 S.C.R. 550; (1903) 14 Man. R. 382.
No. 4]
CONSTITUENT AUTHORITY
possible, by a restrictive 8 construction of these words, to incorporate
by reference into the term “Legislature” any such array of quali-
fications as would require, in greater or lesser measure, conformity
with some perhaps elaborate judicially-expounded meaning of “legis-
lature”; more especially, conformity with some postulated standards,
of one sort or another, of parliamentary government. In particular,
it is possible to confine the exercise of provincial legislative power
to the Crown acting in conjunction with representative bodies of one
sort or other.
2) Scope of the Manitoba “Initiative and Referendum Act”
Both obstacles were considered In the leading decision on the sub-
ject, In re The Initiative and Referendum Act,9 arising from “An Act
to enable Electors to Initiate Laws, and relating to the Submission to
the Electors of Acts of the Legislative Assembly”, being 6 Geo. V. c.
59 of the Statutes of Manitoba, which received royal assent on March
10th, 1916, with the short title “The Initiative and Referendum Act”.
The Act provided for direct participation of the electors in the
legislative process, electors being defined by s. 2 to mean persons
whose names appeared on the electoral lists which would be used at
the relevant time for elections to the Assembly. The long title of the
Act, quoted above, gives some indication of the two forms which
the electors’ direct participation was to take: (1)
to “initiate” laws
–
in short, -to propose them and bring them to the statute book unless
the representative Legislature did so first –
and (2) “Submission
to the Electors of Acts of the Legislative Assembly” –
roughly, the
exercise of a negative voice against enactments of the Lieutenant-
Governor and Assembly, during a period of their suspended operation
or afterwards; to which may be added a submission of laws enacted
by the new procedure (1).
3) The Referendum as an Element of Legislation: (i) Sufficient
for legislation: (ii) Necessary to legislation
Though the minds of the judges did not ever seem clearly directed
to it, the difference is obvious between a referendum (i) exercising
8 Restrictive because on such an interpretation not everything would, simply
by being designated as the lawmaking power, be a “Legislature” within the
B.N.A. Act.
9 The decision in the Court of Appeal for Manitoba is reported at (1916)
27 lan. R. 1; in the Privy Council, [1919] A.C. 935. Reference of the’Act was
made under R.S.M. 1913 c. 38 to the Court of King’s Bench (Mathers C.J.K.B.)
where “by consent there was no argument”: [1919] A.C. 935 at p. 938; the
learned Chief Justice giving a formal judgment in favour of the validity of
the Act, from which appeal was taken.
McGILL LAW JOURNAL
[Vol. 12
a positive power of legislation in itself [or, if need be, in conjunction
with the Crown, a situation which may conveniently be assimilated
thereto]; and, on the other hand, a referendum (ii) exercising a
negative voice on legislation.
–
In the former case, instantiated by the Manitoba “Initiative”, the
electors become a sufficient condition for legislation [if need be,
acting in conjunction with the Crown: a point in which the Manitoba
legislature was held to have sinned], for the electors are able to pass
the legislation themselves [if need be with, –
and there is need of,
–
royal assent].
In the latter case, on the contrary, –
instantiated by the Manitoba
“Submission” –
the electors are not a sufficient, but a necessary,
condition to legis’ation. To state the obvious, they obtain a negative
voice only, as in Britain do Queen, Lords and Commons each; in
Canada, Queen, Senate, and Commons; in most provinces, Queen and
Assembly.
What is important is that these two kinds of direct popular
participation are not only analytically and legally distinct: in addition
to this, different considerations of policy apply. Thus, of two common
objections to direct democracy which spring to mind immediately,
one10 is to the- effect that “bills” passed by voters have no opportunity
of being debated, considered and amended during their passage: it
is clear that this has force rather against enactment of measures by
the voters alone, than against referral to the voters only after the
bill has been fully debated, considered, amended if necessary, and
approved, by the representative bodies; with the result in the latter
case that the voters may only then pass on it (whether because it
must meet a requirement of prior affirmative consent or because it
stands subject to their expression of disapproval.)
The other policy objection, too, –
danger of ill-advised measures
being brought in either on sudden passions or through popular igno-
rance of the issues or difficulties involved – makes sense equally
rather as an objection to the electors being a sufficient legislature,
than to their consent being necessary. So much is this true that the
referendum is found in constitutions frequently as a condition for
the change of certain classes of laws; and this is quite obviously
to
done as a technique of conservatism –
protect constitutional provisions of one sort or other from being
too readily changed, especially freedoms thought fundamental. For,
of “entrenchment” –
:*oPer Richards J.A.,
(1916) 27 Man. R. 1 at p. 15; per Perdue J. A. at
p. 23. Both thought that this weighed as showing that the Initiative could not
have been within the contemplation of the B.N.A. Act.
No. 4]
CONSTITUENT AUTHORITY
when a referendum is added, change is made more difficult, not
easier; the popular voice being required in addition to, not in lieu of,
other requirements.
4) Requisites for Legislation: Distinguishing Necessary from
Sufficient Conditions
Thus, in understanding the problems in the regulation by law of
the lawmaking processes, the first step is to make the obvious dis-
tinction between a condition established as sufficient for legislation,
and one established as necessary to legislation. In the language of the
logician, the legislative process may be described in terms of the
conjunctions and disjunctions of necessary and sufficient conditions
for legislation. Thus, the necessary and sufficient condition for an
act of the Parliament of Canada is (neglecting their order, and
without a further breakdown to see what is required for valid action
by each) the conjunction of the concurrences of Crown, Senate and
House of Commons; each being necessary; no one or two being
sufficient. In Manitoba, the concurrence of Crown and Assembly
would theretofore have been necessary and sufficient for legislation.
But under the Initiative and Referendum Act, another sufficient mode
of legislation –
that by referendum – was created, called the
“Initiative”. As the terms of the said Act were intepreted by the
Courts, that Act purported to dispense with the Crown as part of
the “Initiative” procedure; and this defect was held fatal to the
initiative.” In other words, the Act was held to have tried to introduce
a new and alternative mode of legislation, – not Crown-and-electors,
but electors. Had the Act made it c’ear that “proposed laws” once
passed by the voters had still to be presented for royal assent, the
Courts would have had to face squarely the referendum problems,
instead, as we shall see, of turning the matter on interference with
the office of Lieutenant-Governor. Specific safeguarding of the royal
prerogative would have eliminated this ultimately crucial ground of
ultra vires. But it is clear that, however interpreted, the Act meant
to set up a new and alternative referendal legislative process intended
to operate side by side wivth the representative one.’2 That much ad-
mitted of no doubt; the only obscurity was whether it had been
intended to include the Crown.
” As the “referendum”
(or submission to the electors of Acts passed by the
Assembly) was treated as simply repealing lawmaking, it, too, was held bad
for dispensing with the Crown: [1919] A.C. at p. 944.
12 The Legislature, in Lord Haldane’s words, [1919] A.C. at p. 945, had tried
to ‘create and endow with its own capacity a new legislative power’. [Emphasis
added]. Judgment was reserved on whether this was possible.
McGILL LAW JOURNAL
[Vol. 19.
5) Concurrent Processes of Legislation
Prima facie, at any rate, the Initiative and Referendum Act ap-
peared to leave the representative legislative process fully intact and
competent to make laws on every subject as fully as before: though
now, of course, it would not be the sole legislative power.
This, of course, is, potentially, a highly interesting situation: for,
two equally competent legislative processes, each independent of the
other, may act disharmoniously, each undoing the work of the other
*
(the last to speak laying down, in principle, the governing law)
or even engage in a race to the statute book to alter the constitution
of the other, restrict its power, or even abolish it outright.
Likelihood of disharmony is of course reduced in the measure
that, like Siamese twins, the two processes share one or more common
organs: as, the Crown –
but nevertheless, of two concurrent legis-
lative powers, there is no prima facie reason to suppose either to be
immune from interference by the other. Thus, in principle, legislation
passed by the “representative” process might abolish or restrict or
reform the “referendal” process (as, if the Legislature of Manitoba,
having once enacted the Initiative and Referendum Act, repented
and proceeded to repeal it); or, equally, the “referendal” process
might enact a law to reform, restrict, or even abolish, the “represent-
ative” legislature. 13
6) Entrenchment as a Solution to Instability of Alternative
Processes
The obvious instability of situations of this type –
especially
where the alternative processes are who’ly independent one of the
other [as was the case here once the courts interpreted the Manitoba
statute as leaving the Crown as a participant only in conjunction
with the Assembly, not with the electors]
is easily overcome
–
‘3 It is precisely the full equality of the new legislative power with the old
one that made the Courts refuse to consider the situation as merely one of
delegation. And exactly the same reasoning applies to show that legislation
under the Parliament Acts, 1911 and 1949, -is not delegated authority but fully
primary authority: with deference to Professor H.W.R. Wade, [1955] Camb.
L. J. 172 at p. 193; Administrative Law (1961) p. 9; and to Dr. Yardley, Source
Book of English Administrative Law (1963) p. 3. Considered as subdelegation,
the passage, under the 1911 Act, of the Parliament Act, 1949 would be considered
as going far beyond permissible bounds, for
the
“delegation”. Considered as the alteration by a delegate in the terms of the
delegation, its illegality would be indisputable. If the Parliament Act, 1949 is
valid, then the Parliament Act, 1911 was not a delegation but a change in the
lawmaking process.
flouts the terms of
it
No. 4]
CONSTITUENT AUTHORITY
by a rule excluding from the competence of one of the legislative
processes whatever subject-matter it is desired to leave free and
clear to the other. And one of the processes can without much diffi-
culty be given a reasonable protection by excluding from the com-
petence of the other, the alteration of the constitution of the first-
mentioned process, as well as the alteration of this rule itself.
7) Th-e Right to Entrench
Dicey’s rule against parliament “binding” itself, or “binding” its
successors, can be given a meaning, consistent with the unquestionable
power of Parliament to recast the lawmaking process, if understood
as a rule against the creation of vacuums. In such form it could be
formulated as providing that “Parliament cannot validly legislate
to provide that there exist during some finite time some rule of law,
actual or formulable, for which there exists no legislative process
by which it can be enacted as law”. This may reasonably be urged
to be the common law; but any rule against “binding” which goes
beyond this, and which yet allows for permissible reconstitution
and redefinition of the lawmaking processes, cannot, it is submitted,
be meaningfully formulated. At most it can be said that Parliament-
cannot create a legislative vacuum. Even the introduction of a ref-
erendum into the U. K. lawmaking process would require no more
than taking the road pointed out by Walter Bagehot in The English
Constitution (1872): namely, creating every man and woman in the
U. K. a peer; though elections to the House of Commons might
become difficult unless peers were given the vote as well. In principle
the same power to recast the provincial lawmaking process must
rest with the provincial legislatures of Canada, saving interference
with the office of Lieutenant-Governor, subject to a restrictive con-
struction of the word “Legislature” in s. 92 of the B.N.A. Act. There
have been suggestions of a restrictive construction of the word
“amendment” in s. 92; thus, per Perdue J.A.:14
‘The amendment contemplated by No. 1 of section 92 was not the substitution
of a new constitution or of one founded on new principles. It was intended,
I think, merely to give the provinces power to alter certain details of
structure or machinery deemed necessary for the efficient operation of
the constitution, the essential design and purpose being preserved.’
And powers of federal remedial legislation under the peace, order
and good government power could be developed. But it is not easy
to see why any of these would make it illicit to use any of the usual
techniques of entrenchment; and even a referendum as a necessary
condition of legislation would, [even apart from the Colonial Laws
14 (1916) 27 Man. R. 1 at p. 23.
McGILL LAW JOURNAL
[Vol. 12
Validity Act, 1865, a largely declaratory statute] seem permissible
under A.-G. N.S.W. V. Trethowan.1
Entrenchments at the provincial level are envisaged by the B.N.A.
Act, 1867, in that s. 80 creates one. That section requires in substance
the consent of a majority of the members of the Assembly coming from
constituencies listed in the Second Schedule as a prerequisite to pas-
sage by the Legislature of a bill to alter the constituency boundaries.
Unless their concurrence is obtained on second and third readings
“it shall not be lawful to present to the Lieutenant Governor of
Quebec for Assent” the bill. Does that make assent void when the
bill has wrongfully been presented, or merely create a punishable
or restrainable wrong in the presenting? “Assent shall not be given
to such Bill unless an Address has been presented by the Legislative
Assembly to the Lieutenant Governor stating that it has been so
passed”. Here the condition is merely an address reciting passage.
If there is no address, is assent null? Even if concurrence had in
fac been obtained? Can section 80 be repealed
in the ordinary
manner? The Statute of Westminster, 1931, is of little assistance;
though it removes nullity for repugnancy to Imperial Statutes, it
excepts the British North America Acts; so the provincial legislature
could not do so after 1931 if it could not do so before. Could it do
so before then? A good deal could be said on the subject, and a good
body of authority invoked; but these questions cannot be enlarged
upon here.
And whatever view be taken of Re Initiative and Referendum
Act, it zhould be remembered that in that case, the deoiskn, whatever
it may be taken to have said about referenda, or about creating new
legislative powers in which the Crown had no share, left a very
great deal of room for creating or replacing Houses, and providing
for special majorities, or for making use of other techniques of
entrenchment. Viscount Haldane indicated that he would have sus-
tained so much of s. 12 of the statute under consideration as post-
poned the operation of statutes for certain periods: when we read
s. 12 we see a special two-thirds majority requirement to bring a
statute into earlier operation.
The provincial Legislatures would seem left with a great freedom
to prescribe by law the lawmaking processes; and the laws by which
they do so are of full force and effect, and must be respected.
15 [1932] A.C. 526; on appeal from (1931) 44 C.L.R. 394.
No. 4]
CONSTITUENT AUTHORITY
III. The Initiative and Referendum Case
and the Provincial Constitutions
1) The Statute and the Issues Arising from It
It will now be convenient to examine closely the legislation in
question,. and the decisions thereon, to find their precise authority
and meaning, not only for evaluation and criticism, but in order to
set out as far as possible the exact state of the law on a matter
whose great implications on constitutional amendment in Canada
have been suggested earlier.
The crucial portions of the Initiative and Referendum Act IG are
the Initiative provision of section 7, giving the electors a power of
making laws:
“7. A proposed
law so referred to the electors and approved of by a
majority of the votes polled thereon shall, unless a later date is specified
therein, take effect and become law, subject, however, to the same powers
of veto and disallowance as are provided in the British North America
Act or as exist in law with respect to any Act of the Legislative Assembly,
as though such law were an Act of the said Assembly, on a date to be
fixed by proclamation to be made by the Lieutenant-Governor-in-Council,
which date shall not be later than thirty days after the clerk of the
Executive Council shall have published in The Manitoba Gazette a statement
of the result of the vote on said law in accordance with section 35 hereof.”
and the “submission” or (in Cameron J.A.’s terminology 7) “refer-
endum” provision of section 11 in conjunction with s. 9(1), re-
specting laws submitted to the electors for their censure:
“9. (1) Upon petition in writing of any electors, not less in number than
five per cent. of the total votes polled at the general Provincial election
last held previous to the date of the petition herein referred to, whose names
appear on the lists of electors last made and revised under “The Manitoba
Election Act” previous to the date of the petition herein referred
to,
addressed the Lieutenant-Governor-in-Council, and filed in the office of the
clerk of the Executive Council, requesting that any Act of the Legislative
Assembly or part or parts thereof, whether now or hereafter in force, or
not yet in effect by reason of section 12 hereof, or any law enacted under
the provisions of sections 3 to 7 of this Act, be referred to the electors,
the Lieutenant-Governor-in-Council
the manner hereinafter
provided, subject, however,
(3)
and
(4) hereof, submit such Act or law, or part or parts thereof, to
a vote of the electors of the Province to be taken at the next general
to the provisions of subsections
(2),
shall,
in
16 6 Geo. V, c. 59 (Stat. Man., 1916).
17 Per Cameron J.A. (1916) 27 Man. R. 1 at p. 32, ‘The Act purports to do
two different things, which are indicated in its title as above…’ At p. 34
he speaks of ‘what may be called “the Referendum” as distinguished from
“the Initiative”‘. See also p. 43.
McGILL LAW JOURNAL
[Vol. 12
provincial election, unless a special referendum vote is asked for in the
petition; . .. ”
“11. In the event of such Act or law or paTs thereof not being approved
of by a majority of the votes polled at such referendum, such Act or
law, or part or parts thereof so disapproved, shall, at the end of thirty
days after the clerk of the Executive Council shall have published
in
The Manitoba Gazette a statement of the result of the vote on such Act
or law, or part or parts -thereof, become and be deemed repealed.”
The Act contains thirty-nine sections and occupies twelve pages
of the statute book; and as a summary is useful, it is as well to
give that offered in the judgment of Lord Haldane for the Privy
Council :”8
‘The validity of the Initiative and Referendum Act, a statute of a type which
is not unknown in parts of the world with constitutions different from that
of Canada, of course depends on whether the Constitution of Canada as
defined by the British North America Act of 1867 permitted a Provincial
Legislature to pass it into law for the Province. The first step in the
consideration of the matter is therefore to ascertain the exact character
of the legislation proposed. In substance it is this. The Legislative Assembly
seeks to provide that laws for the Province may be made and repealed
[emphasis added] by the direct vote of the electors, instead of only by the
Legislative Assembly whose members they elect. The machinery created
for the accomplishment of this end is that first of all a number of the
electors, being not less than eight per cent. of the number of votes polled
at the last election, may by petition submit a proposed law to the Legislative
Assembly. In the next place, the proposed law, unless enacted without
substantial change by the Assembly in the session in which it is submitted,
must be submitted by the Lieutenant-Governor
in Council to a vote of
the electors, to be taken at the next general Provincial election, unless a
special referendum vote has been asked for in the petition. Provision
is
made for time being available in which to obtain the opinion of the Attorney-
General, and if necessary of the Court, as to whether the proposed law is
intra vires. If not it cannot be submitted. If a special referendum vote has
been asked for it is usually to be taken within six months from the presen-
tation of the petition. In the third place, if a proposed law has been
submitted to the electors, and approved by a majority of the votes polled,
it is to take effect, “subject, however, to the same powers of veto and
disallowance as are provided in the British North America Act or as exist
in law with respect to any Act of the Legislative Assembly, as though such
law were an Act of the said Assembly”, on a date to be proclaimed by the
Lieutenant-Governor, and to be not later than thirty days after the official
-announcement of the result of the vote.’
‘The proposed
law further provides
that a number of electors,
equivalent ‘in this ease to not less than five per cent. of the number
of votes polled at the .last election, may petition for the repeal [emphasis
added] of any Act of the Assembly or of any law enacted by the new
method, the validity of which is now in question, and provisions, not
differing in material respects from those already referred to, are made
18 [1919] A.C. 935 at p. 939.
No. 4]*
CONSTITUENT AUTHORITY
for the repeal of such act or law. There are in the Initiative and Referendum
Act other provisions which may be mentioned briefly. No Act of the
Legislative Assembly is to take effect until three months after the end
of the session in which it was passed, unless in a preamble voted for by
two-thirds of the members voting, the Act has been declared to be an
emergency measure, but this is not to apply to a Supply Bill or Appropriation
Act, except as to items for capital expenditure exceeding $100,000. When
a vote is -to be taken under the Act the Lieutenant-Governor is to order
the issue of writs in His Majesty’s name for taking such vote, and he is,
also to provide for the public dissemination of information and arguments
on the matters referred, not exceeding twelve hundred words for each side.’
Did this enactment, whose substance has just been summarized,
infringe the B.N.A. Act in interfering unlawfully with the office
of Lieutenant-Governor? Alternatively, was there infringement con-
sisting in an attempt to vest the authority in question in a body or
process other than a “Legislature” within the meaning of the B.N.A.
Act?
2) Interference with Office of Lieutenant-Governor
The judgment of the Privy Council construed widely the exception,
contained in s. 92 (1) of .the B.N.A. Act, to the provincial legislative
power of constitutional amendment. In the words of Viscount Hal-
dane :19
‘The analogy of the British Constitution is that on which the entire scheme
is founded, and that analogy points to the impropriety, in the absence of
clear and unmistakable language, of construing s. 92 as permitting the
abrogation of any power which the Crown possesses through a person who
directly Tepresents it.’
Of course, even on a narrower construction of the exception, the
power of royal assent to bills must obviously still have fallen squarely
within it, clearly being as it is the essence of the position of the
Crown, represented by the Lieutenant-Governor, ,as part of the Legis-
lature of the province. In any event, his Lordship continued:20
‘when the Lieutenant-Governor gives to or withholds his assent from a
Bill passed by the Legislature of the province, it is in contemplation of law
the Sovereign that so gives or withholds assent. Moreover, in accordance
with the analogy of the British Constitution which the Act of 1867 adopts,
is a part of the
the Lieutenant-Governor who represents the Sovereign
Legislature. This is in terms so enacted in such sections as s. 69, the principle
of which has been applied to Manitoba by s. 2 of the Dominion Statute of
1870, which formed the new Province… It follows that if the Initiative
and Referendum Act has purported to alter -the position of the Lieutenant-
Governor in -these respects, the Act was in so far ultra vires.’
Upon the question of the construction of the Initiative and Refer-
19 [1919J A.C. 935, 943.
20 Ibid., at p. 943.
McGILL LAW JOURNAL
[Vol. 12
endum Act, the Privy Counoil held that, properly interpreted, the
Act had intended to dispense with the concurrence of the Lieutenant-
Governor, as well for legislation by Initiative (s.7) :21
‘if the Act is valid it compels him to submit a proposed law to a body of
voters wholly distinct from the LegislatuTe of which he is the constitutional
head, and renders him powerless to prevent it from becoming an actual
law if approved by a majority of these voters. It was argued that the
words already referred to, which appear in s. 7, preserve his powers of
veto and disallowance. Their Lordships are unable to assent to this contention.
The only powers preserved are those which relate to Acts of the Legislative
Assembly, as distinguished from Bills, and the powers of veto and disallowance
referred to can only be those of the Governor-General under s. 90 of the Act
of 1867, and not the powers of the Lieutenant-Governor, which are at an end
when the Bill has become an Act.’
as for the effect of a referendum, taken on “submission” to approve
or disapprove Acts made by the old or new methods, under s. 11:
‘Sect. 11 of -the Initiative and Referendum Act is not less difficult
to
reconcile with the rights of the Lieutenant-Governor. It provides that when
a proposal for repeal [emphasis added] of some law has been approved
by the majority of the electors voting, that law is automatically to be deemed
repealed at the end of thirty days after the clerk of the Executive Council
shall have published in the Manitoba Gazette a statement of the result
of the vote.’
Their Lordships, in sum, held that :22
‘Thus the Lieutenaut-Governor appears
new legislative authority.’
And in so construing s. 7 and s. 11 as dispensing with the Lieu-
tenant-Governor’s concurrence, their Lordships affirmed the Court
below.23
to be wholly excluded from the
3) The Voters’ “Negative” (“Submission”, “Referendum”) as an
Interference with the Lieutenant-Governor
This finding –
power in which the Crown should have no part –
that the Act intended to create a legislative
can scarcely
the submission to referendum –
21 [1919] A.C. 935 at p. 944.
22 [1919] A.C. 935 at p. 944.
2 3 Howell C.J.M. (1916) 27 Man. R. at ,p. 8. Per Richards J.A. at p. 16. Per
Perdue J.A. at p. 27 and p. 29. (His Lordship indicates at p. 29 ‘that he thinks
of the voters’ ‘negative’ –
as a repealing
there are any doubts that this is the effect under section 7 the
statute: ‘If
intention of the Act to dispense with the assent of the Lieutenant-Governor
is most clearly shown by section 11. That deals with the repeal of an existing
the
law.’
Lieutenant-Governor’s functions as to money bills (p. 42) and as to legislation
(p. 43), concluding ‘These essentials are ignored, and I am satisfied that they
were intended to be ignored.’ At p. 44 he discusses the meaning of the term
‘veto’, and at p. 45 funds a constitutionally invalid material addition to the
office of Lieutenant-Governor. Haggart J.A. merely expressed concurrence.
[Emphasis added].) Cameron J.A. speaks of
interference with
No. 41] ”
CONSTITUENT AUTHORITY
occasion much surprise. What must, however, create some difficulty
is the excessive facility with which the negative voice given to the
electorate (to disapprove laws which they might require by petition
to have submitted to them), was assimilated to the positive voice
(initiative) given to them to enact legislation. Emphasis has been
added to certain portions of the passages quoted above in the text
and notes, wherein it becomes clear that the electorate’s ‘negative’
voice (submission) was being assimilated to the ‘positive’ (initiative)
by treating the negative simply as if it were a repealing enactment:
that is, as simply a particular kind of legislation; or, to put it an-
other way, simply a particular instance of 2 more general rule (sec-
tion 11) providing for referendal legislation .in disregard of the
rights of the Crown.
If the electorate’s negative voice is here being assumed to be
as much a legislative enactment as its positive voice, the Manitoba
legislature can scarcely complain that the courts reached such a
conclusion uninvited: for the very terms of the Initiative and Ref-
erendum Act:
’11. In -the event of such Act or law or part or parts thereof not being
approved by a majority of the votes polled … such Act or law, or part
or parts thereof so disapproved, shall … become and be deemed repealed.’
called the electorate’s disapproval a ‘repeal’. Still, if we are to con-
i.e., with
cern ourselves with the substance of the enactment –
what was enacted –
and not only with the form of words used
(which could easily be changed), it is by no means clear that there
was here a power given to the electorate to enact a repealing law.
One can, almost as readily, read the Initiative and Referendum Act
as merely subjecting the legislation of the province to one more
condition in addition to Crown and Assembly: a condition of voters’
approval; and, more particularly, a condition subsequent (if not a
condition precedent) of voters’ approval.24
24At this point, argument can become rather fine. As by the terms of s. 9(1)
laws
of the Act the voters can compel submission to them not only of (a)
thereafter enacted by Crown and Assembly, but whose operation has been
laws thereafter enacted by Crown and Assembly,
suspended by s. 12; and (b)
and in immediate operation; and (c) laws enacted by the Initiative under s. 3 to
7 of the Act; but even of (d) laws enacted by Crown and Assembly even
before the coming into force of the Initiative and Referendum Act, it
is
consequently likely to be responded that it is unreasonable to speak of the
Legislature as having enacted laws of category (d) subject to any condition
of any kind. It will be argued in consequence that in this case, at least, the
voters’ negative must be treated as a repealing statute. To this the reply may be
made that this argument is good only as to class (d). Moreover, there is a
two-fold reply to the argument. One can choose to say that the Initiative
544
McGILL LAW JOURNAL
(Vol. L
Disallowance, too, operates much as would a repealing enactment ;25
yet no one thinks of disallowance as a new, repealing, statute.20
There is, in short, very strong reason for regarding a voters’
negative as being not neoessarily or dn every oacse a power of enacting
repealing legislation by a procedure which dispenses with royal as-
sent and which therefore infringes the B.N.A. Acts. One may
the exercise of a statutory power to whose
see it instead as (1)
operation the provincial legislature has subjected its statutes; or
(2) as a condition subsequent subject to which a statute has been
enacted. And whatever the true nature of the Manitoba legislation,
properly fram/ed legislation could easily cast a voters’ negative as a
condition subsequent.
What is of the greatest importance in applying this case is to
bear in mind that the Privy Council did not have occasion to consider
and Referendum Act was itself the conditional repealing legislation; did itself
subject all earlier statutes to this condition. Or one can say that the voters’
negative is of the nature of disallowance: and disallowance is not considered
a repealing enactment, though it has much the same force as one.
Notice, incidentally, that s. 9 (1) gives the voters a censure or negative
power over a seemingly exhaustive enumeration of types of laws; but does not
mention s. 9(1) and s. 11 themselves. If action under s. 9(1) and s. 11 is to be
considered a repealing law, why not include it, like other forms of laws, as
being capable of being negatived under those sections ? Merely because new
legislation could be passed by other procedures instead of repealing a repealing
law ?
25 That is to say, secundum quid; not simpliciter; the disallowed enactment is
ineffective for the future but good as to the past. Wilson V. Esquimalt and
Nanaimo Railway [1922] 1 A.C. 202; Duff J. for the Privy Council at p. 209:
‘… The point under examination turns… upon the effect to be ascribed to
the words “shall annul the Act from and after the day of such signification.”
itself discloses with sufficient
… Their Lordships think that the language
clearness an intention that, at all events as to private rights completely
the
constituted, and founded upon
disallowance of a Provincial statute shall be inoperative.’
transactions entirely past and closed,
26 A power of disallowance probably exists to the extent that the constitutional
provisions creating it are in force at the time that this power is exercised. If it
is the time of exercise that is material, disallowance would be exercisable
against a statute passed before a disallowance power existed. Conversely, were
it removed from the B.N.A. Act, it could not be exercised at all, even as to
statutes enacted before -its disappearance. Applying this analogy of a royal
negative to a voters’ negative, we may conclude that it is no more true to say
of the one than of the other that it must be looked upon as a repealing law
into existence only after some
merely because the disapproval power came
or all of the laws against which it might be exercised. If this be so, my analogy
the
between disallowance and voters’ negative –
remains good even as to laws in force before the
enactment of a law –
Initiative and Referendum Act.
neither being necessarily
N.4i
CONSTITUENT AUTHORITY
the imposition of a referendum as a condition PRECEDENT to some
or all classes of legislation. It did not therefore give a ruling about
referenda simply. What its attitude might have been to the imposi-
tion of a referendum as a condition precedent to some or all classes
of legislation, must be a matter for conjecture but in face of A.-G.
N.S.W. v. Trethowan27 it is not easy to see what objection could
be raised. Certainly it would be most difficult to find any infringe-
ment of the Crown’s authority; the Crown would participate as usual.
Yet, unless a condition-precedent referendum would offend in this
regard, it is hard to see why a condition-subsequent referendum
should in any way be distinguishable. Must we then conclude that
in Canada
(unlike Australia), the Privy Council having seemingly
rejected the latter at the provincial level, has also impliedly rejected
the former as well? The answer, surely, is that their Lordships were
not considering conditions of any kind, whether precedent or sub-
sequent.
In all probability, the Privy Council, seeing the Manitoba refer-
endum appear in the guise of “repealing” legislation, took the statute
at its word and did not think to analyse further. It is strongly argu-
able therefore, that when the question comes to be put, a “negative”
referendum or referendum imposing voters’ consent as a condition
to enactment would be valid at the provincial level, even when cast
in the form of a condition subsequent. When cast as a condition
precedent, the validity would have strong support from the Treth-
owan case.2 8
That case does not truly turn upon the Colonial Laws Validity
Act, 1865, of which section 5 requires that legislation be enacted
in accordance with manner and form required by law, and of which
section 1 defines “Legislature”
to include lawmaking authorities
generally. Dixon J., in the Australian High Court, gave reasons
covering the Imperial Parliament itself,2 9 and, as has been said
above, this position is gaining the overwhelming support of judicial
authority and learned opinion. Even the objection to applying this
view to the Canadian provinces, on the ground that they would then
not have “Legislatures” within the meaning of s. 92(1), has in con-
siderable measure been repudiated in Australia, where raised by
McTiernan J. dissenting in Trethowan’s Case.3 0
In any case, the matter seems, at very least, open in Canada.
Taking In re the Initiative and Referendum Act as settled law, when
27 [1932] A.C. 526.
28 Ibid. In the High Court of Australia (1931) 44 C.L.R. 394.
29 (1931) 44 C.L.R. 394 at p. 426-7.
30 Ibid. 442, 448-9.
McGILL LAW JOURNAL
[Vol. 12
in particular a referendal negative –
must we, upon its authority, hold the imposition of a negative upon
to infringe the
legislation –
rights of the Crown? Taking a wide view, one might say that, on
the authority of this case, a referendum as condition subsequent is
always bad, but that the question is at least open whether a condi-
tion precedent is good (because it does not dispense with the Crown
and because the Privy Council reserved judgment on other objec-
tions). Yet the distinction between conditions precedent and subse-
quent seems pointless, especially since, in one form at least, condi-
tions subsequent are good beyond question (i.e. the bringing of laws
into force on proclamation, to say nothing of other conditions) by
universal acceptance. We must, it would seem, look for a narrower
ratio decidendi, and one is readily apparent: the “negative” is bad
when it is cast as the enactment of repealing legislation. 31 Thus,
their Lordships said :32
It provides
‘Section 11 of the Initiative and Referendum Act is not less difficult to
that
reconcile with the rights of the Lieutenant-Governor.
when a proposal far re’peal of some law has been approved by the majority
of the electors voting, that law is autonmtically to be deemed repealed at the
end of thirty days after the clerk of the Executive Council shall have published
in the Manitoba Gazette a statement of the result of the vote. Thus the
Lieutenant-Governor appears to be wholly excluded from the neu’ legislathe
authority.’ [Emphasis added.]
Likewise in the Court of Appeal, Howell C.J.M. said :
‘I do not think that the portion of the proposed Act which is known as the
the
Initiative, including the procedure for repealing statutes,
power of the Province to enact.’ [Emphasis added.]
is within
and similarly per Perdue J.A. :34
‘If there are any doubts that this is the effect under section 7 the intention
of the Act to dispense with the assent of the Lieutenant-Governor is most
clearly shown by section 11. That deals with the repeal of an existing law.
31 Even the characterization by the courts of s. 11 as providing for repealing
legislation is open to question, inter alia because s. 11, though it uses the term
“repeal” itself, has the following interesting feature. An Act submitted to the
voters is by s. 11 considered rejected by “not being approved of by a majority
of the votes polled”, meaning, apparently, that the Ac. FAILS on equal div.ision,
which can be contrasted with the requirement of s. 7 that positive legislation
requires to be “approved of by a majority of the votes”. This makes the voters’
negative look more like failure of a condition subsequent of voter approval
even a
than like a repealing law enacted by voters. One expects a law –
to require a majority if it is to pass; while a law fails on
repealing law –
equal division in an assembly whose consent is needed by way of a condition
of passage.
32 [1919] A.C. at p. 944.
33 (1916) 27 Man. R. 1 at p. 8.
34 Ibid., p. 29. Emphasis added.
No. 4]
CONSTITUENT AUTHORITY
547
If such law is not approved by a majority vote, at the end of thirty
days after publication of the vote, it shall “become and be deemed repealed”.
Nothing could be clearer than the intention of this section to do away
with the assent of the Lieutenant-Governor.’
It is indeed telling that so far did the Privy Council think in terms
of s. 11 as a repealing procedure that their Lordships apparently
misread the section itself, and, in the passage just quoted, said that
a law is repealed “when a proposal for repeal of some law has been
approved by the majority of electors voting”. That is obviously what
one assumes when one is thinking in terms of carrying a repeal; but
that is not what the section appears to say, and Perdue J.A., in the
passage just quoted, reads it as negativing the law “if such law is
not approved by a majority”. On equal division an Act of the Legis-
lature brought before the voters fails. That is not what is normally
understood by repeal, but the Privy Council had the idea of repeal
firmly in mind, and so altered the terms of the statute in its reading
of it.
What, then, do the Privy Council and Appeal Court decisions say
about a voters’ negative, or a requirement of voter concurrence?
Only that when framed as a power in the voters to repeal statutes,
it ,is a legislative power which infringes the rights of the Crown
when the latter is not added as a participant. But the rights of the
Crown are fully respected when the referendum is added merely
as an extra condition, be it precedent or even subsequent: so that
referenda of these varieties, if they are to be condemned at all, must
be condemned on grounds upon which.the Privy Council reserved
judgment, which we shall next consider.35
35 An examination of the remarks of Viscount Haldane [1919] A.C. 935, at
p. 945 about section 12, which he seemed inclined to sustain apart from its
last sentence, may seem to cast doubt on the foregoing. His Lordship was in
effect suggesting that the Legislature might require that the operation of its
statutes be delayed for a time save where two-thirds of the Assembly voted for
immediate operation. And his Lordship was suggesting that the last sentence
was bad, i.e., that the operation of the statute could not be made conditional
upon voter approval. Does this mean that no statute may be made conditional
on voter approval; or, at least, that the province cannot impose a referendum
as a requisite to some or all legislation, i.e., cannot entrench by referendum ?
Viscount Haldane, having expressed his view, seems to reserve it in the next
breath as ‘unnecessary to decide’. In any event, that passage, if governed by
the context of the judgment, is obviously made on the basis that the last
sentence of s. 12 has to do with a referendal repealing process in which the
Crown is ignored.
McGILL LAW JOURNAL
[Vol. 12
4) The Positive Referendum (Initiative) and the Lieutenant-
Governor’s Powers
Far more obvious are the grounds on which the Initiative –
the
voice of the electors enacting laws themselves –
the positive power
of legislation by referendum –
can be thought to infringe the Lieu-
tenant-Governor’s powers. For here, the Initiative allows a law to
be brought to the statute books without his consent. That, of course,
is the gravamen of the charge -that the Initiative and Referendum
Act interfered with his powers. Yet, even to this charge, an answer
may be offered “i support of the validity of the scheme: and that argu-
ment is that the referendal legislation here in question was merely
such a delegation as could be made dn accordance with Hodge V. The
Queen to a body of which the Lieutenant-Governor formed no part.
If delegation could be made out, it would obviously serve as a rather
forceful answer to both the charges brought against the Initiative
that the Crown, represented by
and Referendum Act; namely, (1)
the Lieutenant-Governor, had been wrongfully excluded from par-
ticipation in the lawmaking process; and (2) that lawmaking powers
exercisable under s. 92 ff. of -the B.N.A. Act, by the “Legislature”
exclusively, had been invested in a body other than a “Legislature”
within the meaning of that Act.
Delegation is, of course, as relevant an answer to (1) as to (2).
If municipal councillors or municipal voters can act in exercise of
delegated legislative powers without constitutional necessity for
royal assent, so too, one would think, could the voters of the prov-
ince; and if so, any objection to a delegation to the voters will have
to be founded on grounds other than (1). Curiously, discussion in
the judgments seem to proceed as if delegation were offered in
answer only to objection (2).
Does this mean that, as the Privy Council reserved judgment on
objection (2), they therefore reserved judgment on the preliminary
question whether the powers given to the electorate could be
sustained as a delegation? Clearly not. It is clear that most of
the discussion about delegation was in both courts addressed to objec-
tion (2). Yet the passages quoted above from the Privy Council
opinion make it clear that in their view the lawmaking powers con-
ferred upon the electors were of quite another order than those which
Hodge v. The Queen had held could be placed in a body which, in
that case, was independent of any requirement of royal assent to
its acts. Rejection of the ‘delegation’ argument is implicit in the
Privy Council’s judgment; because its acceptance would have in-
volved sustaining the Initiative and Referendum Act. But rejection
is more than implicit: it is explicit. It is explicit in the distinction
No. 4]1
CONSTITUENT AUTHORITY
drawn by their Lordships 36 between a provincial legislature which
‘while preserving its own capacity intact, seek[s] the assistance of
subordinate agencies’ and one which tries to ‘create and endow with
its own capacity a new legislative power not created by the Act to
which it owes its own existence’. The Privy Council may be leaving
open the constitutional legitimacy of the latter as regards circum-
stances where the Crown’s rights are respected; but they do not
doubt that it is the latter that is being attempted. And in the Court
of Appeal, as we shall see, even Cameron J. who, unlike his brethren,
would have sustained the latter type of experiment –
provided the
Crown were respected –
entertained no doubt that this was what
was being done 7 The remaining judges of the Court of Appeal who
delivered judgments made it equally clear that they did not consider
the matter one of delegation.38
The distinction between delegating legislative power to a subordi-
nate and investing it in a new legislative power may not be a clear
one; and the criteria for the distinction may be hard to find or un-
satisfactory, but it is, it would seem, necessarily implied in the Privy
Council decision here, that there is a line to be drawn. 39 On one side
powers may be given in whose exercise the Crown plays no part:
Hodge V. The Queen. On the other side of the line the assent of the
Crown must be provided for: In re Initiative and Referendum Act.
Of course, what amounted to a scheme to derogate from the Lieuten-
ant-Governor’s authority as representing the Queen who is the
supreme executive government of the province, might be ultra vires;
or to ,the extent that it was intra vires, it might be the subject of
remedial legislation by Parliament in relation to the office of Lieu-
tenant-Governor, a subject excluded from the provincial legislative
authority.
It is submitted accordingly, that the Courts rejected the Initiative
and Referendum Act, not because the general body of voters was
less capable than anyone else of taking a delegation of powers; nor
because, on taking a delegation of powers, they would be more bound
than any other delegate to have the assent of the Lieutenant-Gov-
ernor as part of their procedure; but precisely because, in the view
taken by the Courts, the Act purported to vest such equal and co-
ordinate legislative power in the body of electors as could not be
regarded as a mere delegation to a subordinate –
just as the Par-
36 [1919] A.C. 935 at p. 945.
37 (1916) 27 Man. R. 1 at p. 35.
38 See below in connection with objection (2)
requirements of a “Legislature.”
:49 See above 1(5) and 1(6) and below 111(6).
–
infringement of the implied
McGILL LAW JOURNAL
[Vol. 12
liament Acts, 1911 and 1949, in the United Iitngdom, cannot be re-
garded as a process for the passage of anything less than a fully-
fledged Act of Parliament. It :ollowed, then, once a new legislative
power was assumed to have been created, that the Lieutenant-Gov-
ernor’s exclusion therefrom was an interference with his powers,
rendering the Initiative and Referendum Act ultra vires,4 apart
any other ground.
5) Referendal Legislation and the Requirements of a “Legislature”
The second principal ground of objection to the Initiative and
Referendum Act was, of course, that the new legislative power was
not a ‘Legislature’ within the meaning of the British North America
Act, the term being taken to import impliedly some few or many
characteristics, actual or ideal, of English parliamentary govern-
ment.
Upon this point, the Privy Council expressly reserved judgment;
but appeared nevertheless favourably disposed to it: 4
1
‘Having said so much, their Lordships, following their usual practice of
not deciding more than is strictly necessary, will not deal finally with
another difficulty which those who contend for the validity of this Act
have to meet. But they think it right, as the point has been raised in the
Court below, to advert to it. Sect. 92 of the Act of 1867 entrusts the
legislative power in a Province to its Legislature, and to that Legislature
only. No doubt a body, with a power of legislation on the subjects entrusted
to it as ample as that enjoyed by a Provincial Legislature in Canada,
intact, seek the assistance of
could, while preserving its own capacity
subordinate agencies, as had been done when in Hodge v. The Queen, the
40 Perdue J.A. (19 6) 27 Man. R. at p. 31 would have gone so far as to
find that even had a requirement of royal assent been included, there would
still have been an illegal interference with the office of Lieutenant-Governor:
‘Even if it could be shown that section 7 did imply that the assent of the
Lieutenant-Governor should be obtained, or if the Act were amended so as to
make it clear that such assent was required under both sections 7 and 11,
the Act would still remain unconstitutional, because, as I have pointed out, the
Lieutenant-Governor can only assent to an Act that has been passed by the
Legislative Assembly.’ This would seem for example to doubt the generally-
accepted right of the provincial legislatures to invest in the Lieutenant-Governor
powers germane to the office: A.-G. Can. V. A.-G. Ont. (1891) 20 O.R. 222 at
247; and see (1893) 19 O.A.R. 31; (1894) 23 S.C.R. 458. Shannon v. Lower
Mainland Dairy Products Board [1938] A.C. 708, at p. 722. It is interesting to
compare Manson J.’s attempt [1937] 2 W.W.R. 401, esp. 416-421 to extend
(1937) 2
In re Initiative and Referendum Act. C.f. Credit Foncier v. Ross
W.W.R. 353, 357-8. See also Re Land Registry Act and City of Vancouver (1956)
5 D.L.R. (2d) 512; A.-G. N.S. v. A.-G. Can. and Lord Nelson Hotel Co. [19511
S.C.R. 31.
41 [19193 A.C. 935 at p. 945.
No. 4]
CONSTITUENT AUTHORITY
to entrust
Legislature of Ontario was held entitled
to a Board of
Commissioners authority to enact regulations relating to taverns; but it
does not follow that it can create and endow with its own capacity a new
legislative power not created by the Act to which it owes its own existence.
Their Lordships do no more than call attention to the gravity of the
constitutional questions which -thus arise.’
The judges of the Manitoba Court of Appeal were not, as we
shall see, so reticent; and, with the exception of Cameron J.A., all
the judges who rendered opinions found this another ground of ultra
vires.
For obvious reasons, discussion circled around the proper applica-
tion of Hodge v. The Queen 4 2 which their Lordships gave the most
anxious consideration. Could the delegation in that case cover a situa-
tion like the present, and, if not, could the remarks about provincial
legislative sovereignty justify an extension of the principle there
laid down, or influence the court in its interpretation of the breadth
of the provincial constitutional amendment power? The judges ob-
viously felt bound to approach the Hodge decision virtually as
revealed truth, weighing every dictum found in it as if it were a
provision in an Act of Parliament, and offering explanations in tones
most cautious and deferential 4 3
It
is clear from the judgments in the Court of Appeal that all
those who delivered opinions considered –
and in this they were
in accord with the Privy Council –
that the Initiative and Referen-
dum Act did not purport so much to effeot a delegation to a subordi-
nate as to effect a vesting of equal legislative power in a co-ordinate
authority.4
42 (1883-4) 9 App. Cas. 117.
43 See Howell C.J.M. (1916) 27 Man. R. 1 at p. 2 ff.; at p. 8; and Richards
J.A. at p. 10 ff.
44 Per Howell C.J.M. (1916) 27 Man. R. 1 at p. 6: ‘If the proposed Act is
within the powers of the Legislature, then all powers of legislation could be
taken from the Legislative Assembly and given to the democracy…’
Richards J.A. distinguished the power to delegate (at p. 10): ‘In Canada
we have cases, such as Hedge v. The Queen, which declare that Provincial
Legislatures may, as to minor details, delegate limited powers of legislation
to bodies created by, or by authority of, those Legislatures, or may permit
localities to decide whether or not certain Acts, such as those regulating the
sale of intoxicating liquors, shall be in force in such localities.
‘Those powers so given, are, however, merely in the nature of policing
regulations. They do not interfere with or purport to cause others to take
the place of, or perform the functions of, the legislature.’
He characterized
thus, by contrast:
(p. 13)
‘What is the limit of the power of amendment so [s. 92(1)] given ? If
it
permits the passing of the Act in question it must go so far as to allow the
the referendal processes
McGILL LAW JOURNAL
[Vol. 12
But, unlike the Privy Council, they were not so reticent in pro-
nouncing upon the constitutional validity of such a scheme. Thus,
Howell C.J.M. 45 accepted this ground of ultra vires:
Legislature to create a completely new constitution based not on the sovereignty
of Parliament but on that of the people, and which can control and render
nugatory the acts of the Legislature itself.’ [Emphasis added.]
Or, again, (at p. 14), he said:
‘…the amendments that may be made
under s.-s.
(1) must necessarily be such that they do not purport to destroy
or take away or give to others the lawmaking powers of the Legislature.’
[Emphasis added.]
The above-mentioned viewpoint emerges very clearly from the remarks
of Perdue J.A., (at. p. 23): ‘The procedure for enacting laws provided by the
new Act would, where
invoked, override or have equal force with
the system of legislation provided by the constitution.’ [Emphasis added.]
it was
Again, distinguishing Hodge v. Th- Queen (at p. 24): ‘It
is obvious that
the power of delegation referred to in the above is very different in principle
from that claimed in the present case. The proposed Act has for its object
the creation of a new legislative power which will initiate and pass legislation
which hitherto the Legislature alone could enact. This is not a delegation
of authority for the purpose of making by-laws or rules to aid in carrying an
enactment into effective operation. It is an effort to endow another body with the
same power of making laws that the Legislature itself possesses. [Emphasis
added.]
Also, (at p. 25),
‘I cannot believe that No. 1 [of s. 92] was intended to
give to the Legislature the power of abolishing itself, or conferring on another
body its power of enacting laws, or the power of abolishing the Legislative
Assembly so that only the Lieutenant-Governor would be left.’
Again (at p. 26) ; ‘It cannot, in the guise of an amendment to the constitution,
completely abolish the representative chamber in the Legislature or suspend its
law-making functions or delegate them to another body of its own creation.’
Again, (at p. 26)
‘There are many authorities showing that an Act may
legally provide that the time and manner of its taking effect may depend upon
a vote of electors, or a proclamation of the government… This is not a delega-
tion of the powers of legislation. By the Act now in question, even where the
Legislature should act on the petition under ssction 4 and itself pass the proposed
law, it would be bound to do so without any change that would alter the meaning
of such proposed law. In this way the Legislature would tie its own hands in
respect of any matter which the electors, or the designated percentage of them,
appropriated as a subject for legislation. This, it appears to me, would be an
abdication by the Legislature of its legislative powers, rather than a mere
delegation of them.’
And Cameron J.A., though not finding it objectionable on that account,
it similarly (at p. 35) : ‘Can the Legislature create within the
characterized
Province a new Legislature or law enacting body not already created or authorized
by the British North America Act? That is no doubt the intention of the Act
before us. In certain matters it is intended that laws should be enacted not by
the Legislature but by the general body of the electors. It does not purport to
abolish the Legislature. But it does purport to create a method of enacting laws
without the approval of the Legislature.’ [Emphasis added.]
45 (1916) 27 Man. R. 1 at p. 7.
No. 4]
CONSTITUENT AUTHORITY
‘The law-making power, is by section 92, vested in the Legislature, and that
is reiterated in section 91. The proposed Act provides that any person may
draw a bill and get a petition signed by at least eight per cent. of the
electors supporting it and may force that bill to an election and, if carried
on a vote of the electors, it will become law, even against the will of the
Legislative Assembly. I cannot think that such a proceeding is the Act of
a Legislature within the meaning of section 92. I feel safe in stating that
no person in the Imperial House, and none of the statesmen in Canada who
advocated the legislation, ever intended that power should be given to Canada
or the Provinces to enact laws otherwise than through or by a body of men
who were in some way the representatives of the people, and with whom
the representative of the Crown could meet and discuss matters requiring
legislation and thus consider his assent thereto in the King’s name.’
and so did Richards J.A. who said inter alia :46
‘The section does not say that the Legislature or any body it may substitute
for itself, whether such body substituted is or is not a Legiilature, may
make laws, & c. It says that “the Legislature may exclusively make laws”,
& c., for each of these 16 different classes of subjects.’ … ‘Our legislature
consists of the Lieutenant-Governor and the Legislative Assembly. To sub-
stitute the popular vote for that of the Legislative Assembly would leave us
without a Legislature.’
Perdue J.A. was of like opinion :47
[T]he Act sufficiently shows that the Legislature provided for each
‘…
Province is the only provincial law-making authority to which legislative
power has been assigned over the subjects mentioned in section 92. I think one
may safely assert that neither the framers of The British North America Act
nor the Imperial Parliament that passed it ever contemplated the creation
by the Legislature of a new legislative body such as that sought to be
created by the “Initiative and Referendum Act”, to which body the Legis-
lature would delegate its powers of legislation, or with which it would share
them.’
‘From other portions of the Act dealing with the constitution of the provinces
it is abundantly clear that the law making power in each province was
entrusted to a Legislature which must consist of a Lieutenant-Governor and
a Legislative Assembly at least, whether there is a Legislative Council
or not.’
‘But there must be -a Legislature and the laws must be enacted by a Legis-
lature. It cannot, in the guise of an amendment to the constitution, completely
abolish the representative chamber in the Legislature or suspend its law-
making functions or delegate them to another body of its own creation.’
Cameron J.A., on the contrary, expressed the view 48 that:
‘it would appear that the Legislature can do as it sees fit in delegating or
transferring the law making power with the exception stated in the section
[i.e., the office of the Lieutenant-Governor].’
because 49
46Ibid., p. 14 and p. 15.
47Ibid., at pp. 21, 23 and 26 respectively.
48Ibid., p. 36.
49Ibid., p. 37.
McGILL LAW JOURNAL
[Vol. 12
‘The wording of sub-section one being apparently clear and explicit, why
should it be assumed that the Provincial constitution, if and when and as
amended by the Legislature, must still conform to the general constitutional
provisions of the British North America Act, or to the general scheme of
parliamentary or representative institutions existing in Great Britain at
the time of its passage. I confess I see great difficulty in answering in
favour of such assumption.’
but nevertheless at last reserved his opinion thereon, as 10
‘it does seem that they can be regarded as largely speculative and that the
questions here submitted may be answered without reference to them’
and it sufficed to find interference with the office of Lieutenant-
Governor.
6) Primary and Delegated Legislative Power
If it be permissible to provincial legislatures to vest lawmaking
powers by “delegation” in a “subordinate”, even on terms under which
the Lieutenant-Governor’s concurrence is not required for exercise
of the delegated powers, and even though the delegate be in no sense
more a “Legislature within the meaning of the B.N.A. Act” than are
the electors, we are bound to ask ourselves what is the precise
difference between a principal exercising primary power and a sub-
ordinate exercising delegated authority, for that is the distinction
suggested by the Privy Council and made by a majority of the Court
of Appeal for Manitoba. Unless we are to say that -the body of electors
are less capable of receiving a delegation than anyone else –
a
proposition for which there seems little to be said, especially if
municipal electors can receive such delegations –
the grounds on
which the Initiative and Referendum Act must be impugned must be
based on the sole grounid that The electors had been given primary
legislative power as principals rather than subordinate legislative
power as delegates, thus raising -the objections that they purported
to be a Legislature-without-Lieutenant-Governor and a body-not-
meeting-the-test-of-a-legislature-under-section-92.
The difference between primary and delegated legislative power
is not at all an easy one. In a rough way, it may be said that a delegate
may not alter the terms of his delegation, which may always be re-
voked. In some sense the analogy is one of private-law agency, and
the metaphor one of hierarchy. Yet the unreality of the hierarchical
notion becomes apparent on closer examination, when it is realized
that every exercise of legislative power (not to mention other power)
has constitutional consequences, which differ only in being more or
less obvious or obscure, more or less proximate or remote. The merest
50 Ibid., p. 37.
N.4] ‘
CONSTITUENT AUTHORITY
or indeed administrative or judicial –
delegate, seemingly at the bottom of the heap, can, by his legislative
acts, produce consequences
–
with legal force and effect, determining who may exercise lawmaking
power, and the manner in which they may validly exercise it. What
change in private law does not, directly or remotely, affect the sol-
vency of members in a legislative assembly, and therefore their quali-
to vary
fications as such? More obviously, a board empowered
electoral boundaries by its acts strips of legislative power electors
and representatives who otherwise would wield it, and it does so
irrevocably, at latest, once by dissolution of the house or otherwise
the opportunity to undo the Board’s work is lost: for now only
those who newly wield power can restore the old order. Who of those
who march under the maxim that “Parliament cannot bind itself”
can doubt that the great Reform Act irrevocably put the lawmaking
power into new hands –
redefined the lawmaking process?
A delegation would seem characterized by restricted scope of
authority and restricted power to turn against the authority which
made the delegation –
to destroy the latter, to alter it, to take away
its power to revoke. But a striking illustration that such differences
are primarily quantitative rather than qualitative will be found in
the fact that, in 1939, a member of the U.K. House of Commons, one
Captain Ramsay, was placed in preventive detention by the Home
Secretary,5’ exercising the authority conferred on him by Regulation
18B of the Defence (General) Regulations, made by the Queen in
Council under the Emergency Powers (Defence) Act, 1939. Here a
‘delegate’ acted with the most drastic effect on the constitution of
the ‘principal’, Parliament.
It is not therefore an easy matter to say at what point, or why,
powers conferred by a provincial legislature transcend mere del-
egation, and become something which the Courts suggest is somehow
of a different order altogether. Yet, unless the decision In Re Initiative
and Referendum Act is simply a holding that electors cannot take a del-
egation, it turns on the distinction just considered; and the decision
cannot be explained away on any such basis as inability of electors to
take a delegation: first, because this was never suggested; second,
precisely because the Courts denied that the situation was one of
delegation at all, insisting instead that the scheme intended a true
legislature, but without including -the Crown, or without conforming
to the B.N.A. Act, or both.
51 (1939-40) H.C. Pap. 164.
McGILL LAW JOURNAL
(Vol. 12
7) The Holding in Re Initiative and Referendum Act 5 2
What, then, did the case decide?
(1.)
It is submitted that it is authority, as well in the Privy
Council as in the Manitoba Court of Appeal, for the proposition that
a provincial legislature cannot vest (primary) powers of legislation
in any authority, including the electors, without providing for presen-
tation to the Lieutenant-Governor for Royal Assent; though, under
Hodge V. The Queen53 a body may, as delegate, be given the exercise
(by itself and without need of Lieutenant-Governor’s concurrence)
of subordinate or delegated powers.
(2.) The same is true as regards vesting a power to enact re-
pealing laws; but the case is not authority against the power of a
provincial legislature to impose the consent of another body (whether
another assembly or the body of electors) either as a condition
precedent or as a condition subsequent to the enactment of some or
all classes of laws. (Such a case, it would appear, is still governed by
A.-G. N.S.W. v. Trethowan).5
(3.) There is the authority of the Manitoba Court of Appeal, by
a majority, but not of the Privy Council, for the proposition that,
even if the position of the Lieutenant-Governor be respected, a pro-
vincial legislature cannot vest in certain bodies, of which the electorate
is an instance, primary powers of legislation, because such bodies
will not be “Legislatures” within the meaning of the B.N.A. Act:
the term “Legislature” is on this view not wide enough to embrace
every manner of lawmaking authority, but such only as possess some
as yet unsettled set of determining characteristics, actual or ideal, of
English parliamentary government.
(4.) There is an obiter dictum of the Privy Council, not quite
approving proposition (3), but declaring that the contrary does not
flow from Hodge v. The Queen.
(5.) There seems to be no holding that the electors are less
capable than anyone else of taking a true delegation.
52 [1919] A.C. 935; on appeal from (1916) 27 Man. R. 1.
53 (1883-4) 9 App. Cas. 117.
54 [1932] A.C. 526.
No. 4]
CONSTITUENT AUTHORITY
IV. The Consultative Referendum and
the Provincial Constitutions
1) The Direct Legislation Act of Alberta
R. V. Nat Bell Liquors Ltd.55 raised the question of the constitution-
al effect of “An Act to provide for the Initiative or Approval of
Legislation by the Electors”, which received Royal Assent in Alberta
on March 25, 1913, with the short title “The Direct Legislation
Act”.50 This statute did not empower the electors of their own motion
to enact or nullify laws, but gave voters in more diluted form both
a negative and positive voice. But the operation of statutes passed
in the ordinary way might, under section 3, be postponed –
if the
Legislature so provided –
until the ninetieth day after the close of
the session; whereupon, by section 4, ten per cent of the electors
satisfying certain conditions might pray for its reference to a vote
of the electors; with the result that the operation of the statute
would by s. 5 be further deferred to turn on the result of the vote,
which, if favourable, would allow the statute to be proc.aimed in
force under s. 23. Section 6 provided a limited initiative, allowing
twenty per cent of the electors meeting certain conditions to petition
the Legislature to pass a proposed Act, which, if not enacted at the
session to which it was presented, would be submitted under section 7
to the voters; and if approved by them, section 24 provided that:
‘the said proposed statute shall be enacted by the Legislature at its next
session without amendment, save such amendments as may be certified to
by the Speaker as not constituting a substantial alteration therein, or as
not changing the meaning, effect or intent thereof, and notwithstanding the
provisions of section 3 hereof shall come into force upon receiving the royal
assent. .. ‘
The Act thus envisaged that the Legislature might of its own
volition when it saw fit subject the operation of particular statutes
to the will of the electors, and provided the appropriate machinery
for consultation. This aspect of the act did not come before the courts,
51; [1922] 2 A.C. 128; (1921) 16 Alta. L. R. 149.
56 Stat. Alta. 1913, 1st sess., c. 3. Amended by The Statute Law (Amendment)
Act, 1913 (Second Session), S. A. 1913 (2) c. 2, s. 25 [October 25, 1913]. Further
amended by The Equal Suffrage Statutory Law Amendment Act, S. A. 1916, c. 5,
s. 2(7) [April 19, 1916]. As revised and amended, it appeared in R.S.A. 1922,
c. 6. Amended by An Act to amend The Direct Legislation Act, S. A. 1923, c. 7
[April 21, 1923]. Amended by The Direct Legislation Act Amendment, 1931, S.A.
1931, c. 8 [March 28, 1931]. As revised and amended, appearing as R.S.A. 1942,
c. 7. R.S.A. 1955, c. 84. Repealed by An Act to repeal Certain Acts of the Legis-
lature, S. A. 1958, c. 72 [April 14, 1958].
McGILL LAW JOURNAL
[Vol. 12
but it would seem valid conditional legislation, and drew no adverse
comment when the Privy Council discussed the Act.
The Alberta statute is obviously much weaker than the Manitoba
legislation for, unlike the latter, the former (1.)
leaves the Alberta
Legislature free to decide in each case whether it will postpone the
operation of a statute under section 3 to allow for consultation; and
(2.), in particular, allows an act repealing the Direct Legislation Act
to be immediately operative, without any opportunity for the voters
to force it before them as, under the Manitoba statute, the voters
could do unless two-thirds of the Assembly could be found to vote
the urgency preamble which (under s. 12 of the Initiative and Ref-
erendum Act) would in Manitoba be necessary to bring into imme-
diate force (inter alia) an Act to repeal the Initiative and Referendum
Act.
Accordingly, conditional legislation of this sort, even combined
with an opportunity to consult the voters, seems permissible
-7 – and
no less so even if it be thought impermissible to give the voters a
negative entrenched by a negative on any attempt to take it away.
As regards an Initiative, -the Alberta statute, though it did not
empower the electors to bring their will to law directly, did by sections
6 and 7 allow a requisite number of voters to petition the Legislature
to enact a law which they proposed, and, in the event of its failure
to comply, have the matter put to the electorate. Approval by the
electorate did not make the proposal law, but section 24 seemed to
make it a matter of statutory duty for the “Legislature” s then to
pass the measure without substantial alteration, which, on royal
assent, would become law.
Whether such a statutory duty, if mandatory rather than directory
merely, could be enforceable, and if so how –
and, indeed, whether
imposing such a legal duty, even if merely in abstracto, would not
in fact amount to making -the electors’ will sufficient to legislation –
was obviously not considered by -the Board in the Nat Bell case;
Viscount Sumner speaks as if there were a statutory duty. To find
that the Direct Legislation Act imposes a statutory duty binding upon
the Legislature, must immediately imperil the Act; for, the Lieutenant-
57 Russell v. The Queen (1882) 7 App. Cas. 829. In R. v. Walsh (1903) 5 O.L.R.
527, a Divisional Court of the King’s Bench Division (Falconbridge C.J.K.B.,
Street and Britton JJ.) held intrav ires the conditioning of the operation of The
Liquor Act, 1902, 2 Edw. VII c. 33 (Ont.), by s. 2 thereof, upon a province-
wide referendum. Similarly Rex V. Carlisle (1903) 6 O.L.R. 718 (C.A.: Moss
C.J.O., Osler, Maclennan, Garrow and Maclaren JJ. A.).
5sPresumably meaning the “Assembly”. The statutory duty obviously could
not validly include the Lieutenant-Governor.
No. 4]
CONSTITUENT AUTHORITY
Governor being part of the Legislature, the Act would thus purport
to deprive the Lieutenant-Governor of his right to grant or refuse
assent. Avoiding this hazard, by restricting the construction or
operation of the word “Legislature” to the Assembly alone, still, a
statutory duty even on the Assembly alone would make the will of
the voters sufficient, with the assent of the Crown. It would seem
immaterial whether recourse to the Courts must be had to enforce per-
formance, for the Legislature, it must be assumed, or the Assembly,
would consider itself bound to follow its statutory duty. And, if the
voters, with the concurrence of the Crown, are by the Direct Legis-
lation Act purportedly empowered to bring a measure to law, even
by agent, that, of course, raises exactly the question of validity re-
served by the Privy Council, and decided –
by the
Manitoba Court of Appeal In re the Initiative and Referendum Act.
But looking at it as a whole, it seems absurd to take the Privy
Council decision, 59 sustaining certain liquor legislation passed by- the
Alberta Legislature in pursuance of the popular will expressed under
The Direct Legislation Act, as being a deliberate decision on the
question earlier reserved by the Privy Council. There is no suggestion
that their Lordships addressed their minds to the consideration of
this last issue. Nor can we even say that the question –
i.e., whether
voters plus Crown could be a “Legislature” within the B.N.A. Act –
was even implicity decided here, sub silentio. For the remarks of
Lord Sumner, assuming though they did a statutory duty on the part
of the Legislature to pass the impugned liquor act: 60
adversely –
‘it Is -none the less a statute because it was the statutory duty of the Legis-
lature to pass it,’
would be even more true were the supposed statutory duty nonexistent
or unenforceable. The liquor legislation was attacked, said Lord
Sumner, on the ground that it had not been made by the provincial
Legislature which “exclusively” had power under the B.N.A. Act,
because it had been made partly also by the people of Alberta.
Indeed the part played in the matter by the Legislature was practic-
ally only formal.’ His Lordship continued:
‘It was further argued that the Direct Legislation Act was itself ulta vires
on the ground that it altered the scheme of legislation laid down for Canada
by the British North America Act, a scheme which vests the Provincial
legislative power in a Legislature, consisting of His Majesty, as represented
by the Lieutenant Governor, and of two Houses, or in some Provinces one
House, and introduced into it a further and dominant legislative power in
the shape of a direct popular vote taken upon a Bill, which the statutory
legislature must pass, whether it really assents to it or not.’
59 [1922] 2 A.C. 128.
60 [1922] 2 A.C. 128 at p. 134.
McGILL LAW JOURNAL
[Vol. 12
His Lordship answered these contentions thus:
‘On
‘the first point it is clear that the word “exclusively” in s. 92 of the
British North America Act means exclusively of any other Legislature, and
not exclusively of any other volition than that of the Provincial Legislature
itself. A law is made by the Provincial Legislature when it has been passed
in accordance with the regular procedure of the House or Houses, and has
received royal assent duly signified by the Lieutenant-Governor on behalf of
His Majesty. It is impossible to say that it was not the Act of the Legis-
lature…’
adding, rather tartly,
to prevent
‘If the deference to the will of -the people, which is involved in adopting
without material alteration a measure of which the people has approved,
were held
it from being a competent Act, it would seem
to follow that the Legislature would only be truly competent to legislate
either in defiance of the popular will or on subjects upon which the people
is either wholly ignorant or wholly indifferent. If the distinction lies in the
fact that the will of the people has been ascertained under an Act which
enables a simple project of law to be voted on in the form of a Bill, instead
of under an Act which, by regulating general elections, enables numerous
measures to be recommended simultaneously to the electors, it would appear
that the Legislature is competent to vote as its members may be pledged to
vote individually, and in accordance with what is called an electoral “man-
date”, but is incompetent to vote in accordance with the people’s wishes
expressed in any other form.’
It is precisely in such words as ‘deference’, and in the view express-
ed that the Direct Legislation Act did not formally interfere with the
functioning of the Legislature, that it becomes plain that the Board
was not proceeding on the basis that a statutory duty existed, or at
least not a mandatory one; for a true statutory duty would in law
constitute a formal interference with the operation of the Legisla-
ture, and wholly exclude the idea of mere ‘deference’ :’;
‘Unless the Direct Legislation Act can be shown, as it has not been shown on
this occasion, to interfere in some way formally with the discharge of the
functions of the Legislature and its component parts, the Liquor Act, 1916,
being in truth an Act duly passed by the Legislature of Alberta and no
other, is one which must be enforced, unless its scope and provisions can
themselves be shown to be ultra vires. As for the Direct Legislation Act,
its competency is not directly raised in the present appeal. What was done
in this case was done under the Liquor Act, and if that Act ‘is sustained
there ds no utility in going behind it to decide the validity of another Act,
which merely conditioned the occasion on which the Liquor Act was duly
passed.’
2) The Holding in the Nat Bell Case 62
At most the Privy Council decision here holds, it is submitted,
that an Act passed by a provincial legislature is not invalid by reason
61 [1922] 2 A.C. 128 at p. 135.
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CONSTITUENT AUTHORITY
of its ‘deference’ to the will of the electors in enacting, even in pur-
suance of statutory direction, a law approved by the electors on
referendum: provided that there is no formal interference with the
discharge of the functions of the Legislature or its component parts.
The Privy Council even seems unsure as to whether it is ruling on
the validity of the Direct Legislation Act, though such a ruling
would indeed seem to be involved to the extent that they are holding
that the Direct Legislation Act does not have such an operation as
would vitiate the Liquor Act passed in pursuance of it. But that, of
course, is perfectly consistent with -the view that the Direct Legisla-
for whatever reason – did not or could not validly make
tion Act –
the Assembly the puppet of the voters in the juridical sense.
V. Problems Suggested by the American Experience and the
Canadian and Australian Cases
Since judicial review of legislation in the United States is con-
sidered to have been definitively established on the basis of a case
which is, if it is anything, a plea that the law must be made in
62 In the Privy Council: [1922] 2 A.C. 128. In the Appellate Division of the
Supreme Court of Alberta (Harvey C.J., Stuart and Beck JJ.): (1921) 16 Alta.
L.R. 149, 173 one of Beck J.’s grounds of decision against the validity of ‘the
in
Liquor Act was the operation of the Direct Legislation Act, passage
pursuance of which, he thought, tended to show that the Act in substance
dealt with public morals and criminal law. Referring to his remarks in Gold
Seal Ltd. v. Dominion Express Co. (1920) 15 Alta. L. R. 377, at 406-7, he said:
‘It was not my intention to hold that The Liquor Act was ultra vires merely
because it had been passed in pursuance of The Direct Legislation Act, 1913,
ch. 3, which itself is, in my opinion, unconstitutional…’ See the reasons of
Hyndman J. who delivered the judgment a quo, and whose reasons were adopted
(1921) 16 Alta. L. R. at p. 158. The
by Harvey C.J., dissenting, on appeal:
opinion of Hyndman J. [1921] I W.W.R. 136, cited on the material point at
(1921) 16 Alta. L. R. at p. 158, disagreed with the contention that the law had
not been made exclusively by the provincial legislature. Distinguishing the Mani-
toba decision, his Lordship said: ‘It is clear that the ratio decidendi in that case
was the interference by the local Legislature with the office of Lieutenant-
Governor. The position in this province is entirely different. The functions of
the Lieutenant-Governor are not in any way affected. Although a vote is taken
… in Alberta under the provisions of the Referendum Act it is, in my opinion, a
plebiscite merely. Before such a proposed measure becomes law it must be pres-
ented and pass through the stages common to all other bills in
the properly
constituted Legislature and must finally receive the assent of the Lieutenant-
Governor. This Act having passed through all these necessary stages and for-
malities I do not think it is open to show that the legislators had abdicated their
functions or to inquire into the reasons why they voted for the measure and the
bill having received the Royal Assent, in my opinion, became validly enacted.’
McGILL LAW JOURNAL
[Vol. 12
accordance with the law, and not otherwise, 63 one may be forgiven
for thinking somewhat schizophrenic judges who hold, in effect, that
whilst the Constitution means what the Court says it means, it con-
tains whatever the Congress says it contains.
The cases 04 dealing with the U.S. constitutional amendment pro-
cess show considerable ambivalence towards the enforcement of legal
63 Marbury v. Madison (1803) 1 Cranch 137; 1 L. ed. 368.
64 In Hollingsworth V. Virginia (1798) 3 Dall. 378; 1 L. ed. 644, a decision
which one may observe preceded Marbury v. Madison, the validity of the Eleventh
Amendment (restricting the judicial power of the United States) was challenged
on the grounds that it had not been submitted to the President for his approval
before ratification. The Supreme Court unanimously held the amendment “consti-
tutionally adopted”. There seems to have been no suggestion that this question
was not one perfectly proper to consider and determine like other questions of law.
Since this decision the Supreme Court has had occasion to consider a great
variety of germane problems. In giving some of those most directly relevant, I
have made no attempt at being exhaustive.
In Ohio ex rel. Davis V. Hildebrant (1915) 21 U.S. 565, 60 L. ed. 1172, it was
held that where by the constitution of a state, legislative authority was vested not
only -in a general assembly, but in the people exercisable by referendum, popular
action could validly constitute legislative action within Art. 1, see. 4, of the
Constitution of the U.S., under which U.S. congressional and senatorial elections
are (subject to certain Congressional legislation) regulated “in each state by
the legislature thereof”.
In Hawke v. Smith (1919) 253 U.S. 221, 64 L. ed. 871, reversing 100 Ohio
St. 385; 126 N.E. 400, the Supreme Court held that the provisions of a state
constitution reserving to the people the exercise of the power to ratify Amend-
ments to the United States constitution, conflicted with Article V of that
legislation could not
Constitution, respecting Amendments, because popular
constitute a Legislature within the meaning of that Article.
This proposition was put without qualification even though, as the repre-
sentative legislature had ratified despite the purported provision of the state
constitution, and as the Eighteenth Amendment had been proclaimed with Ohio’s
ratification amongst the necessary number, the Supreme Court had only (if the
question was the validity of proceedings connected with the Eighteenth Amend-
ment) to consider whether the representative legislature’s ratification was valid;
not whether a popular ratification would have been invalid; especially in view
of doctrines of Congressional recognition of state authorities and later doctrines
of Congressional supervision of the amending process.
But the litigation had challenged the expenditure of public monies for a
referendum, This expenditure was upheld below, and the judgment below was
reversed by the Supreme Court. This goes therefore so far as to suggest perhaps
that even consultative referenda are illegitimate. Compare R. v. Nat Bell Liquors
Ltd. [1922] 2 A.C. 128 Supra p. 557 ff., especially the rather tart passage from
Lord Sumner’s remarks, quoted above p. 560.
In Rhode Island v. Palmer (“National Prohibition Cases”)
(1920) 253 U.S.
350, 64 L. ed. 946, the two-thirds vote of each House required to propose a constitu-
tional amendment was construed by the Supreme Court to mean two-thirds of
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CONSTITUENT AUTHORITY
continuity –
of lawmaking according to law – which is, perhaps,
attributable to (1) “federal” considerations extending to a right in
the states to control their own legal orders or continuity, or breach
or overthrow them [the problem is that the state legislatures produce
in an infinity of ways juridical consequences not only in their own
law but in the law of the United States; particularly, in the ratifica-
those present, assuming however a quorum. Referendum provisions of state
constitutions could not be applied in ratification or rejection of amendments.
In Dillon v. Gloss (1921) 256 U.S. 368; 65 L. ed. 994 the Court per Van
Devanter J. held Article V of the Constitution to imply that amendments must
be ratified within some reasonable time after their proposal; that Congress
might in proposing an amendment fix a reasonable time; and that the seven
years fixed by Congress in the resolution proposing the Eighteenth amendment
was reasonable.
“First, proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural -inference being that they are
not to be widely separated in time. Secondly, it is only when there is deemed
to be a necessity therefor that amendments are to be proposed, the reasonable
implication being that when proposed they are to be considered and disposed of
presently. Thirdly, as ratification is but the expression of the approbation of
the people and is to be effective when had in three fourths of the States, there
is a fair implication that it must be sufficiently contemporaneous in that number
of states to reflect the will of the people in all sections at relatively the same
period, which, of course, ratification scattered through a long series of years
would not do.” 256 U.S. 368, 374.
Judicial notice would be taken of ratification, and an amendment had effect
from the date of consummation of ratification, and not that of its proclamation
[by the Secretary of State under the then rule] which latter date was immaterial.
In Leser v. Garnett (1922) 258 U.S. 130, 66 L. ed. 505, the Court held the
function of ratification by state legislatures of amendments to the United States
Constitution to be a federal function, transcending any limitations sought to be
imposed by a state, and the Nineteenth Amendment to be duly ratified and part
of the Constitution. It had been contended that the ratifying .resolutions of Ten-
nessee and West Virginia were “inoperative, because adopted in violation, of the
rules of legislative procedure prevailing in the -respective states… As the legisla-
tures of Tennessee and of West Virginia had Dower to adopt the resolutions of
ratification, official notice -to the Secretary, duly authenticated, that they had
done so, was conclusive upon him, and, being certified to by his procTamation, is
conclusive upon the courts.”
It may be observed that the earlier decisions all presupposed that the
requirements of Article V of the Constitution were subject to construction and
enforcement by the courts. From the time of this judgment
(delivered by
Brandeis J.) a conflict between this view and a contrary trend, is discernible.
It is submitted that the decision begs the question as to the enforcement of
rules constitutive of the state legislature, and determinative of whether action
may be properly imputed to the state legislature in question. Insofar as the
U.S. constitution invests the state legislatures with a federal function, it
is
vesting that function in complex legal structures, not in quasi-persons in respect
McGILL LAW JOURNAL
[Vol. 12
of whom all rules are “limitations”. And the attribution of conclusive “identifying”
or “certifying” power to a series of clerks or executive officers is not only
subversive of the legal system, but still does not avoid the problems of determining
the competence of the certifying authority. Public authorities are not identifiable
by having natural marks on their brows.
Coleman v. Miller (1939) 307 U.S. 433; 83 L. ed. 1385; in the court below
146 Kan. 390; 71 P. (2d) 518, arose out of events in the Kansas Legislature
in connection with the ratification of a constitutional amendment, proposed by
Congress in 1924, known as the Child Labour Amendment. The Kansas Legislature
had in 1925 adopted and communicated to the U.S. Secretary of State, a resolution
of rejection. In 1937 another resolution of ratification was introduced into the
Kansas Senate, which body being equally divided, the Lieutenant-Governor as
presiding officer cast a favourable vote. The Kansas House of Representatives
by majority later adopted the resolution.
The twenty senators opposed, joined by another and by three members of
the House of Representatives, sought mandamus in the Supreme Court of Kansas
to compel the Secretary of the Kansas Senate to change his endorsement on the
resolution to indicate failure of passage, and to restrain the officers of both
Houses from signing the resolution, and the Kansas Secretary of State from
authenticating it and delivering it to the Governor.
The grounds taken were that (i)
the Lieutenant-Governor had no casting
vote; (ii) the earlier Kansas refusal to ratify precluded subsequent ratification;
(iii) the proposed amendment was itself stale as not having been ratified within
a reasonable time after its proposal.
The Kansas Supreme Court held that the legislators were entitled to its
judgment upon their claims, but rejected them, and denied mandamus.
The U.S. Supreme Court (Hughes C.J., McReynolds, Butler, Stone, Roberts,
Black, Reed, Frankfurter, and Douglas JJ.) upheld its jurisdiction to review
on certiorari the decision of the Kansas Supreme Court, on the ground that the
questions were federal, arising under Article V of the Constitution, and that
the complaining Senators had a sufficient interest to maintain the proceedings,
namely, their interest in the effectiveness of their votes. “This is not a mere
intra-parliamentary controversy but the question relates to legislative action
deriving its force solely from the provisions of the Federal Constitution, and
the twenty senators were not only qualified to vote on the question of ratification,
but their votes, if the Lieutenant-Governor were excluded as not being part of
the legislature for that purpose, would have been decisive in defeating the rati–
fying resolution.” 307 U.S. 433, 441. As the State court had entertained and
decided these federal questions, the U.S. Supreme Court could review that
decision on that interest.
In an opinion of Justice Frankfurter (in which Roberts, Black and Douglas
JJ. joined), a minority denied that the petitioners had sufficient legal interest
to have locus standi in the U.S. Supreme Court.
The objections listed as (ii) and (iii) above “… [,in] no respect.., relate
to any secular interest that pertains to these Kansas legislators apart from
interests that belong to the entire commonalty of Kansas. The fact that these
legislators are part of the ratifying mechanism while the ordinary citizen of
Kansas is not, is wholly irrelevant to this issue. On this aspect of the case the
problem would be exactly the same if all but one legislator had voted for ratifica-
tion.” 307 U.S. 464; 83 L. ed. 1402.
N.4]
CONSTITUENT AUTHORITY
“Indeed the claim that the Amendment was dead or that it was no longer
open to Kansas to ratify, is not only not an interest which belongs uniquely to
these Kansas legislators; it is not even an interest spoial to Kansas. For it is
the common concern of every citizen of the United States whether the Amend-
ment is still alive, or whether Kansas could be included amongst the necessary
“three-fourths of the several States.” 307 U.S. 465.
“We can only adjudicate an issue as to which there is a claimant before us
who has a special, individualized stake in it. One who is merely the self-constituted
spokeman of a constitutional point of view cannot ask us to pass on it.” 307
U.S. 467.
Nor, in the minority view, did the petitioners have locus standi upon (i),
despite the analogy drawn to Ashby V. White, 2 Ld. Raym. 938; 92 E.R. 126;
3 Ld. Raym. 320; 92 E.R. 710, where an action in damages had been allowed
upon the infringement of a franchise. “The reasoning of Ashby v. White and
the practice which has followed it leave intra-parliamentary controversies to
parliaments and outside the scrutiny of law courts. The procedures for voting
in legislative assemblies – who are members, how and when they should vote,
what is the requisite numbers of votes for different phases of legislative activity,
what votes were cast and how they were counted –
surely are matters that not
merely concern political action but are of the very essence of political action…”
307 U.S. 469.
One may venture to observe that to allow the petitioners to found their
claim on grounds (ii) and (iii) would indeed be to allow them to sue for
determination rather of a question of law than of a legal right. If their con-
tentions be correct upon grounds (ii) and (iii), the consequence ought in principle
to be the nullity of the amendment if it depended on a Kansas ratification, or
else the nullity of the amendment altogether in case (iii); which could be raised
subsequently by persons whose rights might depend on the validity of the amend-
ment if and when it was purportedly in force. That the Court might be reluctant
to review the validity of a constitutional amendment even when the requisite
pecuniary interest was present, is of course another matter.
As regards locus standi upon (i), one would have thought that the U.S.
constitution, in incorporating the action of a state legislature as part of the
constitutional amending process, would incorporate
the whole of the state
machinery. It is hard to see at what point one is to refuse to incorporate part
of the machinery, or why. Whether the machinery under Kansas law be a
sergeant-at-arms to expel members disobeying the rules, or the interference
of the law courts, would seem to be all the same; the right of any person to
specific performance of any physical act or thing on the floor of the Kansas
legislature would seem to be in the first instance a matter of Kansas state law
respecting the legislature. And it is difficult to see why, if the Kansas state
legislature be incorporated as part of the legal machinery of the United States,
speaific performance of a proper record of legislative action enforced by the
courts, should be any less incorporated than specific performance of orderly
behaviour enforced by the sergeant-at-arms. And this, whether or not the sergeant
or the Kansas Supreme Court be supposed to be exercising federal functions:
even, indeed, if a state right to mandamus, become federal, were to be enforced
in federal court.
The decision upon the merits was itself rather inconclusive.
Upon question (i)
the right of the Lieutenant-Governor to a casting
the Court said: “Whether this contention presents a justiciable contro-
vote –
–
McGILL LAW JOURNAL
[Vol. 12
versy, or a question which is political in its nature and hence not justiciable,
is a question upon which the Court is equally divided and therefore the Court
expresses no opinion upon that point.” 307 U.S. 447; 83 L. ed. 1393.
As regards (ii) the Court said: “We think that in accordance with… historic
precedent the question of the efficacy of ratifications by state legislatures, in
the light of previous rejection or attempted withdrawal, should be regarded
as a political question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over the promulgation
of the adoption of the amendment.” Accordingly, on the “precise question as
now raised”, the Court should not “restrain the state officers from certifying
the ratification to the Secretary of State, because of an earlier rejection, and
thus prevent the question from coming before the political departments. We
find no basis in either Constitution or statute for such judicial action.” 307 U.S.
450; 83 L. ed. 1394.
These remarks prompt the following observations.
(1)
It is not easy to see how Congress’s “control” is consistent with notice
by the courts of the contents of the U.S. constitution, and with the courts’ giving
effect to it as -it stands on any given day, and particularly so since the prevailing
doctrine has been that the courts, and in particular the Supreme Court, will notice
ratifications and give effect to an amendment on the date of the last ratification.
Indeed, the very necessity of any proclamation is a matter of doubt, and it is
difficult to suppose that the high function of supervision has been conferred
upon an official called the Administrator of General Services, who has by 65
Stat. 710-11 s. 3; 1 U.S.C. 112, replaced the Secretary of State as proclaiming
officer. And compare Dillon v. Gloss, sapra.
(2) Assuming that only federal rights are involved, and the Supreme
Court jurisdiction established, it seems somewhat unnatural to separate the
question of the locus standi of petitioners from that of their right to the relief
sought. It is not easy to see why there is more than one question: viz., the specific
right, under the Constitution and laws of the United States or of the State,
to the relief sought.
(3) The reasons given by the Supreme Court seem to extend well beyond
merely holding that petitioners had no right to the relief claimed. Such a
holding with respect to grounds (ii) and (iii) would indeed amount to no
more than saying that a legislator has no right to restrain a purported
ratification on the ground alone that the purported ratification would be void,
whether void because of a previous rejection or void because the amendment
itself was dead. This is perfectly plausible, and indeed legislators are not
understood to have the right to apply to the courts in most jurisdictions, to
restrain the purported enactment of invalid legislation.
law which cannot be raised even when it
The Court went much beyond this in suggesting that illegality of ratification
is a ground of
is germane
to an, otherwise perfectly justiciable controversy before the courts. On ground (iii),
“the Congress in controlling -the promulgation -of the adoption of a constitutional
amendment has the final determination of the question whether by lapse of
time its proposal of the amendment had lost its vitality prior to the required
ratifications.” 307 U.S. 456; 83 L. ed. 1397. The passage similarly disposing
of ground (ii) has already been quoted above, on this page.
In short, not only is unlawful ratification not a ground of suit, it is not
a ground of law that can be raised in a suit.
No. 4]
CONSTITUENT AUTHORITY
567
(4) Even if the historical instance offered by the Court proves anything,
it is a trifle incongruous to see the Court offering that which Congress has
done in proof of its legitimacy.
As regards the length of time for ratification, question (iii),
the Court
said that it could not agree that in the absence of the fixing by Congress of a
limited time for ratification, the Court should fix one. “[T]he question of a
reasonable time in many cases would involve, as in this case it does involve,
an appraisal of a great variety of relevant conditions, political, social and
economic, which can hardly be said to be within the appropriate range of
evidence receivable in a court of justice and as to which it would be an
extravagant extension, of judiciaI authority to assert judicial notice as the basis
of deciding a controversy with respect to the validity of an amendment actually
ratified. On the other hand, these conditions are appropriate for the considera-
tion of the political departments…” 307 U.S. 453; 83 L. ed. 1396.
One can fully agree with the Court that (at 307 U.S. 454; 83 L. ed. 1397)
“In determining whether a question falls within that category [i.e. political and
not justiciable questions] the appropriateness under our system of government
of attributing finality to the action of the political departments and also the
lack of satisfactory criteria for a judicial determination are dominant considera-
tions” without coming to their conclusion
is not here
justiciable. The Court does not have to consider in every case what period is
reasonable, but merely to hold that a given period is impliedly fixed by the
constitution, even subject to Congressional variation. The common law, after
all, fixed arbitrary time periods.
that reasonableness
The concurring opinion of Black J., (for himself and Roberts, Frankfurter,
and Douglas JJ.) was even more radical in tone. They said, 307 U.S. 458-9,
83 L. ed. 1398, “To the extent that the Court’s opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and ratification of amend-
ments, we are unable to agree.” Thus they insisted that it was to Congress
to decide even whether ratification must be had within a reasonable time, and
not only what a reasonable time was. There was no “ultimate control over the
amending process in the courts”. “Undivided control of that process has been
given by the Article exclusively and completely to Congress. The process itself is
“political” in its entirety, from submission until an amendment becomes part
of the Constitution, and is not subject to judicial guidance, control or interference
at any point.” The Court should therefore express no views on the subject.
And as the legislative authority of the United States is exclusively confided
to Congress, the same reasoning no doubt excludes the courts from judicial
review of legislation !
Despite the need felt by four of the justices to express a separate concurrence,
it is not easy to see precisely wherein consists the difference between their
view and that of the Court. Both denied the justiciability of the question whether
previous rejection precluded subsequent ratification. The following remarks
are directed at both.
(1)
It does not follow, even from the most unrestricted right of Congress
to recognize or withdraw recognition from state governments, or to erect new
ones, that the existing governments and laws are of anything less than full
force and effect until so changed. Until so changed such governments and laws
are recognized by the constitution of the United States, and by the Courts,
McGILL LAW JOURNAL
[Vol. 12
tion of U.S. Constitutional amendments] ; (2) doctrines allowing the
political organs of the U.S. to decide conclusively who are the lawful
state governments – much as one government recognizes a foreign
government – Congress being left, in sum, to decide just how much
state illegality, discontinuity or revolution there is to be ;05 (3) inti-
for an infinity of purposes, including constitutional purposes, such as vested
rights, which will be protected even against Congress itself. The doctrines
respecting recognition and reconstruction of state governments do not therefore
preclude the Courts from recognizing those from time to time in existence, and
from insisting upon proper ratification in accordance with the laws for the
time being in force.
(2) A legislature is not a natural, but a juridical, phenomenon, a legal
structure. It is defined and created by law. The rules respecting casting votes
are as much a part of the structure of a legislature as are, for instance, the
rules which, in consequence of bicameralism, make the consent of a single house
insufficient.
(3)
If one is going to apply in a fair and honest manner the test of
“satisfactory criteria for judicial determination” as one of the conditions of
justiciability, it becomes perfectly plain that there is not the slightest difference
between the inherent suitability for judicial enforcement, of the ratification
(exhaustion of power by previous ratification or rejection; casting
process
votes; reasonable times; and any other matters), and the legislative processes
of municipalities on the other hand. The subject-matter of the two is the
same, and review of the latter is long known to the law. And can anyone doubt
that satisfactory criteria for the resolution of such disputes are a thousand
times easier to find than answers to such questions as, what is due process ?
what is equal protection ? what is just compensation ? what is freedom of
speech ? Surely these last, if any, are the non-justiciable questions, those for
which criteria are lacking, and which are inappropriate for judicial determination.
Those justices who with great facility consider themselves able to determine
what is justice, freedom, equality or reasonableness, but* balk at the matter of
the right to a casting vote, or exhaustion of power, would seem to have a
somewhat distorted sense of justiciability.
The doctrine of the political question makes much sense in, say, foreign
affairs; but, so far as the ‘inherent suitability’ of the amending process for
judicial review is concerned, the doctrine is a flimsy hoax. It boils down in the
end to a view that the question is one where there is ‘appropriateness of final
determination by political authorities’, or, in other words, that whatever persons
may be in de facto occupation of the houses of Congress are the appropriate
persons to determine finally what is the content of the United States Constitution.
But where, pray, have any such overwhelming reasons been offered as
would justify the courts in giving less than its ostensible operation to Article V
of the U.S. Constitution, namely, operation as a fully effective and enforceable
part of the supreme law of the United States?
65Luther v. Borden (1849) 7 Howard 1; 12 L. ed. 581 dealt with a revolution
in Rhode Island and conflicting claimants
to governmental authority. The
Supreme Court took the view that it was -to Congress
to recognize state
governments, and, under its authority, the President, who had in the present
instance made a choice which the Courts were bound to follow. Secondly, the
No 4]
CONSTITUENT AUTHORITY
mations or recollections of a revolutionary ideal suggesting that it
is not the business of the Courts to enforce compliance with the
constitutional amendment procedures as a condition of constitutional
change or in other words to uphold the existing legal order against
its overthrow: how this squares with the oath may well be a matter
of conjecture.
The American authorities must be approached with great caution,
in view of their very lax attitude towards the enforcement of legal
continuity, to be contrasted with the rigorous attitude generally
prevailing in modern times in the British Commonwealth, and in
the Dominions in particular.
In a number of respects, however, they suggest problems that
must be dealt with in Canada, under any Amendment Formula.
(1) The recognition of provincial authoriiies. Our Courts ought
not in principle to weaken in any respect their traditional attitude
insisting upon rigorous enforcement of legal continuity. Nor in gen-
eral can we think in terms of distinct federal and provincial legal
orders: they would seem in principle all one under the B.N.A. Acts:
so that there can in general be (it would seem) no question of a
federal power to recognize or refuse to recognize provincial public
authorities as if they were foreign states. This leaves open however
a prerogative of the Crown to repair legal discontinuities, as for
example to summon a new assembly where for some reason one had
U.S. Courts were bound to follow the decisions of the State Courts on such
matters.
One may observe that this latter proposition begs the question very likely
to be in issue: who are the legitimate state courts ? Moreover, the trouble
with the first proposition is that, given the impact of state laws and acts on the
composition of Congress and even on the Presidency, the composition of those
called upon to decide the question presupposes in many cases a decision
as to who are the public authorities of a state. The impact on the composition of
the federal courts is likely to be much more remote and delayed.
The advent of the Reapportionment Cases, holding as they do that there
are judicially-enforceable constitutional requirements for proper composition
of state legislatures, necessarily attenuates the hitherto-unrestricted prerogative
of the U.S. political authorities to recognize in whom they please the government
of a state. The new doctrine is however consistent with an unrestricted negative
on state authorities: Congress’s curse may still be fatal though its blessing may
not be the royal touch. But more than that, the Supreme Court not having
held void everything done by irregularly-constituted
legislatures, it follows
that irregularly-constituted
legislatures are considered legislatures none the
less, albeit subject to a legally enforceable duty to reform or be reformed.
Accordingly, Congress may still have an unrestricted power of recognition, whose
exercise may however entail the consequence that the state authorities recognized
may be liable to be reformed.
McGILL LAW JOURNAL
[Vol. 12
gone out of existence without there being otherwise valid machinery
to summon a new one. 6 The Crown, as fons et origo of all public
authority, and vested with all residuary power, could summon a new
assembly as it could before one had ever existed in a given territory.
Equally open is the impact of federal laws –
for example, criminal
laws, laws dealing with war, invasion or insurrection, or remedial
laws dealing with the peace, order and good government of Canada
generally –
on the constitution of provincial public authorities.
(2) Sufficiency of Provincial Consents. It is possible that Par-
liament might be held to have power to rule upon the sufficiency
of Provincial consents ,to constitutional amendments, the Formula
as drafted being silent on the subject. It would seem that Parliament
could at least empower the courts to give immediate and definitive
rulings on the subject, whether in virtue of its power with respect
to the Supreme Court as a general court of appeal for Canada, or
in virtue of its power to create courts for the better administration
of the laws of Canada, which latter class might comprehend the
B.N.A. Acts themselves and would seem to comprehend Acts of
Parliament effecting general constitutional amendments.
(3) The force of Provincial Consents. A problem arises as to
the power of the provincial legislature, having given consent, to
withdraw it ;67 or, having refused consent, to give it. Neglecting this
last as not being of particular difficulty, the first remains however
more serious, and the Formula. makes no provision for it. Would
the courts develop a contractual theory –
offer and acceptance,
with perhaps communication, constituting a binding consent, and
precluding withdrawal? What rules would the courts develop as to
the moment of the conclusion of the ‘contract’?
(4) The time for ratification. The Formula as drawn appears
to presuppose action by Parliament of Canada -followed by consent
of the Provincial legislatures. If, once given, a consent cannot be
withdrawn; or if, once given and answered with an acceptance of
some sort a consent cannot be withdrawn, a consent would seem
indefinitely good, with the result that consents given at widely
varying times might be accumulated over a considerable period.07
66See Simpson v. A.-G. N.Z. [1955] N.Z.L.R. 271.
67 The problems of withdrawal of ratification and of time limits were taken
up by Mr. Logan in the N.B. Legislative Assembly, Synoptic Debates, 1965,
I, p. 383 (March 16, 1965). Mr. Hatfield at p. 386 suggested: ‘It would have
been far better for the amending formula to provide that a resolution in the
federal house should start the amending process. Then the necessary number
of provinces could have enacted legislation regarding that resolution, and then
the federal government would pass an Act changing the constitution…’ His
No. 4]
CONSTITUENT AUTHORITY
Could a provincial statute giving a consent fix a time limit ?
Could Parliament in its proposal do so? Would any period be implied
if it did not? Could Parliament withdraw its proposal before any
consents had been given? After one had been given but not “ac-
cepted” ? After one had been given and “accepted”? Before a sufficient
number had been given? Before a sufficient number had been given
and accepted ?
(5) The meaning of “provincial legislature”. As it is likely that
the provinces have, as we have seen, the power to complicate their
legislative processes by referenda, special majorities, and so forth,
either generally or for limited purposes, the impact of such experi-
ments upon the general constitutional amendment processes estab-
lished by the Formula or its successors –
that is to say, processes.
requiring the participation of one or more provincial legislatures –
would raise the greatest difficulties and the most serious problems.
Even were we to adopt the American solution of an overriding power
of ratification in the representative legislatures, there would remain
the problem of special majorities, and so forth; our legal tradition
would tend towards an insistence that the law on such matters be
punctually respected.08
Under paragraph (1) above, we suggested that the Canadian legal
order must be considered a single one, and drew appropriate con-
clusions as regards federal powers of ‘recognizing’ the public author-
ities of the provinces. This problem has another important aspect.
Ought the laws of each province to be properly considered in every
other province as matter of law rather than matter of fact? The
present author’s view is that they should, a view which draws some
‘loses control over
complaint was that as it stood the federal government
whether or not that legislation will come into force’. See also Mr. Hatfield’s
doubts at p. 387; inter alia: ‘….there is no time limit for determining whether
any amendment becomes law or is rejected. The situation could become very
fluid, with the nation unsettled on a particular constitutional matter for years
on end, simply because, under certain provisions affecting the provinces, the
individual province could endorse or reverse its position at will over an
undetermined period of time. In other words, Mr. Speaker, no time limit in
which provinces must ratify amendments is specified.’ (p. 399).
08 See Mr. Sherwood, N.B. Leg. Ass. Deb., Synoptic Reports, 1965 (March 16),
I, 399: ‘No provision in the proposals prevents a province from frustrating the
process of amending the constitution by altering the majority of legislative
members required for expressing its consent to any constitutional amendment, i.e.,
raising the requirements above a simple majority.’
‘Indeed, any of the 10 provinces could adopt such a procedure, thereby
impeding future constitutional changes of vital national interest. Such action
could place the whole nation in a constitutional strait jacket.’
McGILL LAW JOURNAL
[Vol. 12
support from sections three and five of the B.N.A. Act which create
one dominion and divide it into provinces, but a thesis which, radical
as it may be thought, the author is not concerned to enlarge upon here.
The particular relevance of this question lies in the fact that a
“general” constitutional amendment wou’d be part of the law of all
provinces; all Courts would have to notice and apply it; and whether
-a purported amendment exists as part of the body of the law, is a
question of law. This question of law would turn upon the law of
the particular provinces whose consent would be in issue. It is im-
possible that this should be treated as a matter of fact determinable
differently from province to province and from court to court.
(6) Comprehensiveness of the most ‘difficult’ procedure. The
most general constitutional amendment power ought, in principle, to
be capable of doing anything whatsoever, on the basis that the greater
includes the less. One would assume, though by no means with com-
plete certainty, that whatever could under the Formula be done by
Parliament alone, or by Parliament and one or more legislatures, or
by a legislature alone, could also be done by Parliament and all the
legislatures conjointly. Otherwise, there can be no security in choosing,
in cases of doubt, the most ‘difficult’ procedure.
Such, in effect, was the view of the U.S. Supreme Court in the
“National Prohibition Cases”69 where the Eighteenth Amendment was
unsuccessfully challenged inter alia on the grounds that it was legis-
lation rather than constitutional amendment. One would think it
clear, for instance, that the U.K. Parliament, which now retains by
virtue of section 7 (1) of the Statute of Westminster, 1931, unrestrict-
ed power to dispose of legislative power in Canada, ipso facto retains
an unrestricted right to exercise that power.
But perhaps all such doubts and difficulties are unwarranted,
having as we do the assurances of the former Deputy-Minister of
Justice, Mr. Driedger, as draftsman, that the Formula is clear and
unambiguous.
69 (1920) 253 U.S. 350; 64 L. ed. 946.
