Re: Resolution to amend the Constitution

The Constitution Act, 1981 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.

No Act of Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law.

So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

This Act may be cited as the Canada Act.

It will be noticed that included in the terms of the address are the words "cause to be laid before the Parliament of the United Kingdom" and that they are reflected in Question 13 put before the Quebec Court of Appeal. The proposed Resolu­tion, as the terms of the address indicate, includes a statute which, in turn, has appended to it another statute providing for the patriation of the British North America Act (and a consequent change of name), with an amending procedure, and a Charter of Rights and Freedoms including a range of provisions (to be entrenched against legislative invasion) which it is unnecessary to enumerate. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick, expressed by their respective governments. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to go forward to Her

[Page 767]

Majesty with the appended statutes. Although there was general agreement on the desirability of patriation with an amending procedure, agreement could not be reached at conferences preceding the introduction of the proposed Resolution into the House of Commons, either on the constituents of such a procedure or on the formula to be embodied therein, or on the inclusion of a Charter of Rights.

The References to the respective courts of appeal were made and the hearings on the ques­tions asked were held before the proposed Resolu­tion was adopted. This fact underlays the unwill­ingness of judges in the Manitoba Court of Appeal to answer Question 1; changes might be made to the proposed Resolution in the course of debate and hence the assertion of prematurity.

The proposed Resolution, as adopted by the House of Commons on April 23, 1981 and by the Senate on April 24, 1981, achieved its final form (there were but a few amendments to the original proposal) almost on the eve of the hearings in this Court on the three appeals. Indeed, the opinions of the courts in all three References were given and certified before the ultimate adoption of the proposed Resolution. The result of its adoption by the Senate and by the House of Commons was to change the position of the Attorney General of Canada and of his two supporting interveners on the propriety of answering Question 1 in the Manitoba and Newfoundland References. He abandoned his initial contention that the question should not be answered.

III

The reference legislation under which the vari­ous questions were put to the three courts of appeal is in wide terms. The Manitoba legislation, An Act for Expediting the Decision of Constitu­tional and other Provincial Questions, R.S.M. 1970, c. C180 provides in s. 1 that the Lieutenant Governor in Council may refer to the Court of Queen's Bench or a judge thereof or to the Court of Appeal or a judge thereof for hearing or con­sideration "any matter which he thinks fit to refer". The Judicature Act, R.S.Nfld. 1970,

[Page 768] c. 187, s. 6, as amended, similarly provides for a reference by the Lieutenant Governor in Council to the Court of Appeal of "any matter which he thinks fit to refer". The Court of Appeal Refer­ence Act, R.S.Q. 1977, c. R-23, s. 1 authorizes the Government of Quebec to refer to the Court of Appeal for hearing and consideration "any ques­tion which it deems expedient". The scope of the authority in each case is wide enough to saddle the respective courts with the determination of ques­tions which may not be justiciable and there is no doubt that those courts, and this Court on appeal, have a discretion to refuse to answer such questions.

In the appeals now before this Court, it will have been noticed that three members of the Manitoba Court of Appeal refused to answer the first question before that Court as being tentative and premature or speculative and premature, and one of those judges, Hall J.A., refused to answer the second question as not being appropriate for judicial response. As has already been noted, the adoption of the proposed Resolution by the Senate and House of Commons changed the position of the Attorney General of Canada who conceded in this Court that it was answerable. There is no doubt in this Court that since the first question in the Manitoba and Newfoundland References and Question A in the Quebec Reference concern the construction of a document, especially one said to be in its final form, a justiciable issue is raised.

There is equally no doubt that the third question in those two References and Question B in the Quebec Reference raise justiciable issues and, clearly, they must be answered when they raise questions of law. The different formulation of Question B in the Quebec Reference, addressed to the authority of the federal Houses by statute, convention or otherwise to cause the Constitution to be amended (as proposed by the Resolution) without the consent of the provinces, combines

[Page 769] issues raised separately in Questions 2 and 3 in the other References.

IV

A summary of the views expressed in the courts below on the various questions before them may usefully be set out at this point.

In the Manitoba Court of Appeal, the Chief Justice, Hall and Matas JJ.A. declined to answer Question 1 because they felt the question was speculative and premature. O'Sullivan and Huband JJ.A. in dissent each answered Question 1 in the affirmative.

The Chief Justice, Matas and Huband JJ.A. answered Question 2 in the negative. The Chief Justice canvassed previous amendments, and on that basis decided that no convention of provincial consent existed. Huband J.A. concurred with the Chief Justice. Matas J.A. also concurred, and went on to point out the numerous undefined and uncertain aspects of the alleged convention. Hall J.A. declined to answer Question 2, being of the opinion that conventions were in the realm of politics and inappropriate for judicial consider­ation. O'Sullivan J.A. in dissent, declined to find any convention in precedent, but nonetheless stated that there was a "constitutional principle" requiring provincial consent.

Question 3 was answered in the negative by the Chief Justice, Hall and Matas B.A. Any "crys­tallization" of a convention was denied, as was the allegation of provincial "sovereignty". The Chief Justice analyzed and rejected the "compact theo­ry" as a source of legal obligation. He was further of the view that the "sovereignty" contended for by the provinces did not flow from the legislative supremacy granted by s. 92 of the British North America Act, but rather from something in the nature of an inherent right flowing from the fact of union. As such, it bore a direct relationship to the "compact theory", and was untenable. Hall J.A. unequivocally rejected the "compact theory" also, and denied that provincial supremacy within s. 92 created a legal requirement of provincial

[Page 770] consent to constitutional amendment. Matas J.A. noted that the Statute of Westminster, 1931 gave the provinces no new powers over amendment, and he also set out various limitations upon provincial legislative supremacy. O'Sullivan J.A. in dissent discussed and accepted the "compact theory", and further held that provincial sovereignty within s. 92 made it illegal for anyone to interfere with that sovereignty without provincial consent. Huband J.A. agreed, without expressing any opinion on the "compact theory". He was of the view that the Crown in these matters must rely on the advice of its provincial ministers. Further, he said that the United Kingdom Parliament is a "bare legislative trustee" for both the provinces and the federal Parliament.

The Court of Appeal of Newfoundland began with Question 3. It stressed the Statute of West­minster, 1931 and the discussions leading to its passage, found that the United Kingdom had renounced all legislative sovereignty over Canada, and acts as a "bare legislative trustee" of the provincial legislatures and the federal Parliament. The provinces, it said, were "autonomous com­munities", and the United Kingdom Parliament could not pass an amendment over their objec­tions.

As to Question 2, the Court analyzed the prece­dents and various positions of political figures. Stress was placed upon the 1965 federal White Paper on "The Amendment of the Constitution of Canada", and on the few occasions when provin­cial consent was obtained. The Court concluded that the direction of constitutional thinking has been towards the recognition of the right of the provinces to be consulted, and answered Question 2 in the affirmative.

Addressing Question 1 in broad terms, the Court concluded it clearly must be answered in the affirmative.

Question 4, particular to the Newfoundland Reference, concerned the exact effect of the proposed amending formula upon the Terms of Union on which Newfoundland entered Confederation.

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The Court gave a complex answer which has already been quoted.

The Quebec Court of Appeal was in general faced with the same questions that were before the other courts although phrased in a different way. All five members of the Court delivered reasons.

The Court unanimously answered Question A in the affirmative. Four members of the Court answered Question B in the affirmative, Bisson J.A. dissenting. As to Question B, the Chief Jus­tice of Quebec rejected any convention of provin­cial consent, and noted rather that any convention was in favour of the federal Parliament alone proceeding by joint resolution. The effect of the Statute of Westminster, 1931 was simply to leave the legal power to amend the Constitution in the United Kingdom Parliament.

Owen J.A. stated that although the Resolution was not specifically authorized by statute, the inherent power of Parliament justified the action. He rejected the "sovereignty", convention and "compact theory" arguments by reference to the reasons of Turgeon J.A. He noted that the provin­cial argument was weakened by the fact that Canada is not "the theoretical ideal confederation contemplated by textbook writers".

Turgeon J.A. affirmed that the power to amend before 1931 was in the United Kingdom Parlia­ment, and the Statute of Westminster, 1931 changed nothing. He listed the various fetters on provincial legislative supremacy, and noted that only the federal Parliament could act extra-territorially. After a lengthy analysis of previous amendments, he denied the existence of any con­vention of provincial consent. He also held the "compact theory" to be without historical or legal support.

Bélanger J.A. doubted whether a resolution, as a matter of internal Parliamentary procedure, was susceptible to review by a court. Nonetheless, he answered Question B in the affirmative, concurring with the Chief Justice and Turgeon J.A., and asking rhetorically whether it was the "essence of

[Page 772] a federal union" that it remain stagnant and inca­pable of evolution in the face of perhaps only one provincial objection.

Bisson J.A. dissented on Question B, and cha­racterized the Resolution as a "quasi-legislative" act. In upholding provincial "sovereignty", he stressed the conferences and resolutions which preceded Confederation and which were given "legislative sanction" in the British North Ameri­ca Act. Canada, he held, was a "quasi-federation". Although provincial sovereignty was limited in some ways, nonetheless, the federal Parliament could not proceed alone. This, he said, was borne out by past practice.

V

The reasons which now follow deal with Ques­tions 1 and 3 in the Manitoba and Newfoundland References, with Question 4 in the Newfoundland Reference, with Question A in the Quebec Refer­ence and with Question B in that Reference in its legal aspect. Question 2 in the Manitoba and Newfoundland References and Question B in the Quebec Reference in its comparable conventional aspect are dealt with in separate reasons.

VI

On the footing of the adopted Resolution, the Attorney General of Canada agrees that Question 1 in the Manitoba and Newfoundland References and Question A in the Quebec Reference should be answered in the affirmative as is asserted by the Attorneys General of Manitoba, Newfoundland and Quebec. Certainly, it is plain that under the terms of the enactments proposed in the Resolu­tion, the legislative powers of the provincial legis­latures would be affected, indeed, limited by the Charter of Rights and Freedoms. The limitations of the proposed Charter of Rights and Freedoms on legislative power apply both at the federal level and the provincial level. This does not, however, alter the fact that there is an intended suppression of provincial legislative power. Moreover, the enhancement of provincial legislative authority under some provisions of the proposed enactment,

[Page 773] as for example, in respect of resource control, including interprovincial export, (albeit subject to federal paramountcy) and in respect of taxing power does not alter the fact that there is an effect on existing federal-provincial relationships under these and other provisions of the draft statute intended for submission to enactment by the Par­liament of the United Kingdom.

The simple answer "yes" to Question 1 and Question A answers both of them sufficiently, even though Question 1 asks also "in what respect or respects" would federal-provincial relationships and provincial powers, rights or privileges be affected. Counsel were agreed that it would carry them and the Court into considerable exposition of detail if this aspect of Question 1 were to be explored; for the time being, an affirmative answer to the primary issue in the question would satisfy all concerned.

VlI

Coming now to Question 3 in the Manitoba and Newfoundland References and Part B (on its legal side) in the Quebec Reference. By reason of the use of the words "constitutionally required" in Question 3, the question imports both legal and conventional issues, and as the latter are dealt with in separate reasons, what follows is concerned only with the legal side of Question 3 in the Manitoba and Newfoundland References and Part B (on its legal side) in the Quebec Reference, which meets the submissions of all counsel on this issue.

There are two broad aspects to the matter under discussion which divide into a number of separate issues: (1) the authority of the two federal Houses to proceed by resolution where provincial powers and federal-provincial relationships are thereby affected and (2) the role or authority of the Parlia­ment of the United Kingdom to act on the Resolu­tion. The first point concerns the need of legal power to initiate the process in Canada; the second concerns legal power or want of it in the Parlia­ment of the United Kingdom to act on the Resolu­tion when it does not carry the consent of the provinces.

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The submission of the eight provinces which invites this Court to consider the position of the British Parliament is based on the Statute of Westminster, 1931 in its application to Canada. The submission is that the effect of the Statute is to qualify the authority of the British Parliament to act on the federal Resolution without previous provincial consent where provincial powers and interests are thereby affected, as they plainly are here. This issue will be examined later in these reasons.

Two observations are pertinent here. First, we have the anomaly that although Canada has international recognition as an independent, autono­mous and self-governing state, as, for example, a founding member of the United Nations, and through membership in other international asso­ciations of sovereign states, yet it suffers from an internal deficiency in the absence of legal power to alter or amend the essential distributive arrange­ments under which legal authority is exercised in the country, whether at the federal or provincial level. When a country has been in existence as an operating federal state for more than a century, the task of introducing a legal mechanism that will thereafter remove the anomaly undoubtedly raises a profound problem. Secondly, the authority of the British Parliament or its practices and conventions are not matters upon which this Court would presume to pronounce.

The proposition was advanced on behalf of the Attorney General of Manitoba that a convention may crystallize into law and that the requirement of provincial consent to the kind of resolution that we have here, although in origin political, has become a rule of law. (No firm position was taken on whether the consent must be that of the govern­ments or that of the legislatures.)

In our view, this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed

[Page 775] over a considerable period of time is inconsistent with its legal enforcement.

The attempted assimilation of the growth of a convention to the growth of the common law is misconceived. The latter is the product of judicial effort, based on justiciable issues which have attained legal formulation and are subject to modification and even reversal by the courts which gave them birth when acting within their role in the state in obedience to statutes or constitutional directives. No such parental role is played by the courts with respect to conventions.

It was urged before us that a host of cases have given legal force to conventions. This is an over-drawn proposition. One case in which direct recog­nition and enforcement of a convention was sought is Madzimbamuto v. Lardner-Burke and George[7]. There the Privy Council rejected the assertion that a convention formally recognized by the United Kingdom as established, namely, that it would not legislate for Southern Rhodesia on matters within the competence of the latter's legislature without its government's consent, could not be overridden by British legislation made applicable to Southern Rhodesia after the unilateral declaration of independence by the latter's government. Speaking for the Privy Council, Lord Reid pointed out that although the convention was a very important one, "it had no legal effect in limiting the legal power of Parliament" (at p. 723). And, again (at the same page):

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid. It may be that it would have been thought, before 1965, that it would be unconstitu­tional to disregard this convention. But it may also be that the unilateral Declaration of Independence released the United Kingdom from any obligation to observe the convention. Their Lordships in declaring the law are not

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concerned with these matters. They are only concerned with the legal powers of Parliament.

Counsel for Manitoba sought to distinguish this case on the ground that the Statute of Westmin­ster, 1931 did not embrace Southern Rhodesia, a point to which the Privy Council adverted. The Statute of Westminster, 1931 will be considered later in these reasons, but if it had been in force in Southern Rhodesia it would be only under its terms and not through any conventional rule per se that the Parliament of the United Kingdom would have desisted from legislating for Southern Rhodesia.

Quite a number of cases were cited on which counsel for Manitoba relied to support his conten­tion of conventions crystallizing into law. The chief support put forward for the "crystallization into law" proposition was the opinion of Duff C.J. in References re The Weekly Rest in Industrial Undertakings Act[8], better known as the Labour Conventions case when appealed to the Privy Council[9], which took a different view on the con­stitutional merits than did the equally divided Supreme Court of Canada. The issue, so far as it touched the matter under discussion here, con­cerned the alleged want of power of the Governor General in Council, the federal executive, to enter into a treaty or accept an international obligation toward and with a foreign state, especially where the substance of the treaty or obligation related to matters which, legislatively within Canada, were within exclusive provincial competence.

The following portion of the reasons of Duff C. J. contains the passage relied on, but extends it for more accurate context (at pp. 476-78):

With reference to the Report of the Conference of 1926, which in explicit terms recognizes treaties in the form of agreements between governments (to which His Majesty is not, in form, a party), it is said that since an Imperial Conference possesses no legislative power, its declarations do not operate to effect changes in the law, and it is emphatically affirmed that, in point of strict law, neither the Governor General nor any other

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Canadian authority has received from the Crown power to exercise the prerogative.

The argument is founded on the distinction it draws between constitutional convention and legal rule; and it is necessary to examine the contention that, in point of legal rule, as distinct from constitutional convention, the Governor General in Council had no authority to become party by ratification to the convention with which we are concerned.

There are various points of view from which this contention may be considered. First of all, constitutional law consists very largely of established constitutional usages recognized by the Courts as embodying a rule of law. An Imperial Conference, it is true, possesses no legislative authority. But there could hardly be more authoritative evidence as to constitutional usage than the declarations of such a Conference. The Conference of 1926 categorically recognizes treaties in the form of agreements between governments in which His Majesty does not formally appear, and in respect of which there has been no Royal intervention. It is the practice of the Dominion to conclude with foreign countries agreements in such form, and agreements even of a still more informal character—merely by an exchange of notes. Conventions under the auspices of the Labour Organiza­tion of the League of Nations invariably are ratified by the Government of the Dominion concerned. As a rule, the crystallization of constitutional usage into a rule of constitutional law to which the Courts will give effect is a slow process extending over a long period of time; but the Great War accelerated the pace of development in the region with which we are concerned, and it would seem that the usages to which I have referred, the practice, that is to say, under which Great Britain and the Dominions enter into agreements with foreign coun­tries in the form of agreements between governments and of a still more informal character, must be recog­nized by the Courts as having the force of law.

Indeed, agreements between the Government of Canada and other governments in the form of an agreement between Governments, to which His Majesty is not a party, have been recognized by the Judicial Committee of the Privy Council as adequate in international law to create an international obligation binding upon Canada (Radio Reference, [1932] A. C. 304.)

…

Ratification was the effective act which gave binding force to the convention. It was, as respects Canada, the act of the Government of Canada alone, and the deci­sion mentioned appears, therefore, to negative decisively

[Page 778]

the contention that, in point of strict law, the Government of Canada is incompetent to enter into an interna­tional engagement.

What the learned Chief Justice was dealing with was an evolution which is characteristic of custom­ary international law; the attainment by the Canadian federal executive of full and independent power to enter into international agreements. (Indeed, in speaking of "convention" in the last quoted paragraph, he was referring to an interna­tional agreement and, similarly, in the use of the word in the second last line of the second paragraph of the quotation and again in the middle of the third paragraph.) International law perforce has had to develop, if it was to exist at all, through commonly recognized political practices of states, there being no governing constitution, no legislat­ing authority, no executive enforcement authority and no generally accepted judicial organ through which international law could be developed. The situation is entirely different in domestic law, in the position of a state having its own governing legislative, executive and judicial organs and, in most cases, an overarching written constitution.

Chief Justice Duff indicated his view of conven­tion as allegedly maturing into law in a domestic setting in Reference re Disallowance and Reserva­tion of Provincial Legislation[10]. There it was urged that a certain portion of s. 90 of the British North America Act (incorporating, in respect of the provinces, ss. 56 and 57, with some modifica­tion) had by reason of convention become spent and was suspended by the alleged convention. As to this, the Chief Justice said (at p. 78):

We are not concerned with constitutional usage. We are concerned with questions of law which, we repeat, must be determined by reference to the enactments of the British North America Acts of 1867 to 1930, the Statute of Westminster, and, it might be, to relevant statutes of the Parliament of Canada if there were any.

Section 90 which, with the changes therein specified, re-enacts sections 55, 56 and 57 of the B.N.A. Act, is still subsisting. It has not been repealed or amended by

[Page 779]

the Imperial Parliament and it is quite clear that, by force of subsection 1 of section 7 of the Statute of Westminster, the Dominion Parliament did not acquire by that statute, any authority to repeal, amend or alter the British North America Acts. Whether or not, by force of section 91 (29) and section 92 (1) of the B.N.A. Act, the Dominion Parliament has authority to legislate in respect of reservation, it is not necessary to consider because no such legislation has been passed.

The powers are, therefore, subsisting. Are they sub­ject to any limitation or restriction?

Once more, we are not concerned with constitutional usage or constitutional practice.

There is nothing in the other judgments deliv­ered in the Labour Conventions case, either in the Supreme Court or in the Privy Council that takes the matter there beyond its international law setting or lends credence to the crystallization propo­sition urged by counsel for the Attorney General of Manitoba and, it should be said, supported by other provinces and by observations in the reasons of the Newfoundland Court of Appeal. Other cases cited for the proposition turn out, on exami­nation, to be instances where the courts proceeded on firm statutory or other legal principles. This is as true of the observation of Viscount Sankey on the position of the Privy Council in British Coal Corp. and Others v. The King[11], at p. 510, as it is of the denial of injunctive relief in respect of disclosure of the Crossman diaries in Attorney-General v. Jonathan Cape Ltd. and Others[12]. The Court pointed out in the latter case that it had the power to restrain breaches of confidence where demanded in the public interest, although the con­fidence stemmed from a convention respecting cabinet deliberations. However, the need for restraint had gone because of the passage of time. The Court was applying its own legal principles as it might to any question of confidence, however it arose.

A close look at some other cases and issues raised on so-called crystallization reveals no support for the contention. Nothing need be said about Crown immunity or Crown prerogative, which rested firmly on common law principles and

[Page 780] have long since been transformed by various stat­utes. Among cases put forward, were Commercial Cable Co. v. Government of Newfoundland[13]; Al­exander E. Hull & Co. v. M'Kenna[14] and Copyright Owners Reproduction Society Ltd. v. E.M.I. (Australia) Proprietary Ltd.[15]; Blackburn v. Attorney-General[16] and the judgment of this Court in the Senate Reference, Re: Authority of Parliament in relation to the Upper House[17].

In the Commercial Cable Co. case, a certain contract was held not to be binding on the Government of Newfoundland when it was not approved by a resolution of the House of Assembly as required by a rule of the House promulgated pursuant to statute. Hull v. M Kenna was the first instance of an application for leave to appeal to the Privy Council from the Court of Appeal, the final Court of the Irish Free State, which had been recognized as a Dominion under a treaty with the United Kingdom. The question at issue was the application of Privy Council practice on petitions to it for leave to appeal. The legal issue, on which the case turned, was the manner in which the Privy Council exercised its discretion on such petitions.

The Copyright Owners case, somewhat involved in its facts, concerned the effect upon and in Australia of a British Act of 1928 and a subse­quent Act of 1956. The latter Act repealed the British Copyright Act of 1911 which, pursuant to its terms had been brought into force in Australia by Commonwealth legislation. The British Act of 1911 expressly declared that it would not extend to a self-governing Dominion unless declared by the legislature of that Dominion to be in force there, and with certain limited modifications if thought desirable. The 1956 Act, as a post-Statute of Westminster, 1931 Act did not apply to Australia when there was no declaration that the Commonwealth had requested and consented to its applica­tion. Hence the 1911 British Act was left in force in Australia; indeed, it was so protected under the 1956 British Act, although as Dixon C.J. noted, it

[Page 781] was perhaps unnecessary to say so in view of s. 4 of the Statute of Westminster, 1931.

The real issue concerned the British Act of 1928 which confirmed a Board of Trade order, resulting in the increase of the royalty payable for reproduc­tion of musical works beyond that fixed by the Act of 1911. There was provision in the 1911 Act for alteration of rates through an inquiry by the Board of Trade and the making of an order to be confirmed by statute. Although the Statute of West­minster, 1931 was three years away, the High Court applied a rule of construction against any British legislative intention, even in 1928, to apply its legislation to Australia when it did not express­ly say so. True, this took account of political practice but it was the Court's application of rules of interpretation which governed and the political practice would have counted for nothing if the British legislation of 1928 had been made express­ly applicable to Australia. The following passage from the reasons of McTiernan J. is instructive (at p. 613):

The rule of construction which found its source in the political and constitutional relations between the United Kingdom and the Commonwealth of Australia before the Statute of Westminster would raise a presumption that the Act of 1928 was not intended to operate of its own force in this country. Needless to say, it is a rule of construction which this Court would be expected to apply. The fact that the Parliament of the Commonwealth in adopting the Copyright Act 1911 (Imp.) made no special modifications in relation to s. 19 (3) does not seem to me to afford any reason for our departing from that rule of construction by holding that the Act of 1928 has force and effect in the Commonwealth. I think that it would be fanciful to say that although the latter Act does not apply in Australia as a piece of Imperial legislation, nevertheless, it may operate as no more than a fulfilment of the conditions prescribed by s. 19 (3) for altering the rates for the calculations of royalties.

An obiter of Lord Denning in the Blackburn case was urged before the Court to support the crystallization contention. The case itself arose through an attempt to stall negotiations for entry by the United Kingdom into the European Common Market on the ground that it would involve the surrender by the British Parliament of

[Page 782] some at least of its traditional sovereignty. All three judges in the case agreed that there was no doubt of the power of the United Kingdom execu­tive to enter into treaties and that this was beyond judicial control. Lord Denning's obiter was as follows (at pp. 1382-83):

We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931, which takes away the power of Par­liament to legislate for the dominions. Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted indepen­dence to the dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics ... .

What are the realities here? If Her Majesty's Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We will then say whether Parliament can lawfully do it or not.

Both sides referred us to the valuable article by Professor H W R Wade in the Cambridge Law Journal in which he said that 'sovereignty is a political fact for which no purely legal authority can be constituted'. That is true. We must wait to see what happens before we pronounce on sovereignty in the Common Market.

The relevance of this to the legal issues in the case is not clear. Certainly the other two judges who sat in the case, Salmon and Stamp L.JJ., were of the view that the only concern of the Court is with the interpretation of legislation when enacted, not with the Crown's conduct in entering into treaties.

Finally, there was an appeal to the Senate Ref­erence decision of this Court. It is baffling how it can be said that this Court recognized convention as having per se grown into law. What was involved was a proposed federal enactment sought to be justified mainly under s. 91(1) of the British North America Act. This Court held that the

[Page 783] proposal, at least in its main features, was beyond federal competence. Although the Court referred to certain historical background for perspective on the position of the Senate as it was dealt with under the British North America Act, its funda­mental duty was to examine the validity of a proposed federal measure sought to be justified under a grant of federal power under that Act.

As to all the cases cited, it must be said that there is no independent force to be found in selec­tive quotations from a portion of the reasons unless regard is had to issues raised and the context in which the quotations are found.

We were invited to consider academic writings on the matter under discussion. There is no con­sensus among the author-scholars, but the better and prevailing view is that expressed in an article by Munro, "Laws and Conventions Distinguished" (1975), 91 Law Q. Rev. 218 where he says (at p. 228):

The validity of conventions cannot be the subject of proceedings in a court of law. Reparation for breach of such rules will not be effected by any legal sanction. There are no cases which contradict these propositions. In fact, the idea of a court enforcing a mere convention is so strange that the question hardly arises.

Another passage from this article deserves men­tion, as follows (at p. 224):

If in fact laws and conventions are different in kind, as is my argument, then an accurate and meaningful picture of the constitution may only be obtained if this distinction is made. If the distinction is blurred, analysis of the constitution is less complete; this is not only dangerous for the lawyer, but less than helpful to the political scientist ... .

There is no difference in approach whether the issue arises in a unitary state or in a federal state: see Hogg, Constitutional Law of Canada (1977), at pp. 7-11.

A contrary view relied on by the provincial appellants is that expressed by Professor W. R. Lederman in two published articles, one entitled "The Process of Constitutional Amendment in Canada" (1966-67), 12 McGill L.J. 371 and the

[Page 784] second entitled "Constitutional Amendment and Canadian Unity" (1978), Law Soc. U.C. Lectures 17. As a respected scholar, Professor Lederman's views deserve more than cursory consideration. He himself recognizes that there are contrary views, including those of an equally distinguished scholar, Professor F. R. Scott: see Scott, Essays on the Constitution (1977), at pp. 144, 169, 204-5, 245, 370-71, 402. There is also the contrary view of Professor Hogg, already cited.

Professor Lederman relies in part on a line of cases that has already been considered, especially the reasons of Duff C.J. in the Labour Conven­tions case. The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. The position advocated is all the more unacceptable when sub­stantial provincial compliance or consent is by him said to be sufficient. Although Professor Leder­man would not give a veto to Prince Edward Island, he would to Ontario or Quebec or British Columbia or Alberta. This is an impossible posi­tion for a court to manage. Further reference to this is made later in these reasons.

VIII

Turning now to the authority or power of the two federal Houses to proceed by resolution to forward the address and appended draft statutes to Her Majesty the Queen for enactment by the Parliament of the United Kingdom. There is no limit anywhere in law, either in Canada or in the United Kingdom (having regard to s. 18 of the British North America Act, as enacted by 1875 (U.K.), c. 38, which ties the privileges, immunities and powers of the federal Houses to those of the British House of Commons) to the power of the Houses to pass resolutions. Under s. 18 aforesaid, the federal Parliament may by statute define those privileges, immunities and powers, so long as they do not exceed those held and enjoyed by the

[Page 785]

British House of Commons at the time of the passing of the federal statute.

May, Treatise on the Law, Privileges, Proceed­ings and Usage of Parliament (19th ed., 1976), a leading treatise on British parliamentary proceed­ings, states (at p. 382):

Every question, when agreed to, assumes the form either of an order or of a resolution of the House. One or the other of these terms is applied in the records of the House to every motion which has been agreed to, and the application of the term is carefully regulated with reference to the content of the motion. By its orders the House directs its committees, its members, its officers, the order of its own proceedings and the acts of all persons whom they concern; by its resolutions the House declares its own opinions and purposes.

This passage is repeated almost verbatim in Beau­chesne's Rules and Forms of the House of Com­mons of Canada (5th ed., 1978), at p. 150. The Senate and House of Commons Act, R.S.C. 1970, c. S-8, ss. 4 and 5, reinforces what is set out in s. 18 of the British North America Act, as amended in 1875.

How Houses of Parliament proceed, how a pro­vincial legislative assembly proceeds is in either case a matter of self-definition, subject to any overriding constitutional or self-imposed statutory or indoor prescription. It is unnecessary here to embark on any historical review of the "court" aspect of Parliament and the immunity of its procedures from judicial review. Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment). It would be incompatible with the self-regulating - "inherent" is as apt a word-authority of Houses of Parliament to deny their capacity to pass any kind of resolution. Reference may appropriately be made to art. 9 of the Bill of Rights of 1689, undoubtedly in force as part of the law of Canada, which provides that "Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament".

[Page 786]

It is said, however, that where the resolution touches provincial powers, as the one in question here does, there is a limitation on federal authority to pass it on to Her Majesty the Queen unless there is provincial consent. If there is such a limitation, it arises not from any limitation on the power to adopt resolutions but from an external limitation based on other considerations which will shortly be considered.

Although the British North America Act itself is silent on the question of the power of the federal Houses to proceed by resolution to procure an amendment to the Act by an address to Her Majesty, its silence gives positive support as much as it may reflect the negative. Quebec Question B suggests in its formulation that there is the neces­sity of affirmative proof of the power asserted, but it would be equally consistent with constitutional precedent to require disproof. Moreover, if the two federal Houses had the power to proceed by reso­lution, how is it that they have lost it?

For the moment, it is relevant to point out that even in those cases where an amendment to the British North America Act was founded on a resolution of the federal Houses after having received provincial consent, there is no instance, save in the British North America Act, 1930 where such consent was recited in the resolution. The matter remained, in short, a conventional one within Canada, without effect on the validity of the resolution in respect of United Kingdom action. The point is underscored in relation to the very first amendment directly affecting provincial legislative power, that in 1940 which added "Unemployment Insurance" to the catalogue of exclusive federal powers. Sir William Jowitt, then Solicitor-General, and later Lord Chancellor, was asked in the British House of Commons about provincial consent when the amendment was in course of passage. The question put to him and his answer are as follows (see 362 U.K. Parl. Deb. 5th Series, H.C. 1177-81);

Mr. Mander … In this Bill we are concerned only with the Parliament of Canada, but, as a matter of interest, I would be obliged if the Solicitor-General would say whether the Provincial Canadian Parliaments

[Page 787]

are in agreement with the proposals submitted by the Dominion Parliament ... .

The Solicitor-General [Sir William Jowitt]; ... One might think that the Canadian Parliament was in some way subservient to ours, which is not the fact. The true position is that at the request of Canada this old ma­chinery still survives until something better is thought of, but we square the legal with the constitutional position by passing these Acts only in the form that the Canadian Parliament require and at the request of the Canadian Parliament.

My justification to the House for this Bill—and it is important to observe this—is not on the merits of the proposal, which is a matter for the Canadian Parlia­ment; if we were to embark upon that, we might trespass on what I conceive to be their constitutional position. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do.

In reply to the hon. Member for East Wolverhampton (Mr. Mander), I do not know what the view of the Provincial Parliaments is. I know, however, that when the matter was before the Privy Council some of the Provincial Parliaments supported the Dominion Parlia­ment. It is a sufficient justification for the Bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has been left over at their request in accordance with their wishes.

IX

This Court is being asked, in effect, to enshrine as a legal imperative a principle of unanimity for constitutional amendment to overcome the anom­aly—more of an anomaly today than it was in 1867—that the British North America Act con­tained no provision for effecting amendments by Canadian action alone. Although Saskatchewan has, alone of the eight provinces opposing the federal package embodied in the Resolution, taken a less stringent position, eschewing unanimity but without quantifying the substantial support that it advocates, the provinces, parties to the References and to the appeals here, are entitled to have this Court's primary consideration of their views.

[Page 788]

The effect of those views, if they are correct in their legal position, is, of course, to leave at least the formal amending authority in the United Kingdom Parliament. Reference will be made later to the ingredients of the arguments on legality. The effect of the present Resolution is to terminate any need to resort to the United Kingdom Parlia­ment in the future. In line with its rejection of unanimity, Saskatchewan asserted that it sees no violation of the principles of federalism in the Resolution so far as concerns the amending for­mula proposed thereby.

An important question was raised by the Sas­katchewan position which invited this Court to take a severable view of the substance of the Resolution, namely, to "hive off" the Charter of Rights and Freedoms and perhaps other elements, save the amending formula and the patriation feature. This was not the position of the Attorney General of Canada nor of any of the other provin­cial Attorneys General; they were all of the view that it was the whole package that was involved in the legal issue posed by Question 3 and Question B. Indeed, the legal arguments pro and con do not engage the contents of the package, and it is impossible to qualify the issue of legality by considerations of fairness or equity or political acceptability or even judicial desirability.

The stark legal question is whether this Court can enact by what would be judicial legislation a formula of unanimity to initiate the amending process which would be binding not only in Canada but also on the Parliament of the United Kingdom with which amending authority would still remain. It would be anomalous indeed, over-shadowing the anomaly of a constitution which contains no provision for its amendment, for this Court to say retroactively that in law we have had an amending formula all along, even if we have not hitherto known it; or, to say, that we have had in law one amending formula, say from 1867 to 1931, and a second amending formula that has emerged after 1931. No one can gainsay the desirability of federal-provincial accord or acceptable compro­mise. That does not, however, go to legality. As Sir William Jowitt said, and quoted earlier, we must

[Page 789] operate the old machinery perhaps one more time.

X

The provincial contentions asserted a legal incapacity in the federal Houses to proceed with the Resolution which is the subject of the Refer­ences and of the appeals here. Joined to this assertion was a claim that the United Kingdom Parliament had, in effect, relinquished its legal power to act on a resolution such as the one before this Court, and that it could only act in relation to Canada if a request was made by "the proper authorities". The federal Houses would be such authorities if provincial powers or interests would not be affected; if they would be, then the proper authorities would include the provinces. It is not that the provinces must be joined in the federal address to Her Majesty the Queen; that was not argued. Rather their consent (or, as in the Sas­katchewan submission, substantial provincial com­pliance or approval) was required as a condition of the validity of the process by address and resolu­tion and, equally, as a condition of valid action thereon by the United Kingdom Parliament.

There are a number of interwoven strands in this position which must be separated for proper analysis and assessment. They include some dependence on the Balfour Declaration, arising out of the Imperial Conference of 1926, and also on the Imperial Conference of 1930, the last-mentioned conference preceded by a meeting of experts in 1929 on the Operation of Dominion Legislation. Then there is a considerable emphasis on a particular view of the Statute of Westminster, 1931 in respect of some of its terms, and especially ss. 4 and 7(1). Perhaps most important is a conjoint contention based on sovereignty (softened in reply by the Attorney General of Manitoba) and on what are said to be basic presuppositions and constitutional underpinnings of Canadian federalism.

XI

The Court was invited to regard the Balfour Declaration of 1926 as embracing the provinces of

[Page 790]

Canada (and, presumably, the states of the sister dominion, Australia) in its reference to "autono­mous communities". That well-known statement of principle, a political statement in the context of evolving independence of the dominions in their relations with the United Kingdom, is as follows:

They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

It is impossible to seek nourishment for the provincial position in these appeals in this Declara­tion. The provinces did not come into the picture in the march to the Statute of Westminster, 1931 until after the 1929 Conference on the Operation of Dominion Legislation, although to a degree before the Imperial Conference of 1930. They then made their views known on certain aspects of the looming statute, views which were canvassed in a Dominion-Provincial Conference in 1931. The main concern touched the proposed repeal of the Colonial Laws Validity Act, 1865 (U.K.), c. 63 and the effect that this might have on the amendment of the British North America Act, a matter to be considered later in these reasons.

Although the Balfour Declaration cannot, of itself, support the assertion of provincial autonomy in the wide sense contended for, it seems to have been regarded as retroactively having that effect by reason of the ultimate enactment of the Statute of Westminster, 1931. That statute is put forward not only as signifying an equality of status as between the Dominion and the provinces vis-à-vis the United Kingdom Parliament, but also as attenuating the theretofore untrammelled legisla­tive authority of that Parliament in relation to Canada where provincial interests are involved. The germ of these consequences was said by the Newfoundland Court of Appeal to be in the Balfour Declaration, arising out of the Imperial Con­ference of 1926 and embodied in the Report of that Conference.

[Page 791]

The following , summarizing passage on Question 3 is contained in the reasons of the Newfoundland Court of Appeal [at p. 18]:

In our opinion, the constitutional status of the Prov­inces of Canada as autonomous communities was confirmed and perfected by (a) the Statute of Westminster, 1931 giving effect to the constitutional principle declared by the Imperial Conference that both the United Kingdom and the Dominions are autonomous communities equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs; (b) the recognition by that Conference of the division of power among the constituent parts that make up the Dominion of Canada by which each is autono­mous, in no way subordinate one to another; and, (c) the surrender by the Imperial Parliament to the Provinces of its legislative sovereignty, over matters declared by the British North America Act, 1867 to be within the exclusive legislative competence of the Provinces. The modification of that constitutional status was thereby withdrawn from future British parliamentary compe­tence except with the consent of the Provinces.

While the Parliament of Great Britain, in the absence of notice to the contrary, is constitutionally entitled to accept a Resolution passed by both Houses of the Canadian Parliament as a proper request for a constitu­tional amendment from the whole Canadian community, it is nonetheless precluded, for the reasons stated above, from enacting an amendment restricting the powers, rights and privileges granted the Provinces by the Brit­ish North America Act, 1867, and enlarged by the Statute of Westminster, 1931 over the objections of the Provinces.

If the significance attached to the Statute of Westminster, 1931 is, indeed, what is asserted in the above-quoted passage and what has been urged by the provinces in this Court, there is no need to resort to the Balfour Declaration, save possibly as a footnote. The course of events leading to the Statute of Westminster, 1931 is detailed in numer­ous writings. It is sufficient to refer, in general, to the discussion in Wheare, The Statute of West­minster and Dominion Status (5th ed., 1953), passim, and see, especially, Chapter VII "The Statute and the Legal Status of Canada".

The submissions made on the Statute of West­minster, 1931 by counsel who were before this Court engage (1) the preamble to the Statute;

[Page 792]

(2) s. 2(1),(2); (3) s. 3; (4) s. 4 and (5) s. 7(1),(2),(3). These provisions are in the follow­ing terms:

Whereas the delegates of His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parlia­ments of all the Dominions as of the Parliament of the United Kingdom:

And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Domin­ion otherwise than at the request and with the consent of that Dominion:

And whereas it is necessary for the ratifying, confirm­ing and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom:

And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and New­foundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid as is hereafter in this Act contained:

Now, therefore, be it enacted by the King's most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

2. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.

[Page 793]

(2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provi­sions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parlia­ment of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.

3. It is hereby declared and enacted that the Parlia­ment of a Dominion has full power to make laws having extra-territorial operation,

4. No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof.

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

(2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces,

(3) The powers conferred by this Act upon the Parlia­ment of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively.

There is nothing in the preamble that relates to the provinces other than the reference to the Report of the Imperial Conference of 1930. What emerged prior to this Conference was an under­standable provincial concern that the effect of the proposed repeal of the Colonial Laws Validity Act in favour of the Parliament of a dominion and, in addition, the effect of what became s. 2(2) of the Statute might enlarge federal power to alter, by its own legislation, provisions of the British North America Act. Thus it was that the Conference of 1930 placed on record (Cmd. 3717, at pp. 17-18):

[Page 794]

… that the sections of the Statute relating to the Colonial Laws Validity Act should be so drafted as not to extend to Canada unless the Statute was enacted in response to such requests as are appropriate to an amendment of the British North America Act. It also seemed desirable to place on record the view that the sections should not subsequently be extended to Canada except by an Act of the Parliament of the United Kingdom enacted in response to such requests as are appropriate to an amendment of the British North America Act.

The Colonial Laws Validity Act was intended to be a liberating statute, releasing colonial legisla­tures from subservience to British common law (subject to Privy Council authority) and from subservience to British statute law unless such statute law applied expressly or by necessary implication to the colony. In the evolution of independence of the dominions, it came to be recog­nized that the United Kingdom should no longer legislate at its own instance for any dominion; and that the latter should be free to repeal any British legislation that was or would be made applicable to it. Hence, the statement in the preamble and hence ss. 2 and 4 in their application to a domin­ion. Following the Imperial Conference of 1930 and as a result of the Dominion-Provincial Confer­ence of 1931, the provinces obtained an assurance that they too would benefit by the repeal of the Colonial Laws Validity Act and by being empow­ered to repeal any British legislation made appli­cable to them. This was achieved by s. 7(2) of the Statute of Westminster, 1931. There did not appear to be any need to include them in s. 4.

The most important issue was, however, the position of the Dominion vis-à-vis the British North America Act. What s. 7(1), reinforced by s. 7(3), appeared to do was to maintain the status quo ante; that is, to leave any changes in the British North America Act (that is, such changes which, under its terms, could not be carried out by legislation of the provinces or of the Dominion) to the prevailing situation, namely, with the legisla­tive authority of the United Kingdom Parliament being left untouched. As Sir William Jowitt put it, in the passage quoted earlier (in connection with the debate on the unemployment insurance amendment),

[Page 795]

"the old machinery" remained in place as a result of the Statute of Westminster, 1931. No other conclusion is supportable on any fair reading of the terms of the Statute of Westminster, 1931.

The provinces, other than Ontario and New Brunswick, do not agree with this view of the Statute of Westminster, 1931. There were a number of positions taken by them. Much was made, especially in the submissions of counsel for the Attorney General of Manitoba, of the use of the plural in the phrase "such requests as are appropriate to an amendment of the British North America Act" in the passage above-quoted from the Report of the 1930 Imperial Conference. The point taken from this was said to be a re-emphasis of that portion of the 1929 Conference on the Operation of Dominion Legislation which, in referring to the British North America Act, said that the question of the proper method of amending it should remain "for future consideration by the appropriate Canadian authorities". It was contended, certainly with justification, that the "prop­er Canadian authorities" were the Dominion and the provinces and, presumably, it would be for them to decide whether it would be the respective governments or Parliament and the legislatures or both, and also what degree of agreement among the provinces would be proper. It is, however, impossible to draw from this any legal rule of conduct because, ultimately, whatever political consensus might be achieved, there would still be the legal necessity of final United Kingdom legis­lative action.

The matter is not advanced by the follow-up Dominion-Provincial Conference of 1931. As the brief summary of the Conference stated, its purpose was

... to give the Provinces an opportunity to express their views with regard to the Statute of Westminster and the proposed Section, numbered 7, which will be inserted to deal exclusively with the Canadian position. No objec­tion was made to the principle of the proposed legisla­tion, and a proposal that the provisions of the Statute relating to the repeal of the Colonial Laws Validity Act should extend to the Provinces was approved. The Canadian Section (7) was drafted and found satisfacto­ry by all the Provinces, though Quebec asked for further

[Page 796]

time for consideration. Meanwhile, the approval of the Quebec Government has been received.

The Conference summary continued as follows:

Certain other constitutional questions arose during the Conference. Some Provinces desired that the ques­tion of powers and procedure in respect to constitutional amendment should be discussed together with the wider subject of constitutional relations between Dominions [sic] and Provinces. This was found to be impossible at that meeting, but it was agreed that a constitutional conference should be summoned as soon as possible. It was the general opinion that at such a conference a method of amending the Canadian constitution by Canadian agencies might be discovered which would reconcile the two essential features of reasonable elas­ticity of change and the preservation of provincial rights.

The underlined sentence in the above-quoted Conference summary shows quite clearly that as of 1930, there was certainly no rule of law with respect to constitutional amendment. No change was effected in the legal position by the Statute of Westminster, 1931.

It was also urged upon this Court that s. 7(1), which in terms ("Nothing in this Act shall be deemed to apply to ... the British North America Acts, 1867 to 1930") removes the British North America Act (at least as it then stood) from the application of any terms of the Statute of West­minster, 1931 was addressed to ss. 2 and 3 and not to s. 4. The argument goes that s. 7(1) does not exclude the application of s. 4; that s. 4 must be read in its preclusive effect on a dominion as having the provinces in view; that the "request and consent" which must be declared in a British statute to make it applicable to Canada, is the request and consent of the Dominion and the provinces if the statute is one affecting provincial interests or powers, for example, an amendment of the British North America Act as envisaged by the Resolution herein. The word "Dominion" in s. 4, it is said, must be read in what may be called a conjoint or collective sense as including both the Dominion and the provinces; otherwise, it is sub­mitted, the purpose of the Statute of Westminster, 1931 would be defeated. A difference, said to be

[Page 797] significant, is pointed up in the reference to "Par­liament of a Dominion" in s. 3 and the bare word "Dominion" in s. 4.

Nothing in the language of the Statute of West­minster, 1931 supports the provincial position yet it is on this interpretation that it is contended that the Parliament of the United Kingdom has relin­quished or yielded its previous omnipotent legal authority in relation to the British North America Act, one of its own statutes. As an argument on Question 3 and Question B (in its legal aspect), it asserts a legal diminution of United Kingdom legislative supremacy. The short answer to this ramified submission is that it distorts both history and ordinary principles of statutory or constitu­tional interpretation. The plain fact is that s. 7(1) was enacted to obviate any inference of direct unilateral federal power to amend the British North America Act and that it is s. 7(3) that is addressed to s. 2 and not s. 7(1). It is for this reason that it was unnecessary to provide in respect of Canada what was provided by s. 9(3) in respect of Australia, namely, that in the applica­tion of the Statute of Westminster, 1931 to the Commonwealth of Australia "the request and consent referred to in section four shall mean the request and consent of the Parliament and Government of the Commonwealth". There is, moreover, an interpretation section in the Statute of West­minster, 1931 being s. 1, and in it "Dominion" means any of the following Dominions, "that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland". The reference to "Parliament of a Dominion" in s. 3 and "Dominion" in s. 4 is easily explained by the context. The argument on the Statute of Westminster, 1931 is untenable, but it leaves for more anxious consideration the effect of the removal of the British North America Act from the Statute of Westminster, 1931 and the preservation by s. 7(3) of the existing distribution of legislative powers under the British North America Act.

XII

This leads to the submissions made on the sover­eignty of the provinces in respect of their powers

[Page 798] under the British North America Act, the term "sovereignty" being modified in the course of argument to "supremacy". Allied to this was the contention that Canada cannot do indirectly what it cannot do directly; it could not by an enactment of its own accomplish that which is proposed by the Resolution. Such an enactment would be clear­ly ultra vires as to most of the provisions put forward by the Resolution, and it should not be able to improve its position in law by invoking the aid of the United Kingdom Parliament. Moreover, even if the Parliament of the United Kingdom retained its formal legal authority over the British North America Act, as one of its enactments, it was in the words used by the late and at the time, former Justice Rand, "a bare legislative trustee", subject as a matter of law to the direction of the beneficiaries, namely, the Dominion and the prov­inces, in respect of the Resolution.

It will be convenient to deal at this point with the "direct-indirect" contention and with the notion of legislative trusteeship, before returning to the main submission on provincial legislative supremacy. That submission involves a consider­ation of the character of Canadian federalism and it must, of course, be carefully assessed.

The direct-indirect contention, taken by itself, amounts to this: that whether or not the federal Houses can seek to obtain enactment of the draft statute appended to the Resolution, it would, in any event, be illegal to invoke United Kingdom authority to do for Canada what it cannot do itself. The maxim "you cannot do indirectly what you cannot do directly" is a much abused one. It was used to invalidate provincial legislation in Madden v. Nelson and Fort Sheppard Railway Co.[18] It is a pithy way of describing colourable legislation: see Ladore v. Bennett[19], at p. 482. However, it does not preclude a limited legislature from achieving directly under one head of legisla­tive power what it could not do directly under another head. The question, of course, remains whether the two federal Houses may alone initiate

[Page 799] and carry through the process to invoke the competence of the United Kingdom Parliament.

At least with regard to the amending formula the process in question here concerns not the amendment of a complete constitution but rather the completion of an incomplete constitution.

We are involved here with a finishing operation, with fitting a piece into the constitutional edifice; it is idle to expect to find anything in the British North America Act that regulates the process that has been initiated in this case. Were it otherwise, there would be no need to resort to the Resolution procedure invoked here, a procedure which takes account of the intergovernmental and international link between Canada and Great Britain. There is no comparable link that engages the provinces with Great Britain. Moreover, it is to confuse the issue of process, which is the basic question here, with the legal competence of the British Parlia­ment when resort is had to the direct-indirect argument. The legal competence of that Parlia­ment, for the reasons already given, remains unim­paired, and it is for it alone to determine if and how it will act.

The late Justice Rand used the words "a bare legislative trustee" in the Holmes Lecture deliv­ered at Harvard Law School under the title "Some Aspects of Canadian Constitutionalism" and reproduced in (1960), 38 Can. Bar Rev. 135. His use of the phrase came in the course of his discus­sion of the effect of the Statute of Westminster, 1931. He said this (at p. 145):

Legislatively, a unique situation has been created. The British Parliament has in effect become a bare legisla­tive trustee for the Dominion; the constitutional organ for altering the provisions of the Canadian constitution contained in the Act of 1867 remains so far the British Parliament; but the political direction resides in the Parliament of the Dominion; the former has conceded its residue of legislative power vis-à-vis Canada, to be no more than means for effecting the will of Canada. It might happen, although it is most unlikely, that the

[Page 800]

British Parliament should demur to a request for a legislative amendment, as, for example, involving impor­tant legislative effects not concurred in by one or more of the provinces; but that amounts to no more than saying that the Canadian people would not yet have agreed on the mode of modifying their internal constitu­tional relations. Once that means has been agreed upon, legislative independence, not only in substance but in form, will have been attained.

The Newfoundland Court of Appeal adopted the phrase but decided that Justice Rand should not have limited the suggested trusteeship as being for the Dominion of Canada alone. Moreover, the Court overlooked a central point in the Rand lecture that "the political direction resides in the Parliament of the Dominion". Thus the Court said [at p. 17]:

We adopt that statement fully with the important addition that the Parliament of Great Britain is a 'bare legislative trustee' for both the Federal Parliament and the Provincial Legislatures in relation to the matters within their respective legislative competence. Any amendment enacted by the Parliament of Great Britain affecting the legislative competence of either of the parties, without that party's consent, would not only be contrary to the intendment of the Statute of Westmin­ster, 1931 but it could defeat the whole scheme of the Canadian federal Constitution.

It is enough to counter this assessment of the Newfoundland Court of Appeal by referring to what Gérin-Lajoie said in his seminal text Consti­tutional Amendment in Canada (1950) at p. 138:

While the Parliament of the United Kingdom is pre­cluded from enacting any constitutional amendment without a proper request from Canada the only com­petent voice of Canada for this purpose is that of the federal power. The provincial authorities—either execu­tive or legislative—have no locus standi to move the British Parliament or Government with a view to secur­ing an amendment to the federal Constitution.

It is obvious that any change in the legislative power of either Parliament or the provincial legis­latures would directly affect the other. The thrust

[Page 801] of the Newfoundland Court of Appeal's remarks just quoted goes more properly to the submissions and contentions on the nature of Canadian federalism than to any intendment of the Statute of Westminster, 1931. Whatever the statute may import as to intra-Canadian conventional proce­dures, there is nothing in it or in the proceedings leading up to it that casts any doubt in law as to the undiminished authority of the Parliament of the United Kingdom over the British North America Act.

XIII

At bottom, the challenge to the competency in law of the federal Houses to seek enactment by the Parliament of the United Kingdom of the statutes embodied in the Resolution is based on the recog­nized supremacy of provincial legislatures in rela­tion to the powers conferred upon them under the British North America Act, a supremacy vis-à-vis the federal Parliament. Reinforcement, or perhaps the foundation of this supremacy is said to lie in the nature or character of Canadian federalism.

The supremacy position, taken alone, needs no further justification that that found in the respec­tive formulations of the powers of Parliament and the provincial legislatures in ss. 91 and 92 of the British North America Act. Federal paramountcy is, however, the general rule in the actual exercise of these powers. This notwithstanding, the exclu­siveness of the provincial powers (another way of expressing supremacy and more consonant with the terms of the British North America Act) cannot be gainsaid. The long list of judicial deci­sions, beginning with Hodge v. The Queen[20] and carrying through such cases as Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick[21] and the Labour Conventions case, supra, where the Privy Council expressed its "watertight compartments view" of legislative power (at p. 354) provide adequate support for the principle of exclusiveness or supremacy but, of course, within the limits of the British North America Act.

[Page 802]

Although there are what have been called uni­tary features in the British North America Act, involving overriding powers (to be distinguished from paramountcy of legislation) in the federal Parliament and government, their modification of exclusive provincial authority does not detract from that authority to any substantial degree. Thus, the federal declaratory power under s. 92(10)(c) has a limited operation; reservation and disallowance of provincial legislation, although in law still open, have, to all intents and purposes, fallen into disuse. The fact of appointment of the Lieutenant Governors of the provinces by the cen­tral government does not, as a practical matter, have any significance for provincial powers when, under the law, the Lieutenant Governor is as much the personal representative of the Crown as is the Governor General. In each case, the representation is, of course, in respect of the powers respectively assigned to Parliament and the legislatures. More-over, since there is an international, a foreign relations aspect involved in the relationship of Canada and Great Britain, any formal communi­cation between a province and its Lieutenant Gov­ernor with the United Kingdom Government or with the Queen, must be through the federal Gov­ernment or through the Governor General.

It is important in this connection to emphasize that the Government of Canada had, by 1923, obtained recognition internationally of its inde­pendent power to enter into external obligations when it negotiated the Halibut Treaty with the United States. Great Britain understood this by that time as did the United States. The subsequent Imperial Conferences added confirmation, sancti­fied by the Statute of Westminster, 1931 which also put internal independence from Great Britain on a legal foundation. The remaining badge of subservience, the need to resort to the British Parliament to amend the British North America Act, although preserved by the Statute of West­minster, 1931 did not carry any diminution of Canada's legal right in international law, and as a matter of Canadian constitutional law, to assert its independence in external relations, be they with Great Britain or other countries. The matter is emphasized by the judgment of this Court in Reference Re: Offshore Mineral Rights of British

[Page 803]

Columbia[22], at p. 816. This is a relevant consider­ation in the appeals which are before this Court.

What is put forward by the provinces which oppose the forwarding of the address without pro­vincial consent is that external relations with Great Britain in this respect must take account of the nature and character of Canadian federalism. It is contended that a legal underpinning of their position is to be found in the Canadian federal system as reflected in historical antecedents, in the pronouncements of leading political figures and in the preamble to the British North America Act.

The arguments from history do not lead to any consistent view or any single view of the nature of the British North America Act; selective interpre­tations are open and have been made; see Report of the Royal Commission on Dominion-Provincial Relations (1940), Book 1, at pp. 29 ff. History cannot alter the fact that in law there is a British statute to construe and apply in relation to a matter, fundamental as it is, that is not provided for by the statute. Practices which took account of evolving Canadian independence, did, of course, develop. They had both intra-Canadian and extra-Canadian aspects in relation to British legislative authority. The former have. already been can­vassed, both in the reasons on Question 2 and Question B and, to a degree, in these reasons. Theories, whether of a full compact theory (which, even factually, cannot be sustained, having regard to federal power to create new provinces out of federal territories, which was exercised in the crea­tion of Alberta and Saskatchewan) or of a modi­fied compact theory, as urged by some of the provinces, operate in the political realm, in politi­cal science studies. They do not engage the law, save as they might have some peripheral relevance to actual provisions of the British North America Act and its interpretation and application. Thus it is, to take one example, that in the Nova Scotia Interdelegation case, Attorney General of Nova

[Page 804]

Scotia v. Attorney General of Canada[23], Rinfret C.J. said (at p. 34):

The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclu­sively on the subject matters referred to it by section 92.

This was said, however, in the context of an issue raised under the terms of the British North America Act, the issue being whether there could be interdelegation between the Parliament of Canada and the provincial legislatures of their respective legislative powers which, as to each level of authority, were conferred as exclusive powers. In the Court below, the Nova Scotia Supreme Court en banc, Chief Justice Chisholm remarked that the British North America Act is not a coun­ter for the exchange of constitutional wares: see Re Delegation of Legislative Jurisdiction[24], at p. 6.

The statement, above-quoted, of Chief Justice Rinfret carries no independent legal consequence; it simply underscores the imperative character of the distribution of legislative power. In short, as in the attempt to argue crystallization of convention into law, there is nothing in the reference to theo­ries of federalism reflected in some case law that goes beyond their use as an aid to a justiciable question raised apart from them.

So too, with pronouncements by political figures or persons in other branches of public life. There is little profit in parading them.

[Page 805]

Support for a legal requirement of provincial consent to the Resolution that is before this Court, consent which is also alleged to condition United Kingdom response to the Resolution, is, finally, asserted to lie in the preamble of the British North America Act itself, and in the reflection, in the substantive terms of the Act, of what are said to be fundamental presuppositions in the preamble as to the nature of Canadian federalism. The preamble recites (and the whole of it is reproduced) the following:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be feder­ally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Domin­ion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:

What is stressed is the desire of the named provinces "to be federally united ... with a Consti­tution similar in Principle to that of the United Kingdom". The preamble speaks also of union into "One Dominion" and of the establishment of the Union "by Authority of Parliament", that is the United Kingdom Parliament. What, then, is to be drawn from the preamble as a matter of law? A preamble, needless to say, has no enacting force but, certainly, it can be called in aid to illuminate provisions of the statute in which it appears. Fed­eral union "with a Constitution similar in Principle to that of the United Kingdom" may well embrace responsible government and some common law aspects of the United Kingdom's unitary constitu­tionalism, such as the rule of law and Crown prerogatives and immunities. The "rule of law" is a highly textured expression, importing many things which are beyond the need of these reasons

[Page 806] to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. Legislative changes may alter common law pres­criptions, as has happened with respect to Crown prerogatives and immunities. There is also an internal contradiction in speaking of federalism in the light of the invariable principle of British parliamentary supremacy. Of course, the resolu­tion of this contradiction lies in the scheme of distribution of legislative power, but this owes nothing to the preamble, resting rather on its own exposition in the substantive terms of the British North America Act.

There is not and cannot be any standardized federal system from which particular conclusions must necessarily be drawn. Reference was made earlier to what were called unitary features of Canadian federalism and they operate to distin­guish Canadian federalism from that of Australia and that of the United States. Allocations of legis­lative power differ as do the institutional arrange­ments through which power is exercised. This Court is being asked by the provinces which object to the so-called federal "package" to say that the internal distribution of legislative power must be projected externally, as a matter of law, although there is no legal warrant for this assertion and, indeed, what legal authority exists (as in s. 3 of the Statute of Westminster, 1931) denies this provin­cial position.

At bottom, it is this distribution, it is the alloca­tion of legislative power as between the central Parliament and the provincial legislatures, that the provinces rely on as precluding unilateral federal action to seek amendments to the British North America Act that affect, whether by limitation or extension, provincial legislative authority. The Attorney General of Canada was pushed to the extreme by being forced to answer affirmatively the theoretical question whether in law the federal government could procure an amendment to the British North America Act that would turn Canada into a unitary state. That is not what the

[Page 807] present Resolution envisages because the essential federal character of the country is preserved under the enactments proposed by the Resolution.

That, it is argued, is no reason for conceding unilateral federal authority to accomplish, through invocation of legislation by the United Kingdom Parliament, the purposes of the Resolution. There is here, however, an unprecedented situation in which the one constant since the enactment of the British North America Act in 1867 has been the legal authority of the United Kingdom Parliament to amend it. The law knows nothing of any requirement of provincial consent, either to a reso­lution of the federal Houses or as a condition of the exercise of United Kingdom legislative power.

In the result, the third question in the Manitoba and Newfoundland cases should, as a matter of law, be answered in the negative and Question B should, in its legal aspect, be answered in the affirmative.

XIV

There remains for consideration Question 4 in the Newfoundland Reference. The question, in effect, asks if the matters therein raised could happen under the amending formula in the draft statute appended to the Resolution proposed for adoption by the two federal Houses. There were, as previously noted, some changes in the draft statute prior to its adoption by the federal Houses and a change as well in the numbering of some of the sections relevant to Question 4. However, it is unnecessary to go into these number changes because the Attorney General of Canada agrees with the conclusions of the Newfoundland Court of Appeal as set out in the first three parts of its answer to the question, and the Attorney General of Newfoundland agrees with the Attorney Gener­al of Canada that the Newfoundland Court of Appeal was in error in the fourth part of its answer to the question. It was wrong to say that in a referendum under s. 42 (as it then was) of the proposed statute (now s. 47) the approval of the majority of the people in each province was required. The proper view was that only the approval of the majority of the people voting in a

[Page 808] referendum in those provinces, the approval of whose legislatures would be required under the general amending formula, would be necessary.

The Attorney General of Canada agreed with the Newfoundland Court of Appeal that an unqualified answer to Question 4 might be misleading and he submitted what he considered to be better answers to Question 4. Since there was substantial agreement before this Court by the Attorney General of Canada and the Attorney General of Newfoundland as to the proper anwer [sic] to Question 4, it is unnecessary to dwell on its details here. Moreover, it involves an assessment of the substantive terms of the draft statute proposed for enactment by the United Kingdom Parliament, and, in that respect, it is an example of the specif­ics which were sought in the answer to Question 1 and which, it was agreed by counsel, need not be elaborated. It is hence unnecessary to say more on Question 4, in the recognition also that this Court is not concerned here with the wisdom of the proposed enactment.

XV

Nothing said in these reasons is to be construed as either favouring or disapproving the proposed amending formula or the Charter of Rights and Freedoms or any of the other provisions of which enactment is sought. The questions put to this Court do not ask for its approval or disapproval of the contents of the so-called "package".

What is central here is the untrammelled au­thority at law of the two federal Houses to proceed as they wish in the management of their own procedures and hence to adopt the Resolution which is intended for submission to Her Majesty for action thereon by the United Kingdom Parlia­ment. The British North America Act does not, either in terms or by implication, control this authority or require that it be subordinated to provincial assent. Nor does the Statute of West­minster, 1931 interpose any requirement of such assent. If anything, it leaves the position as it was before its enactment. Developments subsequent thereto do not affect the legal position.

[Page 809]

In summary, the answers to Questions 1 and 3 common to the Manitoba and Newfoundland Ref­erences, should be as follows:

Question 1: Yes.

Question 3: As a matter of law, no.

The answer to Question 4 in the Newfoundland Reference should be as expressed in the reasons of the Newfoundland Court of Appeal, subject to the correction made in the reasons herein.

The answers to the questions in the Quebec Reference should be as follows:

Question A

(i): Yes.

(ii): Yes.

Question B

(i): As a matter of law, yes.

(ii): As a matter of law, yes.

There will be, of course, no order as to costs.

MARTLAND AND RITCHIE JJ. (dissenting)—These are three appeals from the opinions of the courts of appeal of Manitoba, Newfoundland and Quebec pronounced in respect of three References to those Courts concerning the constitutional pro­priety and lawfulness of a proposed resolution now before the Senate and House of Commons of Canada.

The Lieutenant Governor in Council of Manito­ba referred three questions to the Manitoba Court of Appeal for hearing and consideration by an Order in Council dated October 24, 1980; the questions were:

1. If the amendments to the Constitution of Canada sought in the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada", or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legisla­tures or governments be affected and if so, in what respect or respects?

2. Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada

[Page 810]

affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legisla­tures or governments without first obtaining the agreement of the provinces?

3. Is the agreement of the provinces of Canada constitu­tionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?

The reasons for judgment were delivered by the Manitoba Court of Appeal on February 3, 1981[25]. A majority of the Court refused to answer Ques­tion 1 supra. Freedman C.J.M. and Matas J.A. held that the question was at that time tentative and premature. Hall J.A. held that Question 1 was not appropriate for a judicial response, and in any event was speculative and premature. Huband and O'Sullivan M.A. both held that the question should have been answered in the affirmative.

Freedman C.J.M., Matas, O'Sullivan and Huband B.A. answered Question 2 supra in the negative. Hall J.A. held that Question 2 was not appropriate for a judicial response.

Question 3 supra was answered in the negative by Freedman C.J.M., Hall and Matas JJ.A. O'Sullivan and Huband JJ.A. would have answered Question 3 in the affirmative.

By Order in Council dated December 5, 1980, the Lieutenant Governor in Council of Newfound—land referred four questions to the Newfoundland Court of Appeal for hearing and consideration. The first three questions asked were the same as those in the Manitoba Reference. Question 4 was as follows:

4. If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could

(a) the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British

[Page 811]

North America Act, 1949 (12-13 George VI, c. 22 (U.K.)), or

(b) section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (U.K.))

be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?

The judgment of the unanimous Court was delivered on March 31, 1981[26]. In a joint opinion, Mifflin C.J.N., Morgan and Gushue JJ.A. answered Questions 1, 2 and 3 in the affirmative. Question 4 was answered in the following terms [at p. 30]:

(1) By s. 3 of the British North America Act, 1871, Term 2 of the Terms of Union cannot now be changed without the consent of the Newfoundland Legislature.

(2) By s. 43 of the Constitution Act, 1981, as it now reads, none of the Terms of Union can be changed without the consent of the Newfoundland Legisla­tive Assembly.

(3) Both of these sections can be changed by the amending formulae prescribed in s. 41 and the Terms of Union could then be changed without the consent of the Newfoundland Legislature.

(4) If the amending formula under s. 42 is utilized, both of these sections can be changed by a referen­dum held pursuant to the provisions of s. 42. In this event, the Terms of Union could then be changed without the consent of the Newfoundland Legisla­ture, but not without the consent of the majority of the Newfoundland people voting in a referendum.

By Order in Council dated December 17, 1980, the Government of Quebec submitted to the Quebec Court of Appeal two questions, each con­taining two sub-questions. The following is the English translation of the questions submitted:

A) If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada would they affect:

[Page 812]

(i) the legislative competence of the provincial legis­latures in virtue of the Canadian Constitution?

(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?

B) Does the Canadian Constitution empower, by stat­ute, convention or otherwise, the Senate and the House of Commons of Canada to cause the Canadi­an Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:

(i) the legislative competence of the provincial legis­latures in virtue of the Canadian Constitution?

(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?

The judgment of the Quebec Court of Appeal was delivered on April 15, 1981[27]. Crête C.J.Q., Owen, Turgeon and Bélanger JJ.A. answered both questions in the affirmative. Bisson J.A., dissent­ing, would have answered Question A in the affir­mative and Question B in the negative.

Each of these judgments was appealed to this Court as of right. Argument was heard in this Court from the attorneys general of all ten prov­inces, the Attorney General of Canada, and the Four Nations Confederacy Inc. Argument was heard on each appeal, but the appeals were heard consecutively.

The Canada Act and the Constitution Act, 1981, referred to in the Quebec Reference, are the subjects of a resolution now before the Senate and House of Commons of Canada. That Resolution states:

THAT, WHEREAS in the past certain amendments to the Constitution of Canada have been made by the Parliament of the United Kingdom at the request and with the consent of Canada;

AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects;

AND WHEREAS it is also desirable to provide in the Constitution of Canada for the recognition of certain

[Page 813]

fundamental rights and freedoms and to make other amendments to that Constitution;

A respectful address be presented to Her Majesty the Queen in the following words:

To the Queen's Most Excellent Majesty:

Most Gracious Sovereign:

We, Your Majesty's loyal subjects, the

House of Commons of Canada in Parliament assembled, respectfully approach Your Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament of the United Kingdom a measure con­taining the recitals and clauses hereinafter set forth:

The recitals and clauses referred to in the Reso­lution set forth the Canada Act and the Constitu­tion Act, 1981. The Canada Act recites the request and consent of the Senate and House of Commons to the measure, enacts the Constitution Act, 1981, and declares that no Act of the Parliament of the United Kingdom passed after the Constitution Act, 1981, shall form part of the laws of Canada.

The Constitution Act, 1981, if validly enacted, would effect two major changes to the existing Constitution of Canada. Part I of the Act contains a Charter of Rights and Freedoms which would bind both the provincial and federal legislatures. Parts IV and V of the Act contain elaborate provisions for all future amendments to the Canadian Constitution.

It is now conceded that the answer to the first question in the Manitoba and Newfoundland Ref­erences and to Questions A(i) and (ii) of the Quebec Reference should be in the affirmative. The second question in the Manitoba and New­foundland References has been dealt with in a separate judgment to which we are parties. We agree with the disposition of the fourth question in the Newfoundland Reference proposed in the rea­sons for judgment of the other members of the Court which deal with that matter.

The third question in the Manitoba and the Newfoundland References asks whether the agreement of the provinces of Canada is "constitutional­ly required" for amendment to tie Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights

[Page 814] or privileges granted or secured by the Constitu­tion of Canada to the provinces, their legislatures or governments. If the second question is answered in the affirmative, then it is recognized that a constitutional convention exists that the House of Commons and the Senate will not request an amendment of the B.N.A. Act of the kind contem­plated in Question 2 without first obtaining the agreement of the provinces. If that is so, then the agreement of the provinces is constitutionally required for such an amendment and the answer to Question 3 should be in the affirmative and, in our opinion, that answer should be given.

However, there is a further issue which requires consideration in that in the courts below and in the arguments submitted by counsel before this Court, the answer to Question 3 was debated as though the words "constitutionally required" were to be considered as meaning "legally required".

In the Quebec Reference the question is phrased differently in Question B. What is asked is wheth­er the Senate and the House of Commons are empowered by the Canadian Constitution, whether by statute, convention or otherwise, to cause the Canadian Constitution to be amended without the consent of the provinces, and in spite of the objec­tion of several of them, in such a manner as to affect the legislative competence of provincial legislatures, or the status or role of provincial legislatures or governments within the Canadian Federation.

We were not referred to any statute which confers such a power. The answer to Question 2, if answered in the affirmative, denies that such a power exists by convention. The remaining issue is whether such a power has been conferred on the two Houses otherwise than by statute or convention.

We think Question B of the Quebec Reference more clearly raises the legal issue than does Ques­tion 3 in the other two References and we shall deal with that issue in these reasons.

[Page 815]

At the outset, we would point out that we are not concerned with the matter of legality or illegal­ity in the sense of determining whether or not the passage of the Resolution under consideration involves a breach of the law. The issue is as to the existence of a power to do that which is proposed to be done. The question is whether it is intro vires of the Senate and the House of Commons to cause the proposed amendments to the B.N.A. Act to be made by the Imperial Parliament by means of the Resolution now before the Court, in the absence of provincial agreement.

This issue is unique because in the one hundred and fourteen years since Confederation the Senate and House of Commons of Canada have never sought, without the consent of the provinces, to obtain such an amendment nor, apparently, has that possibility ever been contemplated.

The British North America Act, 1867 (herein the B.N.A. Act) commences with the following significant recitals:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be feder­ally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union should conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Domin­ion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:

The first recital makes it clear that this statute was passed at the behest of the named provinces and that what was sought was a federal union. The second recital states that such union would "conduce to the Welfare of the Provinces".

Parts I — V of the B.N.A. Act provide for the establishment of the union by proclamation, and

[Page 816] for the vesting of executive and legislative author­ity in Her Majesty the Queen and Her representa­tives, and in the Parliament of Canada and the legislatures of the provinces. Part VI deals with the distribution of legislative powers. The opening words of s. 91 and s. 92 bear reproduction; they provide:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Com­mons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parlia­ment of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—

Section 93 gave exclusive power to the provinces to make laws in relation to education, subject to certain protective provisions in respect of denomi­national and separate schools.

Section 95 gave concurrent legislative power to the provincial legislatures and to the Parliament of Canada with respect to agriculture and immigra­tion, but provincial legislation was to be effective only so long as it was not repugnant to an Act of the Canadian Parliament.

Part VII of the B.N.A. Act dealt with judicature.

Part VIII dealt with revenues, debts and taxa­tion. Section 109 provided that all lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick should belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same were situate.

Part IX is entitled "Miscellaneous Provisions". Section 129 continued all laws in effect in Canada, Nova Scotia and New Brunswick in effect at the

[Page 817]

Union, subject, except as to Acts of the Parliament of Great Britain, to repeal, abolition or alteration by the Parliament of Canada or a provincial legislature according to their authority under the B.N.A. Act.

Part X dealt with the Intercolonial Railway.

Part XI is concerned with the admission of other colonies. Section 146 provided:

146. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Coun­cil, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legisla­tures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parlia­ment of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parlia­ment of the United Kingdom of Great Britain and Ireland.

This Act became the Constitution of Canada. It created a federal union of provinces and it careful­ly defined the respective spheres of the Canadian Parliament and the provincial legislatures in mat­ters of legislative jurisdiction and property rights.

The status of the provinces under the Constitu­tion was determined by the Privy Council in two important cases which arose not long after the enactment of the B.N.A. Act.

It was contended in Hodge v. The Queen[28] that a provincial legislature could not delegate its legis­lative powers to License Commissioners, for it was itself merely a delegate of the Imperial Parlia­ment. The Judicial Committee of the Privy Coun­cil rejected this argument in the following terms, at p. 132:

[Page 818]

It appears to their Lordships, however, that the objec­tion thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parlia­ment. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legisla­ture is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Domin­ion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carry­ing the enactment into operation and effect.

In Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick[29], it was argued that the province enjoyed no part of the Crown prerogative, and accordingly the Province of New Brunswick could not claim priority in respect of the Bank's assets for a debt owed to the province. The argument also involved the proposi­tion that the federal government did not share this constitutional incompetence. At p. 438, counsel contended:

The prerogative rights of the Crown cannot be invoked and exercised by the provincial government, as distinguished from the Dominion Government. There is no section in the British North America Act of 1867 which gives this Crown right to the province. According­ly, if the province possesses that right it must be on the general principle that the Lieutenant-Governor is entitled to exercise the prerogative of the Crown. But the effect of the Act of 1867 is that the Dominion Government represents the four provinces existing at the time of the Union and other provinces which were thereafter to be constituted; and, consequently, the direct connection

[Page 819]

between the Crown and the provinces has ceased. The Governor-General of Canada is the real representa­tive of the Crown as the Dominion is at present con­stituted; and the Lieutenant-Governor of each province is not. Certain portions of prerogative are given to the Lieutenant-Governors, and that is inconsistent with their representing the Crown entirely. Otherwise, if the Dominion and the provinces both possess full preroga­tive rights you might have the Crown as representing the one contending with the Crown as representing the other.

Lord Watson spoke for the Judicial Committee and, at p. 441, had this to say:

... they maintained that the effect of the statute has been to sever all connection between the Crown and the provinces; to make the government of the Dominion the only government of Her Majesty in North America; and to reduce the provinces to the rank of independent municipal institutions. For these propositions, which contain the sum and substance of the arguments addressed to them in support of this appeal, their Lordships have been unable to find either principle or authority.

Their Lordships do not think it necessary to examine, in minute detail, the provisions of the Act of 1867, which nowhere profess to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces. The object of the Act was neither to weld the provinces into one, nor to subordinate provincial govern­ments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retain­ing its independence and autonomy. That object was accomplished by distributing, between the Dominion and the provinces, all powers executive and legislative, and all public property and revenues which had previ­ously belonged to the provinces; so that the Dominion Government should be vested with such of these powers, property, and revenues as were necessary for the due performance of its constitutional functions, and that the remainder should be retained by the provinces for the purposes of provincial government. But, in so far as regards those matters which, by sect. 92, are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the passing of the Act.

After quoting from the Hodge case included in the passage cited above, he continued:

[Page 820]

It is clear, therefore, that the provincial legislature of New Brunswick does not occupy the subordinate posi­tion which was ascribed to it in the argument of the appellants. It derives no authority from the Government of Canada, and its status is in no way analogous to that of a municipal institution, which is an authority con­stituted for purposes of local administration. It possesses powers, not of administration merely, but of legislation, in the strictest sense of that word; and, within the limits assigned by sect. 92 of the Act of 1867, these powers are exclusive and supreme. It would require very express language, such as is not to be found in the Act of 1867, to warrant the inference that the Imperial Legislature meant to vest in the provinces of Canada the right of exercising supreme legislative powers in which the Brit­ish Sovereign was to have no share.

It was later established that the federal distribu­tion of powers embraces not only legislative but also executive powers: Bonanza Creek Gold Mining Co. v. The King[30], at p. 580, per Lord. Haldane. At p. 581 he said, referring to the Maritime Bank (supra) case:

It was there laid down that "the act of the Governor-General and his Council in making the appointments is, within the meaning of the statute, the act of the Crown; and a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for all purposes of Dominion government."

The assignment of powers by the Act to the Parliament of Canada and to the provincial legis­latures covered the whole area of self government. This was recognized by the Privy Council in Attorney-General for Ontario v. Attorney-General for Canada[31] at p. 581:

In 1867 the desire of Canada for a definite Constitu­tion embracing the entire Dominion was embodied in the British North America Act. Now, there can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand and the provinces on the other hand cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-govern­ment was withheld from Canada.

[Page 821]

In Murphy v. Canadian Pacific Railway Co.[32], at p. 643 Rand J. stated:

It has become a truism that the totality of effective legislative power is conferred by the Act of 1867, subject always to the express or necessarily implied limitations of the Act itself ... .

The foregoing review shows that the enactment of the B.N.A. Act created a federal constitution of Canada which confided the whole area of self-gov­ernment within Canada to the Parliament of Canada and the provincial legislatures each being supreme within its own defined sphere and area. It can fairly be said, therefore, that the dominant principle of Canadian constitutional law is federalism. The implications of that principle are clear. Each level of government should not be permitted to encroach on the other, either directly or indirectly. The political compromise achieved as a result of the Quebec and London Conferences preceding the passage of the B.N.A. Act would be dissolved unless there were substantive and effec­tive limits on unconstitutional action.

The B.N.A. Act did not make any specific provi­sion as to the means of determining the constitu­tionality of any federal or provincial legislation. That task has been assumed and performed by the courts, with supreme authority initially resting with the Judicial Committee of the Privy Council and, since 1949, with this Court.

In performing this function, the courts, in ad­dition to dealing with cases involving alleged excesses of legislative jurisdiction, have had occa­sion to develop legal principles based on the neces­sity of preserving the integrity of the federal struc­ture. We will be dealing with these later in this judgment. We will, however, at this point cite one instance of the performance of this task in the following case by the Privy Council.

In Attorney-General for Canada v. Attorney-General for Ontario[33], (the Labour Conventions case) the issue was as to the constitutional validity of three federal statutes enacted in 1935 dealing with labour matters, such as weekly rest in industrial

[Page 822] undertakings, hours of work and minimum wages. In substance, they gave effect to draft conventions adopted by the International Labour Organization of the League of Nations in accordance with the Labour Pact of the Treaty of Versailles, 1919, ratified by Canada. For the Attorney General of Canada it was argued that the legisla­tion was valid because it was for the purpose of performing Canadian treaty obligations. For the province it was contended that the statutes related to property and civil rights in the province.

The argument made on behalf of the Attorney General of Canada, as reported at p. 330, was very similar to the submissions made for the Attorney General of Canada in this case:

By the transference of the treatymaking power to the Dominion executive, and correlative power to legislate to carry out the obligations, nothing is taken from the Provinces.

(Lord Atkin. The Dominion has not got unlimited powers of legislation.)

The residuary clause of s. 91 of the British North America Act is capable of the construction, which is not inconsistent with decided cases, that where Canada has properly incurred an international obligation with respect to any matter whatsoever, that within whatever classes in ss. 91 and 92 it may be described as coming under other circumstances, once the matter has assumed the aspect of an international bargain it is no longer to be treated as belonging to any one of the enumerated classes.

(Lord Atkin. That is a very far-reaching doctrine: it means that Canada could make an agreement with any State which would seriously affect Provincial rights.)

It is a power which cannot be exercised by Canada alone; some other country must be found which is willing to enter into a bargain. This matter must not be looked at as though Canada is going to look about the world to find some one with whom to make an agreement for the purpose of robbing the Provinces of their constitutional rights. But, logically, it must be admitted that whatever Canada and such other country agree to do can be effected by Canada.

This argument was rejected not only on the basis that there was no support for it in the

[Page 823]

Constitution itself, but also because of its incompatibility with the federal structure of government in Canada. At pp. 351-53, Lord Atkin said:

For the purposes of ss. 91 and 92, i.e., the distribution of legislative powers between the Dominion and the Provinces, there is no such thing as treaty legislation as such. The distribution is based on classes of subjects; and as a treaty deals with a particular class of subjects so will the legislative power of performing it be ascer­tained. No one can doubt that this distribution is one of the most essential conditions, probably the most essen­tial condition, in the interprovincial compact to which the British North America Act gives effect. If the position of Lower Canada, now Quebec, alone were considered, the existence of her separate jurisprudence as to both property and civil rights might be said to depend upon loyal adherence to her constitutional right to the exclusive competence of her own Legislature in these matters. Nor is it of less importance for the other Provinces, though their law may be based on English jurisprudence, to preserve their own right to legislate for themselves in respect of local conditions which may vary by as great a distance as separates the Atlantic from the Pacific. It would be remarkable that while the Dominion could not initiate legislation, however desirable, which affected civil rights in the Provinces, yet its Government not responsible to the Provinces nor controlled by Pro­vincial Parliaments need only agree with a foreign coun­try to enact such legislation, and its Parliament would be forthwith clothed with authority to affect Provincial rights to the full extent of such agreement. Such a result would appear to undermine the constitutional safeguards of Provincial constitutional autonomy.

It follows from what has been said that no further legislative competence is obtained by the Dominion from its accession to international status, and the consequent increase in the scope of its executive functions. It is true, as pointed out in the judgment of the Chief Justice, that as the executive is now clothed with the powers of making treaties so the Parliament of Canada, to which the executive is responsible, has imposed upon it respon­sibilities in connection with such treaties, for if it were to disapprove of them they would either not be made or the Ministers would meet their constitutional fate. But this is true of all executive functions in their relation to Parliament. There is no existing constitutional ground for stretching the competence of the Dominion Parlia­ment so that it becomes enlarged to keep pace with enlarged functions of the Dominion executive. If the new functions affect the classes of subjects enumerated in s. 92 legislation to support the new functions is in the competence of the Provincial Legislatures only. If they

[Page 824]

do not, the competence of the Dominion Legislature is declared by s. 91 and existed ab origine. In other words, the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the constitution which gave it birth.

There are several features of the Labour Conventions case which require emphasis. The federal government was in that case asserting the right to enact legislation which was within provincial au­thority in order to carry out the treaty obligations which it had assumed. No question was raised as to the validity of the federal government's author­ity to negotiate and ratify international treaties. What was held unconstitutional by the Privy Council was the use of that lawful procedure to legislate indirectly beyond the powers invested in the federal Parliament by s. 91 of the B.N.A. Act.

In these appeals this Court is equally concerned with the exercise of a valid power, namely, the power of the federal Houses of Parliament to pass resolutions requesting amendments to the B.N.A. Act. That power has historic foundation, but we note that it has never before been exercised for the purpose of curtailing provincial legislative author­ity without provincial consent. In the context of the Labour Conventions case, the issue in these appeals is whether the established incompetence of the federal government to encroach on provincial powers can be avoided through the use of the resolution procedure to effect a constitutional amendment passed at the behest of the federal government by the Parliament of the United Kingdom.

The only provisions of the B.N.A. Act dealing with amendments to the Constitution are as follows. Head 1 of s. 92 empowered a provincial legislature to make laws in relation to:

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.

Section 146, already cited, made provision for the admission of other colonies and territories into the Union.

[Page 825]

By an amendment made in 1949 to s. 91 of the B.N.A. Act, a limited power of amendment was given to the federal Parliament. Head 1 of s. 91 enabled it to legislate in relation to:

1. The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: Pro­vided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such con­tinuation is not opposed by the votes of more than one-third of the members of such House.

This provision specifically excepted from its operation, inter alla, matters coming within the classes of subjects assigned exclusively to the prov­inces. The scope of s. 91(1) was considered by this Court in Re: Authority of Parliament in relation to the Upper House[34] (herein the Senate Refer­ence). In that case, this Court unanimously held that the federal government could not, acting under s. 91(1), abolish the Senate. The term "Con­stitution of Canada" found in s. 91(1) was held in its context to refer only to the federal juristic unit. It is significant that when, as recently as 1949, the Houses of Parliament sought and obtained a provi­sion permitting the federal Parliament to amend the Constitution by legislation, specific provision was made to ensure that this power was not ca­pable of implying any right to interfere with those powers assigned to the provinces by the B.N.A. Act.

Because the Canadian Constitution was created by the B.N.A. Act in the form of an Imperial statute, it followed that in the absence of a provi­sion for amendment within it, its amendment could

[Page 826] only be effected by the enactment of an Imperial statute. Over the years many amendments have occurred in this way. The practice has developed, since 1895, to have the formal approach to the Imperial Parliament made by means of a joint address of both Houses of Parliament. This form of procedure had been followed earlier in respect of amendments to the Act of Union, 1840. It is also the procedure spelled out in s. 146 of the B.N.A. Act as the means of approach to the Queen, acting on the advice of her Privy Council for the admission of existing colonies, or territo­ries, into the Union.

The record of constitutional amendments passed since 1867 by the Imperial Parliament is contained in the Favreau White Paper of 1965, issued by the federal government, and approved by the provin­cial governments. It was cited by this Court in the Senate Reference. Many of these amendments concerned mere formalities, such as the postponement of redistribution of seats in the House of Commons in 1916 and 1943 to await the cessation of hostilities. Those amendments which were important in relation to the proper procedure for amendment were discussed in that Paper, and we think they bear repetition in full:

(1) The British North America Act of 1871—(Establishment of new provinces and administra­tion of territories)

Because this was the first attempt by Canada to have the Constitution amended, there were no precedents for the government of the day to follow. It requested the amendment from the British Parliament without refer­ence to the Parliament of Canada, and the latter took strong exception. The opposition in Parliament con­demned the government for its failure to secure prior approval of Canada's legislative authority. The government agreed that such matters should be referred to Parliament, and the House of Commons unanimously adopted a resolution stating that " ... no changes in the provisions of the British North America Act (would) be sought by the Executive Government without the previ­ous assent of the Parliament of this Dominion". A few days later, the government brought down a joint Address, which was concurred in by both Houses of Parliament, and which formed the basis upon which the amendment was finally passed by the British Parlia­ment.

[Page 827]

(2) The Parliament of Canada Act, 1875—

(Privileges, immunities and powers of the House of Parliament)

Notwithstanding the principle it had pressed for, and had had unanimously adopted by Parliament four years earlier when it was in opposition, the Canadian government of the day requested this amendment without "previous assent" or formal Address by Parliament. Objections again were raised in the House of Commons and a resolution similar to that of 1871 was introduced. After debate, the government conceded the propriety of the principle it had originally espoused: of referring proposed constitutional amendments to Parliament. The new resolution was withdrawn when the government agreed that a joint Address by both Houses of Parlia­ment was the only appropriate way of securing amend­ments to the Constitution.

(3) The British North America Act of 1886—(Representation of territories in Parliament)

The Canadian government submitted its request for this amendment to Westminster on the basis of a formal Address by both Houses of Parliament. With one excep­tion, this principle has been followed by every Canadian government since that time. The exception was the enactment in 1895 by the United Kingdom Parliament of the Canadian Speaker (Appointment of Deputy) Act, which was allowed without protest by the Canadian Parliament because of particular circumstances.

(4) The British North America Act of 1907—(Subsidies to provinces)

This was the first occasion on which the federal government consulted with the provinces before seeking a constitutional amendment. In this case, all nine of the provinces in existence were directly concerned with the amendment. All were consulted and eight of the nine provincial governments agreed to the federal proposal. One province opposed the proposal, both in Canada and in Great Britain. The British government made minor changes in the text of the draft bill, and the amendment was enacted.

(5) The British North America Act of 1915—(Redefinition of divisions of the Senate)

This amendment was passed without consultation with the provinces and without provincial government

[Page 828]

representations concerning its enactment. This amendment is important to Canadian constitutional development in that it was put forward in the form of a Canadian draft bill, embodied in the Address to the Crown and enacted without modification by the British Parliament.

(6) The British North America Act of 1930—

(Jurisdiction of Western provinces over their natu­ral resources)

This was the first application for a constitutional amendment relating to a provincial field that did not directly concern all provinces. It was obtained by the federal government after consultation with only those provinces directly affected except in one province where a resolution was adopted by the legislature after the Premier had already expressed the consent of his gov­ernment to the amendment.

(7) The British North America Act of 1940—(Unemployment Insurance)

This was the first amendment to change the distribu­tion of legislative powers between Parliament and the provinces, as provided in the 1867 Constitution. It trans­ferred the authority to legislate on unemployment insur­ance from provincial to federal jurisdiction. Before seek­ing this amendment, the federal government obtained the consent of all provincial governments. In this, as in previous cases of provincial concurrence, there was no reference of the question by any government to its legislature.

(8) The British North America Act of 1943—(Postponement of redistribution of seats in the House of Commons)

The federal government did not consult the provinces prior to seeking this amendment, and notwithstanding the protests of one provincial government, the Parlia­ment of the United Kingdom granted it. The position of the federal government was that this amendment con­cerned only the Government of Canada, since it did not affect provincial governments or legislatures.

(9) The British North America Act of 1946—(Readjustment of representation in the House of Commons)

The federal government sought this amendment on the same basis as that of 1943—that is, without provin­cial consultations—and for the saine reasons.

[Page 829]

(10) The British North America Act of 1949—(Entry of Newfoundland into Confederation)

A resolution was moved in the House of Commons urging that this amendment not be proceeded with until after consultation with the provincial governments. What the resolution meant by "consultation" was not clear. However, the amendment was enacted without such consultation and without any of the provincial governments formally objecting to its enactment, though one or two provincial governments stated publicly that consultation should have taken place.

(11) The British North America Act of 1949(2)—

(Authority of Parliament to amend certain aspects of the Constitution of Canada)

This amendment was obtained without consultation or formal consent of provincial governments, the federal government maintaining the position taken in connec­tion with the 1943 and 1946 amendments. At a federal-provincial constitutional conference the following year, however, the federal government indicated that, in the event of agreement on an overall procedure for amend­ing the Constitution in Canada, it would be prepared to reconsider the broad provisions of this amendment.

(12) The British North America Act of 1951—(Old Age Pensions)

This amendment was enacted after the federal gov­ernment secured the agreement of all provinces. In the case of the provinces of Quebec, Saskatchewan and Manitoba, the matter was referred to the legislatures, which authorized the governments of those provinces to agree to the amendment. Other provincial governments gave concurrence on their own authority.

(13) The British North America Act of 1960—(Tenure of office of certain Judges)

The federal government sougth [sic] this amendment only after obtaining the agreement of all provinces, since the amendment provided for the compulsory retirement at age 75 of judges of provincial courts. In this instance again Quebec placed the matter before its legislature before agreeing.

[Page 830]

(14) The British North America Act of 1964—(Supplementary benefits to Old Age Pensions)

This amendment was enacted after agreement of all provincial governments, with, in the case of Quebec, the concurrence of the Legislative Assembly. It involved a modification of section 94A created by the 1951 amendment on which prior agreement of all provinces had been obtained.

The Favreau White Paper goes on to say:

There have been five instances—in 1907, 1940, 1951, 1960 and 1964—of federal consultation with all prov­inces on matters of direct concern to all of them. There has been only one instance up to the present time in which an amendment was sought after consultation with only those provinces directly affected by it. This was the amendment of 1930, which transferred to the Western provinces natural resources that had been under the control of the federal government since their admission to Confederation. There have been ten instances (in 1871, 1875, 1886, 1895, 1915, 1916, 1943, 1946, 1949 and 1949(2)) of amendments to the Constitution without prior consultation with the provinces on matters that the federal government considered were of exclusive federal concern. In the last four of these, one or two provinces protested that federal-provincial consultations should have taken place prior to action by Parliament.

In no instance has an amendment to the B.N.A. Act been enacted which directly affected federal-provincial relationships in the sense of changing provincial legislative powers, in the absence of federal consultation with and the consent of all the provinces. Notably, this procedure continued to be followed in the four instances which occurred after the enactment of the Statute of Westminster, 1931.

This history of amendments reveals the opera­tion of constitutional constraints. While the choice of the resolution procedure is itself a matter of internal parliamentary responsibility, the making of the addresses to the Sovereign falls into two areas. Resolutions concerning the federal juristic unit and federal powers were made without refer­ence to any but the members of the federal Houses. Resolutions abridging provincial authority

[Page 831] have never been passed without the concurrence of the provinces. In other words, the normal constitu­tional principles recognizing the inviolability of separate and exclusive legislative powers were car­ried into and considered an integral part of the operation of the resolution procedure.

The history of constitutional amendments also parallels the development of Canadian sovereignty. The B.N.A. Act did not have among its purposes the severance of Canada from the British Com­monwealth. However, the vital role of Canadian consent as an expression of Canadian sovereignty is revealed in the fact that no constitutional amendment has been passed without that consent.

The Statute of Westminster, 1931 was enacted following two Imperial Conferences held in 1926 and 1930, attended by representatives of the United Kingdom, Canada, Australia, New Zea­land, South Africa, the Irish Free State and New­foundland. At the earlier conference, the estab­lished constitutional position was stated in a form which has come to be called the "Balfour Declaration":

They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

The Statute of Westminster, 1931 was enacted to give effect in the law of the United Kingdom to the established fact of sovereign status of the communities within the British Empire.

The following provisions of the Statute were referred to in argument before us:

2. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.

(2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provi­sions of any existing or future Act of Parliament of the

[Page 832]

United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parlia­ment of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.

3. It is hereby declared and enacted that the Parlia­ment of a Dominion has full power to make laws having extra-territorial operation.

4. No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof.

…

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

(2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces.

(3) The powers conferred by this Act upon the Parlia­ment of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively.

We do not regard s. 4 as having any real impact on the matter in issue in these appeals. The section uses the word "extend" and we therefore regard the section as meaning that a United Kingdom statute would not, in the absence of the declaration referred to in the section, be a part of the law of any dominion. It is, however, of interest that each of the amendments made after the Statute of Westminster, 1931 took effect contains a declara­tion that the enactment had been requested and consented to by Canada.

Of the dominions to which the Statute of Westminster, 1931 applied, all were unitary states except Canada and Australia, and the Australian constitution already contained provision for its amendment.

[Page 833]

In relation to Canada, the possible impact of s. 2 was a cause of concern to the provinces because it could be construed as enabling the federal Parlia­ment to repeal or amend the B.N.A. Act. The origin of s. 7 was the result of that concern. The Favreau White Paper at pp. 18-19 deals with the history of this section:

On June 30th, 1931, the Right Honourable R. B. Bennett, Prime Minister of Canada, introduced in the House of Commons a resolution for an Address to His Majesty requesting the enactment of the Statute of Westminster. The preamble to the resolution said:

"And whereas consideration has been given by the proper authorities in Canada as to whether and to what extent the principles embodied in the proposed act of the parliament of the United Kingdom should be applied to provincial legislation; and, at a domin­ion-provincial conference, held at Ottawa on the sev­enth and eighth days of April, in the year of Our Lord one thousand nine hundred and thirty-one, a clause was approved by the delegates of His Majesty's gov­ernment in Canada and of the governments of all of the provinces of Canada, for insertion in the proposed act for the purpose of providing that the provisions of the proposed act relating to the Colonial Laws Validi­ty Act should extend to laws made by the provinces of Canada and to the powers of the legislatures of the provinces; and also for the purpose of providing that nothing in the proposed act should be deemed to apply to the repeal, amendment or alteration of the British North America Acts of 1867 to 1930; or any order, rule or regulation made thereunder; and also for the purpose of providing that the powers conferred by the proposed act on the parliament of Canada and upon the legislatures of the provinces should be restricted to the enactment of laws in relation to matters within the competence of the parliament of Canada or any of the legislatures of the provinces respectively."

The Prime Minister explained that the Dominion-Pro­vincial Conference referred to in the preamble had been convened in response to representations by Ontario, subsequently supported by the other provinces. He referred to the apprehension of some of the provinces that under provisions as broad as those to be inserted in the Statute of Westminster, a dominion parliament might encroach upon the jurisdiction of a provincial legislature and exercise powers beyond its competence. He pointed out that " ... lest it be concluded by inference that the rights of the provinces as defined by the British North America Act had been by reason of

[Page 834]

this Statute curtailed, lessened, modified or repealed", a section of the Statute of special application to Canada declared, with the unanimous concurrence of the prov­inces, that such was not the case.

The Statute of Westminster, 1931 was passed on December 11, 1931. Earlier that year, Mr. Louis St. Laurent, then President of the Canadian Bar Association, and a distinguished constitutional lawyer, referred in his presidential address, reported in (1931), 9 Can. Bar Rev. 525, to the resolu­tions of the House of Commons and the Senate requesting the enactment of the Statute. This speech was not delivered in a political context. At that time he did not hold any political office. It was some years later that he became a Member of the House of Commons and a Minister of the Crown. The following passage from that speech [at p. 533] is relevant to the issue now before the Court:

Now, it may be that while both the Dominion and the Provinces remained subject to the legislative jurisdiction of His Majesty's Parliament of the United Kingdom, that Parliament had, in theory, full power to vary the distribution of legislative jurisdiction between them. But after the declaration of 1926 that both the United Kingdom and the Dominions are autonomous communi­ties equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, it would hardly seem probable that the Parlia­ment of the United Kingdom would undertake to legislate for the territory of any one of those Dominions, unless it be expressly declared in the Act that that Dominion had requested and consented to the enactment of the proposed legislation. And if the United Kingdom and the Dominions are equal in status and in no way subordinate one to another in any aspect of their domestic or external affairs, does not the provision of section 92 of the Act of 1867, that in each province the legisla­ture may exclusively make laws in relation to the amendment from time to time of its constitution, except as regards the office of Lieutenant-Governor, seem to indicate that the Houses of the Dominion Parliament would have no jurisdiction to request or to consent to enactments that might extend or abridge Provincial legislative autonomy? It is true that one of the proposed sub-sections of the Statute of Westminster is to declare that nothing in that Statute shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder; but the declaration of the

[Page 835]

Imperial Conference purports to be a statement of the established constitutional position, and if it is so in fact, is anything further required to make it clear that the constitution of the provinces can be amended or affected only by the provinces themselves?

Section 92 excludes federal jurisdiction over them, and the declaration of 1926 does seem to state a consti­tutional position that precludes interference with them by any other Parliament to which they are said to be in no way subordinate.

The Statute of Westminster, 1931 gave statutory recognition to the independent sovereign status of Canada as a nation. However, while Canada, as a nation, was recognized as being sovereign, the government of the nation remained federal in character and the federal Parliament did not acquire sole control of the exercise of that sovereignty. Section 2 of the Statute of Westmin­ster, 1931 standing alone, could be construed as giving that control to the federal Parliament, but the enactment of s. 7, at the instance of the provinces, was intended to preclude that exercise of power by the federal Parliament. Section 7(3) in particular gave explicit recognition to the con­tinuation of the division of powers created by the B.N.A. Act. The powers conferred on the Parlia­ment of Canada by the Statute of Westminster, 1931 were restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada.

The effect of s. 7(1) was to preserve the Imperi­al Parliament as the legal instrument for enacting amendments to the B.N.A. Acts, 1867-1930. This clearly had no effect on the existing procedure which had been used to obtain the amendment of the B.N.A. Act. The resolution procedure, which, after 1895, had produced all the constitutional amendments until 1931, has been followed in respect of all the constitutional amendments passed since 1931.

The Attorney General of Canada presented a deceptively simple argument in support of the legality of the Resolution at issue in these appeals. It was argued that the Resolution is not a law, and therefore not a proper subject for judicial consideration

[Page 836] and, further, that the two Houses can legally pass any resolution which they desire. The Imperi­al Parliament has full legal authority to amend the B.N.A. Act by enacting a statute, and its power to do so cannot be questioned. If, therefore, the Imperial Parliament enacts such a statute in response to a resolution of the Senate and the House of Commons, there can be no question of illegality.

However, it was also submitted that while the Imperial Parliament has full legal authority to amend the B.N.A. Act, there exists a "firm and unbending" convention that such an amendment will only be enacted in response to a resolution of the two Houses requesting it, and, further, that it will enact any amendment to the B.N.A. Act which is so requested.

In the result, if this process is examined from the point of view of substance rather than of form, what is being asserted is the existence of a power in the Senate and the House of Commons to cause any amendment to the B.N.A. Act which they desire to be enacted, even though that amendment substracts, without provincial consent, from the legislative powers of the provinces granted to them by the B.N.A. Act.

In support of the proposition that resolutions are questions of internal parliamentary procedure and are not proper subjects of judicial consideration, reference was made to two British authors. In his Introduction to the Study of the Law of the Constitution (10th ed.), Dicey states at pp. 54-55 that the resolution of neither House is law and each House has complete control over its own proceedings. May's, The Law, Privileges, Proceed­ings and Usage of Parliament (18th ed.), at p. 195 affirms the rule that each House has exclusive jurisdiction over its own internal proceedings.

The English authorities, such as Dicey and May, respecting the power of the Houses of Parliament to pass resolutions, and as to their effect, are related to resolutions of the Houses of Parliament in a unitary state. Under the British constitution, the only limitation on the power of Parliament is that its authority must be expressed in legislation.

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Any 'constitutional amendment' under the British constitution can be passed by normal legislation. Accordingly, these authorities are of no help in determining the limitations, if any, on the author­ity of one level of government in a federal state, respecting the use of an accepted amending proce­dure for the purpose of abridging the powers of the other legislative level. The Resolution under con­sideration is not a matter of internal procedure. A Resolution of the Senate and the House of Com­mons has become recognized as the means whereby a request is made to the Imperial Parliament for legislation to effect a constitutional amendment.

The power of the Senate and the House of Commons to pass resolutions of any kind, and to use such resolutions for any purpose, was stated by the Attorney General to have been recognized in s. 18 of the B.N.A. Act and s. 4 of the Senate and House of Commons Act, R.S.C. 1970, c. S-8. Section 18 of the B.N.A. Act provides:

18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immuni­ties, and powers shall not confer any privileges, immuni­ties, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Section 18 in its present form was enacted by the Parliament of Canada Act, 1875 to replace s. 18 of the B.N.A. Act, 1867. The difference in phraseology of the two sections is not relevant to the matter in issue in these appeals.

Section 18 did not, in itself, create or recognize the existence of the privileges, immunities and powers of the Senate and the House of Commons. It provided that their privileges, immunities and powers should be such as are, from time to time, defined by act of the Parliament of Canada, sub­ject to the limitation that Parliament could not by statute, give to the Senate or the House of Com­mons any privileges, immunities or powers which exceeded those enjoyed by the House of Commons

[Page 838] of the United Kingdom Parliament. Parliament could not grant legislative powers to its two Houses. Furthermore, because, unlike the Parlia­ment of the United Kingdom, Parliament's power to legislate was limited in extent, it could not grant to the Senate and the House of Commons powers which it did not itself possess.

In the exercise of the power granted to it by s. 18 of the B.N.A. Act, the Parliament of Canada, in 1868, passed An Act to define the privileges, immunities and powers of the Senate and House of Commons, 1868 (Can.), c. 23. Sections 1 and 2 of that Act provided as follows:

1. The Senate and the House of Commons respective­ly, and the Members thereof respectively, shall hold, enjoy and exercise such and the like privileges, immuni­ties and powers as, at the time of the passing of the British North America Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof, so far as the same are con­sistent with and not repugnant to the said Act.

2. Such privileges, immunities and powers shall be deemed to be and shall be part of the General and Public Law of Canada, and it shall not be necessary to plead the same, but the same shall in all Courts in Canada and by and before all Judges be taken notice of judicially.

The essential provisions of these two sections were repeated in subsequent legislation. They now appear in ss. 4 and 5 of the Senate and House of Commons Act, supra, as follows:

4. The Senate and the House of Commons respective­ly, and the members thereof respectively, hold, enjoy and exercise,

(a) such and the like privileges, immunities and powers as, at the time of the passing of the British North America Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom, and by the members thereof, so far as the same are consistent with and not repugnant to that Act; and

(b) such privileges, immunities and powers as are from time to time defined by Act of the Parliament of Canada, not exceeding those at the time of the pass­ing of such Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof respectively.

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Such privileges, immunities and powers are part of the general and public law of Canada, and it is not necessary to plead the same, but the same shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.