The British North America Act, 1867 is one of Canada’s foundational constitutional texts.1 Although enacted as a statute by the United Kingdom Parliament, the ‘BNA Act’ was based upon resolutions negotiated at Quebec by delegates from colonies intent upon forming a federation within the British Empire.2 The federation would quickly expand and the empire would eventually dissolve, and Canada would in time emerge as a sovereign state. However, these developments involved few formal constitutional changes. The BNA Act, now called the Constitution Act, 1867, is still in force at the centre of Canada’s constitution.3 It therefore remains important today that the framers of the Act resolved at Quebec that the federal government would be based upon ‘the model’ and ‘administered according to the well-understood principles’ of the ‘British Constitution’.4 The Act is a sparse document, and the well-understood principles of the British constitution were left undefined. However, the preamble to the Act states that it is the ‘Desire’ of the provinces to unite federally into ‘One Dominion … with a Constitution similar in Principle to that of the United Kingdom’.
(p. 106) The British constitution is thus stamped on the face of Canada’s principal constitutional text. But to what affect? During arguments made in 1888 before the Judicial Committee of the Privy Council in London, the final court of appeal for the empire, Edward Blake stated that although the BNA Act is ‘little more than a skeleton’, ‘a single line’ within its preamble ‘imports into the system that mighty and complex and somewhat indefinite aggregate called the British Constitution’.5 Blake’s statement is not wholly inaccurate, but it is misleading in two ways. First, it would be wrong to suggest that the ‘aggregate’ or whole British constitution is adopted in Canada. The similarity in constitutions is one of ‘principle’ only. Indeed, even this claim was regarded with scepticism at the time. In his leading book on the British Constitution, A.V. Dicey insisted that the similar-in-principle recital in the Act was a piece of ‘official mendacity’.6 ‘If preambles were intended to express the truth,’ wrote Dicey, ‘for the word “Kingdom” ought to have been substituted “States” ’.7 Dicey’s equation of the Canadian Constitution with the United States Constitution rather than the United Kingdom Constitution is problematic, but he was right to approach claims about the Britishness of the Canadian Constitution with caution. Second, Blake’s suggestion that the preamble ‘imports’ the British Constitution into the system established by the BNA Act is incomplete. Although it imports or copies certain British institutions, the Act itself was imported into, or enacted within, a larger legal context informed by British constitutional principles and also by other factors unique to Canadian history and experience. Indeed, the case in which Blake made his statement implicated British, French, and Aboriginal legal realities in Canada.8
In this chapter, I examine these points about the similarities and differences between the Canadian and British Constitutions mainly from a historical perspective. The story of Canada’s constitutional development is a long one, and my analysis will necessarily be thematic and selective rather than chronological and comprehensive in nature. I will begin by examining institutions and institutional structure, and then turn to the question of underlying normative value, or what Dicey called the ‘spirit’ of the constitution. My objective will be to show that by the mid-point of the twentieth century, the point at which appeals to the Judicial Committee of the Privy Council, the last meaningful exercise of British power over Canada, ended, a distinctively Canadian approach to British constitutional principles had begun to emerge.
References(p. 107) 2. Similarity in Institutional Structure
Canadian legal scholars of the late nineteenth-century bristled with indignation at Dicey’s claim that Canada’s constitution was similar to the American rather than the British Constitution.9 True, Canada was like the United States and unlike the United Kingdom in that it had a federal rather than a unitary constitution. However, as J.G. Bourinot argued, Dicey had overlooked the fact that Canadian institutions were otherwise ‘copies, exact copies in some respects’, of those found within the Westminster parliamentary system.10 The principal institutions within that system—an executive consisting of the Crown advised by a Privy Council; a legislature consisting of the Crown together with two houses of Parliament, the hereditary House of Lords and the elected House of Commons; and a judiciary centred upon the Queen’s Bench and other superior common law courts then located at Westminster Hall—served as the model for Canadian institutions.
The 1867 Act provides that the ‘Executive Government’ over Canada is ‘vested in the Queen’, that a ‘Governor General’ may carry on government ‘in the Name of the Queen’, that there shall be a ‘Queen’s Privy Council for Canada’ to ‘aid and advise’ in the government, and that there shall be a ‘Parliament for Canada’ consisting of ‘the Queen, an Upper House styled the Senate, and the House of Commons’.11 The labels used (with the exception of ‘Senate’) copy British not American terms. Indeed, the Queen is not a copy at all: the ‘Queen’ in the 1867 Act is Victoria and her heirs and successors the ‘Kings and Queens of the United Kingdom’.12 One consequence of the emergence of Canada as an independent state, however, is that the office of ‘Queen’ under the 1867 Act is now legally separate from the office that its occupants hold as British monarchs.13 Furthermore, the Queen has authorized the Governor General to exercise, upon the advice of the Canadian privy council, all of her powers in relation to Canada.14
As for the provinces, the terms employed by the 1867 Act—each province has an executive consisting of a ‘lieutenant governor’ advised by an ‘executive council’ and References(p. 108) legislatures consisting (initially) of the Lieutenant-Governor, an appointed ‘legislative council’, and an elected ‘legislative assembly’15—follow pre-Confederation terminology that was understood to imply the Westminster model. Indeed, W.H.P. Clement argued that Dicey’s failure to acknowledge the existence of provincial constitutions modeled along British lines prior to 1867 and their continuity under the BNA Act was one reason among others to object to his ‘official mendacity’ argument.16
Claims by Britain to the territories that form what is now Canada did not lead immediately to British modes of governance. Under the Royal Proclamation of 1763, for example, extensive territories were left without British institutions, and relations with Aboriginal nations were conducted through treaty councils.17 In the territories conquered from France and included within the province of Quebec by the Quebec Act, 1774, legislative power was in the hands of a Governor and appointed council, and although English law on ‘criminal’ matters was introduced the continuity of French-Canadian law on ‘property and civil rights’ was affirmed.18 For Edmund Burke and other critics of the Quebec Act, this ‘constitution’ was based on ‘the old law of France’ not ‘the laws of England’ and so was one of ‘despotic’ power (the prospect of arbitrary detention by lettres de cachet was even raised) rather than the rule of law.19
Once circumstances permitted, however, British modes of governance were introduced. The first legislature resembling the Westminster Parliament in what is now Canada convened in October 1758 in the province of Nova Scotia—an integral part (it was said) of a constitution based on ‘the general principles of British law and liberty considered the birthright of a free people’.20 The most ambitious attempt to establish the British Constitution, complete with the monarchical, aristocratic, and democratic elements celebrated by Blackstone, is found in the legislatures contemplated for the provinces of Upper and Lower Canada established upon the division of Quebec by the Constitutional Act, 1791.21 Legislative power was vested in the Crown, elected assemblies, and legislative councils the members of which were to be ‘discreet and proper’ persons appointed for life upon whom the Crown could confer titles that would make council membership ‘hereditary’. The parliamentary debates on the 1791 Act took place in the shadow of the French Revolution and prompted Burke to issue an impassioned defence of the Whig idea of the constitution as an ancient ordering of royal, noble, and popular (p. 109) sentiment.22 The provincial constitutions for Canada were to be ‘a perfect Image and Transcript’ of this constitutional ideal.23
In fact, no hereditary titles would be conferred upon members of upper legislative chambers. The old Whig constitution was the product of social conditions that could not be reproduced in Canada. Members of upper legislative chambers would align politically with Governors, and no independent landed gentry would emerge capable of mediating between Crown prerogative and democratic sentiment.24 Upon Confederation, one province, Ontario, would opt for a legislature with a single elected chamber, and the other provinces would later follow suit. The only bicameral legislature left today in Canada is the federal Parliament. Its upper chamber was modeled only loosely on the House of Lords, the Governor General appointing its members for life (now until age 75), and an American influence was explicitly acknowledged by the framers of the constitution in relation to the provision for an equal number of Senators from regional divisions in the country.25
Although not perfect transcripts of Parliament, local legislatures in Canada were assumed to be like Parliament. It was held that because provinces had ‘a constitution similar to that of England’, provincial legislative chambers enjoyed the privilege of controlling their internal proceedings free from executive or judicial interference just as, by custom and the Bill of Rights, 1689, the houses of Parliament in England did26—or at least they enjoyed those parliamentary privileges essential for their proper functioning.27 Today, the principles associated with parliamentary privilege as affirmed by the Bill of Rights, 1689 are regarded as forming part of the unwritten constitutional law of Canada by virtue of the preamble’s similar-in-principle recital.28
Acknowledging that the 1867 Act builds upon rather than breaks from previous legal realities assists in the interpretation of the provisions on the judiciary. Provinces are given the authority to constitute courts, but judges of ‘superior’ courts in the provinces are to be appointed by the Governor General, that is, the federal government, and these judges hold office during good behaviour and may not be removed except upon addresses by both houses of the federal Parliament.29 To understand what a ‘superior’ court is within the meaning of the Act, it helps to know that the provision on removal is copied directly from provisions in the Act of Settlement, 1701 protecting References(p. 110) the independence of superior court judges in England.30 It also helps to consider the courts actually existing in Canada in 1867, the continuity of which was provided for by the BNA Act.31 For example, the ‘Court of Queen’s Bench for Upper Canada’ possessed ‘all such powers and authorities as by the law of England are incident to a Superior Court of Civil and Criminal jurisdiction’ and ‘all the rights, incidents and privileges’ enjoyed by ‘any of Her Majesty’s Superior Courts of Common Law at Westminster, in England’.32 Here was one clear attempt to create an ‘exact copy’. It should be noted, however, that the protections for judicial independence found in the Act of Settlement were not considered to apply automatically in pre-Confederation Canada; instead, similar provisions were introduced gradually through local legislation, starting with Upper Canada in 1834.33 Today, the principle of judicial independence, as evidenced in part by the Act of Settlement, is regarded as forming part of Canada’s unwritten constitutional law by virtue of the preamble’s similar-in-principle recital.34
Reference to the conception of ‘superior’ court that developed within the common law tradition is important to the interpretation of the judiciary provisions of the 1867 Act. This is true of other institutions as well. For example, what powers does the ‘Queen’ have by virtue of being the ‘Executive Authority’ over Canada? She has those prerogative powers inherent in the Crown recognized ‘[b]y the law of the constitution, or in other words, by the common law of England’.35 It is this necessity of reading the 1867 Act together with ‘a great body of unwritten law’—the common law—that was, Bourinot argued, another reason to reject Dicey’s claim that Canada’s constitution was more American than British.36
Canada’s constitutional texts must also be read in light of unwritten constitutional customs or ‘conventions’. Perhaps the most important constitutional convention to emerge within the British parliamentary tradition is that the Crown may only exercise legal power on the advice of privy councilors who hold ministerial office and are responsible to and have the on-going confidence or support of the elected members of Parliament. The principal constitutional question in pre-Confederation Canada was whether Governors, as Crown representatives, were to exercise power on the advice of ministers responsible to the imperial Parliament in London or executive council members responsible to local assemblies—whether, in other words, there was to be genuine local self-government or not. The conflict produced by this question, exacerbated by national and linguistic divisions, erupted in rebellions in 1837–1838. The solution, References(p. 111) Governor General Lord Durham stated, required ‘no invention of a new constitutional theory’, only the resolve ‘to follow out consistently the principles of the British constitution’ within the colonies.37 It required, as the Nova Scotian politician Joseph Howe explained, the adoption within each province of ‘the principle of responsible government’, ‘the corner-stone of the British Constitution’.38 These recommendations would be implemented through instructions to Governors, and the colonial minister in Britain was able to state in 1852 that a system of ‘responsible government’ ‘copied from our own’ had been established in British North America.39 When the framers of the BNA Act referred to ‘the well-understood principles of the British Constitution’, it was mainly this system that they had in mind.40 In fact, the Act says nothing explicitly about responsible government. However, as A.H.F. Lefroy observed in his critique of Dicey’s ‘official mendacity’ claim, the Act does not prohibit members of the Canadian Privy Council or provincial executive councils from being members of the federal Parliament or provincial legislatures respectively, ‘and so [was] preserved the British system of responsible government’.41 In other words, no legal obstacle inhibits the constitutional convention, central to Canadian constitutional government to this day but impossible in the United States, by which executive power is exercised by a prime minister and cabinet ministers drawn from and responsible to the elected members of the legislature. Dicey later acknowledged this point, but merely changed his description of the preamble’s similar-in-principle recital from ‘official mendacity’ to ‘diplomatic inaccuracy’.42 It bears emphasizing that the rules governing responsible government, which are essential to the functioning of parliamentary democracy in Canada, are still considered to be, as they are in Britain, conventional rather than legal in character.43
The American influence in Dicey’s view was partly found in the fact that the 1867 Act establishes a federal rather than unitary constitution. Section 91 provides that the federal Parliament has authority to make laws for ‘the Peace, Order, and good Government of Canada’ in relation to all matters not assigned exclusively to the provinces. Canadian critics of Dicey were quick to point out, however, that this scheme does not follow the American example, for it leaves residual legislative power in federal hands whereas in the United States it is left with the individual states. J.H. Gray, one of the framers of the Quebec resolutions, stated that the Act was premised upon ‘the theory of the British constitution’ according to which power flows down from the Imperial Parliament to subordinate entities, in contrast to the United States where ‘power springs from the References(p. 112) people’.44 On this view, the Canadian approach emphasises central power and unity. This argument is reinforced by other provisions within the Act, in particular the allocation to the Governor General, that is, the federal government, of the power to appoint provincial Lieutenant-Governors, to appoint provincial superior court judges, and to disallow provincial statutes within two years of enactment.45 Indeed, leading framers of the BNA Act, as well as the first judges to interpret the Act, thought that it established the federal government as a quasi-imperial authority with the provinces being subordinate entities equivalent to municipal councils, the provincial Lieutenant-Governors being officers of the federal government rather than Crown representatives.46
This view of the Constitution did not last. The Judicial Committee of the Privy Council held that provinces are not subordinate but are coordinate and equal to the federal government enjoying independence and autonomy within the spheres of power allocated to them.47 In reaching this conclusion, however, judges were influenced by British rather than American principles. The ‘analogy of the British Constitution … on which the entire scheme is founded’, stated Viscount Haldane, means that provincial Lieutenant-Governors, although appointed by the Governor General, represent the Crown directly as a component of provincial legislatures, and the act by a Lieutenant-Governor of assenting to bills passed by a provincial assembly is therefore ‘in contemplation of law’ an act of the Crown not the federal government.48 Judges thus assumed that full-scale Westminster parliamentary systems were to operate at both federal and provincial levels. In a counterintuitive way, then, judicial commitment to British constitutional structures reinforced a strong version of federalism in Canada.
The judges on the Empire’s high court were also concerned that unless provincial powers, especially the power over ‘property and civil rights’ allocated to the provinces by section 92(13) of the 1867 Act, were judicially protected from federal intrusion, the continued survival of Quebec’s distinctive legal system would be threatened.49 This was another reason for a strong interpretation of federalism by the courts, and, again, it was arguably informed by British legal principles. The Judicial Committee recalled that the phrase ‘property and civil rights’ had been employed in the Quebec Act when the continuity of French-Canadian law had been affirmed in Quebec in 1774. The Quebec Act, in turn, affirmed the general common law presumption that local laws in References(p. 113) lands newly acquired by the Crown continued in force until explicitly repealed or modified.50 There was thus a connection between federalism in Canada and the older idea of legal pluralism within the Empire. Indeed, Clement argued that Dicey, in claiming that Canada’s constitution was more American than British because of its federal character, overlooked ‘the presence of the federal principle in the British constitution’.51 The ‘federal idea’ of ‘reconcil[ing] national unity with the right of local self-government’ was, Clement said, part of British Imperial constitutional law long before American federalism was established.52
That judges in Britain were in a position to dictate how the Canadian Constitution was to be interpreted is a reminder, if one were needed, of the fact that the Dominion of Canada began its life as a British colony. Canadian institutions were subject to a variety of Imperial controls, most of which had fallen into disuse by the late nineteenth-century. The Statute of Westminster, 1931 would confirm legally what was already true politically, that the British Parliament was no longer sovereign over Canada and other dominions. One exception to the atrophy of Imperial authority, however, was the Judicial Committee of the Privy Council, which continued hearing appeals from Canadian courts even after a Supreme Court of Canada was established in 1875. Not only were its decisions binding on Canadian courts, but the Judicial Committee held that in cases involving English law judicial interpretation was to be ‘as nearly as possible the same’ throughout the Empire, and so the decisions of domestic appellate courts within the United Kingdom were also binding in Canada.53 The effect of this view on Canadian public law cannot be overstated.54 Not only were significant parts of Canadian constitutional law based on the common law, but Canadian law and English law on constitutional matters were, at least until the abolition of appeals to the Judicial Committee from Canadian courts in 1949, supposed to remain perfectly aligned.
It is one thing to borrow institutional forms from another country; it is another to adopt the same normative values or attitudes that shape the behaviour of institutional actors. For his part, Dicey thought that attempts by other countries to emulate the British Constitution had often failed because the countries in question were unable to embrace References(p. 114) ‘the spirit of English constitutionalism’.55 Canadian institutions may have been copies of British institutions, but did they embrace the same constitutional ‘spirit’?
In answering this question, I will consider two cases from early twentieth-century Canada. In the first, Florence Mining Co. v Cobalt Lake Mining Co., a company that had staked claims to mining rights in a certain lakebed in Ontario sued a company that had later purchased the lakebed from the Crown, arguing that its rights had priority. After the action was commenced, however, the provincial legislature intervened with a statute confirming the second company’s title free from all competing claims.56 The second case arose after Ontario established a hydro-electricity commission to supply energy to municipalities through a contract to be approved by electors. In the second case, Smith v City of London, the validity of changes to the contract made without elector approval was challenged in court, and, again, the legislature intervened, amending the relevant statute to provide that the validity of the contract ‘shall not be called in question … in any court’ and that every action pending that sought to attack the validity of the contract or any municipal bylaw authorizing it ‘or calling into question the jurisdiction’ of the commission or any municipality was ‘forever stayed’.57 The cases were something of a cause célèbre at the time. In leading a campaign against the legislature’s interventions, Goldwin Smith, the British historian and journalist who then lived in Toronto, sought the assistance of his friend—Dicey. Smith thought that similar legislation in England would have been denounced as contrary to the Magna Carta, and he was surprised that there had been no such outcry in Canada.58 Before judgments in the cases were rendered, Smith asked Dicey to provide a legal opinion on the validity of the two statutes. Any thoughts he might express as to their inconsistency with ‘the spirit of English constitutional law’ would, Smith said, have ‘wide influence here’.59 Before looking at Dicey’s opinion, it is worth pausing to consider what this ‘spirit’ was and whether there had been evidence of it within Canada.
In his earlier work, Dicey had argued that unlike continental constitutions based on the civilian legal tradition, which he said were animated by an ‘administrative’ spirit, the British Constitution was animated by ‘the spirit of legality.’60 The spirit of legality implied, first, the ‘rule of law’, the idea that rights and liberties could not be denied arbitrarily but only through ordinary laws administered by ordinary courts, as well as the idea of ‘equality before the law’, or that public officials were subject to the same laws and courts as citizens and could be sued when they infringed rights or liberties without statutory authority—though it should be added that Dicey also acknowledged that References(p. 115) officials were supervised by the superior common law courts through the prerogative writs, emphasizing in particular protections of liberty provided by the writ of habeas corpus.61 The spirit of legality implied, second, ‘parliamentary sovereignty’, the idea that ultimate sovereign power in the state vested in the legislature not the executive. One feature of parliamentary sovereignty was the assumption that parliamentary power was legally unlimited, and Acts of Parliament could not be set aside by either the executive or courts. For Dicey, however, the spirit of legality was ensured because the rule of law and parliamentary sovereignty were mutually reinforcing ideas. Unlike an executive sovereign who can rule through ‘decrees’, a parliamentary sovereign must act through ‘formal and deliberate legislation’.62 This is ‘no mere matter of form’.63 If Parliament must act through laws rather than decrees it cannot easily ‘interfere in the details of administration’ or ‘with the regular course of law’.64 Its acts are ordinary laws that must be interpreted and applied in individual cases by judges who will invariably read statutory language, and especially any delegation of power to public officials, consistently with ‘the general spirit of the common law’.65 Things might have been different. Drawing upon civilian ideas, Crown lawyers had argued in the early seventeenth century that there was a ‘law of state’ permitting the executive to act above ordinary law to protect public welfare in cases of necessity, a law administered, if at all, by prerogative tribunals rather than regular courts. This kind of reasoning was accepted in France where a sharp substantive and institutional separation between public and other law emerged—a reflection, Dicey thought, of administrative rather than legalistic constitutionalism.66 However, the argument was rejected in England in the seventeenth century. As Lord Camden would state in Entick v Carrington, ‘the common law does not understand that kind of reasoning’.67 The British Constitution would be, in effect, a common law constitution based upon ‘the due supremacy of the ordinary law of the land’.68
It is not hard to find evidence of this constitutional spirit in Canada. First, something like the principle of parliamentary sovereignty was acknowledged—albeit in a modified form. As the Chief Justice of New Brunswick explained in 1838, the local legislature is ‘subordinate’ to the Imperial Parliament but otherwise has ‘the same power to make laws binding within the province that the Imperial Parliament has in the United Kingdom’, and, moreover, it is ‘a thing unheard of under British institutions for a judicial tribunal to question the validity and binding force of any such law when duly enacted’—unless, he added, the statute is ‘repugnan[t]’ to an Imperial statute extending to the colony.69 References(p. 116) A modified theory of parliamentary sovereignty along these lines would become the dominant theory in Canada after Confederation: it was held that federal and provincial legislatures have powers as plenary in nature as those of the UK Parliament so long as they operate within the areas allocated to them by the 1867 Act.70 We leave to the side for now the question of whether a legislature can really be sovereign and limited at the same time.
Second, once English law and courts based on English models were established in pre-Confederation Canada, proceedings that Dicey associated with the rule of law quickly appear. In Upper Canada, where these conditions obtained in the early 1790s71, we thus find courts entertaining actions against public officials for neglect or abuse of powers and issuing prerogative writs like certiorari and mandamus to supervise public authorities.72 What is perhaps more interesting is that we find the same pattern emerging in Lower Canada/Quebec where the powers of courts were not defined by explicit reference to those of English courts, and where French-Canadian law governed property and civil rights.73 Judges in Lower Canada held that if ‘[i]n England’ the superior courts ‘superintended’ inferior jurisdictions by issuing prerogative writs of prohibition or certiorari, then courts having ‘ordinary jurisdiction’ in the province had the same power.74 Actions against public officials for neglect or abuse of power were also entertained by the ordinary courts in Lower Canada, an impossibility within the French civilian tradition.75 The view emerged that those parts of French-Canadian law that formed ‘part of the public law’ were ‘superseded’76 and questions of ‘constitutional law’ were regulated by ‘the political law of England’.77 The fears of opponents of the Quebec Act proved unfounded. The affirmation of the ‘ancient laws of Canada’ in property and civil rights did not, as one judge said, ‘give up the Canadians to the rule of Lettres de Cachet and arbitrary imprisonment’.78 During the rebellions of 1837–1838, judges in Lower References(p. 117) Canada rejected arguments that the executive could, without statutory authorization, ‘silence the laws’ and detain rebels without trial on the basis that the ‘weal of the state’ was the ‘supreme law’.79 In Canada, as in England, the common law did not understand that kind of reasoning. Of course, these propositions do not, in themselves, confirm a flourishing spirit of legality.80 Government responses to emergencies in Canada were often heavy-handed.81 However, it was assumed then, as it is now, that measures adopted by the executive to secure public welfare must be authorized or indemnified by statutes enacted by the legislature.
Third, we find examples of the distinctive interpretive attitude that Dicey thought secured the reconciliation of legislative sovereignty and the rule of law. The case of Phillips v Redpath is exemplary in this respect.82 In this case, officials supervising the building of the Rideau Canal in Upper Canada were sued in trespass after they demolished a house, the plaintiff claiming that the defendants had acted to prevent the opening of a tavern by a ‘Yankee’, and the defendants offering no explanation but relying solely upon a provincial statute authorizing officials to appropriate land if needed for the canal.83 The justices found for the plaintiff. Justice James Macaulay concluded that although officials were responsible politically for how they exercised their ‘discretion’ under the statute, they were ‘liable to be proceeded against in the courts’ when by ‘exceeding the powers conferred’ they ‘tortiously’ invaded property rights.84 Chief Justice John Beverley Robinson agreed: when the legislature gives ‘large and liberal powers’ to officials, it is ‘inherent in the constitution’ that the courts may correct the ‘abuse’ of those powers, and it is insufficient merely to show that the defendant is ‘a public officer’.85 ‘It is not their public character alone,’ he wrote, ‘but their conduct in that character, which constitutes their protection, and that conduct therefore must be shewn by them to be legal’.86 Of course, judges could not second-guess the wisdom of each decision; however, where an official invoked the statute under ‘pretence merely’ and was ‘actuated by a different and therefore an unjustifiable object’, or when it was ‘manifest and obvious that not a sound but an arbitrary discretion had prevailed’, judicial intervention was warranted.87 To exercise powers conferred to build a canal in order to further an unrelated object based upon animosity toward a group or activity was not legal.88 ‘It References(p. 118) is unnecessary to remark,’ Macaulay J. observed, that ‘the laws we enjoy extend equal protection to all’.89 The rule of law may not always have flourished in a practical sense in pre-Confederation Canada.90 However, Phillips v Redpath aligns with Dicey’s sense of how the spirit of legality should flourish. Indeed, the case resembles in many respects the celebrated decision in Roncarelli v Duplessis, the leading case on statutory powers and the rule of law in Canada today in which Dicey’s theory of constitutionalism was expressly invoked.91
There is considerable evidence, then, that Dicey’s spirit of legality existed in Canada from an early stage. Of course, Dicey’s account of constitutionalism was a product of a distinctive history in which the threat to liberties came from arbitrary royal or executive power and the solution lay in the alliance of common law reason with parliamentary authority. If we return to the statutes in the Cobalt and Smith cases, however, it is clear that they reveal a different kind of problem: here parliamentary authority was wielded not through general laws open to judicial interpretation but through what were, in substance if not form, individuated decrees immune from judicial interpretation. The common law-parliamentary alliance necessary for the Diceyan spirit of legality had, in effect, broken down. The Ontario statutes thus reveal a weakness in Dicey’s theory of constitutionalism: if parliamentary authority is exercised through decrees rather than laws it cannot be reconciled with the rule of law, and the spirit of legality dissipates.
Dicey seemed to have grasped this point. In his opinion on the statutes, which Goldwin Smith quickly published, he concluded that there were no restrictions in the BNA Act preventing a province from exercising its legislative authority over property and civil rights in a ‘palpably unjust’ way.92 But were the specific statutes at issue in Cobalt and Smith valid? Here Dicey expressed ‘some hesitation’ and suggested that because the statutes were ‘so strange and manifestly unjust’ it was ‘at least possible the court … might be inclined to hold them invalid.’93 Dicey did not elaborate. However, later in his opinion he mused that perhaps a statute taking property from ‘designated individuals’ ‘might be held invalid as not being a law at all, i.e., as lacking that generality which some writers ascribe to a law (see e.g., Pollock, First Book of Jurisprudence, p. 35)’.94 The passage from Frederick Pollock’s book that Dicey cited may suggest what he had in mind. Here, Pollock argued that certain basic forms must be honoured if law and a system of justice administered according to law are to exist, including ‘generality’ (the law cannot be a rule made ‘merely for the individual’), ‘equality’ (‘the rule must have the like application to all persons and facts coming within it’), and ‘certainty’ (the rule must References(p. 119) be known, defined and recorded in advance).95 In other words, to succeed in making a law, certain values associated with the rule of law must be respected, which the Ontario legislature had failed to do. It is worth remembering that federal and provincial legislatures in Canada are authorized by the 1867 Act not to do anything they want, but only to make ‘Laws’.96
Judgments in the two cases were rendered and the impugned statues upheld. Justice W.R. Riddell presided over both cases and his reasons represent a tour de force on parliamentary sovereignty: within the powers allocated to them provincial legislatures are sovereign and supreme just as Coke, Blackstone, and Dicey said the British Parliament was.97 ‘All these powers are possessed in fact by our kinsmen across the seas,’ Riddell wrote, ‘and for myself I can see no reason why our rights in Ontario in local matters should be any less than the rights of those in the British Isles’.98 Writing extra-judicially, Riddell was critical of Goldwin Smith’s position, and he insisted that Canadian legislatures were not, as American legislatures were, ‘cribb’d, cabined and confined’ by the constitution; ‘[w]e will not’, he insisted, ‘submit to have our great public works delayed by cranks or the litigious’.99 Riddell’s views were consistent with other jurists of the day who celebrated the unfettered sovereignty of Canadian legislatures. ‘[If] Canadians are to enjoy a political life as inspiring, as vivid, and as free, as that of the people of the United Kingdom,’ Lefroy wrote, ‘no other theory of legislative power in Canada could suffice.’100
Two routes were taken in response to the judgments: one political, the other legal. Before a committee of the federal cabinet, counsel argued that the statute at issue in the Smith case be disallowed by the Governor General. Emphasis was placed upon the ‘doubt’ that Dicey had expressed about its legal validity.101 It was argued that if the legislature can ‘declare away the power of the courts in one Act’ then it could to so ‘in every Act’ and the judiciary would then become a ‘nullity’.102 It was not claimed that the statute was ‘ultra vires’ in the sense that it infringed ‘any particular rule or section of the British North America Act upon which we can lay our hands’; rather, the point was that the BNA Act ‘is not a complete category’ of constitutional rights and that legislative power was confined by, in addition to its written terms, ‘the spirit and purport of the Act’, including the principle, prized within the classic texts of English constitutionalism, References(p. 120) of ‘free access to the courts of law for the redress of grievances’.103 The request for disallowance was refused.
The Cobalt case was appealed. Before the Judicial Committee of the Privy Council, counsel submitted that by virtue of the similar-in-principle recital in the BNA Act’s preamble, ‘the fundamental principles of British jurisprudence’ became ‘embodied as part of the Canadian constitution’ and binding on Canadian legislatures.104 One strand of argument developed in this respect, seemingly inspired by the point in Dicey’s opinion about the need for generality in law, was that the impugned act was not ‘Legislative’ but rather embraced ‘arbitrary decrees’.105 It was argued that there must be a ‘general permanent law for Courts to administer or men to live under’, otherwise the administration of justice would be ‘an empty form, an idle ceremony’.106 Counsel concluded:
The Judges to be appointed by the Federal authorities were … not intended to sit to execute such arbitrary judgments of the Legislature but to administer justice according to law. The authority given to the Legislature is a power to make laws. The very nature of this power implies the element of generality.107
The appeal was unsuccessful.108 Dicey thought that the ruling was ‘disheartening’109 and he intended to issue, through Goldwin Smith, a sort of call to arms to Canadians: ‘Whether the government of Canada is to mean the rule of strict law & of justice, or of party spirit & of injustice now depends, & depends wholly upon the will of the Canadian citizen.’110 However, Smith would soon die and Dicey’s statement was never published.
It might seem surprising that Dicey, known as the defender of parliamentary sovereignty, would find the results in Cobalt and Smith disheartening. However, his position in this respect is consistent with his claim that Canada’s constitution was more American than British in nature. He meant no disrespect in saying this. Indeed, he thought that American institutions were ‘in their spirit’ essentially a ‘gigantic development’ of English political and legal ideas.111 However, he also insisted that the theoretical character of legislative authority in Britain was fundamentally different from legislative authority in either the United States or Canada. Dicey argued that American legislatures and legislatures in British dominions such as Canada were essentially the same References(p. 121) as municipalities and railway corporations with bylaw-making powers: they were not sovereign but subordinate entities exercising powers under a legal instrument, and any law made beyond those powers could be found by judges to be ultra vires and void. Indeed, Dicey insisted that the ‘American system’ of judicial review of legislation was ‘in principle borrowed from the common law of England’ which contemplated judicial rulings on legislative validity ‘whether the law making authority be the Parl[iamen]t of the Canadian Dominion or the Corporation of Oxford.’112
If this were so, Dicey’s critics claimed, then Canadian statutes could, like municipal bylaws, be judicially ruled invalid on the basis not just of the express terms of the governing statute but also if unreasonable.113 Or, more to the point, they could, like statutes in the United States, be judicially reviewed on the basis not just of written constitutional provisions but also ‘implied’ restrictions arising from ‘the general spirit of the Constitution’ including those principles relating to the nature of law that are ‘essential’ to the concept of a ‘free’ government.114 In other words, if the Canadian constitution were treated like ordinary law then the powers it conferred would always be shaped and moulded by the ‘general spirit of the common law’ or the ‘spirit of legality’. The ‘hesitation’ that he expressed in his opinion on the Cobalt and Smith cases is the closest that Dicey came to conceding that these were indeed the implications of his argument. However, this expression of hesitation seems to have been enough to inspire counsel in the two cases to develop in considerable detail the argument for implied limitations on legislative power based upon principles of legality.
What should also have been apparent to Dicey from his consideration of the Ontario cases was that the same threat to constitutional values existed in Britain itself: unless parliamentary authority in Britain was also limited implicitly by the demands of legality, unless Parliament was legally required to act through laws rather than decrees, his argument on the reconciliation of parliamentary sovereignty and the rule of law would collapse. However, Dicey never pursued this line of thought. Indeed, it would be many years before the argument was forcefully and elegantly made that legislative power in all common law jurisdictions, whether having written and entrenched constitutional instruments or not, is essentially the same and must always be exercised consistently with the implicit demands of legality.115
References(p. 122) In Canada, the general line of argument developed by counsel in the Cobalt and Smith cases based upon the preamble’s similar-in-principle recital, the rule of law, access to independent superior courts, and the Constitution’s implicit spirit, purport, or structure, would, in time, be accepted by the country’s judges. In 1949—the year that appeals to the Judicial Committee of the Privy Council were finally abolished—a judge held a federal statutory provision invalid based upon principles of legality and judicial independence derived from the common law tradition.116 The Supreme Court of Canada would gradually accept this general style of constitutional reasoning and the similar-in-principle recital in the preamble to the 1867 Act would play a central part in this evolving constitutional narrative117—even if, on occasion, the full implications of the reasoning were not always been appreciated.118
It is fair to say that Canada’s constitution is still today similar in principle to the British Constitution. However, it can be argued that it is similar only to that version of the British Constitution that sees parliamentary sovereignty and the rule of law as complementary not opposing ideals, and thus insists that legislative power manifest itself only through genuine laws and not decrees. We might even say that this is a Canadian contribution to the idea of constitutionalism. If so, then perhaps the question now is whether in Britain there is a willingness to see its constitution as similar in principle to Canada’s.
- Baker GB, ‘So Elegant a Web: Providential Order and the Rule of Law in Early Nineteenth-Century Upper Canada’ (1988) 38 UTLJ 184
- Bourinot JG, ‘The Federal Constitution of Canada’ (1890) 2 Jur Rev 131
- Cavendish H, Debates of the House of Commons in the Year 1774, on the Bill for Making More Effectual Provision for the Government of the Province of Quebec (J. Wright 1839)
- Clement WHP, The Law of the Canadian Constitution (Carswell 1892)
- Coupland R (ed), The Durham Report (Clarendon Press 1945)
- Dicey AV, Lectures Introductory to the Study of the Law of the Constitution (Macmillan 1885)
- _____. ‘Unjust and Impolitic Provincial Legislation and Its Disallowance by the Governor-General’ (1909) 45 Can LJ 457
- Gray JH, Confederation; or, the Political and Parliamentary History of Canada (Copp, Clark 1872)
- Grey (Earl), The Colonial Policy of Lord John Russell’s Administration (Richard Bentley 1853)
- References(p. 123) Greenwood FM, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Osgoode Society/University of Toronto Press 1993)
- Kennedy WPM (ed), Statutes, Treaties and Documents of the Canadian Constitution, 1713–1929 (Oxford University Press 1930)
- Laskin B, The British Tradition in Canadian Law (Stevens & Sons 1969)
- Lederman, WR ‘The Independence of the Judiciary’ (1956) 34 Can Bar Rev 769 (pt I), 1139 (pt II).
- Lefroy AHF, Canada’s Federal System, Being a Treatise on Canadian Constitutional Law under the British North America Act (Carswell 1913)
- _____. The Law of Legislative Power in Canada (Toronto Law Book 1897–1898)
- Murdoch B, Epitome of the Laws of Nova-Scotia (Joseph Howe 1832)
- Riddell WR, The Constitution of Canada in Its History and Practical Working (Yale University Press 1917)
- Romney P, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture’ (1989) 7 Law & Hist Rev 121
- Shortt A and Doughty AG (eds), Documents Relating to the Constitutional History of Canada, 1759–1791 (SE Dawson 1907)
- Walters MD, ‘Succession to the Throne and the Architecture of the Constitution of Canada’ in Philippe Lagassé and Michel Bédard (eds), The Crown and Parliament (Éditions Yvon Blais 2015)
- _____. ‘Written Constitutions and Unwritten Constitutionalism’ in Grant Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press 2008), 245–276
- Wright B and Binnie S (eds), Canadian State Trials, Volume III: Political Trials and Security Measures, 1840–1914 (Osgoode Society/University of Toronto Press 2009)
- Baldwin v Gibbon and McCallum (1813) Stuart’s Rep 72
- British Columbia v Imperial Tobacco Canada Ltd  2 S.C.R. 473
- Canada (Attorney General) v Ontario (Attorney General) (1894) 23 SCR 458
- Citizens Ins Co v Parsons (1881) 7 App Cas 96 (PC)
- Donegani v Donegani (1831) Stuart’s Rep 460; aff’d (1835) 3 Knapp 63 (PC)
- Entick v Carrington (1765) 19 St Tr 1029 (KB), 1073
- Florence Mining Co v Cobalt Lake Mining Co (1908) 12 OWR 297 (HC); aff’d  2 AC 412 (PC)
- Hamilton v Fraser (1811) Stuart’s Rep 21
- Hodge v The Queen (1883) 9 App Cas 117 (PC)
- In the Case of Daniel Tracey (1832) Stuart’s Rep 478 (LCKB)
- In re Initiative and Referendum Act  AC 935 (PC)
- Kielley v Carson (1842) 4 Moore 63 (PC)
- Lenoir v Ritchie (1879), 3 SCR 575
- Liquidators of Maritime Bank v Receiver-General of New Brunswick  AC 437 (PC)
- New Brunswick Co v Nova Scotia (Speaker of the House of Assembly)  1 SCR 319
- M’Nab v Bidwell and Baldwin (1830), Draper 144 (UCKB)
- Phillips v Redpath and McKay (1830) Draper 68 (UCKB)
- Reference re Alberta Statutes  SCR 100
- (p. 124) Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island  3 SCR 3
- Re Resolution to Amend the Constitution  1 SCR 753
- Reference re Senate Reform  1 SCR 704
- Reference re Supreme Court Act, ss 5 and 6  1 S.C.R. 433
- R v Hess (No 2)  4 DLR 199 (BCCA)
- Regina v Kerr (1838) 2 NBR 553 (SC)
- Saumur v Quebec  2 SCR 299
- Smith v London (City of) (1909) 13 OWR 1148 (HC)
- St Catherine’s Milling and Lumber Co v R (1889) 14 App Cas 46 (PC)
- Switzman v Elbling and A-G Que  SCR 285
- The Queen v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta  QB 892 (CA)
- Trial Lawyers Association of British Columbia v British Columbia (Attorney General)  3 SCR 31
- Trimble v Hill (1879) 5 App Cas 342 (PC)
5 The Ontario Lands Case: Argument of Mr. Blake, Q.C. before the Privy Council (Press of the Budget, 1888), 6. Blake was an influential lawyer who served as Premier of Ontario and later Attorney General of Canada.
9 J.G. Bourinot, ‘The Federal Constitution of Canada’ (1890) 2 Jur Rev 131; WHP Clement, The Law of the Canadian Constitution (Carswell, 1892), 3–25; AHF Lefroy, The Law of Legislative Power in Canada (Toronto Law Book, 1897–1898), xliii–xliv, xlv.
10 Bourinot, ibid 136.
12 BNA Act, s 2. See Mark D. Walters, ‘Succession to the Throne and the Architecture of the Constitution of Canada’ in Philippe Lagassé and Michel Bédard (eds), The Crown and Parliament (Éditions Yvon Blais, 2015), 263–292.
16 Clement, above (n 9) 3–4.
19 Sir Henry Cavendish, Debates of the House of Commons in the Year 1774, on the Bill for Making More Effectual Provision for the Government of the Province of Quebec (J. Wright, 1839), 213; also 20–21, 48–49, 89, 134–136, 196, 214–215.
21 Constitutional Act, 1791 31 Geo III c 31 (GB). For Blackstone’s eulogy for the mixed constitution see: Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765–1769), I, 48–52.
33 An Act to Render the Judges of the Court of King’s Bench in this Province Independent of the Crown, 1834, 4 Will IV c 2 (UC). WR Lederman, ‘The Independence of the Judiciary’ (1956) 34 Can Bar Rev 769, 1139.
36 Bourinot, above (n 9) 136.
38 Joseph Howe to Lord John Russell, 18 September 1839, in Kennedy above (n 4) 384–390, at 384, 387.
40 Debates on Confederation, above (n 25) 387 (HL Langevin).
41 Lefroy, above (n 9) lxiii.
44 J.H. Gray, Confederation; or, the Political and Parliamentary History of Canada (Copp Clark, 1872), 56. Gray wrote before Dicey made his comment, but the basic point he makes was adopted by critics of Dicey: Lefroy, above (n 9), xlvi, lxvi.
46 Debates on Confederation above (n 25) 42 (John A Macdonald); Lenoir v Ritchie (1879), 3 SCR 575, 622–625, 632–635.
50 Charles Yorke (Att Gen) and William de Grey (Sol Gen) to Lords of Trade, 14 April 1766, in Adam Shortt and Arthur G Doughty (eds), Documents Relating to the Constitutional History of Canada, 1759–1791 (SE Dawson, 1907), I, 255–256; Cavendish (n 19) 29 (Att Gen Edward Thurlow).
51 Clement above (n 9) 10.
52 Ibid 5, 8–9.
60 Dicey, above (n 6) 277.
61 Ibid 181, 182.
62 Ibid 333.
64 Ibid 335–336.
65 Ibid 339–340.
68 Dicey, above (n 6) 181, 182.
71 An Act to introduce the English law 1792 32 Geo III c 1 (UC). An act to establish a superior court of civil and criminal jurisdiction, 1794, 34 Geo III c 2 (UC) established a court of King’s Bench with all such powers ‘as by the law of England are incident to a superior court’.
72 Phillips v Redpath and McKay (1830) Draper 68 (UCKB); The King v Harris (1823) 1 Taylor 10 (UCKB), 16; The King v The Justices of the District of Niagara (1826) Taylor 394 (UCKB), 398; The King v The Justices of Newcastle (1830) Draper 114 (UCKB), 115–116; In re Sheriff of Newcastle (1831) Draper 503 (UCKB).
73 The affirmation of French-Canadian law by the Quebec Act, 1774 remained in force in Lower Canada. An Act for amending the Judicature, 1793, 34 Geo III c 6 (LC), s 2 established courts of ‘King’s Bench’ with ‘original jurisdiction’ in ‘all causes as well civil as criminal’.
78 Re Celestin Houde, 3 December 1838 (LCQB) in Judicial Decisions on the Writ of Habeas Corpus ad Subjiciendum, and on the Provincial Ordinance 2d Victoria, Chap. 4 (Three Rivers 1839), 6. See also Hay v Haldimand (Eng KB 1787) reported in The British Register III (July–Sept 1787), 294–295 (Governor of Quebec liable in trespass for imprisoning suspected revolutionary without trial).
80 The province was under constant threat and its judges were sometimes ‘Baconian’ in attitude: F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Osgoode Society/University of Toronto Press, 1993), 27–32.
90 Romney, above (n 24); G. Blaine Baker ‘So Elegant a Web: Providential Order and the Rule of Law in Early Nineteenth-Century Upper Canada’ (1988) 38 UTLJ 184.
93 Ibid 461.
94 Ibid 462.
98 Smith, above (n 57) .
102 Ibid 44.
103 Ibid 54.
104 In the Privy Council. On Appeal from the Court of Appeal for Ontario. Between The Florence Mining Company, Limited and The Cobalt Lake Mining Company, Limited. Appellants’ Case. Respondents’ Case. Record of Proceeding (London, 1910), 18.
109 Dicey to Smith, 19 April 1910 above (n 58) reel 21.
110 ‘Memorandum on the Judgment of the Privy Council’ enclosed in Dicey to Smith, ibid.
111 Dicey, above (n 6) 129.
114 Lefroy, Legislative Power in Canada, above (n 9) lii, citing Loan Assoc’n v. Topeka, 87 U.S. 655 (1874). On this case and the American approach to implied constitutional limits on legislative power in general, see Mark D. Walters, ‘Written Constitutions and Unwritten Constitutionalism’ in Grant Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008), 245–276.
117 Reference re Alberta Statutes  SCR 100, 133 (Duff J with Davies J concurring), 145–146 (Cannon J); Saumur v Quebec  2 SCR 299 (Rand and Kellock JJ); Switzman v Elbling and A-G Que  SCR 285 (Rand, Kellock and Abbott JJ); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island  3 SCR 3 (Lamer CJC for the majority); Trial Lawyers Association of British Columbia v British Columbia (Attorney General)  3 SCR 31; Reference re Senate Reform  1 SCR 704; Reference re Supreme Court Act, ss 5 and 6  1 S.C.R. 433.