The Judicial Committee and the British North America Act

The Judicial Committee and the British North America Act

G. P. BROWNE
Series: Heritage
Copyright Date: 1967
Pages: 246
https://www.jstor.org/stable/10.3138/j.ctt15jvxb6
  • Cite this Item
  • Book Info
    The Judicial Committee and the British North America Act
    Book Description:

    This comprehensive study is concerned primarily with the fundamental problem of the role of the judiciary in the federal system of Canadian government.

    eISBN: 978-1-4426-3263-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. PREFACE
    (pp. v-vi)
    G. P. B.
  3. Table of Contents
    (pp. vii-viii)
  4. TABLE OF CASES
    (pp. ix-xvii)
  5. LIST OF ABBREVIATIONS
    (pp. xviii-2)
  6. Chapter One JURISPRUDENTIAL ASSUMPTIONS: I
    (pp. 3-13)

    Although many of the following assumptions must be well known, most of them have been disregarded in accounts of the Judicial Committee’s interpretative scheme. But it should not be forgotten that if all legal systems require a balancing of stability and equity, the English system places a premium on the former object. In English law, precedents are not merely persuasive, but binding.¹

    This emphasis does not mean that the system is rigid; for the distinguishing process gives the courts some discretionary power,² and under certain conditions, overrulings are possible.³ Nevertheless, it is still useful to describestaredecisisas “the ‘sacred...

  7. Chapter Two JURISPRUDENTIAL ASSUMPTIONS: II
    (pp. 14-32)

    If the Judicial Committee were bound by its previous decisions, the framework of its interpretative scheme was probably constructed in its earliest judgments. If an “alternative” scheme were developed later on, however, extraneous considerations could have appeared at that point. Finally, if the Supreme Court of Canada were not bound by the decisions of the Judicial Committee, a contrast between the two sets of judgments might serve to evaluate the common complaint that Canada was saddled with an “alien,” as well as an unpractical, constitution.

    InRidesdale v. Clifton,¹ 1877, Lord Cairns decided that the Judicial Committee is not bound...

  8. Chapter Three THE COMPARTMENT PROBLEM: I
    (pp. 33-42)

    The distribution of legislative powers in a federal constitution is usually accomplished in two stages:¹ first, an “exhaustive” grant is made (so as to cover all the powers that are to be distributed); then the powers of either the central or the regional authority² are “enumerated” (and all “residuary” power left with the other authority). Disputes over legislative competence can thus be settled by means of a two-step procedure: if the impugned law concerns an enumerated subject, it is assigned to the authority with the enumerated powers; if that law does not concern an enumerated subject, it is assigned to...

  9. Chapter Four THE COMPARTMENT PROBLEM: II
    (pp. 43-54)

    The first incontestable precursor of the final solution to the Compartment Problem is Lord Watson’s judgment inTennant v. Union Bank¹ 1894:

    The question turns upon the construction of two clauses in the British North America Act, 1867. Sect. 91 gives the Parliament of Canada power to make laws in relation to all matters not coming within the classes of subjects by the Act exclusively assigned to the legislatures of the provinces, and also exclusive legislative authority in relation to certain enumerated subjects, the fifteenth of which is “Banking, Incorporation of Banks, and the Issue of Paper Money.” Sect. 92...

  10. Chapter Five THE COMPARTMENT PROBLEM: III
    (pp. 55-72)

    Since 1939, accounts of the Judicial Committee’s interpretative scheme have been practically defined by W. F. O’Connor’s SenateReport.ThisReportwas the first acount to be based on the Compartment Problem, and so, in this respect at least, is an undeniable landmark. If O’Connor had finally demonstrated the determining characteristic of the scheme, however, his analysis of the judgments which produced it was not so conclusive. The purpose of this chapter is to show the weakness of that analysis.¹

    O’Connor begins his argument like this:

    The so-called Fathers of Confederation thought that there could not possibly be any doubt...

  11. Chapter Six THE AMBIT PROBLEM: I
    (pp. 73-85)

    The spheres of legislative authority in a federal constitution can be delimited either by means of a general description of the nature of those spheres, or else through a detailed specification of their size, or ambit. The effect of the first method is to leave the original compromise relatively unprotected, but to establish a more flexible, or “organic,” constitution. The effect of the second is to safeguard the compromise, but to limit the means of adjusting it to new conditions.

    The proponents of the “constituent statute argument” contend that the British North America Act reflects the former method. The original...

  12. Chapter Seven THE AMBIT PROBLEM: II
    (pp. 86-98)

    The fact that the three-compartment view gives a “residuary” character to the Peace, Order, and good Government clause¹ probably accounts for the failure of this clause to become an “expansible federal provision.” Legislation was normally consigned to the “third compartment” only when it was held not to be in relation to a matter coming within the classes of “subjects” enumerated in either section 91 or section 92. Thus inGreat West Saddlery Company v. The King,² 1921, Lord Haldane argued that since “the power of a Province to legislate for the incorporation of companies is limited to companies with Provincial...

  13. Chapter Eight THE AMBIT PROBLEM: III
    (pp. 99-118)

    The Judicial Committee generally¹ gave a liberal interpretation to head 27 of section 91 (“The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters”). Thus inRussell v. The Queen,² 1882, Sir Montague Smith made the following statement:

    Next, their Lordships cannot think that the Temperance Act in question properly belongs to the class of subjects, “Property and Civil Rights.” It has in its legal aspect an obvious and close similarity to laws which place restrictions on the sale or custody of poisonous drugs, or of dangerously explosive substances. These things, as...

  14. Chapter Nine THE CONSIGNMENT PROBLEM: I
    (pp. 119-130)

    The Compartment and Ambit Problems are concerned with the construction of the British North America Act, whereas the Consignment Problem is concerned with the disposition of impugned laws. Because that disposition affected the framework of the Act, however, an analysis of the Judicial Committee’s interpretative scheme must take into account the solutions devised for the problem of consigning impugned legislation.

    This problem could not be solved either by settling the number of compartments or by delimiting their ambits. Since “subjects” are not disjunctive,¹ a law could involve a “subject” assigned to the federal parliament, and at the same time, a...

  15. Chapter Ten THE CONSIGNMENT PROBLEM: II
    (pp. 131-142)

    When the notion of severability was first raised, duringIn re The Initiative and Referendum Act,¹ 1919, Lord Haldane dismissed it briefly: it was not possible to save the “residue” of the act in question by severing the invalid parts because “the offending provisions are in their Lordships’ view so interwoven with the scheme that they are not severable.” InGreat West Saddlery Company v. The King,² 1921, Lord Haldane was more sympathetic: while he did not consider the mortmain provisions of the Manitoba and Saskatchewan acts inseverable, he did sever the valid Ontario Mortmain Act from the invalid Ontario...

  16. Chapter Eleven THE CONSIGNMENT PROBLEM: III
    (pp. 143-157)

    Even in the judgment characterized by O’Connor as the first three-compartment decision, the Judicial Committee ascribed more than a residuary quality to the Peace, Order, and good Government clause. In fact, theLocal Prohibitionjudgment¹ of 1896 might be considered the genesis of the “Dimensions Doctrine”; for Lord Watson accompanied his approval of the three-compartment view with a novel admission:

    Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or...

  17. Chapter Twelve CONCLUSION
    (pp. 158-170)

    Most accounts of the Judicial Committee’s interpretative scheme tend not only to confuse evaluation and analysis, but to neglect interrelationships and implications. Yet the most remarkable feature of that scheme is the fundamental congruity of its major components. The Rule of Precedent, the Theory of Judicial Restraint, and the Federal Principle are all in harmony; the three-compartment view corresponds with them; the delimitation of the ambits of legislative authority is in accordance with both that view and those jurisprudential assumptions; and the Consignment Doctrines agree, essentially, with the rest. Such interrelationships might not always be logically necessary, or causally connected;...

  18. Appendix A THE BRITISH NORTH AMERICA ACT, 1867–1957
    (pp. 173-208)
  19. Appendix B THE BRITISH NORTH AMERICA ACT, 1960
    (pp. 209-209)
  20. Appendix C THE STATUTE OF WESTMINSTER, 1931
    (pp. 210-212)
  21. Appendix D ANALYTICAL TABLE OF THE MAJOR JUDICIAL COMMITTEE JUDGMENTS
    (pp. 213-226)
  22. SELECT BIBLIOGRAPHY
    (pp. 227-242)
  23. INDEX
    (pp. 243-246)