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The Political and Legal Uses of Reference Cases by the Mackenzie King Government: 1935-1940

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The Political and Legal Uses of Reference Cases by the Mackenzie King Government: 1935-1940 THE POLITICAL AND LEGAL USES OF REFERENCE CASES BY THE MACKENZIE KING GOVERNMENT: 1935-1940 by JOHN FREDERIC VINCENT HART B.A. (Honours), Simon Fraser University, 1987 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES DEPARTMENT OF HISTORY We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA March 1991 (c) John Frederic Vincent Hart, 1991 In presenting this thesis in partial fulfilment of the requirements for an advanced degree - at The University of British Columbia, I agree that the Library shall make it freely avail• able for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. DEPARTMENT OF HISTORY The University of British Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 Date: March 1, 1991 Abstract This thesis provides an examination of both the political and legal uses of reference cases to the Supreme Court of Canada by the Mackenzie King government. Attention is devoted to the five-year-period, 1935-1940, in which the King administration submitted several politically motivated references to the Supreme Court. This political use of refer• ence cases to the Supreme Court began immediately after the Liberals returned to power in October 1935 when the government submitted the Bennett government's New Deal leg• islation for judicial scrutiny. Within the five-year-period the government forwarded two other references to the Supreme Court, again where highly controversial legislation was involved: the Alberta Social Credit statutes passed in 1937 and the private member's bill sponsored by CH. Cahan in 1939 to abolish overseas appeals to the Judicial Committee of the Privy Council, then the final court of appeal for Canada. The underlying premise of this thesis is that in each of the above instances the King government found it politically expedient to involve the Supreme Court in issues where questions of law were clearly subordinate to the political concerns of the federal government. Furthermore, in each instance, avenues of action, other than a reference case to the Supreme Court, were available to the federal government but were rejected by cabinet. Only in one instance, when Quebec's controversial 1937 Padlock Act was under close scrutiny, did the federal government avoid submitting a patently political issue to the Supreme Court, apprehensive of the consequences of such action. The federal govern• ment's reluctance to forward a reference to the Supreme Court in the case of Quebec's Padlock Act thus provides a revealing contrast to both the New Deal and the situation in Alberta where reference cases were initiated almost immediatelj'. The federal govern• ment's marked reluctance to deal with Quebec in a comparable manner therefore merits close attention and as such is an important element of this thesis. The background to each reference case, its political origins, the reasons for the fed• eral government's insistence on a reference-or in the case of Quebec, the reasons for ii avoidance of a reference—are the central issues addressed in this thesis. The cases are ex• amined from another viewpoint as well. Once before the Court, the political issues gave way as the Court focused primarily upon the legal issues involved. The Court's decisions thereby provide another important vantage point from which to view the implications of the federal government's actions. For example, an assessment of the legal argument and judicial reasoning in the New Deal cases helps one answer these questions: First, did King's lawyers really try to win? Second, did the courts (both the Supreme Court of Canada and the Judicial Committee of the Privy Council) simply bow to King's obvious de• sire that the legislation be declared ultra vires? Third, did the courts, as some have al• leged, decide that the depression was not an emergency? Although the King government may have found it preferable for short-term consid• erations to submit contentious political issues involving questions of law to the Supreme Court for its legal opinion, in the long-term it found itself dealing with unexpected compli• cations arising from the very decisions it sought. Even if the government successfully pre• dicts the legal outcome of a court case, it ma3' find itself dealing with a political outcome it had not anticipated. Certainty if the actions of the King government are any indication in the five-year-period under discussion, this is a complication a government seldom expects, although one as I argue, that it should prepare itself for. This thesis also demonstrates that when reference cases are employed by the fed• eral government, politicians, constitutional scholars, political journalists and other con• cerned citizens should ask two important questions: First, is the reference being initiated to avoid or delay assuming political responsibility in a given situation? Second, are like situa• tions indeed receiving like treatment? As indicated throughout this thesis, such questions are of great importance. Indeed, this thesis demonstrates that in the period between 1935 and 1940 the King administration initiated not only the New Deal reference, but for• warded CH. Cahan's private member's bill to the courts as well, in order to avoid dealing with a controversial political issue. So, too, the period provides a telling example of an in- iii stance where like situations were not treated alike as the striking similarities between the situation in Alberta and Quebec indicates. Clearly, a failure to ask questions such as the ones posed above leads to the possibility that the full meaning of the reference cases them• selves, their origins and their implications, will not be realized by the interested onlooker. iv Table of Contents Abstract ii Table of Contents v Acknowledgements vi Introduction 1 A Note on Primary Sources 5 1. A New Deal for Canada 9 The Evolution of the New Deal 10 The Debate in the House of Commons 21 Social Reform and the 1935 General Election 34 2. The New Deal Before the Supreme Court 38 Counsels' Arguments Before the Supreme Court 41 The Supreme Court Decisions 50 3. The New Deal Before the Privy Council 61 The Privy Council Decisions 62 The Aftermath: Implications and Expectations 76 4. Social Credit and the Constitution 80 The Attempt to Implement Social Credit in Alberta 82 Alberta vs. the Federal Government 88 The Terms of the Reference Cases are Defined 92 The Supreme Court Decisions and Their Implications 97 5. The Padlock Act and the Constitution 105 A Call for Action: Protest Against the Padlock Act 109 A Crisis of Liberalism 115 Public Reaction vs. Government Justification 122 A Fitting Postscript 128 6. An End to Overseas Appeals 134 The First Option: Amendment to the B.N.A. Act 135 The Second Option: Abolition of Appeals 139 Chief Justice Duffs Most Important Decision 148 Conclusion 155 Bibliography 161 v Acknowledgements I would like to take this opportunity to express my thanks to two individuals who have assisted me in the process of writing this thesis. My thesis supervisor, F. Murray Greenwood, has given me his full support and excellent advice from the beginning of this project. I am indebted to him for his endeavors and I am most pleased that he continued to work with me despite taking early retirement from U.B.C. Also I would like to thank a close famity friend, Nunzio J. Defoe, for his support when I first discussed the idea of em• barking upon an M.A. in History. His ongoing advice and encouragement during the course of my studies has been most appreciated. vi 1 Introduction October 1935 marked the return of William Lyon Mackenzie King to power after r having sat in opposition ranks for the previous five years watching the Conservative gov• ernment of R.B. Bennett struggle to cope with the depression. The new King administra• tion inherited the predicament of coaxing the B.N.A. Act to meet the never-ending needs of a country struggling in peacetime depression, a dilemma that Bennett had proven inca• pable of solving despite his New Deal legislative efforts. Like Bennett before him, King, too, found himself hampered by the terms of the B.N.A. Act; clearly, the federal govern• ment's inability to deal effectively with the on-going economic crisis was the central issue facing the King administration during the period before Canada's involvement with war in Europe. Ironically, the European war would not only bring an end to Canada's depression, it would have an irreversible centralizing effect upon the B.N.A. Act as well-a task which neither King, nor Bennett before him, had been able to accomplish. In retrospect, then, the period between 1935 and 1940 is unique, illustrative of the King government's en• deavors to find the means within the B.N.A. Act to allow the federal government to deal effectively with peacetime depression, a purpose that after 1940 would cease to exist. It is against this background that the King government's use of the Supreme Court of Canada for political purposes must be examined. Immediately after the Liberals returned to power, King's influential and powerful Quebec Lieutenant, Ernest Lapointe, Minister of Justice until his death in 1941, submitted a number of questions to the Supreme Court concerning the constitutionality of the Ben• nett government's New Deal legislation.
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