rivy Council and the Canadian C®nstituti.®

VINCENT c. MACDONALD Halifax

Y. Introductory By force of 's own legislation, as sanctioned by two deci- sions of the Judicial Committee of the Privy Council, the Su- preme Court of Canada has become the ultimate court of appeal in all Canadian causes. The attainment of this judicial autonomy severs the link of empire which the appellate jurisdiction of the Privy Council had constituted throughout the long period which the British North American colonies, and Canada and its prov- inces as we now know them, had lived under the sway of British common and colonial law as declared by that supreme tribunal. No longer are we bound by the decisions of an external court in matters of ordinary litigation or in the interpretation of our Con- stitution. The fact that that Constitution remains an enactment of an external parliament is a circumstance which in the sense of practical realities affects neither the ability of our to make laws nor the ability of our courts to interpret them and the Constitution from which they spring. This removal of Cana- dian institutions from the supervision and intervention of external agencies is the logical outcome of insistent developments in con- stitutional and legal matters. At all events the ability to regulate judicial appeals is indeed, as the Privy Council has observed, "a prime- element in Canadian ", and that power we now possess. The disappearance of this impairment of our sovereignty may, of course, be viewed with alarm or satisfaction . My own point * Icon. Vincent C. MacDonald, B.A., LL. B. (Dal.), LL. D. (St. F . X. and U.B.C.), of the Supreme Court of Nova Scotia. Formerly Dean of the Dal- housie Law School. Constitutional Adviser to the Royal Commission on Dominion-Provincial Relations. '-British Coal Corporation v. The King, [19351 A.C. 500 ; Att.-Gen. for Ontario v. Att.-Gen. for Canada, [19471 A.C. 127; 23-24 Goo . V. (1933), c. 53, s. 17; Supreme Court Act, 1949, 13 Geo. VI, c. 37, s. 3.

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of view is that it was an inevitable result of our evolution from colonial, to dominion, to national status, and one to be greeted with satisfaction . On balance I think there is much force in the view expressed by one of the present LawLords, Lord Normand, in a recent lecture 2 that the abolition of prerogative appeals is the "recognition that its task has been accomplished", that its accomplishment of that task has led "to its own. honorable ex- tinction", that the basis of our recent legislation is "that Canada has outgrown the need of a court of final appeal outside Canada", and that the legislation "is a final recognition that the safe- guards for the due administration of justice have long been firm- ly established [in Canada] as they are in England" . Satisfaction in the result is quite consistent with respect and gratitude for the services rendered to Canada by the Privy Council, manned as it has been by many of the greatest of British lawyers.' Such sentiments do not preclude a recognition that they apply in lesser degree to its services in the field of Canadian constitutional law than in that of ordinary law. In what follows I shall treat mainly of the career of the Privy Council as the interpreter of our Constitution, and attempt to evaluate its efficiency in that r6le. It is only fair to say that I have often pointed out what I have believed to be errors of ap- proach, technique and result on its part.4 That does not imply, I trust, that on this occasion I lack necessary objectivity. Certain it is that as a professional student of constitutional law I shall endeavour to write in the proper spirit of disinterested judgment. For the sake of convenience and simplicity I shall refer to the Constitution as if it were a "fundamental law" contained in the British North America Act, 1867 ; though in its proper sense it consists of many imperial statutes and orders in council, and of parts of that branch of the common law entitled English con- stitutional law, and of many rules of conventional origin.5 s The Judicial Committee of the Privy Council (Current Legal Problems 1950, pp. 5-6) . 3 See the tribute of Mr. Justice (now Sir Lyman) Duff in (1925), 3 Can. Bar Rev. 273; cf. Lord Shaw, Law as a Link of Empire (1923), 1 Can. Bar Rev. 19. ' To avoid invidious citation of my own writings I list some of them here and without further reference : Judicial Interpretation of the Canadian Con- stitution (1936), 1 U. of Toronto L. J. 260 ; Constitutional Interpretation and Extrinsic Evidence (1939), 17 Can. Bar Rev. 77 ; The Canadian Con- stitution Seventy Years After (1937), 15 ibid . 401 ; The Regulation of In- surance in Canada (1946), 24 ibid. 257; The Constitution in a Changing World (1948), 26 ibid . 21. s For discussions of it in its extended sense see LeFroy, Constitutional Law of Canada (1918) pp. 37-40; Dawson, (1947), Chap. 4; and G6rin-Lajoie, Constitutional Amendment in Canada (1950), Chap. 1.

1951] The Privy Council and the Canadian Constitution 1023

II. Nature of Privy Council Appeals The history and nature of the appellate jurisdiction of the Privy Council were described by it in British Coal Corporation v. The King in these terms .6 The Judicial Committee is a statutory body established in 1833 by an Act of 3 & 4 Will. 4, c. 41, entitled an Act for the better Administration of Justice in His Majesty's Privy Council. It contains (inter alia) the following recital : `And whereas, from decisions of various courts of judi- cature in the East Indies, and in the plantations, and colonies and other dominions of His Majesty abroad, an appeal . lies to His Majesty in Council.' The Act then provides for the formation of a Committee of His Majesty's Privy Council, to be styled the Judicial Committee of the Privy Council, and enacts that 'all appeals or complaints in the nature of appeals whatever, which either by virtue of this Act or of any law, statute or custom may be brought before His Majesty in Council' from the order of any Court or judge should thereafter be referred by His Majesty to, and heard by, the Judicial Committee, as established by the Act, who should make a report or recommendation to His Majesty in Council for his decision thereon, the nature of such report or recom- mendation being always stated in open Court. The Act contained a great number of provisions for the conduct of appeals. It is clear that the Committee is regarded in the Act as a judicial body or Court, though all it can do is to report or recommend to His Majesty in Council, by whom alone the Order in .Qouncil which is made to give effect to the report of the Committee is made. But according to constitutional convention it is unknown and un- thinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate Court of law, to which by the Statute of 1833 all appeals within their purview are referred. . . . In this way the functions of the Judicial Committee as a Court of law were established. . . . There had always been reserved a discretion to the King in Council to grant special leave to appeal from a colonial Court irrespective of the limitations fixed by the colonial law: this dis- cretion to grant special leave to appeal was in practice described as the prerogative right : it was indeed a residuum of the Royal prerogative of the sovereign as the fountain of justice. In early days it was to the King that any subject who had fâiled to get justice in the King's Court brought his petition for redress. As time went on. . . . from the Courts of the Channel Islands and later from the Courts of the Plantations or Colonies the petition went to the King in Council, and this continued to be the practice after the jurisdiction of the Privy-Council in English common law cases, had been abolished. It was this appellate jurisdiction . . . which was affirmed and regulated by Parliament in the Privy Council Acts of 1833 and 1844. Although in form the appeal was still to the King in Council, it was so inform only and became in truth an appeal to the Judicial Committee, which as such exercised as a Court of law in reality, though not in name, the residual prerogative of the King in Council? s [1935] A.C. 500, at pp. 510-512 (italics added). See also Nadan v. The King, [1926] A.C. 482, at p. 491.

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III. Composition and Procedure of Privy Council By the Judicial Committee Act of 1833 the Privy Council was constituted with a personnel of English judges ; in 1887 Scotch and Irish judges and, in 1895 and 1908, certain judges of the Su- preme Courts of the Dominions and India were rendered eligible. Normally the Board has consisted of five members and its con- clusions have taken the form of a unanimous report to the Sover- eign. The personnel of the Board in any case has been selected, from a sizable pool of eligibles, by the Lord Chancellor. It has thus been a court of fluctuating personnel characterized by the intermittent appearance and quick disappearance of many mem- bers, a fact which has not been conducive to familiarity with our Constitution or conditions, and which has also led to the domi- nance of a few personalities whose attendance was more regular and prolonged." The necessity of tendering a joint report has also produced an appearance of unanimity contrary to the fact in some cases; and in many cases leading to obscurity of expression rendering it difficult to ascertain the true ratio. Moreover, though the Privy Council is not bound by the doctrine of stare decisis, it has always acted in Canadian appeals as if it were, and this has led to disingenuous and tenuous "ex- planations" of previous decisions in the effort to preserve an appearance of consistency belied by the record.9

IV. Judicial Review of Colonial Legislation It is a remarkable circumstance that the courts of Canada, both before and since the union, have exercised the power to review and declare the invalidity of legislation, when found repugnant to an imperial statute, as if that power had been expressly con- ferred upon them. No such power was conferred in terms upon Canadian courts, or upon the Privy Council. The basis for the assumption of power is to be found in the inherent nature of the judiciary and in the principle that all legislatures are subordinate to the Imperial Parliament . This process of judicial review of legislation was described accurately by Todd in 1880 in his great work, Parliamentary Government in the British Colonies: $ For a survey of the trends of interpretation in various periods and the influence on them of various judicial personalities, see Jennings, Constitu- tional Interpretation : The Experience of Canada (1937), 51 Harv. L. Rev. 1. s See, e.g., the history of Russell v. The Queen (1882), 7 App. Cas. 829, through the cases dealing with the residuary power, and culminating in the Canada Temperance Act case, [19461~A.C. 193, and Re Japanese Canadians, [19471 A.C. 87.

1951] The Privy Council and.the Canadian Constitution - 1.®25

It is the general condition of all legislation by subordinate : and, provin- cial assemblies, throughout the British Empire, that the, same `shall not be repugnant to the law of England' . This condition is enforced . . . by the decision of the local judiciary in the colony, in the first instance, And ultimately of her Majesty's imperial privy council, upon an action or suit at law, duly brought before such a tribunal, to declare and adjudge . ' a colonial, dominion, or provincial statute, either in whole or, in,part, to be ultra vires and void, as being in excess of the jurisdiction conferred upon the by which the same was enacted, or at variance with some imperial law in force in the colony; orotherwise, by a similar decision, to confirm and approve of the legality of the act the validity of which had been impugned. The power of interpreting colonial statutes, and of deciding upon their constitutional effect and validity, is a common and inherent right, apper- taining to all her Majesty's courts of law [italics added] before which a question arising out of the same could be properly submitted for adjudi- cation. . . . it is the right and duty of any court of law, within the province, to entertain and decide upon the validity of the particular statute, or provision in a statute, which has been impeached . The judgment of the court upon this question is, of course, open to appeal, and liable to be reviewed and annulled by a court of superior jurisdiction, whose deci- sion likewise may be examined and adjudicated upon, either by the Su- preme Court of the dominion, or by the judicial committee of the privy council in England . By this process, a final and authoritative decision can be obtained, in respect to the legality of any provincial enactment, from the highest legal tribunal in the empire .,And, if the decision should be adverse, the statute in question would become void and of none effect . The Privy Council, in its capacity as the highest court in the colonial judicial system, first exercised this _power in relation to legislation of certain American colonies in the period between 1727 and 17559 and the judicial function thus established was frequently exercised by the Privy Council, and the local courts of the expanding Empire,1o As Sir Eyman Duff has written, this attitude of the Privy Council to colonial legislation "is the first .practical application to the statutes of a legislature of a doctrine which, in modern times, has come to be known as the doctrine of ultra vires; and, acting on the precedent set by the Privy Council, it not seldom happened that the colonial courts themselves refused effect to legislation enacted in disregard of some restriction or of some male or prin- ciple the legislature was under a legal obligation to observe"." The continuance of this function of judicial review as part of the appellate jurisdiction of the Privy Council was regarded by io See McGovney, The British Origin of Judicial Review of Legislation (1944), 93 U. Penn. L. Rev. 1. 11 See article cited supra, footnote 3.

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the British government as a vital element of control over the colonies, as a part of the heritage of the Briton overseas, as a favourable influence in the development of sound colonial courts, as a source of minority protection, and as a prerogative link of empire. All these aspects were stressed as late as 1876 by the Colonial Secretary, Lord Carnarvon, in correspondence concern- ing Canadian legislation that purported to cut off the right of appeal to the Privy Council." In the light of subsequent devel- opments it is notable that the Colonial Secretary asserted, and the Hon. Edward Blake rejected, the argument that the fact that the court of last resort was external to Canada provided a detach- ment from local affairs that made for impartiality, sound judg- ment and the protection of minority interests. On these points, in their relation to constitutional questions, Blake made replies which later were to form part of the growing conviction that there were disadvantages to Canada in the reten- tion of the right to appeal. Blake said With reference to the alleged value of decision of a Court `not included in the Confederation', I would observe that with the practical operation of the Federal , with the customs and systems which they may have grown out of its working, with many of the ele- ments which have been found most valuable if not absolutely necessary to a sound decision in that class of cases, a Court composed of English Judges cannot possibly be thoroughly acquainted. They may indeed learn from the argument in an isolated case the view of a particular Counsel upon the matter ; but the daily learning and experience which Canadians living under the Canadian Constitution acquire, is not theirs, nor can it be effectively instilled into them for the purpose of a particular appeal. I maintain that this training and learning, which can be given only by residence upon the spot, is of such vital consequence as to over- balance the advantages flowing from the probably superior mental capa- city of the Judges of the London Tribunal . Upon the question of partiality, he can conceive nothing "calcu- lated more deeply to wound the feelings of Canadians than an insinuation that impartial decisions are not to be expected from their Judges". As to the assertion that it was the policy of the Privy Council to secure absolute impartiality to the rights of minorities and that the decisions of Canadian judges were less likely to secure respect for the rights of all classes than the deci- sions of the Privy Council, Blake observed: It has been the policy and duty of the Canadian Government and Legis- lature (and they are able to refer with pride to the success of their efforts) to secure equal rights to all classes of the community . They may point

12 See Cannon, Some Data Relating to the Appeal to the Privy Council (1925), 3 Can. Bar Rev. 455.

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to results in the pursuit of that policy which have not yet been attained in the United Kingdom. . . . in both countries, the judicial decisions, it is believed, are impartial and independent, nor can any Canadian assent to the view that in order to find an impartial and independent Judge he must look beyond his own country for the exposition and administration of its laws.13 I have set forth these views of Blake's because I believe that as the years passed they gained large acceptance in Canada and, together with growing awareness of the inexpedient results of Privy Council interpretation of the Constitution and our emer- gence from colonial status, constituted the forces which led to, abolition.14 One may agree with Lord Normand is that where the right of appeal has been lost "the cause of it is to be found in the political conception that a member of the British Commonwealth of Na tions should not be precluded from setting up, if it so desires, a Supreme Court of Appeal with an ultimate and exclusive juris- diction", in the sense that that was the immediate cause. One cannot agree with his subsequent observation that the .-cause is not to be found "in the manner in which the Judicial Committee performed its duties" ; for the ultimate cause is to be found in that very thing. It was not the circumstance that the final tri- bunal of interpretation was external to Canada which was decis- ive; but the very manner in which it approached the- Constitu- tion and performed its duties as its expositor, and the unfortunate results upon the efficiency of our federal system. Such grounds of criticism must, of course, take account of the inherent difficulty of interpreting any Constitution in a period of revolutionary change in the frame of circumstances affecting the Constitution ; and which in the case of , Canada have included. changes in her political status, in her economy and in the accepted philosophy of the function of government.

V. Constitutional References It is not without point to remark that the Privy Council's con- tribution to the elucidation of the Constitution has been made in very considerable measure in a type of case not calculated to give even that acquaintance with Canadian life and problems - which. is Compare Scott, The Privy Council and Minority Rights, Queen's: Quarterly (1930), p. 668. 14 For these and other objections to Privy Council appeals, see Hughes,. National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations (King & Son, 1931), Chaps. 1, 5 and 8; cf. Dawson, Government of Canada (Toronto Univ . Press, 1947) p. 464. is Op. cit ., supra, footnote 2.

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is afforded by cases presenting actual facts as the background of controversy between litigants. By this is meant the device, common to all jurisdictions in Canada, known as the Reference of Constitutional Questions to the Supreme Court of Canada or to the Provincial Courts for their opinion. The Privy Council has dealt with about sixty of these references, which came to it by way of appeals from the Supreme Court and the provincial courts. Many of these involved the interpretation of sections 91 and 92, and of other sections relating to legislative power. Some related to the validity of exist- ing or draft legislation ; others took the form of abstract questions as to the capacity of Parliament or provincial legislatures to enact legislation of a described nature. These references have led to deci- sions establishing the scope of various heads of legislative power; and in some of them important canons of construction were enun- ciated. Accordingly, the conclusion must be that Privy Council deci- sions on constitutional references have gone a very long way to- wards establishing the net result of its interpretation of the B.N.A. Act. Some stress may be placed on this; for in these references it was deprived of the factual data so essential to a proper apprecia- tion of the context of affairs in which its decisions would operate for the future. There are, indeed, infirmities and dangers in the process of seeking advisory opinions, even in cases presenting the text of an existing or draft statute. These are particularly ap- parent when abstract questions as to jurisdiction are put; or when the answer depends upon the existence of relevant facts (for ex- ample, as to the presence or disappearance of a "national emer- gency"), proof of which is not fully supplied by the terms of reference or by the rules as to judicial notice.ls Accordingly the fact that more than a quarter of its pro- nouncements have been made in cases of this type must be taken as a circumstance mitigating some, at least, of the criticism di- rected at the results of its exposition of the B.N.A. Act.

VI. The Judicial Approach" In matters pertaining to the distribution of legislative powers the Privy Council has adhered steadily to the two-fold view (a) that 16 Generally as to constitutional references, see Davison, The Constitu- tionality and Utility of Advisory Opinions (1938), 3 U. of Toronto L. 3. 254 ; LaBrie, Canadian Constitutional Interpretation and Legislative Review (1950), 8 ibid. at pp. 347-51. 17 "Of all the means for ordering the political life of a nation, a federal system is the most complicated and subtle ; it demands the most flexible

1951] The Privy Council and the Canadian Constitution 1029

it mûst treat the B .N.A. Act "by the same methods of construc- tion and exposition" as other statutes; 1s and (b) that "if the text is explicit the text is conclusive . . . when the text is ambiguous . . . recourse must be had to the context- and scheme of. the Act"." That is to say, the B.N.A. Act is a statute to be inter- preted simply as such, and its intent and meaning are to be found from consideration of its own terms without extrinsic aid. Some instances there have been. in the last twenty years of a recogni- tion of the necessity of approaching the Act as a Constitution to which a more liberal construction should be given, and one allow- ing proper effect to extrinsic facts and developments. These new attitudes, however, appeared only in a few cases, which either involved no question of legislative power or involved matters outside sections 91 and 92, and thus had no considerable effect on the traditional attitude. Pursuant to this literalistic approach, the Privy Council ad- hered closely to the rdle of expounding and applying the Act according to its intent as collected from its terns and only from those terms. As Professor Jennings has said," the Privy Council "has never seriously wavered from the principle that it was their function to interpret the `intention of Parliament' as laid down in the Act and not to fit the constitution to the changing conditions of social life". Consistent with this attitude it has evinced no great concern that its conclusions have belied the facts of life in such matters as treaty implementation and co-operative attempts by the Dominion and provincial legislatures to control marketing. Thus it has said as to the former. "While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure" ;" as to the latter, it has said : "Unless and until a change is made in the respective legislative functions of the Dominion and Province it may well be that satisfactory results for both can only be obtained by co-operation"," and this in a de- and imaginative adjustments for harmonizing national and local interests. The Constitution . . . is not a printed finality but a dynamic process; its application to the actualities of government is not a mechanical exercise but a function of statecraft" . "The Constitution cannot be applied in disregard of the external circumstances in which men live and move and have their being" . Frankfurter, Mr. Justice Holmes and the Supreme Court (1938) p. 75; Martin v. Struthers (1943), 319 U.S. 141, per Justice Frankfurter, dissent- ing. ~a Bank of Toronto v. Lambe (1887), 12 App. Cas. at p. 579. is Att.-Gen.for Ontario v. Att.-Gen. for Canada, [1912]. A.C. at p. 583 . 2° Op. cit ., supra, footnote 8. Zi The Labour Convention case, [19371 A.C. at p. 354 (italics added) . ?2 The Natural Products Marketing case, [1937] A.C. at p. 389 (italics added) .

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cision defeating the greatest co-operative attempt in our history. When it is considered that the very nature of judicial review of legislation as applied to the general terms of a constitution operates to confer a wide discretion upon the judicial interpreter, it appears that such a restrictive and conceptualistic view of its function is as remarkable in a court of last resort as its results have been bad. Add to these considerations that the remedy of amendment has been unavailable for undesirable results (except in one lone instance) and this attitude of unconcern with con- sequences is seen to have been misconceived ; for constitutions are not intended to be construed in vacuo but as living instruments of government. At all events "the present constitutional approach is one of deciding upon the interpretation of an Imperial enactment, of applying legal rules of construction evolved for that Act, and, while so doing, of rigidly adhering to such well-worn legal doc- trines as the common-law rules as to the admissibility of evi- dence" .23 VII. View of Federalism This unconcern with the results of its rôle as a mere interpreter of a text comports ill with the fact that the Privy Council has in one very momentous matter been concerned with the Act as a Constitution. I refer to the fact that early in its career it formed a very definite view of the nature of the Federal Union effected by the Act and has persistently sought to make the Act square with that view. That view was that Canada is a true federation result- ing from a "compact" between sovereign bodies the legislatures of which were intended to possess equal status and autonomy within their prescribed limits; and that it was the function of the courts to maintain this compact and make these legislative rivals hew to the line of division ; and in particular to preserve provin- cial legislative "autonomy" from encroachment . The idea was conceived at an early stage and it persisted.24 The decisions are studded with indications of their Lordships' acute concern lest "provincial autonomy" be impaired or provincial jurisdiction be "absorbed" or "subordinated", and with references to the "com- pact theory" of union. There is much point in the view of Pro- fessor LaBrie 26 that their Lordships placed "the purpose and 23 LaBrie, op. cit ., supra, footnote 16, at p. 311.* 24 Citizens Insurance Co. v. Parsons (1881), 7 App. Cas. at p. 108 ; Liqui- dators of Maritime Bank v. Receiver General, [1892] A.C. at p. 437 ; Local Prohibition case, [1896] A.C. 348 ; Employment and Social Insurance case, [1937] A.C. at p. 367; Labour Conventions case, [1937] A.C. at p. 352 . 11 Op. cit., footnote 16, at p. 320.

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object of the Act on a level no higher than the intended fate of the political thereby created . . . .and appear to have assumed a state of opposed interest and continuing rivalry between provincial and federal sovereign legislatures" . The fact is that the B.N.A. Act does not embody a true federal system but a highly specialized kind of federalism; 26'that both in its and legislative terms it is deliberately weighted in favour of the central Government and Parliament; and in partic- ular it reveals a scheme of legislative jurisdiction in which Parlia- ment was to play the dominant part. The truth is, also, that their Lordships never understood the kind of federalism intended to be given, and in terms given; and in revolt against contentions contrary to their own ideas, and against the pro-Dominion bias which underlay the distribution of powers, proceeded to establish a balance of jurisdiction more con- formable to those ideas. "The only basic principle formulated by the Judicial Committee . . . concerns the retention and proper balancing of two equally sovereign legislatures. This principle is not expressed in the British North America Act and owes its origin to judicial sanction." 27 In the result, as most competent writers have agreed, it is incontestable that our Constitution, as it now exists in a text encrusted with decisions, is not what we sought or what the Imperial Parliament provided for us.2s It is history that, contrary to Lord Carnarvon's hopes, the Privy Council has not been a protector of minorities so much as it has been a protector of the provinces, and in that endeavour has dis- torted the whole scheme of legislative powers in the process of judicial fabrication of a constitution alien to that desired and enacted.2s That such a result should be reached by a tribunal avowedly seeking only the intention of Parliament in a process of literal interpretation is at once a commentary on Lord Carnarvon's be lief in the elements of impartiality and soundness inherent in an external tribunal, and a justification of Blake's fears of the minis- trations of an interpreter remote from "the daily learning and ex-

26 Scott, The Special Nature of (1947), 13 Can . Jour . Econ. and Pol. Sei. 13. 21 LaBrie, op. cit., at p. 346. 26 See, e.g., The O'Connor Report (King's Printer, Ottawa, 1939). 29 For a curious series of cases in which the doctrine of "separation of powers" was imported into the Constitution in relation to s. 96 of the B.N.A. Act providing for Dominion executive appointment of judges, and the re- strictive effect of them upon provincial legislative jurisdiction, see Willis, Section 96 of the British North America Act (1940), 18 Can. Bar Rev. 517 ; and Shumiatcher, Section 96 of the British North America Act Re-examined (1949), 27 ibid . 131.

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perience which Canadians living under the Canadian Constitution acquire".

VIII. Canons and Results of Interpretation In the course of its experience in interpreting the B.N.A. Act the Privy Council has enunciated and applied many canons of interpretation ; and in dealing with questioned enactments it has established a "method of inquiry" and rules for determining val- idity by discovering the "pith and substance" of legislation, its true "aspect", and the like.30 These are, of course, mere tools of exposition and do not hamper the truly discretionary power which pertains to all constitutional interpretation : they are but guides to future attempts. Their true significance lies in the fact of their application ; for as instruments of technique they have, along with the traditional attitude of approach and the concepts of federalism possessed by the Privy Council, led to the present situation as to the scope and function of the various components of sections 91 and 92, the sections in which, mainly, legislative power is divided. As may be expected, the result has not been satisfactory and legislative power in Canada is in a state of mal- adjustment so far as concerns the ability of the Dominion Parlia- ment, or of the provincial legislatures, or of all of them in concert, to meet the problems of today. The immediate causes of this situation date back to the fundamental misreading of sections 91 and 92 by Lord Watson in Tennant v. Union Bank,31 and in the Liquor Prohibition case32 in the nineties. It is, needless to ex- amine the course of reasoning which distorted the fair meaning of these provisions; 33 for its importance lies in the fact that it has dominated nearly all subsequent attempts at interpretation .34 The results may be illustrated here simply by noting that the Dom- inion's residuary power (apart from a national emergency) has been demoted in favour of its enumerated powers, and that the latter have been restricted in favour of competing provincial powers, particularly over "Property and Civil Rights" ; that the residuary power does not enable legislation in relation to matters of the highest national importance unless of an emergent char- 3o For accounts of these see La Brie,op . cit. ; Tuck., Canada and the Judicial Committee of the Privy Council (1941), 4 U. of Toronto L. J. 33 ; The O'Connor Report, supra. 31 [18991 A.C. 31. 32 [18961 A.C . 348. 33 See The O'Connor Report, supra, Annex 1, pp. 18-52 ; Sirois Report (Ottawa, 1940) Book 1, pp. 55-59, 247-53. 34 For a summary of the process see Kennedy, The Interpretation of the British North America Act (1943), 8 Camb. L. J. at p. 155.

1951] The Privy Council and the Canadian Constitution 1033

acter; that the Dominion's power to regulate trade and commerce has been rendered largely ineffective, as has its power to negoti- ate and legislate in aid of Treaty obligations; that its power to deal with labour problems is very limited ; that co-operative legislation is devoid of efficiency; and that, in important matters of a fiscal nature, jurisdiction and practical ability have been so divorced as to require ad hoc inter-governmental arrangements to close the gap. Our ship of state is indeed one of "divided compart- ments" and one in which the compartments have been divided in a way which impairs its ability to sail "on the larger ventures" the changing world now requires. For these results the Privy Council must bear a proper share of responsibility in a final appraisal ; for the Constitution is as much its handiwork as that of the Imperial Parliament. I have traced with some particularity such of the factors as seem of chief importance in the process of judicial review over the years; and it remains but to assess the elements of praise or blame which should attend its relinquishment of office-an assessment which must, of course, take into account the difficulties of its task as well as the legacy it leaves to its successor.

IX. Appraisal Any attempt at considered evaluation of the merits and demerits of the record of the Privy Council as the expositor of the Cana- dian Constitution must take into serious consideration the char- acter of the basic text it had to expound, and the external con- ditions to which it had to be applied. It may be said with confidence that as an instrument of gov- ernment the B.N.A. Act was superbly adapted to the attainment of the objects of union and to the environment of fact and thought into which it was born. In its legislative terms it provided what Clement called a "cardinal principle of allotment" of jurisdiction over matters of general and local concern respectively; and pro- vided for that degree of Dominion paramountcy necessary to secure the special kind of federalism envisaged by the Fathers. If it had any weakness of form in these respects the weakness lay in the express enumeration of Dominion powers thought politi- cally desirable; for legal experience has demonstrated repeatedly that, however guarded, particulars do borrow from general clauses. Indeed I think that it was the very degree to which Dominion jurisdiction was protected that led the Privy Council to its sedu- lous efforts to save provincial autonomy from that restricted role to which it had been assigned. At all events it proved to be an

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instrument capable of reasonable construction and application in the ensuing generation. In its language it was, like all constitutions, expressive of the concepts and governmental issues of the day; and faced its inter- preter with the inevitable problem of expanding the connotation of words to make them encompass developments unforseen by its authors.3s This is the inherent problem in all constitutional inter- pretation, that of ascribing new application to old words so far as consistent with known basic purposes. It has never proved too difficult where new physical developments were concerned, though it has proven more difficult when new developments have occurred in matters of a social or economic nature or in habits of thought. It has proven most difficult when the pace of new developments has been rapid. All these difficulties were encountered by the Privy Council. Power was divided in terms of contemporaneous issues and pur- poses in the language of current conceptions of governmental function; new developments occurred in the physical, social and economic conditions to which the Act must be applied, and in the philosophy of government, and they occurred, in this century at least, with great rapidity. The very nature of the B.N.A. Act as a constitution (in what- ever form it was cast) should have led the Privy Council to accept some responsibility for interpreting it progressively so as to keep it as apt an instrument of government in new conditions as it. was in the conditions current at its enactment." That such an attitude was not adopted is an historic (and, to many, a tragic) fact, and this must be the great assignment of error. Instead, the Privy Council chose to interpret the Act according to the ordin- ary rules of statutory construction, seeking only the intention of Parliament in its terms, and with rare reference to any extrinsic source of guidance and little concern for consequences. The situa- tion was not altered when the Privy Council spoke, as it often did, of seeking the meaning of the words rather than the intention; for it is apparent they apprehended that meaning chiefly in the sense the words bore in 1867; and in either case restricted them- selves mainly to the text itself. The application of this literalistic technique, in either form, did not yield uniform results: for in some cases the terms were assigned a generic meaning, for example, Criminal Law, Banking; and in others a meaning as of 1867, for example, provisions relat- 35 Cf. Privy Council Appeals case, [1947] 1 D.L.R. at pp. 809-10. 36 Cf. Lord Wright, Precedents (1944), 8 Camb. L. J. at p. 134.

1951] The Privy Council and the Canadian Constitution 1035

ing to taxation and treaty performance. A method which as to some heads of jurisdiction had reference to meaning's and con- ditions as of 1867, and assigned a generic meaning to others, pro- duced incertitude of predictable results which added to the diffi- culties of government and of bar ; and, indeed, contributed to the demand for abolition of the right of appeal. Misunderstanding of the nature of 'Canadian federalism and , obsession with the idea of preserving provincial autonomy from encroachment led to the initial misinterpretation of the function of the various terms. in sections 91 and 92, and to the debasement of Dominion heads and the enlargement of provincial heads; and thereby led to the fundamental result, which divorced legal juris- diction from practical ability to deal with grave problems in the form in which they later presented themselves. Criticism of this long-range result has often been put on er- roneous grounds. That the result did frustrate well-known historic intentions is not per se a ground of criticism, however; for it exposes itself to the reply that intention is to be collected from "the actual words used", 37 and that the Privy Council's interpre- tation of those words reached the result it did simply because that intention was imperfectly expressed . The proper ground of historical criticism is that the basic intention is so .clearly ex- pressed in the text that it is impossible to understand how even the process of textual interpretation avowedly adopted could reach a result so far removed from the sense so clearly expressed. In any event I think the better ground of criticism is a func- tional one. This rests on the solid foundation that, being free to mould the Constitution within large limits in a way consonant _ with changing needs, the Privy Council refrained from doing so; and thereby has left us with a Constitution ill-adapted to govern- ance under present conditions and modes of thought. The instances in which the Privy Council recognized the need of progressive and functional interpretation but serve to suggest how well we might have fared if that attitude had been more constant. These instances, however, were but few, and related to matters which did not involve the distribution of powers : one related to the extra-territorial effect of Dominion anti-smuggling laws,38 another to the summoning of women to the Senate,39 and two others to Commonwealth developments affecting the control of-prerogative appeals.4o . 37 James v. Commonwealth of Australia, [1936] A.C. at p. 613 . 38 Dunphy v. Croft, [19331 A.C. 156. 3s Persons' case, [19301 A.C. 124. "'British Coal Corporation case, [1935] A.C. 500; Privy Council Appeals case, [1947] A.C. 127.

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It is notable also that the habitual literalistic approach has not only yielded poor results in terms of functional division of powers ; but it has not yielded that degree of certainty usually associated with such an approach. The twin result has been a judicial allocation of power which is inapt to modern needs; and a large degree of uncertainty as to where power lies, or as to whether the combined powers of Dominion and provinces can be exerted successfully. This is not to say that some degree of cer- tainty has not been established over the scope of various heads of jurisdiction ; for obviously it has or the system would have broken down completely. It is to say, however, that over many problems requiring immediate solution jurisdiction is vested in a body un- able to use it effectively, and as to others there is such jurisdic- tional doubt as impedes appropriate action. Finally, it is to be noted that within the scope of its practice as to stare decisis the Privy Council contributed largely to un- certainty of decision and prediction by its habit of "explaining" or "distinguishing" its previous decisions in a way not conducive to confidence in its intellectual integrity or intent to prefer sub- stance to subtlety. On the credit side must be placed the fact that in the early days of sectional and minority rivalries the right to resort to an external body for an impartial solution was of great value, partic- ularly before the Supreme Court had begun to recruit a com- petent personnel and establish a truly national point of view; the fact that the Privy Council developed useful canons of interpre- tation and criteria of constitutional validity; that it has given precise and convenient scope to many heads of jurisdiction ; that it has established the validity of various types of legislation; and that, finally, it has provided for our new court of ultimate juris- diction a body of jurisprudence from which it may draw methods and principles of great utility.

X. Conclusion I am conscious that much of this article may appear to be an indictment of errors of approach, of technique and of result. To such a charge I can only plead, by way of confession and avoid- ance, that such errors did occur; but that (as I have indicated) the tale is not one of error unrelieved. It is, indeed, one of con- scientious and gratuitous service and, in some respects, one of success. For that service to Canada in its years of adolescence and growing maturity all Canadians must be grateful. Lawyers, in particular, must now be aware that in this severance of an

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ancient link of empire we have lost the ability to rely on the disinterested judgment of great exemplars of our profession. As in the case of the attainment of political independence, so in the case of acquired independence in judicial matters, there is danger. Contemplation of that danger should breed respect for the great body upon whom we have relied so long for ultimate decision in legal and constitutional matters of great import. It should beget also a proper gratitude for the Privy Council's part in enabling us to face such matters in future alone, but aided by the example given us, and for the many enduring fruits of its endeavours on Canada's behalf.