The Statute of Westninster, 1931, As in Its Relation To

THE STATUTE OF WESTNINSTER, 1931, AS IN ITS RELATION TO CANADA.-- TxF, FORECAST.--One hundred and forty-two years before it arrived, the inevitability of Canadian independence was officially forecasted in a very important Colonial Office Memorandum.. The Proclamation of 1763, the first of the constitutional documents relating to the territory now known as the Provinces of Ontario and Quebec, provided for government by a Governor and an appointed Council, but contained also a promise of a popularly elected Legislative Assembly. For fulfilment of the promise, the succeeding years were not propitious. Premonitory rumblings of the approaching rebellion in the southern colonies ; the rebellion itself; and the establishment of independence counselled hesitation and postponement, But insistence became more and more clamor- aus. The thousands of refugees from the revolted colonies had been accustomed to popularly elected Assemblies. And `in the British colonies of Nova Scotia, New Brunswick and Newfoundland they already existed. At the end of twenty-five years concession of a legislature appeared to be unavoidable. But what, in view of the experience in the revolted colonies, would be the effect of establishing legislatures? : > Was there not some other form of government which, while sufficiently satisfying popular desire would preserve the paternal, rather than inaugurate the democratic system with its accompaniments? Elaborate study of these questions produced, in the Memorandum above referred to, the replies of the Colonial Office : It is certainly very material to examine the constitution of our former Colonies with a view to this Question ; in order that we may profit by our experience there, and avoid, if possible in the Government of Canada, those defects which hastened the independence of our antient possessions in America. Among the defects was the fact that : The situation of those Colonies, removed them from the seat and resi- dence of the Royal Authority. Whatever effect arises, here, from the imme- diate presence of the Sovereign, or from the influence of His Court, was therefore, necessarily lost, at so great a distance from the Mother Country. *Some of the sections of the Statute of Westminster do not apply to Australia, New Zealand or Newfoundland "unless that section is adopted by the Parliament of the Dominion." x Shortt & Doughty, Constitutional Documents, vol. .11, pp. 970-87. "'In 1782, the affairs of the Colonies .devolved on the Home Department, being in the charge of a separate branch of that Department, called the Office for Plantations, and being at first managed by a separate Under-Secretary" : Audet, Canadian Historical Dates and Events, 1492-1915, p. 39. l l? The Canadian Bar Review. [No. 2 Another defect was the absence of an aristocracy : To the want of an intermediate Power to operate as a check, both on the misconduct of Governors, and on the democratical Spirit, which prevailed in the Assemblies, the defection of the American Provinces, may perhaps, be more justly ascribed, than to any other general cause which can be assigned. And there seems to be no one point of more consequence, in this view, than the labouring to establish, in the remaining provinces, a respectable Arisr tocracy, as a support and safeguard to the Monarchy, removed, as it is, at so great a distance, and on that account, so much less powerful, in its weight and influence upon the people at large. A third defect was the absence of the old-time method of purchasing support: In addition to these considerations, the power of conferring honours, and emoluments, enables the Sovereign, in this country, to animate the exertions of individuals, and to secure their attachment to the existing form of Govern ment, by all the fair objects, of just, and honourable ambition . The case was widely different in the Colonies. The rewards of the Crown were few; they were such, as conferred little distinction; and they were, perhaps sometimes bestowed, with a very small degree of attention to the principle, which has here been stated. Discussion of these and other defects was accompanied by the following (Italics now added) But in forming a decision on points of so much importance, and extent, it is undoubtedly material, that they should be examined, in a more enlarged, and general point of view, and that it should be considered, by what means the connection, and dependance of Canada, on this Country, may be so preserved and cultivated, as to be render'd most beneficial to Great Britain, during its continuance, and most permanent in its duration. In this view, a doubt may naturally suggest itself both from an opinion, which seems to be pretty generally received, and from an observation of the late events in America, whether the degree of freedom, which, the measure now proposed would give to the Canadians, is not inconsistent with the existence of a dependant Government. It may perhaps, be justly doubted, whether any form of Administration which could now be established, would prevent the separation of so great, and distant a dol-ninion after it should have an-rived at a certain point of exten sion, and improvement. But the real question now to be decided is, what system is best cahculated to re.ntove this event to a disitpnt period and to render the connection, in the interval, advantageous to the Mother Country without oppression or injury to the Colony? The Establishment of a separate and local Legislature in a distant province, under any form or model which can be adopted for the purpose, leads so evidently to habitual Notions of a distinct interest, and to the existence of a virtual independence as to many of the most important points of Govern- ment, that it seems naturally to prepare the way of an entire separation, whenever other circumstances shall bring it forward. THE ROUNDS.-OUt of their experience, the gentlemen of the Colonial Office might well forecast the dénoument, but they were Feb ., 1932] The Statute of Westminster, 1931. 1-13 `powerless to foresee the contentious incidents which were to mark the development of the story. Let us give them a hasty glance. Unbroken successes in its House enabled the Assembly of Lower Canada to win the first round. By refusing supplies on fifteen occasions, the Assembly secured control of, the purse. Governor Sir Francis Bond Head of Upper Canada won the second round. He took (19 February .1836) Robert Baldwin and Dr. Rolfe, two leading reformers, into the Executive Council ; at the end of two weeks he accepted their resignation; carried them to a general election ; and defeated them. The British parliament won the third round by abolishing the Lower Canadian legislature. Robert Baldwin won the fourth round by constraining Governor Sydenham (3 September 1841) to concur in a resolution of the Assembly of the Province of Canada declaratory of the principle of responsible government. Louis Lafontaine and Robert Baldwin won the fifth round by constraining Governor Bagot (16 September 1842) to make prac- tical application of the principle of responsible government. Governor Metcalfe won the sixth round by accepting the resignation of the Lafontaine-Baldwin administration ; by carrying them to a general election ; and by defeating them-November 1844. John A. Macdonald and Alexander T. Galt won the seventh round (25 October 1859) by establishing Canada's right to frame her own tariff. By successfully opposing Canada's assumption of the title The Kingdom of Canada (1867), Lord Derby won the eighth round. Edward Blake won the ninth round (October 1878) by his suc- cess in eliminating many points from the accustomed form of the Instructions to the Governor-General . The Laurier government won the tenth round by securing the attachment to a trade treaty with France the signatures of two Cana- dian representatives, in addition to the signature of the British Am- bassador-10 September 1907. With the commencement of the war of 1914-18; the rounds may be said to have ceased. Further constitutional advances, although sometimes met with hesitation, were upon the whole, complacently concurred in, and, to an appreciable extent, generously furthered by the various British governments.z One hundred . and forty years 'There was some opposition from such experts as Sir J. A. R. Marriott, Mr. J. H. Morgan and others. In the opinion of The Times, the Statute of Westminster was "an unnecessary bit of pedantry." 11 4 The Canadian Bar Review. [No. 2 ago, British statesmen regretted the prospect. To-day, we are glad to know that they do not regret the realization . On the contrary they have helped us to reach it. Passing the Balfour-born assertion (1926 Conference) of equality of status, and inequality of function-equality when you are stand- ing still and inequality when you are doing something-a curious jumble (only Balfour could have produced it) of very bad law and very fine compliment ; and adopting the usual tripartite division of government into administrative, legislative and judicial functions, note the following points : Admiiiistrative Functions.-All the defects in Canada's constitutional status which could be cured administratively were from time to time remedied as follows : 1 . The British North America Act gave the British government control over the legislative activity of the Dominion parliament (1) by disallowance, and (2) by reservation. Many years ago, by con vention, that power ceased to exist. The Imperial Conference of 1929 (section 2(3)) declared that: The present constitutional position is that the power of disallowance can no longer be exercised in relation to Dominion legislation. Accordingly those Dominions who possess the power to amend their Constitutions in this respect can, by following the prescribed procedure, abolish the legal power of disallowance if they so desire.

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