432

THE RESIDUE OF POWER IN .

Between the interpretation of statutes and the interpretation of other legal documents the practice of our courts in the nineteenth century has drawn a distinction which cannot be defended either in strict logic or by ordinary common sense. In both cases the sound rule prevails that, where the written words are clear and unam- biguous, extrinsic evidence to vary their meaning cannot be admitted. If, for example, a testator expresses himself in unambiguous words, these words must be given their full effect, even though evidence may be available to show that the testator did not mean exactly what he said. The same rule is applicable to contracts, statutes, and to all forms of written instruments . But the difficulties of interpretation begin when words are not unambiguous, and it is at this point that our practice has drawn an arbitrary distinction between statutes and all other legal docu- ments . In interpreting an obscure clause in a contract the court will take into consideration the whole of the previous correspondence between the parties and any words or conduct which may throw -light upon their intentions. So again, if the words of a will are capable of two or more meanings, evidence is freely admitted to show what was passing in the testator's mind when he wrote those words. In all these cases our law is in accordance with common sense and with the ordinary practice of historical and literary criticism in other branches of learning. If the application of this rule were extended to the interpretation of statutes it would follow that obscure clauses could be elucidated by studying the debates in and the considered public utterances of statesmen responsible for the introduction of the new law. Clearly such a practice would be in accordance with the well- known rules of construction laid down by the Court of Exchequer in Heydon's Case,'- where it was ruled that the points for consideration are : (a) What was the common law before the making of the Act (b) What was the mischief and defect against which the common law did not provide (c) What remedy the Parliament hath re- solved and appointed to cure the disease of the Commonwealth (d) The true reason of the remedy. It is obvious that for three ' 2 Co. Rep. 7b., p. 19.

Sept., 1926] Residfce of Power ira Canada. 433

out of these four- questions the proceedings of Parliament itself A ill provide the best answer. " Unfortunately an arbitrary rule of English practice has cut off from the judge the light which is available for the historian, and it is now settled law that counsel are not permitted to quote from the proceedings of Parliament in order to explain the meaning of a statute. The same rule operates to exclude the speeches of statesmen outside Parliament, and probably extends to other forms of coiltem- poranea expositio.2 In -other words the courts are forbidden to adopt historical methods in solving a historical problem. The immediate purpose of this rather lengthy introduction is to explain how an arbitrary and unreasonable rule of interpretation has produced the very serious result of giving Canada a constitution substantially different from that which her founders intended that she should have. A study of the available historical evidence gives us a clear" and definite idea of what the fathers of Canadian con- federation sought to achieve. By excluding this historical evidence' and considering the British North America Act without any regard to its historical setting the courts have recently imposed upon us a constitution which" is different, not only in detail but also in prin- ciple, from that designed at Charlottetown and Quebec. The latest and leading authority upon the meaning of the " peace, order and good " clause in the Canadian constitution is now the case of Toronto Electric Commissioners v. Snider,3 where the validity of the " Lemieux Act " dealing with compulsory indus- trial arbitration was in question . The judgment delivered by Lord Haldane in this case is now too well-known to need detailed analysis here. Its importance lies in the fact that it definitely relegated the words " peace, order and good government " to the position of a reserve power to be used only in cases of war or similar national emergencies . The real residuary poN~ er of legislation in normal times is now held to be contained in the words " property and civil rights," with regard to which the legislative power of the provinces is exclusive . The specific powers enunciated in section 91 are to be treated as exceptions to the general jurisdiction of the provinces to 2 The theory appears to be quite modern. In England the mile was not definitely established until the decision of the House of Lords in Julius v. Bishop of Oxford, (1880) 5 A.C. 214. where the members of the Court of Appeal were rebuked for consulting the debates in Parliament. For Canadian authority to the same effect see Smiles v. Belford (1877) 1 O.A .R. 436, 445 ; Gosselin v. The Kilag (1903) 33 S.C.R. 255, 264. - [19251 A.C . 396. The decisions in Re the Board of Commerce Act, (19221 1 A.C. 191 and the Fort Frances Case,- [19231 A.C. 695, are to the same effect. "

434 7'he Ca-Radian Bar Review. [No. VII

legislate upon property and civil rights. " If the subject matter," we are told,4 "falls within any of the enumerated heads in section 92, such legislation belongs exclusively to the Provincial competency." Since it is obvious that all legislation outside the area of pure crim- inal law must deal with questions of property and civil rights it follows that the iNords in section 92 give a prima facie authority to the provinces to cover the whole field of civil law, this general authority being only abridged in special cases by the exceptions specifically enumerated in section 91 . In other words the result of the Arbitration Case is to assimilate the to that of the United States in its most distinctive feature. The words "property and civil rights" have been treated by the Privy Council as the Canadian equivalent of the Tenth Amendment ~--a residuary clause containing all those powers not specifically delegated to the federal . The analogy to the American constitution is further emphasized by the judgment in the Fort Frances Case,e where Lord Haldane points out that the view taken by their Lordships of the emergency power of a federal government is the same as that taken by the Supreme Court of the United States in the case of Hamilton v. Ken- tucky Distilleries.? In each case the federal government has a reserve power which enables it to deal with the necessities created by war or other national emergencies . In each case the residue of ordinary legislative authority rests with the States or Provinces, the com- petence of the federal legislature being limited to certain specified exceptions. I do not think that it is going too far to say that this result is the precise opposite of that which our fathers hoped and endeavoured to attain. I t is at this point that we must turn to consult that historical evidence which is banished from the courts, and seek to ascertain what passed in the minds of those to whom we owe the confederation of Canada. The consideration of this evidence falls under three heads-(I) the resolutions of the Quebec Conference, (2) the debates in the Parliament of Canada, and (3) the debates in the Imperial Parliament. It is a matter of common knowledge that the substantial form of the new constitution was settled by the delegates who met in

4 [19251 A.C. at 412. "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people." 6 [19231 A.C. 695. 7 (1919), 251 U .S. 146.

Sept., 1926] - Residue of Power in Canada. 435 -

Canada, and that the subsequent -discussions at the Westminster Palace Hotel were only required to rëmove certain imperial objec- tions on points of detail and to settle .the question of parliamentary draftsmanship. In both Houses of the Imperial -Parliament- the measure was passed without division and with very little debate. In committee of the House of Commons section 92 Was agreed to without any discussion, and section 91 appears .to have been disposed. of in about five minutes. We may therefore reasonably assume Lhat in the opinion of Parliament the British North America Act gave proper legal expression to the resolutions of the Quebec Con- ference and to the wishes of the_ Canadian people. The 29th resolution of the Quebec Conference, v hich formed the basis of section 91 of the constitution, runs as follows :- " The general Parliament shall have power to make laws for the peace, welfare, and good government of the federated provinces (saving the sovereignty of England), and especially laws respecting the following subjects :"- [Then follows the detailed list, which ends]- "(37) And generally respecting_ all inatters of a general char- acter, not specially and exclusively reserved for the local government and ."s It is quite inconceivable that those weeping words were intended to give authority only in cases of war or similar extraordinary emer- gencies. If any doubt could exist upon this point the language used by Macdonald in commending the scheme of confederation to the Canadian Parliament makes the object of the Quebec Conference abundantly clear. Macdonald took some pains to emphasize the defectiveness of the United States constitution in leaving the residue of power to the States, and explained how the Canadian scheme rested upon the opposite principle, "`In the proposed constitution all matters of general interest are to be dealt with by the general legislature ; while the local legis- latures will deal with matters of local .interest, which do not affect the Confederation as a whole, but are of the greatest importance to their- particular sections."9 In other words, the fact that a particular question was.of general, as distinguished from purely local interest, would be sufficient to naive jurisdiction to the federal Parliament. This is in direct-oppo sition to the language used by the Privy Council in the Arbitration Case° :-

B Houston. Constitutiolzal Documents of Canada . pp. 309-310. Kennedy, Docunzeiits of the Canadian Constitution, p. 602. " [19251 A.C . at p. 412.

436 7'he Canadian Bar Review. [No . VI I

" It appears to their Lordships that it is not now open to them to treat Russell v. 7'he Queen" as having established the general principle that the mere fact that legislation is for the general advantage of Canada, or is such that it will meet a mere want which is felt throughout the Dominion, renders it competent if it cannot be brought within the heads enumerated specifically in section 91 ." Further on Macdonald goes on to explain the difference between the American and the Canadian systems :- " I am strongly of the belief that we have, in a great measure, avoided in this system, which we propose for the adoption of the people of Canada, the defects which time and events have shown to exist in the American constitution . . . . Here « e have adopted a different system . We have strengthened the general government. We have given the general legislature all the great subjects of legis- lation. We have conferred on them, not only specifically and in detail, all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local and local legis- latures shall be conferred upon the general government and legis- lature. We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. tiVe have avoided all conflict of jurisdiction and authority, and if this con- stitution is carried oùt, as it will be in full detail in the Imperial Act to be passed if the Colonies adopt the scheme, we will have in fact, as I said before, all the advantages of a legislative union under one administration, with at the same time the guarantees for local institutions and for local laws, kN hich are insisted upon by so many 1112 in the provinces noN~, I hope, to be united . Later on Macdonald returns to the same point:- " Besides all the powers that are specifically given, the 37th and last item of this portion of the constitution confers on the general legislature the general inass of sovereign legislation, the power to legislate in .` all matters of a general character, not specially and exclusively reserved for the local governments and legislatures .' This is precisely the provision which is wanting in the constitution of the United States. It is here that we find the weakness of the American system-the point where the American constitution breaks down . It is in itself a wise and necessary provision . We thereby

(1882), 7 A.C. 829. Kennedy, . pp. 605-606.

Sept., 1926] Residue of Power in Canada . 43 7

strengthen the central Parliament and make the Confederation one people and one government, instead of five peoples and five govern- ments, v~ith merely a point of authority connecting us to a limited and insufficient extent."13 . The debate in the Canadian Parliament ranged over a wide field, but there does not seem -to have_been any real doubt in the minds of the members as to the meaning of the 37th resolution. Opponents of the scheme, such as 'Mr. Dunkin, complained that it allowed " no real autonomy" and would have preferred " the much wiser system of the United States." " In fact," he remarked, " the only trace of uniformity it can be said to have about it consists in its disallow-, ance of- all autonomy to the provinces."14 The next stage consisted of conferences between the Canadian delegates and representatives of the Imperial Government at the West- minster Palace Hotel in London . In the course of these discussions ihe text of the statute was settled, and certain changes of importance were made, such as the transfer of the pardoning power from pro- - vincial to federal authority. There is nothing to indicate that the Imperial-representatives desired to disturb the main structure of the federal scheme as it had been settled in Canada. On the 19th February, 1867, the - was presented for second reading in the House of Lords by Lord Carnarvon, then Secretary of State for the Colonies and passed without opposition, only four other peers taking part in the debate. Lord Carnarvon's exposition of the measure followed the same line that had been taken by Macdonald in the Canadian Parliament, laying emphasis upon the importance of the federal authority in all matters of general concern . The real object which we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to- all the Provinces ; and, at the same time, to retain for each Province so ample a measure of municipal liberty and self-government as will allow and indeed compel them to exercise those local powers which- ihey can exercise with great advantage to the community. . . . " In closing my observations upon the distribution of powers, I ought to point out that, just as the authority of the central Par- liament vill prevail whenever it may come into conflict with the local legislatures, so the residue of legislation, if any, unprovided for in 13 Kennedy, p. 615. - ~# Kennedy, p. 661 .

438 The Canadiaia Bar Review. [No. VI 1

the specific legislation which I have explained, will belong to the central body. It will be seen, under the 91st clause, that the classi- fication is not intended ` to restrict the generality' of the powers previously given to the central Parliament, and that those powers extend to all laws made `for the peace, order, and rood government' of the Confederation--terms which, according to all precedent, will, I understand, carry with them an ample measure of legisl itiv~ authority." The bill passed through its remaining stages in the House of Lords without division, and was presented for second reading in the Commons on the 28th February. In moving the second leading Mr. Adderley remarked :- "The central legislature will be invested with the general power of providing for the good government and peace of the country, but, without derogating from the general power, certain speciffç powers are enumerated for the central legislature. It will be seen that by these provisions arrangements are made as far as possible for ensuring the unity and strength of the central government."" The second reading was passed without division after a short debate. The committee stage was passed in a single evening, and the bill ultimately received the on the 29th March, 1867. Upon reading the debates as a whole two points strike the atten- tion . In the first place, no speaker, whether an advocate or an oppo- nent of confederation, seems to have doubted that the Dominion was endowed with a general power to pass all legislation that it might deem to be for the general interest of Canada. Broadly speaking, the distinction betty een section 91 and section 92 was the distinction between those things that were of general and those that were of merely local importance. The true balance of the constitution is to be found in the opposition between the words " laws for the peace, order, and good ," in section 91, and the concluding words of section 92-" Generally, all matters of a merely local or private nature in the Province." The detailed enumerations . were really intended to be explanatory of these two main principles, subject to the proviso that nothing specifically mentioned in section 91 should be deemed to be of a local or private nature. No speaker in any of the debates even suggested that the words " property and civil rights " were to be treated as a kind of residuary clause covering the «hole field of civil law, apart from the specific instances enumer- " Hansard . Vol. 185, toll. 563, 566. " lizinsard, Vol. 185, col. 1168.

Sept.,- 1926] Residue of Power in Canada. 439

ated in section 91 . The true meaning of these words is undoubtedly that laid down in Russell v. The Queen in 1882?7 The second point that will strike the student of these debates is that nobody even thought of the modern idea that the words-" peace; order, and good government " were intended to provide a kind of reserve power to be used only in the event of war, pestilence, or similar national calamities . So far as I am aware, this doctrine begins with the judgment in Re the Board of Commerce Act.ls The encroachment upon the sound and lucid doctrine of Russell v. The Queen- began much earlier, but it did not at first amount to a denial of the main -principle of Confederation. For example, we find Lord Watson saying in the Prohibition Case-9 :- Their Lordships do not doubt that some matters, in their origin local and provincial, may 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 abolition in the interest of the Dominion. But great caution must be observed in distinguishing bety een that which is local and provincial, and therefore within the jurisdiction _ of the provincial legislature, and that which has ceased - to be merely local or provincial, and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada." In these words we have a clear recognition of the true test of jurisdiction, as laid down by the. statesmen of 1867. It may be that in 1896 their Lordships still retained personal memories of the origins of . Twenty-six years later another Board, unmindful of Canadian history, and debarred by the rules of inter- pretation from reading it, produces the theory that the words ." peace, order and good government " were inserted into our constitution in order to enable the Dominion Parliament to deal with cases of war and pestilence. Whether the principle of federal government devised by our fore- fathers or that more recently established by the Privy Council is the better for Canada is a question of policy beyond the scope _of this article. I hope that I have written enough to shop- that they are not the same. HERBERT A. SMITH. Oxford, June 1st, 1926. l' 7 A.C. 829; at.839. ~" [ 19221 1 A.C. 191 . " Atty.-Gen.of Ontario v. Atty.-Gels.of Canada, [18961 A.C. 348, at 361 .