Supreme Court of Canada
Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54
Date: 1979-12-21
In the matter of a Reference by the Governor in Council concerning the legislative authority of the Parliament of Canada in relation to the Upper House, as set out in Order in Council P.C. 1978-3581, dated the 23rd day of November, 1978.
1979: March 20, 21; 1979: December 21.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Estey, Pratte and McIntyre JJ.
REFERENCE BY THE GOVERNOR IN COUNCIL
Constitutional law—Senate—Authority of Parliament to amend constitution—British North America Act, ss. 21 to 36, 91(1).
The Governor General in Council referred to this Court the following two questions, in accordance with s. 55 of the Supreme Court Act:
1. Is it within the legislative authority of the Parliament of Canada to repeal sections 21 to 36 of the British North America Act, 1867, as amended, and to amend other sections thereof so as to delete any reference to an Upper House or the Senate? If not, in what particular or particulars and to what extent?
2. Is it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing a replacement for, the Upper House of Parliament, so as to effect any or all of the following:
(a) to change the name of the Upper House;
(b) to change the numbers and proportions of members by whom provinces and territories are represented in that House;
(c) to change the qualifications of members of that House;
(d) to change the tenure of members of that House;
(e) to change the method by which members of that House are chosen by
(i) conferring authority on provincial legislative assemblies to select, on the nomination of the respective Lieutenant Governors in Council, some members of the Upper House, and, if a legislative assembly has not selected such mem-
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bers within the time permitted, authority on the House of Commons to select those members on the nomination of the Governor General in Council, and
(ii) conferring authority on the House of Commons to select, on the nomination of the Governor General in Council, some members of the Upper House from each province, and, if the House of Commons has not selected such members from a province within the time permitted, authority on the legislative assembly of the province to select those members on the nomination of the Lieutenant Governor in Council, (iii) conferring authority on the Lieutenant Governors in Council of the provinces or on some other body or bodies to select some or all of the members of the Upper House, or (iv) providing for the direct election of all or some of the members of the Upper House by the public; or
(f) to provide that Bills approved by the House of Commons could be given assent and the force of law after the passage of a certain period of time notwithstanding that the Upper House has not approved them?
If not, in what particular or particulars and to what extent?
The answers of the Court are:
To question 1: No.
To question 2(b), (e)(iv) and (f): No.
The remainder of the questions cannot be answered categorically in the absence of a factual background.
The apparent intention of the 1949 amendment to the Act which enacted s. 91(1) was to obviate the necessity for the enactment of a statute of the British Parliament to effect amendments to the Act which theretofore had been obtained through a joint resolution of both Houses of Parliament and without provincial consent. Legislation enacted under this subsection since 1949 has dealt with matters which, according to the practice existing before 1949, would have been referred to the British Parliament by way of a joint resolution of both Houses of Parliament, and without the consent of the provinces. It did not in any substantial way affect federal-provincial relationships. The legislation contemplated in the first question is of an entirely different character. While it does not directly affect the federal-provincial relationships in the sense of changing federal and provincial legislative powers, it does envisage the elimination of one of the two Houses of Parliament, and so would alter
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the structure of the federal Parliament to which the federal power to legislate is entrusted under s. 91 of the Act.
The Senate has a vital role as an institution forming part of the federal system: one of its primary purposes was to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation. The power to enact federal legislation was given to the Queen by and with the advice and consent of the Senate and the House of Commons. Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant in this legislative process.
Further, although s. 91(1) gave the Queen the power, with the advice and consent of the Senate and the House of Commons, to alter the “Constitution of Canada” except in certain expressly designated areas, it does not confer a power to amend the B.N.A. Act. The word “Canada” in s. 91(1) does not refer to Canada as a geographical unit but refers to the juristic federal unit. “Constitution of Canada” does not mean the whole of the British North America Act, but means the constitution of the federal government, as distinct from the provincial governments. The power of amendment conferred by s. 91(1) is thus limited and it relates to the constitution of the federal government in matters of interest only to that government; the continued existence of the Senate as a part of the federal legislative process is implied in the exceptions provided in s. 91(1).
While s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process. The amendments proposed by para. (b). which imply a change in the method of regional representation, by para. (e) subpara, (iv), which would make the Senate a wholly or partly elected body, and by para. (b) which would allow Acts to be adopted without the consent of the Senate, are precisely in this category. Section 91(1) does not give Parliament the power to alter the fundamental character of the Senate by unilateral action, so the questions formulated in these three paragraphs must be answered in the negative. The other questions cannot be answered categorically in the absence of a factual background.
Quebec North Shore Paper Co. v. Canadian Pacific Limited, [1977] 2 S.C.R. 1054; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654;
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In re The Regulation and Control of Aeronautics in Canada, [1932] A.C. 54; Attorney General of Nova Scotia v. Attorney General of Canada and Lord Nelson Hotel Co. Ltd., [1951] S.C.R. 31; In re The Initiative and Referendum Act, [1919] A.C. 35, aff’g (1916), 27 Man. R. 1 referred to.
REFERENCE by the Governor General in Council, pursuant to s. 55 of the Supreme Court Act, concerning the legislative authority of the Parliament of Canada in relation to the Upper House. The Court answered question 1 and subss. (b), (e)(iv) and (f) of question 2 in the negative. It stated that a categorical answer was impossible for the remainder.
J.J. Robinette, Q.C., François Mercier, Q.C., and T.B. Smith, Q.C., for the Attorney General of Canada.
D.W. Mundell, Q.C., and Lorraine E. Weinrib, for the Attorney General of Ontario.
Jerrold W. Kavanagh, Q.C., and Mollie Gallagher, for the Attorney General of Nova Scotia.
Alan D. Reid and Gordon F. Gregory, Q.C., for the Attorney General of New Brunswick.
Ian W.H. Bailey, for the Attorney General of Prince Edward Island.
Patrick McDonald, for the Attorney General of Saskatchewan.
William Henkel, Q.C., for the Attorney General of Alberta.
James A. Nesbitt, Q.C., for the Attorney General of Newfoundland.
THE COURT—By Order in Council P.C. 1978-3581, dated November 23, 1978, the Governor General in Council, pursuant to s. 55 of the Supreme Court Act, referred to this Court for hearing and consideration the following two questions:
1. Is is within the legislative authority of the Parliament of Canada to repeal sections 21 to 36 of the British North America Act, 1867, as amended, and to amend other sections thereof so as to delete any reference to an Upper House or the Senate? If not, in what particular or particulars and to what extent?
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2. Is it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing a replacement for, the Upper House of Parliament, so as to effect any or all of the following:
(a) to change the name of the Upper House;
(b) to change the numbers and proportions of members by whom provinces and territories are represented in that House;
(c) to change the qualifications of members of that House;
(d) to change the tenure of members of that House;
(e) to change the method by which members of that House are chosen by
(i) conferring authority on provincial legislative assemblies to select, on the nomination of the respective Lieutenant Governors in Council, some members of the Upper House, and, if a legislative assembly has not selected such members within the time permitted, authority on the House of Commons to select those members on the nomination of the Governor General in Council, and
(ii) conferring authority on the House of Commons to select, on the nomination of the Governor General in Council, some members of the Upper House from each province, and, if the House of Commons has not selected such members from a province within the time permitted, authority on the legislative assembly of the province to select those members on the nomination of the Lieutenant Governor in Council,
(iii) conferring authority on the Lieutenant Governors in Council of the provinces or on some other body or bodies to select some or all of the members of the Upper House, or
(iv) providing for the direct election of all or some of the members of the Upper House by the public; or
(f) to provide that Bills approved by the House of Commons could be given assent and the force of law after the passage of a certain period of time notwithstanding that the Upper House has not approved them?
If not, in what particular or particulars and to what extent?
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Submissions in respect of these questions were made to the Court on behalf of the Attorney General of Canada and also on behalf of the Attorneys General of Ontario, Nova Scotia, New Brunswick, Prince Edward Island, Saskatchewan, Alberta and Newfoundland.
Question 1:
Sections 21 to 36 of the British North America Act, hereinafter referred to as “the Act”, referred to in Question 1, appear in the Act under the heading “The Senate” and deal with the constitution of that body, including the number of senators; the representation in the Senate of the four divisions, i.e., Ontario, Quebec, the Maritime Provinces and the Western Provinces; the qualifications for appointment to the Senate; the appointment of senators; the age limit for senators; resignation and disqualification of senators. References to the Senate by name, or as a House of Parliament, and references to senators are also to be found in ss. 17, 18, 39, 51A, 55, 56, 57, 59, 73, 74, 91, 128, 133, 146 and 147.
It is clear that Question 1 in essence, although not in terms, asks whether the Parliament of Canada has legislative authority to abolish the Senate. The Attorney General of Canada contends that the question should be answered in the affirmative. All of the Attorneys General of the provinces, represented on the hearing, contended that the question should be answered in the negative.
The Attorney General of Canada bases his submission upon the provisions of Class 1 of the subject matters enumerated in s. 91 of the Act. Section 91, which appears in Part VI of the Act, under the heading “Powers of the Parliament”, defines the legislative authority of the Parliament of Canada. The opening words of this section are as follows:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this
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Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated;
Class 1 of s. 91 was added to it by an amendment to the Act enacted by the British Parliament on December 16, 1949. Section 1 of the amending statute provided as follows:
1. Section 91 of the British North America Act, 1867 is hereby amended by renumbering Class 1 thereof as Class 1A and by inserting therein immediately before that Class the following as Class 1:—
“1. The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.”
Prior to 1949, in most respects, the Act did not provide for its amendment by any legislative authority in Canada. Accordingly, as it was a statute enacted by the British Parliament, any changes in its content had to be made by way of an amending Act enacted by that Parliament. Many amendments have been made in that way. A brief account of them and of other statutes of a constitutional character is found in a White Paper published in 1965 under the authority of the Honourable Guy Favreau, then Minister of Justice for Canada, under the title of “The Amendment of the Constitution of Canada”:
(1) The Rupert’s Land Act, 1868 authorized the acceptance by Canada of the rights of the Hud-
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son’s Bay Company over Rupert’s Land and the North-Western Territory. It also provided that, on Address from the Houses of Parliament of Canada, the Crown could declare this territory part of Canada and the Parliament of Canada could make laws for its peace, order and good government.
(2) The British North America Act of 1871 ratified the Manitoba Act passed by the Parliament of Canada in 1870, creating the province of Manitoba and giving it a provincial constitution similar to those of the other provinces. The British North America Act of 1871 also empowered the Parliament of Canada to establish new provinces out of any Canadian territory not then included in a province; to alter the boundaries of any province (with the consent of its legislature), and to provide for the administration, peace and good government of any territory not included in a province.
(3) The Parliament of Canada Act of 1875 amended section 18 of the British North America Act, 1867, which set forth the privileges, immunities and powers of each of the House of Parliament.
(4) The British North America Act of 1886 authorized the Parliament of Canada to provide for the representation in the Senate and the House of Commons of any territories not included in any province.
(5) The Statute Law Revision Act, 1893 repealed some obsolete provisions of the British North America Act of 1867.
(6) The Canadian Speaker (Appointment of Deputy) Act, 1895 confirmed an Act of the Parliament of Canada which provided for the appointment of a Deputy-Speaker for the Senate.
(7) The British North America Act, 1907 established a new scale of financial subsidies to the provinces in lieu of those set forth in section 118 of the British North America Act of 1867. While not expressly repealing the original section, it made its provisions obsolete.
(8) The British North America Act, 1915 re-defined the Senatorial Divisions of Canada to take into account the provinces of Manitoba, British Columbia, Saskatchewan and Alberta. Although this statute did not expressly amend the text of the original section 22, it did alter its effect.
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(9) The British North America Act, 1916 provided for the extension of the life of the current Parliament of Canada beyond the normal period of five years.
(10) The Statute Law Revision Act, 1927 repealed additional spent or obsolete provisions in the United Kingdom statutes, including two provisions of the British North America Acts.
(11) The British North America Act, 1930 confirmed the natural resources agreements between the Government of Canada and the Governments of Manitoba, British Columbia, Alberta and Saskatchewan, giving the agreements the force of law notwithstanding anything in the British North America Acts.
(12) The Statute of Westminster, 1931 while not directly amending the British North America Acts, did alter some of their provisions. Thus, the Parliament of Canada was given the power to make laws having extraterritorial effect. Also, Parliament and the provincial legislatures were given the authority, within their powers under the British North America Acts, to repeal any United Kingdom statute that formed part of the law of Canada. This authority, however, expressly excluded the British North America Act itself.
(13) The British North America Act, 1940 gave the Parliament of Canada the exclusive jurisdiction to make laws in relation to Unemployment Insurance.
(14) The British North America Act, 1943 provided for the postponement of redistribution of the seats in the House of Commons until the first session of Parliament after the cessation of hostilities.
(15) The British North America Act, 1946 replaced section 51 of the British North America Act, 1867, and altered the provisions for the readjustment of representation in the House of Commons.
(16) The British North America Act, 1949 confirmed the Terms of Union between Canada and Newfoundland.
(17) The British North America Act (No. 2), 1949 gave the Parliament of Canada authority to amend the Constitution of Canada with certain exceptions.
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(18) The Statute Law Revision Act, 1950 repealed an obsolete section of the British North America Act, 1867.
(19) The British North America Act, 1951 gave the Parliament of Canada concurrent jurisdiction with the provinces to make laws in relation to Old Age Pensions.
(20) The British North America Act, 1960 amended section 99 and altered the tenure of office of superior court judges.
(21) The British North America Act, 1964 amended the authority conferred upon the Parliament of Canada by the British North America Act, 1951, in relation to benefits supplementary to Old Age Pensions.
(22) Amendment by Order in Council
Section 146 of the British North America Act, 1867 provided for the admission of other British North American territories by Order in Council and stipulated that the provisions of any such Order in Council would have the same effect as if enacted by the Parliament of the United Kingdom. Under this section, Rupert’s Land and the North-western Territory were admitted by Order in Council on June 23rd, 1870; British Columbia by Order in Council on May 16th, 1871; Prince Edward Island by Order in Council on June 26th, 1873. Because all of these Orders in Council contained provisions of a constitutional character—adapting the provisions of the British North America Act to the new provinces, but with some modifications in each case—they may therefore be regarded as constitutional amendments.
The practice, since 1875, has been to seek amendment of the Act by a joint address of both Houses of Parliament. Consultation with one or more of the provinces has occurred in some instances. The amendment in 1907 was based on resolutions passed at provincial conferences, although opposed by British Columbia. The 1930 amendment respecting the transfer of resources to the four western provinces resulted from agreements with those provinces. The 1949 amendment respecting Newfoundland becoming a province was made after there had been an agreement with that province. The amendments of 1940, 1951, 1960 and 1964, respecting unemployment insurance, old age pensions, the compulsory retirement of judges and adding supplementary benefits to old
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age pensions all had the unanimous consent of the provinces.
The White Paper, after reviewing the procedures followed in respect of amendments to the Act, went on to state four general principles, as follows:
The first general principle that emerges in the foregoing resumé is that although an enactment by the United Kingdom is necessary to amend the British North America Act, such action is taken only upon formal request from Canada. No Act of the United Kingdom Parliament affecting Canada is therefore passed unless it is requested and consented to by Canada. Conversely, every amendment requested by Canada in the past has been enacted.
The second general principle is that the sanction of Parliament is required for a request to the British Parliament for an amendment to the British North America Act. This principle was established early in the history of Canada’s constitutional amendments, and has not been violated since 1895. The procedure invariably is to seek amendments by a joint Address of the Canadian House of Commons and Senate to the Crown.
The third general principle is that no amendment to Canada’s Constitution will be made by the British Parliament merely upon the request of a Canadian province. A number of attempts to secure such amendments have been made, but none has been successful. The first such attempt was made as early as 1868, by a province which was at that time dissatisfied with the terms of Confederation. This was followed by other attempts in 1869, 1874 and 1887. The British Government refused in all cases to act on provincial government representations on the grounds that it should not intervene in the affairs of Canada except at the request of the federal government representing all of Canada.
The fourth general principle is that the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces. This principle did not emerge as early as others but since 1907, and particularly since 1930, has gained increasing recognition and acceptance. The nature and the degree of provincial participation in the amending process, however, have not lent themselves to easy definition.
The apparent intention of the 1949 amendment to the Act which enacted s. 91(1) was to obviate the necessity for the enactment of a statute of the British Parliament to effect amendments to the
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Act which theretofore had been obtained through a joint resolution of both Houses of Parliament and without provincial consent. Legislation enacted since 1949 pursuant to s. 91(1) has not, to quote the White Paper, “affected federal-provincial relationships”. The following statutes have been enacted by the Parliament of Canada:
(1) The British North America Act, 1952, effected a readjustment of representation in the House of Commons. The principle of representation by population was not affected by this legislation.
(2) The British North America Act, 1965, provided for the compulsory retirement of senators, henceforth appointed, at age seventy-five.
(3) The British North America Act (No. 2), 1974, repealed the provisions of the Act of 1952 and substituted a new readjustment of representation in the House of Commons. The principle of representation by population was maintained.
(4) The British North America Act, 1975, increased the representation of the Northwest Territories in the House of Commons from one to two members.
(5) The British North America Act (No. 2), 1975, increased the total number of senators from 102 to 104, and provided for representation in the Senate for the Yukon Territory and the Northwest Territories by one member each.
All of these measures dealt with what might be described as federal “housekeeping” matters which, according to the practice existing before 1949, would have been referred to the British Parliament by way of a joint resolution of both Houses of Parliament, and without the consent of the provinces. The last two of these statutes were within the power of the Parliament of Canada to enact by virtue of s. 1 of the British North America Act, 1886. Like the others they did not in any substantial way affect federal-provincial relationships.
The legislation contemplated in the first question is of an entirely different character. While it does not directly affect federal-provincial relationships in the sense of changing federal and provincial legislative powers, it does envision the elimina-
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tion of one of the two Houses of Parliament, and so would alter the structure of the federal Parliament to which the federal power to legislate is entrusted under s. 91 of the Act.
The Senate has a vital role as an institution forming part of the federal system created by the Act. The recitals in the Act have some significance:
Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:
And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:
Under the Constitution of the United Kingdom, to which reference is made in the first recital, legislative power was and is exercised by the Queen, by and with the advice and consent of the House of Lords and the House of Commons. The Upper House was not and is not an elected body, the Lower House was and is.
It is, we think, proper to consider the historical background which led to the provision which was made in the Act for the creation of the Senate as a part of the apparatus for the enactment of federal legislation. In the debates which occurred at the Quebec Conference in 1864, considerable time was occupied in discussing the provisions respecting the Senate. Its important purpose is stated in the following passages in speeches delivered in the debates on Confederation in the parliament of the province of Canada:
Sir John A. Macdonald:
In order to protect local interests and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated, should be represented in the Upper House on the princi-
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ple of equality. There are three great sections, having different interests, in this proposed Confederation… To the Upper House is to be confided the protection of sectional interests: therefore is it that the three great divisions are there equally represented for the purpose of defending such interests against the combinations of majorities in the Assembly.
Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865, pages 35 and 38.
The Honourable George Brown:
But the very essence of our compact is that the union shall be federal and not legislative. Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step; and, for my part, I am quite willing they should have it. In maintaining the existing sectional boundaries and handing over the control of local matters to local bodies, we recognize, to a certain extent, a diversity of interests; and it is quite natural that the protection for those interests, by equality in the Upper Chamber, should be demanded by the less numerous provinces.
Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865, p. 88.
A primary purpose of the creation of the Senate, as a part of the federal legislative process, was, therefore, to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation. The Act, as originally enacted, provided, in s. 22, that in relation to the constitution of the Senate, Canada should be deemed to consist of Three Divisions, to be equally represented, i.e. Ontario, Quebec and the Maritime Provinces (Nova Scotia and New Brunswick). This provision was later amended and s. 22 now provides for Four Divisions, the Western Provinces of Manitoba, British Columbia, Saskatchewan and Alberta being added as a Fourth Division. The Act now makes provision for representation of Prince Edward Island (as one of the Maritime Provinces), Newfoundland, the Yukon Territory and the Northwest Territories. Subsection 23(5) of the Act requires that a senator shall be resident in the province for which he is appointed.
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The place of the Senate in the exercise of federal legislative powers is determined by ss. 17 and 91 of the Act. The former section provides that:
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
The opening words of s. 91, the all important section defining federal legislative powers, have already been quoted. Power to “make laws for the Peace, Order and Good Government of Canada in relation to all Matters not coming within the Classes of Subjects of this Act assigned exclusively to the Legislatures of the Provinces” was conferred by the British Parliament upon “the Queen, by and with the Advice and Consent of the Senate and the House of Commons”.
The creation of a federal system in Canada involved the necessity of effecting a division of legislative powers. This division is made by the provisions of ss. 91 and 92 of the Act. The latter section empowered each provincial legislature generally to make laws, effective within the province, in respect of matters of a local or private nature. Fifteen specific classes of subjects were enumerated. Section 91 provided generally for the making of laws for the peace, order and good government of Canada. Twenty-nine classes of subject matters were enumerated. Legislation dealing with those matters might affect local or private matters within a province.
The power to enact federal legislation was given to the Queen by and with the advice and consent of the Senate and the House of Commons. Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant in this legislative process.
The amendment to the Act made in 1949 added an additional class of subject matters to those which already existed. By that time the classes had been increased to thirty. The amendment was made on a joint resolution of both Houses of Parliament, but without the consent of the provinces. It gave power to the Queen, by and with the advice and consent of the Senate and the House of Commons to amend “the Constitution of Canada”.
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This power was made subject to certain specific exceptions, as follows:
…except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least one each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.
The phrase “Constitution of Canada” does not appear elsewhere in the Act. The word “constitution” appears in various places and in different contexts. The preamble to the Act refers to “a Constitution similar in principle to that of the United Kingdom” and, later, to “the constitution of Legislative Authority in the Dominion”. Section 22 refers to “the Constitution of the Senate” as being deemed to consist of four divisions. Part V of the Act is entitled “Provincial Constitutions” and the sections in that Part, 58 to 90, deal with the exercise of executive power and legislative power in the provinces. Section 92(1) refers to the amendment of “the Constitution of the Province”. Section 147 refers to “Three Divisions into which Canada is, in relation to the Constitution of the Senate, divided by this Act”.
The Attorney General of Canada submitted that the power conferred upon Parliament by s. 91(1) is limited only by the specific exceptions contained in it. He contended that the very specificity of these exceptions pointed to the wide powers being conferred. If this approach were adopted, it would mean that the Federal Parliament, acting unilaterally, could amend any part of the Act, subject only to the exceptions specified in s. 91(1). But s. 91(1) does not give power to amend the Act. Instead, the phrase “Constitution of Canada” is used. In our opinion, the word “Canada” as used in s. 91(1)
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does not refer to Canada as a geographical unit but refers to the juristic federal unit. “Constitution of Canada” does not mean the whole of the British North America Act, but means the constitution of the federal government, as distinct from the provincial governments. The power of amendment conferred by s. 91(1) is limited to matters of interest only to the federal government.
The word “Canada” is used with reference to the juristic federal unit in several sections of the Act, of which the following are examples:
Section 111 provided that “Canada shall be liable for the Debts and Liabilities of each Province existing at the Union”.
Section 125 provides that “No Lands or Property belonging to Canada or any Province shall be liable to taxation”.
Section 101 refers to “the Laws of Canada”, the meaning of which phrase has recently been interpreted by this Court. The section reads as follows:
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
In Quebec North Shore Paper Company v. Canadian Pacific Limited[1], there was in issue the scope of the jurisdiction of the Federal Court, which is a Court created by federal legislation pursuant to s. 101, “for the better Administration of the Laws of Canada”. The expression “Laws of Canada” was construed as meaning only applicable existing federal law and was determined not to include matters respecting which the Federal Parliament could have enacted legislation.
In McNamara Construction (Western) Limited v. The Queen[2], this Court denied the right of the
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Federal Court to entertain a claim by the federal Crown for breach of contract, a matter of provincial law.
In our opinion, the power of amendment given by s. 91(1) relates to the constitution of the federal government in matters of interest only to that government. The statutes enacted by the Federal Parliament since 1949, to which we have previously referred, are illustrations of the exercise of that power.
The next question is whether, in that limited sense, s. 91(1) would permit the Federal Parliament to abolish the Senate.
Bearing in mind the historical background in which the creation of the Senate as a part of the federal legislative process was conceived, the words of Lord Sankey L.C. in re The Regulation and Control of Aeronautics in Canada[3], at p. 70, although they were written in relation to the Act as originally enacted, are apt:
Inasmuch as the Act embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies.
In our opinion, the power given to the Federal Parliament by s. 91(1) was not intended to enable it to alter in any way the provisions of ss. 91 and 92 governing the exercise of legislative authority by the Parliament of Canada and the Legislatures of the Provinces. Section 91(1) is a particularization of the general legislative power of the Parliament of Canada. That general power can be exercised only by the Queen by and with the advice and consent of the Senate and the House of Commons. Section 91(1) cannot be construed to confer
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power to supplant the whole of the rest of the section. It cannot be construed as permitting the transfer of the legislative powers enumerated in s. 91 to some body or bodies other than those specifically designated in it.
This Court, in Attorney General of Nova Scotia v. Attorney General of Canada and Lord Nelson Hotel Company Limited[4], determined that neither the Parliament of Canada nor a Provincial Legislature could delegate to the other the legislative powers with which it has been vested nor receive from the other the powers with which the other has been vested. The elimination of the Senate would go much further in that it would involve a transfer by Parliament of all its legislative powers to a new legislative body of which the Senate would not be a member.
In the case of In re The Initiative and Referendum Act[5], the Court of Appeal for Manitoba held that The Initiative and Referendum Act, 6 Geo. V, c. 59, was ultra vires of the Manitoba Legislature to enact. This statute provided a procedure whereby laws of the province could be made and repealed by direct vote of the electors instead of only by the Legislature. Section 92(1) of the British North America Act provides that:
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,—
1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.
The Court held that s. 92 of the Act vests the power to make or repeal laws exclusively in the Legislature and that it did not contemplate the creation of a new legislative body to which the Legislature could delegate its powers of legislation or with which it would share them. It was held that this legislation could not be supported as constituting an amendment of the constitution
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under s. 92(1). Chief Justice Howell dealt with this point at p. 7:
The Legislature can in no way change any of the provisions of section 92. By s-s. 1, the Provincial constitution can be changed by the Legislature; but, no matter what changes are made in the constitution, the Provincial Legislature and no other body can legislate on the subjects set forth in the remainder of the sub-sections. I think that is a fair construction to place on that section, read in the light of the whole Act.
It was also held that such legislation would interfere with the “Office of Lieutenant Governor” in that it would render him powerless to prevent legislation, passed in the manner contemplated, from becoming law.
The judgment of the Privy Council[6] dismissed the appeal from this judgment on the latter ground, but Viscount Haldane went on to say, at p. 945:
Having said so much, their Lordships, following their usual practice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Sect. 92 of the Act of 1867 entrusts the legislative power in a Province to its Legislature, and to that Legislature only. No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen (9 App. Cas. 117), the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.
The continued existence of the Senate as a part of the federal legislative process is implied in the exceptions provided in s. 91(1). One exception to the power conferred by s. 91(1) to amend the Constitution of Canada is “as regards the require-
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ment that there shall be a session of the Parliament of Canada at least once each year”. “Parliament” under s. 17 is to consist of the Queen, the Senate and the House of Commons. This exception contemplates that there shall continue to be sessions of the Senate and the House of Commons at least once each year.
The next exception requires that “no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House” except in time of real or apprehended war, invasion or insurrection.
These two exceptions clearly indicate that the power to amend “the Constitution of Canada” given by s. 91(1) was not intended to include the power to eliminate the Senate or the House of Commons.
The Attorney General of Canada contended that the power to amend given by s. 91(1) was the equivalent, in the federal field, of s. 92(1) in the provincial field.
He points out that, pursuant to that power, the provinces of Manitoba, New Brunswick, Prince Edward Island, Nova Scotia and Quebec abolished their respective legislative councils.
The two sections are not, however, analogous. Section 92 does not, as does s. 91, particularize the participants in the law making process. Section 91 confers the authority to legislate in respect of matters within that section upon the Queen, with the advice and consent of the Senate and the House of Commons. Section 92 confers the authority to legislate in respect of matters within that section upon “the Legislature”.
More importantly, s. 92(1) gives a power to amend the constitution of a province to the legislature, except as regards the office of the Lieutenant Governor, “notwithstanding anything in this Act”. Section 91(1) confers a power of amendment subject to specified exceptions which, as we have already pointed out, contemplate the continued existence of both the Senate and the House of Commons.
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For the foregoing reasons, we would answer the first question in the negative.
Question 2:
The Attorney General of Canada submits that this question, in all its aspects, should be answered in the affirmative. Differing views were expressed by the Attorneys General of the provinces.
All of the provincial Attorneys General, other than the Attorney General of Prince Edward Island, submitted that Question 2(f) should be answered in the negative. This sub-question raises the question of the power of Parliament, under s. 91(1), to provide that all bills be given assent and the force of law after a certain time period notwithstanding that they had not been approved by the Upper House. The only provision presently existing, which limits the power of the Senate as compared with the power of the House of Commons, is s. 53 which provides that bills for appropriating any part of the public revenue or for imposing any tax or impost shall originate in the House of Commons.
A provision of the kind contemplated would seriously impair the position of the Senate in the legislative process because it would permit legislation to be enacted under s. 91 without the consent of the Senate. For the reasons already given in respect of Question 1, it is our view that Parliament cannot under s. 91(1) impair the role of the Senate in that process. We would answer this question in the negative.
With respect to the other portions of Question 2, the Attorney General of Ontario and the Attorney General of Nova Scotia submit that these sub-questions cannot be answered categorically in the form in which they arc asked. As the Attorney General of Nova Scotia puts it, they cannot be answered “in the absence of a factual context or actual draft legislation”. In our opinion there is merit in this contention. We will deal with the sub-questions seriatim.
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Sub-question (a) asks whether Parliament could change the name of the Upper House. We would assume that a change of name would be proposed only as a part of some scheme for the alteration of the Senate itself. If that scheme were to be held ultra vires of Parliament, then the change of name would probably go with it. We do not think the question can properly be answered in the absence of such a context.
Sub-question (b) involves changing the numbers and proportions of members by whom provinces and territories are represented in the Senate. None of the provinces supported the federal submission on this point.
As previously noted, the system of regional representation in the Senate was one of the essential features of that body when it was created. Without it, the fundamental character of the Senate as part of the Canadian federal scheme would be eliminated. In the absence of a factual context, it is not possible to say whether a change contemplated by this question would be in keeping with that fundamental character.
Sub-question (c) deals with a change in the qualifications of senators. The difficulty here is that we have not been told what changes are contemplated. Some of the qualifications for senators prescribed in s. 23, such as the property qualifications, may not today have the importance which they did when the Act was enacted. On the other hand, the requirement that a senator should be resident in the province for which he is appointed has relevance in relation to the sectional characteristic of the make-up of the Senate. In our opinion, the question cannot be answered categorically.
Sub-question (d) relates to the tenure of senators. At present, a senator, when appointed, has tenure until he attains the age of seventy-five. At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as “the sober second thought in legislation”. The Act contemplated a constitution similar in principle to that of the United Kingdom, where members of the House of Lords hold office for life. The imposition
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of compulsory retirement at age seventy-five did not change the essential character of the Senate. However, to answer this question we need to know what change of tenure is proposed.
Sub-question (e), paragraphs (i), (ii) and (iii), contemplates changing the method of appointment of senators, presently the function of the Governor General, by having “some” members selected by provincial legislatures, “some” members by the House of Commons, “some” members selected by the Lieutenant Governor in Council or “some other body or bodies”. The selection of senators by a provincial legislature or by the Lieutenant Governor of a province would involve an indirect participation by the provinces in the enactment of federal legislation and is contrary to the reasoning of this Court in the Lord Nelson Hotel case previously cited.
Again, we do not feel that we have a factual context in which to formulate a satisfactory answer.
Sub-question (e) paragraph (iv) deals with the possible selection of all or some members of the Senate by direct election by the public. The substitution of a system of election for a system of appointment would involve a radical change in the nature of one of the component parts of Parliament. As already noted, the preamble to the Act referred to “a constitution similar in principle to that of the United Kingdom”, where the Upper House is not elected. In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. This was accomplished by providing for the appointment of members of the Senate with tenure for life. To make the Senate a wholly or partially elected body would affect a fundamental feature of that body. We would answer this sub-question in the negative.
Dealing generally with Question 2, it is our opinion that while s. 91(1) would permit some
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changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process. The character of the Senate was determined by the British Parliament in response to the proposals submitted by the three provinces in order to meet the requirement of the proposed federal system. It was that Senate, created by the Act, to which a legislative role was given by s. 91. In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.
We answer Question 1 in the negative. We answer sub-questions 2(b), 2(e)(iv) and 2(f) in the negative. In our opinion, the other sub-questions in Question 2, in the absence of a factual background, cannot be answered categorically.
The questions referred to have been answered as follows:
| Question |
1: |
No |
|
|
| Question |
2: |
(a) |
No answer |
|
|
|
|
(b) |
No |
|
|
|
|
(c) |
No answer |
|
|
|
|
(d) |
No answer |
|
|
|
|
(e) |
(i) |
No answer |
|
|
|
|
(ii) |
No answer |
|
|
|
|
(iii) |
No answer |
|
|
|
|
(iv) |
No |
|
|
|
(f) |
No |
|
Solicitor for the Attorney General of Canada: Roger Tassé, Ottawa.
Solicitor for the Attorney General of Ontario: Allan Leal, Toronto.
Solicitor for the Attorney General of Nova Scotia: Gordon F. Coles, Halifax.
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Solicitor for the Attorney General of New Brunswick: Gordon F. Gregory, Fredericton.
Solicitor for the Attorney General of Prince Edward Island: Graham W. Stewart, Charlottetown.
Solicitor for the Attorney General of Saskatchewan: Richard Gosse, Regina.
Solicitors for the Attorney General of Alberta: Ross Paisley and William Henkel, Edmonton.
Solicitor for the Attorney General of Newfoundland: James A. Nesbitt, St. John.