The Constitution of Canada in a War-Time Election PART I. By William Renwick Riddell, LL. D., F. R. Soc. Can., etc. The actual working of the Constitution of Canada is as well shown in a recent general election as in any occurrence of recent years.1 anything which is unconstitutional is illegal, no matter how right it may be. With the American, anything which is unconstitutional is illegal; with us, to say that a measure is unconstitutional rather suggests that it is legal but inadvisable.”2 The British North America Act of 1867 (30, 31 Vict., c. 3, Imp.), with its amendments, may be called the written Constitution of Canada, but one who confined his attention to the written Constitution would have a very erroneous and imperfect view of the real Constitution. As I have more than once pointed out, even the "word 'constitution' carries with it a different connotation in English and in American usage, and we in Canada follow the English. In our usage, the Constitution is the totality of the principles more or less vaguely and generally stated upon which we think the people should be governed; in American usage, the Constitution is a written document containing so many words and letters, which authoritatively and without appeal dictates what shall and what shall not be done. With us anything unconstitutional is wrong, no matter how sions. legal it may be. With the American, 1 The British North America Act was the production of statesmen of Canada, devised and drawn by them without interference or aid from those of the mother country. It set out what the colonies desired, and was passed word and letter as so drawn. In form it was an act of the Imperial Parliament; in fact it was a compact between the Provinces forming the Dominion.3 Whatever the theories of the people of the Thirteen Colonies or their successors, there can (for a British subject) be no doubt of the legal power of the Imperial Parliament to enact valid legislation for all British possessions; and it was found necessary to seek the aid of that Parliament to give a binding character to the compact and its provi 'A general election is an election common to all Canada, at which the members of the House of Commons are chosen; with negligible exceptions, the elections for all constituencies are held on the same day, fixed by the Governor-in-Council, that is, by the Government of the day. See Revised Statutes of Canada (1906) c. 6. A special election or by-election is one held in a constituency by reason of a vacancy in its representation by death or otherwise. R. S. C. (1906), c. 11, Secs. 9 et seq. "The Constitution of Canada in its History and Practical Working," Yale University Press, 1917 (The Dodge Lectures, Yale University, 1917) p. 52. See also my judgment in Bell v. Burlington, (1915) 34 Ontario Law Reports, 619 at p. 622 (Appellate Division of the Supreme Court of Ontario). 'A reasonably full account of the genesis of the British North America Act will be found in a paper of mine read before the Royal Society of Canada last year and printed in the Transactions of the Society for 1917, Section II, pp. 71 et seq. The authorities are referred to with particularity in that article. Other Provinces were added to the Dominion on terms arranged with them, and three new Provinces were formed out of the territory acquired by the Dominion. (Those interested will find an account of the accretions to the Dominion in my Dodge Lectures, cited in note 2, pp. 28, 50, 51.) Prince Edward Island and British Columbia were added as Provinces to the original four, Ontario, Quebec, New Brunswick, and Nova Scotia, by Imperial power; Manitoba, Saskatchewan, and Alberta were created by the Dominion under powers given the Dominion by Imperial legislation—all this was in fact Canadian, though in form part was Imperial. The Parliament agreed upon and provided for by the British North America Act consisted of two houses, the Senate, whose members were to be appointed by the Government for life, and the House of Commons, whose members were to be elected. (Sections 17, 24, 37.) "Every House of Commons shall continue for five years . . . (subject to be sooner dissolved by the Governor and no longer.)" (Section 50.) The Twelfth House of Commons had been elected in 1911, when Sir Wilfred Laurier went down to defeat on the reciprocity issue, and it must needs come to an end in 1916, unless an amendment were made in the BritThere had ish North America Act. been considerable talk about the Governor dissolving the House before it should come to an end by lapse of time. This suggestion was, however, (speaking generally), confined to a section of the Conservative party, the party in power; the greater part of the Conservatives and practically all the Liberals were opposed to a wartime election, and the scheme did not meet the approval of the Administration.* In 1916, the war continued to be actively waged, and all the resources of Canada were devoted to its successful prosecution. It was thought unwise to dissipate the energies of the nation and rouse the antagonisms which would naturally result from an election. Accordingly the Prime Minister, Sir Robert L. Borden, proposed that the term of the existing House of Commons should be extended. The Canadian Parliament had no power to do this; an attempt to do so would be "unconstitutional" in the American sense of the word and therefore ineffective. In proposing a resolution for an Address to the King for an amendment to the British North America While in form the Governor-General has the power to dissolve the House of Commons, in this as in all other official acts he is a roi faineant; like the King, all his official acts are determined by the Ministry who have the confidence of a majority of the House of Commons, and he must always find a Ministry responsible for such acts. The Governor is a lucus a non lucendo, called the Governor because he does not govern. This is one of the things in our Constitution which are difficult of comprehension by Americans, accustomed to find the powers of their officers in written form in some document, and accustomed to governors who are such in fact and not merely in name. (See my Dodge Lectures, pp. 89 et seq.) Nay, even the word "Ministry" is not found in the written Constitution, the British North America Act! "What the American calls "constitutional" and "unconstitutional" we call intra vires and ultra vires. The American use is, however, sometimes met with, and even in the halls of Parliament. Occasionally a barrister has been known to transgress; this is not to be wondered at where, as in our courts, American decisions are cited freely and treated with respect. Act extending the term of the House of Commons for a year, the Prime Minister said: "It is a motion which we should not press if the honorable gentlemen on the other side of the House should oppose it as a party," and "I entirely admit that no extension should be asked unless it appears to have the support of public opinion, and unless it is approved by both political parties." While asserting confidence in the result if an appeal to the electorate should be made, the Prime Minister thought it "in common with a great majority of the Canadian people, a duty to take every possible step and to use every legitimate means to prevent" the necessity of I am sure, will never under any cir- 632, 634.) Unfortunately the war did not come to an end before that day, and the Government were faced with the alterna 'Official Report of the Debates of the House of Commons for 1916, Vol. 122, pp. 622, 625 (Revised Edition). This is an official publication and is generally known as "Hansard." 'It may be thought worth while while to set out this address in full: "Resolved that an humble address be presented to His Most Excellent Majesty the King, in the following words: To the King's Most Excellent Majesty: Most Gracious Sovereign: We, Your Majesty's most dutiful and loyal subjects, the Senate and Commons of Canada in Parliament assembled, humbly approach Your Majesty praying that you may graciously be pleased to give your consent to submit a measure to the Parliament of the United Kingdom to amend the British North America Act, 1867, in the manner following or to the following effect: An Act to amend the British North America Act, 1867. Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows: 1. Notwithstanding anything in the British North America Act, 1867, or in any Act amending the same, or in any Order in Council, or terms or conditions of union, made or approved under the said Act, or under any Act of the Canadian Parliament, the term of the Twelfth Parliament of Canada is hereby extended until the seventh day of October, 1917. 2. This Act may be cited as the British North America Act, 1916, and the British North America Acts, 1867 to 1915, and this Act may be cited together as the British North America Acts, 1867 to 1916. All of which we humbly pray Your Majesty to take into your favourable and gracious consideration." tive of another extension or a general election. It is true that under the British North America Act they could govern Canada without an election for some months, but there was necessity for Parliament to meet at least once a year "so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session." (British North America Act, sec. 20.) Unless its life were extended, Parliament could not sit later than October 7, 1917, and a new House of Commons must be ready to sit October 7, 1918. The Ministry determined to give Parliament the choice, and on July 17, 1917, the Prime Minister presented to the House of Commons a motion for a Joint Address for a further extension of the life of the Parliament for one year. (The motion was really presented on July 16, but at the instance of a private member of the House the consideration of the resolution was deferred. House of Commons Debates for 1917, unrevised edition, pp. 3557, 3558. The debate in the House will be found at pp. 3593 et seq.) He advanced the same considerations as had prevailed in 1916, cited the example of 8 the existing Imperial Parliament, which had extended its life on three successive occasions, and that of New Zealand, which had extended its life. till December 19, 1918; and after pointing out that we had about 300,000 men overseas, he suggested that all that was desired was for once to make the term of the Canadian Parliament the same as Great Britain had for more than a century and a half. But he said that if the resolution were not carried by a unanimous or practically unanimous vote, he would not press the matter further. The proposal was not accepted by Sir Wilfrid Laurier, the leader of the Opposition, who desired a vote of the electorate on the question of compulsory The military service, conscription. parties split. All those opposed to conscription, including practically all the French Canadians, voted against extension, French Canadians constituting by far the greater number (not all) of those so voting. The resolution carried, 82 to 62, there being 10 pairs. The next day, July 18, 1917, the Prime Minister said that the vote showed something very far short of unanimity or practical unanimity, and the Government did not propose taking any fur Before the present war the British Parliament had once extended its own life. (I do not notice the anomalous case of the Long Parliament.) The Act of 1694, 6 W. & M., c. 2, had limited the life of a Parliament to three years; in 1716, a Parliament elected under this law, on the accession of George I, extended its own life and the life of subsequent Parliaments to seven years by the Act of 1 Geo. I, St. 2, c. 38, the well-known Septennial Act. There can be no doubt of the power of the Imperial Parliament to repeal any statute limiting its life, whether that statute was passed by itself or by any previous Parliament. See my judgment in Smith v. London (1909), 20 Ontario Law Reports, 133, at p. 142, "Parliament has no power to control by anticipation the actions of any future Parliament or of itself." In 1716, the state of matters in Britain was very unsettled and precarious. The Pretender had invaded the kingdom in the '15 affair, and the justification for the Septennial Act was that the measure was necessary for the public security and the tranquillity of the state. Otherwise it would have been unconstitutional (in the English sense of the word), although perfectly valid. ther action upon the resolution. Parliament came to an end, and there must be an election. Let us pause here and examine the working of the Constitution, written and unwritten. The British North America Act, as I have said, was the result of a compact; it was the work of colonial statesmen, to which legal validity was given by an Act of the Imperial Parliament. The reason of some of its provisions is historical, and cannot be fully appreciated without some knowledge of the confederating Provinces. Lower Canada, now the Province of Quebec, had (and has) a population largely French by descent and language; while her criminal law was substantially the same as that of England and the English-speaking Provinces, her civil law was based upon the Coutume de Paris. The other Provinces The other Provinces were (and are) largely English-speaking and of British descent. Their civil law was based upon the common law of England. Moreover, Lower Canada was very largely Roman Catholic, and the Roman Catholic Church had special privileges; the other Provinces were predominantly Protestant. Lower Canada had her "peculiar institutions," and was never quite free from the dread that she might sometime be forced into a legislative union which would enable the English-speaking people to destroy her cherished institutions. (Some of the French Canadian newspapers even now have or affect to have the same fear. Lord Durham had recommended a legislative union in his celebrated Report, pp. 226, 227.) Accordingly a federal union was agreed to; the Provinces were given full power of legislation in matters of local moment, and the Dominion the remainder. The Provinces were given the power to amend from time to time the Constitution of the Province (except as regards the office of the Lieutenant Governor-British North America Act, sec. 92), but the Dominion was not. While no harm could accrue to any Province by the amendment of the Constitution of any other, the amendment of the Constitution of the Dominion was a different matter. Accordingly, when the unanimous agreement of the colonial statesmen that the life of the Canadian House of Commons should be five years, was incorporated in the British North America Act, there was no power given to the Canadian Parliament to change it; only one Parliament could do that, the Imperial Parliament at Westminster. Remembering that the British North America Act was a compact, not a gracious grant by the home Parliament, it necessarily follows that in all in all fairness there should be no change in the Act unless the parties to the compact agreed to it; and it equally follows that any change desired by the contracting parties should be made as of course. Each constituency in Canada sends a member to represent it in the House of Commons. Each section of the Dominion has so many Senators. If these members and Senators agree on any amendment, it is made; no change is made without a practical unanimity; of course, a small group of wilful men ought not to be allowed to prevent what practically all the people desire. |