POINTS OF SPECIAL INTEREST IN CANADA'S FEDERAL CONSTITUTION.*

BY A. H. F. LEFROY.

In venturing to read a paper upon points of special interest in the Federal Constitution of this Dominion, I feel the disadvantage of having to discuss the subject from a purely academic standpoint. I must crave the indulgence of any present who may be engaged in the actual working of the Constitution, or in active political life, and who have thereby acquired a practical knowledge to which I cannot aspire.

Of the general interest of the Constitution of this Dominion it is impossible to speak in terms of exaggeration. Properly conceived, the founders of Confederation and framers of the British North America Act were, perhaps, undertaking as important a task as any set of men ever put their hands to. For consider what establishing a federal constitution for this country meant. It meant establishing the scheme and fixing the lines along which a people destined in the natural course of things to number tens of millions should conduct the fundamental business of their national life, in a country whose limits transcended those of the United States itself.

It is quite true that the Constitution under which we live in Canada remains largely unwritten, but so far as the skeleton scheme of the Confederation is concerned, and the broad diversions which separate the legislative powers of the provinces from that of the Dominion, it is a written Constitution, and written in lines which are meant to be lasting. It was not for the framers of the British North America Act to regard themselves as establishing a federal Constitution for any limited period. When the founders of the United States Constitution took in hand the question what powers they should allow of amendment, they made the requirements so difficult of fulfilment, that it may be said without exaggeration to-day that nothing less than the force of revolution can secure the amendment of the Constitution of the United States in any essential or important particulars. True, in theory the power remains

*This paper was read before the Canadian Political Science Association at its opening meeting at Ottawa on September 5th, 1913.

in the Imperial Parliament to amend the British North America Act at any time. But this is a power which would only, and could only, be exercised to carry out the wishes of this country as a whole. It was for the Fathers of Confederation to build, so far as in them lay, not for time, but rather for eternity.

I think, then, that the best way to discern the points of special interest in our Constitution is, in the first place, to conceive clearly in a broad way what was the real problem which the framers of the British North America Act had before them. It was no mere matter of combining parliamentary responsible government with a completely organized federal system, while maintaining intact the Imperial connection? Even so this was a thing never accomplished, nor attempted before. But their task was far more than this. It is true they set out, as they themselves state in the preamble of the Act, to federally unite the provinces into one Dominion with a constitution similar in principle to that of the United Kingdom,' and in pursuance of that object they had, amongst other things, to embody in the federal constitution that parliamentary responsible government which had existed in the separate provinces for some twenty years already. But it was not sufficient to satisfy the Canadians of 1867. If things were never again to be put into the melting pot, if there was to be no further tearing up of foundations, it was necessary not only to embody in the Constitution the principles of British Government in their most advanced and developed form, but so to frame it that in the time to come Canadians might be free to develop those principles in their own way, to suit the changing needs of successive generations. Their task was, while firmly uniting the provinces into one Dominion, not to fetter her by too tight ligaments, but to give her a Constitution with which her sons might be satisfied while the British name lasts.' One pre-eminent point of interest in the British North America Act, in my opinion, is its adaptability to the future.

The first matter, therefore, to which I would refer, is the way in which this elasticity and adaptability was secured. We notice, to begin with, that no attempt is made to crystallize by statutory enactments the flexible system of precedents and conventions which made up the customary law of the British Constitution. All that side of the constitu

tional life of this country is left free to develop in its natural way. Then I am convinced that that use of vague general language, and over-lapping descriptions in the sections which distribute legislative powers between the federal parliament and the provincial legislatures, which has sometimes been complained of, was resorted to with the well conceived intention of leaving these respective powers to adjust themselves more perfectly by degrees, and of allowing as free scope, as in the nature of the case was possible, for that process of organic growth of the national institutions, in harmony with the national needs and circumstances, which is one great virtue of the Constitution of the United Kingdom. To this we may attribute the fact that the provisions of the Federation Act relating to the distribution of legislative power have worked on the whole so satisfactorily; so that we hear no serious complaints from any quarter, and we get a popular newspaper like the Toronto World writing on the eve of last Dominion Day that we have a union of the provinces which is likely to prove perpetual.

Again the British North America Act gives both to the Dominion Parliament and to the provincial legislatures, not merely power to do certain things as in the case with Congress under the United States Constitution, but wide powers to make laws in relation to various broad subjectmatters of legislation committed to their respective jurisdictions; and we find, moreover, no such hampering and restricting of legislative action by provisions of a fundamental law as is found in the Constitutions of the United States, and of the various States of the Union. The plenary power of our legislatures-though like all power liable to be abused-was essential if Canadians were to enjoy a political life as free and as vivid as that of the people of the United Kingdom.

And this brings me to another point of great and vital interest in our Constitution. I refer to the plenary power of the Dominion Parliament to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces. The framers of our Constitution could not, of course, create a legislature precisely similar to the Parliament in Great Britain in respect to supreme control over all matters whatever

in Canada, because they were bringing into existence, not a legislative union, but a federal union; but in conferring this residuary power upon the Dominion Parliament they adhered as closely as possible to the British system in preference to that of the United States. They did what was possible to make Canada what I submit she was intended to be and must be an imperium in imperio.

But special interest attaches to the fact that the extent of this federal power has by no means been judicially determined as yet. Of course it does not extend to interference with the provincial powers, but outside that, does it extend to amending the provisions of the British North America Act itself? It is by no means clear that the view expressed in some cases that the action of the Dominion Parliament in this field is subject even to the express provisions of the British North America Act, save as to the provincial powers, is correct. No doubt it may be asked, how can the Dominion Parliament have the power to amend the Imperial Act which established it? The answer may be because the Imperial Act which created it gave it that power. So we come back to the question, does the power to make laws for the peace, order, and good government of Canada in relation to non-provincial subjects, include even this, or does it not? We must never forget that as the Privy Council declared, in a judgment which deserves to rank as one of the charters of our liberties, that the Federation Act conferred upon our legislatures authority as plenary and ample within the limits prescribed as the Imperial Parliament, in the plenitude of its power, possessed and could bestow. And I would submit, as no less a person than Lord Davey himself suggested in the course of an argument before the Board, that the Dominion Parliament might even change the federal Constitution, though not, of course, that of the provinces.

Then again, although it is true, no doubt, as a general statement, that the Dominion Parliament cannot legislate except for Dominion territory, yet this does not affect the power of the Imperial Parliament to give the legislatures of self-governing Dominions within the Empire, the power to pass statutes which shall operate outside their borders, though within those of the Empire itself. And the powers conferred upon the Australian Federation Parliament by

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the Commonwealth of Australia Constitution Act suggest that no narrow construction should be given to this resi duary Dominion power; for we find power conferred upon the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to fisheries in Australian waters beyond territorial limits,' 'with respect to external affairs,' and 'with respect to the relations of the Commonwealth with the islands of the Pacific. The question of the power of the legislatures of the self-governing Dominions to legislate extra-territorially within the Empire, would seem, after all, to be merely a question of the construction of the Constitution which the Imperial Government or Parliament has conferred upon them respectively.

Moreover, bearing in mind the fact that the powers of the Dominion Parliament, as also of the provincial legisla tures, are as plenary and ample within the limits prescribed by the Federation Act as the Imperial Parliament in the plenitude of its power possessed and could bestow, and that the expressed intention was to confer upon the Dominion a Constitution similar in principle to that of the United Kingdom, it seems that they must have the same power to bind their own subjects everywhere, as the Imperial Parliament has to bind all British subjects everywhere. For the expression subject of a colony' has high judicial authority, and, perhaps, may be taken to mean British subjects there domieiled. But in all this we are, as it were, looking forward beyond the stage which we have actually reached in the organic development of this Dominion and the Empire at large. I may stop here perhaps, for a moment, to mention a subject of special interest-the one point in which framers of the British North America Act obviously departed from the analogy of the British Constitution; and it has a special interest at the present moment. Their courage might seem to have failed them when it came to trusting the Dominion Government, or rather the Governor-General in Council, with any complete power of overcoming a dead-lock between the two Houses by recommending the King to add sufficient new members to the Senate to override its opposition. As everyone knows, the exercise of the prerogative power to appoint additional peers was effectively threatened at the time of the first Reform Bill in 1832; and was again threatened, according to rumour, at the time