Date Published:
November 2005

Documents of Quebec History / Documents de l'histoire du Québec

La loi du cadenas

The Padlock Law

Disallowance: A Contrast

[1938]

[This text was written by Eugene Forsey. For the precise citation, see the end of the document.]

WHEN the Dominion government disallowed three Alberta Acts last summer, it professed to do so on the loftiest grounds of legal and constitutional principle. Moreover, it lost no time about it. According to a recent return tabled in the House of Commons, the Acts received the Lieutenant-Governor's assent August 6. The authentic copies reached Ottawa August 10. On the same day the Minister of Justice wrote his long and elaborate report recommending disallowance. On August 11, the Prime Minister telegraphed Mr. Aberhart that the Minister of Justice was considering the legislation, and offered to refer the Acts to the Supreme Court if Mr. Aberhart would suspend their operation. Mr. Aberhart refused. Six days later, August 17, the Acts were formally disallowed.

Similarly with the three reserved bills: the Lieutenant-Governor reserved them on October 6. The authentic copies reached Ottawa October 12. On November 2 the Dominion government re­ferred them to the Supreme Court.

Contrast the procedure in the case of the Padlock Act, a measure to which every one of the Minister's grounds for disallowing the Alberta Acts applies with equal or greater force. The Padlock Act received the Lieutenant-Governor's assent March 24, 1937. Six days later, March 30,1937, Mr. Woodsworth raised the question in the House of Commons. The Minister told him that he did not "think the power of disallowance could be exercised by the central government," but that the question of referring the Act to the Supreme Court would receive "the most serious consideration." The authentic copy of the Act reached Ottawa July 8 (doubtless the "first convenient opportunity" required by the British North America Act, sections 56 and 90). On August 20, just after the disallowance of the Alberta Acts, the Quebec C.C.F. again drew the Minister's attention to the matter, pointing out how each of his grounds for disallowing the Alberta Acts applied to the Padlock Act, and giving notice that, alone or in conjunction with other bodies, it would petition for disallowance. On January 28, the Canadian Civil Liberties Union, with the support of the Quebec C.C.F. and some forty other bodies in the province, formally petitioned for disallowance or reference to the Supreme Court. On February 4, in the House of Commons, the Minister of Justice intimated that it was unreasonable to expect prompt action as the petition had only been before him for a few days. In the Alberta case, he acted within twenty-four hours, and the Parliamentary paper shows no record of any petition or request for disallowance. Moreover, ever since Sir John Macdonald's Order-in-Council of June 8, 1868, it has been recognized as part of the duty of the Minister of Justice to consider and report on all provincial legislation as soon as possible after receipt of the authentic copies. There is no warrant whatever for the suggestion that he must wait until a petition prods him into action. The question of reference to the Supreme Court must already, on Mr. Lapointe's own showing, have been under "the most serious consideration" for nearly ten months, ever since his promise to Mr. Woodsworth in the previous March. By March 30, 1938, the Minister had got as far as hearing legal counsel for the Civil Liberties Union in support of their petition. At the moment of writing, May 11, "the rest is silence."

In short, it took less than one day's consideration for the Minister to recommend disallowance of the Alberta Acts, without any petition from anyone, and just one day for the government to offer a reference of the same Acts to the Supreme Court. Exactly eleven days intervened between assent and disallowance. In the case of the reserved bills, the government was able to make up its mind to a reference to the Supreme Court in less than four weeks. In the case of the Padlock Act, nearly fourteen months have passed since the Act was assented to, and since the Minister prom­ised "the most serious consideration" of the question of reference ; more than eight months since the first request for disallowance; nearly four months since the first formal petition; six weeks since the hearing of counsel in support of the petition. Other petitions for disallowance have for months been pouring in on the Minister of Justice from almost every part of Canada. And still we do not know what action, if any, the government proposes to take.

The Alberta legislation never took effect. No one suffered from it. But while the Dominion government has been plunged in meditation on the Padlock Act, the Quebec provincial police, according to their own figures, have availed themselves of its provisions to the extent of making one hundred and twenty-four raids on offices and private homes' (mainly the latter), seizing five hundred and thirty-two books dealing with "Communism" (as defined by a professor of the University of Montreal), and six thousand five hundred copies of the Clarion and Clarté. How many books not dealing with "Communism" they have seized, or how many other newspapers, they prudently refrain from telling us. And in all these cases, not one of the persons raided has been even charged with any offence, let alone convicted. Two raids every three days since last November 9; execution without judgment, dispossession without due process of law, are almost daily occurrences; liberties as old as Magna Charta trampled on twenty times a month : that is the record. The Dominion government evidently cares about the civil liberties of bankers in Alberta. Unless it acts soon, it will be hard to persuade anyone that it cares at all about the civil liberties of ordinary citizens in Quebec.

Source: Eugene FORSEY, "Disallowance: A Contrast", in Canadian Forum, Vol. XVIII, No 209 (June 1938): 73-74.