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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
19 February 2001

Theories and Interpretation of the Constitution Act, 1867

Claude Bélanger,
Department of History,
Marianopolis College

The courts have followed a certain number of principles in interpreting the Constitution Act and other statutes. These are: 1) The meaning of a statute is primarily to be obtained from the words of a statute and not from what might have been said in the Legislature when the statute was discussed. 2) If the words of a statute are ambiguous, recourse should be had to the context and scheme of the Act. 3) That in the case of continued ambiguity, reference may be made to the surrounding circumstances existing when the statute was adopted. 4) That where the provisions of a statute are in apparent conflict, the conflicting provisions must be read together and a reasonable reconciliation must be made. Thus, there is an initial assumption that the two sections of a statute are not in contradiction. 5) That the parliamentary history (such as the various drafts) of a statute is not to be used to explain its meaning. 6) That, nevertheless, the court may use historical knowledge in construing the meaning of a statute, but can only attach relative importance to it. 7) That the powers granted the federal and provincial governments, between them, are exhaustive. There is no legislation that cannot be passed by one or the other. This last point is not valid since 1982 when a Charter of Rights was included in the Canadian constitution.

Courts are also aided, in reaching their decisions, by the doctrine of Stare Decisis (jurisprudence). Particular interpretations that have been tested over a period of time and have been held valid constitute a strong presumption that a similar statute presented to a court will be held valid. For the purpose of the good functioning of society it has been thought unwise for courts to reverse trends of decisions that have been tested by time. In practical terms, a lower court is always bound by the decision of a higher court and by its own decisions. Binding jurisprudence only exists when a majority of a Court has clearly pronounced.

In the course of interpreting the Constitution of Canada, the Judicial Committee of the Privy Council and the Supreme Court of Canada have given birth to many doctrines of constitutional interpretation. The most important are: 1) The ancillary powers; 2) Double aspect; 3) Emergency; 4) National dimensions; 5) Two compartments doctrine; 6) Three compartments doctrine; Four compartments doctrine; 8) The Living tree analogy; 9) Paramountcy; 10) Watertight compartments doctrine.

Ancillary powers: Powers granted to the federal and provincial governments are said to be mutually exclusive (see the introductory and concluding paragraphs of s. 91 and the introductory paragraph of s. 92). Ancillary powers are powers that are necessarily incidental. Governments may legislate on matters that normally fall under the jurisdiction of the other level of government if such legislation is only incidental and absolutely necessary to render the legislation efficient. For example, the J.C.P.C. sustained the validity (see G.T.R. v. A.G. Can. 1907) of federal legislation prohibiting railways under federal jurisdiction from contracting out of liability to their employees for personal injuries. The court felt that such legislation was necessarily incidental to the powers of the federal government to regulate railways despite the fact that it dealt with a civil rights issue that normally would be under provincial legislation.

Aspect doctrine: The Constitution Act, 1867, contains no interpretation section to assist the courts in defining the range of matters bound up in each class of subject contained in sections 91 and 92. By the Constitution Act, 1867, the two levels of government were given the authority to legislate "in relation to matters" falling within various "classes of subjects". The content of these classes had to be determined by the courts. In Hodge v. the Queen (1883) it was determined that subjects which in one aspect and for one purpose fall within s. 92 of the Constitution Act, 1867, may for another aspect and purpose fall within s. 91. It thus becomes necessary for the courts to determine the aspect of legislation, its pith, substance, character and purpose to see if a particular legislation "comes within" section 91 or 92. Each legislation may have a double aspect: it may be legislation "affecting" or "in relation to" a specific subject matter. For example, the federal government is permitted to pass legislation "affecting" property and civil rights (after all, legislation of a repressive character does incidentally affect civil rights) but not legislation "in relation to" civil rights.

Emergency doctrine: (see Emergency Federalism) Under "Peace, Order and good Government," the federal government may pass legislation that overrides the terms of s. 91 and 92 when an emergency such as war, pestilence or famine exists. Such circumstances must be exceptional and are necessarily temporary in nature.

National dimensions doctrine: Theory sustained in the last generation by the federal government that stipulates the federal legislation enacted to deal with problems that have a "national dimension" should be held valid by the courts under "Peace, Order and good Government" even if it infringes upon provincial subjects of jurisdiction. The theory has received some recognition from a minority on the Supreme Court in particular in the Anti-Inflation case of the 1970’s.

Two compartments doctrine: In the terminology used originally by the Judicial Committee of the Privy Council, there were only two possibilities or "compartments" for the division of powers between the federal and provincial governments. Once the possibilities of s. 92 were exhausted, there was no need to go any further since all jurisdiction not given specifically to the provinces falls automatically under the "Peace, Order and-good Government" clause. In this interpretation, the 29 categories listed under s. 91 had no independent vitality and were only included, as the preamble states "for greater certainty" to illustrate the type of powers not given to the provinces by s. 92.

Three compartments doctrine: By the end of the 19th century the J.C.P.C. began to depart from the two compartments doctrine. In the Local Prohibition case (1896) the court introduced the doctrine of three compartments to interpret the division of powers in the Constitution Act, 1867. There was first s. 92. If a specific subject of jurisdiction did not fall under s. 92, then did it fall under the enumerated classes of s. 91? If it did not, then it would fall under the Peace, Order and Good Government clause and be federal. In this interpretation, the residual clause had a purely supplementary character. The listed subjects of jurisdiction of s. 91 had to compete with those of s. 92 with the residuary clause functioning as a small compartment for "leftovers." This decision marked the end of the federal judicial predominance that had been based on a wide interpretation of the preamble to s. 91.

Four compartments doctrine: From 1896 on, there evolved in the J.C.P.C. a new vision which would ascribe to s. 91 and 92 not three, but four compartments. These were:

1- section 92, ss. 1-15

2- section 91, ss. 1-29

3- the residuary clause under s. 91

4- section 92-16 "generally all matters of a merely local or private nature in a province."

A rather important number of subject matters has been deemed to fall under this fourth compartment; in particular: local prohibition, certification of unions, insolvency of local governments, professional association, etc. (for a list and reference to specific cases see W.H. McConnell , Commentary on the British North America Act, pp. 287-288.

The Living Tree Analogy: In the early 1930's, the J.C.P.C. briefly discarded the literal interpretations that it had, earlier, given to the Constitution Act, 1867. The occasion was the famous persons case when women were declared "persons" and thus capable of sitting in the Senate. On this occasion, Lord Stankey wrote: " The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention: Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55. Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs." This view was very favourable to enlarge the powers of the federal government and has been quoted extensively by Canadian centralists.

Paramountcy:The aspect doctrine inevitably led the courts to elaborate the doctrine of federal paramountcy. Since the two levels of government can make laws in relation to certain subject matters that in one aspect and for one purpose might be federal while in another aspect and for another purpose might be provincial, it became imperative to work out a way of resolving the dilemma that would occur if the two legislations clashed. The courts have held that in such a case the federal law would be paramount (would win). Article 95 of the Constitution Act, 1867, also stipulates that federal legislation in the fields of agriculture and immigration has priority over the provincial legislation in these fields. Conversely, article 94A provides for provincial paramountcy over old age pensions.

Waterthight Compartments doctrine: In 1937, in deciding the issue of the constitutionality of Bennett's New Deal, Lord Atkin of the J.C.P.C. declared that the mere assumption by Ottawa of an international obligation under a treaty (the federal government had signed international agreements regarding the working conditions of labor and had claimed that the power to sign treaties necessarily implied the power to implement them) did not alter the distribution of powers in the Constitution. He added: "While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure."

© 2001 Claude Bélanger, Marianopolis College