The Royal Commission on Dominion-Provincial Relations

THE ROYAL COMMISSION ON DOMINIONPROVINCIAL RELATIONS F. R. SCOTT 1. THE BACKGROUND I N the body politic disease grows slowly) though the syn1ptoms may disclose themselves in sudden fashion. - Canada is now stricken with a form of constitutional paralysis, the beginnings of which can be traced to a distan.t past. I t was as long ago as 1883 that a certain Lord \Vatson began to sit on ' the Judicial Committee of the Privy Council, and to lTIould Canadian constitutional law to his conception of the loosely knit federal state,' In a series of opinions between 1883 and 1899 he evolved new concepts of constitutional lavv of a particularly decen traEzing character, and he elevated the provincial legislatures to the position of sovereign parliaments in full possession .of the Crown and its prerogatives. In the words of an admirer* \yho later followed in his footsteps, he made the business of laying down the new law that was necessary 'his own. He completely altered the tendency of the dteisions of the Supreme Court, and established in the first place the sovereignty (subject to the power to interfere of the Imperial Parliament alone) of the l~gislatures of Ontario, Quebec and the other Provinces. He then worked out as a principle the direct relation, in point of exercise of the prerogative, of the Lieute~ant-Governors to the Crown. In a series oj masterly judgments he expounded and established the ,'eal constitution of Canada. The liquor laws, the Indian reserve lands, the title to regalia, including thh precious metals, were brought before a Judicial Committee, in which he took the *J. B. Haldane, "Lord Watson," in 1uridica1 Review, 1899, pp. 279-80; italics m~ne. I am indebted for this reference to Mr. C; M. Woodworth, K.C., of Vancouver. The complete article is the best extant recognition of the political function of. the Judicial Committee. The statement was repeated in a later article by Lord Haldane in the Cambridge Law Journal of 1922, cited in 1930 in·the Canadian Bar Review, p. 438. 141 THE UNIVERSITY OF TORONTO QUARTERLY leading part, for consideration as to which of the rival ·claims to legislate ought to' prevail. Nowhere is his memory likely to be more gratefully preserved than in those distant Canadian provinces whose rights of self-government he placed on a basis that was both intelligible and firm. The "distant provinces" were grateful at first; perhaps of late they have begun to realize the costs of sovereignty. Lord Watson's overriding of the Canadian Supreme Court was the turning point in the evolution of the Dominion constitution. N'oserious lack of balance would have resulted from these decisions alone. ,The process, however , was carried much further: Canada was blessed with not one but two "provincial rights1> champions. The substitution of the Privy Council's for the Canadian view of the B., N. A. Act continued apace under Lord Haldane, author of the above passage, who dominated the Judicial Committee from I91 I to 1928. His influence was particularly strong during the experimental years of postWar reconstruction, when Canada was feeling her way toward new social controls. Under him the Dominion again suffered a series of constitutional defeats, enough to discourage the most ardent reformer in national poEtics and to excuse in some degree the paltry nature of the .advances which Canada has made in social reform since the Great War. Perhaps his chief contribution was the virtual elimination of the Dominion residuary clause, by the application of the doctrine, nowhere mentioned in the B. N. A. Act, that the residuary powers cannot be employed so as to epcroach upon property and civil rights' except in times .of extrelne national crisis. The Fathers, of Confederation had used the' simpler tests of "general advantage" and "common interest to the whole country" as criteria of Dominion competency. ' For a brief moment from 1930 to 1932 it seemed that 142 DOl\1INI0N-PROVINCIAL RELATIONS the pendultun had begun to swing the other way. Radio and aeronautics vvere added to the federal jurisdiction, and the Dominion, was held to be man enough to place a woman in the Senate. The gallant excursion was soon over, however. VVith...