Canadians frequently call attention to the fact that there is an entire "absence of any attempt to fetter the freedom of our legislatures by fundamental limitations such as abound in the United States federal and state constitutions." 68 It is customary to speak of American legislatures as confined in straightjackets.69 Referring to this point of difference between the two systems, the Canada Law Journal, speaking editorially regarding the New York Bakeshop Case, says:

"If this decision holds, and there is no appeal from it, except to the court itself in some other case, then the will of the people to provide better conditions for this class of work-people is practically frustrated for all time, or until some amendment can be made to the constitution. ... Such a condition of things, however, could not arise in Canada, because the question for judicial decision would be which of two legislatures has the legislative power in the matter in question, and though the act of the Federal or a local legislature might be held ultra vires, that would not mean that there was no legislative control over the subject matter in question, but merely that the wrong legislature had assumed to deal with it, and it would still be competent to the proper legislature to legislate regarding it, without any constitutional amendment." 70

Although there are a few dicta to the contrary, the general rule appears to prevail that courts may not pronounce acts invalid because they affect private rights injuriously." A statement of the principle as generally applied by the courts is given in an opinion of the Minister of Justice relative to the Ontario Water Power Case, in which he asserted:

without due process of law, and the vague generalities on which the American system permits courts to found decisions as to the validity of legislative enactments, such as 'fundamental principles of justice,' 'natural rights,' 'insuperable incidents to Republican government,' 'consistency with regulated liberty,' it is not surprising that Mr. Burgess should call the governmental system of the United States 'the aristocracy of the robe."" 42 CAN. L. J. 449.

Cf. L'Union St. Jacques v. Belisle, 20 L. Can. Jur. 29 (1874); Grand Junction Ry. Co. v. The Corporation of Peterborough, 8 Sup. Ct. Rep. 76 (1882); McGregor 7. Esquimalt & N. Ry. Co., [1907] A. C. 462; Florence Mining Co. Case, 18 Ont. L. Rep. 275 (1908). For a defense of the view that the veto power of the Dominion government should be used for this purpose and for a discussion of precedents, see 45 CAN. L. J. 299 et passim.

"A suggestion of the abuse of power, even so as to amount to practical confiscation of property, or that the exercise of power has been unwise or indiscreet, should appeal to your Excellency's Government with no more effect than it does to the ordinary tribunals, and the remedy in such case is, in the words of Lord Herschell, an appeal to those by whom the legislature is elected." 72

The insistence on this rule, it is asserted, demonstrates the marked difference "between the sovereign powers of Canadian legislatures, when legislating on subjects committed to their jurisdiction, and the limited powers of legislatures in the United States."

Laws interfering with the exercise of private rights are not infrequently passed, and in answer to the contention that the court should afford protection to the rights of the individual, the rule which prevails in England is affirmed, with the following comment:

"It is a thing unheard of, under British institutions, for a judicial tribunal to question the validity and binding force of any such law when duly enacted. While the law remains on the statute book the courts are absolutely bound to give effect to it." 73

At another time it is affirmed, "that it does not belong to courts of justice to interpolate constitutional restrictions; their duty being to apply the law, not to make it." 74

IV. COMPARISONS BETWEEN JUDICIAL REVIEW IN CANADA AND IN THE UNITED STATES

What then is the position of the courts of Canada in relation to the legislative power? In theory both federal and local acts may be impeached in any judicial tribunal and are subject to construction, as to whether or not they are ultra vires.75 Some Canadians insist that there is a vast difference between declaring acts ultra vires

72

44 CAN. L. J. 557; also 45 CAN. L. J. 297.

73 Regina v. Kerr, 11 New Bruns. Rep. 553, 557 (1838). 74 Severn v. The Queen, 2 Sup. Ct. Rep. 70, 103 (1878).

75 Cf. 47 CAN. L. J. 10-11. “An interpretation by the Parliament of Canada of the British North America Act is surely not binding on this, or on any court of justice. It is for the judicial power to decide whether the interpretation put on the Constitutional Act by either the Parliament of the Dominion or the legislatures of the Provinces is correct or not." From Taschereau in Valin v. Langlois, 3 Sup. Ct. Rep. 1, 73 (1879). This view is confirmed by the Privy Council in Citizens Ins. Co. v. Parsons, 7 App. Cas. 96, 108 (1881), wherein it is held to be the duty of the courts to define the limits of the respective powers of each legislature.

and declaring them unconstitutional. The difference, if there is any, is not readily discoverable. In fact, the principles upon which judicial power is based, the practice in the application of the power and the great deference to judicial opinion, all of which have had such a high development in the United States, — are equally characteristic of Canadian constitutional law.

Thus the foundation principle of Canadian public law is similar to that of the United States, viz., that the courts are called upon to determine the competence of legislative bodies, both Dominion and provincial. It devolves upon a court of justice ultimately to determine whether either government has exceeded the limits of its jurisdiction. There is some dispute as to whether the Privy Council, to which body many such disputes ultimately go, is a judicial or a legislative body. Nevertheless the decisions on controversies in the realm of public law are determined in a regular judicial manner, with the full force and effect of decisions by supreme or superior courts and in ordinary practice are not reversible. At any rate when the Dominion Parliament or the provincial assemblies attempt to go beyond their spheres of action the Supreme Court, and ultimately the Privy Council, may be called upon to decide whether such action is ultra vires or not.76 Just as under the federal system of the United States, the courts are constantly called upon "to define gradually and with greater exactness as time progresses the relative powers given by the Act to the Dominion and provinces respectively. . . .” 77

The practice of Canadian courts is thus described by one of the provincial tribunals:

"We have passed from the time when the powers of the local legislature were under an unwritten constitution, and were in all respects supreme unless Imperial enactments were encroached upon. We are now under a written constitution, where alike the Dominion Parliament

76 48 CAN. L. J. 243. "While, as has been pointed out above, a British judge could not listen to an argument that a statute of the Imperial Parliament is invalid because it goes beyond the limits of parliamentary authority, the position of a judge in respect of a Canadian Statute, Dominion or provincial, is quite different. 'In Canada, as in the United States, the courts inevitably become the interpreters of the Constitution.' Dicey, 164. The powers of the legislatures being confined to certain specified subjects, the courts must necessarily determine in each particular case whether the subject of the legislation is within the specified classes." From Smith v. City of London, 20 Ont. L. Rep. 133, 138 (1909).

77 Regina v. Wing Chong, 1 Brit. Col., pt. 2, 156 (1885).

and the Local Legislatures, alike the Executive and Judiciary, are by that written constitution circumscribed, although supreme within the limits so set forth. It, therefore, follows that Parliament and the Local Legislatures must so adjust their enactments as to meet the requirements of the Constitutional Act. From time to time, by reason of the conflict of laws passed by parliament with those passed by the Local Legislatures, constitutional questions, not only novel but embarrassing, will arise, and these can only be decided by the judicial tribunals.78 "When the subject matter of legislative acts is brought before the courts they have to pronounce upon the validity of the enactment. And this they have to do as well in regard to Provincial as Federal legislation; and the Courts have to see and ascertain whether or not the acts are within the powers respectively assigned to Parliament or the Local Legislatures." 79

The frequent expressions that Canadians have reason to feel satisfied that in Canada they have followed British rather than American precedent in forming their constitutional system,80 contain an element of truth; nevertheless this dictum by no means gives due weight to the influence of the public law and practice of the United States. For, in the words of Professor Dicey, "The essential characteristics of federalism, the supremacy of the constitution, the distribution of powers, the authority of the judiciary, reappear, though no doubt with modifications, in every true federal state. . . . In Canada, as in the United States, the courts inevitably become the interpreters of the constitution." 81 And in the interpretation of the Constitution, Canadian justices could not, if they would, ignore the remarkable system of consti

78 Queen v. Mayor of Fredericton, 19 New Bruns. Rep. 139, 180 (1879).

79 LAW OF THE CONSTITUTION, 180. The plan of control over Dominion Acts may be illustrated by the following outline:

80 Cf. 47 CAN. L. J. 10, and LEFROY, LEGISLATIVE POWER IN CANADA, Introduction.

tutional law and interpretation which has grown up in the United States.

There are many evidences indeed that Canadian judges and jurists have been willing to learn from the United States and to follow the precedents established by our courts although they have not hesitated to criticise and reject such conclusions or principles as have appeared inapplicable to their federal institutions. The debt which Canada owes to the United States is eloquently expressed in some notable opinions of provincial and Dominion justices. In the words of Justice Spragge:

"It is to the Marshalls and Storys of the neighboring Republic, and to their successors in that Court, which is still true to the traditions of the best age of American jurisprudence, that we have to look for guidance and assistance on a subject most familiar to them, most unfamiliar to us.' 9 82

Similarly, referring to the principles announced by the Supreme Court of the United States, Justice Duff maintains:

"They are the result of a careful application of established canons of construction to a Federal Constitution, in many particulars not unlike our own, by men, some of whose names as constitutional lawyers are unsurpassed in the annals of modern jurisprudence. And they embody a system of constitutional law upon that subject, such as cannot be found elsewhere." 83

On another occasion the court observed:

"In cases like this, where we have no, or scarcely any, English decisions to guide us, for such federations do not exist there, the authorities of the United States, where very similar political bodies exist, though not binding on us, are entitled to the greatest attention and respect, as the production of some of the greatest jurists the world has seen." 8

That the Privy Council has not been disposed to encourage this tendency to follow American citations is clearly shown in the important opinion rendered in Bank of Toronto v. Lambe. Says the

court:

"Their Lordships have been invited to take a very wide range on this part of the case, and to apply to the construction of the Federation Act 82 Leprohon v. Ottawa, 2 Ont. App. Rep. 522, 533 (1878); also Ex parte Owen, 20 New Bruns. Rep. 487 (1881).

83 Ex parte Owen, 20 New Bruns. Rep. 487, 497 (1881).

84 The Thrasher Case, 1 Brit. Col. 153, 216 (1882).