Disallowance and reservation in Canada

In contemporary Canadian history, disallowance is an authority granted to the governor general in council (federal cabinet) to invalidate an act (also called a "statute") passed by a provincial legislature.

As part of the development of the modern Commonwealth of Nations reforms from 1926 to 1931 recognised that constitutional convention dictated that the government of the United Kingdom was not capable of utilizing disallowance without the approval of the Canadian federal cabinet.

This principle was outlined in the Judicial Committee of the Privy Council decision in Wilson v. Esquimalt and Nanaimo Railway Co. following Robert Borden's disallowance of an amendment to the Vancouver Island Settler's Rights Act passed by the British Columbia Legislature.

[20][21] Political scientist Andrew Heard argues that disallowance of federal law has been effectively forbidden by constitutional convention in Canada since 1942 when the Governor General was no longer permitted to forward Acts of Canadian Parliament to the government of the United Kingdom.

[22] This convention was further strengthened first by the Letters Patent, 1947, which eliminated the Governor General's obligation to send official copies of laws to the government of the United Kingdom; and secondly by the repeal of The Publication of Statutes Act shortly afterwards.

[5] The 1887 Colonial Conference passed a non-binding resolution stating the governor general of a Dominion nation would never use the power of reservation on the instructions of the government of the United Kingdom.

[24] Subsequently, the seventh paragraph of the Royal Instructions was repealed in 1878 on the insistence of Blake, and jurist Gérard La Forest notes that the concept of British control over provincial legislatures was largely forgotten,[25] and the power of reservation was not used by the government of the United Kingdom again.

This Statute effectively eliminated the obligation for certain laws created by the Canadian Parliament to be reserved by the governor general for the approval of the government of the United Kingdom.

[14] Since Canadian Confederation in 1867, 112 provincial acts have been disallowed by the government of Canada, with the last occurrence in 1943 invalidating Alberta's legislation restricting land sales to Hutterites and other "enemy aliens".

[37][d] In his book published by the Canadian department of justice, Gérard La Forest divides this history of Canada following Confederation into five periods based on the use of disallowance.

[40] La Forest notes that when the minister of justice found an ultra vires provision that was useful or of little importance, they generally communicated their concerns to the Legislature rather than use the power of disallowance.

[45][43] Macdonald's Order in Council also recommended that the minister of justice communicate with the province of an offending act to seek a solution before utilizing the power of disallowance.

[59] The second bill, An Act respecting the Treaty between Her Majesty and the United States of America for the apprehension and surrender of certain offenders received royal assent in June and subsequently became law.

La Forest notes that the concept of British control over provincial legislatures was largely forgotten,[25] and the power of reservation was not used by the government of the United Kingdom again.

[26] Albert notes that the additional autonomy provided to Canada made it the most independent British colony, and shortly later in 1878, Parliament passed legislation regarding divorce, a previously forbidden topic without repercussions.

[71] The decision to disallow the act went against the principles of Macdonald's 1868 report, and was protested by the Premier of Ontario Oliver Mowat and opposition in Parliament, including Wilfrid Laurier.

[78] Following Thompson, Conservative justice ministers Charles Hibbert Tupper, Thomas Mayne Daly, and Arthur Rupert Dickey refused to disallow an act solely on the basis that it was unjust.

[68][92] No action was taken on the first resolution, but Parliament led by a motion by Edward Blake moved to permit the governor general to provide the option to refer these matters to the court for an opinion in 1890, however, without the right of an appeal.

[73] Laurier's ideals on federalism and the supremacy of provincial legislatures in constitutionally defined areas was shared by his ministers of justice Oliver Mowat, David Mills, Charles Fitzpatrick, and Allen Bristol Aylesworth.

[100] The Laurier government disallowed laws passed by the British Columbia Legislature which adversely affected immigrants from Asia, as they conflicted with Dominion policy, but also could effect imperial interests and relations between the United Kingdom and Japan.

[109] Members of the public rallied against Dunsmuir who previously employed a large number of immigrants from Asia in his coal mines, and his effigy was burned in the 1907 Anti-Oriental Riots in Vancouver.

[109] The final attempt by the British Columbia Legislature to regulate immigration from Asia came in 1908, which was made largely inoperable by two court challenges and eventually disallowed by the Laurier cabinet.

[112] Doherty described his view that disallowance "be properly invoked for the purpose of preventing, not inconsistently with the public interest, irreparable injustice or undue interference with private rights or property through the operation of local statutes intra vires of the legislatures.

[118] The government of Nova Scotia asked for the act to be disallowed due to the confusion it would cause and the "grave danger to life and property", a request which Gouin weighed against options to call a special session of the Legislature or refer to the courts.

The Aberhart government was elected in 1935 on the pledge to implement social credit, an economic policy developed British engineer C. H. Douglas which included concepts such as $25 monthly dividends.

[131] The Accurate News and Information Act required newspapers to print "clarifications" of stories that a committee of Social Credit legislators deemed inaccurate, and to reveal their sources on demand.

Lieutenant Governor Bowen, mindful of the federal government's disallowance of the Social Credit Board's earlier legislation, reserved royal assent of the acts until their legality could be tested at the Supreme Court of Canada.

[135] Alberta Premier William Aberhart died shortly afterwards in May 1943, and his successor Ernest Manning slowly backed away from implementing social credit policies.

[145] In the 1981 Patriation Reference, the Supreme Court found that "reservation and disallowance of provincial legislation, although in law still open, have, to all intents and purposes, fallen into disuse", and the non-use of the powers could evolve into a constitutional convention.

[153] Canadian political scientist Peter H. Russell views the abolishment of disallowance and reservation as an eventuality and a "logical quid pro quo" for the federal government and provinces in future constitutional reform discussions.