The Canadian Constitution and the United Nations Charter

Extract

The British North America Act of 1867 recorded in its preamble that the Provinces of Canada, Nova Scotia, and New Brunswick had “expressed their desire to be federally united” and then proceeded to give legal effect to that desire. For a long time Canada has been classified as a federal state in contrast to the unitary state which “Legislative Union” would have produced. If, however, Professor F. R. Scott is correct in asserting that “an established convention leaves little doubt that we can amend our constitution whenever a mere majority of our Senate and House of Commons demand it,” Canada has finally joined the ranks of the unitary states, since, as a result of this “established convention,” the provisions of the B.N.A. Act by which “in each Province the Legislature may exclusively make laws in relation to matters coming within” certain “Classes of Subjects” could be altered at will by the Parliament of Canada.

It is true that in making the statement which has been cited, Professor Scott was primarily concerned with showing how completely autonomous Canada has become and not with the federal character of the Canadian constitution. But the example which he selected to illustrate the convention, viz. the opposition of Quebec to the amendment of 1943, was phrased so as to carry the implication that provincial opposition does not matter whatever the nature of the proposed amendment may be. It may well be that the Parliament of the United Kingdom would, in practice, enact any amendment for which the Canadian Parliament asked. But, as we are in the sphere of convention and not of formal law, it is also possible that, as between Canada and the provinces, a convention would be recognized limiting the type of amendment for the enactment of which the Parliament of Canada should ask. As constitutional conventions are apt to be the embodiment of common sense and fair play, and to admit of reasonable exceptions to fit whatever emergencies may arise, it is not impossible that it would be generally recognized as unconstitutional for the Canadian Parliament to ask, without consulting the provincial governments, for an amendment extending its own legislative power and diminishing the legislative power of the provincial legislatures. Emergency action taken in war-time is hardly a complete test for a convention for, as Professor Scott observes, “the demands of total war are such that in the result Canada may almost be said to possess a unitary form of government in war-time (p. 334).” A generous interpretation of constitutional conventions in time of war may well be expected to go hand in hand with a generous construction of the written law by the courts.