Memorandum for Mr. Robertson

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cc: Mr. Carter
Mr. Gravelle CONFIDENTIAL

May 28th, 1975.

MEMORANDUM FOR MR. ROBERTSON

Re: Effect of Preambular Statements

Preambular statements usually set forth the main
purposes or objectives of the document which they introduce.
They also often state the facts in response to which the
document was drafted. They are therefore referred to by the
courts,when-interpreting ambiguities or dealing withglacunas
in the substantive provisions of the document so that the
ambiguous provisions can,be interpreted in accordance with
the fundamental purpose of the document. Preambles are not
effective to override substantive provisions of the document
when those provisions are clear.

Preambles, can then in some circumstances, have
considerable effect on the interpretation a document will be
given and consequently on the application that document will
have.

The preamble to the British North America Act, l867
is an example of the importance preambular statements can have.
That preamble states:

“Whereas the Provinces of Canada,
Nova Scotia and New Brunswick have
expressed their Desire to be federall
united into one Dominion …. with a
Constitution similar in Principle to
that of the United Kingdom.”

The Report of the Quebec Royal Commission of Inquiry
on Constitutional Problems, 1956, Vol. II, Chapter IV, pp. 151-
171 says of this preamble:

“This passage, which at first
sight may appear relatively innocuous,
nevertheless gives us the deep meaning
and interpretative key to the Act,
because it asserts the two principles
which dominate the entire Canadian
constitutional system – the principle
of federalism on the one hand, and
the principle of parliamentarianism on
the other.”

In the case Reference Re Alberta Statutes, 1938
S.C.R. 133, an Alberta statute was held to be ultra vires by
reason of the preambular statement in the B.N.A. Act that
we are to have a “Constitution similar in principle to that
of the United Kingdom”. It was stated by Chief Justice Duff
and by Mr. Justice Cannon in giving their decisions that
the preambular statement indicated that our Constitution con~
templated a Parliament working under the influence of public
opinion and public discussion. Therefore the subject matter
of the Alberta statute (An Act to ensure the Publication of
Accurate News and Information) which provided for the censor-
ship of newspapers in the province was not within prqyinciai
legislative jurisdiction as being a matter of a “merely local
or private nature”, but was a subject matter the regulation
of which was necessarily vested in Parliament.

Mr. Justice Rand in the case Switzman v. Elbling,
1957 S.C.R. 285 at p. 306, and Mr. Justice Abbott at p. 326
relied on the same preambular statement in giving their deci-
sion that the Act Respecting Communistic Propaganda (the Pad-
lock Act) of Quebec was ultra vires the powers of the provincial
legislature as an unjustifiable interference with the freedom
of speech and expression essential under the democratic form
of government established in Canada. (The other six members
of the court did not rely on the preamble in giving their
decision.)

In the case Rex v. Hess (No. 2), 1949 4 D.L.R.
199, Mr. Justice O’Halloran of the British Columbia Court of
Appeal stated that: the preamble to the B.N.A. Act express-
ing the desire for federal union “with a Constitution similar
in principle to that of the United Kingdom”, had incorporated
into the B.N.A. Act the written Constitution of the United
Kingdom, as reflected in Magna Carta, the Petition of Right,
the Bill of Rights and the Act of Settlement; hence the
impugned federal legislation. Cr. Code, s. 1025A, “is con-
trary to the Canadian Constitution and beyond the competence
of Parliament or any provincial Legislature to enact so long
as our Constitution remains in its present form of a con-
stitutional democracy.

(The correctness of Mr. Justice O’Halloran’s decision in
the case is questionable since it is foreign to the theory
of our constitutional division of powers that any subject
matter lies outside the legislative competence of both
Parliament and the provincial legislatures. Nevertheless,
his decision is a good illustration of the effect preambular
statements can have.).

In A.G. Ontario v. A.G. Canada, 1947 A.C. 127 at
p. l54, the Privy Council cited the preambular statements to
the Statute of Westminster, 1931 as one of the reasons for
declaring the federal legislation which terminated appeals to
the Privy Council valid legislation. It was argued by counsel
that there was no legislative authority granted by the British
North America Act to enact this kind of legislation. The court
answered this argument by saying:

It is, as their Lordships think,
irrelevant that the question is one that
might have seemed unreal at the date of
the British North America Act. To such
an organic statute the flexible interpre-
tation must be given which changing cir-
cumstances require, and it would be alien
to the spirit, with which the preamble
to the Statute of Westminster is instinct,
to concede anything less than the widest
amplitude of power to the Dominion legila-
ture ….

In Russell v. The Queen (1881-82) 7 A.C. 828, the
court referred to the preamble of the Canada Temperance Act,
1878 to determine the purpose and the consequent constitution-
ality of that statute. It was argued that because the statute
was brought into force locally by action of the inhabitants
of a municipality (local option) it was legislation in relation
to local matters and therefore within exclusive provincial
legislative jurisdiction. The Privy Council point out that
the statute contained a preamble to the effect that “It is
very desirable to promote temperance in the Dominion”. Read-
ing the statute in the light of the purpose stated-in the
preamble the Privy Council held the legislation to be valid
federal legislation intended to promote temperance through-
out Canada.

The case cited above do not constitute an exhaus-
tive list of cases in which preambular statements have been
relied upon in interpreting statutes, nor are they are exhaus-
tive list of the cases in which the preamble to the B.N.A.
Act has been relied on in interpreting statutes, but they are
illustrative of the effect preambular statements can have.

Barbara Reed

cc: Mr. Carter
Mr. Gravelle

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