REPORT: Uniformity of Laws, Section 94 of the Constitution Act, 1867
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Date: 2023-03-14
By: PrimaryDocuments.ca
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Constitution Act, 1867:
Section 94
Compilation of primary documents to assist in interpreting the Uniformity of Laws in Section 94 of the Constitution Act, 1867
Contents
Part 1
Three issues in the interpretation of Section 94 (by Scott Reid and Michael Scott)
- Issue #1: Does Section 94 expand the powers of Parliament beyond what they would be if the clause did not exist?
- Issue #2: Does Section 94 apply to all the provinces other than Quebec, or just the provinces named in the section?
- Issue #3: Can Section 94 be used vis-a-vis one province when other provinces refuse consent?
Part 2
Section 94 in Successive Drafts from the Quebec Resolutions, 1864 to the Constitution Act, 1867
Part 3
Debates on Section 94 in the Confederation Debates in the Province of Canada (1865-1866)
Part 4
Debates on Section 94 in the Confederation Debates in Other Provincial Legislatures (1866)
Part 5
Post-Confederation Debates on Section 94
“Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof.”
PART 1:
Three issues in the interpretation of Section 94
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Issue #1: Does Section 94 expand the powers of Parliament beyond what they would be if the clause did not exist?
A major issue surrounding Section 94 is its purpose. Some scholars, led by F.R. Scott, have argued that the purpose of the clause was to increase federal power by mechanism permitting the piecemeal transfer of powers from the legislatures to Parliament. Others view Section 94 as, in practice, being a provincial rights clause, in that it prevents Parliament from taking powers from the legislatures without their explicit consent). It appears to be both.
F.R. Scott is oft-cited as the expounder of the expansionist view of Section 94. In 1942 he wrote:
The purpose of Confederation was to bring greater union, and to eradicate the exaggerated provincialism which was holding back all sections of British North America in 1867. While for various and good reasons a federation and not a legislative union was all that could be agreed upon, it was clearly understood and intended by the framers of the Act that, outside Quebec, an easy way should be left open for an even closer integration of the provinces than was provided at the beginning by the Act itself. A power of amendment, in the direction of unity, was written into the act….[1]
The opposing perspective is summarized in a 2007 paper by Kathy Brock :
As LaSelva observes, section 94 is subject to explicit provincial consent. This was the reply of the decentralizing founders of Confederation to the centralizers as Vipond notes. Read from the perspective of the advocates of local control over local affairs, the provincial consent clause is the equivalent of the federal power of disallowance over the provinces.[2]
The political history does seem to point towards a unifying goal of the clause—an open door to a closer, de facto legislative union. However, there are hints that it was also meant to protect provincial rights. While John A. Macdonald argued in favour of closer union, he was always willing to qualify his opinions in order to achieve the consent of those whose consent was required in order to achieve Confederation.
An example of this practicality may be found in the Confederation Debates. On February 6, 1865, Macdonald explained to the Legislative Assembly of the Province of Canada:
Although, therefore, a legislative union was found to be almost impracticable, it was understood, so far as we could influence the future, that the first act of the Confederate Government should be to procure an assimilation of the statutory law of all those provinces, which has, as its root and foundation, the common law of England.[3]
But then, quite literally with his very next breath, he added,
But to prevent local interests from being over-ridden, the same section makes provision, that, while power is given to the General Legislature to deal with this subject, no change in this respect should have the force and authority of law in any province until sanctioned by the Legislature of that province.[4]
This does seem to encapsulate the clause in all its complexities. It is aspirational—an invitation, a hope for the laws to be unified. But the aspirations of one party to an agreement may, without any question of legitimacy arising, be held in check in perpetuity by the denial of the consent of another party. It is worth noting, in this context, that towards the end of the process of drafting and redrafting Section 94, an explicit statement that only provincial legislative consent would suffice, was added to the wording of the section.
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Issue #2: Does Section 94 apply to all the provinces other than Quebec, or just the provinces named in the section?
The explicit wording of Section 94 lists only Ontario, Nova Scotia, and New Brunswick by name. It also implicitly excludes Quebec, which was of course the only other original province. This raises the issue: are Canada’s six post-1867 common law provinces implicitly included in Section 94?
Scott argues in that all other provinces should be included. He says, “It would be very odd to discover that the constitution enabled half the state to unify its law, but not the other half.”[5]
During the process of drafting the Quebec Resolutions (1864), when Newfoundland and Prince Edward Island were expected to join the new federation, these two provinces were listed in early versions of what would become Section 94. The two provinces were dropped from the clause when it became clear that they were not going to join Confederation—the change from five to three provinces happening only in the final version of the London Resolutions, in 1866.
Scott also notes that during the Confederation Debates, Macdonald used a broader language when describing Section 29(33) of the Quebec Resolutions. (Section 29(33) is one of the earlier drafts of what would become Section 94.) In reference to this section, Macdonald stated, “The great principles which govern the laws of all the provinces, with the single exception of Lower Canada, are the same…”[6]
FR Scott also references an 1869 report to the House of Commons on the issue of section 94. Under the signature of Sir John A. Macdonald, the report states:
“A Commission can then be appointed, should it be thought expedient to do so; but the undersigned would suggest that perhaps its issue had better be postponed for a time in the hope that the remaining provinces in British North America may, ere long, be added to the Dominion. The Commissioners could then report Measures rendering uniform the laws of all the provinces and not merely the four which now compose the Dominion.”[7]
In 1869, the Opposition seems to have regarded section 94 as being all-encompassing. Edward Blake, the then-leader of the Opposition, informed the House that he agreed with the universal applicability of Section 94. Indeed, he indicated that he regarded its universal applicability as an argument against any then-current effort to act upon the section. This would, he noted, be “premature, looking to the position of Nova Scotia and to the coming in of Newfoundland.”[8]
However, the language of the Statutes that brought other provinces into Confederation proves problematic for this point of view. T.B. Flint first argues this before the House on March 12, 1902 when he says,
“The Manitoba Act … contains a clause the wording of which is slightly different from that [B.C. Terms of Union], and what the effect of that difference would be, might perhaps require a great deal of consideration. I call attention to it, and it will probably strike our minds as being a little odd. In the Manitoba Act the clause reads:–
2. On, from and after the said day on which the order of the Queen in Council shall take effect as aforesaid, the provisions of the British North America Act, 1867, shall, except those parts thereof which are in terms made, or by reasonable intendment, may be held to be specially applicable to, only to effect one or more, but not the whole of the provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the province of Manitoba, in the same way, and to the like extent as they apply to the several provinces of Canada, and as if the province of Manitoba had been one of the provinces originally united by the said Act.[9] [Emphasis is ours]
F.R. Scott is aware of this objection, but argues that it is “narrowly verbal and textual.”[10] In defence of a more inclusive reading of Section 94, he points to parallels in other Sections of the Constitution Act, 1867. Sections 90 and 97, he notes, also deal explicitly only with the same three enumerated provinces, yet are understood to apply to all provinces other than Quebec. In Section 97, judges are to be appointed by their respective bars in Ontario, Nova Scotia, and New Brunswick (until the laws for property and civil rights are rendered uniform). He says, “It could be argued that neither applies, but only again by showing great inconsistency in the constitutional plan.”[11]
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Issue #3: Can Section 94 be used vis-a-vis one province when other provinces refuse consent?
Under the terms of the Constitution Act, 1867, certain transfers of power to the Dominion parliament may be undertaken by means of unilateral action. Others require the consent of the provinces. But it is an open question whether, in cases that conform the latter model, it would be possible to transfer powers from one provincial legislature to Parliament, while not doing so in another case.
The two different potentialities were written into the Constitution. The Fathers of Confederation did not explicitly create a Court of Appeal (aka Supreme Court), but they did leave open such a possibility.[12] In the 1870s, such a court would be created by the Parliament of Canada—without provincial consent.
The provision, under the authority of which, this action was authorized, is Section 101 of the Constitution Act, 1867, which states:
The Parliament of Canada, may notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
By contrast, Section 94 states:
Notwithstanding anything in this Act, the Parliament of Canada may make Provision for Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof. [Emphasis is ours]
This caveat shows that even in the case of a federal statute that has been passed by both houses of Parliament and granted Royal Assent, a power transfer is not a fait accompli. Section 94 represents an open-ended offer, but any transfer of legislative power absolutely requires provincial consent. And not just for the uniformity of all laws—but for the uniformity of any law related to property and civil rights.
However, in 1940, the Rowell-Sirois Commission suggested an alternative option: What would happen if a single province, or several but not all of the provinces, under authority of Section 94, were to enact statutes transferring authority to the Dominion Parliament? The effect anticipated by the Framers, of producing a uniformity in the laws of the provinces, would be partly but not completely achieved. It remains an unresolved question whether the failure of other legislative assemblies, in other provinces, to approve parallel statutes, would have the effect of nullifying such a transfer of power. The relevant part of the Report of the Commission is reproduced below, in Part 5.
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PART 2:
Section 94 in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867
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The Quebec Resolutions (1864)[13]
October 25-26, 1864: Resolutions on Indians, Etc.
The General Legislature shall have power to pass statutes for rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, and for rendering uniform the practice of all or any of the Courts in these Provinces.
(Source: George Brown Papers, Drafts of the Quebec Resolutions, Resolutions on Indians, Etc., October 25th-26th, 1864 (MG 24, B 40, Vol. 21, p. 3750). Click HERE.)
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October 26, 1864: Working Draft No. 1
[Resolved,] “To postpone the consideration of:
[a list of resolutions follows, including]
The General Legislature shall have power to pass statutes for rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, and for rendering uniform the procedure of all or any of the Courts in these Provinces; but not to go into operation in any Province until sanctioned by the Legislature thereof.”
(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 1, October 26th, 1864, MG 26 A, Vol. 46, pp. 18164-18168. The text is found on p. 18168. Click HERE.)
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October 26-27, 1864: Working Draft No. 2
[28] That it shall be competent for the General Legislature [The Federal Government shall have power] to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting [the following subjects]:
[a list of powers, numbered 1 – 32, follows]
[33] The General Legislature shall have power to pass statutes for rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, and for rendering uniform the procedure of all or any of the Courts in these Provinces; but not to go into operation [any Statute for this purpose shall have no force or authority] in any Province until sanctioned by the Legislature thereof.
(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 2, October 26th-27th, 1864, MG 26 A, Vol. 46, pp. 18142-18155. This text is found on p. 18148. Click HERE.)
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October 27, 1864: Working Draft No. 3, Copy 2
That the Federal [General] Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects:
[a list of powers, numbered 1 – 32, follows]
33. For rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and for rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof.
(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 3, Copy 2, October 27th, 1864, MG 26 A, Vol. 46, pp. 18139-18141. This text is found on p. 18140. Click HERE.)
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October 27, 1864: Working Draft No. 4
[29.] That the General Government [Parliament] shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects: —
[a list of powers, numbered 1 – 32, follows]
33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, [Newfoundland and] Prince Edward Island, and Newfoundland and for rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof.
(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 4, October 27th, 1864, MG 26 A, Vol. 46, pp. 18136-18138. This text is found on p. 18137. Click HERE.)
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March 14, 1865: Quebec Resolutions as adopted in the Legislature of the Province of Canada
29. The General Parliament shall have power to make Laws for the peace, welfare and good government of the Federated Provinces (saving the Sovereignty of England), and especially laws respecting the following subjects:
[a list of powers, numbered 1 – 32, follows]
33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof.
(Source: John A. Macdonald, The Quebec Resolutions, 1864 as Adopted in the Legislature of the Province of Canada, Vol. 46, pp. 18210-18216. This text is found on p. 18212. Click HERE.)
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The London Resolutions (1866)
December 4, 1866: Version No. 1, Copy 1
29. The General Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting the following subjects: —
[a list of powers, numbered 1 – 32, follows]
33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all of any of the Courts in these Provinces; but any Statute of this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof.
(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 1, December 4th, 1866 (MG 26 A, Vol. 46, pp. 18184-18190). This text is found on p. 18186. Click HERE.)
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December 13-14, 1866: Version No. 2, Copy 1
The resolution is not changed in this draft.
(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1, December 13-14th (MG 26 A, Vol. 46, pp.18176-18183) The text is found on 18178. Click HERE.)
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December 14, 1866: Version No. 3, Copy 1
29. The General Parliament shall have power to make laws for the peace, welfare, and good Government of the Federated Provinces [illegible] (saving the Sovereignty of England), and especially Laws regarding the following subjects:—
[a list of powers, numbered 1 – 32, follows]
33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, [+] New Brunswick, Newfoundland, and Prince Edward Island, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof. [illegible] [illegible]
(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 3, Copy 1, December 14th, 1866 (MG 26 A, Vol. 46, pp. 18197-18209) The text is found on p. 18201-18203. Click HERE.)
—–o0o—–
December 28, 1866: Final Version
28. The General Parliament shall have power to make laws for the peace, welfare, and good government of the Confederation (saving the Sovereignty of England), and especially laws respecting the following subjects:—
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof, and the power of repealing, amending, or altering such Laws, shall henceforward remain with the General Parliament only.[14] [Emphasis is ours]
(Source: London Resolutions as found in Joseph Pope (ed), Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell Co. Ltd., 1895) at 98-110. This text is found on pp. 103-104. Click HERE.)
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Constitution Act, 1867
n.d. (probably early January, 1867): Rough Draft
36. The Parliament shall have power to laws respecting the following subjects :—
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, n.d. (MG 26, A, Vol. 48, pp. 18768-18793). This text is found on pp. 18779-18881. Click HERE.)
—–o0o—–
January 23, 1867: 23rd January Draft[15]
40. Notwithstanding anything in this Act, any Act of the Parliament of the United Colony may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Upper Canada, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and thenceforth the Power of the Parliament of the United Colony to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of the United Colony making Provision for such Uniformity shall not have effect in any Province unless and until it is approved and adopted by the House or Houses of the Provincial Assembly thereof by Address to the Governor General of the United Colony.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, J.W. Ritchie’s Copy, January 23rd, 1867 (MG 26, A, Vol. 48, pp. 18971-18988). The text is found on p. 18985. Click HERE.)
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January 30, 1867: 1st Draft
Only a partial copy survives of this draft, consisting of the first twenty sections of the draft Bill. Therefore, the wording of the relevant section in this draft is unknown.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 1st Draft, January 30th, 1867 (MG 26 A, Vol. 48, pp. 19017-19021. Click HERE.)
—–o0o—–
January 31, 1867: 2nd Draft
50.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:—
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft, January 31st, 1867 (MG 26, A, Vol. 48, pp. 19022-19039). This text is found on pp. 19033-19035. Click HERE.)
—–o0o—–
n.d. (between Jan. 31 & Feb. 2, 1867): 3rd Draft, Early Copy
52.—It shall be lawful for the Queen by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Early Copy, n.d. (MG 26, A, Vol. 48, pp. 19101-19124). The text is found on p. 19113-19115. Click HERE.)
—–o0o—–
February 2, 1867: 3rd Draft, Revised Copy
52.—It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada [the Senate + House of Commons], to make laws for the peace, order, and good government of the Kingdom and of the several provinces [of Canada], in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to [the] Provincial Legislation [Legislatures]; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Revised, February 2nd, 1867 (MG 26, A, Vol. 48, pp. 19125-19148). The text is found on pp. 19137-19139. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Early Version
55.— It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for great certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:—
[a list of powers, numbered 1 – 31, follows]
32. Rendering uniform all or any of the laws relative to property civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, n.d. (MG 26, A, Vol. 49/1, pp. 19150-19181). The text is found on pp. 19173-19175. Click HERE.)
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n.d. (1867): 4th Draft, Early Version with F.S. Reilly’s Notes
[48] 55.—It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–
[a list of powers, numbered 1 – 33, follows]
32[4].Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada [Ontario], Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version with F.S. Reilly’s notes, n.d. (MG 26, A, Vol. 49/1, pp. 19182-19214). The text is found on pp. 19205-19207. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Later Version
48.—It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–
[a list of powers, numbered 1 – 33, follows]
34. Rendering uniform all or any of the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws such thenceforward be vested in the Parliament only.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, n.d. (MG 26, A, Vol. 49/1, pp. 19337-19367). The text is found on pp. 19360-19361. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Later Version, Revised Copy
Section 48, subsection 34 is not changed in the revised copy.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, Revised Copy, n.d. (MG 26, A, Vol. 49/1, pp. 19399-19450). This text is found on pp. 19422-19423. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Final Version
Section 48, subsection 34 is not changed in the final version of the 4th draft.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Final Version, n.d. (MG 26, A, Vol. 49/2, pp. 19614-19664). This text is found on pp. 19637-19638. Click HERE.)
—–o0o—–
n.d. (1867): House of Lords Bill
94. Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – H.L. Bill (Floor), n.d. (MG 26 A, Vol. 49/2, pp. 19665-19711. This text is found on p. 19691. Click HERE.)
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PART 3:
Debates on Section 94 in the Confederation Debates in the Province of Canada (1865)
Debates on the subject of Section 29(33) of the Quebec Resolutions (the ancestor of Section 94)
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Province of Canada (1865)[16]
February 6, 1865: John A. Macdonald, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 29 & 41).
p. 29
John A. Macdonald [Kingston, Attorney-General West]—We in Upper Canada understand from the nature and operation of our peculiar municipal law, of which we know the value, the difficulty of framing a general system of legislation on local matters which would meet the wishes and fulfil the requirements of the several provinces. Even the laws considered the least important, respecting private rights in timber, roads, fencing, and innumerable other matters, small in themselves, but in the aggregate of great interest to the agricultural class, who form the great body of the people, are regarded as of great value by the portion of the community affected by them.
And when we consider that every one of the colonies has a body of law of this kind, and that it will take years before those laws can be assimilated, it was felt that at first, at all events, any united legislation would be almost impossible. I am happy to state—and indeed it appears on the face of the resolutions themselves—that as regards the Lower Provinces, a great desire was evinced for the final assimilation of our laws.
One of the resolutions provides that an attempt shall be made to assimilate the laws of the Maritime Provinces and those of Upper Canada, for the purpose of eventually establishing one body of statutory law, founded on the common law of England, the parent of the laws of all those provinces.
p. 41
John A. Macdonald [Kingston, Attorney-General West]—The 33rd provision is of very great importance to the future well-being of these colonies. It commits to the General Parliament the “rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or many of the courts in these provinces.” The great principles which govern the laws of all the provinces, with the single exception of Lower Canada, are the same, although there may be a divergence in details; and it is gratifying to find, on the part of the Lower Provinces, a general desire to join together with Upper Canada in this matter, and to procure, as soon as possible, an assimilation of the statutory laws and the procedure in the courts, of all these provinces.
At present there is a good deal of diversity. In one of the colonies, for instance, they have no municipal system at all. In another, the municipal system is merely permissive, and has not been adopted to any extent. Although, therefore, a legislative union was found to be almost impracticable, it was understood, so far as we could influence the future, that the first act of the Confederate Government should be to procure an assimilation of the statutory law of all those provinces, which has, as its root and foundation, the common law of England. But to prevent local interests from being over-ridden, the same section makes provision, that, while power is given to the General Legislature to deal with this subject, no change in this respect should have the force and authority of law in any province until sanctioned by the Legislature of that province.
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February 21, 1865: Hector-Louis Langevin speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 365).
Hector-Louis Langevin [Dorchester, Solicitor General East]—[…] Again, we have at the present time as many systems of judicature as we have provinces; with Confederation, on the contrary, this defect will be removed, and there will be but two systems: one for Lower Canada, because our laws are different from those of the other provinces, because we are a separate people, and because we do not choose to have the laws of the other populations—and the other for the remainder of the Confederation.
All the other provinces having the same laws, or their system of law being derived from one and the same source, may have one and the same system of judicature; and, in fact, a resolution of the Conference allows them to resolve that they will have one code and one
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judicial system; but an exception is made in favor of Lower Canada and our laws. There are also as many different tariffs as there are different provinces, as many commercial and customs regulations as provinces. It is true that there are now many free goods, but it is also correct to say that there as many customs systems as there are provinces. And with respect to great colonial works, is it not true that it is impossible at the present day to undertake them, because the interests involved are too considerable, and because it is necessary to consult three or four legislatures?
By this it will be understood that it is almost impossible to reconcile so many different interests, except by uniting in one and the same legislature the representatives of those interests and of the people affected by them, and this object we cannot attain by remaining by ourselves.
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February 24, 1865: Matthew Cameron speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 462).
Matthew Cameron [Ontario North]—[…] The
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33rd sub-section gives to the General Government the power of “rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.” So that in reality no such law will be binding until it has the sanction of the Local Legislature of the province particularly affected thereby. Such being the guarded terms of the resolution, why is it not made applicable to Lower Canada as well as to the other provinces?
Nothing could be done respecting its peculiar laws without the consent of its Local Legislature, and it is quite possible to my mind, that there are some laws which it would be advantageous to all parts of the Confederation to assimilate. But they emphatically declare in these resolutions that there shall be no interference with the laws of Lower Canada. So that while it is proposed to assimilate the laws of the other provinces, there is a large section of intervening country which is to have, for all time to come, laws separate and distinct from the rest.
Some Hon. Members—Hear, hear.
Matthew Cameron [Ontario North]—There is a great deal of difference in making a provision of this kind, which is to give the people the option, and which is not to be binding for all time to come unless sanctioned by them, and declaring that a law shall be forced upon the people whether they liked it or not.
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February 27, 1865: Christopher Dunkin speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 490 & 509).
p. 490
Christopher Dunkin [Brome]—Uniformity of laws again is to be given to all the provinces, if they desire it, except Lower Canada; but by a peculiar provision of the Constitution, although nothing can be done by the General Parliament to render the laws uniform, without the consent of the provinces concerned, it is stipulated that it shall be impossible for Lower Canada, even though she should desire it, to have her laws uniform with those of the other provinces.
p. 509
Christopher Dunkin [Brome]—[…] The Legislative Council is to be named in a peculiar manner, so far as its members from Lower Canada are concerned. The other provinces may have their laws made uniform, but an exception in this respect is made for Lower Canada, and as if to make it apparent that Lower Canada is never to be like the rest of the Confederation, it is carefully provided that the General Parliament may make
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uniform the laws of the other provinces only—that is to say, provided those provinces consent to it, but by inference it cannot extend this uniformity to Lower Canada, not even if she should wish it. Supposing, even, that the other provinces were to desire to adopt our Lower Canadian system, according to the letter of this Constitution, one would say they cannot do it. They may become uniform among themselves, but Lower Canada, even though her people wore to wish it, must not be uniform with them.
Again, as to education, exceptions of some sort are to be made in Lower Canada, and indeed in Upper Canada too, though no one can tell to what extent these exceptions are or are not to be carried. Thus, in one way and another. Lower Canada is to be placed on a separate and distinct footing from the other provinces, so that her interests and institutions may not be meddled with. I say this system, as a whole, and these peculiarities and exceptions in regard to Lower Canada, are adopted with a special view to remedy our Canadian difficulties of race and creed.
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March 2, 1865: Christopher Dunkin speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 575).
Joseph Cauchon [Montmorency]—[…] But here is the point to which I wish to draw the attention of this House. Among all the things guaranteed to Lower Canada in the Constitution, and in fact to all the provinces, we find their own civil laws. Lower Canada has been so tenacious of its civil code, that it is laid down in the project before us that the Federal Parliament shall not even be able to suggest legislation by which it may be affected, as it will have the right to do for the other provinces—The reason is obvious; the civil laws of the other provinces are nearly similar; they breathe the same spirit and the same principles; they spring from the same source and the same ideas. But it is not so with regard to those of Lower Canada, with their origin from almost entirely Latin sources; and we hold to them as to a sacred legacy; we love them because they suit our customs, and we find under the protection for our property and our families
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March 3, 1865: Joseph Perrault speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to 624).
Well, Mr. Speaker, I say without hesitation that in the case of a collision, we shall find ourselves completely at the mercy of the hostile Federal majority, and that it may oppress us, assimilate our laws; suspend our judges, arm the militia against us, and send us to the scaffold or into exile in any way they may think proper, notwithstanding our protestations and those of the French-Canadian minority in the Federal Parliament. Such has already been found to occur; the past is there to prove the fact, and everything leads us to believe that the same attempts at fanatical aggression will be renewed in our day, if the scheme of Confederation is adopted.
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Frederick Haultain, p. 627
Frederick Haultain [Peterborough]—[…] Our institutions are generally similar, although, no doubt, from having been isolated for so great a length of time, and having had no intercourse one with the other to speak of, there is an idiosyncracy attached to each of the provinces as they now exist, and the longer we remain separate the greater the divergence must be, and the more difficult union between us will be of accomplishment. The advocates of this scheme propose the union of all these provinces. It is a trite
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proverb that “union is strength, and division is weakness.” So universally accepted is this statement, that no man can venture to deny its correctness. And I feel, as an advocate of union, that our position is one which is unassailable, and the arguments must indeed be strong which would convince me that we are not going in the right direction when moving towards union and consolidation.
Some Hon. Members—Hear, hear.
Frederick Haultain [Peterborough]—Apart from the intrinsic force and power of union, which would be in itself sufficient to call us in that direction, Canada has special reasons for desiring that the British provinces should draw together more closely than they have yet done. By such a step we may remove one great cause of our own political difficulties. I do not think that this is at all a necessary part of the argument for our uniting together. But it so happens that by our union we hope to remove these difficulties, and that is an additional argument for union, although not at all necessary to induce the adoption of the scheme.
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August 2, 1866: Christopher Dunkin, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1866 edition of the Confederation Debates, then scroll to p. 73)[17]
Christopher Dunkin [Brome] […] By reference to the 33rd resolution[18] of the Quebec scheme, it would be found that the control of the civil and criminal courts of all the Provinces, excepting Lower Canada, might be merged in the General Government, thus leaving a responsibility upon the Local Government of Lower Canada, which did not rest upon the others.
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PART 4:
Debates on Section 94 in the Confederation Debates in Other Provincial Legislatures (1866)
Debates on the subject of Section 29(33) of the Quebec Resolutions (the ancestor of Section 94)
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New Brunswick (1866)
April 3, 1866: Mr. Needham, speaking in the New Brunswick House of Assembly. Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.
p. 88:
A resolution was inserted stating that “until the consolidation of the laws of the different Provinces, the Judges of these Provinces shall be selected from their respective bars.” That consolidation will take place when it suits the convenience of the Canadians, and then the Bench of New Brunswick will be filled with Canadian lawyers. The bait was so thin that it showed the hook, and they did not catch all the lawyers. It seemed to be the desire to invest Canada with all the power they possibly could. It is hard in that scheme to define the power given to the local Parliament, or whether they have any power at all.
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June 27, 1866: Mr. Smith, speaking in the New Brunswick House of Assembly. Click HERE to see a PDF of the debates of the House of Assembly, as printed at that time.
p. 26:
The next power is to render uniform the laws of all the Provinces except Lower Canada. So it is in reality a provision that the laws of the United Provinces shall not become uniform at any future time. This also is unlike the case in the United States where the laws relating to property and civil rights are the same in every State. The next section provides for a Court of Appeal, and, Mr. Speaker, I did at one time intimate that you, sir, would doubtless secure a seat on the bench in that Court. And it is possible they may appoint the Attorney General as one of the Judges as well.
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PART 5:
Post-Confederation Debates on Section 94
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May 21, 1869, Debate in the House of Commons:
A debate on the costs of a commission to render uniform the laws of the various provinces under the terms of Section 94. From a procedural point of view, this represents a continuation of the process which had been started on April 26, which can be viewed here under “Codification Commission” HERE.
To read the entire debate, click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 432.
The Committee [of the Whole] reserved [ie. earmarked for the] … “Commission for making provisions for the uniformity of the laws of the Provinces,” $20,000.
In explanation of the item, Sir John A. Macdonald said the sum set apart for the Assimilation of the Laws was about the same as that voted for the Codification of the Laws of the old Province of Canada. It was intended that the sittings of the Commission should be as continuous as possible, so that by next session the laws of the three Provinces, and possibly also of Newfoundland, would all be assimilated.
Hon. Mr. Holton asked if it was the intention of the Government to remunerate, in any way, any member of the House for this work?
Sir John A. Macdonald replied that it was the intention of the Government to do so.
Mr. Mackenzie said that the contemplated course of the Government would be another infringement of the Independence of Parliament, and Ministers, if they were wise, would never take such a step.
Sir John A. Macdonald said that these remarks were not at all called for and should not have been received until the House had something before them in which to take action.
Hon. Mr. Holton thought the remarks of the member for Lambton exceedingly pertinent. A case had been made out in the showing of the Government, such as has been always felt to warrant their being gravely censured.
Mr. Mills said that however excellent the projected code of laws might be in itself, and however desirable it might be to have a uniform system throughout the Dominion, he looked on any attempt in the direction indicated as an effort to change our Union from a federal to a legislative one. When the Government undertook by a commission to secure a uniform system of laws respecting property and civil rights, it was in reality an attempt to take away power from the Local Legislatures and vest it in the Federal. He would therefore oppose such a vote as this.
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June 9, 1869, Debate in the House of Commons:
On this date, a debate took place in the House of Commons on changes to the insolvency laws that the new Dominion had inherited from the provinces of Upper Canada, Lower Canada, Nova Scotia, and New Brunswick.
Under the terms of subsection 91(21) of the Constitution Act, 1867, matters relating to bankruptcy, insolvency, and the treatment of debtors are all matters under the jurisdiction of Parliament, rather than of the provinces. But in each of the three provinces, these matters had been treated very differently, with the consequence that in 1869 the government felt called upon to introduce a Bill to make these laws uniform in all the provinces.
Because this move towards uniformity did not require an intrusion into an area of provincial jurisdiction, there was no need to invoke Section 94. Nonetheless, the debate that took place on this date reveals some of the issues, surrounding uniformity that would have seemed important to these statesmen, some of whom had also participated in the Quebec and London conferences. Thus a perusal of this debate can be of assistance in grasping the objectives of Section 94, as understood by participants in contemporary public life.
To read the entire debate, click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 675.
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June 17, 1869, Debate in the House of Commons:
On this date, a debate took place in the House of Commons on a motion to adopt a motion (designated as Resolution 39 on the Order Paper), to establish a “Commission for making provision for the uniformity of the laws”—in other words, for beginning the process contemplated in Section 94 of the Constitution Act, 1867.
From a procedural point of view, this represents a continuation of the process which had been started on April 26, and continued on May 21. These brief debates are recorded above.
To read the entire debate, click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 847.
p. 853
Mr. Mills believed that the result of making the law uniform, as here proposed, would be to destroy the power of the Local Legislatures. The hon. gentleman argued this question at length, contending that if it was a question whether Federal or Local Legislatures should be destroyed, the country would suffer far less by the destruction of the Federal power. Besides, before forcing this vote on the House, the Government ought to show that the several Local Legislatures concurred in the proposed legislation. In conclusion, he moved in amendment—“That the said item be not concurred in; but that it be resolved that it is inexpedient to make any provision which would if it becomes law, transfer the powers of legislation upon the subjects of property and civil rights from the Provincial Legislatures where they are at present vested in the Parliament of Canada, as any such provision would in the opinion of this House tend to destroy the present system of Federal Government.”
Mr. Young seconded the amendment, and in doing so contended that there was more danger than under the proposed system, if property and civil rights would be taken out of the hands of the Local Legislatures altogether.
Sir George E. Cartier said that the hon. gentleman need not be apprehensive of the result of this commission for by the 94th clause of the Union Act it was inserted that the laws of several Provinces should be made in uniformity with an Act of the Parliament of Canada, subject to the proviso, that before such Act would have the effect of law it must
p. 854
be accepted by the Legislature of each Province.
Mr. Blake replied to the Minister of Militia, and contended that it was eminently proper that, from the very outset, any action by the Dominion Government, looking in the direction of taking away from the Local Legislatures their control over property and civil rights, should be carefully discussed. He considered sound policy was against this Parliament assuming control over these laws; first because it would be against the proper working of the Federal system, and second because it would give this Parliament control over the laws of Ontario, New Brunswick, and Nova Scotia, with which one-third of its members—those from Quebec—had no concern. Such a policy, he believed, was wrong; and even from the point of view of those who thought otherwise, it must be regarded as premature, looking to the position of Nova Scotia and to the coming in of Newfoundland. Moreover, without the concurrence of the Local Legislatures, the money spent on this object would be thrown away; and that concurrence he did not believe would be given. As regarded, at least, his own Province, his voice would be raised against such concurrence.
Sir John A. Macdonald said it was possible that Ontario, Nova Scotia and New Brunswick might never have precisely the same laws, but it was, at least, desirable that they should have an opportunity of obtaining uniformity of their laws. There had been a gradual divergence of the laws in those Provinces, and it was of importance to their well-being that that divergence should be done away with. The most likely way to accomplish that was to have a Commission of experts familiar with the laws of the various Provinces, to report a body of laws which the Provinces might either accept or reject. The member for Durham said this movement was premature, because Newfoundland was not yet in the Union. That Province had been very careful to maintain its Civil Law, the law of England. The whole of its own laws in that department might be contained in a very thin volume. There would be little difficulty, therefore, as regarded that Province. No one Province could afford to pay the expense of such a commission as this, and if it did a Provincial commission would look at the consolidation of the law from a Provincial point of view. He was surprised that the member for Durham should oppose this or should not desire a uniform system of laws over all the Provinces. It was of importance that the members of the bar of one Province should be in a position to go to the bar of an-
p. 855
other Province, and that the Provincial Judges should not be restricted to holding positions on the bench of their own Province. He considered that the 94th clause of the Union Act threw on this Government the responsibility of making some attempt in the direction of securing uniformity of the laws.
Hon. Mr. Wood thought the work should not have been undertaken until some move was made by the Provincial Legislatures. In the United States, the different States have by common consent adopted substantially the same body of laws as to property and civil rights, also the same practice. If uniformity of the laws were to be secured between the Provinces, it would be by a gradual movement in that direction on the part of the Provinces. He had no faith in its being accomplished by the hot-house process of committing the work to one Commissioner, who, from the fact of his residing in Ottawa and receiving his pay from the Dominion Government was supposed to be divested of all provincialism. (Laughter).
Mr. Ferguson contended that the Government were only discharging their duty in now bringing in a measure for the assimilation of the laws. The objection against the procedure of the Government was on the part of the last speaker, an objection against the man selected to do the work, and that objection was futile. The objection of the member for Bothwell, and those who coincided with him, simply amounted to this, that the Local Legislatures were not able to take care of themselves, and that was an argument which he (Mr. Ferguson) could not endorse. He would support the vote for the assimilation of the laws and leave it to the Local Government to say what they should do in the matter.
The House then divided on Mr. Mills’ amendment, which was lost. Yeas—33. Nays—81.
Hon. Mr. Holton said that the effect of the main motion now before the House, was to pledge hon. members to the initiation of a policy of Legislative Union, as contra-distinguished to Federal Union, and he hoped the Minister of Militia would instruct such of his friends as were opposed to a Legislative Union to oppose this vote.
[…]
The motion for concurrence on item 39, Commission for rendering uniform the laws, was then agreed to.
A commission was, in consequence, issued, and J.H. Gray, undertook to report back to the House of Commons—a task that would ultimately consume eighteen months. The text of the Commission is reproduced HERE.
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February 9, 1871, Report of the Commission for Rendering Uniform the Statutory Laws of Ontario, New Brunswick, and Nova Scotia, HERE
On this date, J.H. Gray, a New Brunswick MP, submitted the preliminary report of the Commission for rendering uniform the Statutory Laws of Ontario, New Brunswick and Nova Scotia. The full text of the report, in PDF form, may be examined HERE.
To give a sense of the scope of the work that would be involved in engaging in this task, Gray chose a single area and attempted to lay out the scope of the differences then existing in the laws of the three provinces:
The plan finally adopted [in order to fulfil the terms of the Commission] has been to gather together the statutes in each Province, bearing upon [one subject area:] Bills of Exchange and Promissory Notes, as coming within the daily operations of the merchants and traders of the three Provinces, for the purpose of illustrating the differences in some of the most ordinary branches of business. (Source: Report, p. 1)
Having completed this task—which was, given the technological limitations of his time, far more onerous than it would be today—Gray was able to report on substantial differences between the statutes in the three provinces. He arrived at the following conclusion:
[I]t is obvious that any review of a subject so comprehensive as the legislation of three Provinces must be more or less imperfect, unless made by persons familiar with the construction put upon the Statutes of each Province by the Courts of each Province. A knowledge of the decisions of the Courts in one Province alone might very erroneously lead a party to suppose that inadvertencies or omissions existed in the Statutory Laws of the other Provinces, which an acquaintance with the decisions of the Courts of those Provinces might show was not the case, but a knowledge of which could only be obtained by their being brought forward or quoted in the discussion pon those differences themselves….
The instructions given to me being simply te prepare for a Commission hereafter to be issued—not to recommend or propose any form–I have confined my labor solely to pointing out the differences; but there can be no doubt that an excellent practical Code of Law, simple in its language, easily understood, expeditious and economical in its administration, could be formed from a judicious selection of the best of the Laws of each of the Provinces by men who were severally acquainted with each. (Source: Report, p. 8)
In short, he rendered no opinion on the merits of actually launching an effort to codify render uniform the laws of the three provinces, but he did succeed in showing that it would be a difficult and time-consuming affair. This may have dampened the enthusiasm of the government of the day from further pursuing any initiatives under authority of Section 94.
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March 1, 1871, Debate in the House of Commons:
On this date, an Opposition MP raised a question as to the Government’s intentions with regard to Section 94 of the Constitution Act, 1867. He was informed that no action would be forthcoming; it would presumably be up to the House of Commons to consider a report on the subject that had been presented to it by the Commissioner, Mr. Grey, in fulfilment of the mandate given him in June 1869.
The Macdonald government remained in power for an additional thirty months after this brief exchange, finally losing power to Alexander Mackenzie’s Liberals in November 1873. Nonetheless, no further action seems to have happened, and Mackenzie made no effort to act on Section 94. By the time Macdonald returned to power later in the decade, there seem to have been no calls for rendering uniform the laws of the provinces in areas of provincial jurisdiction, and thus Section 94 seems no longer to have been an active issue in federal politics.
To read the entire debate, click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on p. 83.
Hon. Mr. Smith (Westmorland) asked whether it is the intention of the Government to make provision for the uniformity of the laws relative to property and civil rights under the authority of the 94th clause of the British North America Act.
Hon. Sir George-É. Cartier replied Government did not intend to do more than was done the other day, namely, submit to the consideration of the House the preliminary report of Hon. Mr. Gray.
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March 12, 1902, Debate in the House of Commons:
On this date, Mr. Russell, the MP for Hants (NS), moved the following motion:
That in the opinion of this House, the time has arrived when steps should be taken to carry out the provisions of section 94 of the British North America Act, for securing the uniformity of the laws relating to property and civil rights in Ontario, Nova Scotia and New Brunswick, and in such other provinces as have been brought within the scope of this section since the passage of the British North America Act.
Reproduced below are the parts of the debate that we believe to be most relevant to two of the questions at the start of this paper:
- Does Section 94 expand the powers of Parliament beyond what they would be if the clause did not exist?
- Does Section 94 apply to all the provinces other than Quebec, or just the provinces named in the section?
To read the entire debate, click HERE to view a PDF of the Debate as recorded in Hansard. The debate starts on column 1067.
Column 1085
Mr. T.B. Flint: I speak with diffidence, but it appears to me that no legislation that this parliament has power to pass without an amendment to the British North America Act can affect other than the three provinces named, Nova Scotia, New Brunswick and Ontario. Therefore, I think when the time comes the new provinces in the west, and Prince Edward Island as well as British Columbia, would be outside of the pale of the legislation suggested by the hon. Mover of the resolution. How, either of these provinces in which it would be desirable and advisable to apply such legislation—because they inherit the same system of laws and present none of the difficulties which meets us in the province of Quebec—how, they ever can made amenable to that constitutional system, I do not see. I do not think that the provisions of the Act by which these provinces were admitted into the union would redeem the case at all, because of the peculiar wording of the clause which provides in all other Acts which by necessary intendment would apply to these provinces, this parliament would have power to legislate. In the Manitoba Act, the wording of that clause which is well known to most of us, is somewhat different from the wording of what is intended to be the same clause in the British Columbia Act. The provisions as regards British Columbia is a general clause of this kind:
10. The provisions of the ‘British North America Act, 1867,’ shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to and only effect one and not the whole of the provinces comprising the Dominion, and, except so far as the same may be varied by this minute to be applicable to British Columbia in the same way and to the like extent as they apply to the other provinces of the Dominion, and as if the colony of British Columbia had been one of the provinces originally united by the said Act.
The Manitoba Act of union contains a clause the wording of which is slightly different from that [B.C. Terms of Union], and what the effect of that difference would be, might perhaps require a great deal of consideration. I call attention to it, and it will probably strike our minds as being a little odd. In the Manitoba Act the clause reads:–
2. On, from and after the said day on which the order of the Queen in Council shall take effect as aforesaid, the provisions of the British North America Act, 1867, shall, except those parts thereof which are in terms made, or by reasonable intendment, may be held to be specially applicable to, only to effect one or more, but not the whole of the provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the province of Manitoba, in the same way, and to the like extent as they apply to the several provinces of Canada, and as if the province of Manitoba had been one of the provinces originally united by the said Act.
The only point I wish to make at this juncture is, that as I conceive the application of the bearings of the British North America Act on this point, uniform legislation would not be possible without further legislation, except as affecting Nova Scotia, New Brunswick and Ontario, and based upon that presumption my few further remarks shall be made.
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Hon. John Haggart: He said that this proposal to assimilate the laws only applied to Nova Scotia, New Brunswick, Prince Edward Island and Ontario. That is true; but that is a very slight difficulty and could easily be got over by an amendment to the British North America Act.”
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Mr. R.L. Borden: …these laws cannot come into force until they have been passed by the legislatures of the several provinces. It seems to me it would be idle for this parliament to undertake a work of that kind until the provinces had got together and ascertained whether there was any basis upon which they could agree on any subject coming within the definition of property and civil rights.
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The Minister of Justice (Hon. Charles Fitzpatrick): Therefore, I think that the practical way to proceed in this matter would be to ask the local legislatures how soon they are going to be disposed to commit suicide, because the effect of this legislation would be to deprive them of power to legislate with respect to those subjects which warrants their continued existence. If you take from out of the jurisdiction of the local legislatures the laws affecting property and civil rights, then you have taken from them all those subjects which make their continued existence justifiable.
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The Minister of Justice (Hon. Charles Fitzpatrick): …I cannot help feeling that this action would be a menace in so far as Quebec is concerned.
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The Solicitor General (Hon. H.G. Carroll): There is still further consideration. Supposing that the parliament of Canada would enact uniform laws for these three provinces and that the provinces would sanction these laws, then the local requirements in each province would require amendments to be made. These amendments may meet the requirements of one province only and not of the other two provinces. What would the parliament of Canada then do, and what would become of the uniformity of civil laws in the three provinces of Ontario, Nova Scotia, and New Brunswick.”
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1940, Report on Dominion-Provincial Relations (Rowell-Sirois Commission), HERE
In 1940, the Royal Commission on Dominion-Provincial Relations (also known as the Rowell-Sirois Commission, after its co-chairs), filed a report advocating the drastic centralization of power in Canada. In their report, the Commissioners pondered the possibility of using Section 94 to transfer power asymmetrically, from some provinces to Parliament.
p. 72
At the present time, although the law is not entirely clear, it seems that delegation of legislative power either by the Dominion to a province, or by a province to the Dominion is invalid. To establish definitely a power of delegation which is sufficiently wide, amendment of the British North America Act would be required. Such an amendment should cover both the power to delegate jurisdiction and the power to receive jurisdiction by delegation. Such a power of delegation should apply to the whole field of legislative power for both the province and the Dominion including any legislative power received by way of amendment or delegation. It should also be provided that the act of delegation would only be operative if the legislative unit to which delegation was made signified its willingness to accept it. Provision should also be made permitting delegation to be either in perpetuity or for a definite time limit. The Dominion, for example, might be unwilling to accept the delegation of certain functions involving extensive organization (such as non-contributory old age pensions) unless it were assured that the delegation would operate in perpetuity. For other functions (such as the grading of natural products) it might be sufficient if there were assurance that the delegation would not be revoked for a stipulated period of ten or fifteen years. It should also be provided that although an agreement of delegation could not be revoked by the unilateral action of either legislature during the life-time of the agreement, it might be terminated earlier with the consent of both parties expressed by appropriate legislation.
Subject to such restrictions, we can see no reason why a mutual power of delegation between the Dominion and a province should not be permitted on a temporary as well as a permanent basis. It was suggested to us that the failure of attempts which have been made to introduce an element of flexibility into federal constitutions has been largely due to the fact that changes were required to be permanent. It was said that there should be provision for temporary delegation of functions wherever such a device could be appropriately applied. In the British North America Act provision for change in the respective jurisdictions of the Dominion and the provinces appears in section 94. The Dominion was given power to make provision for uniformity of laws relating to property and civil rights in the three common law provinces, but any federal act designed to do this required adoption by the legislature of a province before it had any operative effect in such province. When the act had been thus adopted the Dominion acquired full legislative power in perpetuity to deal with its subject matter. It is conceivable that the irrevocable consequences of action under section 94 prevented it from ever being used. Moreover, there is considerable doubt whether the section applies to provinces other than Ontario, Nova Scotia and New Brunswick, and there is no provision for transfer of jurisdiction from the Dominion to a province if such should be desired.
Elsewhere in this Report in dealing with certain specific problems of Dominion-provincial relations we have suggested that these problems might be solved in each instance by delegation of jurisdiction. We think that a general power of delegation such as we have discussed, which would allow the transfer of jurisdiction from the Dominion to a province, or from a province to the Dominion subject to the conditions mentioned, would cover all these instances, as well as others. With such a power desirable changes in the constitutional allocation of powers could be effected in respect of one province without the necessity of waiting for such a development of public opinion as would permit of a nation-wide constitutional amendment. A change in jurisdiction might be effected on a temporary basis for one province, which, if it proved successful, might induce other provinces to make similar arrangements, and if unsuccessful need not be a permanent arrangement as would be a constitutional amendment.
The power of delegation would also permit of minor changes in the allocation of functions between the Dominion and certain provinces to suit the peculiar conditions of these provinces. In a federation such as Canada where some provinces are much larger and financially much stronger than others this may be highly desirable. As we have pointed out in the chapter on overlapping services, the Dominion has already been driven to perform certain services for the smaller provinces which the larger provinces do not need. A general power of delegation would facilitate arrangements of this sort in keeping with the nature of the Canadian economy and the unequal size and strength of Canadian provinces. In short, a general power of delegation for both the Dominion and the provinces should provide a measure of flexibility which is much needed in our federal system.
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ENDNOTES
[1] F.R. Scott, “Section 94 of the British North America Act,” in F.R. Scott, Essays on the Constitution (University of Toronto Press, 1977), p. 114.
[2] Kathy Brock, “Open Federalism, Section 94, and Principled Federalism: Contraditions in Vision,” [Paper for the Canadian Political Science Association] (2007). For footnotes on LaSelva and Vipond, please consult the original paper, which is hyperlinked.
[3] The Confederation Debates in the Province of Canada, Vol.I (CCF, 2022), p. 443. The passage can also be found in the original, Hunter and Rose edition from 1865, p. 41.
[4] ibid.
[5] F.R. Scott, op. cit., p. 117.
[6] Supra footnote 3.
[7] F.R. Scott, op.cit., p. 118. Scott is referencing Canada, Parliament, “RETURN: To an Address of the HOUSE OF COMMONS, of the 28th ult., praying that a Statement be laid before the House, shewing the sums paid from the vote of $20,000 last Session, “To defray expenses for the Commission for making provisions for the uniformity of the Laws of the Provinces;” shewing the dates of payment and to whom paid, and the nature of services rendered for such payment” in Sessional Papers (1870). Scott also adds in his footnote: “The reference to the ‘four’ provinces is interesting. Macdonald knew sections 94 did not apply to Quebec, therefore he must have been thinking of Manitoba as the 4th province. The admission of Rupert’s Land had been decided at this time and a provisional government arranged by the Statutes of Canada, 1869, c. 3.”
[8] Canada, House of Commons Debates, 1st Parl, 2nd Sess, 1869 at 854.
[9] Canada, House of Commons Debates, 9th Parl, 2nd Sess, 1902 at 1085.
[10] F.R. Scott, op.cit., p. 120.
[12] See our section report “Compilation of primary documents to assist in interpreting the Establishment of Courts in Section 101 of the Constitution Act, 1867” for the drafting and legislative history of this clause.
[13] All transcriptions from the Quebec Resolutions are from Charles Dumais, The Quebec Resolutions: Including Several Never-Published Preliminary Drafts by George Brown and John A. Macdonald, and a Collection of all Previously-Published Primary Documents Relating to the Conference, October 10, 1864-October 29th, 1864 (CCF, 2021).
[14] The bolded text, in this case, indicates the phrasing that has been added since the last draft.
[15] In this draft, the former subsection is made into a stand-alone section. This stand-alone form is abandoned in the subsequent drafts, but ultimately restored in the final draft of the Bill.
[16] Please note that there is a difference between the formatting of the original and that of the text in these reports. That is because the text portion (and any footnotes for the debates) comes from our publication, The Confederation Debates in the Province of Canada (CCF, 2022), which modernized the formatting of the text to current Hansard style. The content remains the same. However, if the user wishes to see the original, the hyperlink will bring them to the 1865 edition.
[17] Supra footnote 16. For the original p. 73, scroll to the third PDF page in the link above.
[18] Supra footnote 16. The following footnote is from the aforementioned publication. Dunkin means Quebec Resolution 29 (33), which reads in full, “The General Parliament shall have power to make Laws for the peace, welfare and good government of the Federated Provinces (saving the Sovereignty of England), and especially laws respecting the following subjects:— […] 33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof.”