In Re References by the Governor-General in Council

In Re References by the Governor-General in Council
Collection
Supreme Court Judgments
Date
1910-10-11
Report
(1910) 43 SCR 536
Judges
Fitzpatrick, Charles; Girouard, Désiré; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In Re References by the Governor-General in Council, (1910) 43 S.C.R. 536
Date: 1910-10-11
In Re
1910: October 11.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Duff and Anglin JJ.
REFERENCES BY THE GOVERNOR-GENERAL IN COUNCIL.
Constitutional law—Construction of statute—B.N.A. Act, ss. 91, 92, 101—"Supreme Court Act," R.S.C. (1906) c. 139, ss. 3, 60— References by Governor-General in Council—Opinions and advice —Jurisdiction of Parliament—Independence of judges—Judicial functions—Constitution of courts—Administration of the laws of Canada—Provincial legislative jurisdiction.
Per Fitzpatrick C.J. and Davies, Duff and Anglin JJ.—The provisions of section 60 of the "Supreme Court Act," R.S.C. (1906) ch. 139, are within the legislative jurisdiction of the Parliament of Canada.
Per Girouard and Idington JJ.—The provisions of that section assuming to authorize references by the Governor-General in Council to the judges of the Supreme Court of Canada for their opinions in respect to matters within provincial legislative jurisdiction are ultra vires of the Parliament of Canada; but, if the governments of the Dominion and of a province unite in the submission of the questions so referred the judges of the Supreme Court of Canada should entertain the reference.
Per Idington J.—The administration of justice in each province having been assigned exclusively to it the power of Parliament in regard to the same is limited to creating a court of appeal and courts for the administration of the laws of Canada.
Per Idington J.—Parliament has no power to authorize the interrogation of the Supreme Court of Canada except where the question submitted relates to some subject or matter respecting which it is competent for Parliament to legislate and respecting which it has legislated and competently constituted judicial authority in that court to administer or aid in administering the laws so enacted.
Per Idington J.—Quœre. As to the constitutionality of adopting a system of interrogations of the judiciary even when the questions are confined to subjects of the kind thus indicated. MOTION on behalf of the Provinces of Ontario, Nova Scotia, New Brunswick, Manitoba, Prince Edward Island and Alberta, by way of protest against the Supreme Court of Canada, or the individual members thereof, entertaining or considering the questions, hereinafter referred to, submitted by the Governor-General in Council, and that the inscription on the roll for the hearing thereof be stricken from the list, and that the same be reported back to the Governor-General in Council as not being matters which can properly be considered by the court as a court, or by the individual members thereof under the constitution of the court as such, nor by the members thereof in the proper execution of their judicial duties.
The matters referred by His Excellency the Governor-General in Council by Orders in Council on 9th and 30th May, 1910, were as follows :
"1. What limitation exists under 'The British North America Act, 1867,' upon the power of the provincial legislatures to incorporate companies?
"What is the meaning of the expression 'with provincial objects' in section .92, article II., of the said Act? Is the limitation thereby defined territorial, or does it have regard to the character of the powers which may be conferred upon companies locally incorporated, or what otherwise is the intention and effect of the said limitation ?
"2. Has a company incorporated by a provincial legislature under the powers conferred in that behalf by section 92, article II. of ‘The British North America Act, 1867/ power or capacity to do business outside of the limits of the incorporating province ? If so, to what extent and for what purpose?
"Has a company incorporated by a provincial legislature for the purpose, for example, of buying and selling or grinding grain, the power or capacity, by virtue of such provincial incorporation, to buy or sell or grind grain outside of the incorporating province?
"3. Has a corporation constituted by a provincial legislature with power to carry on a fire insurance business, there being no stated limitation as to the locality within which the business may be carried on, power or capacity to make and execute contracts—
(a) within the incorporating province insuring property outside of the province;
(b) outside of the incorporating province insuring property within the province;
(c) outside of the incorporating province insuring property outside of the province?
"Has such a corporation power or capacity to insure property situate in a foreign country, or to make an insurance contract within a foreign country?
"Do the answers to the foregoing inquiries, or any and which of them, depend upon whether or not the owner of the property or risk insured is a citizen or resident of the incorporating province?
"4. If in any or all of the above mentioned cases (a), (b) and (c) the answer be negative, would the corporation have throughout Canada the power or capacity mentioned in any and which of the said cases on availing itself of the 'Insurance Act,' 1910, 9 & 10 Edw. VII., chapter 32, section 3, sub-section 3 ?
"Is the said enactment, the 'Insurance Act,' 1910, chapter 32, section 23, sub-section 3, intra vires of the Parliament of Canada?
"5. Can the powers of a company incorporated by a provincial legislature be enlarged, and to what extent, either as to locality or objects by "(a) the Dominion Parliament?
"(b) the legislature of another province?
"6. Has the legislature of a province power to prohibit companies incorporated by the Parliament of Canada from carrying on business within the province unless or until the companies obtain a license so to do from the government of the province, or other local authority constituted by the legislature, if fees are required to be paid upon the issue of such licenses?
"For examples of such provincial legislation see Ontario, 63 Vict. ch. 24; New Brunswick Cons. Stats., 1903, ch. 18; British Columbia, 5 Edw. VII. ch. II.
"7. Is it competent to a provincial legislature to restrict a company incorporated by the Parliament of Canada for the purpose of trading throughout the whole Dominion in the exercise of the special trading powers so conferred or to limit the exercise of such powers within the province?
"Is such a Dominion trading company subject to or governed by the legislation of a province in which it carries out or proposes to carry out its trading powers limiting the nature or kinds of business which corporations not incorporated by the legislature of the province may carry on, or the powers which they may exercise within the province, or imposing conditions which are to be observed or complied with by such corporations before they can engage in business within the province?
"Can such a company so incorporated by the Parliament of Canada be otherwise restricted in the exercise of its corporate powers or capacity, and how, and in what respect by provincial legislation?"
The questions referred by order in council, on 29th June, 1910, were as follows: "1. Is it competent to the legislature of British Columbia to authorize the government of the province to grant by way of lease, license or otherwise the exclusive right to fish in any or what part or parts of the waters within the 'Railway Belt,'
"(a) as to such waters as are tidal, and
"(5) as to such waters as although not tidal are in fact navigable?
"2. Is it competent to the legislature of British Columbia to authorize the government of that province to grant by way of lease, license or otherwise the exclusive right, or any right, to fish below low water mark in or in any or what part or parts of the open sea within a marine league of the coast of the province?
"3. Is there any and what difference between the open sea within a marine league of the coast of British Columbia and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the province, or lying between the province and the United States of America, so far as concerns the authority of the Legislature of British Columbia to authorize the government of the province to grant by way of lease, license or otherwise the exclusive right, or any right, to fish below low water mark in the said waters or any of them?"
Wallace Nesbitt K.C. for the motion. There is no jurisdiction conferred upon Your Lordships to consider and determine the questions now referred and the court and the members thereof should refrain from doing so. The jurisdiction of the Parliament of Canada to enact section 60 of the "Supreme Court Act" must be supported, if at all, under the terms of section 101 of the "British North America Act,' 1867. With this section must be read sub-section 14 of section 92 of the "British North America Act." The terms of section 60 do not fall within the terms of section 101 relating to the constitution, maintenance and organization of a "general court of appeal,' nor within those relating to the establishment of "additional courts for the better administration of the laws of Canada." The term "administration of the laws" must refer to the enforcement of laws after adjudication between parties, or upon proper application by the application of legal remedies. Section 60 provides for a proceeding of an entirely different character.
The court is asked to arrive at a conclusion which is not to be enforced in any way and which is utterly ineffective in so far as it may throw light upon the views entertained by the members of the court upon the questions at the moment when they are referred.
This is not a matter of the administration of the law. In dealing with the questions referred, the court is not dealing with the laws of Canada. In two of the references the questions are as to the jurisdiction of the provincial legislatures and can have no relation to the administration of the laws of Canada. Section 101 in conferring jurisdiction to establish additional courts for the better administration of the laws expressly limits this power to the laws of Canada as opposed to the laws of the provinces:—and this limitation has been clearly understood and acted upon by Parliament on various occasions, as, for instance, in section 67 of the "Supreme Court Act," where the operation of that section is made dependent on the provincial legislature agreeing and providing that the Supreme Court of Canada should have the necessary jurisdiction. The same proviso is found in section 32 of the "Exchequer Court Act." Without such proviso Parliament would have clearly infringed upon the provincial jurisdiction conferred by sub-section 14 of section 92 of the "British North America Act." Reference may also be had to the general scope of the "Exchequer Court Act."
It would seem that section 60 has no relation to the administration of any law whether of Canada or of the provinces, but simply provides for taking opinions in an entirely advisory and ineffective manner, in an entirely non-judicial capacity, just as Parliament might have provided for taking opinions of any other body or person upon any question, legal or otherwise, upon which the opinion of such body or person was of interest to the Dominion of Canada. A consideration of some instances in which the matter has been brought before this court will shew that this has been the almost unanimous opinion of its members. Of the references under section 60, and sections it now replaces, made to the Supreme Court of Canada on various occasions, with but one exception the reference has been, in a sense, upon consent of both parties, no objection being raised to the expression of the opinions, and those opinions have been consequently expressed, as a general rule, without consideration of the power of Parliament to impose such a duty upon the court, or its members, or upon the desirability or non-desirability of acting upon the reference. Re Provincial Fisheries[1], per Taschereau J., at p. 539. In Re "Lord's Day Act"[2], objection was taken to the jurisdiction by a private party merely as to answering questions in respect to hypothetical or supposed legislation. The majority of the court considered this objection well taken, but concluded that, as the court theretofore had answered similar questions, and as the Privy Council had answered questions of the same character, they should proceed to answer the questions in that case; see cases referred to by Idington J. and his remarks, at page 600, on the section now represented by section 60, which apply equally to the question now raised and explain and justify the course heretofore taken in answering questions under section 60. The special difficulty as to hypothetical questions has since been cured by an amendment to the section. In Re Criminal Code[3], the whole question was the subject of discussion; see per Girouard J. at page 436; per Davies J., at page 437; per Idington J., at page 441; per Duff J., at page 452; and per Anglin J., at page 454.
The answers requested are of an entirely advisory and non-judicial character, not by-way of the exercise of functions of a court of appeal nor of a court for the administration of the laws of Canada, and, therefore, not within the terms of section 101 of the "British North America Act." Parliament has no jurisdiction to command or compel the giving of advice by members of the Supreme Court of Canada, who, when once duly appointed, are no longer in any sense under the orders of Parliament except in so far as it has jurisdiction to legislate for that court as a court.
The feeling that this court, although not viewing the section as legislation binding upon it, should, nevertheless, out of courtesy or deference to Parliament and to the Governor-General in Council, render answers, involves very serious consideration in a case where any party concerned raises objection. If the Government, although in certain circumstances entitled to obtain opinions, by obtaining those opinions are obtaining something not merely of use for "their information or guidance, but which may be a source of embarrassment to the administration of justice in its proper channels, they are obtaining something to which they are not entitled. An opinion by the judges of the Supreme Court of Canada is entirely different from an opinion given by any other individuals, even if equally qualified, inasmuch as all provincial courts, while not, perhaps, legally bound to give effect to that opinion, would feel themselves bound by that opinion as though it were a judgment of the court, notwithstanding that the matter was not brought before the Supreme Court of Canada through the usual and proper channel, with the usual procedure devised to safeguard the interests of parties.
Newcombe K.C., Deputy-Minister of Justice, contra.—The answers requested are, by sub-section 6 of section 60, declared to be advisor y only. This is within the jurisdiction of the Parliament of Canada; it forms part of the legislation enacted by the group of sections, in the "Supreme Court Act," included in sections 35 to 49, and is consistent with them. The same objections were taken, arguendo, by Mr. Blackstock K.C., in Re "The Lord's Bay Act"[4], at pages 588-589, notwithstanding which the court proceeded to answer the questions there submitted, as it has done in numerous other cases referred under the same legislation. Notices of the present references have been duly given to the governments of all the provinces and several of them have signified their concurrence and the desire to have the questions answered.
Lafleur K.C., on behalf of the Provinces of Quebec and British Columbia, stated that these provinces had consented to the reference in regard to "Fisheries," and, also, on behalf of the "All-Canada Insurance Federation" that they were desirous of having the questions respecting the "Insurance Act" decided.
A. Geoffrion K.C., on behalf of the Province of Quebec, stated that the province desired to have the questions respecting the "Insurance Act" disposed of by the court.
The Chief Justice.—The question, and the only question, we have now to dispose of, is a preliminary objection which has been taken to' our hearing and considering these references made to us by order in council, on the ground that notwithstanding anything contained in the "British North America Act, 1867," the Parliament of Canada cannot impose upon this court the duty of answering questions which, as those representing some of the provinces contend, do not apply to legislation actually passed by that Parliament, or to legislation which it is intended it should pass.
The questions relate to:
(a) The limitations placed by the "British North America Act, 1867," upon the power of provincial legislatures with respect to the incorporation of companies; (b) The competency of the legislature of British Columbia to grant by way of lease the exclusive right to fish in certain parts of the waters within the "Railway Belt" in that province;
(c) The validity of certain sections of the "Insurance Act," 1910.
The Province of British Columbia consents to the reference with respect to the granting of licenses to fish within the "Railway Belt."
Various questions involving, as those now submitted, the true construction of the "British North America Act" with respect to the exercise of the legislative power of Parliament and of the provinces respectively have been at different times submitted to this court by the executive and answered; in some instances, it is true, in recent years, under protest. The answers given to those questions have been on several occasions appealed to the Judicial Committee of the Privy Council and that body assumed it had jurisdiction to deal with them, although certainly in no respect under the legislative control of the Parliament of Canada. A list of those references will be found on page 267 of Mr. Cameron's "Supreme Court Practice."
Speaking for myself, I feel bound by the rule established for us by these precedents which date back to the very beginning of this court. They have established a rule of conduct which now has for me the force of law.
If the practice originated (as a learned legal writer says) in error, yet the error is now so common that it must have the force of law.
I entertain no doubt, however, that independently of all precedent it is our duty to consider the questions submitted. It is not necessary for us to say now whether everything that is or may be involved in the consideration of each of the questions referred would or would not properly fall under our cognizance. If in the course of the argument or subsequently it becomes apparent that to answer any particular question might interfere with the proper administration of justice, it will then be time to ask the executive, for that reason, not to insist upon answers being given; and this might very properly be done notwithstanding that such answers would not in any circumstances have the binding force of adjudications, like decisions given in regular course of judicial proceedings. Lord Watson, in the Brewers Case[5]. In other words even in the absence of those special provisions in the "British North America Act" and the "Supreme Court Act," to which I will hereafter refer, I would still hold that the members of this court are the official advisers of the executive in the same way as the judges in England are the counsel or advisers of the King in matters of law, our constitution being "similar in principle to that of the United Kingdom." (Preamble of the "British North America Act.") The same Act, in the distribution of powers, declares
that the executive government and authority of and over Canada continues to be and is vested in the Queen.
In England the practice of calling on the judges for their opinion as to existing law is well established. Evidence of its existence will be found as far back as history and tradition throws any light on British legal institutions[6]. After quoting the section of the constitution of Massachusetts which provides for taking the opinion of the judges by the executive or legislative department, Chief Justice Gray says[7]:
This article, as reported in the convention that framed the constitution, limited the authority to the Governor and Council and the Senate, and was extended by the convention so as to include the House of Representatives; and as may be inferred from the form in which it was originally presented, evidently had in view the usage of the English Constitution, by which the King, as well as the House of Lords, whether acting in their judicial or their legislative capacity, had the right to demand the opinions of the twelve judges of England.
The case in which the Lords in their judicial capacity called for the opinion of the judges, is a very familiar one. I might mention O'Connell v. Case[8], in which the decision. of the Lords was against the opinion of the majority of the judges. A well-known precedent may be cited of McNaghten's Case[9]. Here not only was there no litigated question before the Lords, but not even any pending legislative question. The Lords, in the course of their debates, having fallen into a discussion about a case recently tried at the central criminal court, but not in any way before them, a case developing interesting questions in the law relating to insanity, conceived that they would like to know a little more accurately what the law on those points was. They accordingly put a set of "abstract questions" to the judges — questions not arising out of any business before them, actual or contemplated. One of the judges protested against this proceeding and his objections bear a close resemblance to those urged in support of this preliminary objection, e.g., that the questions put do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of the terms, that he had heard no argument;
and that he feared
that as the questions relate to matters of criminal law of great importance, the answers to them by the judges might embarrass the administration of justice when they are cited in trials.
The Lords took notice of this and while courteously thanking the judges for their opinions, expressed a unanimous judgment that it was proper and in order for the Lords to call for opinions on "abstract questions of existing law."
For your Lordships (said Lord Campbell) may be called on, in your legislative capacity, to change the law and before doing so it is proper that you should be satisfied beyond a doubt what the law really is.
These words of Lord Campbell are absolutely applicable to this reference. In anticipation of possible legislation on the important subjects of insurance, incorporation of joint stock companies and control of fisheries, the executive of Canada desires to be advised as to the constitutional limitations upon its legislative power. In McNaghten's Case[10] Lord Brougham refers to the case of "Fox's Libel Act," when the judges answered questions about the existing law of libel. Lord Campbell cited an instance where the judges were called on to give their opinion upon the questions of law propounded to them respecting the "Clergy Reserves (Canada) Act."[11]. One of the questions was whether the Legislative Assembly of United Canada had exceeded their lawful authority in legislating with respect to the sale of the clergy reserves. Lord Wynford said he did not doubt the power of the House to call on the judges and to have their opinion as to existing law. He recalled the instance when he was Lord Chief Justice of the Court of Common Pleas that he communicated to the house the opinion of the judges with regard to the usury laws, and the house subsequently passed a law on the subject. The Lord Chancellor (Lord Lyndhurst) concurred "as" to our right to have the opinions of the judges" on existing law. In a previous case the judges begged to be excused from giving an opinion, requested by the House of Lords, upon the question whether a pending bill was in conflict with previous acts relating to the Bank of England. The questions were argued by counsel on both sides; but the judges said that the inquiries were not
confined to the strict construction of existing Acts of Parliament.
In re Westminster Bank[12].
This is not a case in which we are called on to express an opinion by anticipation on causes actually depending before the courts nor is it to be supposed for one moment that we will consider ourselves bound by the opinions given in answer to the questions submitted to us if the principles involved are brought before us in due course of law. As Lord Mansfield said in the Sackville Case[13],
we shall be ready, without difficulty, to change our opinions, if we see cause, upon objections that may then be laid before us, though none have occurred to us at present which we think sufficient.
I am certainly of opinion that the practice of taking counsel, as it were, with the judges, to ascertain and elicit their opinions upon a specific question before it had been brought judicially before them is objectionable. And I entirely agree with what is said by Mr. Hargrave[14]:
However numerous and strong the precedents may be in favour of the King's extra-judicially consulting the judges on questions in which the Crown is interested, it is a right to be understood with many exceptions, and such as ought to be exercised with great reserve lest the rigid impartiality so essential to their judicial capacity, should be violated. The anticipation of judicial opinions on causes actually depending should be particularly guarded against, and therefore a wise and upright judge will ever be cautious how he extra-judicially answers questions of such a tendency.
At the same time we must not forget that judges are officers of the Crown, and I adopt without any reserve the opinion expressed by Dorion C.J., a man of wide political and judicial experience, when, speaking for the full Court of Queen's Bench in Quebec, he said in Bruneau et al. v. Massue[15]:
The judges of the Superior Court as citizens are bound to perform all the duties which are imposed upon them by either the Dominion or the local legislature. If these duties were either incompatible or too onerous to be properly performed, provided neither legislature had exceeded the limits of its legislative power, it would become the duty of the local and Dominion Governments to suggest a remedy by some practical solution of the difficulty, but it does not devolve upon courts of justice to assume the authority of declaring unconstitutional a law on account of the real or supposed inconveniences which may result in carrying out its provisions.
These words were subsequently quoted with approval by Chief Justice Sir W. Meredith in Langlois v. Valin[16], at page 16, and they are specially applicable in the present circumstance. This court was established by the Parliament of Canada
as a general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada[17], under the authority of section 101 of the "British North America Act." That section is as follows:
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.
And we are asked to answer certain questions submitted to us by the executive for the express purpose of obtaining information which may assist in the administration of the fundamental law of the Canadian constitution, the "British North America Act."
Dealing now with the constitutionality of those provisions of the "Supreme Court Act," under which this reference has been made. That Act was drafted and passed through Parliament when Hon. T. Fournier was Minister of Justice and was brought into force by a proclamation issued by Hon. Ed. Blake, his successor in office. The general legal presumption that a legislature does not intend to exceed its jurisdiction is strengthened in this case by the fact that constitutional lawyers of such eminence as Blake and Fournier are responsible for the legislation, the validity of which is now challenged.
I presume it will not be suggested that the Imperial Parliament could not constitutionally confer upon "the Canadian Legislature the power to establish a court competent to deal with such references as we have now before us; and, if not, how could more apt words be found to express their intention to confer that power? Could better words be used to convey the widest discretion of legislation with respect to the all embracing subject "the better administration of the laws of Canada?" It cannot now be doubted either in view of the decision of the Privy Council in Valin v. Langlois[18], that if the Parliament of Canada might have created a new court for the purpose of hearing such references as are now submitted, it could commit the exercise of this new jurisdiction to this court.
The distinction between creating a new court and conferring a new jurisdiction upon an existing court is but a verbal and non-substantial distinction.
If any doubt remains as to the legislative jurisdiction of Parliament in the premises, a reference to section 91 of the "British North America Act," which provides that the Parliament of Canada may from time to time make laws for the peace, order and good government of Canada in relation to all matters not coming within the class of subjects assigned exclusively to the legislation of the provinces, should dispel that doubt.
Lord Halsbury, delivering the judgment of the Judicial Committee in Riel v. The Queen[19], at pages 678-9, said, interpreting the words "peace, order and good government":
The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country have been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequence.
It has not been argued, and I do not think it could seriously be argued for a moment, that if Parliament possesses the power to make these references, that power has not been vested in the executive. Section 37 of the "Supreme Court Act," as originally enacted, read as follows:
The Governor in Council may refer to the Supreme Court for hearing or consideration, any matter which he thinks fit; and the court shall thereupon hear or consider the same and certify their opinion thereon to the Governor in Council; provided that any judge or judges of the court who differ from the opinion of the majority may, in like manner, certify his or their opinion or opinions to the Governor in Council.
In view of doubts expressed by members of this court at different times as to whether the intention, of the legislature had been clearly expressed, changes have been made widening the scope of that section until we finally have section 60 of the "Supreme Court Act," which is in the following terms:
Important questions of law or fact touching
(a) the interpretation of the "British North America Acts," 1867 to 1886; or
(b) The constitutionality or interpretation of any Dominion or provincial legislation; or,
(c) The appellate jurisdiction as to educational matters, by the "British North America Act, 1867," or by any other Act or law vested in the Governor in Council; or,
(d) The powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be executed; or,
(e) Any other matter, whether or not in the opinion of the court ejusdem generis with the foregoing enumerations, with reference to which the Governor in Council sees fit to submit any such question; may be referred by the Governor in Council to the Supreme Court for hearing and consideration; and any question touching any of the matters aforesaid, so referred by the Governor in Council, shall be conclusively deemed to be an important question.
2. When any such reference is made to the court it shall be the duty of the court to hear and consider it, and to answer each question so referred; and the court shall certify to the Governor in Council, for his information, its opinion upon each such question, with the reasons for each such answer; and such opinion shall be pronounced in like manner as in the case of a judgment upon an appeal to the Court; and any judge who differs from the opinion of the majority shall in like manner certify his opinion and his reasons.
3. In case any such question relates to the constitutional validity of any Act which has heretofore been or shall hereafter be passed by the legislature of any province, or of any provision in any such Act, or in case, for any reason, the government of any province has any special interest in any such question, the Attorney-General of such province shall be notified of the hearing, in order that he may be heard if he thinks fit.
4. The court shall have power to direct that any person interested, or where there is a class of persons interested, any one or more persons as representatives of such class, shall be notified of the hearing upon any reference under this section, and such persons shall be entitled to be heard thereon.
5. The court may, in its discretion, request any counsel to argue the case as to any interest which is affected and as to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance out of any moneys appropriated by Parliament for expenses of litigation.
6. The opinion of the court upon any such reference, although advisory only, shall, for all purposes of appeal to His Majesty in Council, be treated as a final judgment of the said court between parties.
It is to be observed that this section was enacted to remove all doubt as to the intention of Parliament, to get the opinion of the members of this court as to the validity of proposed legislation as well as of all existing legislation.
Section 37 of the "Supreme Court Act," as it was originally enacted, seems to have been taken from 3 & 4 Wm. IV. ch. 41, which reads as follows:
It shall be lawful for His Majesty to refer to the said Judicial Committee (the Judicial Committee of the Privy Council), for hearing and consideration and such other matters whatsoever as His Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.
In re Schlumberger[20], at page 12, speaking of this section, the Right Honourable Dr. Lushington said, dealing with an objection to the jurisdiction of the Privy Council to hear and consider a petition referred to them by order in council: The only construction that can be placed upon the section above quoted is a construction which shall give to the words therein contained their complete meaning, without limitation whatsoever,
and further,
that the Judicial Committee were not entitled to put any limitation on these words in any matter referred to them by the Crown.
In addition to those above mentioned, constitutional cases of great importance to a colony have been referred by the Sovereign to the Judicial Committee, such as to the power of the legislature of Queensland in respect of money bills and the validity of Protestant marriages in Malta and upon their report have been decided by the Governor in Council. (See P. papers, 1894, No. 214, 1896, 7982.)
Objection was taken by some of the judges of this court to the hearing of the reference Re Sunday Legislation[21]. At the argument on the appeal to the Privy Council, it appears from the report that Mr. Newcombe, in reply said:
Then, my Lords, Mr. Riddell has questioned the jurisdiction under the "Supreme Court Act" to make the reference. I do not know whether your Lordships desire me to reply to that.
To which Lord McNaghten said:
I think we know the terms of the Act. They are wide enough to embrace it.
The sections of the "Supreme Court Act" to which I think useful reference may be made are:
Section 3, which constitutes the Supreme Court as a general court of appeal and as an additional court for the better administration of the laws of Canada;
Sections 35 to 49 inclusive, defining the appellate jurisdiction of the Supreme Court; Sections 60 to 67 inclusive, which define the special jurisdiction of the Supreme Court, which includes not only references by the Governor in Council but also references by the Senate and House of Commons, habeas corpus and certiorari and cases removed by provincial courts.
In addition we have section 55 of the "Railway Act," R.S.C. [1906] ch. 37, which provides that the Railway Commissioners may refer questions for the opinion of the judges of the Supreme Court. This power has been freely exercised by the Commission and we have never to my knowledge refused to answer the questions submitted. Can it now be successfully argued that the Railway Commissioners have the power to make references to this court and that the Parliament, that created the Commission, has not got that power?
Section 55 of the "British North America Act" provides that a bill may be reserved for the signification of the Sovereign's pleasure. Before exercising this prerogative of rejection would it not be within the power of the Home Government to refer the question involved to the Judicial Committee under the fourth section of 3 & 4 Wm, IV. ch. 41, above quoted? If so, by analogy, may we not argue that the same principle would apply to the case of disallowance which may be exercised in connection with the power of supervision over provincial legislation entrusted to the Dominion Government, as provided for in section 60 of the "British North America Act"? If a provincial Act is reserved by a lieutenant-governor for the consideration of the Governor-General in Council, the opinion of the members of this court as to its constitutionality might well be taken for the guidance of His Excellency. If this may be done after an Act has been passed, why should it not be competent to seek such advice in advance of legislation?
For all these reasons I hold:
1. That the Governor in Council has the power under the constitution to make this reference;
2. That it is the duty of the members of this court to hear the argument of counsel and to answer the questions, subject to our right to make all proper representations if it appears to us during the course of the argument, or thereafter, that to answer such questions might in any way embarrass the administration of justice.
GIROUARD J. (dissenting).—As to the motion to quash, I would prefer to wait for judgment till the matter is discussed on the merits. I am prepared, however, to say that the Governor-General in Council has jurisdiction to refer the constitutionality or interpretation of federal statutes or other federal matters to this court; but he cannot do so if the subject-matter of reference is merely provincial; and with regard to the latter I think the "Supreme Court Act," especially section 60 (para. (b) ), is ultra vires. In a case like this, this court does not sit a