of Canadian courts or the annulment of legislative acts. Wielding the final power of review, subject of course to the Imperial Parliament, which practically never reverses its verdicts, the Council has steadily constructed a body of fundamental principles for the interpretation of the Canadian Constitution. First among these principles is the rule that laws relating to the peace, order, and good government of Canada must of necessity place certain restrictions and limitations upon property and civil rights. Even if a wide general power in the legislature might result in an interference with property rights or a denial of personal rights, the Council emphatically refuses to come to the rescue of such rights and privileges. The suggestion, says the court, "that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the courts of any limit upon the absolute power of legislation conferred. The supreme legislative power . . . is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the legislature is elected." 53

A second principle enunciated by the Council is the emphatic denial that the provincial and Dominion legislatures are organs of delegated authority, and with this the rule is affirmed that there is no sphere of liberty between the two governments. The court holds that the provincial legislature derives no authority from the government of Canada, and its status is in no way analogous to that of a municipal institution. It possesses powers, not of administration merely but of legislation in the strictest sense of that word, and within the limits assigned by section 92 of the Act of 1867, its powers are exclusive and supreme.54 The local legislature, the Parliament of the Dominion, and the Imperial Parliament are, from the general standpoint of legislative capacity, on the same plane. Their Lordships "adhere to the view which has always been taken by the Committee, that the Federation act exhausts the whole range of legislative power and that whatever is not thereby given to the provincial legislatures rests with the Parliament." 55 The third and undoubtedly the most important principle of the court lies in the invariable practice of rendering short opinions and 53 Attorney-General for Dom. of Can. v. Attorney-General for Provinces of O., Q., and N. S., [1898] A. C. 700, 713.

4 Queen v. Burah, 3 App. Cas. 889, 903 (1878).

Bank of Toronto v. Lambe, 12 App. Cas. 575, 588 (1887).

confining the discussion to the concise and exact point in issue. This practice is in marked contrast with the lengthy and involved opinions of the supreme courts in the United States. In many controversies each justice of an American court feels it incumbent upon him to render a separate opinion, whereas the Judicial Committee gives only the verdict with the opinion reduced to a minimum, and no dissent is allowed. In performing the difficult duty of interpreting the British North America Act, it will be a wise course, says the court, "for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand." 56 On another occasion their Lordships noted that they were impressed with the justice of an observation by Hagarty, C. J., "that in all these questions of ultra vires it is the wisest course not to widen the discussion by considerations not necessarily involved in the decision of the point in controversy." 57 Their Lordships will not give speculative opinions on hypothetical questions submitted. The questions must arise in concrete cases and involve private rights.58 Finally there is a disposition to avoid the determination of questions largely political in nature. The court dismissed one such question with the significant observation: "The needs of one country may differ from those of another, and Canada must judge of Canadian requirements." 59 Almost invariably the decisions of this tribunal as a final board of review on the controversial points of public law have received the hearty accord and approbation of the Canadian people.60 It is fortunate indeed that the ultimate principles of constitutional law have been formulated by such an eminent group of men, who are entirely removed from the turmoil and recriminations of party politics.

"59

56 Citizens Ins. Co. v. Parsons, 7 App. Cas. 96, 109 (1881).

57 Hodge v. The Queen, 9 App. Cas. 117, 128 (1883).

58 Attorney-General for Ontario v. Hamilton Street Ry., [1903] A. C. 524.

59 Attorney-General for Ontario v. Attorney-General for Dom. of Can., [1912] A. C. 571, 587.

60 "Canada has given many recent evidences that she has no reason to regret the absence of absolute finality in the decisions of her own courts and has many times shewn that together with all other portions of the British Empire, her people look to the advisers of the Sovereign in Council in matters of the highest moment for a breadth of decision not surpassed by that of any other tribunal in the whole world." From speech of Hon. Wallace Nesbit, reported in 45 CAN. L. J. 105.

III. LIMITATIONS ON JUDICIAL REVIEW

A summary of decisions reversing legislative acts indicates in a general way the character of the checks interposed by the judicial department on the legislative organs of the Dominion. These checks are similar in many respects to the corresponding restrictions enforced by the judiciary in the United States. In some noteworthy cases, principles which have become fundamenta of American law are cited, approved, and incorporated into Canadian public law. The insistence on all sides that the courts are the ultimate arbiters as to the scope of Dominion and provincial powers has a very familiar connotation to the constitutional lawyer of the United States. On the other hand the student of judicial control in Canada is at once struck by the fact that there are some marked limitations to the exercise of control over legislation by Canadian courts which do not restrict American justices in the exercise of similar authority.

The first among these limitations is the veto power, which the Imperial government may exercise over Dominion acts and which the Dominion government may exercise over provincial acts. While Canada is a self-governing colony and as a consequence is almost entirely free to manage her own affairs, nevertheless the Privy Council has repeatedly held that the paramount authority of the Imperial parliament has been in no wise lessened by the Canadian Constitution and that the Imperial government has regularly claimed the power to disallow any legislation which the self-governing colonies may enact.61 In like manner the federal constitution gives the Governor-General full authority to disallow acts of the provincial legislatures, such disallowance being permitted only within two years after the passage of the act. The Imperial power of disallowance has been very rarely applied, except in regard to shipping regulations and the control over foreign affairs.62 For the Dominion the device of a veto over provincial acts was evidently designed to avoid the bitter conflicts waged in 61 Cf. LEFROY, CANADA'S FEDERAL SYSTEM, 50-58, for a discussion and citation of

cases.

62 For a list of subjects on which colonial acts have failed to receive the royal assent, consult 2 KEITH, RESPONSIBLE GOVERNMENT IN THE DOMINIONS, 1020; among the special subjects noted are (a) copyright; (b) divorce and status; (c) immigration of colored races.

the United States over states' rights. The authors of the plan also conceived that this power could be used to prevent any unjust interference with private rights and property interests by means of provincial acts. In recent cases, however, the Dominion government has refused to interfere in favor of the protection of vested interests and the tenet has been announced that "an abuse of power even so as to amount to the practical confiscation of property, or that the exercise of the power has been unwise or indiscreet," is no valid ground for the use of the veto power.63 As a result of these decisions it is confidently asserted that the veto power of the Dominion is slowly taking its place by that of the Crown and will soon disappear as a vital part of the Constitution. The veto power, however, remains with the general government and may be called into service at any time to check attempts to injure seriously Imperial or Dominion interests. That the power of disallowance in the Dominion may be used effectively is shown in the refusal to sanction the recent attempt of British Columbia to prohibit Asiatic immigration. It may even yet be revived as a method to assure the protection of property interests and vested rights from the reckless onslaught of popular majorities in the provinces. In theory, therefore, the prerogative to disallow Canadian statutes and the corresponding authority to annul provincial statutes are, legally speaking, in full force and effect, and there can be little doubt that as potential rights the knowledge of these checks acts as a rather effective deterrent on extreme forms of legislative action.65

A second limitation on judicial control, and one of much greater 63 See 45 CAN. L. J. 297 et passim; cf. also refusal to disallow the Ontario HydroElectric Power legislation. "The present interpretation of the section confines the power of disallowance to cases where there is a manifest encroachment by a Provincial legislature." 46 Can. L. J. 357. The modern theory of disallowance was announced by the Governor-General in this case: "It is not intended by the British North America Act," he holds, "that the power of disallowance shall be exercised for the purpose of annulling provincial legislation, even, though your Excellency's Ministers consider the legislation unjust or oppressive, or in conflict with recognized legal principles, so long as such legislation is within the power of the provincial legislature to enact. The legislation in question, even though confiscation of property without compensation, and so an abuse of legislative-power does not fall within any of the aforesaid enumeration."

64 48 CAN. L. J. 244.

❝ For discussion of the disallowance of provincial acts, see 2 KEITH, RESPONSIBLE GOVERNMENT IN THE DOMINIONS, 725.

significance, is the entire absence of restrictions on the power of the legislature relative to private property and civil rights. The familiar Bill of Rights of constitutions in the United States, with the consequent fetters upon legislative authority and judicial procedure, is a noteworthy omission in the Canadian constitutions. An evident desire to tie the hands of legislatures, which is a characteristic conspicuous in the public law of the United States, is practically unknown in the Dominion and the provinces. Canadians take pride in the fact that all power is divided between the two governments and commend the principle that leaves no gap and that shuts off no peculiar field of non-governmental control.

Certain features of American constitutional law, which have made this kind of law so vital and far-reaching in the United States, are not to be found in the constitutional system of Canada. In the latter nothing prevents the statutes of the provinces from impairing the obligation of contracts and from passing enactments depriving persons of life, liberty, or property without due process of law, or the equal protection of the laws. Such phrases as "liberty of contract," the limitation of the right of eminent domain, "unfair, unreasonable, and discriminating acts," which the courts have striven to define and whereby they have invalidated a considerable number of statutes in the United States, are referred to rarely and are of no practical consequence in the Dominion. If provisions relative to the impairment of the obligation of contract and to the denial of due process of law could be eliminated with all decisions arising therefrom, what would be the effect upon American Constitutional Law! It is easy to conclude that the results in our legal system would be very different from what prevails to-day. These restrictions, along with others which are placed upon our federal government and the additional limitations on our states, combine to restrain the realm of legislative authority in the United States in a manner which was deliberately rejected by the framers of the British North America Act.67

66 "One maxim only among those embodied in the Constitution of the United States would... have been sufficient if adopted in England to have arrested the most vigorous efforts of recent parliamentary legislation." DICEY, LAW OF THE CONSTITUTION, 5 ed., 165.

67 In the words of Lefroy, "When one considers the strong position in which the judiciary are thus placed in America, reinforced by the constitutional provisions everywhere found, providing that no person shall be deprived of life, liberty or property