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1919 Supreme(SC) 44
Privy Council
Lord Scott-Dickson, Shaw of Dunfermline , Dunedin, Lords Buckmaster, Justice Viscount Haldane, JJ.
Initiative and Referendum Act -Appellant
Versus
. -Resopndent
On appeal from the Court of Appeal of Manitoba
Decided On : 03-07-1919
Lawrence Jones and Co. , Canada, T. Mathew , Hon. F. Russell , M. Macnaghten , Hon, Sir John Simon , Horace Douglas, Charles Russell and Co., Intervenant, Redden, Blake , Maugham
A Provincial Legislature cannot enact legislation that alters the constitutional role of the Lieutenant-Governor as an integral part of the legislature or creates a new legislative power not granted by the founding constitutional act.
Headnote:(A) British North America Act, 1867 - Sections 90, 91, 92 - Constitution of the Province - Amendment of Constitution - Office of Lieutenant-Governor - Validity of legislation allowing laws to be made and repealed by direct vote of electors - Whether a Provincial Legislature can create a legislative process that bypasses the constitutional role of the Lieutenant-Governor - Legislation that compels the representative of the Sovereign to submit proposed laws to a vote of electors and renders the representative powerless to prevent such proposals from becoming law if approved by a majority is ultra vires - The Lieutenant-Governor is an integral part of the Legislature and his office is specifically excluded from the power of the Provincial Legislature to amend the Constitution of the Province under Section 92.
(B) Legislative Power - Scope and Delegation - While a legislature may seek the assistance of subordinate agencies to enact regulations, it cannot create and endow with its own capacity a new legislative power not created by the constitutional Act to which the legislature owes its own existence.
Facts of the case:
A Provincial Legislature passed an Act providing that laws for the Province could be made and repealed by the direct vote of electors. The mechanism involved electors submitting proposed laws by petition, which the Lieutenant-Governor in Council would then submit to a vote of the electors. If approved by a majority, the law would take effect subject to powers of veto and disallowance. The Act also provided for the repeal of existing laws through a similar referendum process.
Findings of Court:
The Act is ultra vires as it seriously affects the position of the Lieutenant-Governor as an integral part of the Legislature and detracts from the rights inherent in that constitutional position. The offending provisions are so interwoven into the scheme of the Act that they are not severable.
Issues: Whether the Legislative Assembly had the jurisdiction to enact an Act allowing for the initiative and referendum of laws, and whether specific sections of said Act were validly enacted.
Ratio Decidendi: The constitutional framework establishes the Lieutenant-Governor as the representative of the Sovereign and a constituent part of the Legislature. Under the governing constitutional Act, the Provincial Legislature's power to amend the provincial constitution specifically excludes the office of the Lieutenant-Governor. By creating a legislative process where the electorate acts as a legislative body independent of the established Legislature, the Act abrogates the constitutional role of the Lieutenant-Governor.
Result: Appeals dismissed.
Legal Category Hierarchy
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constitutional law
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division of powers
- provincial legislative jurisdiction
- ultra vires
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executive power
- office of the lieutenant-governor
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legislative process
- initiative and referendum
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division of powers
Viscount Haldane:-
In this case questions were raised in the province of Manitoba as to the validity of an Act passed by its Legislature and entitled the Initiative and Referendum Act. In consequence, under a statute which enabled him to do so, the Lieutenant-Governor in Council referred to the Court of King's Bench of the province the two questions which follow : 1. Had the Legislative Assembly jurisdiction to enact the said Act, and, if not, in what particular or respect has it exceeded its powers? 2. Had the Legislative Assembly jurisdiction to enact Sections 3, 4, 4-A, 7, 8, 11, 12, 17, sub-Section 1 of the said Act, or any of them and, if so, which of them?
On 27th October, 1916, these questions came before Mathers, C. J. By consent there was no argument, and the learned judge, decided that the Legislative Assembly had jurisdiction to pass the Act and the several sections referred to in the second question.
The matter was then brought before the Court of Appeal of the province, and was argued before Howell, C. J., and Richards, Perdue, Cameron and Haggart, JJ. A. On 20th December, 1916, the Court of Appeal delivered judgment, answering the questions submitted in the negative. The answer to the first question was: "No. The particulars in which the Legislative Assembly exceeded its powers are set forth in the several reasons for judgment delivered by members of the Court and forwarded herewith." The answer to the second question was : "As to Sections 3, 4, 4-A, 7, 9 and 11 the answer is 'No.' As to Section 12 and Section 17, sub-Section 1, the answer is, 'Taken with their context, No."
In October, 1918, special leave was granted by His Majesty in Council to the Attorney-General of the province to appeal to the Sovereign in Council and by Order, dated 25th November in the same year leave was granted to the Attorney-General of Canada to intervene.
It would have been a convenient course if, before bringing these questions before the Sovereign in Council, the authorities of the Province had seen their way in the first place to submit them for the opinion of the Supreme Court of Canada. It is desirable that topics affecting the Constitution of Canada should come before that Court before being brought to London for argument. However, the parties appear to have concurred in asking that special leave for a direct appeal should be granted. Their Lordships desire to observe that it is by no means a matter of course that such leave should be given, for they attach much importance, not only to the position which belongs to the Supreme Court under the Constitution of Canada, but to the value, in the decision of important points such as those before them, of the experience and learning of the judges of that Court. However, the Attorney-General of the province has succeeded in obtaining special leave to bring the case directly before the Judicial Committee, and their Lordships will therefore deal with it. They will only observe further at this stage that they have derived much assistance from the judgments delivered by the members of the Court of Appeal for Manitoba.
The validity of the Initiative and Referendum Act, a statute of a type which is not unknown in parts of the world with constitutions different from that of Canada, of, course depends on whether the Constitution of Canada as defined by the BRITISH NORTH AMERICA ACT of 1867 permitted a Provincial Legislature to pass it into law for the Province. The first step in the consideration of the matter is therefore to ascertain the exact character of the legislation proposed. In substance it is this. The Legislative Assembly seeks to provide that laws for the Province may be made and repealed by the direct vote of the electors, instead of only by the Legislative Assembly whose members they elect. The machinery created for the accomplishment of this end is that first of all a number of the electors, being not less than eight per cent. of the number of votes polled at the last election, may
