A. Introduction

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 241-242

Page 241

Sir John A. Macdonald believed that the Constitution Act, 1867,¹had been drafted in such a manner as to ensure that "‘all conflict of jurisdiction’ had been avoided" and that the courts would therefore assume a relatively minor role in the evolution of Canadian federalism.²His prediction proved to be wildly inaccurate. First, the language used in the BNA Act, although apparently clear to its drafters, turned out to be ambiguous and open-ended in practice. Second, and more significantly, the division of legislative responsibility reflected an era in which government played a modest and limited role. Within a matter of decades, the entire conception of the role of the state in Canada had changed, with governments being called on to intervene in areas of economic regulation and social policy that were simply unknown in 1867. The drafters of the BNA Act naturally did not address how these new roles and responsibilities would be shared between different levels of government.

It largely fell to the courts to structure a division of powers for Canada. While the courts rendered their decisions in accordance with the

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categories of legislative powers set out in sections 91 and 92 of the BNA Act, these categories merely provided a framework for decision-making.

Before 1949, the highest court in Canada was the Judicial Committee of the Privy Council (the Jcpc or the Board). As Mallory has pointed out, in some respects, the Jcpc was an ideal court of constitutional appeal.³Made up of British judges who were members of the House of Lords, the Jcpc was clearly impartial and disinterested as between the federal and provincial governments in Canada. The Board was also well positioned to defend the liberty of individuals and the rule of law; law lords sitting in distant Whitehall were far removed from short-term political pressures in Canada. Despite these potential advantages, the Privy Council’s record in the interpretation of the Canadian constitution is, at best, mixed and highly controversial. The clear intention of the BNA Act was to create a centralized federation. However, the Jcpc interpreted the Act so as to allocate many of the most important areas of legislative jurisdiction to the provinces. Furthermore, the scheme of federalism created by the Jcpc turned out to be unworkable in many respects. The twentieth century witnessed a dramatic expansion in the role of government, with the state assuming responsibilities in social...