B. The jcpc’s Watertight Compartments View

AuthorPatrick J. Monahan - Byron Shaw
Pages243-245

Page 243

The Jcpc conceived of its function (at least in its written judgments)4as strictly legal and apolitical. The law lords favoured doctrines and concepts that established "bright lines," that is, clear points of demarcation around and between the categories in sections 91 and 92. Such "categorical" reasoning avoided the appearance of judges assessing political considerations of the wisdom of legislation. Indeed, the Jcpc reminded its readers on many occasions that it was for the legislature and not the courts to evaluate the wisdom of an enactment. For the

Jcpc, an open assessment of the relative importance of a particular statute, or of its necessity to the economic and political life of the nation, was anathema to the judicial function. The Board therefore attempted to fashion a series of tests that could be applied without reference to such considerations.

The Jcpc proceeded on the assumption that the categories in sections 91 and 92 were mutually exclusive: the Canadian ship of state, in Lord Atkin’s celebrated metaphor, retains the "watertight compartments which are an essential part of her original structure."5This meant that the categories in sections 91 and 92 should be interpreted so as to avoid, to the greatest extent possible, any overlap between them. The compartmental approach seemed to follow from the fact that the twenty-nine enumerated categories in section 91 and the sixteen enumerated categories in section 92 were each described as conferring "exclusive" legislative jurisdiction. This, in itself, might not have been a fatal interpretive move had it not been for a further doctrinal decision made by the Jcpc in the first few years after Confederation.

Page 244

In what was arguably its single most important interpretive decision in terms of the BNA Act, the Board interpreted the terms "Property and Civil Rights" in section 92(13) in their broadest possible sense, as including any and all forms of legal rights possessed by persons within the province. The consequence of this broad interpretation was that the provinces were recognized as having authority to enact laws on virtually any subject, since all provincial laws would necessarily deal with civil rights in one form or another. The only real limit on the scope of section 92(13) was territorial: the province could only enact laws in relation to rights "in the Province." But as long as the subject matter of the law was found to be within the province, the...

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