Winner v S.M.T. (Eastern) Ltd,

• Docket Number: Case No. 81
• Court: Supreme Court (Canada)
• Date: 22 October 1951

Canada, Supreme Court.

(Reinfret C.J.C., Kerwin, Tascherau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.)

Case No. 81

Winner

and

S.M.T. (Eastern) Ltd. and Attorney-General of New Brunswick et Al.

Aliens — Position of — Right of Alien to Question Validity of Legislation — Canadian Provincial Legislation.

The Facts.—The appellant, an alien, operated a bus service, organized under the laws of Maine, from Boston, U.S.A., through the Canadian Province of New Brunswick to Nova Scotia, and back to Boston. He had been granted a licence to do so, but he was “not to embus or debus passengers in the said Province of New Brunswick”. The appellant did not abide by this limitation, and the respondents obtained an injunction. On appeal, the appellant contended that the Statutes under the authority of which the licence was issued were ultra vires the Provincial Legislature of New Brunswick, by virtue of s. 92 (10)(a)1 of the British North America Act, and that

therefore the limitations in the licence were invalid. The respondent argued, inter alia, that the appellant, being an alien, had no locus standi to challenge the constitutionality of the legislation in question: this contention was accepted in the Court below

Held: that the appeal must be allowed. An alien is not disabled from attacking the validity of legislation, which in this case is in fact ultra vires. The Court said (per Rand J.): “The first and fundamental accomplishment of the constitutional Act was the creation of a single political organization of subjects of His Majesty within the geographical area of the Dominion, the basic postulate of which was the institution of a Canadian citizenship. Citizenship is membership in a state; and in the citizen inhere those rights and duties, the correlatives of allegiance and protection, which are basic to that status.

“The Act makes no express allocation of citizenship as the subject-matter of legislation to either the Dominion or the Province; but as it lies at the foundation of the political organization, as its character is national, and by the implication of head (25), s. 91, ‘Naturalization and Aliens’, it is to be found within the residual powers of the Dominion. …

“It follows, that a Province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances...