In his book
Disallowance and Reservation of Provincial Legislation, published by the
Department of Justice, future Supreme Court justice
Gérard La Forest divided the history of Canada following Confederation into five periods based on the use of disallowance: 1867 to 1881, 1881 to 1896, 1896 to 1911, 1911 to 1924, and from 1924 until the time at which he wrote in 1954. The periods generally correspond to changes in the governing party of Parliament or prime minister.
1867–1881: Macdonald and Mackenzie affirmed the power of disallowance rested with the federal cabinet. The first period of disallowance and reservation was the period immediately following Confederation of Canada under Prime Ministers Sir
John A. Macdonald and
Alexander Mackenzie from 1867 until 1881. During this period many of the invalid provincial acts were those which encroached on federal constitutional responsibilities. The second most common grounds where there is a conflict between federal policies and interests is the most common reason for disallowance. From 1867 to 1881, the governor general disallowed 27 provincial acts, of which 25 were considered
ultra vires of the powers of the provincial Legislatures. La Forest notes that when the
minister of justice found an
ultra vires provision that was useful or of little importance, they generally communicated their concerns to the Legislature rather than use the power of disallowance. Macdonald was hesitant to disallow acts that he disagreed with, were petitioned against, or were otherwise disagreeable without a strong legal rationale, a view shared by Liberal successors as Minister of Justice
Edward Blake and
Rodolphe Laflamme. Macdonald's view on disallowance changed after 1881, as his government disallowed a growing number of provincial acts. For instance, Macdonald did not disallow the 1870 act of the
Ontario Legislature that amended the
will of
George Jervis Goodhue against the wishes of the trustees and other parties, as Macdonald viewed the Legislature as having the authority to pass this legislation. Following Confederation in 1867, the Dominion government began the process of interpreting the new
British North America Act and determining the responsibilities of each level of government. Parliament passed the
Department of Justice Act in 1868, which gave the Minister of Justice the responsibility to examine provincial legislation. Prime Minister John A. Macdonald held the position of Minister of Justice and shortly after the passing of the
Department of Justice Act brought forward to Cabinet a report on June 8, 1868, approved as
Order in Council P.C. 1868-0611 describing the role of the Department of Justice and Government of Canada when utilizing the powers of disallowance and reservation. Macdonald's Order in Council outlined four reasons disallowance would be considered by the department of justice for a provincial act: the act as a whole is illegal or unconstitutional; the act is illegal or unconstitutional in part; in areas of shared federal–provincial jurisdiction the act clashes with an Act of Parliament; or the act affects the interests of the Dominion negatively. Macdonald's Order in Council also required that the department of justice complete a report on the offending provincial act that included the reasons why disallowance was necessary. Macdonald followed his own recommendations closely and produced a report each year listing the provincial acts he did not find objectionable, and a separate report of the provincial acts he found objectionable based on the criteria in the Order in Council. Macdonald's Order in Council also recommended that the minister of justice communicate with the province of an offending act to seek a solution before utilizing the power of disallowance. La Forest notes that despite a report stating that a provincial act was considered by the minister of justice to be not objectionable, there were instances where those acts were disallowed. While minister of justice, Macdonald actively drafted these legislative reports with his deputy minister
Hewitt Bernard, however the successor Liberal minister of justice
Antoine-Aimé Dorion authored his own reports. Dorion's successor
Télesphore Fournier had Bernard draft the reports and merely wrote that he concurred on the report. The first act to be disallowed by the Macdonald government was
An Act to empower the Police Court in the City of Halifax to sentence Juvenile Offenders to the Halifax Industrial School passed by the
Nova Scotia Legislature in 1868. The act was disallowed in August 1869 as it dealt with
criminal law, which was within the exclusive constitutional jurisdiction of the federal government. In 1871, a question arose concerning the powers of the governor general, Canadian Cabinet and Parliament following the
New Brunswick Legislature passing the
Common Schools Act of 1871, which abolished church-run schools, and compelled Catholics to financially contribute to the replacement system of government-run public schools called Common Schools. A majority of the House of Commons attempted to pass a resolution to disallow the act, while
Macdonald's Cabinet did not intend to use disallowance. Macdonald viewed the legislation as within the exclusive jurisdiction of the provincial legislature under section 93 of the
British North America Act, Macdonald also viewed the New Brunswick government under Premier
George Edwin King as friendly to his interests.
Lord Ripon, the
President of the Imperial Privy Council, refused to take action to disallow the act at the request of Parliament, and responded by affirming that the power of disallowance of provincial acts is held by the governor general acting on the advice of Canadian Cabinet. The controversy over the New Brunswick
Common Schools Act did not fade away as the New Brunswick Legislature was emboldened to pass more provisions strengthening the provisions of the act, and a second resolution for disallowance was passed by the Parliament of Canada in 1873. Macdonald spoke out against Parliament's authority to disallow acts, and Secretary of State for the Colonies
Lord Kimberley responded to Parliament further reinforcing that disallowance was the responsibility of Canadian Cabinet and the governor general, much to the disappointment of the Liberal members and Edward Blake who moved the resolution. Macdonald allowed the
Common Schools Act to stand, and it was subsequently affirmed in its validity by the
Judicial Committee of the Privy Council decision in
Maher v Town Council of Portland. as Minister of Justice (1875–1877) was highly influential in convincing the government of the United Kingdom to remove provisions advising the governor general to reserve acts of Parliament. The first session of the
1st Canadian Parliament saw two bills passed on May 22, 1868, and subsequently reserved by Governor General
Charles Monck.
An Act to fix the Salary of the Governor General reduced the salary of the governor general from $10,000 to $6,500 which was not granted and was not recommended for royal assent by the governor general or by the Secretary of State for the Colonies, the
Duke of Buckingham. The second bill,
An Act respecting the Treaty between Her Majesty and the United States of America for the apprehension and surrender of certain offenders received royal assent in June and subsequently became law. Macdonald considered the question of whether the governor general or the government of the United Kingdom would consider a provincial bill reserved by a lieutenant governor due to inconsistency with Royal instructions. Macdonald consulted Lord Granville, who advised that matters of imperial interest were the purview of the government of the United Kingdom, and the governor general could not provide royal assent to those bills, and this advice was formalized in a July 1869 Order in Council directing lieutenant governors to follow Royal instructions and reserve bills which did not align with those instructions. Royal instructions were related to legislation governing eight subjects: authorizing divorce, conferring anything of value to the governor general, creating a new legal tender, committing Canada to an international treaty inconsistent with a British treaty, or contain provisions that were previously disallowed. In 1876, the minister of justice Blake wrote the Secretary of State for Colonies requesting greater independence, and specifically requesting that Britain would not use the power of reservation. Subsequently, the seventh paragraph of the Royal instructions were repealed in 1878 on the insistence of Blake. La Forest notes that the concept of British control over provincial legislatures was largely forgotten, and the power of reservation was not used by the government of the United Kingdom again. Albert notes that the additional autonomy provided to Canada made it the most independent British colony, and later in 1878, Parliament passed legislation regarding divorce, a previously forbidden topic without repercussions. As early as 1873, the federal government under Macdonald advised lieutenant governors not to reserve bills which were firmly within the provincial powers to legislate, but were advised to reserve bills if the act conflicted with Dominion policy, imperial policy, or were
ultra vires. This policy continued with successive ministers of justice. Despite this policy, lieutenant governors continued to reserve bills within the provincial constitutional domain and at times the governor general would have to provide royal assent. However, one instance where Macdonald did not recommend for royal assent was a reserved Ontario bill incorporating the
Orange Order. Macdonald thought the bill was a political trap by Ontario premier and rival
Oliver Mowat, that would either alienate his support with Catholics in Quebec or Protestants in Ontario. Instead of recommending royal assent, Macdonald recommended the Ontario Legislature pass the bill again, which it did, and the lieutenant governor provided royal assent.
1881–1896: Macdonald, Abbot, Thompson, Bowell and Tupper requested disallowance of the Ontario
Rivers and Streams Act, 1881 to serve his own business interests. The second period of disallowance and reservation came in 1881 which saw thirty-eight acts disallowed. The change in disallowance policy that separates this period came with the disallowance of
An Act for Protecting the Public Interests in Rivers, Streams and Creeks passed by the Ontario Legislature. La Forest believes the report issued by justice minister
James McDonald was actually authored by John A. Macdonald, as McDonald ceased his role as justice minister only a few days after its publication. The Ontario act was based on a disagreement between two logging firms, one of which owned by prominent Conservative
Peter McLaren had built dams and other infrastructure on creeks to make it easier to
float logs down, and another company sought to use the creek without the permission of the first company. The act gave the right to individuals to float logs down rivers, creeks, and streams, and allowed those who made improvements along a river to receive a
toll set by the lieutenant governor from others floating logs down a river. The report on disallowance cited removal property rights from individuals down river who would be forced to become "toll-keeper against his will", which amounted to taking away the "rights of one man and vest them in another"; the report deemed a Legislature's power to do so "exceedingly doubtful". The decision to disallow the act went against the principles of Macdonald's 1868 report, and was protested by the Premier of Ontario Oliver Mowat and opposition in Parliament, including Wilfrid Laurier. Further accusations came from the opposition claiming the decision was motivated, as the individual who petitioned for disallowance was a known political friend of Macdonald. The Conservative government was unsuccessful at arguing that this disallowance aligned with previous decisions, and Conservative
Dalton McCarthy conceded in Parliament that the disallowance was based on a new principle. Macdonald defended the decision on the concept of protecting
property rights and it was within the general interest of the Dominion to maintain those rights to ensure continued certainty in investment. The Ontario Legislature protested the disallowance and passed the same Act three more times, all of which were disallowed, and finally the fourth attempt in 1884 which was not disallowed and continued as law. The issue was settled in the landmark case
McLaren v Caldwell by the Judicial Committee of the Privy Council. Following the disallowance of the Ontario act, the minister of justice was inundated with petitions to disallow further acts; La Forest notes that
Alexander Campbell, who held the role from 1881 to 1885, studied each petition thoroughly, but only disallowed Ontario's further attempts to pass the
Rivers and Streams Acts. Campbell's successor as justice minister Sir
John Thompson refused to recommend disallowance for acts that interfered with property rights similar to the Ontario act in 1881. La Forest notes that Thompson's actions as justice minister were at times inconsistent, disallowing some acts and refusing to recommend disallowance for similar reasons. Thompson was also very willing to indicate in his reports where he saw an
injustice had taken place, and whether or not the injustice was sufficient reason for the act to be disallowed. Following Thompson, Conservative justice ministers Sir
Charles Hibbert Tupper,
Thomas Mayne Daly, and
Arthur Rupert Dickey refused to disallow an act solely on the basis that it was unjust. During this period, the
government of British Columbia passed two acts restricting
immigration of Chinese individuals to the province, and permitting the
arrest of new immigrants without a warrant; the acts, both titled
An Act to prevent the Immigration of Chinese, were disallowed. The British Columbia government had previously lobbied the federal government to require the Canadian Pacific Railway to hire labourers from Europe for railway construction instead of individuals of Chinese descent, and dissatisfied with progress made by the federal government on immigration, British Columbia attempted to regulate immigration under
section 95 of the
British North America Act. Minister of Justice Campbell rejected the argument, noting provinces could encourage immigration, but not prohibit immigration, and subsequently disallowed the act. Macdonald relented to requests to evaluate the Chinese immigration and appointed the
Royal Commission on Chinese Immigration in 1885, which recommended a
head tax on Chinese immigrants. The government of British Columbia did not see the recommendations of the Royal Commission as sufficient, and passed legislation duplicating the previous act limiting Chinese immigration to the province, which was subsequently disallowed by the federal government. ,
Premier of Quebec, organized the first meeting of provincial premiers in 1887 in opposition to the powers of disallowance and reservation. Another common theme for disallowance during the period of 1881–1896 was provincial acts that conflicted with Dominion policy, most of which were outside of the powers of the provincial legislatures. Nearly half of the 38 acts disallowed during this period were because the acts interfered with Dominion
railway policy. Macdonald disallowed 13 railway charters issued by the fledgling provincial
government of Manitoba between 1882 and 1887. the Manitoba government under Premier
John Norquay felt that high freight rates were caused by the
Canadian Pacific Railway's monopoly, and sought to construct railways connected to the United States border. However, the Macdonald government had previously provided a monopoly to the
Canadian Pacific Railway, not permitting any east–west line to be built south of the Canadian Pacific line in Western Canada, this was to protect Canadian Pacific from competition, and support Macdonald's National Policy. Ten of the disallowed acts infringed on the Canadian Pacific monopoly directly by chartering competing companies, while two other acts generally promoted railway construction in Manitoba against the interests of the federal government.
James R. Mallory notes the successive disallowances by Macdonald for the Manitoba railway charters hampered what should have been an alliance between Conservatives Macdonald and Norquay. Norquay subsequently lost the confidence of his party and resigned in 1887, and the
Manitoba Liberal Party under
Thomas Greenway took power in the
1888 election. Soon afterward, the Canadian Pacific Railway monopoly was removed in exchange for a financial bailout by the Macdonald government. Provincial governments were not pleased with what they saw as the increasing interference of the federal government in provincial autonomy, and held the first
Interprovincial Conference in Quebec City in October 1887 to discuss the issue; the meeting site was symbolic as it had previously hosted the
1864 Conference that laid the basis for the
British North America Act. Amongst the issues discussed at the conference was the removal of the federal power of disallowance. Quebec Premier
Honoré Mercier spoke of it as an unnecessary power and claimed that issues of constitutionality of laws "fall[] naturally within the jurisdiction of the courts". Manitoba Premier Norquay, frustrated by repeated disallowance of railway charters, also challenged the federal powers. The 1887 conference passed two resolutions, one calling for amendments to the
British North America Act removing the power of disallowance over topics within the provincial sphere of
section 92, and a second resolution calling on the federal government to seek a
judicial opinion on each case of disallowance, which would be open to appeal. Macdonald and the federal government were invited to the conference but chose not to attend, the Macdonald's allies in the governments of British Columbia and Prince Edward Island also declined to attend. No action was taken on the first resolution, but Parliament led by a motion by Edward Blake moved to permit the governor general to provide the option to refer these matters to the court for an opinion in 1890, but without the right of an appeal. Macdonald's government changed its view on reservation, and in November 1882 created a new standard for reservation to prevent situations of reservation by lieutenant governors on the advice of provincial cabinet. However, these standards do not appear to have been forwarded to lieutenant governors until 1887. The new instructions reiterated that lieutenant governors authority for reservation was to be exercised as Dominion officers accountable to the governor general, not provincial cabinet, and further outlined a policy where the federal government preferred to deal with provincial acts through disallowance if necessary, not reservation. The practice of lieutenant governors reserving bills without instruction from the governor general continued, and was often met with the governor general reiterating this policy back to the lieutenant governor. La Forest notes that fewer bills were reserved after 1882, and those that were reserved did not receive assent from the governor general. Instead, the federal government referred the bills back to the respective legislature to be passed again.
1896–1911: Laurier The Liberal victory under Sir
Wilfrid Laurier in the
1896 Canadian federal election brought major changes to the use of disallowance by the federal government. In the years prior to the 1896 election, Laurier had made it clear he would not intervene in matters within provincial jurisdiction, unless the matters intervened with federal policy, and was not supportive of disallowance in circumstances where the act was "unjust". During this period, thirty acts were disallowed, twenty-one of which were passed by the British Columbia Legislature; however, no act was disallowed on the grounds of injustice or inexpediency. Laurier's ideals on federalism and the supremacy of provincial legislatures in constitutionally defined areas was shared by his ministers of justice
Oliver Mowat,
David Mills, Sir
Charles Fitzpatrick, and
Allen Bristol Aylesworth. Instead the federal government under Laurier cautioned legislatures on instances where laws could be considered unjust, but left the matter to be resolved in the legislature or courts. Despite this supportive view of federalism, the Laurier government had no hesitancy on using disallowance in circumstances where an act conflicted with Dominion policy. The Laurier government disallowed laws passed by the British Columbia Legislature which adversely affected immigrants from Asia, as they conflicted with Dominion policy, but also could effect imperial interests and relations between the United Kingdom and Japan. Imperial interests were also recognized in the disallowance of the Ontario
Chartered Accountants Act which the British Colonial Office petitioned as it prevented the English
Institute of Chartered Accountants from using a title they had under British law. Provincial acts which were considered
ultra vires that were seen to not cause considerable harm were not disallowed, and left to the legislature and courts. passed a series of bills restricting immigration from Asia to the province which were subsequently disallowed by the Laurier cabinet. The British Columbia Legislature began introducing legislation prohibiting immigration from Asia in the period of 1900–1908. British Columbia had seen a large reduction in Asian immigration between the late 1880s and early 1890s which resulted in a period with less effort to restrict immigration; however, increased immigration in 1899 and 1900 revitalized the call for restrictive immigration legislation in the province. The British government had foreseen the risk of anti-Asian immigration laws damaging imperial relations and trade, and during the
1897 Colonial Conference Secretary of State for the Colonies
Joseph Chamberlain expressed concern over the possibility of restrictive legislation in British Columbia. In August 1900, Japan announced voluntary restrictions on emigration to Canada, and a few weeks later the British Columbia Legislature passed the
Immigration Act requiring a language test; the act was subsequently disallowed nearly a year later by the Laurier government on the grounds of federal paramountcy on immigration after a petition from the Japanese Consul. The British Columbia Legislature passed a similar act shortly afterwards, which was disallowed six months after its passage. British Columbia continued to pass similar discriminatory legislation throughout 1902–1908 with the understanding the acts would be disallowed by the federal government; the reasoning by the provincial government was a protest to Ottawa, and to publicly display that immigrants from Asia were not welcome in British Columbia. Imperial interest in disallowance grew with the 1902
Anglo-Japanese Alliance. The British Columbia Legislature was also emboldened with the federal cabinet's slow response to disallow legislation, where during the 1800s, Macdonald's government disallowed acts without delay, the
Laurier cabinet took their time and disallowed acts could remain in force for months before disallowance. Bruce Ryder notes that because of these delays by the Laurier cabinet, anti-Asian provincial immigration laws were in force more often in the province than not. In 1907, British Columbia Lieutenant Governor
James Dunsmuir reserved
royal assent on the new
Immigration Act on his accord, and the federal government refused to recommend royal assent. Dunsmuir reasoned that the bill was similar to the previously disallowed acts, and the bill could interfere with federal interests and international relations. Members of the public rallied against Dunsmuir who previously employed a large number of immigrants from Asia in his coal mines, and his
effigy was burned in the
1907 Anti-Oriental Riots in Vancouver. The final attempt by the British Columbia Legislature to regulate immigration from Asia came in 1908, which was made largely inoperable by two court challenges and eventually disallowed by the Laurier cabinet. In 1911, nearing the end of his period as Prime Minister, Laurier updated the principles for the use of disallowance. Laurier's instructions cautioned "great care" in use and respect for the local legislatures authority to govern in constitutional areas, but urged expediency in use of disallowance where legislatures acted in federal constitutional areas where "great confusion and hardship" could come to the public.
1911–1924: Borden and King The period of 1911–1924 coincided again with a reduction in use of the powers of disallowance by the federal government, with Borden's Conservatives disallowing one act, and King's Liberal government disallowing five acts. The
1911 Canadian federal election marked the end of Laurier's Liberal government as the Conservative Party under
Robert Borden formed the government.
Charles Doherty, a critic of Laurier's approach to disallowance, was appointed minister of justice. Doherty strongly believed that the governor general should disallow an act on the grounds it is unjust or interferes with vested rights or the obligations of a contract. Doherty described his view that disallowance "be properly invoked for the purpose of preventing, not inconsistently with the public interest, irreparable injustice or undue interference with private rights or property through the operation of local statutes
intra vires of the legislatures". Despite Doherty's broad view of the application of disallowance, he remained reluctant to recommend use of disallowance. Doherty acknowledged he was limited by federalism and the autonomy of provinces, the desire not to embarrass the legislatures, and the difficulty in understanding the facts and reasons behind the passage of the legislation. Through the Borden years only one statute was disallowed, the 1917 British Columbia amendment to the ''Vancouver Island Settler's Rights Act, 1904'' on the grounds that the act constituted an invasion of property rights granted by the Dominion government to the Canadian Pacific Railway. Doherty noted that the use of disallowance aligned with the fourth principle of Macdonald's memo of 1868, and was within the right of the Dominion to disallow the act. Further in this particular case, Doherty believed the power of disallowance was necessary to protect the province from passing unwise bills. The
1921 Canadian federal election saw the Liberal Party led by
Mackenzie King return to power and Sir
Lomer Gouin appointed as the new minister of justice. Gouin's opinion on disallowance aligned with those of Doherty, in contrast to the Liberal government under Laurier. Gouin recommended disallowance of
An Act to vest certain lands in Victoria County to Jane E. MacNeil, 1922 passed by the Nova Scotia Legislature, which sought to evade a judgement in
McNeil v. Sharpe of the
Supreme Court of Canada in the trial of which the Legislature felt the appellant MacNeil was poorly represented. The act vested MacNeil with the property taken during her
bankruptcy and retroactively disqualified any
claims or interests made on the property placed after 1911. Gouin's report concluded the act was "extraordinary" and opposed the "principles of right and justice", and that the Nova Scotia Legislature had made "itself a court of appeal from the Supreme Court of Canada". Federal Conservative
Henry Lumley Drayton introduced a motion to Parliament describing federal interference in the law as an abuse of power and interfering within the constitutional rights of provinces to govern. La Forest notes at this instance the opinion of the Conservative and Liberal parties towards disallowance had flipped from the views previously held from Confederation to 1923. Gouin also reviewed a 1921 act of the British Columbia Legislature on the petition of the Japanese Counsel General. The federal Cabinet
referred the act to the Supreme Court, which found it was unconstitutional. Gouin subsequently recommended the disallowance of the act, which occurred shortly afterwards. requested two acts related to road traffic be disallowed as the acts provided opposing instructions to drivers. In a unique case, the Nova Scotia government petitioned Gouin to disallow two acts, a 1922 amendment to the
Act Relating to the Use of the Road and the 1922 amendment to
The Motor Vehicle Act which governed the use of roadways in the province. The Legislature inadvertently passed the amendment to the
Act Relating to the Use of the Road requiring drivers to
pass on the left, while an amendment to
The Motor Vehicle Act required drivers to pass on the right. The government of Nova Scotia asked for the act to be disallowed due to the confusion it would cause and the "grave danger to life and property", a request which Gouin weighed against options to call a special session of the Legislature or refer to the courts. However, Gouin decided that disallowance "best met the needs of the case".
1924–1954: King, Bennett, and St. Laurent as Minister of Justice recommended the disallowance of several acts of the Alberta
Social Credit government. La Forest describes the final stage for the use of disallowance and reservation to coincide with
Ernest Lapointe serving as minister of justice. Lapointe was appointed minister of justice three times, holding the role for over 10 years, with interludes for the Meighen and Bennett governments. With Lapointe, the practice of the minister of justice providing a comprehensive report on provincial acts to be considered for disallowance ended, being replaced with a short special report on those which may be considered for disallowance. Lapointe continued the view that acts within the provincial constitutional jurisdiction should not be disallowed unless they conflicted with Dominion policy. In his report for Alberta's 1924
An Act to impose a Tax upon Minerals, Lapointe was careful to note that while the act constituted an injustice for the group that petitioned for its disallowance, the reason for recommending disallowance was only because it impeded on federal constitutional jurisdiction. Lapointe continued to allow courts to decide the validity of laws which exceeded the provincial governments constitutional authority to govern. There were no acts disallowed by the Conservative government of Prime Minister
Arthur Meighen in place for three months in 1926 following his appointment after the
King–Byng affair. The Conservative government of
R. B. Bennett from 1930 to 1935 did not disallow any legislation during their term. La Forest notes that justice minister
Hugh Guthrie's reports on questions of disallowance were so brief that it is difficult to determine his personal opinions on the circumstances where disallowance would be acceptable, except that he subscribed to the belief that the courts should decide the validity of laws which may exceed the provincial governments constitutional authorities. When King's Liberals were returned to government in the
1935 Canadian federal election, Lapointe was once again appointed justice minister. La Forest notes that Lapointe began to include in his reports more detail on the circumstances disallowance might properly be used. In his report on Ontario's 1935
Power Commission Act, which ultimately was not disallowed, Lapointe noted that the then "modern view" of disallowance is incompatible with it being used on provincial legislation which is
ultra vires, with the only valid reasons for disallowance being interference with Dominion policy. Lapointe made statements in Parliament echoing his belief, evoking a parallel between Canada's success in seeking autonomy and guarantees during the Imperial Conferences in 1926 and 1930 against the use of disallowance by the government of the United Kingdom, and the relationship between the provinces and federal government. Lapointe went so far as to say he did not think disallowance could easily be used by the federal government. Lapointe's views on the powers of disallowance and reservation were tested by the government of Alberta under
Social Credit Premier
William Aberhart. The Aberhart government was
elected in 1935 on the pledge to implement
social credit, an economic policy developed British engineer
C. H. Douglas which included concepts such as $25 monthly dividends. Aberhart's government was slow in implementing economic changes, which resulted in the
1937 Social Credit backbenchers' revolt where members of the legislative assembly revolted openly and threatened to defeat the government in a
confidence vote. Aberhart was able to placate the rebellion by promising to implement social credit policies beginning with the
Credit of Alberta Regulation Act, the
Bank Employees Civil Rights Act, and the
Judicature Act Amendment Act. The first required all bankers to obtain a license from the Social Credit Commission and created a directorate for the control of each bank, most members of which would be appointed by the Social Credit Board. The second prevented unlicensed banks and their employees from initiating civil actions. The third prevented any person from challenging the constitutionality of Alberta's laws in court without receiving the approval of the
Lieutenant-Governor in Council. All three acts were quickly passed. New Lieutenant-Governor
John C. Bowen, asked to grant royal assent, called Aberhart and Attorney-General
John Hugill to his office. He asked Hugill if, as a lawyer, he believed that the proposed laws were constitutional; Hugill replied that he did not. Aberhart said that he would take responsibility for the bills, which Bowen then signed. As they left the meeting, Aberhart asked Hugill for his resignation, which he received. The government of Canada found the Alberta acts highly objectionable, as their attempts to regulate banking fell within the constitutional purview of the federal government. The federal government disallowed all three acts shortly after. Following the disallowance, the Aberhart government re-introduced the bills under new names
Bank Taxation Act (Bill 1),
Credit of Alberta Regulation Act, 1937 (Bill 8), and the
Accurate News and Information Act (Bill 9). The
Accurate News and Information Act required newspapers to print "clarifications" of stories that a committee of Social Credit legislators deemed inaccurate, and to reveal their sources on demand. Lieutenant Governor Bowen, mindful of the federal government's disallowance of the Social Credit Board's earlier legislation, reserved royal assent of the acts until their legality could be tested in both the
Supreme Court of Canada and the
Judicial Committee of the Privy Council. This was the first use of the power of reservation in Alberta history. In
Reference Re Alberta Statutes the Supreme Court of Canada struck down the three bills as
ultra vires of the province's constitutional authority, affirmed the authority of the lieutenant governor to reserve royal assent, and first proposed the existence of an
implied bill of rights protecting civil liberties such as a free press. stating that both the prerogative and statutory powers of disallowance had "not been exercised for many years" in relation to dominion legislation. The agreement in 1930 essentially meant the United Kingdom would not reserve or disallow legislation without the approval of the Canadian federal cabinet. The Balfour Declaration and the 1930 report were non-binding, but were later solidified in the Statute of Westminster 1931 which implemented aspects of the agreements at the imperial conferences, including limiting the legislative authority of the Parliament of the United Kingdom over Canada, effectively giving the country legal autonomy as a self-governing Dominion, though the Parliament of the United Kingdom retained the power to amend Canada's constitution at the request of Canada. The Parliament of the United Kingdom's authority remained in effect until the
Constitution Act, 1982, which transferred the authority to amend Canada's constitution to the Parliament of Canada, the final step to achieving full sovereignty. The Statute of Westminster amended the procedure for appointing the governor general, moving from the advice of Privy Council of the United Kingdom to the Canadian Cabinet, removing another aspect of British influence over the Canadian government.
1961: Saskatchewan The power of disallowance has not been used in Canada since the events in Alberta in the early 1940s. The final instance of reservation occurred in 1961 when
Lieutenant Governor of Saskatchewan Frank Lindsay Bastedo reserved royal assent of
An Act to Provide for the Alteration of Certain Mineral Contracts (Bill 56) at the end of the session during the
14th Legislature. Bastedo reserved the bill on his own accord, and was not instructed to by the governor general in council. The bill passed by the
Saskatchewan Co-operative Commonwealth Federation led by Premier
Tommy Douglas amended provisions related to mining contracts, and allowed cabinet to modify existing mining contracts. Bastedo argued that he had doubts on the legislation being in the
public interest, and that the legislation was not legal. Bastedo's view was not shared by his constitutional advisors. The
Progressive Conservative cabinet led by Prime Minister
John Diefenbaker quickly passed an order in council to grant royal assent. == Consideration of disallowance and reservation after 1961 ==