Prior to Confederation, there were well-established parliamentary restrictions on
appropriation and
taxation bills. In addition, the British government had powers to regulate colonial legislation, such as
royal assent,
disallowance and reservation. The delegates to the
Quebec Conference and the London Conference were in general agreement that those statutory provisions and prerogative powers should continue to exist, applicable to both the federal and the provincial governments.
Application of sections relating to federal Parliament Section 90 is in Part V of the Act, which deals with the powers of the provincial legislatures. Section 90 picks up several provisions from Part IV of the Act, dealing with the
federal Parliament, and applies them to the provincial legislatures, rather than reproducing them in detail. As a result, the provisions relating to federal
taxation and
appropriation bills (
section 53 of the Act), the recommendation for
money votes (
section 54),
royal assent and reservation of
bills (
section 55 and
section 57), and the
disallowance of acts (
section 56), all apply to provincial legislatures, with appropriate changes to terminology.
Appropriation and tax bills Section 53 of the Act provides that all federal bills to appropriate public money, or to impose taxes, shall originate in the federal
House of Commons. This requirement has its origins in English constitutional history, when one of the major issues of the 17th century was control over public finances. The result in
England, carried forward into the
United Kingdom, was that all revenue bills relating to taxation and appropriation were required to originate in the elected
House of Commons, not in the hereditary
House of Lords. Section 53 of the Act applied that requirement to the
Parliament of Canada, requiring all revenue bills to originate in the
Canadian House of Commons. Section 90 applied the requirement of financial control by the elected chamber to the provinces. At
Confederation, the provinces of
New Brunswick,
Nova Scotia, all had
bicameral legislatures, with appointed
upper houses, called
legislative councils, and elected
lower houses, called
legislative assemblies. Only
Ontario had a
unicameral legislature, consisting of the elected legislative assembly. The effect of section 90 was that appropriation and taxation bills had to be introduced in the elected legislative assemblies of the provinces, by analogy to section 53's requirement that such bills be introduced in the federal House of Commons. Over time, the provinces with legislative councils abolished them. Quebec was the last province to abolish its legislative council, in 1968. With the abolition of the provincial legislative councils, the question was whether this part of section 90 had any further effect, since all the legislative assemblies were now unicameral. At least one constitutional scholar, W.H. McConnell, argued that this part of section 90 was
spent. The majority of the Court rejected the argument that section 53 no longer had any application to the provinces. They held that section 53 set out the principle of "no taxation without representation", and meant that all provincial taxes had to be clearly authorised by the legislative assembly of the province. The tax in question, a probate fee, had not been properly authorised by the legislative assembly, and therefore was unconstitutional. The Supreme Court gave further guidance on the interpretation of section 53, and its application to the provinces via section 90, in a later case,
Ontario English Catholic Teachers’ Association v. Ontario (Attorney General).
Recommendation of money votes Section 54 of the Act sets out a procedural requirement for the consideration of bills concerning taxes or appropriation of public funds, commonly called "money bills". Section 54 provides that any bills concerning taxes or appropriations must be accompanied by a recommendation from the
Governor General. Under the principles of
responsible government, that means that the Governor General makes the recommendation on the advice of the
federal Cabinet. Section 90 applies section 54 to the provincial legislative assemblies, with the change that the recommendation is made by the
lieutenant governor, on the advice of the provincial
Cabinet. The purpose of this provision is to impose controls over public finances. By ensuring that the executive had control over money bills, section 54 contributed to the development of responsible government. By the operation of section 90, this provision also applies to bills passed by the provincial legislative assemblies, with the difference that it gives the powers of assent or reservation to the provincial lieutenant governor. If a lieutenant governor reserved a bill, it would be considered by the Governor General, not the monarch.
Royal assent Canadian legislatures, both federally and provincially, are based on the model of the
British Parliament. The monarch is a component of the legislatures, and
royal assent is necessary for a bill to become law. In the colonial period, the governors could grant or withhold assent to a bill passed by a colonial legislature, depending on their view of the policy of the bill and whether it was consistent with the imperial policies of the British government. If the governor granted royal assent, the bill became law. If the governor withheld royal assent, the bill died and never became law. In the 1830s and 1840s, reformers in the British North American colonies pressed for
responsible government, which meant that the governor would choose the government from the groups which had a majority in the elected legislative assemblies, and would not deny royal assent to bills passed by the elected legislative assemblies. In 1848, starting with Nova Scotia, the British governors began to implement responsible government, shifting to a more ceremonial role. The principle that the governor would not deny royal assent to a bill passed by the elected assembly was established in the
Province of Canada in 1849, with the passage of the
Rebellion Losses Bill, a measure proposed by the government of
Louis-Hippolyte Lafontaine and
Robert Baldwin. The bill would compensate residents of
Lower Canada (now
Quebec) who had suffered property losses during the
Lower Canada Rebellions of 1837 and 1838. The bill was unpopular with the English-speaking
Tories, who viewed it as rewarding French-Canadians for disloyalty to the British Crown. When the bill passed the two houses of the Parliament, the Tories agitated for the Governor General,
Lord Elgin, to deny royal assent. Instead, Elgin granted royal assent, along with other bills passed by the LaFontaine-Baldwin government. Rioting broke out in Montreal, where the Parliament was sitting, and the parliament building was burnt to the ground by the rioters, but the
constitutional convention was established that the governors always granted royal assent to bills passed by the elected assembly. That constitutional convention was carried forward under
Confederation, and applies to the provincial lieutenant governors. They are required to grant royal assent to bills passed by the elected legislative assemblies. Although sections 90 and 54 in theory give the lieutenant governor the power to withhold royal assent, as a matter of constitutional practice they always grant royal assent.
Reservation of provincial bills During the colonial period, there was a third option for colonial governors: they could reserve consideration of a bill for the monarch, who could grant or refuse royal assent, acting on the advice of the British government. This mechanism was used to maintain British control, by ensuring that colonial legislation remained within the constitutional authority granted to the colony, and that the colonial legislation did not breach British imperial policies. The British government would give instructions to each governor on the types of bills that should be reserved. On this point, the Fathers of Confederation favoured a strong federal government, avoiding what they saw as a flaw in the
Constitution of the United States, as evidenced by the
American Civil War. By the combined effect of section 90 and section 55, the lieutenant governors of the provinces could reserve provincial bills for consideration by the federal government. In the early years of Confederation, particularly under the
Conservative government of Prime Minister
John A. Macdonald, the lieutenant governors were given instructions on the types of bills to reserve for consideration by the federal government. The federal government then used the power of reservation, and the related power of disallowance, to prevent the provinces from exceeding what the federal government considered to be constitutional limits on provincial powers, or passing laws that conflicted with federal policies. As time passed, the use of reservation dwindled. The courts took on the role of determining the constitutional limits of both the federal and the provincial governments, through
judicial review on constitutional questions. The development of responsible government and provincial autonomy also made it more politically difficult for the federal government to intervene with regard to provincial laws. Writing in 1955,
Gérard La Forest (later a justice of the
Supreme Court of Canada) concluded that since Confederation in 1867, at least sixty-nine provincial bills had been reserved by lieutenant governors for consideration by the federal government. The federal government had granted royal assent to thirteen of the bills. La Forest commented that the "vast majority" of the reservations had occurred before 1900. There has been one use of the reservation power since La Forest's 1955 study. In 1961, Lieutenant Governor
Bastedo of Saskatchewan reserved a bill passed by the Legislative Assembly of Saskatchewan. The bill would have altered terms of certain mineral contracts in the province. He apparently did so on his own initiative, not based on instructions from the federal government. He said that there were grave doubts whether the bill was in the public interest, and whether it was constitutionally valid. When the bill was considered by the federal government of Prime Minister
John Diefenbaker, it was quickly given royal assent.
Signification of pleasure on bills reserved Section 57 of the Act provided the procedure for consideration of reserved federal bills. If the Governor General reserved a federal bill, the Governor General would send it to one of the British cabinet ministers. The bill would then be considered by the monarch-in-council, the formal term for the
British Cabinet, and the monarch would either grant or withhold royal assent on the advice of the British government. The decision had to be made within two years of the passage of the reserved bill. Section 90 applied the same process for provincial bills reserved by a lieutenant governor, with the differences outlined in section 90: the lieutenant governor would forward the reserved bill to the Governor General, and the Governor General in council, namely the federal Cabinet, then would have one year to decide whether to grant or withhold royal assent. Section 90 applied the disallowance power to the provinces, giving the Governor General in Council the power to disallow a statute passed by a provincial legislature, with a deadline of one year. The use of the federal disallowance power has dwindled since 1867: • 1867 to 1881: 27 provincial acts were disallowed; • 1881 to 1896: 38 disallowances; • 1896 to 1911: 30 disallowances; • 1911 to 1924: 6 disallowances; • 1924 to 1943: 11 disallowances; • 1944 to : 0 disallowances. The last major use of the disallowance power was with regard to a series of acts passed in 1937 by the Alberta Legislature, during the
Social Credit government of Premier
William Aberhart. The statutes attempted to regulate the banks in Alberta, but banking is an area of exclusive federal jurisdiction. The federal
Liberal government of Prime Minister
Mackenzie King disallowed three statutes passed by the Alberta in 1937, and then disallowed an additional eight statutes passed by the Alberta government designed to implement Social Credit policies. The final disallowance, in 1943, was an Alberta statute that attempted to regulate enemy aliens in Alberta. The federal government asserted that all of the Alberta statutes intruded on matters of exclusive federal jurisdiction and therefore were properly within the use of the disallowance power. However, the use of disallowance raised political concerns about the federal government's decision to overrule the statutory policy of the democratically elected Alberta legislature. The Alberta government raised issues about the validity of the reservation and disallowance powers, since they had not been used for a considerable time. In response, the federal government posed a
reference case to the Supreme Court, asking if the constitutional powers of reservation and disallowance continued to exist. The Supreme Court unanimously concluded that the powers of reservation still existed and could be used by the federal government. The Court held that constitutional powers could not cease to exist simply because they were not exercised for a considerable period of time.
Current status of reservation and disallowance More recently, in the
Patriation Reference in 1981, a majority of the Supreme Court held that as a matter of law, reservation and disallowance continued to exist, while perhaps having "fallen into disuse". However, a differently constituted majority in the same case left open the possibility that a constitutional convention may have evolved limiting the use of those powers with respect to the provinces. There has also been considerable academic discussion about the status of reservation and disallowance, and whether a constitutional convention exists which prevents the federal government from using the powers of reservation or disallowance. Canadian constitutional law scholar Professor
Peter Hogg speculated that there is now a constitutional convention against the use of the disallowance power by the federal government, and provides a detailed summary of the academic literature on this point. Hogg also commented on the political difficulties for the federal government to overrule the decisions of a democratically elected provincial government, One academic, Richard Albert, a professor of comparative constitutional law, has argued that both powers have fallen into "constitutional
desuetude," and can no longer be used. On the other hand, some commentators have suggested that the disallowance power still retains value as a means to protect minority rights, when a province has used the notwithstanding clause of the
Canadian Charter of Rights and Freedoms. == Proposals for repeal ==