UBC Theses and Dissertations

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UBC Theses and Dissertations

The Judicial Committe of the Privy Council and the distribution of legislative powers in the British North American act, 1867 Browne, Gerald Peter


This thesis was undertaken with the intention of filling four serious gaps in the vast amount of writing that has been done on the interpretation of the British North America Act by the Judicial Committee of the Privy Council. First of all, an effort has been made to examine all the decisions handed down by the Board, then to analyse these decisions so as to obtain an understanding of the basic principles established, and lastly to summarise these principles into a coherent picture of the way in which the Constitution of Canada has been shaped, and of the manner In which Canadian constitutional problems of today must be viewed. Secondly, a similar attempt has been made regarding the arguments which the Judicial Committee's interpretation has produced, these arguments likewise being thoroughly examined, analysed into basic components, and summarised into a coherent pattern. Thirdly, one particular point of view, badly neglected in the past, has been given special attention. Finally, a great deal of emphasis has been placed on the bibliography, where the intention Is not only to bring together all the major references on this subject, but also to bring these references together in such a way as to Indicate their general character and relative importance. The body of the thesis is divided into seven chapters. Chapter I deals with governmental forms in general and the federal form in particular, the conclusion being reached that the distinguishing feature of a federation is a distribution of legislative powers between coordinate authorities. An analysis of the Judicial Committee's interpretation of Sections 91 and 92 of the British North America Act is then carried out in Chapter II; two fundamental problems are isolated--the problem of residuary powers and the problem of leaky compartments--and the Judicial Committee's solution to them is discovered in the "three-compartment scheme" and the "Aspect,” "Ancillary Powers," "Cooperation," and "Unoccupied Field" doctrines. Two problems requiring special solutions are examined in Chapter III, where it is found that Section 91, subsection 2 and Section 132 have both been severely restricted in scope. Chapter IV contains a legal or textual evaluation of the Judicial Committee's interpretation, and the opinion is given that if the concluding words of Section 91 are a poor support for the "three-compartment scheme," the introductory words prove that the Judicial Committee's interpretation is legally correct. Three different historical arguments are looked into next, after which Chapter V concludes with a negative answer to the question underlying these arguments: has historical reasoning any connexion with statutory Interpretation in the first place? The purpose of Chapter VI being to determine the practical effects of the Judicial Committee's interpretation, an examination is made of the resulting difficulties; it is decided that before any change is contemplated the admittedly unfortunate consequences must be balanced against the necessity of maintaining Canadian unity—and hence of respecting the French-Canadian attitude regarding provincial autonomy. Finally, in Chapter VII a try is made at summarising the main points of the preceding chapters, and a number of recommendations are then offered with one eye on the present and the other on the future. The thesis concludes with an analytical bibliography and an appendix containing a copy of sections 91 and 92 of the British North America Act, 1867.

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