Disallowance and reservation are constitutional powers in Canada that act as a mechanism to delay or overrule legislation passed by Parliament or a provincial legislature. In contemporary Canadian history, disallowance is an authority granted to the King-in-Council (federal Cabinet) to invalidate an act (also called a "statute") passed by a provincial legislature. Reservation is an authority granted to the governor general or lieutenant governor to withhold royal assent from a bill which has been passed by Parliament or a provincial legislature, respectively; the bill is then "reserved" for consideration by the federal cabinet.
In Canadian constitutional law, the powers of reservation and disallowance of federal legislation formally are in section 55 and section 56 of the Constitution Act, 1867,The Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, ss. 55–56. and are extended to provincial legislation by section 90.The Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 90. The initial intent of disallowance, and its practice for the first few years of Confederation, was a means of ensuring parliament enacted legislation compliant with the constitution.
Between 1867 and 1942, when it had the power to do so, the Government of the United Kingdom disallowed one federal law. The government of Canada has disallowed 112 provincial laws, with the most recent instance occurring in 1943 when Alberta's law that limited land sales to Hutterites and other "enemy aliens" was invalidated. The power of reservation has been exercised 21 times by the governor general, all before 1878, and 70 times by various lieutenant governors, with the most recent case in Saskatchewan in 1961 when the lieutenant governor reserved assent on a bill related to mining contracts.
General principles
Canada is a federation comprising the federal government, ten provincial governments and three territories. Federal and provincial authority is derived from the Constitution of Canada. The three territorial governments exercise powers delegated directly by statute of the federal Parliament. Each jurisdiction is generally independent from the others in its jurisdiction of legislative authority. The Constitution Act, 1867 sets out the division of powers between the federal government and the provincial governments.
In Canada, the representative of the King at the federal level is the Governor-General, while the representatives of the King in the provinces are the Lieutenant-Governors. Lieutenant-Governors are appointed by the Governor-General on the advice of the federal government. Collectively, the Governor-General and Lieutenant-Governors are referred to as viceregal representatives. The territorial equivalent to a Lieutenant-Governor is the Commissioner, who is the representative of the federal government in the territory.
Once a bill has passed through Parliament or a provincial legislature, the bill is presented to the Governor-General (or Lieutenant-Governor/Commissioner) for assent on the Sovereign's behalf. Disallowance Disallowance is the decision by a viceregal representative of the Crown to veto an act of the Parliament of Canada, or a provincial or territorial legislature, and the act ceases in legal effect upon disallowance. The authority to disallow an act of the federal Parliament is set out in section 56 of the Constitution Act, 1867, and was held by the Crown-in-Council. As part of the development of the modern Commonwealth of Nations, reforms from 1926 to 1931 recognized that constitutional convention dictated that the government of the United Kingdom was not capable of utilizing disallowance without the approval of the federal Cabinet.
The authority to disallow an act of a provincial legislature is set out in section 90 of the Constitution Act, 1867 and held by the Governor-General acting on the advice of the federal Cabinet (e.g., Governor-General-in-Council). The decision to disallow a provincial act must be made within one year of the Governor-General's receipt of the act from the lieutenant governor. In the territories the enabling acts establishing the territory extend this power to the requisite territory on the same terms as in the provinces.
The power of disallowance is not retroactive, so any action lawfully done under an act's terms before the act has been disallowed remains legal. This principle is outlined in the Judicial Committee of the Privy Council decision in Wilson v. Esquimalt and Nanaimo Railway Co. following Sir Robert Borden's disallowance of an amendment to the Vancouver Island Settler's Rights Act passed by the British Columbia Legislature.
Reservation Reservation is the withholding of royal assent by a viceregal representative from an act of the federal Parliament under section 55 of the Constitution Act, 1867, or an act of a provincial or territorial legislature under section 90 of the Constitution Act, 1867. In the federal context, this meant the Governor-General was formally instructed in certain circumstances to reserve a bill for the Sovereign's consideration, or may do so under their own discretion. That is, the Governor-General would neither assent nor refuse assent to the bill, but would instead refer it to the Secretary of State for the Colonies in the United Kingdom for consideration by the Imperial Privy Council; assent, if then given, would be by the Monarch-in-Council.
Changing use Today, the powers of disallowance and reservation, while still operative, have not been exercised since the 1940s federally and the 1960s provincially. They have never been used in the territories. Comparative public law scholar Richard Albert has argued that both powers have fallen into "constitutional desuetude", which occurs "when an entrenched constitutional provision loses its binding force upon political actors as a result of its conscious sustained non-use and public repudiation by preceding and present political actors". A similar view is shared by Canadian political scientist Andrew Heard who considers the powers reflecting the values of a "bygone era", and no longer align with the Canadian views of federalism. Canadian political scientist Peter H. Russell agrees that the powers have become politically "unusable" as Canadian understanding of federal–provincial relations has moved from a superior–subordinate relationship to one of equals who coordinate with each other.
This is a position contradicted by the deal reached to Patriate the Constitution of Canada, where then-Prime Minister Pierre Trudeau expressly included retaining the powers of reservation and disallowance in the final text in exchange for the creation of the Notwithstanding Clause.
Federal acts
Disallowance of federal legislation
The power of disallowance and reservation for an act of the Parliament of Canada is provided to the King-in-Council (Privy Council of the United Kingdom) under section 56 of the Constitution Act, 1867. The only incidence of the King-in-Council using this authority occurred in 1873 when the Oaths Act, 1873An Act to provide for the examination of witnesses on Oath by Committees of the Senate and House of Commons, in certain cases, S.C. 1873, c. 1. was disallowed. The Parliament of Canada passed the Oaths Act, 1873 in the aftermath of the Pacific Scandal and would have permitted parliamentary committees to examine witnesses under oath, which was not permissible under the British North America Act. The Parliament of the United Kingdom recognized the importance of this issue and passed the Parliament of Canada Act, 1875 which amended section 18 of the British North America Act to provide the Canadian Parliament with the same privileges afforded the Parliament of the United Kingdom, including the authority to examine witnesses under oath. The Canadian Parliament subsequently passed a new Oaths Act.Parliament of Canada Act, 1875, 38-39 Vict., c. 38 (U.K.)
Political scientist Andrew Heard argues that disallowance of federal law has been effectively forbidden by constitutional convention in Canada since 1942 when the Governor General was no longer permitted to forward Acts of the Canadian Parliament to the government of the United Kingdom.
The Constitution Act, 1867 stipulates that the government of the United Kingdom has two years to disallow a law after receiving an official copy of it. However, Canada no longer sends copies of legislation passed by Parliament to the United Kingdom, so an Act of the Canadian Parliament cannot be disallowed under section 56 because it cannot be received by the British government. This convention was further strengthened first by the Letters Patent, 1947, which eliminated the Governor General's obligation to send official copies of laws to the government of the United Kingdom; and secondly by the repeal of The Publication of Statutes Act shortly afterwards.
Reservation of federal legislation
Between 1867 and 1878, twenty-one federal bills were reserved, six of which were denied Royal Assent by the government of the United Kingdom, and no bills have been reserved since. The 1887 Colonial Conference passed a non-binding resolution stating the governor general of a Dominion nation would never use the power of reservation on the instructions of the government of the United Kingdom. These 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 containing provisions that were previously disallowed. In 1876, minister of justice Edward Blake wrote the Secretary of State for Colonies, requesting greater independence, and specifically that Britain would not use the power of reservation. Subsequently, the seventh paragraph of the Royal Instructions was repealed in 1878 on the insistence of Blake, and jurist Gérard 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.
In 1931, the Statute of Westminster removed the power of the Parliament of the United Kingdom to create laws that impacted the dominions, unless the dominions specifically asked for it. This Statute effectively eliminated the obligation for certain laws created by the Canadian Parliament to be reserved by the governor general for the approval of the government of the United Kingdom.
Provincial acts
Disallowance of provincial legislation
The power of disallowance of an act of a provincial legislature is outlined in the Constitution Act in sections 55 and 90, with the authority resting with the governor general in council. Sections 55 and 90 of the British North America Act does not specify whether the authority rests with the governor general or the governor general in council (e.g., federal cabinet). However, the opinion that the authority rests with the governor general in council was affirmed by Earl Granville, Secretary of State for the Colonies in 1869, and later again affirmed in 1879 by Justice Jean-Thomas Taschereau in Lenoir v. Ritchie, and once again by the Supreme Court in the 1938 Reference re Disallowance and Reservation.