The British North America Act of 1867 recorded in its preamble that the Provinces of Canada, Nova Scotia, and New Brunswick had “expressed their desire to be federally united” and then proceeded to give legal effect to that desire. For a long time Canada has been classified as a federal state in contrast to the unitary state which “Legislative Union” would have produced. If, however, Professor F. R. Scott is correct in asserting that “an established convention leaves little doubt that we can amend our constitution whenever a mere majority of our Senate and House of Commons demand it,” Canada has finally joined the ranks of the unitary states, since, as a result of this “established convention,” the provisions of the B.N.A. Act by which “in each Province the Legislature may exclusively make laws in relation to matters coming within” certain “Classes of Subjects” could be altered at will by the Parliament of Canada.

It is true that in making the statement which has been cited, Professor Scott was primarily concerned with showing how completely autonomous Canada has become and not with the federal character of the Canadian constitution. But the example which he selected to illustrate the convention, viz. the opposition of Quebec to the amendment of 1943, was phrased so as to carry the implication that provincial opposition does not matter whatever the nature of the proposed amendment may be. It may well be that the Parliament of the United Kingdom would, in practice, enact any amendment for which the Canadian Parliament asked. But, as we are in the sphere of convention and not of formal law, it is also possible that, as between Canada and the provinces, a convention would be recognized limiting the type of amendment for the enactment of which the Parliament of Canada should ask. As constitutional conventions are apt to be the embodiment of common sense and fair play, and to admit of reasonable exceptions to fit whatever emergencies may arise, it is not impossible that it would be generally recognized as unconstitutional for the Canadian Parliament to ask, without consulting the provincial governments, for an amendment extending its own legislative power and diminishing the legislative power of the provincial legislatures. Emergency action taken in war-time is hardly a complete test for a convention for, as Professor Scott observes, “the demands of total war are such that in the result Canada may almost be said to possess a unitary form of government in war-time (p. 334).” A generous interpretation of constitutional conventions in time of war may well be expected to go hand in hand with a generous construction of the written law by the courts.

“Group Government” was the principle of political organization put forward by Henry Wise Wood, president of the United Farmers of Alberta, 1915-31, at the time that body entered politics in 1919. By the phrase, Mr. Wood meant that political organization should be on an occupational, or functional, basis and that political action by economic groups should replace political parties. As such, the idea had affinities with the doctrines of pluralism and even corporativism. When applied to representative and parliamentary institutions, however, it raised those constitutional issues which are common to multi-party and coalition government. Fundamentally, that is, it came into collision with the principle of cabinet unity. Group government, however, encountered an immediate constitutional problem in the prevalent form of the domination of the legislature by the cabinet, and to this aspect of the matter, the present paper is addressed.

The farmer's movement which followed the slackening of the wheat boom of the first decade of this century was, in its political aspect, a revolt against the party system. The ground for this revolt was that the parties were controlled, it was alleged, not by the rank and file of the voters, but by the party organization, the professional politicians. This small group was in turn said to be controlled by the “interests,” upon whom the parties were dependent for funds. It followed that the parties existed to serve, not the people, but the “interests”; it also followed that there was no difference between the two traditional parties. Hence the need for a people's nonpartisan organization, which would sweep away the old parties, curb the “interests,” and make the will of the people effective. The validity of this analysis need not be examined here; the effect of these beliefs is what concerns us.

In comparison with either Great Britain or the United States relatively little attention has been given to the problems of public utilities by Canadian economists, business men, and governments. In part, this is due to the outstanding success of some of the publicly owned utilities like Ontario Hydro, Toronto Transportation Commission, and Winnipeg Municipal Electric and, at the same time, to the doubtful value of such public enterprises as the Canadian National. Our experience with these concerns has tended to focus attention on individual cases rather than on public utilities as a group.

Another explanation of the comparative neglect of this field of study is the constitutional framework. In the United States, it has been necessary to prove to conservatively minded courts, first, that the business in question comes within the vaguely defined category of public utilities, and then that the rates set by the regulatory commission have not infringed the Fourteenth Amendment that no person shall be deprived of property without due process of law. Under the British system of government, legislation bringing business under government control and the decisions of commissions regarding rates are, within broad limits, accepted by the courts as valid. Thus the virtually continuous litigation over public utility rates in the United States has been absent in Canada.

Despite this relative neglect, Canadian governments have not by any means entirely disregarded the control of public utilities. The federal government has set up the Board of Transport Commissioners which, since 1904, has supervised the rates, fares, and charges of railways under Dominion jurisdiction. For the most part the Board has dealt with relation of rates inter se. Nevertheless, it has occasionally considered the general level and in the main has accepted the revenue needs of the Canadian Pacific as a basis for rates. In effect it uses the prudent investment of the low cost line for rate-making purposes, but it has not attempted to arrive at either an accurate valuation or a precise figure for a reasonable rate of return. It has almost completely avoided the theoretical and practical difficulties of original cost, cost of reproduction new, and other valuation problems.

The present party standing in the Senate is sixty-five Liberals and twenty-six Progressive Conservatives, with five seats vacant. Since the Bennett government left office, thirty-seven Conservative Senators have died or resigned, eleven of them in the last three years alone. As the Progressive Conservatives are, for the most part, among the oldest Senators, it is by no means impossible that, if the Liberals retain office a few years longer, a succeeding Progressive Conservative government may find itself without a single supporter in the Senate. A C.C.F. government would, of course, inevitably be in the same position.

Clearly, any government must have some supporters in the Upper House, if only to move and second its legislation. Would there be any way out of the difficulty short of an amendment to the British North America Act?

The answer would seem to be yes. Normally the Senate is limited to ninety-six. But Section 26 of the British North America Act provides that “If, at any Time, on the Recommendation of the Governor-General, the King thinks fit to direct that four or eight Members be added to the Senate, the Governor-General may by Summons to four or eight qualified Persons (as the case may be), representing equally the four Divisions of Canada, add to the Senate accordingly.” Sections 27 and 28 add: “27. In case of such Addition being at any Time made the Governor-General … shall not summon any Person to the Senate, except on a further like Direction by the King on the like Recommendation, to represent one of the four Divisions until such Division is represented by Twenty-four Senators and no more. 28. The Number of Senators shall not at any Time exceed one hundred and four.” There can be little doubt that a government in the position just described would advise appointment of at least four extra Senators; and there can be equally little doubt that the advice would be accepted.