Abstract
Yet another interpretative formula of the same blood-group as those discussed in the two immediately preceding chapters is the “aspect” or “double aspect” doctrine.
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References
(1883) 9 App. Cas. 117, 130 (P.C.).
[1915] A.C. 330, 339 (P.C.).
Union Colliery Co. v. Bryden, [1899] A.C. 580, 587 (P.C.).
Russell v. The Queen, (1882) 7 App. Cas. 829, 839-40 (P.C.).
Cf. Laskin, “Peace, Order and Good Government” Re-examined, 25 Can. B. Rev. 1054, 1061 (1947), repeated in Laskin, Canadian Constitutional Law, 94 (2nd. ed. 1960); Mundell, Tests for Validity of Legislation under the British North America Act, 32 Can. B. Rev. 813, 836-37 (1954).
The revival of the “aspect” doctrine in A.-G. for Ontario v. Canada Temperance Federation, [1946] A.C. 193, 205 (P.C.) is rather unhappily phrased by Viscount Simon: “In their Lordships’ opinion, the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole … then it will fall within the competence of the Dominion Parliament as a matter affecting the peace order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures.”
Bank of New South Wales v. The Commonwealth, 76 Commw. L.R. 1, 185 (1948) (High Court): The Commonwealth v. Bank of New South Wales, [1950] A.C. 235, 312-13 (P.C.).
Ex parte Nelson (No. 1), 42 Commw. L.R. 209, 218 (1928); Peanut Board v. Rockhampton Harbour Board, 48 Commw. L.R. 266, 283 (1933). Cf. Cam & Sons Pty. Ltd. v. Chief Secretary (N.S.W.), 84 Commw. L.R. 442 (1951).
80 Comm. L.R. 382 (1949). There was dispute here as to whether the acquisition which resulted (from a co-operative scheme between State and Commonwealth for the resettlement of ex-servicemen) was by the State or by the Commonwealth. The majority held that the acquisition was in effect by the Commonwealth, that the Commonwealth could acquire only under Section 51(xxxi) of the Constitution, which requires it to do so on “just terms”, and that as the terms here were not “just” the statutes concerned were invalid. The dissenting opinions took the view that the acquisition was by the State (which is not restricted to “just terms” of acquisition) and an agreement between Commonwealth and State in aid of the resettlement scheme embodied in a federal statute was not a law “with respect to” acquisition. The State legislation was subsequently amended so as to sever the links deemed to exist between Commonwealth and State as regards the acquisition provisions. This amended legislation was held valid: Tunnock v. Victoria, 84 Commw. L.R. 42 (1951); Pye v. Renshaw, 84 Commw. L.R. 58 (1951).
The basic federal power of legislation in Canada is of course “for the peace order and good government of Canada,” the enumerations of Section 91 being originally intended only as a partial illustration of that general power. While this form of wording has had important repercussions on the history of Canadian constitutional jurisprudence, it is not, however, material to the argument put forward at this point. Again, “It may be doubted whether there is a distinction between ‘matters’ and’ subjects’ or whether the ‘classes of subjects’ are more than ‘classes of matters’ … Even the closing words of section 91 refer to ‘classes of matters’ … [T]he ‘classes of subjects’ will be merely accumulations of ‘matters,’ which in fact is all they appear to be.” — Mundell, op. cit., supra, note 5, 32 Can. B. Rev. at 814 note 1.
[1921] 62 Can. Sup. Ct. 424, 460. Cf. Proprietary Articles Trade Assoc, v. A.-G. for Canada, [1931] A.C. 310, 326-27 (P.C.), per Lord Atkin.
Duff J. then goes on to assert that legislation “ancillary” to the enumerated heads of power of Section 91 of the Canadian Constitution may be of a different order. At this point the argument made here, and earlier in Chapter 10, parts company with that of the learned Justice.
9 Wheat, 1, 235, 239 (1824). Cf. Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 582 (1942), per Stone C.J.
37 Commvv. L.R. 36, 135 (1925).
250 U.S. 199, 203 (1919).
Supra, Chapter 7.
340 U.S. 42, 44-45 (1950).
8 Commw. L.R. 330 (1908).
Id. at 354.
Id. at 411.
United States v. E.C. Knight Co., 156 U.S. 1 (1895).
Id. at 16.
E.g., Swift & Co. v. United States, 196 U.S. 375 (1905) — although even here, Mr. Justice Holmes for the Court found a distinction between the E.C. Knight Co. case and the one before him; in the former — “However likely monopoly of commerce among the states in the article manufactured was to follow from the agreement, it was not a necessary consequence nor a primary end. Here the subject matter is sales ….” 196 U.S. at 397. (Emphasis supplied). See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (1948).
52 Commw. L.R. 189 (1935).
Id. at 205-06.
65 Commw. L.R. 373, 424-25 (1942).
Supra, note 11.
Swan Hill Corporation v. Bradbury, 56 Commw. L.R. 746, 756 (1937).
The Commonwealth v. Bank of New South Wales (The Bank Nationalization Case), [1950] A.C. 235, 307 (P.C.).
Australian Communist Party v. The Commonwealth, 83 Commw. L.R.1, 272 (1951).
[1949] A.C. no, 123 (P.C.), quoted with approval in Canadian Federation of Agriculture v. A.-G. for Quebec, [1951] A.C. 179, 200 (P.C.). It is interesting to note that Viscount Simon’s observation purports to be a paraphrase of a dictum by Rand J., in the Supreme Court of Canada below — Reference re Section 6 of the Saskatchewan Farm Security Act, [1947] Can. Sup. Ct. 394, 413. But what Rand J. actually said was something quite different; the distinction he drew was “between consequential effects and legislation [sic] operation.”
Supra, note 31, [1951] A.C. at 195.
[1940] A.C. 838, 849, 853 (P.C.).
Supra, note 13, 9 Wheat, at 188-89.
247 U.S. 251, 277 (1918).
74 Commw. L.R. 31, 79 (1947).
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© 1964 Martinus Nijhoff, The Hague, Netherlands
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Mackinnon, V.S. (1964). Aspect, Pith and Substance, and True Nature and Character. In: Comparative Federalism. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8910-1_11
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