At the time this article was written was
Director of the Research Branch of the Library, Quebec National Assembly. Gary
Levy is Editor of the Canadian Parliamentary Review.
The debate over the distinction between the
terms "Parliament" and "Legislature" can be traced to the
year immediately following Confederation, but it has continued to plague
subsequent generations of politicians, officials and translators.
The British North America Act established a
federal Parliament and provincial Legislatures. In 1868 Ontario passed a law
declaring the immunities and privileges of its Legislative Assembly were the
same as those of the House of Commons. The Act was disallowed on the
recommendation of Sir John A. Macdonald who said that it went beyond the powers
granted to provincial legislatures. Under the BNA Act Parliament could confer
no privileges greater than those enjoyed by the United Kingdom Parliament.
Provincial legislatures, however, were bound by no such limitations and if
Ontario's Act was not disallowed, Macdonald argued, they might attempt to
confer upon themselves and their members privileges in excess of those
belonging to the British Parliament. Ontario's Premier, Stanfield Macdonald,
said that without such a law members would be more feeble than a Justice of the
Peace and the legislature unable to maintain its dignity.
Sir John was adamant on this question but
after his defeat in 1874 Ontario passed another Act which set out the specific
privileges and immunities which the Ontario Legislature was claiming. This time
the federal government did not disallow the Act but the Clerk Assistant of the
Senate, Fennings Taylor, took up the issue in a book published in 1879. He said
the discrimination made by the British North America Act 1867 between
"legislature" and "parliaments" was not an idle one. On the
contrary it drew broad distinctions and carried real meanings whose importance
could scarcely be exaggerated. The Parliament of Canada had been made the
recipient of honours and trusts that had not only been withheld from the
legislatures of the Provinces but which had not, till then, been conferred on
any of the colonies.1
This view was challenged immediately by S.J.
Watson, the Parliamentary Librarian of Ontario. He called it a political heresy
which would make the uninformed believe that these legislatures are little
better than deliberative bodies; that they possess of right, few executive
functions; that their usefulness is a debatable question, and that their
existence may almost be said to depend upon suffrage.2 Watson argued
that the old Assembly of Upper Canada was referred to in official documents as
the Provincial Parliament. Furthermore the Lieutenant-Governor, Lord Simcoe,
had clearly stated in 1792 that the Constitutional Act had established a
British Constitution with all the forms which secure and maintain it.
Fennings Taylor responded that Simcoe had no
authority to make such statements. But according to Watson the great
self-evident fact remains unassailed and unassailable, that the Legislature of the
Province of Upper Canada, as long as it existed, continued to do all things
pertaining to a Parliament. It raised money by taxes, made, enforced and
repealed law; exercised the right to arrest and imprison. In a word the Upper
Canada Legislature, in its local sphere, was as much a Parliament as, in its
Imperial sphere, was the House of Commons in Westminster.3
Years later the debate was still going on
although the participants had changed. In 1943 Arthur Beauchesne, long-time
Clerk of the House of Commons dismissed as worthless the custom of the old
colonial legislatures of calling themselves Parliaments. Furthermore, according
to Beauchesne, the procedure prescribed in the BNA Act for appointing members
to the Cabinet also showed that a real parliamentary system did not exist in
the Provinces, since the Executive Council of a Province is composed of such
persons the Lieutenant-Governor "thinks fit" whereas for the
Dominion, there is a Privy Council, summoned by the Governor General. It is from
that Council the Cabinet is chosen in accordance with the principles of the
Constitution of the United Kingdom.4
Beauchesne's position was attacked
immediately by the Law Clerk of the Quebec Legislature, Louis Phillippe Pigeon.
He countered the argument about rights and privileges with citations from a
dozen different judicial decisions which affirmed that provincial legislatures
are as supreme as any other Parliament in areas of their jurisdiction. As for
the question of appointing Cabinet members he argued that usage is the key
issue. In the Provinces, as in the Dominion, the official lives of the
ministers depend on the Prime Ministers because such is the usage, not because
such is the law.5
In Quebec the distinction between
legislature and parlement is further complicated because legislature has been
used to mean either (1) the Assembly of the Legislative Assembly or (2) the
period for which the assembly is elected. Prior to 1968 the Quebec Legislature
Act defined legislature as consisting of the Lieutenant Governor, the
Legislative Council (Upper House) and the Legislative Assembly. After abolition
of the Legislative Council in 1968 the legislature consisted of the Lieutenant
Governor and the National Assembly.
In December 1982 a new bill was introduced
which goes some way to clarifying this situation. Article 2 of Bill 90
stipulates that the Lieutenant-Governor and the National Assembly constitute
the parlement of Quebec. It further states, in article 6, that legislature is
the maximum five year period following publication in the Official Gazette of
the list of candidates elected in a general election. Thus Bill 90, which
follows recommendations in a report to the Assembly by Jean-Charles Bonenfant,
would seem to have the effect of raising, linguistically at least, the
provincial assembly to the same status as the federal one.
1. Fennings Taylor, Are Legislatures
Parliaments? John Lovell, Montreal, 1879, p. 207,
2. S.J. Watson, `The Powers of Canadian
Legislatures", Rose Belford's Canadian Monthly and National Review, vol. 3
(November 1879) p 519.
4. Arthur Beauchesne, Rules and Forms of the
House of Commons, 3rd edition, Canada Law Book Co., Toronto, 1943, p. XXV.
5. Louis Phillippe Pigeon, "Are the
Provincial Legislatures Parliaments?", Canadian Bar Review, vol. 21
(December 1943) p. 233.