Gerard Kennedy’s recent post on Roncarelli v Duplessis illustrates the staying power of important Supreme Court of Canada decisions from the Kerwin Court. Another one is the Court’s 1955 Attorney General for Ontario v. Scott decision, which confirmed that Canadian governments could incorporate laws from other jurisdictions if those laws fell in pith and substance under Canadian governments’ jurisdiction. The judges in Scott placed little emphasis on whether the incorporation was anticipatory—adopting future rules that did not yet exist. Today, anticipatory incorporation by reference has important implications for legal pluralism and reconciliation in Canada.
The facts of Scott are simple. Elizabeth Scott had entered into a separation agreement with her husband, John. The Scotts had married in Scotland and had two children before moving to Canada. After their separation, Elizabeth returned to England and John remained in Canada. But John had failed to provide Elizabeth with spousal and child support, and Elizabeth was granted a maintenance order before a court in London under English legislation, the Maintenance Orders (Facilities for Enforcement) Act 1920. She sought to enforce the order in Canada under the Ontario legislation, the Reciprocal Enforcement of Maintenance Orders Act, R.S.O. 1950, c. 334 (the “Act”). In adopting the Act, the province had incorporated English rules—both current and future—to enforce maintenance orders. The legal issue before the Supreme Court was the constitutional validity of the Act. The position that certain provisions were ultra vires Ontario rested primarily on the argument that a province cannot “delegate[] to a foreign legislature the power to enact provincial law.” The trial court dismissed the application and determined that the Act was intra vires. The Court of Appeal for Ontario allowed the appeal.
At the Supreme Court, the judges all agreed that the appeal should be allowed and thew trial judgment restored. Despite the unanimous verdict, there were three separate sets of reasons, perhaps demonstrating the importance of the question at the time. Justice Locke wrote alone, and even the notoriously unprolific Justice Abbott wrote reasons on behalf of himself and Justices Taschereau and Fateaux. Justice Rand wrote for the majority (Kerwin C.J., Rand, Kellock and Cartwright JJ.).
Justice Rand first noted that Ontario had simply “adopted provisions which the law of England prescribes for the relief of a deserted wife.” Without much trouble, he determined that the Act fell under provincial competency and that the arrangement was not an impermissible, binding treaty between a province and state; forming international treaties fell under federal jurisdiction. Moreover, Ontario had not impermissibly delegated legislative powers to England; each legislature had taken discrete, independent action from the other, which is incompatible with delegation. Justice Rand emphasized that “[t]here is no attempt to permit another legislature to enact general, or generally, laws for a province”, which would “obviously be an abdication.” Justice Abbott agreed that the arrangement was “a recognition by the law of the province of rights existing from time to time under the laws of another province or state, in accordance with the well recognized principles of private international law.” Finally, Justice Locke chimed in that it was constitutionally permissible to declare rules “from time to time permissible under the laws of England” to be laws of the province.
The legacy of Scott is remarkable in two interconnected ways. First, Scott remains the leading authority on anticipatory incorporation by reference in Canada. Incorporation by reference occurs when a legislature adopts another statute or set of rules as its own rather than repeat the provisions. Cases before and since Scott provide that a legislature may not delegate legislative authority but may incorporate by reference legislation or rules made by another governing body or administrative agency. (See, e.g., Attorney General of Nova Scotia v. Attorney General of Canada; Reference re Manitoba Language Rights; Wewaykum Indian Band v. Canada). Far less explored in the recent jurisprudence is anticipatory incorporation by reference—that is, incorporation of future laws or regulations that may exist “from time to time” in another jurisdiction. (See also, e.g., Regina v. Gibbery; Coughlin v. The Ontario Highway Transport Board).
This leads to my second point—the use of anticipatory incorporation by reference has shifted over time, and is now used to foster different visions of legal pluralism. Scott was decided in 1955. Canada abolished appeals to the Privy Council in 1949 and stopped using the term “Dominion” in statutes in 1951. Yet, despite this growing independence, many Canadians saw Britain as their spiritual motherland. Canadian courts still relied on Privy Council precedent. It is hardly surprising that the Supreme Court would look favourably upon incorporation of both current and future English legislation by reference: colonial legacies were still at play. As time went on and Canada exercised her fledgling independence, anticipatory incorporation became largely intergovernmental in nature, occurring between Canadian provinces and the federal government. (See Gibbery; Coughlin).
Today, the legacy of Scott has taken on new contours as Indigenous Nations exercise self-government and the federal government incorporates future Indigenous laws as its own. The federal government, with jurisdiction over “Indians and Lands Reserved for the Indians” under s. 91(24) of the Constitution Act, 1867, may incorporate Indigenous laws into federal law. The anticipatory nature of incorporation of Indigenous laws is particularly important. Governments have been criticized for leaving Indigenous communities with the responsibility of developing program administration and management without granting the corresponding funding. Every Indigenous community is different, and some may use federal or provincial laws as a stopgap until the community is “ready” to implement legislation. But, by virtue of anticipatory incorporation, once the community enacts its own law, that law will be automatically incorporated into federal law and will “supersede any conflicting provincial, and most conflicting federal legislation”. The Supreme Court found this process constitutional in a recent Reference.
Canada today is very different from the Canada of yesteryear. In Scott, anticipatory incorporation by reference was used so that a Canadian province could adopt the laws of its liege. Today, anticipatory incorporation by reference has the potential to be used as an anti-colonial tool on the road to reconciliation with Indigenous Nations. All the while, the teachings of Scott remain an important lodestar as Canada continues to create space for legal pluralism.
Nicole Spadotto is a graduate of the McGill University Faculty of Law and is a lawyer in New York. She is a former judicial law clerk at the Court of Appeal for Ontario and the Supreme Court of Canada.
