The simple reason disallowance hasn't been used in modern times is that it would likely provoke an immediate constitutional crisis
The power hasn’t been used for decades and some believe it’s now so dormant that is has become unconstitutional. But it’s still there, on paper, as Section 90 of the Constitution Act, 1867.We deliver the local news you need in these turbulent times on weekdays at 3 p.m.By clicking on the sign up button you consent to receive the above newsletter from Postmedia Network Inc. You may unsubscribe any time by clicking on the unsubscribe link at the bottom of our emails. Postmedia Network Inc.
“In addition, the makers of our constitution, in order to prevent the local legislatures from abusing their legislative rights, granted the Central Government the power of annulling provincial legislation,” La Forest wrote. Only Prince Edward Island and Newfoundland and Labrador have never had provincial legislation disallowed.In 1868, Macdonald laid out the four scenarios in which the power might be used.
That was the last time disallowance was used. While little information exists on that particular episode, it was Louis St. Laurent, then-justice minister and future prime minister, who insisted the Alberta law be disallowed, arguing that it conflicts with federal regulation and because St. Laurent believed the “rights and obligations of enemy aliens and who are to be regarded as such should, in wartime, be dealt with exclusively by Federal authority.
The conference ended with a resolution that the power of disallowance be abolished. That never happened, but it does illustrate that this early period of disallowance was not particularly harmonious.Two things happened over the years. The first was that courts came to be seen as “a more appropriate arbiter or umpire of federal-provincial disputes,” said Adams. “That role was not as well marked out, and I think conceptualized, at confederation.
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