THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES FROM The Toronto Law Book Co, Liniitp'l TORONTO i THE LAW OF LFXiISLATIVE POWER IN CANADA BY A. H. F. LEFROY, M.A., (Oxon.), OF THE INNER TEMPLE, LONDOA% AND OSGOODE HALL, TORONTO, 1!ARRISTER-AT-LA\V. TORONTO : THE TORONTO LAW BOOK AND PUBLISHING COMPANY, Limited. 1897-S. Knfered accordiiis to Acl of the Parliament of Canada, in tht- year one thousand fit;ht hiuidred and ninety-seven, liy Aiistisliis Heniy l'"ra/er Lefroy, at the l'c|iartnii.-nt of .\.i;ri( \illnn-. TO THK MEMORY OF Sir John Beverley Robinson, Bart., FORMERLY CHIEF JUSTICE OF UPPER CANADA THIS WORK IS DEDICATED albeit an unworthy tribute by his grandson The Author. 917836 PREFACE. The primary aim I have had in view in writing this book has been to ex- tract from the reported decisions on the British North America Act all that is to be found therein of general application upon the law governing the distribution of legislative power between the Dominion parliament and the various provincial legislatures of Canada, to formulate the results so arrived at in general Proposi- tions, and to point out in the notes thereto the authorities upon which these Propo- sitions respectively rest, all decisions and dicta which illustrate them, and any which are, or appear to be, at variance with them. I have, however, freely resorted also to reports of Ministers of Justice, and other State documents, the verbatim reports of arguments before the Judicial Committee of the Privy Council, and all other sources from which can be derived suggestion or illustration upon the subject dealt with. In this way I have endeav- oured to set forth, in ordered form, and as concisely as possible without sacri- Legislative Power in Canada. ficing completeness, the whole of the law of legislative power in Canada in its present stage of development, and in con- nection therewith the relation of the Crown to the Canadian legislatures. This method of arrangement under general Propositions is, I think, better suited to the complete and systematic treatment and study of this branch of the law, than any arrangement under the various sec- tions of the British North America Act can possibly be, w^hile, by numerous tables, and a complete general index, I have en- deavoured to make the contents of these pages thoroughly accessible for purposes of reference. In an introductory chapter I have en- deavoured to prove that. Professor Dicey notwithstanding, the preamble of the British North America Act states the truth in asserting that Canada is federally united with a Constitution similar in principle to that of the United Kingdom, and have compared the distribution of legislative power between Congress and the States under the United States Con- stitution, with that between the Dominion parliament and the provincial legislatures, PREFACE. with a view to showing' how much, or, as it results, how little help we may hope to derive in the solution of our own prob- lems from the American decisions. In regard to the order of the general Propositions, it will be found that those have been placed first which relate to the British North America Act as a whole, then come those relating to the Crown, then those relating alike to the Dominion parliament and the provincial legislatures, then those relating especially to the Dominion parliament, and, lastly, those relating especially to the provincial legis- latures. Practical necessities have required the printing off of small sections of this book as the same were completed and placed in type. The printing, however, was stopped at the point where it was foreseen that the judgment of the Privy Council on the Liquor Prohibition Appeal, 1895, would have an important bearing, and not con- tinued until after that judgment had been given, so that its contents might be fully embodied in the text.^ For the rest the Privy Council decisions given during the ^ See infra p. 393, n. i. Legislative Power in Canada. period occupied in passing through the press — the Virgo case, the Indian Claims' case, the Brewers' and Maltsters' Associa- tion case, and Fielding v. Thomas — have appeared at periods most convenient for their inclusion in this work ; and, gener- ally, it may be said that the current of judicial decision during the period of printing has in no way materially affected the text.^ However, a table of Addenda will be found which gives some supple- mental citations, but the main object of which is more thoroughly to collate all portions of the text. I would add here that this book, such as it is, would almost certainly never have been written had it not been for the four volumes of Mr. Cartwright's collection of cases under the British North America Act, published by arrangement between the Dominion and Ontario Govern- ments. Such collections enable a man of small means to have in his own library at little cost a great part, perhaps the bulk, of the material with which he has to deal, and to pursue his labours uninterruptedly in the evenings, when alone, it may well 1 The only exception to this statement is the somewhat unimport- ant one referred to at p. 41, n. I. PREFACE. be, the exigencies of the practical work of the profession, especially under our sys- tem, will allow him to do so ; and if it is desired to encourage the production of Canadian text-books on various branches of the la\v, probably no better means can be adopted than for public bodies to fol- low the example of the Dominion and Ontario Governments, and undertake the publication of such collections of the authorities. In conclusion, I may perhaps express the hope that the contents of these pages may be found of some use and interest, not only to those who have to assist in the practical administration of the law with which it deals, but to those who are, or may hereafter be, concerned in devi sing- Constitutions for confederations of our sister colonies in Australia and South Africa, and, indeed, to students of political science generally, since the problem how best to distribute legislative power be- tween central national legislatures and local law-makino" bodies is one of general interest and growing importance. And if I may be considered to have contributed something, however trilling, to a more Legislative Power ix Canada accurate knowledge of the Constitution of the British Empire, I rejoice that my book has reached completion in the Diamond lubilce year of our beloved Queen, dur- ing whose glorious reign the constitu- tional foundations of the Empire have been laid broad and deep by the loyal wisdom of British statesmen and the wise loyalty of British people. A. H. E. Lefroy. Toronto, December i5lh, ii^y?- TABLE OF CONTENTS. PAGE. Table of Abbreviations , i.-iii. Table showing where various sections of the British North America Act are specially referred to iv.-vii. Table of Errata viii. Table of Addenda ix.-xvi. List of Leading Propositions .xvii.-xlii. Introductory Chapter xliii.-lxx. Propositions i to 68, with Notes 1-7/0 Appendix A ']']}^ Appendix B, being portions of the British North America Act 774-'^^ Table of Cases 777-90 General Index 793-825 TABLE OF ABBREVIATIONS* A.R Ontario Court of Appeal reports r Toronto. B.C British Columbia reports : Victoria. B.C. Sess. Pap British Columbia Sessional papers. Bryce's Amer. Comm The American Commonwealth, by James Bryce : MacMillan & Co., "1888. C. A New Zealand Court of Appeal reports. Can. Com. Journ Canada Commons Journal. Can. Hans Canadian Hansard, being ofificial reports of the debates of the House of Commons of the Dominion of Canada : Queen's Printer, Ottawa. Can, Sess. Pap Sessional papers of the province of Canada. Cart Mr. J. R Cartwright's collection of cases decided on the British North America Act, 1867 : Toronto. Cass. Sup. Ct. Dig A digest of cases decided by the Supreme Court of Canada, by Robert Cassels, Q.C. : Carswell & Co., Toronto, 1893. C.L.y The Canada Law Journal : Toronto. C. L.T The Canadian Law Times: Toronto. Con. Stat., N.B Consolidated Statutes of New Brunswick. C.P Upper Canada Common Pleas reports : Toronto. Dall .... Reports of cases in the Courts of Pennsylvania, by A. J. Dallas, 1830-5- Dom. Sess. Pap Dominion Sessional papers: Queen's Printer, Ottawa. Dor. Q. A Decisions of the Court Appeal (Queen's Bench reports) Quebec^ by L. C. W. Dorion : Montreal. Dor. Q.B., Que Same as the last. Ex. C.R.. Reports of the E.\chequer Court of Canada : Ottawa. Gr Reports of cases in the Court of Chancery of Upper Canada, and afterwards of Ontario, by Alex- ander Grant : Toronto. Hannay Reports of cases in the Supreme Court of New Brunswick, by James Hannay, 1870-5 : Fredericton and St. John, N.B. * The references to the English law reports and some few others are omitted from this table as too well known to need explanation. ii. Legislative Power in Canada. Haw. Rep Hawaiian reports : Honolulu. Hodg. Prov. Legisl. Vol. i and 2.. See infra pp. 140, n. 4, 174, n. I. Hodgins' Provincial Legislation, 2nd ed Correspondence, reports of the ^Ministers of Justice, and Orders in Council, upon the subject of Dominion and Provincial Legis- lation, 1867-1895, by W. E. Hodgins, M.A., (5ttawa, l8q6. J.R. N.S.S C New Zealand jurist reports, New Series, Supreme Court. Knox (N.S.VV.) Cases in the Supreme Court of New South Wales, by George Knox, Sydney. L.C.J The Lower Canada Jurist, being a collection of decisions of Lower Canada : Montreal. L.N The Legal News : Montreal. M.L.R.,Q. B Montreal Law reports, Queen's Bench : Montreal. M.L. R-, S.C Montreal Law reports, Superior Court : Montreal. M.R Manitoba reports : Winnipeg. N.B ... New Brunswick reports. N.S Nova Scotia reports. N.S. W New South Wales reports. N.W.T Reports of the Supreme Court of the North-West Territories. O.A.R Ontario Court of Appeal reports : Toronto. Ont. Ses». Pap. . .Ontario Sessional papers : Toronto. O. P. R Ontario Practice reports : Toronto. O. R Reports of decisions in the High Court of Justice for Ontario : Toronto. O.S Upper Canada Queen's Bench and Practice Court reports, old series : Toronto. P. & B Reports of cases in the Supreme Court of New Brunswick, by Wm. Pugsley and G. AV . Burbidge. P. E. I Prince Edward Island reports. P. R Ontario Practice reports. Pugs New Brunswick reports, by Wm. Pugsley. Q. L. R The Quebec Law reports. R. & C . . Russell and Chesley's Nova Scotia reports. Rev, Stats., N.S. . . Revised Statutes of Nova Scotia. R. & G Russell and Geldert's Nova Scotia reports. R.J.Q., S.C Les Rapports Judiciaires Offlcielsde Quebec, Superior Court : Montreal. R.J.Q., Q.B Les Rapports Judiciaires de Quebec, Queen's Bench : Montreal. R. L La Revue Legale : Montrea'. Russ. Eq Russell's Nova Scotia Equity decisions : Halifax. Table of Abbreviations. iii. S.C. R Supreme Court of Canada reports : Ottawa. Staph. Dig Stephen's Quebec Law digest : Montreal. Stockton's Bert G. F. S. Berton's reports of cases in the Supreme Court of New Brunswick, with notes by A. A. Stockton, M.A. : Carswell & Co., Toronto. Stuart Stuart's Lower Canada reports. Todd's Pari. Gov. in Brit. Col.... Parliamentary Government in the British Colonies, by AlpheusTodd, LL.D.,C.M.G., 2nd ed., Longman Green & Co., London, 1S94. U.C.R Upper Canada Queen's Bench re- ports. V.LR Victoria (Australia) Law reports. W. L.T The Western Law Times reports Winnipeg. W.,W. andA'B Wyatt, Webb and A'Beckett's Victorian (Australian) reports. Table of pages of this work where various sections of the British North America Act, 1867, are specially referred to : SECTION 9— 93 4, 193- 1 8 — 749-50- 4 1 — 444. 450- 1 > 5 "-2, 519-20. 64—15 88 704, n. 2. 9 1 (Dominion residuary power) 139, 246-7, 310, n. 2, 316, n. I, 319-20, 330-2, 381-5, 395, n. 2, 396-410, 435-8, 462-3, 478-9» 497-8, 507-9, 516-7, 526, 532-3, 534, n. I, 541-3, 567, 572-81, 649, 657, n., 659, 699, n. I, 712. (Non obstante clause) 308, n. 1,4279, 454, 462, 499, n. No. I — (Public debt and property) 590-606. No. 2 — (Regulation of trade and commerce) 61, 402, n., 408, n. 2, 410-1, 432, n. 2, 479, n. I, 480, 484-6, 504, 550-63, 679 82, 6S6, n., 701-2, 731, n. i. No. 3 — (Taxation) 449, n. 2, 489-90, 720, n. i. No. 7— (.Militia, etc.) 685. No. 9 — (Beacons, buoys, etc.) 577 8. No. 10 — (Navigation and shipping) 212, 562-3, 572, 634, n., 639-43, 660-1, 686. No. II — (Quarantine, etc.) 236-7, 560, n., 659-60, 686, 693. No. 12 — (Fisheries) 24, 52, 562, 5S4-90, 615-6. References to Sections of B.N. A. Act. SECTION 91 No. 15— (Banking, etc.) 4289, 562, n., 571, n., 664, 669, n. No. 18— (Bills and notes) 457-9, 486, 518-9. No. 19— (Interest) 297, 388-90, 421-2, 481, 506-7, 550, n. No. 21 — (Bankruptcy) 209-10, 385-6, 41 1-2, 426 7, 429-30> 436, n. 3, 438-42, 450. 455, n., 513, 518, 531-2, 535, 550, n., 567-71. 573. 597, n-, 628-32, 650, 677-8, 683-5, 687-8. No. 22— (Patents of invention, etc.) 443-4. No. 23— (Copyright) 213-6, 223, n. 2, 225.9, 231, n. I. No. 24— (Indians, etc.) 591-4, 599, n. i. No. 25— (Naturalization and aliens) 459-60. No. 26 — (Marriage and divorce) 488-9. No. 27 — (Criminal law, etc.) 35-7 and Ad- denda, 49-51. 368-9. 378-80, 407-8, 412-5, 419-22, 444, n., 444-5, 447, n. I, 463-8, 484, n. 3, 506, n. 2, 514-5, 534, 549, 6x6, n., 686, n. i, 694-5, 748. No. 29 — (Subjects excepted from Sect 2 596, n., and see sub Section 92, No. 10. Concluding clause. 307-8, and Addenda, 430, n. 4. 454. 572-4. 589. 647-51- SECTION 92 No. I — (Amendment of Constitution) loo-i, 698-9, 746-8, 755, n. I. No. 2— (Direct taxation) 417, 480, 482-3, 456, n. I, 489-91, 561-2, n., 624, n., 642, n., 646, 663-6, 669-80, 713-23. 730, 736-9. 768-9. No. 4 — (Provincial officers) 134, 179-80, 732. No. 5 — (Public lands) 598, 615. No. 6^( Prisons) 732. No. 7 — (Hospitals, etc.) 732, 762. vi. Legislative Power in Canada. SECTION 92 No. 8— (Municipal institutions) 57-60, 140, 398, n. I, 460, 506, 511, n. 3, 521-2, 730, 741, n. I. No. 9— (Shop, saloon, etc., licenses) 268, 53. 54-5. (^-2-^, 264-6, 292, 373, 375-7, 408, n. I, 417-8, 456, 484-6, 541-3, 664, 705-7, 722-30, 732, 738 9. No. 10— (Local works, etc.) 355, n. 3, 391-2, 445-8, 461, 503. 583-4. 596-7, n., 598, 6025, 633, n., 635-6, 641, n., 642-3, 674, 695-6, 739. Ne. II — (Provincial companies) 457-8, 504, 627, 632-5, 637-44, 762. No. 12— (iMarriage) 63, 488-9. No. 13— (Property and civil rights) 18-21, 285-6, Addenda to 330-1, 352-3, 396-7, 400, 410-5, 419-21, 425-54, 458, n., 459-63, 478-9,483,486-7, 501, 502-6, 520, 531-2, 543-4, 594-7, 615-6, 617-28,635-6, 643-4. 686, n., 701-4, 752-68. No. 14— (Administration of justice) 71, 87-8, 137-9, 144, 149, 159, 176, n. I, 240-1, 293, Addenda to 330-1, 411-2, 425-54, 482, 486-7, 518-20, 523-5, 534, 538-40, 597, n., 687-8, 732, 733-4. No. 15 — (Punishment by fine, etc.) 14, 30-1, 35-8, r33, 378-So, 421-2, 463-8, 484, n. 3, 487. 534, n- 2, 660, n. 6, 686, n. i, 690-1, 693, n. 4. No. 16— (Merely local or private matters) 25-6, 305, n. I, 343, 358-60, 360, n. I, 383-5, 395, 397-4". 416-7, 507-9. 561, n., 5656, 578-9, 615, 651-61, 681-2, 684, 712, 730-1, 732, 735-40. oO 218, 250-1. And see Addenda to pp. 250-1, 94 315, n- I, 575, n- 2. References to Sections of B.N. A. Act. vii. 95 460, n. 96 69-71, 128, 162, 175, 3S7-8, 513, n., 521, n., 522-5, 672, n. 101 — 321, 515. "• i> 518-20, 572. 102—609. 108 And Schedule 3. 5S6-7, 590-3, 598-606. 1 09 591-2, 594, n., 606-16, 678-9. 1 1 1 612, n. 112 612, n. 117 — 584,600. 121 731. 737- 122 402, n., 616, n., 680 2, 731. 124—730. 125 614, n. 3. 129—68, 366 70, 513-4- 132 21S, 255-9, 375, n- 2. 136—1145. 142 612, n. TABLE OF ERRATA. Page 20, n. 4. For 'constitution' read 'constitutions.' " 127, n. 2. Insert the word ' case ' after the word ' Association. " 130, n. 3, first line. For 322 read 222. " 140, last line. For ' Hodgin's ' read ' Hodgins'. " 173, n. I. For '15 V.' read ' 15 V.L.R.' " 231, n. I, last line but two. For 'March 29th' read 'March 25th.' " 267, n. 2. For '7 O.A.R.' read '7 O.R.' " 267, n. 3, last line but one. For * that is' read 'that it is.' " 310, third line after Proposition. For ' unrestrictive ' read ' unrestricted.' " 402. For ' Prop. 85 ' in margin read ' Prop. 35.' For ' Note 2 ' in sixth line from bottom read ' Note i.' " 410. For 'License Act' in last line but one of text read ' Insurance Act.' " 463, n. I, twelfth line. For ' Watson ' read ' Wason.' " 480. For 'other ' in last line of text read 'others.' " 559. For ' pp. 339' in eleventh line of notes read 'pp. 399.' " 615. For ' No. 9 of section 92 ' in ninth line read 'No. 5 of section 92.' " 656, n. 3. For ' exp ' read ' esp.* TABLE OF ADDENDA * Page 4, n. I. and 12-14. ^^■'^ '^ '^e British North America Act being the reduction into legislative form of a compact or treaty, and the propriety of referring to the (Quebec Resolutions in construing it, cf. per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at pp. 204-10, (1895); per Sedgewick, J., 8.C., at p. 231 et seq. Pope's Confederation Documents (Toronto, 1895) gives very imperfect minutes of the discussion at the con- ference at Quebec. Pag^es 2I-4O. In connection with Proposition 3, see, also, per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at pp. 232-6, (1895) ; also, S.C., at pp. 175, 177-8. See, however, infi-a, p. 552, n. I. Page 25. See pp. 652, 73041. Page 26. As to taxation by licenses being direct taxation, see pp. 361, n. 2, 723-4. Page 27, n. i. See pp. 725-6. Pages 35-7. On the argument on the Liquor Prohibition Appeal, 1895, Lord Herchell is reported as saying of No. 27, of section 91 : — " It is all [he criminal law in the widest and lullest sense, No.'27, except that part of it which is necessary for the purpose of enforc- ^f'i': '^< ing, whether by fine, penalty or imprisonment any of the laws validly made under the sixteen clauses, under which laws are to be made by the provincial parliament " : Printed report at pp. 2S0-1. See infra, p. 398, n. I. Page 40, n. i. See p. 748. Pages 4I-7I. See snpra Addenda to pp. 21-40 which apply also to Proposition 4. Pao'e 45. As to No. 8 of section 92, see p. 398. n. i. And as to wholesale licenses, see pp. 719-20, 726-30. Page 4^, n. I. Cf. per Taschereau, J., in Huson v. The Town- ship of South Norwich, 24 S.C.R. at p. 165, (1895). But see infra, p. 398, n. I. Page 46, n. I. And cf. per Strong, C. J., in Huson v. The Township of South Norwich, 24 S.C.R. at pp. 150-I, (1895). But see infra p. 398, n. T. Pages 47-49. As to No. 8 of section 92, see p. 39S, n. i ; and as to No. 9 of section 92, see pp. 723-30. Page 51. See Thomas v. Haliburton in appeal, sub noui.. Field- ing V. Thomas, [1896] A.C. 600, infra pp, 746-50. Page 52. As to No. 12 of section Qi, s-.e pp. 562, 584-90, 615-6. Page 54. As to No. 8 of section 92, sec p. 398, n. i. Page 55, n. I. Add : " infra pp. 705 9." *As to this table of Addenda, see the Preface. X. Legislative Power in Canada. Power to appoint Queen's counsel. Pa^e 56, n. 2. Add : "And see per King, J., in In re Prohibi- tory Liquor Laws, 24 S.C.R. at pp. 259-61, (1895) ! P^r Strong, C.J., in Iluson v. 1 he Township of South Norwich, 24 S.C.R. at pp. 150-1 ; per Taschereau, J., S.C, at p. 152, et seq. But as to No. 8, of section 92, see infra p. 389, n. i." Pages 57-61. See p. 398, n i. And cf. per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at pp. 223-4 ; per Sedge- wick, J., S.C, at p. 243, et seq. ; per King, J., S.C, at pp. 2S9-6I. Pages 6 1 -3. Cf. per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 217, per Sedgewick, J., S.C, at pp. 231, 237- Page 64, n. I. See pp. 746-9- Pages 64-g. See pp. 741-9- Pages 72-86. As to Crown's priority see, also, Att. General v. Clarkson, 15 O.K. 632 ; Re Bentinckz;. Bentinck, [1S97], Ch. 673. Page 81, n. I. For the recent Shortis case, where the Gover- nor-General pardoned, the Council abstaining from advising one way or the other, see 32 C.L.J. 53. Pages 87-8. As to the power to appoint Queen's Counsel, and the Ontario statute permitting a Superior Court judge to depute a Queen's Counsel to perform judicial duties see, In re Queen's Counsel, 23 O.A.R. 792, (1896), an appeal in which has been argued before the Privy Council and stands for judgment, and an Article in 33 C.L.J., 178. Page 100, n. 2. As to No. I of section 92, see, also, pp. 698-9, 746-8, 755, n. I. Pages 1 1 1- 1 5. Cf. In re Queen's Counsel, 23 O.A.R., at pp. 799,. 801-3, 805. Page 115, n. Seep. 320, n. I. Pages 123-84. As to Propositions 8 and 9, see the Indian Claims case, [1897] A.C, at p. 212; Mowat v. Casgrain, R.J.Q. 6 Q-B., at pp. 22-4, (1897) : In re Queen's Counsel 23 O.A.R. at pp. 799, 801-3, 805, (1896) ; and infra p. 594, n. Page 126, n. 2. See p. 586, n. I. Page 127, n. 2. See p. 457, n. 2. Page 128, n. i. See pp. 159, 165. Page 159. See pp. 128, n. i, 165. Page 161. See pp. 522-5. Page 164, n. I. See pp. 522-5. Page 165. See p. 128, n. i. Page 174, n. I. This refers to the first edition of Mr. Hodgins' work. Since it was printed a second edition, bringing the reports to the year 1895, has been published ; and from p. 446 onwards of this work the references are to the second edition. Page 176, n. I. See Thomas t^. Haliburton in appeal, j?^^ «(7w., Fielding v. Thomas, [1896] A.C. 600, and infra p. 748, n. I. Table of Addenda. xi. Pages 181-4. See the note of Kennedy z>. Purcell in the Addenda to pages 51 1-2, infra. Pages 208-31. In connection with Proposition 12 it may be noted that a long letter appeared in the Times of June 1st, 1876, by Historicus, (doubtless Sir W. Vernon-Harcourt), arguing stren- uously that there was no renunciation of the paramount author- Paramount r 1 T -1 1- 1 1 T-. • ■ 1 TVT 1 A • » . authority of ity 01 the Imperial parliament by the British North America Act, imperial 1867, and showing that this view had been uniformly adopted parliament, and acted upon by both the Home and the Canadian authorities. The occasion of the letter appears to have been some pending Merchant Shipping It-gislation. It was reprinted in the Toronto yJ/a?7 of June 13th, 1S76. The subject was also discussed in a leading article in the 7 twes o( \he same date, also reprinted in the Mail, and in one in the London Standard of June 3rd, 1876, re- printed in the Toronto Mail o\ June I7ih, 1S76. Page 209. In the letter of Historicus ju^t above referred to in these Addenda, he says of the Colonial Laws Validity Act, 1865 : "It applies to the Dominion legislature of Canada as much as to the representative legislature of any other colony. It is only the declaration of that which has always been the law, {vide 7-8 Will. 3, c. 22, s. 10, and 89 Vict. c. 93, s. 63), and always must be the law between a colony and its metropolis." Cf., also, 6 Geo. 4, c. 114, s. 49 ; and see infra, pp. 746-9. Page 212. See p. 642, n. and Addenda thereto infra. Page 223. As to Sir J. Thompson's contention, cf. in reference to the Constitutional Act, 31 Geo. 3, c. 31, Gordon v. Fuller, 6 O.S. at pp. 182, 187, 192-3. Page 243, n. 3. See 24 S.C.R. at pp. 204-10, 231 et seq., (1895). Pages 25O-I . For a useful review of the various decisions in refer- ence to power over education under section 93 of the British North po^^gr over America Act, see Mr. Wheeler's note to that section in his Con- education federaiion Law of Canada, at pp. 332 88, in which he gives a very under sect, full report of the New Brunswick School case before the Privy |3^ ^ ^^^ Council. And as to the futility of a provincial legislature attempt- ing to fetter its own future action, see the report of Sir John Thompson, of February 17th, 1894: Hodgins' Provincial Legis- lation, 2nd ed., at pp. 1227-S. Pages 254-5. As to its not being necessary that taxation should be equal, see p. 720, n. i. Page 256. It would seem from Wheeler's Confederation Law of Canada at p. 122, that there was an unsuccessful application made to the Privy Council for leave to appeal in Regina t'. Wing Chong. Page 2^7, n. 2. Walker z'. Baird is reported below, before the Supreme Court of Newfoundland, at p. 490 of Newfoundland Decisions ; see i}ifra Addendum to p. 321, n, 5. The judg- ments draw a distinction between treaties of peace "which are Treaties and binding upon the nations even to the extent of the alienation of the Acts of vested rights of subjects," and such a modus vivendi as was there State, in question, which " stands upon a different footing as regards the constitutional rights of the subject," and the statement in Sir James Stephen's History of the Criminal Law, (Vol. 2, p. 61), that " the doctrine as to act's of State can apply only to acts which Xll, Legislative Power in Canada. Treaties and Acts of State. Territorial limits of colonial jurisdiction. affect foreigners, and which are done by the orders or with the ratification of the Sovereign. As between the Sovereign and his sulijects there can be no such thing as an act of State. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals " — is referred to and relied on. And authorities are collected showing that an action will lie for a tortious act, notwithstanding it may have had the sanction of the highest authority in the State. The case came up on the pleadings, and the Court held that merely setting up that the trespass complained of was an act of State committed under the authority of the modus viveudi with France was no sufficient answer to the action ; and the Privy Council on appeal briefly expressed their concurrence : [1892] AC. 491. Page 260, n. I. And see per Tuck, J., in Wilson v. Codyre, 26 N.B., at pp. 524-5, (1886) ; and infra pp. 303-4. Pages 273-6. In their recent judgment in the Liquor Prohibition Appeal, 1895, [1896] A.C., at p. 363, the Privy Council say that they are unable to regard the prohibitive enactments of the Canada Temperance Act, 1S86, as regulations of trade and commerce, thus removing any doubt as to their view resulting from their words in Russell v. The Queen, 7 App. Cas. at p. 842, 2 Cart. at p. 26. Page 291, n. 3. As to similar provisions in the Constitutions of several States of the Union, see Cooley on Constitutional Limit- ations, 6th ed., pp. 169-74. Page 292, n. I. But see p. 398, n. i. Page 294, n. 3. See pp. 61S-26 as to provincial law in relation to Dorninion, Imperial and foreign corporations. Page 308, n. I. Add -. " See especially pp. 647-9 infra, from which it appears that on the recent Liquor Prohibition Appeal, 1895, l^^s Privy Council have very much supported Gwynne, J.'s reachng of the clause in question. See, however, z/z/^a pp. 650-1." Page 320. See further as to legislation in reference to 1 ail way crossings, p. 399, n. i, and Addenda, and pp. 445-6. Page 321, n. 5. in two cases reported in the recently published volume of Newfoundland Decisions, (J. W. Withers, Queen's Printer, St. John's N.F., 1897), the question of the territorial limits of the jurisdiction of the local legislature is discussed, and found to extend to, but not beyond, three miles outside of a line drawn from headland to headland of the bays of Newfoundland. The first is Rhodes v. Fairweather, p. 321, (1888), and was an action for penalties against the master of a British ship, registered in Scotland, for killing and taking on board seals previous to the date fixed by the legislature of Newfoundland for sealing, the seals in question having been all taken outside the above limits. The ship was British owned, and registered in Scotland, where the owners and master resided, and also several of the crew, who were engaged there. She cleared from St. John's for the seal fishery, and returned there after the voyage for the purpose of manufacture and shipment. Cirter, C.J., after referring to Im- perial Acts in reference to offences committed on board British ships, says, at p. 325: "His the legislature of this colony authority to pass an Act conferring jurisdiction of the like char- Table of Addenda. xiii. acter over persons on board a ship on the high seas beyond colonial limits, whether registered in this colony or other British port ? I apprehend it has not. Then by what authority can it prohibit or confer the right of killing seals beyond its territorial limits? The Terta Nova," (the defendant's ship), " is a ship of the British nation, and as s'ich the Imperial parliament would unquestionably be competent to give etlect to an Act prohibiting Territorial with penalties the killing of seals or such like, at a specified time, limits of anywhere over the sea, by persons on board said ship, but that is f°!?"'.^' J."''" from supreme, and unlike colonial limited, authority. Little, J., NewfounJ- at p. 343, after referring to the class of Imperial Acts above men- land, tioned, says : " This sovereign authority rendering the subject amenable under such circunist; nces to Imperial laws is inher- ent in the State or nation ; and, as a colony is only a part of the Slate which created it, it is obvious it cannot exerci: e these powers which pertain alone to the nation or State creating it." Still he is less positive in denying the power of the legislature in such a case as that before the Court, saying rather that the statute should not be construed to apply to such a case in the absence of any express language showing an intention on the part of the legislature that Us provisions might operate beyond the territorial limits of the colony. Pinsent, j., thought the defendant should be held liable. He says at pp. 333-4 : — " I take it to be a sound doctrine, as a general proposition, that the limits of colonial juris- diction extend to only three miles from the shore, and that a colonial legislature cannot confer a jurisdiction beyond its terri- torial limits, but here the exercise ol the jurisdiction is upon per- sons and things within the limits, although it maybe for acts done in violation of our law outside those limits. . . We have here to guard against confounding the territorial limits of the government The three with the power of legislation over persons and things, between mile limit, which there is no necessaiy coincidence, except as to the place of putting the law in execution against persons who owe subjection to it." In his opinion the defendant, his ship, and ship owners bore such a relation to the colony that the legislation was itiira vires to control them in their fishing operations, even when outside the three-mile limit. But he says, at p. 334 : " If the case now be- fore us were (me of a foreign cruiser at sea, prosecuting the busi- ness from a foreign port, and taking seals outside the colonial limits, there could be no doubt the Act would have no application." The second case is that of Queen v. Delepine, ibid, at p. 378, {1889), where the defendants (foreign fishermen) were proceeded against before a magistrate for violation of the Newfoundland Bait Act, 50 Vict. c. I, namely, purchasing bait fishes for expiDrt- ation and bait purposes, without having taken out the license pro- vided for in the said Act. Here, too, it was held that the territorial jurisdicti(jn of the local legislature extends to three miles outside a line drawn from headland to headland ; and, as in Rhodes v. Fairweather, special reference is made to Anglo- American Tele- graph Co. V. the Direct United States Co., a decision of Hoyles, C.J., to that effect, affirmed in appeal to the Privy Council : 2 App. Cas. 394, (1877). See, also. The Ship Frederick Cerring, Jr. V. The Queen, 27 S.C.K. 271, (1897). Page 327, n. I. The case referred to by Mr. Todd, ad he. cit., is doubtless Jn re Gleich, I O.B. & F, (New Zealand Supreme Court) 39, (1S79). xiv. Legislative Power in Canada. Page 329, n. 2. See the words of Dorion, C. J., in Proposition 45, at p. 510, infra ; also see Addenda to p. 321, n. 5, supra. Pages 330-1. As to the power attributed to the New Zealand legislature by Ashbury v. Ellis, residing in our provincial legis- laiures under Nos. 13 and 14 of section 92 of the British North America Act, see Stairs v. Allan, 28 N.S. 410, at pp. 418-9, (1896) ; McCarthy v. Brener, (N.W.T.), 16 C L.T. 201, (1896). Page 333, n. 5. See pp. 757-62. Pages 333'^- -^"^ ^^^ "°"' confirming the conclusions arrived at in the text. Re Criminal Code sections relating to Bigamy, 27 S.C.R. 461. Page 343. As to No. 16 of section 92, see also, pp. 652-3. Page 343, n. 3. See, also, pp. 655-61. Page 348, n. I. Seep. 393, n. I. Pages 350-2. See pp. 399-401. Page 352. As to No. 8 of section 92, see p. 39S, n. i. Pages 358-60. See pp. 399-401, 408-10, 507-9. Page 360, n. 2. Cf. Richer v. Gervais, R. J. Q. 6 S. C. 254, (1894), where it was held that a Dominion Act declaring a non- juridical day must be interpreted as relating only to Dominion matters. And as to the term ' police regulations,' see infra p. 556, n. 2. Page 361, n. 2. See Lambe v. F^ortier, in App., R.J.Q. 5 S.C. 355, 25 S.C.R. 422 ; and see infra pp. 723-4. Pages 365-6. In connection with Propositions 29-32, see, also, pp. 530-1. Pages 366-8. As to the Dobie case, see, also, infra pp, 760 5. Page 396, n. 4. Add: "And Sauve v. The Corporation of Argenteuil, 21 L.C.J. 119,(1876)." Pages 369, n. 5. See pp. 399 401. Page 372. In connection with Proposition 33, see, also, pp. 437-8. Pages 375-6. And see pp. 718-20 Page 378, n. 4. See pp. 399-401, 558, "• 2. Page 383, n. 7. See the deci.sion of the Privy Council reported, [1896] A. C. 348. Page 385, n. 2. See especially at pp. 399-401, 408-10. Pages 385-6. See pp. 567-71. Page 391, n. I. See pp. 746-50 for the Privy Council decision sub nom., Fielding v. Thomas. Page 393, n. I. For 65 L.J. 26, read [1S96] A.C. 348. Page 395, n. 2. For 65 L.J. at pp. 33-4, read [1896] A.C, at PP- 362-3. Page 398, n. I. For 65 L.J. at p. 34, read [1896] A.C. at pp. 363-4- Table of Addenda. xv. Pagfe ^QQ, n. I. For 32 C.L.J. 415, read 27 O.K. 559; and as Railway f> ujy^ r L n -1 r^ ■^. f .1. crossines to railway crossings, and powers of the Railway Committee of tfie ^^^ ^^° Privy Council, see, also. Grand Trunk R.W. Co. v. 1 larnilton Railway Radial Electric R.W. Co., 33 C.L.J. 436, I7 C.L.T. 220, (1897), committee. Page 399, n. 2. For 65 L J. 26, read [1896] A.C. 348. Pace 400 n. I. As to the distinction between wholesale and re- tail, see pp. 726-30. Page 401, n. I. For 65 L.J. at p. 3S, read [1896] A.C, at p. 371. Page 401, n. 2. See pp. 579-80. And cf., as to laws against gambling, Regina z'. Keefe, I N.W.T. (No. 2), 86(1890) ; Regina V. Fleming, 15 C.L.T. 244, (1895) ; noted infra p. 414. Page 403, n. I. As to wholesale and retail, see pp. 726-30. Page 407, n. I. For 65 L.J. at p. 32, read [1896] A.C. at p. 360. And see infra pp. 551-9. Page 409, n. I. For 65 L.J. at p. 33, read [1896] A.C. at pp. 361-2. Page 411, n. 3. See last Addendum. Page 414, n. 4. And if. Kitchen v. SaviUe, 17 C.L.T. at p. 91, "(1897). Pages 441-2. See pp. 518-9. Pages 445-6. See the Addenda to p. 399, n. i. Page 446, n. See pp. 596-7, n. Pages 463-8. See Reg. ex rcl. Brown v. Robert Simpson Co., 28 O.R. 231, (1896). Page 465, n. I. See Addenda to p. 360, n. 2. Page 486, n. I. See Proposition 53, and pp. 5S4 90. Page 504- And see per Davidson, J., in Ileneker v. Bank of Montreal, R.J.Q..7 S.C. at p. 263, (1895). Pages 507-9. See pp. 651-61. Pages 51 1-I2. As to Valin v. Langlois see also Kennedy v. Pur- Appeals to cell, before the Privy Council, July 7ih, 1888, noted at length in ^"^'J' . . Wheeler's Confederation Law of Canada, at pp. 314-7, refusing j.]°"";q'„ '" leave to appeal from the decision of the SuprenieCourt of Canada matters, in a Dominion Election matter, and ci'ing in supjjort Thel)erge ?.'. Laudry, 2 App. Cas. 102, 2 Cart, i, (1876), and Valin v. Langlois, but not deciding any more, than in those cases, the abstract ques- tion of the prerogative right to entertain an appeal in such a matter. Page 517. See p. 677, n. and Addendum thereto infra. Pages 519-20. .'^nd see McLeod v. Noble, 33 C.L.J. 533, 569,(1897). Page 520. As to the Railway Committee of the Privy Council, see supra Addendum to p. 399, n i. Pages 538-9. See Addendum to pp. 519-20 5«/m. XVI. Legislative Power in Canada. Provincial Acts in rela tion to Dominion railways. Ships and their port of registry. Page 561, n. As to Acts respecting game see pp. 654-5 ; and as to the reference to The Liquor Prohibition Appeal, 1895, [1896] A.C. at p. 36S, see pp. 755-6. Pages 562-3. See p. 641, n. Pages 578-g. See pp. 655-61. Page 594, n. ForMowat V. Casgrain, see now R.J.Q. 6Q.R. 12, (1897), and for the Indian Claims case, see [1896] A.C. 199. Page 595, n. But as to ' acts of State ' see the Addenda to p.257, n. 2, supra. Pages 596-7, n. In connection with Monkhouse z/. Grand Trunk R.W. Co., see now Washington v. Grand Trunk R.W. Co., 24 O.A. R. 183, (1897), at pp. 185-6, where Osier, J. A., cites it and says: — " The corresponding enactments of the Workmens Com- pensation for Injuries Act, 49 Vict. c. 28, s. 4, O., 55 Vict. c. 30, s. 5, O., must also, in my opinion, be confined in their appli- cation to the former class of railway companies," {sc- those which are within the jurisdiction of the provincial legislature), " and for the same reason, namely, that they relate to the construction or arrangement of the railway track itself." And he distinguishes Canada Southern R.W. Co. v. Jackson, 17 S.C.R. 316, as relating to other provisions of the Workmens Compensation for Injuiies Act dealing with the general law of .Master and Servant. Page 608, n. I. As to the three mile limit, see the Addenda to p. 321, n. 5, supra. Page 612, n. For 66 L.J. (P.C.) 11, read [1S96] A.C. 199. Page 623, n. I. As to the validity of a provincial Act forbidding the transfer of property till taxes paid, and its applicability to bank shares, see Heneker ;v. Bank of Montreal, R.J.Q. 7 S.C. 257, (1895). And as to provincial licensing of private or unincorpor- ated banks being tiltra vires as contrary to the intention of the Bank Act, see Hodgins' Provincial Legislation, 2nd ed., at p. 1268. Page 624, n. 2. For the Brewers' and Maltsters' Association case, see now [1897] A.C. 231. Page 642, n. in a case of Rhodes v. Fairweather, Newfoundland Decisions, at p. 337, (1888), (see the Addenda to p. 321, n. <:,, supra), where a question aiose as to the power of the local legislature to control fishing operntions outside the three mile limit, and it appeared that the ship of the defendant, who was being prosecuted imder such a laiv, was registered in Scotland, .and not in New- foundland, Pinsent, J., said that in his opinion no point could be made of that lact. It was immaterial in what port a British vessel might be registered, she would be a British ship everywhere and entitled to the same privileges and subject to the same obligations. Most or many of the ships owned or engaged in the commerce of the colony were registered in Great Britain. The point was, in what business were they employed, and to what laws were they for the time being subject. Pages 654-5- "^^ ^" '■^'^'^ respecting game, see p. 561, n. Page 677> n. Cf. as to taxing soldiers and sailors, per Robin- son, C. [., in Tully v. The Principal Officers of Her .Majesty's Ordnance, 5 U.C.R. at p. 14, (1847). Pages 759-60. A'' to 'lie locality of a debt see, also, Henty v. The Queen [1896], A.C. 567. LIST OF LEADING PROPOSITIONS LEADING PROPOSITIONS. 1. The British North America Act is Pages. the sole charter by which the rights claimed by the Dominion and the Prov- inces respectively can be determined. 2. Although the British North Ameri- ca Act was founded upon the Quebec resolutions, and so must be accepted as a treaty of union between the provinces, yet when once enacted it constituted a wholly new point of departure, and estab- lished the Dominion and Provincial Governments with defined powers and duties, both alike derived from it as their source. 1-20 3. Courts of law must treat the pro- visions of the British North America Act by the same methods of construction and exposition which they apply to other statutes [of a similar character, that is to say, statutes conferring constitution- al charters]. The British North America Act cannot be construed in a rigidly technical manner. 21-40 4. The state of legislation and other circumstances in the various provinces of the Dominion of Canada prior to xviii. Legislative Power in Canada. Pages. Confederation may sometimes have to be considered in determining the construc- tion of the clauses of the British North America Act respecting the distribution of legislative powers, as may also the 40-71 character of legislation in England itself. 5. The prerogative of the Crown runs in the colonies to the same extent as in England, and no distinction can properly be drawn between the rights and preroga- tives of the Crown suing in respect of Imperial rights, and the rights of the 72-86 Crown with regard to the colonies. 6. Her Majesty's prerogative rights over the Dominion of Canada as the fountain of honour have not been in the least degree impaired or lessened by the 87-89 British North America Act. 7. The Lieutenant-Governors of Prov- inces, when appointed, are as much the representatives of Her Majesty for all purposes of Provincial Government as the Governor-General himself is for all 90-122 purposes of Dominion government. 8. Executive power is derived from legislative power, unless there be some 123-176 restraining enactment. 9. The Crown is a party" to and bound List of Leading Propositions. xix. by both Dominion and Provincial statutes, Pages. so far as such statutes are intra vires, that is, relate to matters placed within the Dominion and Provincial control respec- tively by the British North America Act. 176-184 10. The possession by the Federal Government of the veto power over Provincial legislation is a special feature of the Constitution of the Dominion of Canada, which distinguishes it from the Constitution of the United States of America. 185-203 11. No consent or acquiescence of the Crown by non-exercise of the veto power, or otherwise, can render valid an Act otherwise ultra zrires and unconstitutional under the British North America Act. 204-207 12. The powers of legislation conferred upon the Dominion Parliament and the Provincial Legislatures, respectively, by the British North America Act are con- ferred subject to the sovereign authority of the Imperial Parliament. 208-231 13. The power of the Imperial Parlia- ment in the matter of the creation and distribution of colonial legislative powers is supreme, and no Colonial Secretary has ex officio a right by a despatch, or other- ^^- Legislative Power in Canada. Pages, wise, either to add to, alter, or restrain any of the legislative powers conferred by the British North America Act, or indeed by any Act, or to authorize a subordinate 232-236 legislature to do so. 14. The declarations of the Dominion Parliament are not, of course, conclusive upon the construction of the British North America Act ; but when the proper con- struction of the language used in that Act to define the distribution of legisla- tive powers is doubtful, the interpretation put upon it by the Dominion Parliament in its actual legislation may properly be considered. And the same applies a fortiori where the Provincial Legislatures have by their legislation shown agree- ment in the views of the Dominion Parlia- ment as to their respective powers. In like manner the views acted upon by the great public departments, as expressed in Imperial despatches, or otherwise, carry 236-241 weight in the absence of judicial decision. 15. It is clear that if the Dominion Parliament or a Provincial Legislature do not possess a legislative power, neither the exercise nor the continued exercise of a power not belonging to them can confer 241 it, or make their legislation binding. List of Leading Propositions. xxi. 16. The Federal Parliament cannot pages. amend the British North America Act, nor, either expressly or impliedly, take away from, or give to, the Provincial Legislatures a power which the Imperial Act does, or does not, give them ; and the same is the case mutatis mutandis with the Provincial Legislatures. 242-243 17. Neither the Dominion Parliament nor Provincial Legislatures are in any sense delegates of, or acting under, any mandate from the Liiperial Parliament. When the British North America Act enacted that there should be a Legislature for each Province, and that its Legislative Assembly should have exclusive authority to make law^s for the Province and for Provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament, in the plenitude of its power, possessed and could bestow. And so with the Dominion Parliament, with respect to those matters over \vhich legislative authority is conferred, plenary powers of xxii. Legislative Power in Canada. Pages- legislation are given as large, and of the same nature, as those of the Imperial 244-259 Parliament itself. 18. It is not to be presumed that the Dominion Parliament has exceeded its powers, unless upon grounds really of a serious character ; and so, likewise, in respect to Provincial statutes every pos- sible presumption must be made in 260-269 favour of their validity. 19. If it be once determined that the Dominion Parliament or a Provincial Legislature has passed an Act upon any subject which is within its jurisdiction to legislate upon, its jurisdiction as to the terms of such legislation is as absolute as was that of the Parliament of Old Canada, or as is that of the Imperial Parliament in the United Kingdom, over a like sub- 27o-272ject. 20. If the Dominion Parliament or a Provincial Legislature legislates strictly within the powers conferred, in relation to matters over which the British North America Act gives its exclusive legislative control, we have no right to enquire what 273-278 motive induced it to exercise its powers. 21. When once an Act is passed by the List of Leading Propositions. xxiii. Dominion Parliament or by a Provincial pages. Legislature in respect to any matter over which it has jurisdiction to legislate, it is not competent for any Court to pronounce the Act invalid because it may affect in- juriously private rights, any more than it would be competent for the Courts in England, for the like reason, to refuse to give effect to a like Act of the Parliament of the United Kingdom. If the subject be within the legislative jurisdiction of the Parliament, or of the Provincial Legis- latures, respectively, and the terms of the Act be explicit, so long as it remains in force, effect must be given to it in all Courts of the Dominion, however private rights may be affected. 279-288 22. Although part of an Act either of the Dominion Parliament or of a Provin- cial Legislature may be ultra vires, and therefore invalid, this will not invalidate the rest of the Act, if it appears that the one part is separate in its operation from the other part, so that each is a separate declaration of the legislative will, and unless the object of the Act is such that it cannot be attained by a partial execu- tion. 289-299 XXIV. Legislative Power in Canada. __Zf£?!i_ 23. A transaction which is ultra vires of the parties to it can derive no support from an Act which is itself ultra vires of the legislature passing it ; nor will the right of those affected by it, to treat it as of no legal force or validity, be interfered with by such an Act. So likewise in- capacities imposed upon persons guilty of certain practices by an Act which is ultra vires will not enure against, or 300-304 aftect, those persons. 24. The scheme of the British North America Act comprises a fourfold classi- fication of powers : — Firstly, over those subjects which are assigned to the ex- clusive plenary power of the Dominion Parliament ; secondly, over those assign- ed exclusively to the Provincial Legis- latures ; thirdly, over subjects assigned concurrentlv to the Dominion Parliament and the Provincial Legislatures ; and, fourthly, over a particular subject, namely, education, which for special reasons is dealt with exceptionally, and made the 305-309 subject of special legislation. 25. The frame of section 92, of the P^ritish North America Act, differs from that of section 91 in its form. That of List of Leading Propositions. xxv. section 91 is general, of section 92 par- t'ages. ticLilar. By section 91, the Imperial Parliament unequivocally, but in general terms, declares its intention to be to place under the jurisdiction of the Dominion Parliament all matters, excepting only certain particular matters assigned by the Act to the Local Legislatures. The 92nd section, therefore, instead of dealing with the subjects to be assigned to the Local Legislatures in the same general terms as had been used in the 91st section, by placmg under the jurisdiction of those legislatures all matters of a purely local or private nature within the Province (a mode of expression which would natur- ally lead to doubt and confusion, and would be likely to bring about that con- flict which it v\^as desirable to avoid), enumerates, under items numbered from I to 15 inclusive, certain particular sub- jects, all of a purely provincial, municipal and domestic nature, that is to say, '*ofa local or private character," and then winds up with item No. 16, to prevent the particular enumeration of the " local and private" matters included in items I to 15 being construed to operate as an exclusion of any other matter, if any xxvi. Legislative Power in Canada. Pages, there might be, of a merely local or 305-309 private nature. 26. Sections 91 and 92 of the British North America Act purport to make a distribution of legislative powers between the Parliament of Canada and the Pro- vincial Legislatures, [subject to the pro- visions of the Act itself], section gi giving a general power of legislation to the Parliament of Canada, [within the terri- torial limits of the Dominion], subject only to the exception of such matters as by section 92 are made the subjects upon which the Provincial Legislatures are 310-346 exclusively to legislate. 27. [With the exception of laws in re- lation to agriculture and immigration], if the subject-matter of an Act is within the jurisdiction of the Dominion Parlia- ment, it is not [in its entirety] within the jurisdiction of the Provincial Legislatures [whether acting severally or in concert with each other, though some of the pro- visions of such Act, ancillary to the main subject of legislation, may be within such Provincial jurisdiction] ; and if the sub- ject-matter of an Act is not within the jurisdiction of the Provincial Legislatures [acting either severally or in concert with List of Leading Propositions. xxvii. each other], it is within the jurisdiction page s, of the Dominion Parliament. 347-355 28. With the exception of agriculture and immigration, there is no subject-mat- ter over which there can [speaking strictly be said to] exist concurrent powers of legislation ; and, even then, should there be conflict, the authority of the Parliament of Canada is supreme, by express pro- vision of section 95 of the British North America Act. 355-3^4 29. There is no power given by the Confederation Act to the Dominion Par- liament to amend or repeal an Act passed by a Provincial Legislature within the limits of its authority, nor to the Provin- cial Legislatures to amend or repeal a valid Dominion Act. 365-366 30. The powers conferred by section 129 of the British North America Act upon the Provincial Legislatures of Ontario and Quebec, to repeal and alter the stat- utes of the old Parliament of the Province of Canada, are made precisely co-extensive with the powers of direct legislation with which these bodies are invested by the other clauses of that Act ; and the power of the Provincial Legislature to destroy a law of the old Province of Canada is xxviii. Legislative Power in Canada. Pages, measured by its capacity to reconstruct 366-370 what it has destroyed. 31. In no case can an Act of the old Province of Canada, applicable to the two Provinces of Ontario and Quebec, be validly repealed by one of them, unless the nature of the act is such that in the result it still remains in full vigour in the 371 other. 32. The Parliament of Canada cannot under colour of general legislation deal with what are provincial matters only ; and, conversely, Provincial Legislatures cannot under the mere pretence of legis- lating upon one of the matters enumerated in section 92 really legislate upon a matter assigned to the jurisdiction of the Par- 372-381 liament of Canada. 33. The Federal Parliament cannot ex- tend its own jurisdiction by the territorial extension of its laws, and legislate on subjects constitutionally provincial, by enacting them for the whole Dominion, as a Provincial Legislature cannot extend its jurisdiction over matters constitution- ally federal, by a territorial limitation of its laws, and leufislate on matters left to the Federal power by enacting them for List of Leading Propositions. xxix. one province only, as, for instance, incor- p«ges. porating a bank for a province. 381-386 34. If the Dominion Parliament, or the Provincial Legislatures, as the case may be, have no power to legislate directly upon a given subject-matter, neither may they do so indirectly. 3^^-392 35. Subjects which in one aspect and for one purpose fall within the jurisdiction of the Provincial Legislatures may, in another aspect and for another purpose, fall within the jurisdiction of the Do- minion Parliament. 393-415 36. The true nature and character of the legislation in the particular instance under discussion — its o-rounds and de- sign and the primary matter dealt with — its object and scope, must always be deter- mined in order to ascertain the class of subject to which it really belongs, and any merely incidental effect it may have over other matters does not alter the character of the law. 416-424 37. In assigning to the Dominion Par- liament legislative jurisdiction in respect to the general subjects of legislation enumerated in section 91 of the British North America Act, the Imperial statute, by necessary implication, intended to con- XXX. Legislative Power in Canada. Pages, fer on it legislative power to interfere with [deal with, and enroach upon] matters otherwise assigned to the Provincial Legislatures under section 92, so far as a general law relating to those subjects so assigned to it may affect them, [as it may also do to the extent of such an- cillary provisions as may be required to prevent the scheme of such law from being defeated]. As to the applicability of a similar principle mutatis mutandis to Pro- 425-468 vincial Legislatures, qucere. 38. As it was scarcely possible to make a complete enumeration of all the powers to be vested in the Dominion Parliament and Provincial Legislatures respectively, and, no doubt, to avoid grave inconven- iences, use was made in drawing our Constitution, as in that of the United States, of general langugage, containing in principle the conferred powers, and leaving to future legislation [and judicial interpretation] the task of completing the 469-476 details. 39. In order to construe the general terms in which the classes of subjects in sections 91 and 92 of the British North America Act are described, both sections and the other parts of the Act must be List of Leading Propositions. xxxi. looked at, to ascertain whether lang-uae^e pages. of a general nature must not by necessary implication or reasonable intendment be modified and limited. 477-483 40. The British North America Act has to be construed as a whole, and where some specific matter is mentioned as with- in the exclusive power of one body, Dominion Parliament or Provincial Legislature, as the case may be, which, but for that reference, would fall within the more general description of a subject- matter confined to the other, the statute must be read as excepting it from that general description. 483-487 41. With regard to certain classes of subjects generally described in section 91 of the British North America Act, legis- lative power may reside as to some mat- ters falling within the general description of these subjects in the Legislatures of the Provinces ; [and, in a sense, the con- verse is also true in certain cases, with regard to the subjects generally described in section 92 and the legislative power of the Dominion Parliament]. 487-494 42. The Dominion Parliament and Provincial Legislatures have power to xxxii. Legislative Power in Canada. Pages, legislate conditionally ; for instance, by enacting that an Act shall come into operation only on the petition of a ma- 495-496 jority of electors. 43. In determining the validity of a Dominion Act, the first question to be determined is, whether the Act falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the legislatures of the provinces. If it does, then the further question will arise, vvdiether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and so does not still belong to the Dominion Parliament. But if the Act does not fall within any of the classes of subjects in sec- 497-501 tion 92, no further question will remain. 44. Before the laws enacted by the Federal authority within the scope of its powers, the provincial lines disappear; for these laws we have a quasi legislative union ; these laws are the local laws of the whole Dominion, and of each and 502-509 every province thereof. 45. The Dominion Parliament can, in matters within its sphere, impose duties upon any subjects of the Dominion, whether they be officials of Provincial List of Leadtng Propositions. xxxiii. Courts, other officials, or private citizens ; Pages. and there is nothing in the British North America Act to raise a doubt about the power of the Dominion Parliament to impose new duties upon the existing Pro- vincial Courts, or to give them new powers, as to matters which do not come within the subjects assigned exclusively to the legislatures of the Provinces, [or to deprive them of jurisdiction over such matters] ; and so, also, it would appear that in matters within their sphere Pro- vincial Legislatures can impose duties upon Dominion officials in certain cases. 510-525 46. Where in respect to matters with which Provincial Legislatures have power to deal, provincial legislation directly con- flicts with enactments of the Dominion Parliament, — whether the latter immedi- ate! v relate to the enumerated classes of subjects in section 91 of the British North America Act, or are only ancillary to legislation on the said classes of subjects, or are enactments for the peace, order, and good government of Canada, in relation to matters not coming within the classes of subjects assigned exclusively to the Provincial Legislatures, nor within the said enumerated classes of section 91, — xxxiv. Legislative Power in Canada. p^ggs. the provincial legislation must yield to 526-537 that of the Dominion Parliament. 47. Provincial Legislatures have no power to confer jurisdiction or to legislate at all in reference to proceedings taken under a statute of the Dominion Parlia- ment, legislating within the subjects as- signed to it by the British North America Act. And a similar limitation applies in the case of the Dominion Parliament in reference to proceedings under provincial statutes. But Provincial Legislatures may legislate in aid and furtherance of 538-540 Dominion legislation. 48. An Act of the Dominion Parlia- ment is not affected in respect to its validity by the fact that it interferes pre- judicially with the object and operation of Provincial Acts, provided that it is not in itself legislation upon or within one of the subjects assigned to the exclusive legislative jurisdiction of the Provincial 541-546 Legislatures. 49. The principle of the 91st section of the British North America Act is to place within the legislative jurisdiction of the Dominion Parliament general subjects which may be dealt with by legislation, List of Leading Propositions. xxxv as distinguished from subjects of a local Page s. or private nature in the province. 547-5^4 50. If an Act of the Parliament of Canada, the objects and scope of which is general, and within its proper compe- tency to deal with, provides that it shall come into force in such localities only in which it shall be adopted in a certain pre- scribed manner, or, in other words, by local option, this conditional application of the Act does not convert it into lee is- lation in relation to matters of a merely local or private nature, which by No. 16 of section 92 of the British North America Act are within the exclusive control of the Provincial Legislatures. The manner of bringing such an Act into force does not alter its general and uniform character. 565-566 51. If the subject-matter dealt with comes within the classes of subjects assigned to the Parliament of Canada, [or if, though this be not the case, the law be one for the peace, order, and good government of Canada in relation to any matter not coming within the classes of subjects assigned to the Legislatures of the Provinces], there is no restriction upon that Parliament to prevent it passing a law affecting one part of the Dominion xxxvi. Legislative Power in Canada. Pages, and not another, if in its wisdom it thinks the legislation applicable to or desirable 567-581 in one and not in the other. 52. As to matters coming within the classes of subjects enumerated in section 91 of the British North America Act, over which the exclusive legislative authority of the Parliament of Canada is declared to extend, there is not to be found one word expressing or implying the right to interfere w^ith Provincial 582-584 executive authority. 53. We are not to assume, without express words or unavoidable implication, that it was the intention of the Imperial Legislature to confer upon the Dominion Parliament the power to encroach upon private and local rights of property, which by other sections of the Act have been especially confided to the protection and 584-590 disposition of another legislature. 54. When a question arises as to whether the Dominion Parliament has power in any case over any property or civil rights in a Province, it is always necessary to form an accurate judgment upon what is the particular subject-matter in each case, for the extent of the control of f Parliament over the subject-matter may List of Leading Propositions. xxxvii. possibly be limited by the nature of the pages. subject. [Decisions upon questions arising under the sections of the British North America Act relating to public property referred to and discussed.] 590-616 55. The Dominion Parliament can alone incorporate companies with powers to carry on business throughout the Do- minion, and the business of companies so incorporated may have to do with property and civil rights, yet it cannot empower them to carry on business in any Province otherwise than subject to and consistently with the laws of that Province, [unless the business is such that power to make laws in relation to it is exclusively in the Dominion Parliament, under one of the enumerated heads of section 91 of the British North America Act]. 617-643 56. The fact that Provincial Legisla- tures may have passed Acts relating to companies of a particular description, such, for example, as building societies, and defining and limiting their operations, does not interfere with the pow^er of the Dominion Parliament to incorporate such companies, with power to operate through- out the Dominion. 643-644 xxxviii. Legislative Power in Canada. p^g «s. 57. The fact that a company incorpor- ated under an Act of the Dominion Parliament with power to carry on its business throughout the Dominion, chooses to confine the exercise of its pow- ers to one Province cannot affect its status or capacity as a corporation, if the Act incorporating the company was originally within the legislative power of the Do- 644 minion Parliament. 58. In determining the validity of a Provincial Act, the first question to be decided is, whether the Act impeached falls within any of the classes of subjects enumerated in section 92 of the British North America Act, and assigned exclus- ively to the Legislatures of the Provinces ; for, if it does not, it can be of no validity, and no further question would then arise. It is only when an Act of the Provincial Legislature prima facie falls w^ithin one of these classes of subjects that the further question arises, namely, whether, notwith- standing this is so, the subject of the Act does not also fall within one of the enum- erated classes of subjects in section 91, [and so does not belong to the Dominion 645-646 Parliament]. 59. Any matter coming within any of List of Leading Propositions. xxxix. the classes of subjects enumerated in Pages. section 91 of the British North America Act shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by the Act assigned exclusively to the Legislature of the Provinces. 647-661 60. Where the validity of a Provincial Act is in question, and it clearly appears to fall within one of the classes of subjects enumerated in section 92 of the British North America Act, the onus is on the persons attacking its validity to show that it does also come within one or more of the classes of subjects specially enumer- ated in section 91. 662 61. If on due construction of the Brit- ish North America Act, a legislative power falls within section 92, it is not to be restricted or its existence denied be- cause by some possibility it may be abused or may limit the range which otherwise w^ould be open to the Dominion Parliament. Whatever power falls within the legitimate meaning of the classes in section 92, is what the Imperial Parlia- ment intended to give ; and to place a limit on it because the power may be xl. Legislative Power in Canada. Pages, used unwisely, as all powers may, would be an error, and would lead to insuperable difficulties in the construction of the Fed- 663-682 eration Act. 62. A Provincial Legislature is not incapacitated from enacting a law other- wise within its proper competency merely because the Dominion Parliament might, under section 91 of the British North America Act, if it saw fit so to do, pass a general law which would embrace within its scope the subject matter of the Pro- 683-688 vincial Act. 63. Within the area and limits of sub- jects mentioned in section 92 of the Brit- ish North America Act Provincial Leg- islatures are supreme, and have the same authority as the Imperial Parliament or the Parliament of the Dominion would have, under like circumstances, to confide to a municipal institution or body of its own creation, authority to make by-laws or regulations as to subjects specified in the enactment and with the object of carrying the enactment into operation 689-700 and effect. 64. The aim of the law-giver in divid- ing the legislative powers by sections 91 and 92 of the British North America Act List of Leading Propositions. xli. between the Federal Government and the Pages. Provinces was, so far as compatible with the new order of things, to conserve to the latter their autonomy in so far as the civil rights peculiar to each of them were con- cerned. 701-704 65. Co-equal and co-ordinate legislative powers in every particular were conferred by the British North America Act on the Provinces. The Act placed the Constitu- tions of the Provinces on the same level. 705~709 66. The Provincial Legislatures have no powers excepting the enumerated powers which are given to them by the British North America Act. They cannot legis- late beyond the prescribed subjects. [Provincial powers of taxation specially discussed.] 710-750 67. Local Legislatures cannot by cor- responding legislation in any degree enlarge the scope of their powers. 75 ^ 68. A Provincial Legislature by virtue of No. 13 of section 92 of the British North America Act has power to make laws in relation to such ' property and civil rights ' [within the meaning of that clause as restricted to allow scope for the due operation of the other provisions of the said Act] as have a local position xlii Legislative Power i\ Canada. P^g^^- within the Province ; but they have no such power in relation to property and civil rights having their local position in another Province ; and if, in any case^ they cannot legislate in relation to the one, without at the same time legislating in relation to the other, that is a case be- yond their powers of legislation alto- 752-770 gether. INTRODUCTORY CHAPTER INTRODUCTORY CHAPTER. Constitutional writers in the United States, while travelling far afield to compare American institutions with those of other nations, seem as yet to be strange- ly unconscious of the fact that on the border of their own country there lies another great Confeder- ation, of origin more similar in many respects to their own than any other, but which in the plan and methods of its polity, might furnish them with many notable contrasts. Mr. Woodrow Wilson, however, in his work on The State, ^ devotes a Professor Dicey page and a half to the Dominion of Canada, and ^"d the preamble calls its Government " a very faithful reproduction b'^n.a. Act. of the Government of the Mother Country."- In this he is, I think, more accurate and more just than Mr. Dicey, who first said, in his haste, that the framers of the preamble of the British North America Act were guilty of " official mendacit}' "-^ in intimating that the Canadian provinces were to be federally united 'with a Constitution similar in principle to that of the United Kingdom,' and after fuller deliberation, only reduced the charge to one 1 Boston, 1890. -At p. 442. ''Article on Federal (jovernment in Lazv Quarterly Review^ Vol. i, at p. 93 ; also The Law of the Constitution, 3rd ed., at p. 155. xliv. Legislative Power in Canada. of "diplomatic inaccuracy, "^ to which he still ad- heres.- In truth, when one remembers Sir Henry Wotton's description of an ambassador as " an honest man sent to lie abroad for the Common- wealth," the modification in the charge made seems a very slight one. In the last two editions of his brilliant lectures on the Law of the Constitution, Mr. Dicev con- cedes to his Canadian critics that " if we compare the Canadian Executive with the American Execu- tive, we perceive at once that the Canadian Govern- ment is modelled on the system of parliamentary Cabinet Government as it exists in England, and does not in any wise imitate the presidential Gov- Professor cmmcnt of America," (which, indeed, is the onlv Dicey's -' disputed. P°'"^ ^° which Mr. Woodrow Wilson specifically refers), but he adheres to the statement that " it is clear that the Constitution of the Dominion is in its essential features modelled on that of the Union," for that, "if we look at the federal char- acter of the Constitution of the Dominion we must inevitably regard it as a copy, though by no means a servile copy, of the Constitution of the United States."^ Inipar congressus Achilli, I deny that it can with fairness and accuracy be called in any sense a copy of the Constitution of the United States at all. ^ It is, of course, perfectly true that the British ^The Law of the Constitution, 4th ed., at p. 156, (1893). '^Ibid., 5th eil.,al p. 157, (1897). ""Ibid. Comparison with United States System. xlv. North America Act "has, like the Constitution of the United States, federally united several commun- ities, before the union having separate Governments and separate parliaments, ruling and legislating in- dependently of each other, and without reference to each other's interests,"^ but when we examine its scheme and methods for attaining this end, we see many and fundamental divergencies from American ideas and institutions, in which the founders of Confederation faithfull}' followed by preference, and with much ingenuity, the principles of the British Constitution, The matter will, I think, prove to be well worth careful consideration. As Mr. Dicey tells us, "the essence of the Eng- p^i^^jp,^^ lish Constitution is the unlimited authority of Par- isritish Constitution. liament-;" while one of the most recent of Amer- ican writers says, " the fundamental principle of the United States is that the supreme law-making power resides in the people, and that whatever they fundamentally enact binds everywhere."^ The principle of the British Constitution seems to be that good servants ought to be trusted, and so the Ministry of the day is trusted with seats in Parlia- ment, and supreme direction and influence therein so long, but so long only, as it can command a ma- pper flarrison, C.J., in Leprohon i'. City of Ottawa, 40 U.C. R., at p. 487, I Cart, at p. 645. -The Law of the Canstitution, 5th ed. , at p. 131. '^Schouler's Constitutional Studies, State and Federal, (New York : 1897) at p. 174. Cf. Cooley's Constitutional Limitations, 6th ed., at p. 39. The Federal Constitution commences : ' We, the people of the United States ... do ordain and establish this Constitution for the United States of America." xlvi. Legislative Power in Canada. jority, while to Parliament are entrusted unreservedly the most fundamental institutions of the realm as much as the most unimportant, the mostsacred enact- ments of the statute book as much as the most insig- nificant. Distrust of legislatures, on the other hand, is a pervading and growing characteristic of Ameri- can institutions, and in explanation of this difference between the two countries an American writer says: Distrust " In England the encroachments upon private right of legisla- UnitVd"'''' ^^'ere made by the Executive, often supported by pliant judges; the great battle for private right and individual liberty was fought by the House of Com- mons, and when these were placed on a firm founda- tion, every Englishman instinctively regarded Par- liament as the great bulwark against oppression. But in this country the danger to private right and individual liberty has been that legislatures influ- enced by popular passion and prejudice, or con- trolled by combinations of vicious men, should disre- gard everything that opposed their will."^ Division of "The theory of our Governments — State and government--- ^- i ,» » • • j j i- • xU aipowerin National, says an American judge, delivering the America. judgment of the Supreme Court of the United States, " is opposed to the deposit of unlimited power any- where. The executive, the legislative, and the judi- cial branches of these Governments are all of limited and defined powers."" " With the (British) Parlia- ment," says Judge Cooley, " rests practically the ^Treatise on the Law of Taxation, Federal, State and Munici- pal, by W. H. Burroughs (New York, 1877), p. 364, sec. 11. -Per Miller, J., in Savings and Loan Association v. Topeka, 20 Wall., at p. 663. Comparison with United States System. xlvii. sovereignty of the country, so that it may exercise all the powers of the Government if it wills so to do ; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with one branch of the sovereignty, they are, nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implication, which are equally imperative." And so the Constitution of the United States, Restrictions on the while it gives Congress power to lav and collect p°wers of " or ^ Congress. taxes, duties, imposts and excises, not only provides that this must be ' to pay the debts and provide for the common defence and s^eneral welfare of the United States,'^ but, also, prescribes that 'all duties, im- posts and excises shall be uniform throughout the United States,'^ and that ' no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.'* It gives Congress power ' to regulate com- merce with foreign nations, .and among the several States,'^ but at the same time provides that 'no preference shall be given by any regulation of com- ^Cooley, Ibid, at p. 102. ^Article I, section 8(1). As to this limitation, see Story on the Constitution, 5th ed., Vol. i, p. 663. 3 Article i, section 8(1). Remarkable examples of what the require- ment of equality and uniformity in taxation is held to involve in res- pect to restricting the action of the legislature will be found in Cooley, Ibid, at pp. 60S, n., 618 n. ■^Article i, section 9 (4). ^Article i, section 8 (3). xlviii. Legislative Power in Canada. inerce or revenue to the ports of one State over those of another,'^ It further provides that 'no title of nobiht}' shall be granted by the United States," — that ' Congress shall make no law respect- ing an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble,'' — that the right of the people to keep and bear arms shall not be infringed,* and that ' m all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an Renrictions impartial jury of the State and district wherein the on State legislatures, crime shall have been committed.'^ It also con- tains several restrictions upon Statelegislative power, " a portion of them designed to prevent encroach- ments upon the national authority, and another por- tion to protect individual rights against possible abuse of State powers."® Thus it provides that no State shall ' make anything but gold or silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts;'' nor shall any person ' be deprived of life, liberty or property, without due process of law^; ' ^Article i, section 9 (6). ''Article i, section 9 (8). 3 Amendments, Article i. ^Amendments, Article 2. ^Amendments, Article 6. •'Cooley's Constitutional Limitations, at p. 23. ^Article i, section 10 (i). ^Amendments, Articles 5 and 14. Comparison with United States System. xlix. nor shall 'the right of citizens of the United States to vote be denied or abridged by the United States or by any State on account of race, colour, or pre- vious condition of servitude.'^ The above will suffice to illustrate the restrictions xheseparate 1 J 1 • 1 • • State placed upon legislative power in the United States Co"^'""- lions. by the Federal fundamental law. But it is to be observed that the legislatures of each separate State are also bound by the provisions of the Con- stitution or fundamental law of their own State, largely modelled on the Federal instrument,- and on the frequent occasions of amending their State Constitutions, the people of the several States shew an increasing tendency to seize the opportunity to make laws for themselves in their own way." They "take subjects which belong to ordinary legislation out of the category of statutes, place them in the ^Amendments, Article 15. The only restrictions on legislative power at all analogous to be found in the British North America Act are in section 18, restricting the Dominion parliament in respect to defining the privileges, immunities and powers to be held, enjoyed and exercised by the Senate, and by the House of Commons and the mem- bers thereof, in sections 96-99, as to the appointment of judges, and in section 121, which enacts that all articles of the growth, produce or manufacture of any one of the provinces shall, from and after the Union be admitted free into each of the other provinces. 2" Scarcely a State in the whole enlarged Union can be named at the present day whose fundamental law does not pattern after that immortal instrument," (the Federal Constitution), " in one detail or another : " Schouler's Constitutional Studies, at p. 203. ^Bryce's American Commonwealth (2 vol, ed,), Vol. i, p. 451. "There are at the present day forty-five full-fledged States in the American Union as against the thirteen that originally composed it ; and of that number very few can be named more than fifty years old, whose Constitution has not been repeatedly recast in Convention and rewritten. A computation made in 1885 by a careful historical scholar shewed among other statistics that four States, — Georgia, South Caro- lina, Texas and Virginia — had each lived under five successive Con- stitutions, while Louisiana adopted her sixth Constitution in 1879. These figures did not include changes in those States that might have taken place during the Civil War": Schouler, ibid, at p. 204. Legislative Power in Canada. Constitution, and then handle them as part of this fundamental instrument."^ Thus, for example, Von Hoist says : " The power to pledge the means or credit of a State in any wise whatsoever, for a corporation is either strictly limited or entirely denied. Some Constitutions go still further. They seek generally to keep the State aloof from all matters in which considerable sums are to be spent in a manner which might offer people with easy consciences and dexterous as well as covetous hands a good opportunity to fill their own pockets out of the public purse. Several Restrictions Coustitutious absolutcly prohibit the States under- tive power taking such works of general utility as are called in in the State Con- the United States ' internal improvemcuts.' Others stltutions. ^ refuse the power to contract debts in this behalf. . . . It is evident not only from the formal precau- tions already mentioned, but also from many other constitutional provisions, that the idea prevails that a legislature must be approached with a certain amount of distrust."- In 1818, Illinois provided by fundamental law of the State that commons should be reserved for ever to the people, meaning b}' com- mons, lands that were once granted in common in any town or community by competent authority^; and the same State in its Constitution adopted in 1870, embodied among its fundamental laws regula- ^Bryce, tdid. p. 450. Cf. Lowell's Governments and Parties in Continental Europe, Vol. 2, at p. 293. 'Constitutional Law of the United States, p. 276-7. ^Schouler's Constitutional Studies, p. 222. Comparison with United States System. ii. tions as to warehouses for storing grain. ^ " Minne- sota, just before i860," says Mr. Schouler, " set an organic rule relative to lending the credit of the State to certain railroads ; and wearied of recent experience in mingling State liability with private enterprises, we see various States prohibiting thence- forward all debts of that character."- "The brief constitutional text applicable to legislative action in the earlier instruments," says the same writer, " im- porting great confidence in the discretion of the Restrictions . on legisla- people's representatives, ceases forever to charac- tive power terize these written fundamental ordinances. . • fufion^°"*''' We see communities as the efficient principals bind- ing public agents by their own fundamental rules and cutting down credentials, as though deference to statesmanship were at an end. Instead of looking up to the legislature as the arcanum of fundamental liberties, we see the people inclining rather to Gover- nors and the Courts as a needful corrective upon legislatures tempted to go astray. "=^ iRIunn V. Illinois, 94 U.S. ;ii3, referred to also in Dicey's Law of the Constitution, 5th ed., at p. 146, n. i. * Schouler, ibid, at p. 265. ^Ibid. at pp. 258-9. Speaking of a Kentucky statute passed to compel the owners of wild lands to make certain improvements upon them within a specified time, and declaring them forfeited to the State if its provisions were not complied with, Judge Cooley says, in words which well bring out how entirely different the American conception of the position of a legislature and of legislative power is from the Eng- lish and the Canadian : " It would be difficult to frame, consistently with the general principles of free government, a plausible argument in support of such a statute. It was not an exercise of the right of eminent domain, for that appropriates property to some specific public use on makmg compensation. It was not taxation, for that is simply an apportionment of the burden of supporting the Government. It was not a police regulation, for that could not go beyond preventing an im- proper use of the land with reference to the due exercise of rights and Hi. Legislative Power in Canada. Nor are the restrictions on legislative power in the United States only those expressed in Federal or State Constitutions. Many exist which rest only on implica- tion, and we find the Courtsand text-writers, when dis- cussing the validity of statutes, referring to " the general spirit of the Constitution,"^ " certain founda- impiied tion principles of the law of the land,"" " funda- restrictions oniegisia- mental principles of justice, "^ "natural rights,"* tive power in r r j ' d ' statM?"''^ " inseparable incidents to republican government,"^ '* consistency with regulated liberty,"*' " the essen- tial nature of all free Governments, implied reserva- tions of individual rights, without which the social compact could not exist, and which are respected by all Governments entitled to the name."" The learned judge from whose judgment the last quota- enjoyment of legal privileges by others. It was purely and simply a law to forfeit a man's property if he failed to improve it according to a standard which the legislature had prescribed. To such a power if possessed by the Government, there could be no limit but the legis- lative discretion," and he cites a Kentucky case where the Act was held to be unconstitutional : Constitutional Limitations, 6th ed., at P- 475- ^Von Hoist's Constitutional Law of the United States, at pp. 147-8. -/did. at p. 252. ^Gebhard v. Canada Southern R. W. Co., 17 Blatchf. at p. 419, (l88o). For S. C. in App. see 109 U.S.R. 527. ^Ibid. "A declamatory speaker (Randle Jackson, counsel for the East India Company), who despised all technicalities, and tried to storm the Court by the force of eloquence, was once, when uttering these words, ' In the book of nature, my Lords, it is written — ,' stopped by this question from the Chief Justice, Lord EUenborough, ' Will you have the goodness to mention the page, sir, if you please' :" Lord Camp- bell's Lives of the Chief Justices of England, vol. 3, pp. 238-9. 'Cooley's Constitutional Limitations, 6th ed., at p. 207. "Ibid, at p. 343. 'Per Miller, J., in Savings and Loan Association v. Topeka, 20 Wall, at p. 663. Cf. Story on the Constitution, 5th ed., Vol. 2, pp. 272-4, 699. Comparison with United States System. liii. tion is taken goes on to shew that among these is the limitation of the right of taxation, that it can only be used in aid of a public object, an object which is within the purpose for which Governments are estab- lished.^ And to give one other illustration, speak- ing of the control possessed by the legislative authority of the State over municipal corporations, Judge Cooley adds : — " There are nevertheless some implied ... . ... , , . restrictions limits to its power in this regard, as there are in on legisla- tive power in various other directions limits to the legislative g'j^^Ys"''^'^ power of the State. Some of these are expressly defined ; others spring from the usages,, customs and maxims of our people ; they are a part of its history, a part of the system of local self-govern- ment, in view of the continuance and perpetuity of which all our Constitutions are framed, and of the right to which our people can never be deprived except through express renunciation on their part.'"^ ^Cooley, ibid. p. 267, n., cites a Maine decision holding that the rais- ing of money by tax in order to loan the same to private parties to enable them to erect mills and factories, was raising it for a private purpose, and therefore illegal. " An unlimited power to make any and everything lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen : " Cooley, ibid, at p. 599. At another place {ibid. p. 483), Judge Cooley quotes words from I^ocke on Civil Government (sec. 142) that those who make laws ''are to govern by promulgated e.>tablished laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court and the countryman at plough," and says : "This is a maxim in constitutional law, and by it we may test the authority, and binding force of legislative enactments," and he cites a number of decisions of various State Courts, and amongst them a West Virginia case where it was held that miners and manufacturers alone cannot be forbidden to pay in store orders, and a Michigan case where it was held that recovery against newspaper pul)lishers for libel cannot be limited to actual damage provided a retraction is published and the libel was published in good faith, as is enacted, it may be added, by Revised Statutes of Ontario, 1S87, c. 57, s. 5, (2). QA. Imp. 6-7 Vict. c. 96, s. 2. "^Ibid. at p. 2S1. Cf. Story on the Constitution, 5th ed., \'ol. I, at p. 204, n. liv. Legislative Power in Canada. Separation And the Same distrust of those who exercise pubhc of govern- mental authority, which we see exhibited in the restrictions powers. -^ ' placed upon legislatures in the United States, is illustrated likewise by the careful separation made by Federal and State Constitutions in that country of executive power from legislative power, and of judi- cial power from both. " One of the most noticeable features in American Constitutional law," says Cooley, " is the care which has been taken to separate legislative, executive and judicial functions. The different classes of powers have been appor- tioned to different departments, and as all derive their authority from the same instrument, there is an implied exclusion of each department from exer- cising the functions conferred upon the others."^ Separation The Federal Constitution provides that ' no person from legisia- holding any office under the United States shall be ture in the Ftatel'^ a member of either House during his continuance in office,'- and thus renders impossible that system of responsible parliamentary government which has already been referred to, and which exists alike in the United Kingdom and in Canada.^ And the "^Ibid. at p. 104. * Article i, section 6. ' It would be out of place here to discuss the comparative merits of the British and American systems in this matter. A stronger argument could hardly be made in favour of the British system than that by an American writer already referred to, Mr. Woodrow Wilson, in his Con- gressional Government, Boston, 1887. See, also, Bryce's American Commonwealth, (2 vol.ed.) Vol. I, at pp. 287, 303; Story on the Consti- tution, 5th ed., Vol. I, pp.635-6; Bagehot's English Constitution, 5th ed., pp. 65-6. "The efficient secret of the English Constitution," says Bagehot, " may be described as the close union, the nearly com- plete fusion, of the executive and legislative powers :" Ibid, at p. 10. Comparison with United States System. Iv. same separation of Executive from legislature ex- ists in the separate States. " In the separate States," Von Hoist sa\'s, " even more than in the Federal Government, parliamentary government, in the European sense of the word, is something entirely foreign to American constitutional and gen- eral lavv."^ "The executive head of the United States Government," writes another American author, " is completely independent of the legisla- ture as to his political policy. His council or cabinet of advisers are his own agents, responsible politically Position .of the to him only. The defeat of a proposition made by President, him, or by any one or all of them, to the legislature, or a vote of censure passed by the legislature upon him or them, do not call for his resignation or their resignations. Nothing of the sort is provided or intimated in the remotest degree in the Constitu- tion. The political independence of the Executive over against the legislature is complete."- And we cannot pass on to the subject of the separation of judicial power from either executive or legislative better than by citing the following passage from Mr. Schouler's book : " The very fact that Congress has such power for enacting momentous laws un- wisely renders it all the more desirable that the President should. have a counteracting influence like some tribune of the people. Another strong bulwark ^Constitutional Law of the United States, at p. 269. ^Political Science and Comparative Constitutional Law, by John W. Burgess, Boston, 1891, at pp. 19-20. Cf. Cooley's Constitutional Limitations, 6th ed., at p. 136. Ivi. Legislative Power in Canada. against the tyranny of either Congress or the Presi- dent, another grand popular rehance will next appear in the federal judiciary, and most of all in the Supreme Court. "^ The theory of the separation of judicial from legislative power is carried so far among the Amer- icans that a few examples may well be mentioned here. Under decisions of several States, a legisla- tive Act directing the levy and collection of a tax which has already been declared illegal by the judiciary is void, as an attempted reversal of judicial action." Under a Tennessee decision a legislative Separation rcsolve that no line, forfeiture or imprisonment of judicial , . , fromiegis- shouldbe imposed or recovered under the Act of lative power UnUed '^^57 (then in force), and that all causes pending in any of the Courts for such offences should be dismissed, was held void as an invasion of judicial authority.^ So, likewise, the Supreme Court of New Jersey held that a statute which provided that no judgment of the Supreme Court should be re- versed by the Court of Errors and Appeal unless a majority of those members of the Court who were competent to sit on the hearing and decision should concur in the reversal, was unconstitutional, as its effect would be, if the Court were not full, to make the opinion of the minority in favour of affirmance control that of the majority in favour of reversal, unless the latter were a majority of the whole ^Constitutional studies, at p. i68. -Cooky's Constitutional Limitations, 6th ed., at p. 113, n. i. ^Idi'd. p. 114, n. I. Comparison with United States System. Ivii. Court. ^ In the opinion of New Hampshire Judges the legislature cannot authorize a guardian of min- ors by a special Act or resolve to make a valid con- veyance of the real estate of his wards'-; while in Massachusetts a statute validating proceedings had before an intruder into a political office before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject matter, has been held void as an exercise of judicial power."" " The (Federal) judiciary," says Mr. Dicey, " stand on a level both with the President and with Congress, and their authority (bemg directly derived from the Constitu- separation . , . /• 1 1 '-''^ judicial tion) cannot, without a distmct violation of law, be tvom legisla- tive power trenched upon either by the Executive or by the 'g"j^'j^^United legislature."* And when one considers the strong position in which the judiciary are thus placed, re- inforced by the constitutional provisions every- where found which provide that no person shall be deprived of life, liberty or property without due process of law, and the vague generalities on which, as has been seen, the American system permits Courts to found decisions as to the validity of legis- lative enactments, it is not surprising that Mr. Bur- gess should call the governmental system of the United States "the aristocracy of the robe^;" or '^Ibid. at p. 115, n. i. '^Ibid. at p. 121, n. '^IbiJ. at p. 127. ^Article on Federal Government in the Lata Quarterly Review, Vol. I, at p. 86. ^Political Science and Comparative Constitutional Law, at p. 365. Iviii. Legislative Power in Canada. to read in Mr. Dicey's pages that " the Constitution of the United States as it actually exists rests to a very considerable extent on judge-made law."^ Now, whether this separation of legislative, judi- cial and executive authority in the nation or State, whether these fundamental provisions and restric- tions, this complicated system of checks and bal- ances, be wise or not wise, is not the point here in question, but I cannot refrain from quoting Judge TheAmeri- Cooley's words upon what is perhaps the most im- can restric- r 11 i • 1 • 1 • 1 tion against portant of all the restramts on legislation, namely, impairing ?^i'H.tl',T°'^that the obligation of contracts must not be im- paired." This restriction, it must be said, though only expressed in the Federal Constitution to apply to State legislatures, is held nevertheless to apply to Congress, on the ground that so to legislate is not among the powers granted to that body."^ It was decided, it will be remembered, in the famous case of Dartmouth College v. Woodward,* that ^The Law of the Constitution, 5th ed., at p. 399, n. -" This apparently simple clause, which was hardly mentioned in the debates over the adoption of the Constitution, has proved to be one of the most important, has given occasion to as many legal con- troversies, perhaps, as all the rest of the Constitution put together, and has laid the heaviest tasks upon judicial brains :" Von Hoist's Consti- tutional Law of the United States, pp. 231-2. See also, as to it. Story on the Constitution, 5th ed., Vol. 2, at p. 246. Remarkable examples of the degree to which it restrains legislative action will be found in Cooley's Constitutional Limitations, 6th ed., at pp. 352, 354-5. It would seem from what is there stated that whatever the law is bearing on the subject matter of a contract at the time the con- tract is entered into, it can never be altered so as to affect, even in- directly, the rights accruing by the contract, and the legal position of the parties in respect to the enforcement thereof. *Von Hoist, zdiJ. at p. 231. See, also, infra p. 286. 44 Wheat. 518,(1819). In this case the charter was one from the British Crown to the trustees of Dartmouth College, granted in the year 1769. Comparison with United States System. lix. chartersof incorporation, except those of a municipal character, were contracts between the State and the corporations within the meaning of that restriction, and Judge Cooley says, with reference to that case : " It is under the protection of the decision in the Dartmouth College case that the most enormous and threatening powers in our country have been created ; some of the great and wealthy corporations actually having greater influence in the country at large, and upon the legislation of the country, than the States to which they owe their corporate exist- ence. Every privilege granted or right conferred — The British , , system con- no matter by what means or on what pretence — be- trasted as to impairing ing made inviolable by the Constitution, the Govern- '^°""'^"^- ment is frequently found stripped of its authority in very important particulars by unwise, careless or corrupt legislation ; and a clause of the Federal Constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil."^ However this may be, Mr. Dicey calls attention to sundry great and recent legislative measures passed in England which would have been rendered impossible had the British sys- tem recognized such a restriction, saying : " If any principle of the like kind had been recognized in England as legally binding on the Courts, the Irish Land Act would have been unconstitutional and void; ^Cooley's Constitutional Limitations, 6th etl., at p. 335, n. For a spontaneous recognition by the Supreme Court of the United States of the superior position the Dominion parliament is in for legislating wisely and justly in certain cases liy reason of the absence of any such constitutional prohibition in their case, see Gebhard v. Canada Southern R.W. Co., 109 U.S., at p. 535, 538-9, (1883). Ix. Legislative Power in Canada. the Irish Church Act, 1869, would, in ^reat part at least, have been from a legal point of view so much waste paper, and there would have been great diffi- culty in legislating in the way in which the English parliament has legislated for the reform of the Uni- versities. One maxim only among those embodied in the Constitution of the United States would, that is to say, have been sufficient if adopted in England to have arrested the most vigorous efforts of recent parliamentary legislation."^ British The hampering and restricting of legislative principles . . . .11 in tiie Do- action by such provisions or a lundamental law as minion Con- stitution ^yg have been considering is, and was in 1867 when the British North America Act was framed, whether wise or unwise, quite foreign to the principles of the Constitution of the United Kingdom, which guards the liberty of the subject without destroying the free- dom of action of the legislature. The framers of that Act could not of course create a legislature precisely similar to the British parliament in respect to supreme control over all matters whatever in Canada, because they were bringing into existence not a legis- lative union but a federal union of the provinces. But they adhered as closely as possible to the Bri- tish system in preference to that of the United States. They distributed all legislative power whatever over the internal affairs of the Dominion between the Federal parliament on the one hand, and the pro- vincial legislatures on the other. They gave them not iThe Law of the Constitution, 5th ed., at pp. 165 6. Cf. a similar passage in Bryce's American Commonwealth, (2 vol. ed.). Vol. I, p. 308. Comparison with United States System. Ixi. merely powers to do certain things and make all laws necessary and proper for carrying such powers into execution, as is the case with Congress, but power to ' make laws in relation to ' the various subject mat- ters of legislation committed to their respective jurisdictions.^ They gave them that power in each case not as mere delegates or agents," — not subject to all manner of fundamental restrictions, but authority as plenary and as ample within the limits prescribed as the Imperial parliament, in the pleni- tude of its power, possessed and could bestow. British ^, . J r VI • principles in Ihey recognized no reserve or power either in the Domin- ion Consti- the people of the Dominion at large, or in the'""°"- people of the provinces in particular.^ Between the Dominion parliament and the provincial legislatures was distributed all power whatever over the government of the internal affairs of the country in every respect. Too much must not be made of the supposed difference between the United States Constitution and that of the Domin- ion, that under the former the residue of legislative ^See per Spragge, C, in Kegina v. Frawley, 7 O.A.R. at p. 270, 2 Cart., at p. 592. ^" The sovereign power resides indeed in the people. . . The exercise of sovereign power has been given in part to the Federal Government, and in part retained for the States. Congress, on the one hand, and the legislatures on the other (together with the Executive and the judiciary), are called into existence by the sovereign to assist in carrying out the various purposes to be accomplished. They are the people's 'substitutes and agents,' as the Constitution of Massachusetts has it : " note to Story on the Constitution, 5th ed.. Vol. 2, p. 567. "The Federal and State Governments are in fact but different agents and trustees of the people, constituted with different powers, and designated for different purposes:" T/ie Federalist, No. 46, at p. 292, (Knicker- bocker Press ed.). See, also, infra pp. 245-50, 689-700. •''See per Palmer, J., in the Queen v. The Mayor etc., of Fredericton, 3 P. & B. at p. 143. Ixii. Legislative Power in Canada. power is ' reserved to the States respectively, or to the people,' 1 while in the latter it is given to the Dominion parliament. Faithful to the British model, the framers of the British North America Act did, it is true, give the Dominion parliament general power to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces. That was necessary in order to round off and complete British the powers of the Dominion parliament over federal principles in theDomin- mattcrs, making it thus, — not like Congress, — but ion Const!- ' o ' o j like the parliament of the United Kingdom so far as all such matters are concerned.- But in like man- ner they rounded off and completed the power of the provincial legislatures over provincial matters, giving them likewise a residuary power over ' gener- ally all matters of a merely local or private nature in the province.'-^ Furthermore and still adhering to British principle, the framers of the Dominion Constitution made the respective powers of Parliament and provincial legis- latures, not concurrent, but exclusive in each case the one of the other, thus making the parliamentary ^Amendments, Article lo. ^See per Gwynne, J., in City of Fredericton v. The Queen, 3 S.C. R., at pp. 563-4, 2 Cart, at p. 56. ^Section 92, No. 16, British North Ainerica Act. See infra pp. 342-3, 651-61, 71 1-2. Mr. Schouler speaks of two States of the Union supersed- ing " that tumultuous assembly of a single House . . . by a truly American legislature of two branches : " Constitutional Studies, at p. 205. All the State legislatures now consist of two Houses. The provinces of Ontario and Manitoba have each a single House only. Comparison with United States System. Ixiii. bodies they were creating each supreme in its own domain, though in the case of direct conflict of legis- lative enactment, Dominion legislation, if intra vires, will place in abeyance that of a province.^ In the United States it is quite otherwise. The powers of Congress are not expressed to be given to Congress exclusively, and are not construed as exclusive, " unless from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion that the power was intended to be exclusive," otherwise " the true rule of interpretation is that the power is merel}' concurrent. "" Again, they no more separated the judicial or exec- British , , . , . f. principles in utive power from the legislative so far as concerns the Domin- ion Consti- the internal affairs of Canada and Canadian Courts, '"''°"- than they are separated in the United Kingdom. They gave the provincial legislatures exclusive power over the administration of justice in the pro- vince, including the constitution, maintenance, and organization of provincial Courts, both of civil and criminal jurisdiction, and to the Dominion parlia- ment exclusive power over criminal law, and pro- cedure in criminal matters. They did not prohibit members of the Dominion Cabinet or of provincial Executive Councils being members of the legislature during their continuance in office, and so preserved the British system of responsible government in ^See m/ra pp. 347-64, 663-70. "Story on the Constitution, 5th ed., Vol. i, p. 335. Ixiv. Legislative Power in Canada. Dominion and province alike. ^ In framing a funda- mental law for the Dominion they restrained their hands,- and allowed as free scope as in the nature of the case was possible for that process of organic growth of the Constitution coincidently with the organic growth of the nation, which is one great virtue of the Constitution of the United Kingdom ; and they did their best to secure to Canadians as a heritage for ever the precious forms of British liberty. The preamble of the British North America Act embodies neither " official mendacity " nor " dip- lomatic inaccuracy," but the simple truth, in intim- ating that in its federal character the Constitution of the Dominion is similar in principle to that of the United Kingdom. Appiicabii- Nevertheless the British North America Act tty of Ameri- [onslt"o resembles the Constitution of the United States in legislative , . . . ^ . . , ^ , power. that it unites in federation what were lormerly separate colonies of Great Britain, with a federal legislature for federal matters, and local legislatures for the domestic affairs of each component party to the federation, and so there ma}' be very naturally a tendency among us in Canada, as a Quebec Judge says, "Jeter les yeux d'abord chez nos Toisins"^ to iSee sections 65, 83, and 88 of the British North America Act. ^" The very inflexibility of the Constitution tempts legislators to place among constitutional articles maxims which (though not in their nature constitutional) have special claims upon respect and observ- ance. . . Other federal Constitutions go far beyond that of the United States in inscribing among constitutional articles either princi- ples or petty rules which are supposed to have a claim to legal sanc- tity ; the Swiss Constitution teems with ' guaranteed ' rights :" Article on Federal Government in the Law Quarterly Review, Vol. i, at pp, 86-7, by A. V. Dicey. ^Per Jette, J., in Lambe v Fortier, R.J.Q., 5 S.C, at p. 358. Comparison with United States System. Ixv. see how their Courts have dealt, if at all, with such questions of legislative power as arise with us. And therefore it may be worth our while to endeavour to ascertain with as much accuracy as possible how far the distribution of subject matters of legislation between Congress and the States, resembles that between the Dominion parliament and the provin- cial legislatures, and so arrive at a conclusion as to what hope there may be of deriving assistance from the decisions of American Courts. Now, in the first place, we may at once discard as useless for our pur- poses the great mass of American constitutional case Applicabil- ity of Ameri- law dealing with questions arising under the sep- f^" 'lec's- " T ° ^ ions as to arate State Constitutions, and which is so ably po^vief.""^ treated of in Judge Cooley's work on Constitutional Limitations, and also all that other great mass deal- ing with the interpretation and scope of those funda- mental restrictionson legislative power underthe Fed- eral Constitution which have been referred to, such as that against impairing the obligation of contracts. Apart from this, even if the clauses granting powers to Congress were identical in wording with the various clauses of section gi of the British North America Act enumerating Dominion powers, it would still be neces- sary to remember, in the first place, that our provincial legislatures have also specific grants of legislative powers over various broad subject matters, which powers they hold by exactly the same title as the Dominion Parliament holds its powers,^ so that the ^It is easy to see that the gift to the Dominion parliament of a gen- eral residuary power to make laws for the peace, order, and good gov- ernment of Canada, rendered expedient the specification of various Ixvi. Legislative Power in Canada. Problems peculiar to Dominion system. two sets of powers have to be reconciled with each other, and the whole Act has to be read together, whereas under the United States Constitution the only powers granted are those granted to Congress ; and all powers not granted to it, nor prohibited to the States, are reserved to the States respectively or to the people, as has been already pointed out. It is obvious that the necessity of reconciling the double enumeration of powers, the one with the other, in the case of the Dominion Constitution, might in many cases make the interpretation of the Federal powers different and more circumscribed than they would be if they stood alone. Moreover, it would still be necessary, also, to ascertain and remember the scope of the general residuary power of the Domin- ion parliament to make laws for the peace, order, and good government of Canada,^ which has already been referred to, and nothing similar to which is granted to Congress." To interpret the Dominion exclusive power to make laws in relation to the regulation of trade and commerce, in view of the provincial exclusive power overproperty and civil rights in the province,and over shop, saloon, tavern, auctioneer and other licenses, — provincial powers, while to ensure there being no dispute as to the right of the Dominion parliament to exercise the more important Federal powers, it was necessary to specify these also. See, also, infra pp. 663- 71- ^As to it see infra pp. 310-38. -The Government of the United States is one of enumerated powers : Cooley's Constitutional Limitations, 6th ed., at p. ii. "This specifi- cation of particulars evidently excludes all pretension to a general legis- lative authority : " Federalist, No. 83, cited Story on the Constitution, 5th ed., Vol. 2, at p. 545, n. Cf. per Matthieu, J., in The Export Lumber Co. v. Lambe, 13 R. L., at p. 93. Comparison with United States System. Ixvii. to interpret the exclusive provincial power over pro- perty and civil rights in the province, in view of the exclusive Dominion power over interest, and bank- ruptcy and insolvency, — to interpret the Dominion exclusive power over the criminal law'^ in view of the exclusive provincial penal power for enforcing laws of the province, — these are problems which have given plenty of work to Canadian Courts, but of a character which do not arise under the Constitution of the United States. And, indeed, it appears that comparatively a very small part of American constitu- tional law is concerned with any questions of the relative powers of Congress and the separate States. But as a fact the grants of power to Congress are by Powers of ... . . , Congress no means identical in their v,'ording with those to the compared with those Dominion parliament, - and those of them which can be parHamem'" said to be similar in wording, or obviously embraced by and included in Dominion powers, are all of them such as, standing alone as they do in the Constitution of the United States, give rise to little or no difficulty of interpretation, and seem to have been seldom before the .Courts. I refer to the powers to borrow money on the credit of the United States, to establish a uniform rule ^On the second reading of the British North America Bill in the House of Lords, Lord Carnarvon said of this Dominion power over criminal law : — " In this I cannot but note a wise departure from the system pursued in the United States, where each State is competent to deal as it may please with its criminal code, and where an offence may be visited with one penalty in the State of New York, and with another in the State of Virginia. The system here proposed is, I believe, a better and a safer one : " Hansard, 3rd Series, Vol. 185, p. 564. And cf. Debates on Confederation, at p. 41. Note, also, the important Dominion power over marriage and divorce. And see, infra pp. 548-9. *And so per Caron, J., in Dubuc v. Vallee, 5 Q.L.R., at p. 35. Ixviii. Legislative Power in Canada. of naturalization and uniform laws on the subject of bankruptcies throughout the United States, to coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures, to provide for the punishment of counterfeiting the securities and current coin of the United States, to promote the progress of science and useful arts by securing for limited timesto authors and inventors the exclusive right to their respective writings and disco- veries, to constitute tribunals inferior to the Supreme Court, to define and punish piracies and felonies Powers of committcd on the high seas, and offences against the Congress wldfthose ^3^^^ of nations, to declare the punishment of treason, parliament?" to admit ncw Statcs into the Union, and to dispose of and regulate the territory or other property belong- ing to the United States. To these we may add, so far as the relation of the Dominion to the Empire re- quires or allows the Dominion parliament to be con- cerned with such matters, the power to raise and sup- port armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, and to provide for organizing, arming and disciplining the militia. These grants of power to Congress no doubt resem- ble moreor less closely or are obviously included with- in the grants of power to the Dominion parliament in the British North America Act, but it will be seen that they present no serious difficulty of interpreta- tion, there being no exclusive grants of power to the States to be reconciled with them. There only re- Comparison with United States System. Ixix. main six other powers granted to Congress. The first, which is to lay and collect taxes, duties, imports and excises, is, as has already been pointed out, granted subject to certain restrictions which alone create any difficulty in its niterpretation, and which have no parallel in the case of the Dominion parliament ; the next is to regulate commerce with foreign nations, and among the several States and with the Indian tribes, which has been the subject of a multitude of legal decisions, but the interpretation of which can obviously throw little Powers of Congress light on that of the far wider Dominion power to '^o'"p^''«d " '^ with those make laws in relation to the regulation of trade pLnamln^" and commerce, especially supplemented as the lat- ter is b}' the other Dominion powers over navigation and shipping, banking, bankruptcy and insolvency, and other matters with which trade and commerce are mainly concerned. Then comes a power granted to Congress over post offices and post roads, upon the mterpretation of which some doubt has arisen, which has not arisen in reference to the Dominion power over postal service, possibly because the latter is supplemented by the general residuary Dominion power already spoken of. The next power granted to Congress and not al- ready noticed, namely, that of declaring war, grant- ing letters of marque and reprisal, and making rules concerning captures on land and water, concerns matters in our case pertaining to the Imperial Government. There only remains th^ power grant- ed to Congress to exercise exclusive legislation in all cases whatsoever over such district (not exceed- matter. Ixx. Legislative Power in Canada. ing ten miles square) as might become the seat of the Government of the United States, and over places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings, and the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. Theconciu- So that on the whole comparison, Taschereau, sion ot the ^ ' ' J., seems abundantly justified in saying, as he did in one case, that " the relative positions of the parliament of the Dominion of Canada, and the legislatures of the various provinces, are so entirely different from those of Congress and the legisla- tures of the several States, that all decisions from the United States Supreme Court,though certainly always entitled to great consideration, must be referred to here with great caution^;" and Fournier, J., in say- ing " if there be in many respects an analogy between the two countries, there is certainly none whatever in the mode adopted for the distribution of the legislative power'-"; and Gwynne, J., in sa}'ing that "our Constitution, though of a federal nature, is totally different from that of the United States."'^ I4 S.C. R., at p. 299, I Cart., at p. 321. 2Valin V. Langlois, 3 S.C.R., at p. 55, i Cart, at 193. ^Jh re Niagara Election Case, 29 C.P. at p. 274. The Law of Legislative Power IN Canada. PROPOSITIONS 1 AND 2. 1. The British North America Act is the sole charter by which the rights claimed by the Dominion and the Prov- inces respectively can be determined. 2. Althouo-h the British North Amer- ica Act was founded upon the Quebec resolutions, and so must be accepted as a treaty of union between the provinces, yet when once enacted it constituted a wholly new point of departure, and es- tablished the Dominion and Provincial Governments with defined powers and duties, both alike derived from it as their source. The former of the above propositions is taken One '■ \ constitu- from the words of Gwvnne, I., in Mercer v. The«'onai •^ . charter. Attorney-General for Ontario,^ and is of great I5 S.C.R. at p. 675, 3 Cart, at p. 56-7, (1881). The learned judge speaks in a similar manner in City of Fredericlon v. The Queen, 3 S.C R. at p. 563, 2 Cart, at p. 55, (1880). And so, also, in Venning V. Steadman, 9 S.C.R. at p. 224, (1S84), Henry, J., says :— " The authority of the Dominion government and the Dominion parlia- ment is, as 1 take it, altogether under the Confederation Act." 2 Legislative Power in Canada. Prop. 1-2 importance. Many of the propositions formulated in this book may be said to be corollaries from it ; for example, that no consent or acquiescence of the Crown in the form of non-exercise of the veto power, Corollaries, or othcrwlse, can render valid an Act otherwise ultra vires and unconstitutional under the British North America Act/ — that no Colonial Secretary has ex officio a right by a despatch or otherwise either to add to, alter or restrain any of the legislative powers conferred by the Act, or to authorize a subordinate legislature to do so,- — that provincial legislatures have no powers excepting the enumerated powers which are given to them by the Act.^ It follows also from it that, as indicated in the notes to Proposition 4, the state of legislation and the legislative powers exercised in the various provinces prior to Confederation can at most only be usefully referred to to throw light upon the language of the Imperial Act when that language is doubtful. The second y]-jg secoud Propositiou might also be fairly said proposition. r o j to be a corollary from the first. It is not taken in its entirety from any one judgment, but would appear to embody correctly the result of the author- ities at the present time, although there are some dicta, as will be seen, opposed to it. The Privy It would sccm, howcvcr, from Bank of Toronto v. Council. Lambe,^ that the matter is one not yet argued out before the Privy Council. Their lordships say : — " It has been suggested that the provincial legislatures possess powers of legislation either inherent in them ^Proposition 1 1. 2 Proposition 13. ^Proposition 66. *I2 App. Cas. at p. 587-S, 4 Cart, at pp. 23, (1887). General Character of Federation Act. 3 or dating from a time anterior to the Federation Prop. 1-2 Act, and not taken away by that Act. Their lord- ships have not thought it necessary to call on the respondent's counsel, and, therefore, possibly, have not heard all that may be said in support of such incline to views. But the judgments below are so carefully b.n.a. Act . . . . . IT • r ^ exhaustive. reasoned, and the citation and discussion 01 them here has been so full and elaborate, that their lord- ships feel justified in expressing their present dis- sent on these points. . . . They adhere to the view which has always been taken by the Committee, that the Federation Act exhausts the whole range of legislative power, and that whatever is not there- by given to the provincial legislatures rests with the Parliament."^ In moving the second reading of the British North America Act in the House of Lords, Lord, _, Lord Carnarvon said: — "To those resolutions " (sc, the Carnarvon. Quebec Resolutions) " all the British Provinces in North America were, as I have said, consenting parties, and the measure founded upon them must be accepted as a treaty of union."'-' And he alsoA^fireaty observed that, although, it was, of course, within °'^""'°"' the competence of Parliament to alter the provisions of the Bill, yet he would be glad for the House to understand that the Bill partook somewhat of the nature of a treaty of union, every single clause in it had been debated upon over and over again, and had been submitted to the closest scrutiny, and, in fact, each of them represented a compromise between the several interests involved. What we have to deal with now, however, is the ,, . ' ' Its in bearing of the Propositions under discussion uponP"^^'^"' the question of what are the proper and legitimate ^See Proposition 26 and the notes thereto. -Hansard, 3rd Series, vol. 185, p. 558. inter- tion. Legislative Power in Canada. Prop. 1-2 methods to be applied in interpreting the provisions of the British North America Act.^ Per Henry, J. In Mercer v. The Attorney-General for Ontario,* where the question before the Court was whether lands escheated to the Crown for defect of heirs belong to the province in which they are situate or to the Dominion, Henry, J., observes: — " Our atten- tion was directed at the argument to the position of founded on Canada immediately preceding the passage of the Act thingsbefore as regards Crown or waste lands, and also to that tion. of Upper Canada before the union with Lower Can- ada. Holding, however, the views I do as to the result of the union of the four provinces in 1867, I am unable to feel that much, if any, weight should be given to an argument founded on the position, as touching the question under consideration, which the provinces or any of them occupied at any time before Confederation, except so far as the Act Save when Specially rcfcrs to such positiou. The Imperial Act hyTr "' was not one forced upon the provinces by an arbi- ^In the argument in In re Portage Extension of the Red River Valley R.W., Cass. S.C. Dig., p. 4S7, (reported in extcnso by Holland Brothers, Senate Reporters, Ottawa, printed by A. S. Woodburn, Ottawa, 1888), Mr. Mowat, who w^as of counsel in the case, said {at p. 62) : — " In various cases that have been decided, I am not quite sure whether in this Court, or in other Couits, reference has been made to the resolutions upon which the British North America Act was founded. What degree of importance should be attached to them has not been stated, but at all events it is reasonable for judges to look at them, and, if they do find that they throw any light on the subject, they should avail themselves of that light. . . . The pro- ceedings preliminary to the American constitution are frequently referred to in their Courts, and even their debates arc referred to. We have no debates, because at the Conference the sessions were held with closed doors, and there has been no publication of what was said." But Ritchie, C.J., observes (p. 64) :— " Are we to construe the Act of parliament with the resolutions? It shows that it was before the mind of the draughtsman, or those who negotiated this draft, — the understanding between the representatives of the different provinces in England at the time of the passing of the Act, and it appears that when it came to be put in binding form they most materially altered it. The inference is that they altered it advisedly." See, also, Clement's Canadian Constitution, at p. 219. •■^5 S.C.R. at p. 657-S, 3 Cart, at p. 43-4, (1881). Does the Federation Act alone Govern ? 5 trary proceeding of an overruling legislative body, Prop. 1-2 depriving them, or any of them, of legislative power. In such a case it might be contended that the extent of the deprivation must be ascertained from the Act ; and as regards any subject or matter not embraced in it, the power would still remain. Here, however, the case is far different. The Act was passed, as it ,. . r , . . Must look recites, on the application 01 the provinces to give to Act alone . . , . forall rights. legislative sanction and authority to an agreement entered into on the part of the provinces for their federal union. The implied, if not expressed, prin- ciple acted on was, that all rights and privileges, including legislative as well as others, of each of the provinces should be surrendered ; and that each should, if the union were consummated, depend sub- sequently for the exercise of their rights and privi- leges upon the Imperial Act to be passed, to give effect to the agreement for union entered into. This is patent in the Act itself, and in the resolutions of the delegates upon which it was founded and passed. I could give many reasons, and show many facts, to prove the correctness of this proposition ; but it appears to me only necessary to suggest that if it were intended to be otherwise, we would reason- ably expect to find provision made for intended exceptions. The absence of any such is strong presumptive evidence that none were desired." And there seems to be a certain analogy between Henry, J.'s, view as thus expressed as to the principle Per acted on in the British North America Act and the view of Strong, J., in St. Catharines Milling and Lumber Co. v. The Queen,' where he says that the scheme by which the British North America Act carried out Confederation was " by first consolida- ting the four original provinces into one body politic, ^13 S.C.R. at p. 605, 4 Cart, at p. 134, {1887). 6 Legislative Power in Canada. Prop. The Act a redistribu- tion of the Dominion into provinces. 2 — the Dominion, — and then redistributing this Do- ~ minion into provinces, and appropriating certain specified property to these several provinces," whence he argues that it follows that the residue of the property belonging to the Crown in right of the provinces before Confederation not specifically ap- propriated by the appropriation clauses of the Act, sections log and 117, to the newly-created provinces, must of necessity have remained in the Crown, and it is reasonable to presume for the use and purposes of the Dominion.^ Per Taschereau, J- And, if by "central government," and "central power," is to be understood " Imperial government," and " Imperial power," the words of Taschereau, J., in Attorney-General of Quebec v. Attorney-General of Canada,- would seem to accord with those of Henry, J., just cited. After stating that "there is only one sovereignty for the whole Dominion, and this sovereignt}' resides in the federal executive power," ces surren- hc adds : — " Bcfore Confederation, each of the clered their . . i • i i • i r sovereignty, provmces was mvcstcd With this character ot sover- eignty ; but in joining the federal union each of them made a full surrender to the central government of this sovereignty, with its privileges, prerogatives, and ^_^j attributes, as also of the revenues proceeding from revenues. |.}^g cxcrcise of Said privileges, prerogatives, and ^The conclusion thus arrived at by Strong, J., but little harmonizes with what counsel for the provinces in their argument before the Privy Council in that case (14 App. Cas. at p. 50, 4 Cart, at p. 1 13) asserted, apparently correctly, to be a feature of the British North America Act, viz., that, " as to legislative powers, it is the residuum which is left 10 the Dominion ; as to proprietary rights the residuum goes to the provinces. Where property is intended to go to the Dominion, it is specifically granted, even though legislative authority over it may already have been vested in the Dominion." ••^i Q.L. R. at p. 181, 3 Cart, at p. 114, (1876). Does the Federation Act alone Govern ? 7 attributes.^ By the British North America Act, ppop. 1-2 1867, has been reconveyed to the separate provinces by the central power some of these rights and revenues, and only from such reconveyance can the provinces derive their right and title : Reg. v. Taylor, 36 U.C.R. 191." However, in his pamphlet entitled Letters upon the Interpretation of the Federal Constitution, (first letter),- Mr. Justice Loranger says, at p. 40 : — " It is • 1 • 1 11 Contrary one of the pomts of the doctrme hostile to local powers view of , . . . - - . , . Ltiranger, J. that, m entermg mto Confederation, the provinces returned to the Imperial government all the rights theretofore possessed by them, as well as all their property, so that a new distribution thereof might be made between them and the Federal government. This doctrine, which exhibits the imagination of its inventors, does not, in an equal degree, show the solidit}' of their powers of reasoning, for not only do we not find one word in the resolutions of the con- ference, the parliamentary discussion, or the Union Act, which might be construed into such a volun- tary renunciation of their autonomy by the provinces, but this supposition is contrary to all the political events which preceded, accompanied, and followed Confederation ; it is altogether improbable, and we must say is repugnant to common sense." In the Thrasher Case'^Crease, J., speaks as though per the surrender had been to the Dominion parliament. ''^^^^' iJn a speech of the Hon. Geo. Brown, in 1864, he s.iid :— " There was one point to which he was desirous of calling particular attention, namely, to the fact that in framing their constitution they had carefully avoided what had proved a great evil in the United States, and that is the acknowledgment of an inherent sovereign power in the separate States, causing a collision of authority between the General and State governments, which, in time of trial, had been found to interfere gravely with the efficient administration of public affairs :" Gray on Confedera- tion, p. 122. ^Quebec, 1884. See Proposition 64. 3i B.C. (Irving) at p. 199, (1882). 8 Legislative Power in Canada. Prop. 1-2 He says : — " Everything the colony could give up, consistently with its Imperial allegiance, was vested dTt's""''' S'bsolutely in Canada, and redistributed or reserved canldl'" *° Dominion or Province respectively by the pro- visions of the British North America Act/' He afterwards observes that perhaps he should substi- tute the word " merged '" for "vested absolutely in Canada," and adds : — " The province had parted with all her rights in order to take some of them again in a different and (except when otherwise specifically prescribed) in a subordinate shape." Per Gray, J. And Gray, J.,1 speaks in much the same way. The learned judges, however, were referring more especially to British Columbia, and it may be thought more accurate to speak of her surrendering her powers to the Dominion when entering Confed- eration than it would be to speak of the provinces first confederated having done so. ]*" It cannot be disputed that, as pointed out bv Spragge, r y f j CJ Spragge, C.J., m Hodge v. The Queen, ^ the effect of the British North America Act was more and other than a distribution of legislative power, it Jx^tfngui'sheci ^^^ an extiuctiou of legislative power in regard to p°^vinci.ii some subjects which, up to Confederation, had been powers. subjects for provincial legislation. But it is easy to understand the point of view of Mr. Justice Loranger, Loranger, iH his pamphlet just referred to,-' where he says:— ..sview. ,, j^^ ^j^^ case of the Canadian confederation the provinces did not attribute to the federal govern- ment powers of a nature different from those that *l B.C. (Irving) at p. 224. '■'7 O.A.R. at p. 254, 3 Cart, ai p. 169, (1882). =*At p. 44-5- Does the Federation Act alone Govern ? 9 each before possessed. They delegated to it a por- Prop. 1-2 tion only of their local powers to form a central power, that is to say, the}^ allowed it the manage- ment of their affairs of a general character, but retained their own government for their local affairs. It was a concession of existing powers that was The , . , ..... - provinces made to it and not a distribution or new powers, conceded to the The powers of the central government came from Dominion , . . f. , . , . certain the provinces, as those ot an ordinar}' partnership powers, come from the partners ; to invert the order and state that the powers of the provinces come from the central government would be to reverse the natural order of things, place the effect where the cause should be, and have the cause governed by the effect." And in his Parliamentary Government in the British Colonies,* Mr. Todd says: — "ForM^To^ds the purpose of enabling the central government to"'^"'' undertake the supreme authority of control and general legislation in and over the entire Dominion of Canada, the provinces agreed to surrender to the federal parliament the exclusive right to make laws for the peace, order, and good government of Can- ada in relation to all matters not coming within the classes of subjects assigned (by the British North America Act) exclusively to the legislatures of the provinces." However, with submission, the correct view inxheiegai legal theory is indicated by the Propositions under' ^"^^ discussion, namely, that neither does the Dominion parliament get its powers from the provinces, nor the provincial legislatures theirs from the Dominion, but both alike derive their powers from the Imperial parliament under the British North America Act. ^2nrl ed., at p. 432. 10 Legislative Power in Canada. Per Hagarty, C.J. The B.N. A Act a com- plete rear- rangement. Prop. 1-2 In Reginati. Hodge, in the Ontario Court of Queen's Bench, ^ Hagarty, C.J. , uses words confirmatory of our leading Propositions, saying : — " The British North America Act completely rearranged our Constitution and established the Dominion and provincial gov- ernments with defined powers and duties; " and in Leprohon v. The City of Ottawa" the same learned judge expressed the view that " we must take the Confederation Act as a wholly new point of de- parture. The paramount authority of the Imperial parliament created all the now existing legislatures, defining and limiting the jurisdiction of each. The Dominion government and the provincial governments alike spring from the same source." And in the same way, though not so strongly, in Ex parte Owen,'^ Weldon, J., says : — " The British North America Act is the commencement of a great change, — a new point of departure in And a new departure. our legislation takes place." Per Ramsay, J In Bank of Toronto v. Lambe,* Ramsay, J., says : — " I do not hesitate to say that to pretend Acuofi774 that the Acts of 1774 and 1791 have any direct bearing on the interpretation to be given to the 179 have no direct bearing on B.N. A. Act. 1 46 U.C.R. at p. 149, 3 Cart. 187, (1881). In an article on Federal Government in Canada, 9 C.L.T. at p. 220, Mr. Bourinot cites this dictum of Hagarty, C.J., and also that of Strong, ]., in St. Catharines Milling and Lumber Co. v. The Queen, quoted supra pp. 5-6, but says : — " But by no reasoning from the structure of the Act can this contention which makes the provinces the mere creations of the statute, and practically leaves them only such powers as are specially stated in the .Act, be justified. If it were so there must have been for an instant a legislative union, anil a wiping out of all old powers and functions of the provincial oiganizations, and then a re-division into four provinces with only such powers as are directly provided in the Act." But besides the authorities cited in the notes to this Proposition, see also Proposition 66 and the notes thereto. 22 O.A.R. at p. 532, I Cart, at p. 604, (1878). 34 P. & B. (20 N.B.) at p. 490, {1881). *M.L.R. I Q.B. at p. 168, 4 Cart, at p. 61, (1885), sub noiii. ' The North British and Mercantile Fire and Life Ins. Co. v. Lambe. ' But see the words of Mr. Justice Loranger, infra pp. 15-16. The Federation Act was a New Departure. ii British North America Act appears to me to be Prop. 1-2 neither loyal nor honest." And in the City of Fredericton v. The Queen, ^ Gwynne, J., in the j"^*y""^* same way, in the course of his instructive judgment in that case, observes that the object of the British North America Act was by the exercise of sovereign Imperial power, called into action by the request of the then existing provinces of Canada, Nova Scotia ^^^ g j^ ^ and New Brunswick, to revoke the constitutions ^'^''■fy°|^**' ' the old con- under which those provinces then existed, and, as^"'""°"'*' the preamble of the Act recites, to unite them feder- ally into one Dominion, under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom.- And to refer again to the Thrasher Case,"' Gray, |°^'°°' p^"" J., there says: — "This Act has hitherto been considered by all Courts, all judges, all statesmen, and public men as a new departure in the Constitu- tion of Canada, as well as of the several provinces forming the Dominion. The authorities are so numerous that the position may be assumed as ationai'' , . i- .... , axiom. recognized axiom 01 constitutional law, when ap- plied to Canada or its constituent parts." And he then quotes the words of Hagarty, C.J., above cited, in Leprohon v. The City of Ottawa. And, lastly, some words of Holroyd, J., in the inter- esting Australian case of Musgrove v. Toy,* a case An also alluded to in the notes to Proposition 9, are an^alogj'.*" in point here. He says: — "Whatever measure I3 S.C.R. at p. 560-1, 2 Cart, at p. 54, (1880). ^See, also, per Gwynne, J., in Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 711, 3 Cart, at p. 83-4, (1881). 3i B.C. (Irving) at p. 224, (1882). *14 V.L R. at p. 428, (1888). M cover intent 12 Legislative Power in Canada. Prop. 1-2 of self-government has been imparted to the colony, we must search for it in the statute law, and collect and consolidate it as best we may. Nobody can have studied the development of self- government in the Australian colonies without having observed the tentative and cautious manner in which British statesmen have proceeded in their arduous task. The impulse which has warmed them into action has always been supplied from the colonies themselves. But we must not forget this, that it is the parliament of the United Kingdom, guided bv the statesmen of the mother country, ust dis- n J -^ 'of^the^^^^ has granted to this colony the whole measure Imperial ^f self-govemment which it possesses. It was the parliament. o t parliament of the United Kingdom which authorized Her Majesty to give the royal assent to the Consti- tution Act, and it is the intention of the parliament of the United Kingdom, as disclosed in the Consti- tution Act of which it approved, that we must set ourselves to discover." Opposing There are, however, dicta which may seem *^"''^' opposed to the views expressed in the leading Propositions. Thus in Bank of Toronto v. Lambe,^ Per jette, J. Jcttc, J., says : — " To reach a sound interpretation of our Constitution we must here, {sc, in considering the British North America Act), as in the interpre- Must con- . 1 1 11 U sider tation of our ordinary contracts, seek, above all, the intention of . • i j i_ u provincial meaning which must have been intended by the delegates. • i? A J representatives of the confederated provinces. And Pe"'^^^ Henry, J., also, from whose judgment in Mercer f. The Attorney-General for Ontario a passage is cited above, speaks in a manner suggestive of a different view in City of Fredericton v. The Queen, - iM.L.R. I S.C. at p. 41, 4 Cart, at p. 97, (1884), .wA nom.^ 'The North British and Mercantile Fire and Life Ins. Co. v. Lanibe.' 23 S.C.R. at p. 548, 2 Cart, at p. 44, (1880). See p. 4, supra. Relevancy of Ante-Confkdekation Status. 13 saying: — "In order properly to construe the British ppop. 1-2 North America Act, it is necessary and proper to consider the position of the united provinces before ofVovfnces" the Union. Each had what may be properly called federaiio°n" plenary powers of legislation in respect to provincial subjects. In the agreement for the Union provision was made for the general powers of Parliament and the local legislatures, as well as for the 'ways and means' by which each was to be sustained. It was by a surrender of the local legislative power, to the extent agreed upon, that the powers of Parliament were agreed to be given. It was in the nature of^^ . <-> <^ Ihe Act a a solemn compact, to be inviolably kept, that thc^""^?-""^'- rights and prerogatives of both were adopted, and the agreements entered into were intended to be carried out by the Act mentioned. That that com- pact cannot be changed by one, any more than another of the contracting parties, is a proposition embodied in despatches from the Imperial govern- ment, and one which I think cannot be gainsaid. It is, therefore, only permissible to construe the Act in conformit}' with that consideration." In like manner,in Molson y. Chapleau,^Papineau, J., observes : — " The terms themselves of the preamble of the Act demonstrate that, if there is a union, it is a federal union : ' Whereas the And a provinces of Canada, Nova Scotia, and New Bruns- solemn contract. wick, have expressed their desire to be federally united, etc.,' her Majesty and her Parliament have passed the Act of 1867 to carry out this desire. The provinces also have granted to the Dominion a large part of the powers which belonged to them at the moment of union. But they have kept some powers which belong to them, to the exclusion of ^6 L.N. at p. 224, 3 Cart, at p. 367, (1883). Cf. l?elanger v. Caron, 5 Q.L.R. at p. 21, (1879). 14 Legislative Power in Canada. Prop, 1-2 the Dominion which they have wished to form, and for which they have expressed the desire to contract their union. The Imperial parhament only acts to give effect to the contract, the conditions of which were settled in conferences of the provincial dele- interpre^ted gatcs. The Imperial Act is Only the solemn contract accor ing>. ggj-g^i^iigi-^jj-ig |-}^g ^^j-^i^lgg g^g^gg^j j-Q ]^y the provinces in the conferences which preceded the confederation. It ought then to be interpreted without losing sight of this historical fact." So per And again in Regina v. Frawley^ Spragge, C.J., <^-J- referring to No. 15 of section 92, whereby provincial legislatures can make laws in relation to the imposition of punishment by fine, penalty, or im- prisonment, for enforcing any law of the province, etc., and after stating that in order to the enforcing of by-laws of municipal corporations, imprisonment with hard labour was one of the means authorized by the law of Upper Canada before (Confederation, says: — " The Act," (sc, the British North America Act), " as has been often said, was the fruit of a compact. Is it reasonable to read the Act as if intended to fetter the provincial legislatures in their discretion as to the kind of imprisonment which they should judge to be reasonable and proper for an infraction of their laws, even to abridge the power in matters of police regulation — matters peculiarly within their province — which they alread}^ possessed ? . . It is safe to say that the word ' imprisonment ' could not have been received in that sense by the parties chiefly interested in the compact, — the provinces." This mode of reasoning may be permissible, but, if our second leading proposition expresses the correct view of the matter and the British North America Act 17 O.A.R. at p. 267, 2 Cart, at p. 585, (1882). Relevancy of Ante-Confederation Status. 15 is to be regarded as a new departure, it can scarcely Prop. 1-2 be correct to say, as Peters, J., does in Kelly v. Sulivan^: — " This Island had a constitution similar to that of the other British North American view that provinces when it entered the confederacy. . . . fJdembli The British North America Act of 1867 does notnor"""°"' abrogate these provincial constitutions, but merely'^ ^°^^^^ ' withdraw^s from them the power of making laws regarding certain matters, enumerated in the gist Per 1-11 • ,,,..,.. Peters, J. section, over which they previously had jurisdiction. But as to all matters not so withdraw-n, the provinces remain in possession of their ' old dominion,' and retain their jurisdiction over themHassome •' support in in the same plight as it previously existed;'' al- ^^^c^^+o^^^^ though section 64 of the British North America Act, which provides that the executive authority of Nova Scotia and New Brunswick shall continue as at the Union until altered under the authority of the Act, may seem to lend some countenance to the theory of the continuance of the ante-Confederation con- stitutions.- The argument in favour of the view thus expressed by Peters, J., will be found elaborated Per by Mr. Justice Loranger in his " Letters upon the Loranger, j. Interpretation of the Federal Constitution," already ■^ Letters on referred to.^ At p. 14 he says: — "The constitution Federaicon- *■ -^ stitution. of the provinces of Upper and Lower Canada had come to them by the Constitutional Act of 1791, which was not repealed by the Union Act of 1840, but simply modified to make it harmonize with the new system. It is therefore to the Constitutional Act of 1791 that we must look for the origin fn'^l^gljof'' of the powers of these legislatures which were ^2 P.E.I. , at pp. 91-2, (1875). For documents relating to the early constitution of the maritime provinces, see Can. Sess.- Pap. 1883, No. 70. See, also, Clement's Canadian Constitution, p. 25, sei/. ^See the notes to Propositions 26 and 66. 3P. i{ seq. Prop. 66. i6 Legislative Power in Canada. Prop. 1-2 in force at the time of Confederation," Part of these powers, he contends, (p. 62), "they" {sc, the provinces) "ceded to the Federal parhament to Provinces ^xercisc thcm in their common interest and for tTetJier purposes of general utility, keeping the rest, which .Tontlhough they left to be exercised by their legislatures, acting modified, jj^ ^i^gjj. provincial sphere, according to their former constitutions, under certain modifications of form, established by the federal compact." But see Proposition 66 and the notes thereto. Moreover, the Union Act of 1840 does (Imp. 3-4 Vict., c. 35, sec. 2) repeal so much of the Act of 1791 "as pro- vides for constituting and composing a legislative council and assembly, and for the making of laws." fiJurinoi Mr, Bourinot, however, seems to favour the same Lorrnger'!;. vicw. Hc follows the passagc already quoted from his article on Federal government in Canada,^ by saying: — " The weight of authority appears to rest with those who have always contended that on entering into the Federal compact, the provinces never intended to renounce their separate and distinct existence as provinces when they became part of Confederation." And he refers with approval to the argument of Mr. Edward Blake in St. Catharines Milling and Lumber Co. v. The Queen, from which an extract in point will be found contained in the latter part of the notes to Pro- position 64, infra. But we find a useful warning against attaching too much importance in construing the British North America Act to the state of things before Confederation J., contra.' hi the words of Crease, J., in the Thrasher Case-: — "To us in British Columbia, — penitus toto orbe divisos, ^9 C. L.T. at p. 220. See supra p. lo. n. i. •■^I B.C. (Irving) at p. 195, (1882). Relevancy of Ante-Confederation Status. 17 — it is given to look with an eye that pays no regard Prop. 1-2 to the inter-provincial divisions, rivalries, or distem- peratures existing previous to Confederation, and which that great measure was intended to cure. No judgment here will be biassed either way by such considerations. We do not ask or care what negotiations took place before Confederation, but what was the effect, — where the terms of the contract itself are clear, — of the contract of union itself on British Columbia ? . . . And that can only be gained coiumWa. by a careful study of the British North America Act itself. It seems strange at this day to be entering into an explanation of such a principle, that nego- tiations are but the necessary preliminaries to a con- tract ; or that there is no proposition in law more accepted than that the preliminaries to a contract, which in itself is so clear and complete, are at once merged in the written contract itself ; but the marked ^^^^^ reference of the Attorney-General during the argu- ^ ^ a'Vi ment to speeches of the great promoters of Confed- eration make it necessary. The Act itself, and the terms of Confederation which it embodies, form the contract, the effect of which we have stated." And f)om°fw of later on in the same judgment, at p. 208, Crease, j./°""^"- quotes the words of Lord Selborne in Regina v. Burah,! where, after saying that the Indian legis- lature has powers expressly limited by the Act of the Imperial parliament which created it, and can do nothing beyond the limits which circumscribe those powers, his lordship adds :— " The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of?7,^°'''^. ' oelborne in necessity determine that question ; and the only way ^^f;^^'- in which they can properly do so is by looking to the terms of the instrument by which, affirmatively. I3 App. Cas. at p. 904, 3 Cart, at p. 42S, (1S7S). i8 Legislative Power in Canada. Prop. 1-2 the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it j°s"ticecan vlolatcs no cxprcss condition or restriction by which te?ml of"/ that power is limited (in which category would, of Act. course, be included any Act of the Imperial parlia- ment at variance with it), it is not for any court of justice to enquire further, or to enlarge construct- ively those conditions and restrictions." " Lord enlargethem Selbomc," obscrvcs Crcase, J., "does notsayyou must Wdy.'^"'^' enquire into all the previous negotiations which led up to its enactment, or that we must look to a previous compact and give our legal interpretation to the Act by the light of that." And before concluding this article we may notice that in the Queen v. The Mayor, etc., of Frederic- ton Fisher, J.,^ endeavours, in view of the history and civil of the Union, and the way it was brought about, to province, import a sort of special significance to the provision in No. 13 of section 92 of the British North America Act, whereby jurisdiction over property and civil rights in the province is assigned to provincial legislatures. He is there discussing whether the j^ 99th section of the Canada Temperance Act, 1878, B N AAct trenches upon property and civil rights more than is necessary for the regulation of trade in intoxicat- ing liquors, and says: — " Notwithstanding that all the exclusive powers of the parliament and local legislature are co-equal in their energy and author- ity, I have ever considered the power to deal with property and civil rights the least liable to assault, significance g^j-j^j ^hc powcr of all othcrs to be most sacredly attributed ^ _ ... Fiih'^T guarded and maintained; propert}- and civil rights 13 P. & B. at pp. 169-170, (1879). Relevancy of Ante-Confederation Status. ig would appear to cover the whole field of enquiry Prop. 1-2 and legislation in the parliament, and the local legislature, — the great bulwark around which clusters the interests and liberties of every individual within the limits of the Confederacy. Referring to the history of the Union of the confederated provinces and to their peculiar condition previous thereto, we know that while each province evinced a justifiable The history jealousy on this subject and a determination |-Q°'"'i^eUnion reserve to the local legislature the exclusive right to deal with it, one province made it a condition upon which alone it would enter the Union, that its local legislature should exercise this power. To provide for this entire control, the English language was put into requisition to select terms or phrases which should then and in all coming time secure that object by defining the authority in the largest sense. This subject, the dealing with this power, the security it was designed to provide for in the different provinces, was the primary question to be solved before any terms of Union could be agreed upon. Other objects of importance were discussed and disposed of as incidental to the new state of things the Union would call into existence ; but an inability to agree upon the question of property and civil rights would have rendered every effort for . . . _ Essential Union abortive. Upon this branch of the enquiry condition of ^ •' the Union. I should feel it my duty in construing this or any other Act, if I had any doubt as to its interfering," (sc, unnecessarily), "with property and civil rights, to give the benefit of that doubt to that authority, and for the reason I have stated." There does not, however, appear to be in the Sed ^ucsre. British North America Act itself, or in the decisions generally, anything to support the view that the provision in section 92 as to property and civil rights 20 Legislative Power in Canada. Prop. 1-2 has any greater sanctity or stands in any different position than that of any of the other provisions in sections gi and 92 conferring legislative powers ; though at the same time it may be true that, as is intimated in Citizens' Insurance Co. v. Parsons^ and in Re Windsor & Annapolis R.W. Co.,^ the words Acfshouid ' " property and civil rights " are to be understood in interpTJted. their largest sense. In fact, as stated by Tessier, J., in Bank of Toronto v. Lambe^ : — " The Confedera- tion Act was passed with the object of consolidating (concilier) the interests and rights of the pre-existing provinces ; that Act should be liberally interpreted. It is but a federal alliance in which each province has been constituted with a regular government."* 17 App. Cas. at p. in, i Cart, at p. 276, (1881). 24 R. & G. at p. 321, 3 Cart, at p. 398, (1883). 8M.L.R. I Q.B. at p. 166, (1885), sub nom. 'North British and Mercantile, etc., Ins. Co. v. Lambe.' And see Proposition 3 and notes thereto. *As to the theory of the continuance of the old provincial, or rather colonial constitution in Canada, see also the notes to Proposition 4, infra, esp. at p. 64, seq. Legislative Power in Canada. 21 PROPOSITION 3. 3. Courts of law must treat the pro- visions of the British North America Act by the same methods of construction and exposition which they apply to other statutes [of a similar character, that is to say, statutes conferring constitutional charters]. The British North America Act cannot be construed in a rigidly technical manner. The opening words of the above Proposition, that is to say, " Courts of law must treat theThe^Privy provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes," are taken from the judgment of the Privy Council in The Bank of Toronto v. Lambe^, and it is well to notice the connection in which the words were used. They come at the very commencement of the judgment, which begins as follows: — "These appeals raise one of the many difficult questions which come up for judicial decision under those provisions of the British North America Act, 1867, which apportion legislative powers between the parliament of the Dominion and the legislatures of the provinces. It is undoubtedly a case of great constitutional impor- tance, as the appellant's counsel have earnestly ^12 App. Gas. at p. 579, 4 Cart, at p. 12, (1887). 22 Legislative Power in Canada. Prop. 3 impressed upon their lordships. But questions of this kind have been left for the decision of the donai"" ordinary Courts of law, which must treat the pro- o?quS"ons visions of the Act in question by the same methods no't^conuoi of construction and exposition which they apply to construction Other statutcs." Thus it would appear that, in their RN.A. Act. iiTimediate application, the words used by their lordships had reference to their dictum that the con- stitutional importance of the questions raised must not affect the construction of the Act. In the same way in Ex parte Renaud,^ Ritchie, C.J., delivering the judgment of the majority of the New Brunswick Supreme Court, says : — " We are at a loss to discover anything in the British North America Act indicating a legislative intention of using the words otherwise than in their ordinary regTded^ meaning." As Crease, J., observes in the Thrasher strSiy legal Case,- in interpreting the British North America S°^ Act, "The point to be settled is a legal one. We have to regard it from a strictly legal point of view." Similarly, in reference to the Constitution of the So with the United States, Prof. Dicey writes in his Law of the United ' •' , , • , i statescon- CoHstitution" : "The task, in short, which lay stitution. before the great American commentators was the explanation of a definite legal document in accord- ance with the received canons of legal interpre- tation." Per Thus again in Ex parte Leveille,* Mackay, J., says : Mackay.j. _,, ^ ^^^^ ^^^^ ^^^ British North America Act must il Pugs, at p. 286, 2 Cart, at p. 464, (1873). 2i B.C. (Irving) at p. 196, (18S2). 33rd ed., at p. 5. *2 Steph. Dig. at p. 446, 2 Cart, at pp. 349-50. (1877)- General Construction of Federation Act. 23 be interpreted as any other statute. The whole of Prop. 3 it must be considered, and, if possible, force must be given to each clause of it. Though the 91st section reads as it does, the next one has been "[^^ ^•^•^- ' Act must be enacted. Why? Surely not to conflict with the [^""/j^'^^Y^^'^^^^ preceding one ; but presumably to work with it. I [frfndp'ies think it a qualification of it ; as the last statute in ^^^°ljlll point of time controls, so later clauses are held to qualify earlier ones ; the last clause is the last expression of the law maker. Cannot section 92 be worked w-ithout violence against section 91 ? I think that it can. Section 91 being enacted, 92 expresses a particular intention in the nature of an exception to it.^ It is said to be repugnant; no nature of an , 1111 • 1 exception to more so than would have been a proviso to the Sect. 91. same effect. Section 91 gives the Dominion the regulation of commerce in the wide sense, but '-^ _ . The regula- section 92 allows Quebec province to make certain tion of ^ '-' ^ _ trade and regulations affecting purely internal commerce."" commerce. In like manner, in Reg. v. Taylor,-'' Draper, C.J., f)°aper'','cj. says : — " We must consider what is the effect of the apparent interference or inconsistency between sections 91 and 92. Mr. Dwarris (on Statutes, 2nd ed., at p. 513) states as a rule that the general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute, referring to Magna Charta, Inst., pp. 20, 30, the 9th branch or clause of which confirms to the Barons of the Cinque Ports 'all their liberties and free customs,' but these words are restrained by branch or clause 17, which took from ^See Proposition 40 and the notes thereto. ^As to this matter of the regulation of trade and commerce, see the notes to Proposition 49. 336U.C.R. atp. 223, (1875). 24 Legislative Power in Canada. Prop. 3 them the right to hold pleas of the Crown. I may here properly apply the language of Best, C.J., in Churchill v. Crease, 5 Bing. at p. 180, and say I should have thought the language of section gi, the regulation of trade and commerce, conclusive if intentTon there had been no conflicting intention to be col- particuiar lectcd from the Act ; but the rule is, that where intention. i . ^ a general mtention is expressed, and the Act expresses also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. This appears to me to settle any question as to inconsistency between the two sections," Anexampie And for au example of the ordinary rules of Strong, J. statutory interpretation being applied to the con- struction of the British North America Act in a matter of wide importance, we may refer to the judgment of Strong, J., in Queen v. Robertson, ^ where the Supreme Court had occasion to interpret Sea coast No. 12 of section 91, whereby power to lee^islate in and inland . ^ -^ ^ ° fisheries. relation to sea coast and inland fisheries is bestowed upon the Dominion parliament. He observes that : — " It is a sound and well-recognized maxim of con- struction that in the interpretation of statutes we are to assume nothing calculated to impair private rights of ownership, unless compelled to do so by interfere" '° Gxpress words or ueccssary i mplicatlon . . . I think wuh^pnvate ^j^gj-g jg ^^^^^^ ^^^ applying an analogous principle in the present case. Although the provision in question does not in itself make any disposition of the fisheries mentioned, but is merely facultative, empowering Parliament to make laws respecting the subjects mentioned, we are not to assume, without express words or unavoidable implication, that it Must not assume intention to ^6 S.C.R. at p. 134, 2 Cart, at p. 107, (1SS2). General Construction of Federation Act. 25 was the intention of the Imperial legislature to con- Prop. 3 fer upon Parliament the power to encroach upon private and local rights of property which by other sections of the Act have been especially confided to the protection and disposition of another legis- lature." ^ And for another example we may turn to the Another ^ -^ example, words of Dorion, C.J., in Bank of Toronto t;. perDorbn, Lambe- : — " It has been contended that, as by sub-section 16 of section 92 the local legislatures were authorized to legislate on all matters of a purely local or private nature in the provinces, they were therefore authorized to raise a revenue for provincial powerTof purposes by all modes of taxation, including direct "'^''"°"' and indirect, as well as by customs and excise duties. The answer to this contention is obvious. One of the most elementary rules of interpretation of statutes is that general provisions in an Act of parliament do not control nor affect the special enactments which it contains, and therefore the general authority conferred by sub-section 16, as to Matters of matters of a purely local or private nature in thep"vate ^ -^ "^ nature 1 province, can only apply to such matters as are not'^ep''°" specially provided for by the Act, and as the subject of provincial taxation is specially provided for by sub-sections 2 and 9 of section 92, sub-section 16 does not apply to the subject of taxation. If sub- section 16 was not limited by the preceding sub- sections 2 and 9, these sub-sections would have sect q2, . B.N. A. been quite unnecessary, since sub-section 16, by the generality of its terms, would have covered all ^See Proposition 53. 2M.L.R. I Q.B. at p. 136,4 Cart, at p. 34-5, (1885), sub nom. ' North British and Mercantile, etc., Ins. Co. v. Lambe.' nature in nee No. 16 of Act. 26 . Legislative Power in Canada. Prop. 3 subjects over which the provhicial legislatures could have exercised their legislative authority."^ "And other In Augcrs V. The Oueen Insurance Co.,- licenses, " "^ . No. 9 of Taschereau, T., after observing that if the words sect. 92. . . o "other licenses" in No. g of section 92 was to P" , be construed as comprising licenses to insurance Taschereau, i c> J- companies, then banks, railroad companies, and express companies are also comprised in these words, and in effect the power to tax indirectly is unlimited, goes on to cite extracts from the debates The debates on Confederation in the Canadian parliament in erationmay ordcr to support his opiuion that the constitution guide. ' ' did not intend this, and follows- them up by the remark : — " No doubt, the Imperial statute must, as any other statute, be construed by itself, and the opinions I have referred to are not legal authorities. But can w^e not look at them in order to interpret this statute ? And it is to be borne in mind, in referring to the history of our constitution, that those persons whose opinions I have cited formed part of the preliminary conference when the resolu- tions on Confederation were framed. Can it be said ^Though it does not afiect the matter in relation to which the above extract is cited, it may be observed that a little later on in the same judgment (M.L. K. i Q. B. at p. 145, 4 Cart, at p. 42) the learned judge says: — " It will be said that in the case of Dow z'. Black, L.K. 6 P.C. 272, I Cart. 95, the Privy Council stated that tliere might be other taxes imposed under sub-section 16 besides those mentioned in sidvsections 2 and 9, but this was entirely outside of the case, since their lordships were of opinion that the tax claimed was a direct tax, and they did not indicate what other taxes could be imposed under section 16, and therefore it cannot be said to what they allude by the observation they made. I am, however, free to admit that there may possiljly be some taxes which might be imposed for a local purpose under subsection 16." See on this subject the notes to Proposition 66, iitfra. 2i6 C.L.J. N.S. at p. 203, I Cart, at jij). 146-7, (1877). Provincial Taxation by License. 27 that a commentary on a law by the author of that Prop. 3 law should have no weight ? " ^ ^As to the meaning of the words "other licenses" in No. 9 ofMeaningof section 92, it would appear from Russell v. The Queen, 7 App. Cas. at ''°''^^'' „ . p. S38, 2 Cart, at p. 21, (18S2), that the Privy Council certainly did not No."9^of '" deem them to refer only to licenses ejusdcin generis, for they speak sect. 92. theretj/vVt/'of "licenses granted under the authority of sub-section 9 by the provincial legislature for the sale or carrying of arms. " In Hamilton -phe Privy Powder Co. z'. Lambe, INI.L.R. i Q.B. at p. 463, (1885), Cross, J., Council, expresses the view that he was bound by the decision of the Supreme Courtof Canada in Severn z'. The Queen, 2 S.C. R. 70, i Cart. 4 14, (1878), to hold that " other licenses" must be restricted to those ejiisdem generis, and cites Doutre on the Constitution of Canada, p. 230, as showing that the Privy Council have spoken in the same way as to that sub- section. But there is a most curious mistake here, for the case referred to by Doutre, namely. Brown z^.The Curate, etc., of Montreal, L. R. 6 P.C. 157, was not a case under the British North America Act, and had nothing to do with No. 9 of section 92, but was a case where the Privy Council rigidly applied the rule cjusdein generis to a law of the Queljec legislature. And in this case of Hamilton Powder Co. v. Lambe, at p. 467, Ramsay, J., would seem to hold that at all events the license there in question, namely, for the storing of gunpowder, was Licenses to authorized by No. 9 of section 92. But that in Severn v. The Queen, store gun- 2 S.C. R. 70, I Cart. 414, a majority of the judges decided that the P°^^'^'^''- rule of cjusdein generis applied to No. 9 there is no doubt : per G Wynne, J., in Molson v. Lambe, 15 S.C. R. at p. 288, 4 Cart, at p. 348, who adds that Severn v. The Queen is not shaken by Russell V. The Queen, 7 App. Cas. 829, 2 Cart. 12, but "is still a judgment binding upon this Court and all Courts in this Dominion." Severn t/. In Severn v. The Queen, Ritchie, C. T-, says that the rule of eJiisdeDi The Queen. generis could not apply to "other licenses," for, in fact, the licenses specified were not ejusdeni generis, nor could the maxim nosiitur e sociis be applied {2 .SC. R. at pp. loO-i, i Cart, at p. 443), and Strong, J., expresses the same view (2 S.C.R. at pp. 106-7, i Cart, at p. 450). On the other hand, Richards, C.J., thinks they should be restricted to licenses cjiisdeni generis (2 S.C.R. at p. 91, scq., I Cart, at p. 435, seq.) ; and so do Fournier, J. (2 S.C.R. at |). 118, I Cart, at p. 462), and Henry, J. (2 S.C.R. at p. 140, i Cart, at p. 4S5), and apparently Taschereau, J. (2 S.C.R. at p. 114, i Cart, at p. 458). And in the case decided some two years before Severn v. The ]^^K- '"• Queen, of Regina v. Taylor, 36 U.C.R. at p. 198, Wilson, J., had ^^^■'°''- held in the same way, namely, that the effect of the words " other licenses" must be determined by the rule noscitur e sociis, aclding : — " They seem to have a particular connection with, and affinity to, those licenses which are commonly mentioned and found along with shop, saloon, tavern, and auctioneer licenses, and which are chiefly contained in the municipal Act, such as licenses on billiard tables, victualling houses, ordinaries, houses where fruit, etc., are sold, hawkers and peddlers, transient traders, livery stables, cabs, intelli- gence otlices, and perhaps other licenses in the regulation of markets and in some other cases." And he hekl, therefore, that the Ontario legislature had no right to impose a license on brewers and distillers, Brewers' for " the business of these persons is not specified plainly in the statute ''""^^^■ giving the Ontario legislature the power over them ; and it is an estab- lished rule that a statute which imposes a tax must be strictly con- 28 Legislative Power in Canada. Prop, 3 And although the British North America Act must be construed by the same methods of con- struction and exposition as other statutes, it would seem necessary to explain that what is meant The B.N. A. Act must be construed as other statutes of a similar character. Per Draper, C.J. Per Wilson, J- License duty on all trades and callings. Police regulation. strued, a fortiori must a claim of right to impose a tax be strictly con- strued, whether it be by the Crown or by any subordinate power or person whatsoever. And the business of a brewer has always been dealt with as a matter of excise, and of direct government control, and is so still." But on appeal to the full Court, Draper, C.J., with whom Strong, Burton, and Patterson, JJ., express a general concur- rence (see at p. 222), thought the argument founded on the applica- cion of the rule was answered "by the consideration of the object,' rais- ing a revenue for provincial as well as for local and municipal purposes. ' " He adds : — "I think we should not look out of the Imperial Act for the socii, whose character is to affix a meaning to 'other licenses'; and granting that the four named occupations have got into low com- pany in the Ontario Municipal Act, they are lifted out of it in section 92." But the decision of the case did not turn on this point, and the Court affirmed Wilson, J., in holding that the Ontario legislature could not impose a license and payment of duty therefor upon wholesale sellers of spirituous liquors. Wilson, J., in this case of Regina v. Taylor, 36 U.C. R. at p. 199, seems to advance a somewhat curious view, that because the business of a brewer is, and has always been, carried on under strict government rules and regulations, it could not under any circumstances be included within such general words as " other licenses." For, he says : — "It cannot be said that a business of that nature is one which is covered by, or included within, the general words ' and other licenses,' especially when these words are in associa- tion with licenses of a very inferior and different class, and which relate only to sales by retail, while the brewers' license relates to sales by wholesale." Turning to New Brunswick, we find that in Ex parte Fairbairn, 2 P. & B. (18 N.B.) 4, (1877), the provincial Act, 38 Vict., c. 88, imposing the taking out of a license, to be granted by the Mayor of Fredericton, on any person, not being a ratepayer, engaging " in any trade, profession, occupation, or calling in the said city," was held intra vires, under No. 9 of section 92 of the British North America Act ; and this was approved and followed in Jonas v. Marshall, 4 P. & B. (20 N.B.) 61, (1880), where a similar Act as to St. John, 33 Vict., c. 4, was also held intra vires in the same way. Palmer, J., saying (at p. 63): — " I think the 9th sub-section of section 92 gives exclusive powers to the local legislature to legislate in relation to licenses of any kind that they may think desirable for the purpose of raising a revenue for provincial, local, or municipal purposes, and for no other purpose." When this case came before the Supreme Court of Canada, s?/t/ra p. 40, n. i. 33 P. & B. at pp. 188-9, (1S79). And see per Richards, C.J., in Reg. V. Boardman, siipra pp. 35-6. Dominion Control of Criminal Law. 37 local legislature passed to regulate the sale of liquor Prop. 3 by license under the qth sub-section of section q2 of „ J -^ -> So per Allen, the British North x\merica Act would not render cj- such Act invalid as dealing with the criminal law, because by the 15th sub-section authority is given to make provision to enforce an}' law within the powers of the local legislature by fine, penalty, or imprisonment. The sale of spirituous liquors is not malum in se ; it only becomes criminal when it is sold in violation of some statute ; and an Act of the local legislature regulating the sale, if within its powers, as several of the recent Acts of Assembly on the subject undoubtedly were, might be enforced by punishments similar to those prescribed by section 100 of the Canada Temperance Act." And that a thing must be malum in se to come within the meaning of "criminal" in No. 27 of section gi appears to have been argued in Reg. y. Harper,^ g^^ggP^j though left undecided, and in Reg. v. Wason,- Street, J., asks, of the provincial Act there in question : — " Is it an Act constituting a new crime offences for the purpose of punishing that crime in thept,biic interest of public morality? . . If it is . . I think it '"°'^' is bad as dealing with criminal law."'^ But as Dugas, J., points out in Reg. v. Harper, just referred to, it is not necessary to revert to No. 27 of section gi to find the right of the central power to pass laws creating offences and imposing punishments in the interests of peace, order, and good government in the Dominion. Russell v. The Queen^ seems to support this view. iR.J.Q. I S.C. at p. 329, (1892). 217 O.R. at p. 64, 4 Cart, at p. 6i6, (1889). ^See further, as to the meaning of " criminal law " in No. 27 of section 91, infra pp. 40, n. i, 49-51. *7 App. Cas. 829, 2 Cart. 12, (1882). But see per Wetmore, J., at p. 50, iiifra. 38 Legislative Power in Canada, Prop. 3 Although, then, the British North America Act must be construed by the same methods as are Must not appHed to other statutes, this must be understood as construe the -t^-t^ ' Hgoro'lisf" meaning other statutes of the same character. And so in Paige v. Griffith, ^ Sanborn, J., says: — "The British North America Act, conferring legislative powers, is not to be construed rigorously, like a penal Act conferring judicial powers." And he dis- sents therefore from the view of Drummond, J., and No. isof Torrance, J., in Ex parte Papin,- that under No. 15 SGCt Q2 of section 92, giving the provincial legislatures power to pass Acts for enforcing the laws of the province "by the imposition of punishment by fine, penalty, Provincial or imprisoumeut," they could not authorize punish- penal _ _ '■ powers. ment by both fine and imprisonment, for, he says : — " Prior to the British North America Act there can be no doubt that each province had the power to enforce laws which now relate to subjects under the exclusive jurisdiction of the provincial legislature by fine, penalty, and imprisonment," and "it is a gen- Coioniai erally accepted doctrine that where the Imperial gr^Ted""" government has granted powers to a colony, it drawn""'" ncvcr withdraws them," citing Phillips v. E3're,-^ and quoting from Kent's Commentaries,^ the rule that, "For the sure and true interpretation of all applied to statutes, whether penal or beneficial, four things are the B.N A. , . , " , , , Act. to be considered : What was the common law before the Act ? What was the mischief against which the common law did not provide ? What remedy the Parliament had provided to cure the I18 L.C.J, at p. 122, 2 Cart, at pp. 326-7, (1873). '■^15 L.C.y. at p. 334, 16 L.C.J. at p. 319, 2 Cart, at pp. 320-2, (1871-2). 3L.R. 4 Q.B. 225, 6 Q.B. i. This might be qualified by adding, " except on request of the colony," remembering the case of Jamaica in i860, Todd's Pari. Gov. in Brit. Col , 2nd ed., p. 103; Froude's West Indies, pp. 201-2. *The passage will be found in the Blacks, ed., V(j1. I., pp. 464-5. General Construction of Federation Act. 39 defect? The true reason of the remedy." And he Prop. 3 goes on to say : — " Applying these rules in their spirit, we must consider what legislative powers existed in the several provinces of the Dominion prior to the passing of the British North America Act, and was it the intention to abridge these powers or simply to make a new distribution of them ; I think plainly the latter."^ And in what is sometimes called the pardoning per Boyd, power case, Attorney-General of Canada ?;. Attorney- donlng'^'^ General of Ontario,- Boyd, C, speaks of "the liberal casl" construction to be given to this (sc, the British North America Act) as a broad constitutional statute conferring and distributing high and large powers of government, both as to Canada and the^, . . 1 OS -Act provinces. It is to be read in the light of history, mustteread •^ _ _ ° -^ ' in the light and with a view to adjust its parts to the life and °'''^'story. growth of free political communities. The Act is framed both as to the central and local governments, so as to confer a constitution similar in principle ^^^ nberai- to that of the United Kingdom." And accordingly {>;,X^''i^;^' he held in that case that the Ontario Act, 51 Vict ., ";;"/ct"' chapter 5, which purported to vest in the Lieu- tenant-Governor for the time being, amongst other powers, the power of commuting and remitting sentences for offences against the law of the province, or offences over which the legislative authority of the province extends, was intra vires.''' He rejected the argument that nothing in section 92 of the British North America Act contemplates legis- lation in reference to the pardoning power in any case, however restricted, as a contention raised on ^See, however, Proposition 4, and the notes thereto. 220 O.K. at p. 254, (1890). ^This decision has been since affirmed by the Ontario Court of Appeal, . 19 A.R. 31, and by the Supreme Court of Canada, not yet reported. 40 Legislative Power in Canada. Ppop. 3 the letter of the law and not in accordance with the liberal construction which for the reasons just mentioned he deemed should be given to such an Act, and he held that there was no difficulty in classifying the provincial Act in question as one fstC^2°l{ rnade in relation to punishment, thus, in the result, B.N.A. Act. -j-hrowing the responsibility of advising the exercise of the pardoning power in the case of offences against provincial Acts upon the provincial Min- isters, in accordance with that principle of respon- sibility which is the essence of British parliament- ary government and which characterizes the British North America Act. " In brief," he says (20 O.R. at p. 255), "the executive is made accountable to the electorate. Power and responsibility go hand in hand."i Thomas v. Haliburton. Crimes at common law. ^Since the above was in the press the report of the Nova Scotia case, Thomas z'. Haliburton c( a/., 26 N.S. 55, (1893), has appeared. There the validity of a provincial Act came in question, which provided in general terms that the House of Assembly should have the privileges, immunities, and powers of the House of Commons of Canada, and by one of its sections purported to deal with libels, forgery, tampering with witnesses, and other offences, and also con- stituted the House of Assembly a court, and appointed its members judges, for adjudicating upon such crimes, and provided for the im- prisonment of an offender. Graham, E.J., with whom McDonald, C.J., concurred, cites the case of Reg. v. Lawrence, referred to on p. 36, supra, and says: — "While the provincial legislature may legislate in respect to its privileges, I think it cannot seize the right to adjudicate upon a crime indictable at common law, merely because that offence touches its privileges." Weatherbe, J., however, at pp. 66-67 says : — " I supposed this short answer would be sufficient to meet such an objection, namely, that the province having the un- doubted power to prevent obstructions to the business of legislation could prevent obstructions or interference as such, whether that inter- ference was so violent as to amount to criminal conduct, or whether it was conduct less violent. Such legislation l)y the province, I think, is not an interference with Dominion legislative power dealing with and defining crime. It is not denied that the Dominion parliament could make all insults criminal, and all manner of acts which might constitute obstruction to the provincial legislature crimes," and beheld the Act to be tnh-a vires. It would seem to be only upon the principle b'.N.A.' Act. expressed in Proposition 37, as applied to provincial legislatures, that such legislation as was in question in Reg. v. Lawrence can be upheld, if at all. No. 27 of sect. 91 Relevancy of Ante-Confederation Law. 41 PROPOSITION 4. 4. The state of legislation and other circumstances in the various provinces of the Dominion of Canada prior to Con- federation may sometimes have to be con- sidered in determining the construction of the clauses of the British North America Act respecting the distribution of legislative powers, as may also the character of legislation in England itself.' In view of the authorities as they at present exist, Undecided ... , , , . position of it appears impossible to lormulate anything more the matter, definite than the above Proposition upon the sub- ject referred to. In Crombie v. Jackson,- Wilson, J., observes that the British North America Act " must be presumed to have been passed, as Acts of parliament always are presumed to be passed, with a knowledfje M"^''"'"- '■ ^ ' _ pret in view bv the legislature of the then existing law, and the^f/'n'^ <.:°n- -^ '^ . federation decisions of the Courts upon the matter, which is '•''"■ the subject of legislation," drawing the conclusion that an Act of the Dominion parliament prescribing a certain order of procedure in respect to claims b}- and against assignees in insolvency could not be beyond the powers of the parliament under section gi. No. 21, " because at the passing of the British North America Act there was a system of proceeding 1 This page has been reprinted before publication to point out that the Privy Council, as noted infra ]i. 398, n. I, have now larjjely des- troyed the value of the judgments cited on pp. 43-9, 54-61, as lo No. 8 of section 92 of the Act, ' municipal institutions in the province.' 2 34 U.C.R. at p. 580, I Cart, at p. 687, (1874). 42 Legislative Power in Canada. Prop. 4. in insolvency in force in the two former provinces of Upper and Lower Canada very similar to the one established by the Act in question." And in St. Catharines Milling and Lumber Co. v. The Queen, ^ So per Strong, J., says : — " In construing this enactment," (ic, the British North America Act), "we are not only entitled, but bound to apply that well-established rule, which requires us, in placing a meaning upon descriptive terms and definitions contained in stat- Must regard utcs, to havc rccoursc to external aids derived from circ'um-^'"^ the surrounding circumstances and the history of the"hbwry'^ thc subject-mattcr dealt with, and to consider the B.N.A. Act. enactment by the light derived from such source, and so to put ourselves as far as possible in the position of the legislature whose language we have to expound. If this rule were rejected and the language of the statute were considered without such assistance from extrinsic facts, it is manifest that the task of interpretation would degenerate into mere speculation and guesswork." Complexity Thc matter, however, i? one of great complexity question, and difficuHty. On the one hand, it seems difficult to dispute the accuracy of the words of Mr. Justice Gwynne in the City of Fredericton v. The Queen, ^ where he speaks of the provinces as " wholly new creations brought into existence solely by the In view of British North America Act," and adds: — "The Tta^eVin cxccutive and legislative authority of all the fand"2."°"^ provinces as at present constituted, as well as of the Dominion, are due to the British North America Act, which now constitutes the sole constitutional charter of each and every of them, and which with sufficient accuracy and precision, as it seems to me, defines the jurisdiction of each," or the similar 1 13 S.C.R. at p. 606, 4 Cart, at p. 135, {1887). ^ 3 S.C.R. at p. 563, 2 Cart, at p. 55, (1880). The Confederation Act a New Departure. 43 words of Hagarty, C,J., in Leprohon v. The City of Prop. 4 Ottawa^ : — " We must take the Confederation Act as a wholly new point of departure. The para- [^"f^'^^"'^' mount authority of the Imperial parliament created JJ^^'^^j^^g all the now existing legislatures, defining and limiting the jurisdiction of each. The Dominion government and the provincial government alike spring from the one source";- while it is also neces- sary to bear in mind, as pointed out by Spragge, C.J., in Hodge y.The Queen," that the effect of the British North America Act was in some cases more and other than a distribution of legislative power, it was an extinction of legislative power in regard to some subjects which, up to Confederation, had been subjects of provincial legislation. 4 On the other hand, in Regina v. Frawley,^' we find Hagarty, C.J., saying:— "If at Confederation we found the municipalities had the power to award Hagany, imprisonment with hard labour as direct punish- m"st regard '■ _ '- powers ment for infractions of by-laws, I would strongly p°^^?^se^,>y •' " -^ muiucipali- incline to the opinion that by reasonable intendment 'i^'^''fo''<^ r ■/ Confedera- and implication of law the legislature, who had ''°"- complete control over their existence, and who could hand over to them the disposition of such police or municipal matters as the licensing and regulation of ^2 O.A.R. at p. 532, I Cart, at p. 604, (1878). -5 See Propositions i and 2, and the notes thereto. 37 O.A.R. at p. 254, 3 Cart, at p. 169, (1882). *That so far as subject-matters of legislation are assigned exclusively to Parliament by the Act, the previously existing powers of legislation in regard to them in the legislatures of what are now the provinces are extinguished is obvious ; but the precise meaning of .Spr.igge, C.J., in the passage referred to, in view of" the context in which it occurs, seems so obscure as to suggest some misprint or omission in the report of his judgment. S46 U.C.R. at p. 162, 2 Cart, at p. 601, (1S81). 44 Legislative Power ix Canada. Prop. 4 saloons, must have at least as large a power of deal- ing with the punishment of 'imprisonment';" the In question before the court in that case being whether pow™'of"^ under No. 15 of section 92, giving power to make punishment . . ,,. ^^.i- •• r -i ^ under No. laws m reiatiou to the imposition 01 punishment sect. 92, b}^ fine, penalty, or imprisonment for enforcing any B.N. A. Act. , ^ , . • • 1 1 • 1 . law or the province, provincial legislatures can make a law imposing hard labour as well as imprison- ment.^ c In like manner, in Slavin v. Village of Orillia,- bo per ' o ' Richards, Richards, C.J., delivering the judgment of the Court of Queen's Bench for Ontario, says: — "The British North America Act of 1867 must have been passed on a conference with the delegates from the different provinces, and the various provisions as to the powers and subjects of legislation by the Domin- ion and local parliaments must have been suggested by these delegates. Their suggestions must have It must -^ ° , - , . have been bccn bascd ou pcrsoual knowledge of the various intended to .... continue the modes in wliich legislation on those subjects had legislative _ *=' _ •' powers of the been had in the various provinces before the Con- provinces in respect to federation, and, if it had been intended that similar the subjects assigned to legislation should not have been continued as before them by ° the Act. by ^YiQ various provinces, there is no doubt that such intention would have been expressed in the Act." wiUon, J. -^^^ ^^ ^he case of Regina v. Taylor,^ a case decid- ed a few days later than the case of Slavin v. The Village of Orillia, and reported in the same volume of Ontario Queen's Bench Reports, Wilson, J., finds a strong, if not a decisive, argument in favour of his view that the Ontario Act, 37 Vict., c. 32, requiring ^As to which, see supra pp. 30-1. 236 U.C.R. at p. 176, I Cart, at p. 703, (1875). »36U.C.R. at p. 197, (1875)- Ante-Confederation Municipal Powers. 45 wholesale sellers of spirituous liquors to take out a Prop. 4 license and pay a duty of fifty dollars therefor, was not intra vires, under No. 8 of section 92, as legisla- tion in relation to municipal institutions, in the fact,, r » ' Meaning of that "there was no statute at the time of the Con- >^^"J,'^^p^^^',, federation Act, or at the time of the passing of the ^y'^J^'^^'.^^^. Inland Revenue Act of 1867, which gave any right p'o^'werso" or power to the municipalities to require a trader to ue""""*^^'"' take out any other license than a government license — that is, under the Excise or Inland Revenue Act — nor which gave any right or power to any munici- xheyhadno pality to prohibit the manufacture of beer within its u'liofeTir limits or the sale therein of beer so manufactured, iicenles. so long as the sale was in quantities not less than five gallons or one dozen bottles at one time." And conversely, (at p. 212), he says: — "The Act of the Ontario legislature in imposing a tax for a license on shopkeepers, and tavern-keepers, and others of the like class, for selling by retail, or for continuing the power to municipalities to prohibit the retail of spirituous liquors, is not in excess of the provincial gj.tthgy power, although I conceive it to be partly a regula- retln'^' tion of trade and commerce, because before and at licenses, the time of the confederation of the provinces the existing municipalities in this province possessed that power and privilege, and it was not taken away or qualified in any way by the Confederation Act.^ That Act, too, was in fact passed, and must be pre- j 1 1 111 Imperial sumed to have been passed, by the Imperial govern- go\'er"">ent . knew ment with a full knowledge at the time of the state existing state of law of our law which was affected by the Imperial Act '"Canada. ^" It may, not without some reason, be contended that there is no inherent connection between the liejuor trattic and municipal institutions, which is perfectly true ; but there was, if I may so express myself, a constitutional connection. In, I believe, all the provinces the power to regulate, by the granting licenses to sell, intoxicating liquors existed, etc.:" per Burton, J. A., In re Local Option Act, iS O.A. K. at p. 5S6. See, also, Appendix A. 46 Legislative Power in Canada. Prop. 4 then under consideration, and, among other matters, that part of our law which related and relates to municipal institutions, as they existed at that time, because over ' municipal institutions in the province ' exclusive power was then conferred by it upon the provincial legislatures."^ R-tchards ^^^'^ ^^ Scvem V. The Queen,- Richards, C.J., C.J., again, again lays it down as follows : — " In deciding important questions arising under the Act passed by the Imperial parliament for federally uniting the provinces of Canada, Nova Scotia, and New Bruns- Mustcon- wick, and forming the Dominion of Canada, we stancer'^""^ must considcr the circumstances under which that B.N. A. Act statute was passed, the condition of the different provinces themselves, their relation to one another, to the mother country, and the state of things existmg in the great country adjoining Canada, as well as the systems of government which prevailed Even the in thcsc provinces and countries. The framers of history and '^ circum- ^}-^g statute kncw the difficulties which had arisen in stances 01 the United (-j-^g prj-gat federal republic, and no doubt wished to btates. o r ' avoid them in the new government which it was intended to create under that statute." And later on in the same case"^ he says : — " I think we may, without violating anv of the rules for construing ie|isia°i°on^' statutes, look to the legislation which prevailed in prevailing in 11 r xU • ■ J 2. U1 j. any or all any or all or the provmces, m order to enable us to provinces, be put iu the position of those who framed the laws, and give assistance in interpreting the words used and the object to which they were directed." Accordingly, in the two cases above referred to of Slavin v. The Village of Orillia and Severn v. The ^And see per Maclennan, J..-^., //i re Local Option Act, i8 O.A.R. at p. 596, (1 89 1). •^2 S.C.R. at p. 87, I Cart, at ]). 430, (1S78). ^2 S.C.R. at p. 93, I Cart, at p. 436. Ante-Confederation Municipal Powers. 47 Queen, Richards, C.J. , seeks to interpret the words Prop. 4 "other licenses" in No. g of section 92, which confers upon the provincial legislatures power toJ^^'^'-^^'^^^'' make laws in relation to "shop, saloon, tavern, j^^^J^,, auctioneer, and other licenses in order to the'^^^^o^^^of raising of a revenue for provincial, local, or ^^l'^''^'^'] municipal purposes," and the words " municipal institutions in the province " in No. 8 of section 92, as meaning such municipal institutions and such municipal , . ... 1 -1 institutions licenses as were m existence, and as were imposed in No. s of in the provinces, or at all events in Ontario (to''"'^"' which he is specially, if not exclusively, referring), prior to the passing of the British North America Act; and he says, at the place last cited: — "The province of Canada, before Confederation, being The province r ' "of Canada the largest territorially, having a greater population mt^>^^ have ition. and raising- a larger revenue than either of the other special o o attentic provinces, and being formed by the union of two provinces having different laws, and, to some extent, different interests, would naturally attract attention as the portion of the country where some of the objects of Confederation had been practically 11 ,,,, •,!• ro So, too, per worked out. And so in this same case ot bievern v. Henry,;. The Queen, Henry, J.,^ says, speaking of the power of local legislatures as to licenses under No. 9 of section 92 : — " We must reasonably con- clude the legislature meant to restrict the power at some point, and we must determine where that restriction should be imposed, not only from the Ji'^^n*",^!;. ■ words of the sub-section in question, but from the tenour and bearing of the whole Act, the state of the law at the time, the peculiar position of the united provinces and the object of their union, with the means for working out the constitution provided." I2 S.C. R. at p. 140, I Cart, at p. 485. 48 Legislative Power in Canada, Prop. 4 And in connection witli the same subject in the City of Fredericton v. The Queen, ^ Henr}-, J., No intention Qi^ggj-ygs : — " Previouslv to the union, the revenues to deprive -' ' provinces of (ierived from licenses for the retail of spirituous revenue 1 HceTisel'""' liQuors, I have reason to believe, in all the provinces, were given to and appropriated by municipal bodies, for municipal purposes, and I must conclude they were intended to continue so, or, at all events, to leave it to the local legislatures to decide whether they should so remain, or be appropriated for other local or provincial pur- poses." In the Corporation of Three Rivers v. Suite, - So, also, per Ramsay, J., says :— " By not taking the state of amsay, . ^.j^j^^^g existing in at least three of the provinces at the time of passing of the British North America Act and the legislation then in force, we arrive at Municipal thc iuconvcnient conclusion that the municipal institutions. . , . , . ^, ^ . uistitutions, as they existed prior to Confederation, cannot be maintained by local legislation ; and that, as in the present case, a municipality would be shorn of most useful powers," (namely, the right to prohibit and regulate the sale of strong drink), " by the simple operation of a surrender of its charter, in order that the legislation may, for convenience sake, be amended or consolidated. It is maintained that to renew these powers there must be joint legisla- tion, if that be lawful, which is open to some doubt." Gwyn'ne, J. And similarly per Gwynne, J.f: — "I cannot doubt that by item No. 8 of section 92 . . . the authors of the scheme of Confederation had in view muni- cipal institutions as they had then already been No intention to interfere with them. 13 S.C.R. at p. 554, 2 Cart, at p. 49, (iSSo). See generally as to " other licenses" in No. 9 of section 92, snj^ra p. 27, note I. 25 L.N. at p. 333, 2 Cart, at p. 286, (1SS2). 3S.C. in Appeal, 11 S.C.R. at p. 43, (1SS5). Ante-Confederation Municipal Powers. 49 organized in some of the provinces." And so per Prop. 4 Armour, J., in the Ontario Court of Queen's Bench, in Re Harris and Corporation of the City of Hamil- ^nd ..... Armour, J. ton^: — " In using the term municipal institutions in the British North America Act, it must have been in the contemplation of the legislature that existing laws relating to municipal institutions should not be affected, and that the local legisla- Municipal , , , , , institutions tures should have power to alter and amend these intended to laws, especially where, as m the case of the provisions preserved, under discussion, the local legislature has only enlarged the scope of a power existing in the Muni- cipal Act at the time of Confederation." And in Keefe v. McLennan,- the Supreme Court so per of Nova Scotia reasons that because at the time of coun™f passing of the British North America Act the law sco'tfa. in the province of Nova Scotia relating to the grant- ing of licenses for the sale of intoxicating liquors recognized the right of the Court of Sessions to refuse licenses for the sale of them in small quantities . . . . , , Liquor withm their respective counties, and seeing that the licenses. British North America Act did not repeal the pro- vincial law then in force, therefore : — " When the right of granting licenses was conferred on the pro- vincial legislature, it may very reasonably be presumed p.; h^jg that the intention was that the right should continue ||"tendtd to to be exercised in the same manner as it was then*^"""""^' exercised." In like manner, in the Queen z;. The Mayor, etc.. Per . . WetmoreJ. of Fredericton,^ Wetmore, J., says: — "Toascertam the jurisdiction given to Parliament in reference to criminal matters, we must look at the law as it stood at the time the British North America Act was I44 U.C.R. at p. 644, I Cart, at p. 759, (1879). 22 R. & C. at p. 12, 2 Cart, at p. 409, (1876). 33 P. & B. at p. 160, (1S79). A 50 Legislative Power in Canada. Prop. 4 passed." He is there dealing with the Canada Temperance Act, 1878, and maintaining that it can- " Criminal j^Qf- ^g considercd as coming under No. 27 of section law under " ' No. 27 of gj^ which gives Parhament power over the criminal law, and he explains his meaning thus : — " When the Imperial Act passed, the importation of liquors, subject to duties, was perfectly legal . . . When the provinces confederated, they had impliedly, if pa°rHament Hot cxprcssly, guaranteed to them the right to have TcAmeTf ^ sold within their borders all descriptions of property perfectry* legally manufactuTcd or imported ... If the before Con- Dominion parliament can declare the fair prosecu- federation. . ^ , . . , . , . ^.j, tion 01 a legitimate business to be a crime or oiience, and thereby obtain a control over it in one instance, it can do the same in respect of every action of the inhabitants, social or otherwise, and every description of property, and thereby entirely subvert every freedom of action and every right of property which the people supposed they had a right to enjoy and exercise. I cannot think the Imperial Act ever did or ever intended to place us in such a position." And so again in Regina v. Shaw,^ three judges of MalTitoba. the Court of Queen's Bench of Manitoba agreed in holding that by "criminal law" in No. 27 of section gi must be understood every act or omission which was regarded as criminal by the law of the in Na 2T provinces when the Union Act was passed, and which °Jerstr was not merely an offence against a by-law of a Triminir local authority,- Killam and Bain, JJ., remarking before Con- federation. 17 M.R. at p. 518,(1891). Cf. Clement's Canadian Constitution, at pp. 409-10. See, also, supra p. 36, scq. ^See at pp. 520, 524, and 531, and compare per Burton, J. A., in Reg. V. Wason, 17 O.A.R. at p. 237, 4 Cart, at pp. 595-6, (1890). In his Parliamentary Procedure and Practice, 2nd ed., at p. 674, Mr. Bourinot says that : — " In the session of 1892 a bill respecting pawn- brokers to prevent them practising extortion was withdrawn by the mover at the request of the Minister of Justice, as it was doubtful if it was within the jurisdiction of the Dominion Parliament," citing Hans., 1882, p. 266. Ante-Confederation Criminal Law. 51 (at pp. 520 and 531) that how far parHament can Prop. 4 exclude provincial or municipal legislation, by creating new crimes, is a different question.^ Dubuc, J., it may be observed in passing, (S.C, at p. 528), expresses a view which Proposition 35 and the cases there cited might seem to countenance, that although keeping a gambling house is undoubt- ^ay b^^""^ edly a criminal offence, 3'et such houses might also aisosubjeTt*^ be regarded as centres of disorder and immorality in poUc"' the community which municipal corporations have '^^^" '^"°"' a right and even a duty to suppress. Again, in Mercer v. Attorney - General of Per Ontario,- Gwynne, J., while declaring that thecwynnej. British North America Act is the sole charter by which the rights claimed by the Dominion and provinces, respectively, can be determined, adds : — " In construing this Act, however, it will be con- venient to consider in what manner, and under what K'ghtsto escheats designation or form of expression, property of the ^^^j^^^^^jrojj- description in question," (sc, property escheated to ^^^^1^?^"^^ the Crown), "had been dealt with in prior Acts of "l^^p^l'jy Parliament, and what was the precise condition f^^j^J^^ji*;""' in which that particular species of property was iJn Reg. V. Wason, 17 O.A.R. at p. 241, 4 Cart, at p. 600, Osier, J. A., says: — "I suppose it will not be denied that Parliament may draw into the domain of criminal law an act which has hitherto been punishable only under a provincial statute," referring to Hodge v. The Queen, 9 App. Cas. 117, 131, 3 Cart. 144, 161. In the recent Nova Scotia case of Thomas v. Haliburton, 26 N. S. at p. 73, (1893), Graham, E.J., speaks as though when Parliament has drawn an act into the domain of criminal law, the right of the provincial legislature to pass laws in regard to such acts ceases. Scd qiuere. See Proposi- tion 35 and the notes thereto. 25 S.C.R. at p. 675, 3 Cart, at pp. 56-7, (1881). In this case, also, (5 S.C.R. at p. 658, 3 Cart, at p. 44), Henry, ]., points out a dis- tinction in this matter, and holds that, in respect to legislative power, it is not safe to argue from powers possessed by the provinces before Confederation as to what powers they now possess, for that the Act alone must be looked at, but it may be proper, in order to inter- pret the Act, to regard the state of things before Confederation. See at p. 4, supra. 52 Legislative Power in Canada. Prop. 4 regarded to be, and was at the time of the passing of the British North America Act. By so doing we shall receive light and assistance in construing the latter Act." Ritchie, c.j. ^°' *°°' ^" Queen v. Robertson/ Ritchie, C.J., looks to the laws in relation to the fisheries, which the local legislatures were previously to, and at the time of, Confederation in the habit of enacting, for their regulation, preservation, and protection, as struing throwing light upon the proper interpretation of in No^^a'', No. 12 of section gi, whereby power to legislate in =•60.91. relation to sea coast and inland fisheries is vested in the Dominion parliament."-' And we seem to see an example of the absurd length to which a S} stem of interpreting the words in sections gi and g2 of the British North America Act, conferring legislative powers, by a reference to But must not , r i i 1 ■ r 1 tt • carry the the statc oi the law at the tmie or the Union, may matter too ..... ." far. be carried, m Re Lake Winnipeg Transportation Lumber & Trading Co.,^ where it appears (at page 260) that it was contended that section 5, sub-section (c), of the Dominion Winding-Up Act, R.S.C., chapter i2g, which provides that a company is to be deemed insolvent if it exhibits a statement showing its inability to meet its' liabilties, was ultra vires, because " while the parliament of Canada has exclusive power to legislate respecting ' insolvency,' all that is meant is that it may enforce and deal with the law of insolvency as it stood on the day the British North America Act was passed, but can- not alter that law." The judge, however, (Taylor, 16 S.C.R. at p. 121, 2 Cart, at p. 93, (1882). ^And so per Gwynne, J., in SC. 6 S.C.R. at pp. 69-70, 2 Cart, at p. 122, seq.; per Fisher, J., in Robertson v. Steadman, 3 Pugs, at p. 637, (1876), and in Steadman v. Robertson, 2 P. & B. 594. 37 M.R. 255, (1891). English and American Legislation. 53 C.J.), without discussing the matter, decides against Prop. 4 the contention. Finally, to conclude this line of authorities by reference to a case before the highest tribunal, in Attorney-General of Quebec t;. The Queen Insur- The Privy Ci 1 , . , , Council. o.,i where the question arose whether an Act of the Quebec legislature, entitled "An Act to compel assurers to take out a license " (39 Vict., chapter 7), was in truth a license Act at all, or whether it was not in reality a Stamp Act, the Privy Council distinctly admitted that, if as a factgeemto it could be shown that by the existing legislation lthl!^p\e of in England and America licenses were constantly |;yH|hf of granted on similar terms, it was a fair argument toA.San"'* say that No. 9 of section 92, giving legislative power '^^'*'''"°"- over licenses as therein stated, should be construed with reference to the other subsisting legislation.- To turn now to the other side of the question, Difficulties obvious difficulties arise in relying upon the state of'"'*'^'"^"^'' legislation and other circumstances in the provinces prior to Confederation when seeking to interpret the British North America Act. For instance, the state of things existing in some of the provinces state of »-v,-iV.»- 4-„ r^ f 1 J • • • thingsbefore prior to Uontederation were in some instances Confedera- difterent from those existing in others of thein°diffLren^t provinces, and where this was the case, either ^j^^ 5'''°'"""'- I3 App. Cas. at p. 1099, i Cart, at pp. 128-9, (1878). ^For other citations bearing in the same direction as the above, see per Spragge, C.J., in Reg. z'. Frawley, 7 O.A.R. at p. 267, 2 Cart, at p. 584, (1882) ; per Cross, J., in Pillow tj. City of Montreal, M.L.R. I Q.B. at p. 410, (1885); per Gwynne, J., Queen Z'. Robertson, 6 S.C.R. at p. 70, 2 Cart, at p, 122, se • • 1 XT 1 * • A • • 1 • • • Argument British North America Act, "municipal institutions in Hodge e/. ,, , ...... The Queen. in the province, the provincial legislatures had power to regulate the sale of liquors. Mr. Jeu.ne : — " The circumstance that the muni- cipalities exercised the power before Confederation municipaii- , . ties before proves nothing. confedera- tion cannot Sir Robert Couch :—" It does not show it waSmeani^of part of the municipal institutions." ^"1.92. Sir Robert Collier:—" It is not a question of what they exercised before Confederation. We have only to deal with the statute." Mr. Jeune:~"That is what I submit to your lord- J^'^^J,^;"'^ ships, that it is a question of the meaning of this Act of Parliament, construed, as I venture to think, as an Act of Parliament and not as a charter." - iDom. Sess. Papers, 1884, \'()1. 17, No. 30, at p. 67. -See Proposition 3 and the notes thereto. 58 Legislative Power in Canada. Prop. 4 So in the argument before the Privy Council in the matter of the Dominion license Acts. " Municipal institutions.' Does not mean legis- lature can give munici- palities all powers they had before Con- federation. Object of th.:B.N.A. Act was to take away some provincial powers. And so, again, in the argument before the Privy Council in regard to the Dominion License Acts, 1883 and 1884,^ where Sir Farrer Herschel, of counsel for the Dominion, discussing No. 8 of section 92 of the British North America Act, whereby the exclusive power of making laws in relation to municipal institutions in the province is assigned to the local legislature, makes some weighty observations bearing on the matter in hand (pp. 82-3): — "That cannot mean you may establish municipal bodies, and give them any and every power you please, or even give them every power which has ever been exercised by municipal bodies in Canada. The argument in the Court below was this: — You find that some municipal bodies in some of the provinces of Canada before the Dominion Act have dealt with this question of the liquor traffic. Therefore when you give exclusive legislation with regard to municipal institutions, you give them exclusive power to create municipal bodies, and you give those municipal bodies so created exclusive power over this particular subject. My Lords, I apprehend that that really is an argument that will not bear investigation, because, of course, the very object of this Act was to take away from the provincial legislatures some of the powers which they had before possessed, and to confer those powers upon the central Parliament, and therefore to say that they must necessarily have all the power of legislation which before they could exercise through their municipal bodies is an argument which cannot be sustained. I should submit that the ^The writer has had an opportunity of studying a transcript from the shorthand notes of this most able argument, conducted by Sir Farrer Herschel (now Lord Chancellor) on the one side, and Sir Horace Davey on the other, and several extracts from it will be found in this book. Ante-Confederation Municipal Powers. 59 exclusive legislation in regard to municipal institu- Prop. 4 tions enables them to create municipal institutions and to give those municipal bodies anv powers legislatures ^ ^ ■' ' can only which come fairly within the subiects with which R'^? .■"""'='- -" palities they are entitled to deal, but that unless you can p°'\'^''^ °" -' ' -' subjects find from some other provisions here that it is a T''''^^ ^^^^ i inemselves subject with which they are entitled to deal, the f ^,^"''''F'J •> - ' to deal with. power to create municipal institutions cannot give them the power to enable those municipal institu- tions to deal exclusively with a subject of legislation which is nowhere else exclusively committed to them." Whereupon the Lord Chancellor observes that he would have thought that No. 8 of section 92 Lord , . p ...... , Chancellor meant the creation 01 municipal mstitutions, how asto , . meanin? of many they were to consist of, and how they were ." municipal institutions." to be elected. And these words of Sir Farrer Herschel are ^'^J^-j^^,.^ curiously re-echoed by Burton, J. A,, in In re Local ^'^^'p^^^^^ Option Act, Mvhere he says:— "It does not suggest 5[^'';,rtmrj°A. itself to my mind as at all conclusive in favour of the power of the local legislature to deal with the subject of prohibition under the words ' municipal optTon^Aa. institutions,' that provisions in reference to that subject were, at the time of the passing of the Confederation Act, to be found in our own muni- cipal Acts, and had been so for many years. It ^ . " " Ante-Con- must not be forgotten that the legislature of the fe'i^ration " legislatures province of Canada which passed those Acts had had plenary ^ powers. plenary powers of legislation, including the power to regulate trade and commerce and to deal with the criminal law, and, in fact, all the powers which are now distributed between the parliament of the Dominion, and the legislatures of the provinces. Haying that power, it was clearly competent to the I18O.A.R. at p. 585, (1891). on muni- cipalities. 66 Legislative Power in Canada. Prop. 4 legislature to confide to a municipal council or any other body of its own creation, or to individuals of its And could selection, authoritv to make bv-laws or resolutions confer such - -J as to subjects specified in the enactment, with the object of carrying it into effect ; and the provision in question being found, therefore, within a municipal Act of the provinces furnishes no conclusive evi- foHow""' dence that by the words ' municipal institutions ' it kgisiatu^es was intended to confer every power which might such^ powers be Contained in such an i\ct upon the legislatures of the provinces. It is proper to inquire, therefore, what was the extent of the grant given under that designation. Does it mean only the creation and erection of municipalities with such powers as are of the essence of municipal institutions, and neces- They would sarilv incidcut to and essential to their existence, or seem only "' _ _ able to does it include the powers and functions which, at confer such _ '■ as were the time of Confederation, were ordinarily exercised ordinarily -' exercised in ^Q a grcatcr or less extent bv the municipalities of all the " ./ r before Con- ^^^ ^^^ provinccs ? " And he apparently indicates federation. ^]^q latter as his own view. And this may, perhaps, be taken to be the view of Hagarty, Hagarty, C.J.O.,^ where he says: — "It may be ^■^■*^" safely said that there is no apparent intention in the Confederation Act to curtail or interfere with the existing general powers of municipal councils unless the Act plainl}- transfers an\- of such existing powers to the Dominion jurisdiction." He also deems, it may be observed,- that it is a good argument to iS.C. 18O.A.R. at p. 580. -S.C. at p. 581. In the Quebec case of Corporation of Three Rivers v. Major, 8 Q.L.R. at p. 189, (1881), Ramsay, J., says :— " I should have little hesitation in saying that ' municipal institutions in the province,' within the meaning of the Imperial parliament, could only be those existing over almost the whole of confederated Canada at the time of the federal union. I know no abstract definition. But the question hardly arises here." Relevancy of English Legislation. 6i show that the power granted to township niunici- Prop. 4 pahties to prohibit the retail sale of liquor does not, 1 , , . Regulation Dy any reasonable construction, come within the "f" "'='^6 and "^ commerce words ' trade and commerce ' as used in the Con- '" ^o. 2, sect. 91, federation Act," that "if such a construction pre- "°' ""^".. Vol. 2, pp. 86, 93. ' But see Clement's Canadian Constitution, at pp. 326-8. As to the power of the Dominion parliament in this respect, see section 18 of the British North America Act, and Mr. Clement's notes thereto : zd., at p. 262, sf(j. See, also, zl>. at pp. 280- 1 ; and the notes to Proposition 66, infra. 219 L.C.J. 210, 2 Cart. 165, (1875). ^As to the judgment of Dorion, C.J., in this case, in his pamphlet entitled "Letters upon the Interpretation of the Federal Constitution," (first letter), before referred to, Mr. Justice Loranger, (at pp. 41-2), quotes passages as from that judgment which are not to be found in it as reported in 19 L.C.J. 210, 2 Cart. 165. According to Mr. Justice Loranger, Dorion, C.J., used the following words : — "I do not read that the intention of the new constitution was to begin an entirely new form of government, or to deprive the legislature of any of the powers which e.\isted before, but to effect a division of thein. Some of them are given to the local legislatures, but I find none of them curtailed. In substituting the new legislation for the old, the new legislature has, in all those things which are special to the province of Quebec, all the rights of the old legislature, and they must continue to remain in the province of Quebec, as they existed under the old constitution." *I9 L.C.J, at pp. 235-6, 2 Cart, at pp. 197-8. Privileges of Old Colonial Legislatures. 65 certain sense the powers of the Federal parhament Prop. 4 were derived from the provinces, subject, of course, to the whole bein? a colonial dependency of the ?.-N-A- Act " '^ -^ did not British Crown. The provinces of Quebec and'^''^^ . ^ '^ continuity Ontario are, by the sixth section of the Act, declared o""'^^. . •' ' prescriptive to be the same that formerly comprised Upper "s'^'^"^ •' ^ i r provinces. and Lower Canada. This recognizes their previous existence prior to the Union Act of 1840. All through the Act these provinces are recognized as having a previous existence and a constitutional u recognizes history, upon which the new fabric is based. Their Usten^eo"^ laws remain unchanged, and the constitution is provinces, preserved. The offices are the same in name and duties, except as to the office of Lieutenant- Governor, who is placed in the same relation to the province of Quebec that the Governor-General 11 • r /-> 1 T 1 • • ^^ must sustamed to the late provmce of Canada. I thmk it not ignore 111 • 1 • 1 '^^ p^^' would be a great mistake to ignore the past govern- govem- 1 ° . . mental mental powers conferred upon, and exercised in, powers, the province, now called Quebec, in determining the nature and privileges of the legislative assembly of the province." Again, Monk, J., observes^: — g^ " It seems plain to my mind that the House does '^^°"''' J- possess from necessity, and by implied and inherent prerogative, independent of usage or precedent, the powers claimed in the present instance," (namely, the power to examine witnesses and punish persons i^herJnt ^ who disobey such summons, and to regulate this"^"^^"''' right by statute). " But if we hesitate in regard to this view of the subject, does there not exist a usage — a jurisprudence, so to speak — in matters relating to the powers of the local parliament of Quebec, which must go far to remove all doubt in reference to these powers, as claimed in the present instance ? . . . And, first, I would remark that we need not, ^S.C. 19 L.C.J, at pp. 245-6, 2 Cart, nt pp. 215-17. 1; 66 Legislative Power in Canada. Prop. 4 we cannot, go back to the middle ages exploring and searching for a lex et consueUido parliamenti . . . At any rate jn the United States they date the laws and usages provincial -^ "-' legislatures Qf Congrcss from the formation of their Constitu- can claim o r'^usre^'^^ tion, and we may safely, and must from necessity, trace ours from the organization of our government under the British Crown to the present day . . . We go back scarcely a century, but even within that short period we find the laws, usages, and powers from first of our parliament constantly and decisively asserted. of^the"^"°" We have the case of Mr. Young in 1793, that of Mr. gove"rnments Monk iu 1817, thosc of Mcssrs. Tracey and Duver- British nay in 1832, of Brodeur and Levoie in later times. . . . There are more and many other instances, not necessary to mention here, in which this inher- ent and necessary power of parliament has been repeatedly exercised. Some of these cases were questioned — were brought before judicial authority — but the course and proceedings of parliament were sustained, or, at least, have never been over- ux°et°^ ruled. All this looks like a lex et consuetudo parlia- 'p^i'iamfnti.''^^^'^^^^ ' ■ • Inasmuch as the Confederation Act, in this respect at least, has left us where we were — that is, independent, supreme, within our own sphere interfered of legislation — it canuot be said to have interfered b.'n.a^ Act. with these laws and usages of parliament such as they existed in 1867. Thus, then, as I view this part of the case before us, the authority and inherent privileges of the House of Assembly have virtually continued, though occasionally in abeyance, through all the changes of our Constitution, and they exist now in as full force as they did for a long time, and immediately previous to Confederation." On the other hand, in Cotte's case,^ in which ^19 L.C.J at p. 215, 2 Cart, at pp. 223-4, (1875). See as to the view here expressed by Ramsay, J., supra p. lO, seq. Privileges of Old Colonial Legislatures. 67 the same question arose as in Ex parte Dansereau, Prop. 4 above referred to, Ramsay, J., says:— "But even were the usage estabhshed, it could not be extended Ramsay, j., 11 takes a from one body to another. Thus Young's case in different view. 1793 might perhaps justify Monk's case in 1817, and Tracey and Duvernay's cases in 18^2, but thev could 2'^ . . . ■" Constitution be no foundation for the cases under the constitu- *!? ^°r" Canada tion of the late province of Quebec. In 1838 the F'^Pg''"g'^^'^ constitution under the Act of the 31 Geo. III. was suspended in consequence of an armed insurrection, a new constitution was substituted, which subsisted for three years, and the old constitution of Lower Canada was never restored. Again, the constitu- tion of 1840 was abolished at the request of the ofTs^'o"""" legislature of Canada, and a totally new constitution at c'oV was substituted therefor. In addition to this, there is no analogy between the legislative assembly of Ame-Con- i . c r^ ^ 1 rii-n- federation the provmce ot yuebec and any of the legislative legislatures 1 J • I • 1 1 1 • 1 • ^T^i ■, ^ad general bodies which have subsisted since 1791. They had powers, all general power to legislate for the peace, welfare, and good government of the province, (ia Geo. III., J. \ 1 ' Present c. 83, s. 12 ; 31 Geo. III., c. 31, s. 2 ; i Vict., c. qi, provy'^i^i' ' -/ ' legislatures s- 3; 3"4 Vict., c. 35, s. 3), whereas the powers h^\« ""'^ '-'^ ^ r limited ones.. of the legislature of the province of Quebec are strictly limited to specified objects . . . They are markedly called legislatures in contradistinction to Parliament. The Queen forms no part of these legislatures, although through her representative the Governor-General she appoints the Lieutenant- Governors." ^ fhis'if a '"''"' different There is a clear distinction, however, between ther'""''°" ' from question of the right to rely upon the state of^'JoJ,"/"^''^' legislation in the various provinces prior to Con- federation as determining the proper construction ''^'" proper way to construe the B.N. A. iBut as lo this last statement, see Proposition 7 and the notes thereto. 68 Legislative Power in Canada. Prop. 4 of the clauses of the British North America Act respecting the distribution of legislative powers, and the question whether or not the present pro- vincial legislatures do or do not retain the like privileges and powers (apart, of course, from their law - making powers under sections 91 and 92) as the legislatures of the several provinces had prior to Confederation. As is said by Ritchie, C.J., in Attorney-General v. Mercer,^ special pains ap- No doubt pear to have been taken by the framers of our provrn^^r ° present constitution to preserve the autonomy of possible the provinces so far as it could be consistently with preserved, a federal union ; and the words of section 129 must not be overlooked, that "except as otherwise pro- vided by this Act, all laws in force in Canada, Nova ^ Scotia, or New Brunswick at the Union, and all Sect. 129 of B.N.A. Act. Courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, and ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made, etc." Wo"o'ds'"' I" Landers v. Woodsworth,- in which the worth. question before the Court was, whether the existing legislature of Nova Scotia has, in the absence of an express grant, any power to remove from the House one of its members for contempt, though not act- Thequestion ually dcstroylug the peace of the House, (a case whh there, referred to more at length in the notes to Proposi- tion 66), it may be observed that the judges of the Supreme Court of Canada do not at all discuss the question whether the legislature of Nova Scotia 15 S.C.R. at p. 637, 3 Cart, at p. 28, (1881). And see Proposition 64 and the notes thereto. 22 S.C.R. at p. 158, (1878). Privileges of Old Colonial Legislatures. 69 prior to Confederation did or did not exercise any Prop. 4 such power, though they, of course, deal with the authorities as to the general question of the power of colonial legislative bodies in such respect. It may ,'^pp^''^"''>' o sr J because the be gathered, however, from the argument^ that the |^g'/-^^j^J=^°''^ legislature of Nova Scotia was not shown to have ''^'J.""^"'^'' exercised any such power prior to Confederation, q^°sdon be- and that therefore the point in this shape did not [ede.^^bn. arise, for counsel is reported as saying: — "There are cases decided here which favour the contention that it has been the practice of Houses of Assembly in other British North American colonies to consider the House the sole and exclusive judge of its own privileges and what is a breach thereof, and its action is conclusive upon courts of law." They then cite Ex parte Dansereau- and the Lower Canadian cases referred to in it, and proceed : — " If the legislative assembly of the province of Quebec can exercise that right, surely it cannot be denied to the legislative assembly of Nova Scotia.'' In conclusion, it may be observed that whatever difficulties may arise in attempting to arrive at the interpretation of the various classes of subjects of legislation enumerated in section 02 of the British ^^tate of " ^ things before North America Act, by reference to the state of*^"°"^'''=''']- ' ■' tion clearly legislation in the various provinces before Confedera- """'' 1'!. ■ tion, there are obviously other parts of the Act '"'r.''^::''"^ where no such difficulties arise, and where it must be right to consider the state of things existing before Confederation. A good example of this is afforded in Ganong v. Bayley,^ where the proper of B.N. A. Act. I2 S.C.R. at p. 172. ^19 L.C.J. 210, 2 Cart. 165. 3i P. & B. 324, 2 Cart. 509, (1877). 70 Legislative Power in Canada. Prop. 4 For example, sect. 96. Must be interpreted by reference to ante-Con- federation Courts, and judges. Per Weldon, J. County Courts and District Courts. Commis- sioners' Courts and Division Courts. interpretation of section 96 came before the New Brunswick Supreme Court. This section provides that "the Governor-General shall appoint the judges of the Superior, District, and County Courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick," and the question was, whether an Act of the legislature of New Brunswick (39 Vict., ch. 5) whereby it was provided that Courts should be established for the trial of civil causes, where small amounts were involved, before Commissioners appointed by the Lieutenant- Governor in Council, and known as " Parish Courts," was intra vires. The Court agreed in interpreting section 96 by a reference to Courts existing before Confederation. Thus Weldon, J., says^: — "At the time of the passing of the Con- federation Act, there were Superior Courts in all the provinces which were embraced in the Con- federacy. There were District Courts in Canada. In Lower Canada there were the Districts of Gaspe, of Saguenay, and of Chicoutimi ; there were the County Courts existing in Upper Canada, and (sic) subsequently were established in New Brunswick, Nova Scotia, and Prince Edward Island. It appears to me these were the Courts that the Governor-General was to appoint the judges to, when established, or as vacancies may occur, and to provide for them salaries, allowances, and pensions. There were, also, at the time of the passing of the Confederation Act, Commissioners' Courts for the summary trial of small causes in what is now the province of Quebec, and there were Division Courts in Ontario. No reference is made to them in the said Act. The several Acts estab- ii P. & B. at p. 326, 2 Cart, at p. 512. Relevancy of Ante-Confederation Status. 71 lishing these small Courts in the several provinces, Prop. 4 prior to Confederation, also provided for the appointment of officers thereof, by the several local executives, and were not referred to or expressly provided for in the said Act." And the majority of the Court held that, as the Parish Courts in question were not such Courts as were referred to in section 96, there was nothing to prevent the local coum in legislature authorizing the Lieutenant-Governor to ^ick.^"^""' appoint judges to them by virtue of the power of legislation given by section 92, No. 14, in relation to the administration of justice in the province, including the constitution, maintenance, and organi- zation of provincial Courts. 72 Legislative Power in Canada. PROPOSITIONS 5 AND 6. 5. The prerogative of the Crown runs in the colonies to the same extent as in England, and no distinction can properly be drawn between the rights and pre- rogatives of the Crown suing in respect of Imperial rights, and the rights of the Crown with regard to the colonies. 6. Her Majesty's prerogative rights over the Dominion of Canada as the fountain of honour have not been in the least degree impaired or lessened by the British North America Act.' Per Ritchie, The fifst of the abovc Propositions is taken from C.J., and .... . the Supreme the words of Ritchie, C.T., in Maritime Bank v. Court. . . -* The Queen,- in which case the Supreme Court of Canada again held, in accordance with their pre- The Crown's yjQus decision in The Queen v. The Bank of Nova priority as a ^ creditor. Scotia,^ that the Crown as represented by the ^Propositions 5 to 1 1 inclusive, and the notes thereto, may well be studied together, having all of them to do with the general subject of the legal position of the Crown in Canada. On the subject of the prerogative of the Crown in colonial legislation, reference may be made to an article exhibiting much research by Mr. Ilodgins, Q.C, in Rose-Belford's Canadian Monthly, vol. 5, p. 385, seq. ^17 S.C.R. at pp. 661-2, 4 Cart, at pp. 411-2, (1889). 3ii S.C.R. I, 4 Cart. 391, (1885). For a statutory recognition this prerogative, see 33 Hen. VIII., c. 39, s. 74. The Prerogative of the Crown. 75 Dominion government had, when claiming in New Prop. 5-6 Brunswick as a creditor of the Maritime Bank, priority over other creditors of equal degree, according to the general rule of English law. In the argument in the case of the Provincial Government of the Province of New Brunswick v. The Liquidators of the Maritime Bank,^ before the New Brunswick Supreme Court, the word " pre- Definitions rogative," in the sense in which it applies to such 2i°^^^r7^z- case as this, is defined as "the special pre-eminence""^' which the Crown enjoys alone, not in common with the subjects, but in preference to and before subjects." This definition is obviously taken from that of Sir William Blackstone,- which is as fol- lows: — "By the word 'prerogative' we usuallv sir wiuiam -^ . . . " Blackstone. understand that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity. It signifies, in its etymology (from pras and rogo), something that is required or demanded before or in preference to all others . . . And, therefore. Finch (L. 85) lays it down as a maxim that the prerogative is that law in the case of the King, which is law in no case of the subject." But it may be observed that the above definition given in the argument in the case of the Pro- vincial Government of the Province of New Bruns- wick V. The Liquidators of the Maritime Bank has the advantage of being freed from that objection g.^^yj„j.j_^^ which Sir William Anson in his recent work on An^o"- "The Crown "^ finds to Blackstone's definition, 127 N.B. at p. 381, (1888). ^I Bl. Com. at p. 239, cited in Chitty on the Law of the Prerogative, at p. 4. 3The Law and Custom of the Constitution, Part 2, The Crown, by Sir W. R. Anson, at p. 2. At pp. 3-5, Sir W. Anson throws a great 74 Legislative Power in Canada, Prop. 5-6 namely, that it is not right to speak of these prerogatives as out of the ordinary course of the common law, because they are a part of the common law, and as capable of ascertainment and definition by the Courts as any other part of the unwritten law of the land. Per In the case above mentioned of The Maritime in^Ma^hime' Bauk V. The Quccn, ^ however, Gwynne, J., expresses ■Queen!' ^ the vicw that, seeing that under legislation existing at the time of Confederation, no such prerogative could be claimed by the Crown in the old province of Canada as was claimed in that case, and seeing that the British North America Act did not repeal Refers to or auttul thc provislous of the statute law of the old law of old province of provlucc of Canada, therefore clearly the Dominion government has not, in virtue of Her Majesty's royal prerogative or otherwise, any right to have a debt due to it paid in priority of debts due by the same debtor to other creditors where such debt accrues due to the Dominion government within either Ontario or Quebec, formerly constituting, as they did, the old province of Canada ; and that, therefore, the Dominion government could not And denies , . ... , , . . . , to Crown in claim pnority m respect to a debt arismg, as m the Dominion casc bcforc him, by reason of a deposit made in the prerogative Maritime Bank at its place of business in St. John, New Brunswick, for he says : — " The prerogative right of claiming priority in payment of debts due to the Dominion government must, in my opinion, exist throughout the whole of the Dominion, if it deal of light on the subject of the royal prerogative, by grouping the prerogatives of the Crown under three heads : — Its powers in the executive and legislative departments of government ; its rights as feudal lord ; and the outcome of attributes ascribed to the Crown by the mediiiival lawyers. ^17 S.C.R. at p. 677, seq., 4 Cart, at p. 416, seq. Crown's Priority as Creditor. ^c^ exists at all . . . In view of the fact that, at the Prop. 5-6 time of the passing of the British North America Act, the particular prerogative right insisted upon did not exist within the late province of Canada, and in view of the fact that there is no provision in the Act annexing the right to the constitution of the Dominion, and of the fact that the prerogative ^'""f"'^^ ' r o cannot exist does not now or since the passing of the British J," Q^g^"° North America Act exist in those parts of the Dominion consisting of the provinces of Quebec and Ontario, and, lastly, in view of the fact that there is nothing in the Act requiring or justifying the conclusion that such an incongruity exists in the constitutional charter of the Dominion as that the Dominion government should have a right to invoke and exercise a royal prerogative in one of its provinces which it could not exercise in all the others, the necessar}' implication, in my opinion, arises that the Dominion government has no right to invoke or exercise the particular prerogative relied upon in any part of the Dominion. By so holding we shall be acting more in harmony with the ideas prevailing in the present day — with the spirit of the age — and, in my opinion, with the let- ter and spirit of the constitutional charter of the Dominion." None of the other judges, however, express a ^'jjj°"'y °'' similar view, or deal at all with the point taken as^'^^,^"'' , ' t uphold such to the Taw of the old province of Canada, or as to J'lghTfn n^w the Dominion government being possessed of pre- Brunsw.ck. rogative rights in respect to matters arising in some of the provinces which it may not be possessed of in respect to similar matters arising in others, except Patterson, J., who disposes of it by saying^: — " The I17 S.C.R. at p. 684, 4 Cart, at p. 424. 76 Legislative Power in Canada. Prop. 5-6 general rule, to the extent to which it was in ques- tion before this Court in The Queen v. The Bank of Following Nova Scotia, ii S.C.R. i, does not strike me as Queen i/. _ _ Bank of being since that decision open to controversy in this Nova Scotia. " r j Court." Gwynne, J., cites, in connection with his remarks Exchange just quotcd, the case of The Exchange Bank of Bank 7'. The-' ^ ' b Queen. Canada v. The Queen. ^ There the Minister of Finance and the Receiver-General of Canada made claim in the province of Quebec against the estate of the Exchange Bank of Canada in liquidation, in the name of the Queen, for the amount of two deposits made on behalf of the Dominion of Canada, and also for the balance due on a banking account of the Dominion with the Exchange Bank, claiming payment in priority to all other creditors. The deposits were made in 1883. In like manner, the Attorney-General of Quebec claimed a right to payment in priority to all other creditors of the amount of a deposit made in the bank on behalf of the province of Quebec also in 1883. The bank p^j^ had its principal office at Montreal. The Privy ?°iT'll Council held that the Crown was bound bv the holas no atfv^e exist?" codes of Lowcr Canada, and could claim no priority by?eTsorof except what was allowed by them, and, that being bcai'coTs.^'^so, it was not entitled in the case before them to priority of payment over the other ordinary creditors of the bank. The general rule, however, seems, as Patterson, Queen v. , , . . . Bank of T says in the passage iust cited from The Maritime Nova Scotia. J ' -^ r fc> J ,• , , Bank v. The Queen, to be conclusively established in The Oueen v. The Bank of Nova Scotia. ^ There the Bank of Prince Edward Island, incor- iii App. Cas. 157, (1886). 2ii S.C.R. I, 4 Cart. 391, (1885). Crown's Priority as Creditor. 77 porated by the legislature of the island in 1844, Prop. 5-6 being in process of winding up, and indebted to Her Majesty in certain public moneys of Canada, Establishes , . , , , . the right in which had been deposited by several departments t""^^ , _ '■ ■' '^ Edward of the Dominion government to the credit of the inland. Receiver-General, it was held that Her Majesty in her government of Canada, claiming as a simple contract creditor, had a right over other creditors of equal degree. The judgment of Mr. Justice Peters, the judge of first instance, does not appear to have been reported,^ but he decided that the prerogative right Peters, j. to be paid in full was in the government of Prince Edward Island to the exclusion of the Queen in her government of Canada. And in the argument before the Supreme Court of Canada, the counsel for the appellant says : — " The learned judge in the Court below has misapprehended the preamble of the British North America Act when he says: — ' It ?,"'ijK°^'''^ •^ B.N. A. Act. is true that the provinces have given executive power to the Dominion over subjects before belonging to them, but by the convention recited in this preamble they are to have a constitution similar to that of England regarding her colonies, with respect to the subjects retained, and, if so, the Lieutenant-Governors must have the Queen's prerogative still vested in them.' " Now, says the learned counsel: — " It is not the provinces, but the T^-' r/-' 1 1-11 1111 ^ constitu- Dominion ot Canada, which the preamble declares tion similar . . . .... ... in principle IS to have a constitution similar in principle to that to that of the of the United Kingdom. The whole judgment of Kingdom. the Court below is placed on this fallacy." Without ^It is, however, contained in the Case in appeal to the Supreme Court of Canada, (Osgoode Hall library, vol. 41 of Cases in Appeal). The Supreme Court of the Island simply affirmed the decision of Peters, J., without argument, so as to expedite an appeal to the Supreme Court of Canada. 78 Legislative Power in Canada. Prop. 5-6 now discussing further the point here raised, it may be observed that the words of the preamble of the British North America Act just referred to certainly do appear to relate to the constitution of the Dominion, and not of the provinces, yet the latter No , of may also be said to have constitutions similar in ]|.N. A?' Act. principle to that of the United Kingdom, though the right is conferred upon them by section 92^ No. I, of amending their constitution save as to the office of Lieutenant-Governor.^ The The Supreme Court of Canada decided, at all Supreme '■ Court of events, that the prerogative right in question is not in the government of the provinces to the exclusion of the government of the Dominion ; and the judgments affirm our leading proposition. Thus^ Ritchie, C.J., says: — " The Queen's rights and pre- RUchie.c.j. rogatives extend to the colonies in like manner as they do to the mother country ; " and a little further on the same learned judge cites with approval the 3.. words of Bacon, V.C., in In re Bateman's Trust " I cannot hesitate to say and to decide, that the Queen's prerogative is as extensive in New South The Queen's Wales as it is here, in this county of Middlesex. It prerogatives extend to the has bccn coutcnded that the title of the Crown by colonies. forfeiture was confined to this soil, — the soil of Eng- land. But the Queen is as much the Queen of New South Wales as she is the Queen of England, and I must hold that every right which the Queen possessed by forfeiture extended as much to the colonies as to this country." And Strong, J., gives such a clear ^As to the position of provincial I.ieutenant-CJovernors as represen- tatives of the Queen, see Proposition 7, and the notes thereto. And as to this clause of No. i, section 92, see, infra, p. 100, esp. note 2. 2ii S.C.R. at p. 10, 4 Cart, at p. 399. 3L.R. 15 Eq. at p. 361. Crown's Priority as Creditor. 79 statement of law covering the matter in question Prop. 5-6 that the passage may well be cited here verbatim^ : — " That the law of England is the rule of decision in So, also, per the province," {sc, Prince Edward Island)," is not and strong, j. cannot be disputed, nor has it been pretended . . . that by any express and direct legislation, provincial, federal, or imperial, the rights of the Crown, as applicable in Prince Edward Island, have been in any way interfered with. Authorities, which it would be useless to quote, so familiar are they, establish that in a British colony governed by English law, the Crown possesses the same preroga- tive rights as it has in England, in so far as they are not abridged or impaired by local legislation, and . . So far as not that, even m colonies not governed by English law, abridged by and which having been acquired to the Crown of '^g'^'^"""- Great Britain by cession or conquest, have been allowed to remain under the government of their original foreign laws, all prerogative rights of the Crown are in force, except such minor prerogatives as may conflict with the local law. The two decisions ^inor pr"e'^- of the Court of Queen's Bench of the province of'"''*''" Quebec, in Monk v. Ouimet, ig L.C.J, at p. 71, and Attorney-General v. Judah, 7 L.N. at p. 147, may perhaps be referred to this distinction.- Then, if the Crown's right of priority has been taken away in Prince Edward Island, it can, apart from the provisions of the Insolvent Act, only be by some of the provisions of the British North America Act. The most careful scrutiny of that statute will not, ^11 S.C. R. at p. 17, seij., 4 Cart, at p. 403, sc^/. Hn Dumphy v. Kehoe, 21 R.L. 119, (1891), Jette, J., decided that the right of confiscation of the property of a felon condemned to death is one of those minor prerogatives of tiie Crown which must be regu- lated and governed by the peculiar and established law of the place, citing Chitty on the Law of the Prerogative, p. 25. See the notes to Propositions 8 and 9 as to legislative power in Canada over the royal prerogative, and as to major and minor prerogatives. 'atives. So Legislative Power in Canada. Prop. 5-6 however, lead to the discovery of a single word expressly interfering with those rights, and it is a The B.N.A. ■well-settled axiom of statutory interpretation, that Act does _ " . not affect ^^6 risfhts of the Crown cannot be altered to its prerogative " right of prejudice by implication, a point which will have to be considered a little more fully hereafter, but which it m^ay be said, at present, affords a conclusive answer to any argument founded on the British North America Act. Putting aside this rule altogether, I deny, however, that there is anything in the Imperial legislation of 1867 warranting the least inference or right?o°\he argument that any rights which the Crown possessed at the date of Confederation, in any province becom- ing a member of the Dominion, were intended to be in the slightest degree affected by the statute ; it is true, that the prerogative rights of the Crown were Though it ' . 1 apportions by the statute apportioned between the provinces between and the Dominion, but this apportionment in no sense Dominion ^"<^ . implies the extinguishment of any of them, and they provinces. "^ ^ ..... Aiterin in therefore continue to subsist in their integrity, how- th^r "^^^^ ever their locality might be altered by the division of locality. powers contained in the new constitutional law. It follows, therefore, that the Crown, speaking generally, still retains this right to payment in priority to other creditors of equal degree in Prince Edward Island. It is said, however, that whilst the last proposition may be true as regards the right of the Crown as not^he"^^"' representing the provincial government of the Island, General, is it docs not apply to the Crown as representing, as the head . , • i i r j-l. ofthe m the present case it does, the government ot the Dominion . . . , . . . i j i i i • government. Dominiou. 1 his objcction IS concluded by authority still more decisive than the former. That the Crown is at the head of the government of the Dominion, by which I mean that Her Majesty the Queen is, in her own royal person, the head of that government, and not her Viceroy the Governor-General, there The Crown One and Indivisible. 8i can be no doubt or question, for it is in so many Prop. 5-6 words declared in the qth section of the British ^ ^ Sect. 9 of North America Act, which enacts : — ' The executive '^he^ ^ .^^^ government and authority in and over Canada is hereby declared to continue and be vested in the Queen.' That for the purpose of entitling itself to the benefit of its prerogative rights, the Crown is to be considered as one and indivisible throughout thcxheCrown Empire, and is not to be considered as a quasi- indhtstbie corporate head of several distinct bodies politic the°Empke. (thus distinguishing the rights and privileges of the Crown as the head of the government of the United Kingdom from those of the Crown as head of the government of the Dominion, and, again, distinguish- ing it in its relations to the Dominion and to the several provinces of the Dominion), is a point so settled by authority as to be beyond controversy."^ He then cites the Oriental Bank Corporation case^ and In re Bateman's Trust, ^ in support of this, and says : — " It is, therefore, safe to conclude as a general proposition of law, that whenever a demand may properly be sued for in the name of the Queen, the prerogative rights of the Crown ^The same learned judge in Attorney-General of Canada v. Attorney-General of Ontario, frequently spoken of as the Pardoning Power case, (not yet reported in the Supreme Court, but reported below 20 O. R. 222, 19 O.A.R. 31), says of the prerogative of mercy : — "The authority to exercise this prerogative may be delegated to viceroys and colonial governors representing the Crown. Such delegation, whatever may be the conventional usage established on grounds of political ex- pediency, a matter which has nothing to do with the legal question, cannot, however, in any way exclude the power and authority of the Crown to exercise the prerogative directly by pardoning an offence committed anywhere within the Queen's dominions. . . That the Crown, although it may delegate to its representatives the exercise of certain prerogatives, cannot voluntarily divest itself of them, seems to be a well-recognized constitutional canon." 228 Ch. D. 64. 3L.R. 15 Eq. 355. 82 Legislative Power in Canada. Prop. 5-6 attach in all portions of the British Empire subject to the prevalence of English law, irrespective of the locality in which the debt arose and of the govern- ment in right of which it accrued." In re The casc of In re Bateman's Trust, ^ referred to Bateman's ■,■>■, i ■ i • ^ -n • -i • Trust. b}^ the learned judge, certamly illustrates m a strikmg manner that the Crown is one and indivisible throughout the Empire. There the Crown claimed Crown in ^^ England the goods and personal property found in England England of a felon as for a forfeiture on a conviction can claim '^ foods o?"*^ for felony in the colony of New South Wales, and convktedin ^^ ^^'^'^ argucd that the rights accruing to the a colony. Qrown Under such forfeiture were not enforceable in England. The Court (Bacon, V.C), however, en- tirely rejected this contention, and determined that Its rights the rights of the Crown were not to be considered divisiWe divisible according to the several governments and '^'^"'°"^'^' jurisdictions into which the Empire is apportioned, but that prerogative rights accruing to it in one But are one jurisdiction may be enforced against persons and the°Emp°ire. property anywhere throughout the Queen's domin- ions : per Strong, J., in The Queen v. Bank of Nova Scotia.- And it does not seem possible, in the light of the above authorities, (to which he does not refer), to accept as accurate and satisfactory the dicta of iL.R. 15 Eq. 355. ^11 S.C.R. at pp. 20-21. In Maritime Bank v. The Queen, 17 S.C.R. at pp. 681-2, 4 Cart, at p. 421, (1889), Gwynne, J., says: — " Now, I do not at all question the authority of In re Bateman's Trust, or any like case, but I must say that, in my opinion, we make a very great mistake if we treat the Dominion of Canada, constituted as it is, as a mere colony. The aspirations of the founders of the scheme of Confederation will, I fear, prove to be a mere delusion if the consti- tution given to the Dominion has not elevated it to a condition much more exalted than, and different from, the condition of a colony, which is a term that, in my opinion, never should lie used as designative of the Dominion of Canada." The Crown One and Indivisible. 83 Fournier, ]., in Attorney-General of British Colum- Prop. 5-6 bia V. Attorney -General of Canada, ^ where he Per says: — "In our system of government Her Majesty Fournier, j. as head of the Executive, whether federal or pro- vincial, must be deemed to be present in each government, having in each the rights and preroga- tives given her by the British North America Act. As chief of these different governments, she is not to be considered as present in her character as Queen of the British Empire, but only as Queen, and exercising only those rights and prerogatives to her assigned by the laws and constitution of each government. It is not true in fact to say that Seems to Her Majesty as chief of the federal Executive is thedlffe°ren? same legal personage as Her Majesty regarded as '^'^'^' chief of the provincial Executive, for we cannot then distinguish the different, and not seldom, conflicting attributes which the constitution confers upon her. Certainly there is nothing anomalous, much less absurd, in saying that the Queen represented by the provincial Executive of British Columbia can treat or contract with the Queen represented by the federal Executive without its being possible for either of these governments either to lose or gain anything thereby. They will only be bound by the agreements entered into between them. The Queen represents them both within the limits of their respective powers, and in fact it is the two govern- ments which contract together with her consent." In the first place, we may ask, with all respect, in objections what sense can the British North America Act be '°"" said to have given or assigned (attribucs) rights and prerogatives to the Crown ? Rather the Crown's rights and prerogatives would seem to have I14 S.C.R. at p. 363, 4 Cart, at p. 264, (1887). 84 Legislative Power in Canada. Prop. 5-6 remained as before the Act, subject, as to some of them, to be dealt with by the Dominion parhament, neUh^r" ^ave ^^^ the provincial legislatures, legislating within the cfovlWor^ spheres of their respective jurisdictions as defined by Hghts'^ivom t^e Act.i Then, again, if as stated by Strong, J., the Crown, jj^ ^|^g passagc above cited from his judgment in the Queen v. The Bank of Nova Scotia, it is a point so settled by authority as to be beyond controversy that for the purpose of entitling itself to the benefit The Crown of its prcrogatlvc rights, the Crown is to be indivisible considered as one and indivisible throughout the throughout T- • •, J I. i. iU i- • the Empire, limpirc, it docs not sccm proper to say that m fact the Queen is not the same legal personage as chief of the federal executive, and as chief of the Represented provincial cxecutive power. And it is surely a government novclty to spcalc of Her Majesty representing her locality. different governments within the Empire, instead of her governments representing her. And as in the above case of the Queen v. The Bank of Nova Scotia^ the Queen in her govern- ment of Canada was held to have a prerogative right of priority of payment, so in The Provincial Gov- ernment of New Brunswick v. The Liquidators of the Maritime Bank'' it was decided by the Supreme Court of New Brunswick that Her Majesty Crown in in her provincial government was possessed of a similar prerogative right in respect of public moneys right of the province has prerogal right of province prerogative dcposited in a bank by the provincial government ; priority. and the judges specially referred with approval to the dicta of Strong, J., in the Queen v. The Bank of Nova Scotia* above cited. And this New ^See Propositions 7, 8, and 9, and the notes thereto. 2ii S.C.R. I, 4 Cart. 391. 327 N.B. 379,(1888). *ii SCR. I, 4 Cart. 391, see pp. 78-81, supra. Crown Rights not Altered by Federation Act. 85 Brunswick decision was afterwards affirmed by Prop. 5-6 the Supreme Court of Canada, ^ and also by the Tudicial Committee of the Privy Council.- Their So held by *' J the Privy lordships of the Privy Council say (at p. 441) : — Coundi. " The Supreme Court of Canada had previously ruled in the Queen v. The Bank of Nova Scotia, II S.C.R. I, that the Crown, as a simple contract creditor for public moneys of the Dominion Provincial deposited with a provincial bank, is entitled to ^rXw"^"' priority over other creditors of equal degree. The e/.^Liq*!- decision appears to their lordships to be in strict Marhime' ^ accordance with constitutional law. The property and revenues of the Dominion are vested in the Sovereign, subject to the disposal and appropriation of the legislature of Canada ; and the prerogative of Crowns . . . prerogatives the Queen, when it has not been expressly limited ?s extensive . '" colonies by local law or statute, is as extensive in Herasmpreat Britain, sub- Majesty's colonial possessions as in Great Britain. J^« to 'o"! In The Exchange Bank of Canada v. The Queen, II App. Cas. 157, the Board disposed of the appeal on that footing, although their lordships reversed the judgment of the Court below, and negatived the preference claimed by the Dominion government, upon the ground that, by the law of the province of Quebec, the prerogative was limited to the case of a common debtor being an officer liable to account to the Crown for public moneys collected g ^ a Ar or held by him. The appellants did not impeach ''•''^ "°', •' it i severed the the authority of these cases, and they also conceded ^°^^^^'j|°'J,g that, until the passing of the British North America [j^"*"^"*^ Act, 1867, there was precisely the same relation p''°'''"'='*- between the Crown and the provinces which now subsists between the Crown and the Dominion. 120 S.C.R. 695, (1889). ^The Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] A.C. 437. 86 Legislative Power in Canada. Prop. 5-6 But they maintained that the effect of the statute has been to sever all connection between the Crown and the provinces ; to make the government of the Dominion the only government of Her Majesty in North America ; and to reduce the provinces to the rank of independent municipal institutions. For these propositions which contain the sum and substance of the arguments addressed to them in Or curtailed support of this appeal, their lordships have been priwfeges^" uuable to fiud either principle or authority. Their lordships do not think it necessary to examine in minute detail the provisions of the Act of 1867, which nowhere profess to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces."^ In none of these cases was it necessary for the Court to deal with any questions as to the relative rights of the Dominion and provincial governments, should both be creditors of the same debtor with Where there g^ggg^g only sufficicut to pav ouc. But in The Pro- is conflict -J r J between the yincial Govemmcnt of New Brunswick v. The Liqui- JJominion T ^ghTs"and dators of the Maritime Bank, before the Supreme Crown"^' Court of Ncw Brunswick," counsel for the provincial ^q^ri government, when asked the question by Eraser, J.: — "Suppose the British government. Dominion government, and local government, all had a deposit in the bank, which would have the preference?" boldly replied : — " Neither. The Crown would be entitled to recover its entire claim ; and if there was not enough to pay the whole, it would be appor- tioned among the different governments." ^See also Propositions 7 and 9, and the notes thereto. 227 N.B. at p. 385, (1888). The Crown as Fons Honoris. 87 Passing now to Proposition 6, it may be said to Prop. 5-6 illustrate Proposition 5, by reference to the Crown's prerogative as the fountain of honour in Canada. Its words are from the judgment of Taschereau, crownas J., in Lenoir v. Ritchie.^ And he also observes in oflirTnour" the same case- in like manner: — "I need hardly'" add that the Sovereign has this prerogative of Per conferring honours and dignities over the whole j. British Empire, and that, by the British North America Act, the Crown has not renounced or abdicated this prerogative over the Dominion of Canada, or any part thereof." And so Sir Tohn^. ,, , Sir John Macdonald, as Minister of Justice, reported to the '^»'='^°"^'<^- Governor-General on January 3rd, 1872, "^ as to the question which had been raised by the government of Nova Scotia as to their power to appoint Queen's Counsel, that "as a matter of course Her Majesty as to right has directly, as well as through her representative, Qjlen"s"' the Governor-General, the power of selecting from^°""^^' the Bars of the several provinces her own Counsel, and as /o«s /jonom of giving them such precedence and pre-audience in her Courts as she thinks proper." And while he there expresses the view No. 14 of sect. 02 that under No. 14 of section 92, relating to the b.n.a.'aci. administration of justice, including the constitution, maintenance, and organization of provincial Courts, the provincial legislature may make such provisions with respect to the Bar, the management of crim- "^^^^'^x-''' i ' o prerogative inal prosecutions by counsel, the selection of those p^^^"'°""' counsel, and the right of pre-audience as it sees fit, f/gfj^tivi he adds: — "Such enactment must, however, in theP"^^""- I3 S.C.R. at pp. 628-9, I Cart, at p. 535, (1879). ■^3 S.C.R. at p. 619, I Cart, at p. 525. ^Hodgins' Provincial Legislation, Vol. i, pp. 26-7 ; see, also, ihid., Vol. 2, at pp. 25, 56, 57. I 88 Legislative Power in Canada. Prop. 5-6 opinion of the undersigned, be subject to the exercise of the royal prerogative, which is para- mount, and in no way diminished by the terms of the Act of Confederation." But as to this, as pointed out in the notes to Sedquarc. Propositions Sand 9, there would seem to be a cor- relation of executive and legislative power under the Correlation British North America Act even where such execu- of executive a°4 , . tive power is of a prerogative character, and, there- power, fore, it would appear that either under No. 4 or No. 14 of section 92, or both, provincial legislatures must have the power to regulate the exercise of the prerogative of appointing Queen's Counsel so far as provincial Courts are concerned. And in an Sir Horace opinion dated December 9th, 1887,^ Sir Horace ?p1ntwon Davey and Mr. Haldane, to whom the matter had Counsel been submitted on behalf of the Ontario govern- question. jyjgjj^^ arrived at the conclusion that the appoint- Appoint- ment of Queen's Counsel is not a mere dignity or ment of , i • 1 • rr* 1 Queen's honour, but IS the appomtment to an omce, and Counsel is , - ..,,., , an appoint- that thcreiore a provincial legislature has power to ment to an , . office. autnorize the Lieutenant-Ciovernor to make appoint- ments of Queen's Counsel for the purposes of the provincial Courts, relying mainly on No. 4 of bna'a section 92, whereby provincial legislatures may make laws in relation to the appointment of pro- vincial officers. - iQnt. Sess. Papers, 1888, No. yj. ^Those who desire to pursue the subject of the power to appoint Queen's Counsel may be referred, besides the above case of Lenoir v. Authorities Ritchie, 3 S.C.R. 575, I Cart. 488, (1879), to an interesting opinion of on question the Attorney-General of South Australia, published in the Canadian of appoint- ^aw Times, vol. 12, p. 259, seq.; and also to some articles in that Queen's periodical, vol. 10, at pp. 23, 25, and 58, and vol. 13, p. i ; to Mr. Counsel. Todd's Pari. Gov. in Brit. Col., 2nded., at p. 330, where he refers to a despatch from Sir J. S. Pakington, in 1852, to the Governor of Nova Scotia, in relation to the appointment of Queen's Counsel ; also The Crown as Fons Honoris. 89 Mr. Clement, in his work on the Law of the Prop. 5-6 Canadian Constitution, observes (p. 143) that : — ' ''The prerogatives vested in the Crown as theciemem fountain of honour are looked upon as (so to speak) prerogative , ^ of honour. prerogatives at large, and not connected with any particular department of executive government ; " and (at p. 318) that these prerogatives (sc, those vested in the Crown as the fountain of honour) are treated as "prerogatives pertaining to matters of^^'f^^fg''''^' imperial concern." He does not, however, give his authorities for this. At all events, it is submitted, the Governor- General cannot exercise the prerogative of theoovemor- Cr 1 ■ r ^ ■ 1 General rown as Jons honoris except so far as it may have represents been delegated to him by his commission or instruc- further than ,. . . r 1 -1 as delegated tions; and it must further be noted that, as pointed to him. out in connection with Proposition 7, in the recent case of The Maritime Bank of Canada v. The Receiver-General of New Brunswdck,^ the Judicial Committee has decided that a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty, for all purposes of provincial government, as the Governor-General himself is for all purposes of Dominion government. ^ ibid., at p. 333, seq.; and to 9 C.LJ.N.S. 178, seq., where corre- spondence between the Dominion and Ontario government.s is given. Also to Ont. Sess. Pap., 1888, No. 37 ; and Can. Sess. Pap., 1873, No. 50. i[i892] A.C. 437- ^On the whole subject of imperial dominion exercisible over self- governing colonies by the grant of honours and titular distinctions, see Todd's Pari. Gov. in Brit. Col., 2nd ed., chap. 10, p. 313, seq. go Legislative Power in Canada. PROPOSITION 7. The Governor- General. Reserved provincial Act. 7. The Lieutenant-Governors of prov- inces, when appointed, are as much the representatives of Her Majesty for all purposes of Provincial government, as the Governor-General himself is for all purposes of Dominion government. As regards the Governor-General, it is only neces- sary to mention one or two cases in which his position as the representative of the Queen has been specially referred to in connection with the question of the constitutional validity of statutes. In Ex parte Williamson,^ the Supreme Court of New Brunswick held that the Act of the local legis- lature, 32 Vict., chap. 92, relating to the appoint- ment of justices of the peace in the province was intra vires upon the ground thus stated by Allen, C.J., in delivering the judgment of the Court : — "The Act 32 Vict., chap. 92, was apparently passed with a suspending clause, or reserved for the con- sideration of the Governor- General under the 90th section of the British North America Act. It received the Governor-General's assent on August 20th, 1869, and was proclaimed to be in force here on September 22nd, following. It may therefore be said that Her Majesty, through her the''"af representative, has expressly recognized the right of the local government to appoint justices of the peace. See per Ritchie, C.J., in Valin v. Langlois, I24N.B. at p. 64, (1884). Appoint- ment of The Governor-General. gi 3 S.C.R. at p. 34. We therefore think the power Prop. 7 of the local government to make such appoint- ments has not been open to question."^ The passage from the judgment of Ritchie, C.J., covemor- in Valin v. Langlois- here referred to relates to the assent to _^ . . . , , , . 1 • 1 Dominion assent given to Dommion Acts, and is that in which, Controvert- r 1 1-^ • • r^ iT^i- ^^ Elections- speaking of the Dominion Controverted Elections Act. Act, 1874, ^7 Vict., chap. 10, which confers upon the provincial Courts jurisdiction with respect to elections to the Dominion House of Commons, he says: — " It is said that if this," {sc, the Court thus appointed for the trial of election petitions), " is a Court distinct from the Courts of which the judges,,. ^ -" " Was the are primarily members, the judges have never been ^^sem of^^ appointed thereto by the Crown, nor sworn as judges thereof, and therefore they are not judges of this new tribunal if, as such, it exists. But, in my humble opinion, there is no force in this objection. The judges require no new appointment from the Crown, they are statutory judges in controverted election matters by virtue of an express enactment by competent legislative authority. The statute , makes the judges for the time being of the provincial appointment •^ ° . ° • 1 ^ of election Courts judges of these peculiar and special Courts, judges •' ° '■ ^ thereby The Crown has assented to that statute, and made? therefore they are judges by virtue of the law of the Dominion, and with the royal sanction and approval." In like manner, the judges of the Supreme Court 'I'he Great in Nova Scotia, in the Great Seal Case, in 1877, pointed out that Her Majesty, in assenting (through ^On the general subject of the appointment of justices of the peace, see the notes to Propositions 8 and 9. 23 S.C.R. at p. 34, I Cart, at p. 187, (1879). Referred to also in the recent British Columl^ia case of Piel-ke-ark-an v. Reg., 2 B.C. (Hunter) at pp. 68, 70, {1891). 92 Legislative Power in Canada. Prop. 7 the Governor-General) to certain provincial Acts, authorizing "her Lieutenant-Governor" to exercise her prerogative right in the use of the Great Seal in and for the province, — "to the extent in which it is necessarily conferred on that high officer by the statute," — did expressly delegate to and empower Lieutenant-Governors to exercise certain preroga- tive rights appropriate to the office of the repre- sentative of the Sovereign in the particular province. 1 JP^ . It is, however, mainly as regards the Lieutenant- Lieutenant- ' y J a Governors of QQygj-jjQj-g Qf |-}^g various provinces that the leading provinces ^ " Proposition calls for comment. It is derived from the judgment of the Privy Council in The Liqui- dators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick,- a judgment which as Boyd, C, observes, in Re McDowell and the Town of Palmerston,^ " set at rest many moot points, particularly as to the status of the Lieuten- Are Her , , . , . , , Majesty's ant-Govemor, declarmg him to be the representative representa- . ... tives. oi Her Majesty tor all purposes oi provincial govern- ment," which had been the subject, as will shortly be seen, of very various opinions. ^Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 596, citing Can. Sess. Pap., 1877, No. 86, p. 36, where the judgments of the Nova Scotia judges are printed. And see zn/ra p. 114, n. i. ^[1892] A.C. 437. In this case, at p. 441, their lordships, as cited in the notes to Propositions 5 and 6 (supra p. 86), point out that the provisions of the British North America Act "nowhere profess to cur- tail in any respect the rights and privileges of the Crown, or to dis- turb the relations then subsisting between the Sovereign and the provinces. " ^22 O. R. at p. 565, (1892). For a discussion of the position of governors of colonies in relation to the Sovereign, see the opinion of the Attorney-General of South Australia, 12 C.L.T., p. 259, seq. And on the whole subject of the constitutional position of colonial governors, see Todd's Pari. Gov. in Brit. Col., 2nd ed., passim, esp. at p. 34, sei^. Reference may also be made to the article on "The Prerogative of the Crown in Colonial Legislation," by Mr. Thomas Hodgins, Q.C., in Rose-Belford's Canadian Monthly, Vol. 5, p. 385, also referred to supra p. 72. Provincial Lieutenant-Governors. 93 In holding as they did in this case, the Privy Prop. 7 Council were quite consistent with their dictum in Theberge v. Laudry,i where Lord Cairns, deliver- Coundi. ing the judgment of their lordships, speaks of the Quebec Controverted Elections Act of 1875 as •' an Act which is assented to on the part of the Crown, and to which the Crown, therefore, is a party ; "^ T^^berge v. which is cited by Burton, J.A., in Reg. ^^"'^'^• V. St. Catharmes Milling and Lumber Co.^ as direct confirmation of the view that Lieutenant- Governors do possess the power to act in the name of the Queen. In their judgment in The Liquida- tors of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, above cited, the Privy Council observe^ : — " It would require very strong language, such as is not to be found in the Act of 1867, to warrant the infer- ence that the imperial legislature meant to vest in the provinces of Canada the right of exer-^flilSe cising supreme legislative powers in which the r^" Ceceiver- British Sovereign was to have no share . . . If New'"" ° the Act had not committed to the Governor-General '"^^^^^'^ " the power of appointing and removing Lieutenant- Governors, there would have been no room for the argument, which, if pushed to its logical conclusion, would prove that the Governor-General and not the Queen, whose viceroy he is, became the sovereign authority of the province whenever the Act of 1867 came into operation. But the argument ignores the fact that, by section 58, the appointment of a provincial Governor is made by the * Governor- *2 App. Cas. 102, 2 Cart, i, {1876). ^2 App. Cas. at p. 108, 2 Cart, at p. 9 ; see also Clarke v. Union Fire Ins. Co., 10 O.P.R. at p. 316, 3 Cart, at p. 338, (1883). 3i3 O.A.R. at p. 166, 4 Cart, at p. 207, (1886). ^[1892] A. C. at p. 443. 94 Legislative Power in Canada. Pt'op- 7 General b\' instrument under the Great Seal of Canada,' or, in other words, by the executive RN.A.°Act. government of the Dominion, which is by section g expressly declared ' to continue and be vested in the Queen.' There is no constitutional anomaly in an executive officer of the Crown receiving his appointment at the hands of a governing body, who Jxecutive havc no powers and no functions except as repre- ff a^nd ov^r seutativcs of the Crown. The act of the Governor- con"Lues General and his Council in making the appointment theQueen. IS within the meaning of the statute the act of the Crown ; and a Lieutenant-Governor, when ap- pointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for ail purposes of Dominion government." ^ And accordingly they held in this case that whereas in the liquidation of the Maritime Bank of Canada, carrying on business Provincial ^^ ^^^ ^^^Y *^^ ^^- John, Ncw Brunswick, the pro- ?an^cia?m"' vincial govemmcnt was a simple contract creditor prerogadve fo^ 3- sum of pubHc moncys of the province deposited as ?redi"or. J^ ^hc namc of the Receiver-General, the claim was for a Crown debt to which the prerogative attached, and the provincial government was entitled to pay- ment in full over other depositors and creditors ; in which decisioii they were affirming the decision of the Supreme Court of Canada, - which in its turn ^Thus Lord Carnarvon would seem to have erred in the view he took in his despatch to Lord DuiTerin of January 7th, 1875, cited by Taschereau, J., in Mercer v. Attorney-General of Ontario, 5 S.C.R. at p. 671, 3 Cart, at p. 54, (from Can. Sess. Pap., 1875, Vol. 8, No. 7), where he says of Lieutenant-Governors : — " They do not hold commis- sions from the Crown, and neither in power nor privilege resemble those Governors, or even Lieutenant-Governors of colonies, to whom, after special consideration of their personal fitness, the Queen, under the Great Seal and her own hand and signet, delegates portions of her prerogatives and issues her own instructions." 220S.C.K. at p. 695, (1888). Provincial Lieutenant-Governors. 95 affirmed the decision of the Supreme Court of New Prop. 7 Brunswick.^ In thus holding that the Lieutenant-Governors of provinces for the purposes of provincial government were as much representatives of the Queen as the Governor-General himself for purposes of Dominion government, the Privy Council were only stating in a convenient general form the conclusion to which Go"emore'' the dicta of many judges in former cases had tnrQueen pointed,- and a brief consideration of these dicta o7pmvmdai will conduce to a fuller understanding of the manner ^°''^"""^"'' in which provincial Lieutenant-Governors represent the Queen. For example, in the opening words of the above passage from the judgment of the Judicial Committee in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, we are reminded of the words of Per Papineau, J., in Molson v. Chapleau,^ where hePapineau, j. says: — "It has been properly said that the Queen cannot surrender any of her prerogatives, except by a law and in express terms. In like manner, and p^''^°""^^s miore properly, it may be said that the Oueen cannot sovereign ^ '^ -' -' '-' authority cease to be the personification of the sovereign [he"Em"ire I27 X.B. at p. 379. ^The point had been argued out at great length Ijy Mr. Justice Loranger in his " Letters upon the Interpretation of the Federal Con- stitution," (first letter), Quebec, 1884, who, amongst other things, at p. 24, points out tliat by section 59 of the Union Act, 1840, Imp. 3-4 Vict., c. 35, it was enacted that "all powers and authorities expressed in this Act to be given to the governor of the province of Canada shall be exercised by such governor in conformity with and subject to such orders, instructions, and directions as Her Majesty shall from time to time see fit to make or issue," and adds that this is "a provision which is not repealed by the Confederation Act, but is slill in force under section 65 of the British North America Act." Sed qziare. 36 L.N. at p. 224, 3 Cart, .at pp. 365-6, (1883) ; referred to by Jette, J., in Lambe v. The North British and Mercantile Fire and Life Ins. Co., M.L.R. i S. C. at p. 34, 4 Cart, at ]ip. 91-2. 96 Legislative Power in Canada. Prop. 7 authority in any part of the Empire without a law of the imperial parHament, or an agreement in express terms to that effect. For from the moment when it is no longer she who personifies the sovereign authority in every province of the Em- pire, that province is no longer an integral part of [h'i'u'i^'of that Empire. Now, if the Queen has withdrawn, by begSnT"''^ the federal compact, both from the legislature and the executive of the provinces, and if the Lieutenant- Governors are not her representatives, and do not exercise in her name and in her stead the authority which they exercise, these provinces are no longer integral parts of the Empire. The powers granted to the provincial legislatures are granted to them to the exclusion of the federal parliament. It is the Provincial , . legislatures same wlth thc executive power. A certam number and . ^ . 1-1 governments of thcsc powcrs are rights of sovereignty, which can exercise '^ " charge of their official duties, a decision which we may observe is entirely in accordance with the prior one of Taschereau, J., in Church v. Middlemiss,^ ^^"^^j^^^^^^j in which he held that the members of the Executives- Council who concur in an order of Council sanction- ing the sale by the Crown of certain real property, and the execution of a deed of sale in accordance with such order, cannot be sued en garantie by the purchaser, to guarantee and indemnify him against an action brought by the Attorney-General for andsaieof on behalf of Her Majesty to set aside the deed of ian°ck." sale on the ground (mter alia) that the sale itself was ultra vires and that the deed was executed without lawful authority. At page 321, he speaks of it as among the most elementary principles of the constitution, and as trite to say that the acts of the executive power are " the acts of the Sovereign done upon the advice of the Sovereign's ministers. In this case the plaintiff virtually sues the defendant Ouimet upon the ground that Ouimet, being one of the Crown's advisers, erroneously advised Her Majesty." So to refer again to the judgment of Burton, J. A., Pe^ Burton, in Reg. v. St. Catharines Milling and Lumber Co.," I21 L.C.J, at p. 319, (1877) '13 O.A.R. at pp. 165-6, 4 Cart, at p. 207, (1S86). 7 98 Legislative Power in Canada. Prop. 7 Lieutenant- Governors represent Her Majesty for some purpose";. Several sections of the B.N. A. Act recog- nize their right to act for the Queen. the learned judge observes : — " If it had not been for the expression to be found in some judicial utterances placing within very narrow limits the powers of the Executive of the provinces, I should have thought it too clear for argument, that the powers formerly exercised by Lieutenant-Governors of the other provinces, and by the Governor-General of Canada in reference to provincial matters, includ- ing agreements, so-called treaties, with the Indians for the extinguishment of their rights,^ and granting to them in lieu thereof certain reserves either for occupation or for sale, were now vested exclusively in the Lieutenant-Governors. The view that has been sometimes expressed that they do not repre- sent Her Majesty for any purpose appears to me to be founded on a fallacy, and to be taking altogether too narrow a view of an Act, which is not to be con- strued like an ordinary Act of parliament, but as pointed out in The Queen v. Hodge, g App. Cas. 117, is to be interpreted in a broad, liberal, and quasi-political sense- . . . There are several clauses of the British North America Act in which his power to act in the name of the Queen is expressly recognized, as, for instance, section 82, which empowers him in the Queen's name to sum- mon the legislature. In section 72 the Lieutenant- Governor of Quebec is authorized to appoint legis- lative councillors in the Queen's name, and the provincial legislatures create Her Majesty's Courts of civil and criminal jurisdiction, the writs in which are issued in Her Majesty's name. And this view appears to have received the direct confirmation of the Privy Council in Theberge v. Laudry." ^As to this see 12 C. L.T. at p. 163, and the notes to Proposition 53. ^.See supra p. 33, seq. ^2 App. Ca.s. at p. 108, 2 Cart, at p. 9, (1876). Provincial Lieutenant-Governors. 99 So again in Mercer v. Attorney-General for Prop. 7 Ontario, ^ in which case it was urged that Lieutenant- ' . ^ The Mercer Governors in no sense represented the Crown, and^^^heat . . . case. that therefore all seigniorial or prerogative rights, or rights enforceable as seigniorial or prerogative rights, such as escheats, of necessity belonged to the Dominion, Ritchie, C.J., observes: — "To say that ^^j^''*^^'®' the Lieutenant-Governors, because appointed by the Governor-General, do not in any sense represent the Queen in the government of their provinces is, in my opinion, a fallacy; they represent the Queen Go\"erTo^r" ' as Lieutenant-Governors did before Confederation, thrQueen. in the performance of all executive or administra- tive acts now left to be performed by Lieutenant- Governors in the provinces in the name of the Queen; and this is notably made apparent in sec- j^^^^j^, , ;^ tion 82, which enacts that 'the Lieutenant-Governor jogg"^^^ ^^^ of Ontario and of Quebec shall from time to time, '^s'^'^'"'^^, in the Queen's name, by instrument under the Great Seal of the province, summon and call together the legislative assembly of the province ' ; and with reference to which matter nothing is said in respect to Nova Scotia and New Brunswick, the reason for which is obvious, the executive authority at Confederation continuing to exist, the Lieutenant- Governors of those provinces were clothed with authority to represent the Queen, and in her name And in the call together the legislatures; and also m the Great Seai^ section retaining the use of the Great Seals,- for the Great Seal is never attached to a document except to authenticate an act in the Queen's name, such as proclamations summoning the legislatures, commis- sions appointing the high executive officers of the 15 S.C.R. at p. 637, 3 Cart, at p. 28-9, (1881). 2 Section 136. Act. 100 Legislative Power in Canada. Prop. 7 province, grants of the public lands, which grants are always issued in the name of the Queen under the provincial Great Seals." ^ And a little later on he refers to section 92, No. i, whereby provincial legislatures are empowered exclu- sively to make laws in relation to "the amendment No. I of from time to time, notwithstanding anything in this RN.A. Act, of the constitution of the province, except as regards the ofhce of Lieutenant-Governor," from which, he says, he thinks a fair inference may be drawn that, as the Lieutenant-Governor, under cer- tain circumstances and in certain matters having reference to provincial administration, represents the Crown, the provincial legislatures are not per- mitted to interfere with this office.- ^See per Ritchie, C.J., S.C., 5 S.C. R. at pp. 634-5, 3 Cart, at pp. 25-6. ^See, also, per Ritchie, C.J., S.C, 5 SC.R., at pp. 643-4, 3 Cart, at p. 33. In a report of Sir John Thompson, as Minister of Justice, dated July i6th, 1887, upon the Quebec Act of 1886, respecting the executive power, 49-50 Vict., c. 96, which declared the Lieutenant-Governor, or person administering the government of the province, to be a corpora- tion sole, he says : — " The office of Lieutenant-Governor is one of the incidents of the constitution, and the authority to legislate in respect No. I of thereof is excepted from the powers conferred upon the legislatures of R*N /T' '•^^ provinces, and is exclusively vested in the parliament of Canada. Act. ' In the opinion of the undersigned, it is immaterial whether a legislature by an Act seeks to add to or take from the rights, powers, or authori- ties which, by virtue of his office, a Lieutenant-Governor exercises, in either case it is legislation respecting his office ; " and he recommended that the Act should be disallowed, and it was disallowed accordingly : Hodg. Prov. Legisl., Vol. II., pp. 589. However, in Attorney- General of Canada v. Attorney-General of Ontario, 20 O. R. 222, (1890), at p. 247, Boyd, C, speaking of No. i of section 92, "which forbids interference with the office of Lieutenant-Cjovernor," says : — " That veto is manifestly intended to keep intact the headship of the provincial government, forming, as it does, the link of federal power ; no essential change is possible in the constitutional position or functions of this chief officer, but that does not inhibit a statutory increase of duties germane to the office." And so in his published argument before the Court of Appeal in this case, elsewhere referred to, Mr. Edward Blake says of this clause of the Act : — "This means that those elements of the constitution which can be properly deemed to be parts of the con- stitution relating to the office of the Lieutenant-Governors are not to be changed ; and for an obvious reason, because the Lieutenant-Governor is the link between the federal and the provincial, aye, and between Provincial Lieutenant-Governors. ioi And reference may also be made to the despatch Prop. 7 of Lord Kimberley, Secretary of State for the Colonies, dated November 7th, 1872,^ (referred to per Taschereau, J., in this same case of Mercer v. Attorney-General for Ontario),'- where he says: — "And with reference to the question asked by Sir^°^^gj., Hastings Doyle, and submitted by Lord Lisgar for my decision, namely, 'Whether the Lieutenant- Governors are supposed to be acting on behalf of the Queen,' I have to observe that, while from the nature of their appointment they represent on ordinary occasions the Dominion government, there are never- theless occasions (such as the opening or closing of a session of the provincial legislature, the cele- bration of Her Majesty's birthday, the holding of a levee, etc.) on which they should be deemed to be acting directly on behalf of Her Majesty, and the first part of the National Anthem should be played the Imperial and the provincisl authority ; he is the means of communi- cation, he is the chain and conduit of Imperial as well as federal con- nection ; and, therefore, his office in the constitution, his constitutional Amendment position as a federal officer, is not to be affected." And the Ontario °on^/,°,„'"ion Court of Appeal (19 O.A.R. 31) and the majority of the Supreme as regards Court of Canada (23 S.C.R. 458) affirmed him in holding the Ontario "ffice of Act there in question zn/ra vires, though it purported to vest Go"Jrnor" ' certain powers, authorities, and functions in the Lieutenant-Governor of Ontario. In the latter Court, however, Gwynne, J., says: — "So to extend the powers, authorities, and functions of the Lieutenant-Governor of Ontario beyond those expressly vested in him by the Constitutional Act is, in my opinion, a violation of the terms of No. I of section 92 of that Act ... An Act which purports to vest in a Lieutenant-Governor of the province the royal prerogative in excess of so much thereof as is expressly or by necessary implication vested in him by the British North America Act must, I think, be held to be an alteration of the constitution of the province as regards the office of Lieutenant-Governor." The other Judges of the Supreme Court do not specially refer to this clause, Strong, C.J., and Fournier, J., resting their decision in favour of the Act upon its precautionary phrases — " So far as this legislature has power to enact," etc. — referred to in the notes to Proposition 32, infra, while Taschereau, J-, simply refers to the case of The Liquidators of the Maritime of Canada v. The Receiver-General of New Brunswick, [1892] A.C. 437. See this case further referred to ivfra pp. 113, seq. ^Ont. Sess. Pap., 1873, No. 67 25 S.C.R. at p. 672, 3 Cart, at p. 55, (1883). I02 Legislative Power in Canada. Prop. 7 So provincial Attorney- General represents the Crown in provincial Courts. Liquidators of Maritime Bank v. Receiver- General of New Brunswick before Court of first instance. in their presence," as to which, however, it may now seem to be a question how far Lieutenant- Governors can be properly spoken of as repre- senting the Dominion government.^ And it may be regarded as quite consistent with the view of the position of the Lieutenant-Governor expressed in the leading proposition, and with the principle that the Crown is one and indivisible throughout the Empire,- that in Attorney-General of Ontario v. The Niagara Falls International Bridge Co.^ it was held by Spragge, V.C., that the provin- cial Attorney-General is the officer of the Crown who must be considered to be present in the Courts of the province to assert the rights of the Crown and those who are under its protection, even in respect of the violation of rights created by an Act of the parliament of the Dominion. And so it is pointed out that it has never been doubted that the Attorney-General of the province is the proper officer to enforce those laws by prosecution in the Queen's Courts of the provinces.* In the able argument, admirably reported, in the same case from which the leading proposition is ^And for another case in which the view that Lieutenant-Governors do represent Her Majesty was upheld, see per Tessier, J., in Attorney- CJeneral of Quebec v. Attorney-General of the Dominion, 2 Q.L. R. at p. 242, 3 Cart, at p. 105. ^.See supra pp. Si -2. 320 Gr. 34, I Cart. 813, (1873). ^Thusin Monk &. Ouimet, 19 L.C.J. 71, (1874), the Attorney-General of Quebec claimed a sum of money which it was objected did not belong to the province of Quebec, but to the Dominion government, but Dorion, C.J., disposed of the contention by saying : — "Admitting that this debt belongs to the Dominion, it cannot be denied that it must be claimed by and in the name of Her Majesty, and that the Attorney-General has the right to appear for Her Majesty in all the Courts of justice in this province. The question as to which govern- ment this sum belongs to does not arise here." So, also, per Tascher- eau, J., S.C. at p. 83. Provincial Lieutenant-Governors. 103 taken before the Court of first instance,^ counsel for Prop. 7 the Crown, arguing that Lieutenant-Governors do represent Her Majesty in respect to local provincial matters, observe: — "By taking the view we have ^7^"'"^"' -' " ofcounsel. presented, the whole scheme of union is made con- sistent and harmonious. The Sovereign is not only the chief, but the sole magistrate of the nation, and all others act through her. The executive authority Brlfish'''^ is represented by the federal and provincial govern- sovereign ments, reaching out in both directions, and covers andjna**^ the whole ground. In case it should be argued that sX*' ""^ because the Lieutenant-Governor is appointed ^^y '"^s'^"'^'*- the Governor-General he cannot be supposed to represent Her Majesty, it may be well to refer to the old plantations before the Revolution. The pro- prietors could select the governors, subject to the Lieutenant- •' Governors approval of the Crown. They were held to repre- "°"« 'he sent the Crown : Chitty on the Prerogative, pp. "-epresent •^ ° ' t'f the Queen 25, 26, 31, 32, 33. The Governor-General is ''^"='^^v^^ ^ ^ ' ^ ' ^ ' ^^ appointed the Queen's representative, and in appointing the Ji^ ^',^^^^^_ Lieutenant-Governor he does it on behalf of Her'^*="^''^'- Majesty."^ And in his judgment in that case, Fraser, T.,-'^ expresses the matter in very much the Per same words as the Privy Council in our leading proposition, saying that it would seem to him that: — " While the Dominion Executive act for the Crown in federal matters, the provincial Executive act for ^Siibiiom. The Provincial Government of the Province of New Bruns- wick V. The Liquidators of the Maritime Bank, 27 N.B. 379, (18S8). It is also observed in this argument that the oathsof office of Governor- Generals and Lieutenant-Governors are precisely alike. They are given in Dom. Sess. Pap., 1884, Vol. 17, No. ^^. The commissions of sev- eral of the Lieutenant-Governors of Quebec, it may be noted, are also set out, ib.. No. 77, b. ^As to which, see The Liquidators of the Maritime Bank of Canada V. The Receiver-General of New Brunswick, [1892] A.C. at p. 443, supra pp. 93-4. ^27 N.B. at p. 396. 104 Legislative Power in Canada. Prop. 7 Provincial executive authority over provincial matters unabridged byB.N.A. Act Dicta denying that Lieutenant- Governors represent Her Majesty. Lenoir v. Ritchie. the Crown in matters of provincial concern ;" and he adds, at p. 400 : — " In regard to the powers of the Executive, great and extensive changes were made," {sc, by the British North America Act), "but in the changes that were made I cannot see anything in the British North America Act which takes away or abridges the executive authority (by which I mean the provincial executive authority) in respect of all subjects and matters which by the Act are de- clared to be provincial, and which are left to be dealt with by the provincial Executive and provincial legislatures."^ On the other hand, there have been dicta of many judges to the effect that Lieutenant-Governors are not representatives of Her Majesty, and the matter was much discussed in Lenoir y. Ritchie," where the contention affirmed by the judges of the Supreme Court of Nova Scotia, that, the assent of the Crown having been given to Acts of that provmce author- izing the Lieutenant-Governor to appoint Queen's Counsel and grant patents of precedence to members of the provincial Bar, this must be taken as a legis- lative declaration of the waiver and transference of the " Sovereign's functions, and that consequently all objections taken to the Acts on the ground that they were an unauthorized interference with the prerogative belonging to the Crown of regulating precedence at the Bar were unfounded," was not iJt is almost needless to observe that neither in this case nor in any other is it suggested that the British North America Act intended the position of the Lieutenant-Governors in anyprovince to be different from that of those in the others, and Fraser, J., in this case (27 N.B. at p. 400), expressly repudiates any such notion. See also Proposition 52. 23S.C.R. 575,1 Cart. 488, (1879). The judgments of the judges of the -Supreme Court of Nova Scotia in this case are printed in Can. Sess. Pap., 1877, No. 86, including the portion thereof dealing with the ques- tion raised as between the new and old Great Seal of the province, which Mr. Cartwright has omitted. Provincial Lieutenant-Governors. 105 upheld by the judges of the Supreme Court of Prop. 7 Canada.^ But with reference to our immediate subject, we;?*'' , •> ' i ascnereaUf may observe that in this case of Lenoir w. Ritchie J- Taschereau, J., says- : — " It seems to me that the theory that the Queen is bound by certain statutes because she is a party thereto can have no application whatever to the provincial statutes. In the federal parliament, the laws are enacted by the Queen, by and with the advice and consent of the Senate and the House of Commons. Not so in the provinces. Lieutenam- vjovernors 1 heir laws are enacted by the Lieutenant-Governors are officers 1 ■ of 'he and the legislatures. The Governor-General is Dominion government . appointed under the Royal Sign Manual and Signet; But see the Lieutenant-Governors are not even named bypp-'o'-^- the Governor-General, but by the Governor-General in Council, They are officers of the Dominion government." And, again, in this case,^ Henry, J., says : — " The^^nr j Queen has not signified her assent to the local Act in question. By the provisions of section go of the Imperial Act, the Governor-General, and not the Queen, assents to local Acts made in his name, as provided. The Lieutenant-Governors are appointed, not by the Queen, but by the Governor-General in Council. It cannot, therefore, be successfully con- tended that the Queen has assented to the local Act in question." And, again, Gwynne, T., says* : — Per . . -' J V Gwynne, J. " The Dominion of Canada is constituted a quasi- Imperial power, in which Her Majesty retains all her executive and legislative authority in all matters ^See the notes to Propositions 8 and 9, itt/ra pp. 177-9. 23 S.C.R. at p. 623, I Cart, at p. 529. '3 S.C.R. at p. 613, I Cart, at p. 519. *3 .S.C.R. at p. 634, I Cart, at pp. 540-1. io6 Legislative Power in Canada. Prop. 7 not placed under the executive control of the pro- vincial authorities in the same manner as she does in the British Isles ; while the provincial govern- ments are, as it were, carved out of, and subordi- nated to, the Dominion. The head of their executive Govemo^rs'' govemmeut is not an officer appointed by Her ofVe ""^^ Majesty or holding any commission from her, or in government, ^uy manner personally representing her, but an supra^ officer of the Dominion government, appointed by pp- loi 2- ^j^g Governor-General acting under the advice of a council, which the Act constitutes the Privy Council of the Dominion. The Queen forms no part of the provincial legislatures, as she does of the Dominion parliament."^ -Coundi''^ But with these words of Gwynne, J., we may con- trast the passage from the judgment of the Privy Council in the case from which our leading propo- ^For other references and dicta expressive of the view that Lieuten- ant-Governors are not Her Majesty's representatives, or, at all events, not her direct representatives, see per Gwynne, J., in Lenoir ». Ritchie, 3 S. C. R. at pp. 637-9, I Cart. at. pp. 543-5 ; per Gwynne, J. , in Mercer V. Attorney-General for Ontario, 5 S.C. R. at p. 711,3 Cart, at pp. 83- 4; per O'Connor, J., in Gibson v. McDonald, 7 O.R. at pp. 420-1, 3 Cart, at pp. 329-30, (1885) ; per Harrison, C.J., in Regina v. Amer., 42 U.C.R. at pp. 407-8, I Cart, at p. 740, (1878), as to which case see Todd's Pari. Gov. in Brit. Col., 2nd ed., at pp. 596-7 ; per Tascher- eau, J., in Mercer v. Attorney-General for Ontario, 5 S.C. R. at p. 671, 3 Cart, at p. 54, (1881) ; per Taschereau, J., in Attorney-Gen- eral of Quebec zi. Attorney-General of the Dominion, i'w/^ «£>/«. , Church V. Blake, i Q.L. R. at pp. 180-2, 3 Cart, at p. 114, where he says : — " Under our constitution, the sovereignty is at Ottawa. It is only there that Her Majesty is directly represented"; per Taschereau, J., in Queen v. Bank of Nova Scotia, 11 S.C. R. at p. 24, 4 Cart, at p. 408, (1885), where he declares that Lieutenant-Governors " in the perform- ance of certain of their duties as such under the British North America Act may be said to represent Her Majesty, in the same sense and as fully, perhaps, as Her Majesty is represented, for instance, by justices of the peace, constables, and bailiffs, in the execution of their duties " ; per Ramsay, J., in Ex parte Dansereau, Cotte's case, 19 L.C.J, at p. 215, 2 Cart, at p. 224, where he declares that the Queen forms no part of the provincial legislatures, and that she could not in her own person sanction a Bill of the local legislature, though she names the officer who shall perform this duty ; per Ramsay, J., in Attorney-Gen- eral V. Reed, 3 Cart, at p. 219 ; per Taschereau, J., in Lenoir v. Ritchie, 3 SCR. at p. 622, i Cart, at p. 528, (1879). The Sovereign and the Provinces. 107 sition is taken, The Liquidators of the Maritime Prop. 7 Bank of Canada v. The Receiver-General of New Brunswick,^ where they say: — "Their lordships do not think it necessary to examine in minute detail the provisions of the Act of 1867, v^hich no- where profess to curtail in any respect the rights and b.n.a. Act privileges 01 the Crown, or to disturb the relations disturb the 1 • • 1 1 o • relations then existing between the Sovereign and the prov- between the Sovereign inces. The object of the Act is neither to weld the and the provinces. provinces into one nor to subordinate provincial governments to a central authority, but to create a federal government in which they should be repre- sented, entrusted with the exclusive administration it was not its object to of affairs in which they had a common interest, each subordinate provincial province retaining its independence and autonomy, governments ^ _ _ ^ ■'to a central that object being accomplished by distributing au'ho"'y- between the Dominion and the provinces all powers executive and legislative, and all public property and revenues which had previously belonged to the But to ■^ create a provinces ; so that the Dominion government should federal government be vested with such of those powers, property, and foi- adminis- '^ JT r ./ ' tralion of revenues as were necessary for the due performance affairs of •^ ^ _ common of its constitutional functions, and that the remain- '"'<^''«t- der should be retained by the provinces for the pur- pose of provincial governments. "- In Molson v. Lambe,-^ objection was actually taken to an Act of the Legislature of Quebec because it purported to be made and enacted by Her Majesty use of Her the Queen, while it was alleged that Her Majesty namr'n" the Queen had no right or title to pass Acts binding fegkiation. on the province of Quebec, but this point was aban- doned before the Supreme Court of Canada. How- ^[1892] A.C. 437, at pp. 441-2. '^See Propositions 61 and 64, and the notes thereto. 815 S.C.R. 253, M.L.R. 2 Q.B. 381, i S.C. 264, 4 Cart. 334, (1887-8). io8 Legislative Power in Canada. Prop. 7 ever, we find, in 1875, the then Minister of Justice upholding the proposition in one of his reports, that : — " The Queen, not being in any way an enacting party or power of the provincial legislature. Her Majesty's name is improperly used in provincial legislation." 1 The And while upon the subject of the status of pro- Thrasher .... Case. vmcial Lieutenant-Governors, it may be worth while to refer to the views expressed by Begbie, C.J., in the Thrasher Case,- where, speaking of the ambiguity in the use of the epithet "provincial," p^^ he says : — " We may with equal propriety speak of Begbie, g^ provincial lieutenant-governor or a provincial deputy adjutant-general, or, on the other hand, of a provincial minister or a provincial superintendent or minister of education. But the same epithet means orwo°rd """^two very different classes of officials. The former cIv'""' are allotted to, the latter derive from, the province. In the one case are meant officers appointed and authorized by some power without, i.e., by the Do- minion, to perform certain duties in the province. In the other case the officials draw all their authority from within the province itself. The former owe no allegiance to the province, nor any duty, except indirectly, having to carry out, according to their respective commissions, the laws duly established in the province, whether common law or statute laws ; and as to statute laws, whether of Imperial, Domin- ion, or provincial enactment . . . The}' are not, however, responsible to any provincial authority, but only to the Dominion, whose creatures they are and whose mandate they bear. The latter class iHodgins' Frov. Legisl., Vol. I., at p. 99. But see Todd's Pari. Gov. in Brit. Col., 2nd ed., pp. 439-40. 2 1 B.C. (Irving) at p. 161. Provincial Lieutenant-Governors. 109 of officials owe allegiance to the province, and are Prop. 7 under its sole authority, being of its creation. And I think this distinction has been sometimes lost sightjfof in discussing the British North America Act, leading to apparent anomalies in that Act which do not really exist." To return to the leading proposition, it would seem to follow from it that it is altogether incorrect Not correct to say with Taschereau, J., in Lenoir u. Ritchie, ^ covernor- that : — "The Governor-General alone exercises theSon^''' prerogatives of the Queen in her name in all thcthf "*' ■cases in which such prerogatives can be exercised ofth?''"'^" in the Dominion by any one else than Her Majesty ^"^^"' herself." The same learned judge,- however, said in like manner, in Attorney-General of Quebec v. Attorney-General of the Dominion'-: — "The Gov- ernor-General alone is the direct representative of ^ Or that he Her Majesty in and for the whole Dominion, and ^'o"^'^ her direct repre- to him alone, as such representative, is entrusted ^«"'^''^«- the exercise of the royal prerogatives, within the limits fixed by the constitution (and this constitu- tion for the Dominion is partly written and partly unwritten), either resulting from our dependence on England, or still further prescribed by the special instructions which Her Majesty is pleased to giveo him." It would certainly seem that the proper person royd to exercise the prerogatives of the Queen in matters m mau^err'' of provincial government must be the Lieutenant- govemmem. -Governor, who is her representative in respect to them. So, too, it would seem impossible now to defend Per Tessier, the dictum of Tessier, J., in Attorney-General of Lieutenant- overnor exercises ^3 S.C. R. at p. 624, I Cart, at pp. 530-1. -I Q.L.R. at p. 181 {sub tio/ii., Church v. Blake), 3 Cart, at p. 114. 110 Legislative Power in Canada. Prop. 7 The Privy Council. Delegated powers of Lieutenant- Governors come from Her Majesty through the Governor- General. How far and in what manner Governor- Generals and Lieutenant- Governors are vested with royal prerogative rights and powers. Quebec v. Attorney-General of the Dominion, ^ where he observes that the statement that it is the Governor-General, and not the Lieutenant-Governor, who is the Queen's representative is " true in regard to the special attributes of royalty which Her Majesty can delegate and confer by and in virtue of her royal prerogative and instructions ; but it is not true in regard to those matters over which H er Majesty the Queen has no longer any direct power, such as the publiclands and the rights of property, and civil rights in each province." For, just as in The Liquidators of the Maritime Bank v. The Receiver- General of New Brunswick, 2 the Privy Council point out that the act of the Governor-General and his Council in appointing Lieutenant-Governors is, within the meaning of the British North America Act, an act of the Crown ; and that " a Lieutenant- Governor, when appointed, is as much the represen- tative of Her Majesty for all purposes of provincial government as the Governor-General himself for all purposes of Dominion government," so any powers which under his commission and instructions a Governor-General can confer upon Lieutenant-Gov- ernors of provinces must be considered to be dele- gated to them by Her Majesty as much as are those which she delegates and confers upon the Gover- nor-General, The Governor-General, then, and the Lieutenant- Governors of provinces being alike, in their respec- tive spheres, the representatives of Her Majesty, the question remains how far and in what manner they are invested with the power and duty of exer- cising her royal prerogatives. Under the general ^2 Q.L.R. at p. 241, 3 Cart, at p. 105, (1876). ^[1892] A.C. at p. 443. Royal Prerogatives in Canada. hi practice throughout the Empire, "the Queen," as Prop. 7 Sir W. Anson says in his recent work on the Crown, ^ " is represented in each colony by a governor, who is appointed by commission, and who is limited as to his powers by the letters patent which constitute p^tiy by his office, and the instructions which inform him in J^JiSonTand detail of the manner in which his duties are to be '""''""'°"^' fulfilled," 1 and in the case of the Governor-General, and of the provincial Lieutenant-Governors also, we should look to their commissions and instructions to see with what prerogative powers they have been invested. Furthermore, as we have already seen {supra pp. 98-g), power to represent the Queen in cer- tain specified matters has been expressly conferred T • /- , . . Partly by upon Lieutenant-Governors by various sections of the express pro- vision in British North America Act, and so also has it been b.n.a. Act. upon the Governor-General.- But a somewhat startling theory has been recently advocated, or rather insisted on, by the Ontario government in connection with this subject, so far as relates to ^ new Canada, in a despatch from the Lieutenant-Governor "'*°''^'- to the Secretary of State, of January 22nd, 1886. ^ The contention in that despatch is that all govern- ment and all executive authority are matters of pre- rogative, and that : — " The Lieutenant-Governor is entitled, virtute officii, and without express statutory enactment, to exercise all prerogatives incident to executive authority in matters over which provincial legislatures have jurisdiction, as the Governor- ^At p. 260. See Musgravej^. Pulido, 5 App. Cas. at p. in, (1879); Hill V. Bigge, 3 Moo. P.C. at p. 476, (1841); Cameron v. Kyte, 3 Knapp's P.C. at p. 344, (1835). Also the judgment of Strong, C.J., in the pardoning power case, Attorney-General of Canada v. Attorney- General of Ontario, 23 S.C.R. 458. 2See sections 11, 24, 34, 38, 55, 58, 59, 63, 75, 82, 85, 90, 96, 99, 131, 134- 30nt. Sess. Pap., 1888, No. 37, at pp. 20-22. 112 Legislative Power in Canada. Prop. 7 General is entitled, virtute ojficii, and without any statutory enactment, to exercise all prerogatives That they incident to executive authority in matters within are vested, •' ^'^'"/^ . , the jurisdiction of the federal parliament : a Lieu- ■officii, with J r ' au pjeroga- tenaut-Govemor has the administration of the royal ixec'lft'ili" prerogatives as far as they are capable of being mauer's'^ '" excrciscd in relation to the government of the prov- ^spective"^ ince ; as the Governor-General has the adminis- spheres. tration of them, so far as they are capable of being exercised in relation to the government assigned to the Dominion ... In the absence of any express delegation or legislation, my government insist that the Governor-General and Lieutenant- Governors have respectively, under their commis- sions, all powers necessary and proper for the administration of their respective governments, all powers usually given to or exercised by colonial governors." And this view is defended thus: — "My government do not question that ' it is a well-estab- fhTt'ruie°" lished rule, generally speaking, in the construction ootaffect^d o^ Acts of parliament, that the King is not included suit^u^tory^' unless thcrc be words to that effect ; for it is inferred whereTo^' pYimd fucic that the law made by the Crown with memloned, the asscnt of Lords and Commons is made for sub- cabie^to' jects, and not for the Crown.' But what they claim '^ ■ is, that this reason does not apply to an Act the express object of which is to grant a constitution, a legislature and an executive, to colonies of the Empire. "^ My government insist that all govern- ment and all executive authority are matter of prerogative, and that in a sense legislation is so like- wise, for the royal assent is necessary to legislation. In the case, therefore, of a constitutional Act there is no presumption that general provisions contained in it were not intended to include any matter of ^See supra pp. 28-40. Royal Prerogatives in Canada. 113 prerogative which, in the absence of the rule of Prop. 7 interpretation referred to, would be covered by the general words employed. My government inform me that they are not aware of any judicial authority for applvine: the rule, and they claim that it is not it deals t^i^ J '^ ■' throughout applicable, to an Act by which 'Her Majesty, by with ^ and with the advice and consent of the Lords prerogative. Spiritual and Temporal and Commons in Parliament assembled,' grants to one of her colonies a constitu- tion for regulating its own affairs in legislation and government. Such a constitution cannot be created without dealing with prerogative. The British North America Act from beginning to end deals with matters of prerogative, and mostly without any express naming of the Queen." And in the Pardoning Power, or Executive Power The Pardon- ing Power, case, Attorney-General of Canada v. Attorney- or Executive Power case. General of Ontario, ^ Mr. Edward Blake strenuously argued in support of this view.- It was not, how- ever, necessary to the determination of that case to decide the matter, and only one judge, Burton, J. A., referred to it in giving judgment. That learned g^'^^^j^^ judge, however, says^ : — " I have always been of opinion that the legislative and executive powers granted to the provinces were intended to be co- extensive, and that the Lieutenant-Governor became entitled, virtiite officii, and without express statutory enactment, to exercise all prerogatives incident to executive authority in matters in which provincial I20 O.R. 222, 19 O.A.R. 31, 23 S.C.R. 458, (1890-4). See the case further referred to in the notes to Propositions 8 and o, infra PP- 130-3- ^See his argument before the Court of first instance as reported 20 O.R. 222, and before the Ontario Court of Appeal, as published verbatim by the press of the Budget, 27 iMelinda Street, Toronto. 1892, under the title, " Executive Power Case." 3 19 O.A.R. at p. 38. 114 Legislative Power in Canada. Prop, 7 legislatures have jurisdiction ; that he had, in fact, delegated to him the administration of the royal prerogatives as far as they are capable of being exercised in relation to the government of the provinces, as fully as the Governor-General has the administration of them in relation to the govern- ment of the Dominion."^ He supports this theory So also per Loranger, J. Sed qucere. Colonial governors are not viceroys. Reserve of executive control in Imperial government ^In his " Letters upon the Interpretation of the Federal Constitution," (first letter), already several times referred to, Mr. Justice Loranger reaches a similar conclusion. He argues (pp. lo-i i) that inasmuch as sovereignty is indivisible, inasmuch as in both public and private law it is a principle that the powers exercised by the representative are, unless limited, identically those of the person represented, and inas- much as the British North America Act does not contain any restric- tions, the Privy Council by recognizing in The Attorney-General of Ontario v. Mercer, 8 App. Cas. 767, 3 Cart, i, the power of Lieutenant- Governors of provinces to exercise a right appertaining to the royal prerogative, that of claiming the right to escheats, has recognized all the others. This, however, would seem to be making the Lieutenant- Governors viceroys in respect to provincial matters, whereas it is well decided that a colonial governor under the British system is not a viceroy, but is vested with an authority limited by the terms of his commission and instructions, and, of course, by the terms of any valid statute conferring authority upon him, or regulating his powers: Musgrave v. Pulido, L. R. 5 App. Cas. 102; Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 34, seq. avid passim. It is submitted, with great deference, that the view expressed by Burton, J. A., in the passage above cited, and contended for by Mr. Edward Blake, as above stated, is not in accordance with what Strong, C.J., in his judgment in the Executive Power case, 23 S.C. R. at pp. 468-9, speaks of as "the general constitutional law of the Empire," infra p. 180. It is part of the general view elaborated by Mr. Blake in his argument above referred to, namely, that the provinces, on the one hand, and the Dominion, on the other, are possessed under the British North America Act, and subject to its provisions, with complete sovereign powers, as well executive as legislative, within their respective spheres; whereas it is submitted that in accordance with the general law of the Empire, such powers of the Crown as are not expressly conferred by the British North America Act, or have not been dealt with by statute, local or imperial, exist, whether in the Dominion or the provinces, only by delegation from the Sovereign of Great Britain, and, until so taken possession of, as it were, by statute law, can be withdrawn, or modified and regulated, by the Sovereign, acting under the advice of her Imperial Ministers, as to the Governor-General directly, and as to Lieutenant-Governors mediately through the Governor-General. And this seems entirely borne out by the correspondence with the Imperial government over the Nova Scotia Great Seal case. It will be remembered that sec- tion 136 of the British North America Act provided that " until altered by the Lieutenant-Governor in Council," the Great Seals of Ontario and Quebec should be the same as those of Upper and Lower Canada, respectively, before the union as the province of Canada. But there is no provision in the Act as to the Great Seals of Nova Scotia and New Royal Prerogatives in Australia. 115 As already stated, none of the other judges who Prop. 7 sat on this case passed upon the matter, but Strong, C.J., and Gwynne, J., speak in such a manner as clearly shows that they would not have upheld it.^ By a curious coincidence, in the Australian colony of Victoria a similar theory as to the right to exer- cise all prerogative powers relating to the local ^^jl^"" affairs of the colony being vested in the Governor, Au°tV\1ia. by virtue of the Constitution Act, though not Brunswick. Accordingly in a despatch of August 23rd, 1869, Lord , q ^ Granville, after taking the advice of the law officers of the Crown, gg^j ^^^^ states that he entertains no doubt that in Her Majesty alone is vested the power to change at will the Great Seals of the provinces of New Brunswick and Nova Scotia, but that he was advised that the assent of the Crown being first obtained local Acts afterwards assented to by the Crown would be a legal mode of empowering their Lieutenant- Governors to alter the Great Seals of those provinces from time to time : (Can. Sess. Pap., No. 86, at p. 7). This shows that in the view of the law officers of the Crown the prerogative power even over so very local a matter as the form of the provincial Great Seals, not having been expressly dealt with by the Act, was vested (not in the Lieutenant-Governors, vzritUe officii, as Mr. Blake would have it), but in Her Majesty. Nevertheless, with the prior assent of the Crown (such requirement being apparently in accordance with the usage of the Imperial parliament before dealing by statute with the prerogatives of the Crown ; see infra p. 178, n. i), a local Act might be passed, probably under No. 16 of section 92, — "matters of a merely local or private nature in the province," — in reference to the matter. The No. 16 of point, however, is not without importance, for any such Act is subject sect. 92, to disallowance by the Governor-General in Council, and it is a very B.N. A. Act. different thing that provincial legislatures should have control over royal prerogatives immediately relating to the subjects over which they have legislative jurisdiction, from the Lieutenant-Governors having such pre- rogatives vested in them virtute officii. As to the power of Canadian legislatures to affect the royal prerogatives, see infra pp. 176-184. And as to the Nova Scotia Great Seal case, see further infra p. 134, n. i. ^23 S.C. R. 458. In The Liquidators of the Maritime Bank of Canada V. The Receiver-General of New Brunswick, 20 S.C.R. at p. 698, however, Taschereau, J., says : — " In my opinion, under the British North America Act the executive power in the provinces is, as a general rule, vested with the same rights and privileges in the adminis- tration of the functions, powers, and duties thereto assigned under this Act as are attached to analogous functions, powers, and duties of the executive authority in England ; " and he says that such was his opinion when he decided Church v. Middlemiss, 21 L.C.J. 319, (see supra p. 97), adding : — ■'■'■ Though I admit now that in order to reach this conclusion it is not necessary to hold, as I did in that case, that Her Majesty forms part of the provincial executive authority." ii6 Legislative Power in Canada. Prop. 7 expressly therein conferred, was propounded by counsel, and received the support of the Chief Justice of the Supreme Court of the colony, and of MuUrove. ^^^ °^ ^^^ Other judges in the recent case of Toy v. Musgrove,^ though the four remaining judges took the other view, namely, that certain of such pre- rogatives, and no others, were, by the provisions of the Constitution Act and his commission, conveyed to the Governor as representative of the Queen. The Chief Justice sums up his conclusion on the Per Higin- point thus": — "The executive government of Vic- botham.C.J. ^ . . ° toria possesses and exercises necessary functions under and by virtue of the Constitution Act similar to and co-extensive, as regards the internal affairs of Victoria, with the functions possessed and exer- cised by the Imperial government with regard to internal affairs of Great Britain." Therefore, with entire consistency, he held that, in the exercise of his powers as head of the executive government of Victoria, the Governor was not an agent of the Crown, nor an officer of the Secretary of State for the Colonies : — " A new and distinct authority is conferred upon him by law on his appointment ; he The is created, for all purposes within the scope of the Governor '^ ^ '_ _ aiocai Constitution Act, the local Sovereign of Victoria." sovereign. '^ and he held that the Crown had no longer any right to " instruct " the Governor with reference to the exercise of his powers as such head of the executive of the colony, and that anything to the contrary in his commission or instructions was illegal and void. At the same time he admits, of course, that " all the prerogatives and powers of the Sovereign I14 V.L. R. 349, (1888), referred to, but not discussed, by Strong, CJ., in the last-mentioned case of Attorney-General of Canada v. Attorney-General of Ontario. 214 V.I. R. at p. 397. Royal Prerogatives in Australia. 117 are not vested by law in the Queen's representative Prop. 7 in Victoria, nor can all of them be the subject of advice to the Governor by the Queen's ministers for Victoria. The prerogatives of war and peace, of negotiation and treaty, together with the power of entering into relations of diplomacy or trade, and holding communication with other independent pQ^3°"f3^ng°' states, to some one, or all, of which the power to do rogatfves. an act which shall constitute an act of State appears to be annexed, have not been vested in the Governor of Victoria by law express or implied." And so Kerferd, J., in the same case, says^: — "If the Crown," (sc, in the Colony of Victoria), "is restricted to the use of those prerogatives mentioned in the Constitution Act and the Governor's com- mission, then all other prerogatives must be deemed to be excluded. I can find no authority in support So also per •' ^ ^ Kerferd, J. of such a contention . . I would say that all the prerogatives necessary for the safety and protection of the people, the administration of the law, and the conduct of public affairs in and for Victoria, under our system of responsible government, have passed as an incident to the grant of self-government (without which the grant itself would be of no effect), and may be exercised by the representative of the Crown on the advice of responsible ministers." But, as already stated, the other four judges did not concur in this view, but held that, even if the prerogative power then in question, viz., that of excluding aliens from entering the colony, could be properly regarded as one relating to the local affairs of the colony, yet the Governor had it not either under the Constitution Act or his commission and ^14 V.L. R. at pp. 409, 411. ii8 Legislative Power in Canada. Prop. 7 instructions. Wrenfordsley, J., says^: — " I am not aware of any authority to the effect that in a Aiiter settled colony like Victoria the Act of Constitution per Wren- -^ fordsiey, J. carries with it powers outside or beyond the exact terms of the grant itself." A'Beckett, J., says : — And per "Assuming that the right to exclude aliens sub- A Beckett, gisted in England as part of the royal prerogative when our Constitution Act was passed, I can find nothing in the Act, or in the system of government which it originated, authorizing the exercise of this right by the advice of Ministers in Victoria. It was argued that the authority must be given because responsible government was given, as if the phrase ' responsible government ' had a definite, compre- Responsible \ ? ..... . government hcnsivc meaning, necessarily mcluding the power in by no means . ° -^ . necessitates qucstion. The phrasc has, to my mind, no such such a -^ ... eory. force. Responsibility may attach to persons having powers strictly limited, and its existence does not indicate the extent of the authority from w^hich it arises. For this we must look to the terms in which the authority was conferred, that is to say, to the Act of parliament establishing the system, and to the documents delegating powers to the governor who administers it, to ascertain whether by express words or necessary implication the right So, also, per to cxcludc alicus has been given." Lastly, Holroyd, Holroyd, J. . U • u 1 "iU J., says, m a passage which also seems worth quoting-: — " By the Constitution Act itself certain powers are conferred upon the Governor, similar to some of those which in the United Kingdom the Queen enjoys as her exclusive privilege, notably that of proroguing the Council and Assembly, and ^14 V. L. R. at p. 437. As to constitutional limitations of the powers of colonial legislatures in respect to providing for the removal of persons out of their jurisdiction to other places, see the notes to Proposition 26. ^14 V.L.R. at p. 429. See, also, per Williams, J., S.C. at p. 419. Royal Prerogatives in Australia. iig dissolving the Assembly ; that of appointing any Prop. 7 officers liable to retire on political grounds, and that of appointing, with the advice of the Executive Council, all other public officers under the govern- ment of Victoria. Powers of this class having been bestowed in express terms, we ought to presume, according to the ordinary rule of construction, that no others of the same class were intended to pass. The rule is not one of universal application, but, in the present instance, it should be rigidly applied, inasmuch as it is still a fundamental maxim, that thecrownnot . ^ bound unless Crown IS not bound by any statute, unless expressly expressly 1 • 11 -11 1 named. therem named, and, as a corollar}^, the royal prero- gative cannot be touched except in so far as therein expressed. It is, moreover, conceded that the exclusion of aliens is not a local affair in its conse- quences, which might affect the whole Empire ; and that circumstance furnishes an additional reason for not implying an intention on the part of the Home Government to vest in the Governor a power which his advisers here might recommend him to execute, in subject to a manner detrimental to Imperial interests. Except actment', the in so far as his position has been altered by positive colonial ^ , _ , . , governors enactment ot the Home parliament, or by some are restrkt- 11 1 1 1 T T n T ■ ed to those statute passed here and assented to by Her Majesty, provided for the Governor himself is the servant of the Crown, missions and tied down by his commission and instructions. It is not pretended that he has been permitted by either to shut out or to remove aliens ; and if no such authority has been distinctly vested in him by statute, or delegated to him by the Queen, we may safely conclude that he does not possess it." The case was carried to the Privy Council,^ but the appeal was decided on other grounds, and their lordships say that, this being so, they do not deem instructions. i[i89i] A.C. 272. 120 Legislative Power in Canada. Prop, 7 it rif^ht to express an}- opinion on " what rights the executive government of Victoria has, under The Privy the constitution conferred upon it, derived from the Council. Crown," It involves important considerations and points of nicety which could only be properly dis- cussed when the several interests concerned were represented, and which may " never become of practical importance."^ To return to the British North America Act, there are express enactments in it which seem very Express clcarl}' to sliow, in opposition to the theory of the rn!a?ac°'^ apportionment by it of royal prerogatives in rela- th'e^°above'^ tion to Canada above referred to, that all preroga- ' ^°'^' tive functions and powers not specificall}^ bestowed by its provisions upon the Governor-General or Lieutenant-Governors remain vested in Her Majest}-. Sect. 9. Thus, in section g, the executive government and authority over Canada is declared to continue and be vested in the Queen ; by section 14 it is provided Sect. 14. that it shall be lawful for the Queen, if she thinks fit, to authorize the Governor-General from time to time to appoint deputies ; by section 15, that the Sect. 15. command-in-chief of the naval and military forces ^It appears thai on December 22nd, 1S69, the Legislative Assembly of Victoria went so far as to pass the following resolution (Parliamen- tary Debates, Vol. 9, pp. 2670-1) : — " That the official communication of advice, suggestions, or instructions by the Secretary of State for the Colonies to Her Majesty's representative in Victoria on any subject whatsoever connected with the administration of the local government, except the giving t)r withholding of the royal assent to or the reservation of bills passed by the two Houses of the Victorian parliament, is a practice not sanctioned by law, derogatory to the independence of the Queen's representative, and a violation both of the principle of responsible government and of the constitutional rights of the people of this colony." It seems, however, that no notice was taken by the Imperial government of this protest, and the practice condemned in the resolution remains unaltered. See 14 V. L. R. at p. 385. The royal instructions are directly referred to in section 55 ^^ the British North America Act : see Todd's Pari. Gov. in Brit. Col., 2n(i ed., at p. 35, set/. Royal Prerogatives in Canada. 121 continues and is vested in the Queen ; and by Prop. 7 section 16, that, until the Queen otherwise directs, the seat of government of Canada shall be Ottawa, sect. 16. The matter may or may not prove to be of much practical importance, but if the true meaning and intent of the theory under discussion is that the Imperial government cannot now instruct the Governor-General, and through the Governor-Gen- eral the provincial Lieutenant-Governors, as to how they shall respectively exercise such prerogative Liquidators powers in relation to Canadian affairs, as have not g^JlIf """'^ been regulated by valid statutory enactment, it isQenerluf difficult to see how it can be said, as is said by the Bru^nswick. Judicial Committee in the case already referred to of The Liquidators of the Maritime Bank of Canada V. The Receiver-General of New Brunswick,' that the provisions of the British North America Act " nowhere profess to curtail in any respect the \ . -^ . B.N. A. Act rights and privileg^es of the Crown, or to disturb the did not . . . . disturb relations then subsisting: between the Sovereign and f^iations " " between the provinces." Rather it may be said, in words Sover^e^gn suggested by another passage in that judgment, p''°^'""^- that, according to this view, the Governor-General and the Lieutenant-Governors, and not the Queen, whose deputies they are, became the sovereign authorities of the Dominion and the provinces respectively when the Act of 1867 came into operation. No such view, it is submitted, is neces- sarily involved in that maintained in connection with the next proposition, that executive power is, in the absence of restraining enactment, to be deemed correlative to and co-extensive with legisla- ^[1892] A.C. 437, at p. 441. See su/>7-a pp. 85-6. /« re Samuel Cambridge, 3 Mo. P.C. 175, {1841), may be referred to in this con- nection. 122 Legislative Power in Canada. Prop. 7 tive power, even though such executive power be of a prerogative character."^ ^The despatch of Lord Granville to Sir J. Young, of February 24th, 1869, after consulting the law officers of the Crown, in reference to the , , pardoning power (Can. Sess. Pap., 1869, No. 16), seems quite opposed Granville, ^o 'he view advanced by the Lieutenant-Governor of Ontario {supra pp. 1 1 1-2), and above discussed. Thus he says: — "By the British North America Act the authorities given to the several provincial Lieutenant- Governors were revoked, except so far as is otherwise therein pro- vided. Among the revoked powers the power of pardoning would be one, unless specially excepted. Now, the Lieutenant-Governors of the provinces under the new system are to be appointed, not directly by the Queen, but by the Governor-General in Council, and the new Lieutenant-Governors would not take the power of pardoning virhcte qfficii unless it were given by the Act. The whole constitution of the provinces was changed by the Act of Union, and the delegated powers of government necessarily ceased. No such power is given, or retained to or for them, in that part of the Act which is headed ' Provincial Constitutions.' Nor can it be properly said that the prerogative of mercy is part of the administration of justice ; still less can it be argued that the Lieutenant-Governor possesses the power of pardon because the administration of justice in the province is reserved to the provincial legislature." Correlation of Governmental Powers. 123 PROPOSITIONS 8 AND 9. 8. Executive power is derived from legislative power, unless there be some restraining enactment. 9. The Crown is a party to and bound by both Dominion and Provincial sta- tutes, so far as such statutes are intra vires, that is, relate to matters placed within the Dominion and Provincial con- trol respectively by the British North America Act. As long ago as 1871, in the Queen v. Pattee,^ the Master in Chambers in Ontario said, after referring to sections 92 and 135 of the British North America Act: — "As is consistent and natural, the execu- fjfjf*-""^^ tive and legislative functions of the govern- po^^^'grs'co- ment of Ontario seem to be co-extensive ;" and in^^"'"^"'^- Regina v. Horner- Ramsay, J., states that the gen- eral principle expressed in Proposition 8 was recog- nized by the Privy Council in Regina v. Coote,^ The Privy where they held that the statutes of the Quebec legislature, 31 Vict., c. 32, 32 Vict., c. 29, appoint- ing officers, named fire marshals, with power to examine witnesses under oath, and to enquire into 15 O. P.R. at p. 297. This case decided that the Attorney-General of Ontario was the proper authority in that province to grant a fiat for sci. fa. proceedings to set aside a patent. ^2 Steph. Dig. at p. 451, 2 Cart, at p. 318, (1876). 3L.R. 4 P.C. 599, I Cart. 57, (1873). See also the passage in the report of Sir John Thompson upon the Quebec District Magistrates Act, 1888, m/;-^ pp. 166-8. It 124 Legislative Power in Canada. Prop. 8-9 the cause and origin of fires, and to arrest and com- mit for trial in the same manner as a justice of the peace, was within the competence of the provincial legislature. Their lordships, however, do not them- selves state their reasons for so holding. It has not been without dispute and some diver- gence of judicial opinion that the application of this Contrary principle to the constitution conferred upon the Thrasher Domiuion by the British North America Act has been established. Thus in the Thrasher Case,^ Per Begbie, C.J., says : — " The first thing to be observed upon section 92 of the British North America Act is that its object and intention, as well as expressed phraseology, is to confer a legislative power on a legislative body . . . The grant is to a purely legisla- tive body of purely legislative functions, viz., a grant of power ' to make laws ' in relation to civil rights and the administration of justice; and there is no grant here to the local legislature, enabling them to exercise either judicial or executive powers or functions in respect of any of the enumerated topics. In defining, asserting, ascertaining, and protecting civil rights, in administering justice, the share of the legislature is probably the most impor- tant. But the legislature has only a share in the work. A very important share in all this business belongs to the judiciary ; a very important share to the executive alone ; and it could not have been intended to give to the legislature power to perform both judicial and executive functions ; and, at all events, it has not been expressly given . . . There ^i B.C. (Irving) at pp. 170-1, (1882). See this case referred to in Todd's Pari. Gov. in Brit. Col., 2nd ed., at p. 566,5.?^.; also a num- ber of articles and letters upon it in Vol. 18 of The Canada Law Jotirtial, especially two by Mr. Todd at pp. 181, 265 ; and a series of articles on Provincial Jurisdiction over Civil Procedure, 2 C.L.T. at pp. 313, 360, 409, 456, 513, 561. Legislature and Executive. 125 might be somewhat to be said against this view if it Prop. 8-9 reduced section 92 to a barren grant ; if there were nothing left upon which the grant could operate. But this is by no means the case. The argument leaves to the local legislature, fully and unimpaired, all essentially legislative functions in respect to all view that the matters enumerated in section 92 ; all matters of of'^B.N.A. substantive law; all, surely, that could have beenon'iy'^iegis-^ intended to be given to the legislature of the prov- p^owers. ince. The management of public lands and works, a large part of taxation, the whole law of inherit- ance to the real and personal property, the rights of creditors against the person and property of their debtors, of husband and wife, the law of juries and attorneys, and numberless other matters, are left to the local legislature ; executive and judicial func- tions, however, are not given, and, therefore, are expressly forbidden to them even in regard to these topics."^ And in accordance with the views thus expressed, Begbie, C.J., held, with his fellow-judges, Crease and Grav, ]]., that section 28 of the British J"'^?'"^"'* - J J ' in the Columbia Local Administration of Justice Act, J^^^''^^'' 1881, 44 Vict., c. I, by which it was provided that the judges of the Supreme Court of the provinces should sit as a full Court only once a year, at such time as might be by rules of Court appointed, was iilti'a vires on the ground that- the Court was not a provincial Court within the meaning of No. 14 of section 92, and it is over the procedure of such iJn AV Hamilton and North-Western R.W. Co., 39 U.C.R.at p. 112, (1876), Harrison, C.J., says:— "In the reading of the British North America Act one cannot fail to observe the distribution of powers into the three great divisions of executive, legislative, and judicial. To avoid conflict, the functions of each must, as far as practicable, be kept separate and distinct within its own sphere." ■2 At p. 174. 126 Legislative Power in Canada. Prop. 8-9 provincial Courts alone that No. 14 gives the pro- vincial legislature jurisdiction, and — " Whatever JrCale'''''^ may be said of some topics, this, at all events, is pure procedure, and essentially of judicial cogni- zance. It is not a legislative function at all, any more than the adjournment of a part heard case. It, consequently, is not included in any general gift of legislative power. And, therefore, it is not con- ferred by the gift to a legislative body of a power to make laws in reference to civil rights and the administration of justice ... If the Imperial par- liament may, and does, from time to time, thus interfere beyond its proper legislative functions, that is by virtue of its universal sovereignty. No derivative legislature may do so, unless especially authorized in that behalf." The Supreme Court of Canada, however, upon the question being referred to it by the Governor- ^jy s^^preme General in Council, held that the legislature of Canada. British Columbia could make rules to govern the procedure of the Supreme Court of the province in all civil matters, and could delegate this power to the Governor-General in Council, and they also held that the provincial Act, 44 Vict., c. i, was intra vires of the legislature of British Columbia.^ Their lordships, unfortunately, as has hitherto been usual in such cases, did not give their reasons for this decision. iSee the answers of the Supreme Court of Canada reported in the footnote to the report of the Thrasher Case, i B.C. (Irving), at pp. 243-4 : also Cass. Sup. Ct. Digest, at p. 480. Sir J. 2gut sgg now 54-55 Vict., c. 25, s. 4, (I).). It may be here noted that Thompson j,^ j^jg report to the Governor-General of July loth, 1889, in regard to a references petition presented to the latter for the reference of The Jesuit Estate by Act to the Supreme Court of Canada, Sir John Thompson, then Min- goi^rnment ister of Justice, reviews the different precedents for such references, Coun^'of'"*^ and also for similar references, in England, by the government to the Canada. Judicial Committee of the Privy Council, arriving at the conclusion Legislature and Executive, 127 Nevertheless, in the recent British Columbia case Prop. 8-9 of Burk V. Tunstall/ Drake, J., seems to have held that the provincial Act in question in that case, |jj[^'^j^j, authorizing the appointment of Gold Commis- sioners of Mining Courts, was tdtra vires, not only because the intended Gold Commissioners were, in effect, Superior Court judges under another name,^ but also because : — " It is a prerogative of the Crown to appoint all judges, and such prerogative cannot be taken away except by express words. This prerogative has been delegated to the Governor- General, and there is nothing in the Act taking this right away and vesting it in the Lieutenant- Governor," a view which, as will be more clearly seen presently, seems to ignore the application of the principle of Proposition 8 to the legislative powers comprised in No. 14 of section 92 of the British North America Act, respecting the adminis- tration of justice in the province. To return to the case of Regina v. Horner, •'' above Reg. r/. ^ Horner. referred to, the question before the Quebec Court of Queen's Bench there was whether the provincial Executive had the right to appoint district magis- trates under the provisions of the then existing Acts that the object and scope of the enactments allowing such references are " not to obtain a settlement, by this summary procedure, of legal questions even of great public interest, or to obtain an adjudication upon private rights, but solely to obtain advice which is needed by the Crown in affairs of administration." This report was published in full in the Toronto Empire for August I2th, 1889. See, also, Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 539, scq., and ib., pp. 605-6 ; Doutre's Constitution of Canada, p. 348. ^2 B.C. (Hunter) at p. 14, (1S90). ^As to this objection, reference may be made to the Dominion Provident, Benevolent, and Endowment Association, 14 C. LT. 467, (1894), where, in face of a similar objection, Armour, C.J., held that the Ontario legislature could confer upon Masters the powers given them by the Insurance Corporations Act, 1892. ^2 Steph. Dig. 450, 2 Cart. 317, (1876). 128 Legislative Power in Canada. Prop. 8-9 of the legislature of Quebec respecting district magistrates and magistrates' Courts in that province. It was contended that the Quebec legislature had no authority to legislate on these matters, and that, even if it had, the Lieutenant-Governor had no right to appoint a district magistrate, for that he is a district judge, and under the British North America Act, section g6, the Governor-General alone has Ramsay, J. the powcr to appoint such officers.^ Ramsa}^ J., however, held that the district magistrate was not a district judge under that section, and that, on the authority of Regina v. Coote, above cited, and in accordance with the general principle of our leading proposition, the provincial Executive had power to appoint the district magistrates in question. The Privy In Hodge v. The Queen,'- again, the Privy Council Hodge 7'. held that, within the limits of section 92, local legis- The Queen. , n ^ , • • i latures are supreme, and can contide to a municipal institution or body of their own creation authority to make by-laws or resolutions as to subjects specified ^The arrangement by which the Governor-General was to appoint the Superior, District, and County Court judges (section 96), while the provinces were to constitute the Courts, and in civil matters settle the procedure, was regarded by some with much dismal foreboding. See the speech of Mr. Dunkin in the debates on the Quebec resolutions in the parliament of Canada : Debates on Confederation, 1865, pp. 508-9. And as to the above cases of Reg. v. Horner and Reg. v. Coote, see the report of the Minister of Justice upon the Quebec Act of 1888 relating to district magistrates, infra pp. 167-9. In his Law of the Canadian Constitution (pp. 513-4), Mr. Clement di.scusses whether the power to appoint in section 96 carries with it the power to remove, section 99 of the Act applying only to Superior Court judges, and comes to the conclusion that it does, referring to Re Squier, 46 U.C.R. 474, I Cart. 789. On the same point the Niagara Election case, 29 C.P. at p 280, may be cited. See, also, an article on the Constitution of Canada, II CL.T. 145, seq. ; Todd's Pari. Gov. in Brit. Col., 2nd eii., at pp. 46-7, 827, seq., who treats also of the powers of removal still existing under Imp. 22 George III., c. 75 5 ^"<^ an article on the Right to remove County Court Judges, 17 C.L.J. 445. The Dominion .\ct, 45 Vict., c. 12, D., (1882), provides for the removal of County Court judges l)y order of the Governor-General in Council in certain cases. 29 App. Cas. at p. 132, 3 Cart, at p. 162, (1883). Correlation of Governmental Powers. 129 in the enactment, and with the object of carrying ppop- 8-9 the enactment into operation and effect, saying : — "It is obvious that such an object is ancillary tof°j,^y^^ legislation, and without it an attempt to provide for '^g'^'^"°"- varying details and machinery to carry them out might become oppressive, or absolutely fail." And in the Court of Appeal of Ontario in that case^ Strong, J., observes : — " The British North America Act confers a constitution distributively as to powers of legislation, and, with those powers, necessarily all that was needful to make those powers effectual ; " and Burton, J. A., speaks much to the same effect, Patterson and Morrison, JJ.A., concurring. Again, in Regina v. St. Catharines Milling and Reg. z'. st. <^ ' '^ . . , . , Catharines Lumber Co., '^ Burton, J. A., says: — "If itis withm the Mining and '•''•' ^ _ Lumber Co. competency of the legislature of Ontario to legislate for the management and sale of these lands (sc, the p^^ burton, lands in question), as being public lands belonging to the province, it would follow that they have the minor power of empowering the Executive to make any agreement for the extinguishment of all the so-called Indian right. "^ And, in the same case,* Patterson, J. A., says:—" The administrative and the legislative functions I take to be made co-extensive Per ,,, •!• 11- J- »i Patterson, by the Act, as nidicated by, inter alia, section 130, j.a. which section of the British North America Act enacts: — "Until the parliament of Canada other- wise provides, all officers of the several provinces having duties to discharge in relation to matters other than those coming within the classes of sub- jects by this Act assigned exclusively to the legisla- 17 O.A.R. at p. 252, 3 Cart, at p. l68, (1882). 213 O.A.R. at p. 166, 4 Cart, at p. 208, (1886). ^But as to the extinguishment of Indian right, see 12 C. L.T. at p. 163. *I3 O.A.R. at p. 171, 4 Cart, at p. 212. 130 Legislative Power in Canada. Ppop. 8-9 tures of the provinces shall be officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, respon- sibilities, and penalties as if the Union had not been made." Bank of ^^ ^^^ ^^^ North British and Mercantile Fire and Lambe°'' ^^^^ Insurancc Company v. Lambe, being the case generally known as Bank of Toronto v. Lambe, ^ Tessier, J., observes: — "Provincial legislatures are governments havingthe rights and privileges inherent in the exercise of government ; " and Ramsay, J., in ^ei essier, ^j_^^ game casc," likewise says : — " It would seem beyond quesjtion that this Act (sc, the British North America Act) attributes plenary governmental powers with regard to certain matters to both the federal and local bodies, and, so far as 1 know, this has never been doubted. We have, therefore, one point settled. The local organizations are govern- ments. They enjoy regalian powers, and all the incidents of such powers." And that the executive power is co-extensive with Par^doning the Icgislativc has been very clearly affirmed in the owercase. j-g^^gj^^ dccision of Attorne3'-General of Canada v. Attorney-General of Ontario,'^ in the judgments in which, as well as in the arguments of counsel, the sub- ject is discussed at length. There could, indeed, be no more exhaustive argument in favour of the Propo- sition under discussion than that of Mr. Edward Blake, in this case, already referred to as published verbatim under the .title of " The Executive Power IjVI.L.R. I Q.B. 122 at p. 163, 4 Cart. 24 at p. 57, (1885). m.L.R. I Q.B. at p. 188, 4 Cart, at p. 80. 320O.R. 322, 19O.A.R. 31, 23 S.C.R. 458, (1890-4). See su/>ra pp. 1 13-5, where this case is referred to in connection with the Australian case of Toy v. Musgrove, 14 V.L.R. 349. Some comments on this case will also be found in 10 C. L. T. at p. 233, and 26 C.L.J. at p. 459. Legislature and Executive. 131 Case."^ The Ontario Act, 51 Vict., c. 5, the con- Prop. 8-9 stitutionality of which was here under discussion, and which was held to be intra vires, purported to Legislative vest, ("so far as the legislature has power thus to"^^^^^;^^ enact,") in the Lieutenant-Governor of Ontario ^or ^^^^^l°^l°l the time being all powers, authorities, and functions *^°^^'^"°''- which any of the ante-Confederation Governors or Lieutenant-Governors in Canada exercised at or before the passing of the Act, under commissions, instructions, or otherwise, in matters within the jurisdiction of the legislature of the province, sub- ject always to the royal prerogative as theretofore ; and it specially provided that this should be deemed to include the power of commuting and remitting sentences for offences against the laws of the prov- ince, or offences over which the legislative authority of the province extends. In the Court of first instance,- Boyd, C, in expressing his view of the P«'^B°y<^'C- matter, refers to the principle we are now discussing, and it will be seen that he holds that legislative power carries with it a corresponding executive power, though all executive power may be preroga- tive power, but he does not seem to go the whole length of holding that, by the British North America Act, there was made a distribution of all prerogative powers, so far as concerns the internal affairs of the Dominion, between the Governor-General and the Lieutenant-Governors of the various provinces."^ He says : — " Now, it is a well-settled principle of public ^See supra p. 113, n. 2. ^20 O. R. at pp. 249-50, (1890). On the general subject of the Imperial dominion exercisible over self-governing colonies liy the administration of the prerogative of mercy, see Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 344, seq. And a reference to the following par- liamentary papers in connection with this prerogative may also be of use :— Can. Sess. Tap., 1869, No. 16; ibid., 1875, No. 11 ; ibid., 1877, No. 13 ; Ont. Sess. Pap., 1888, No. 37 ; Imp. Hans., April 16, 1875, (3rd Ser., Vol. 223, p. 106^, seq.); Imp. Pari. Pap. (North Amer.), 1879, No. 99. ^As to which, see supra pp. 11 1-22. tl 132 Legislative Power in Canada. Prop. 8-9 law that, after a colony has received legislative institutions, the Crown (subject to the special pro- visions of any Act of parliament) stands in the same relation to that colony as it does to the United Kingdom : In re The Lord Bishop of Natal, 3 Mo. P.C.N.S., at p. 148. Effective colonial legislation as to pardon may be attributed to the fact that the Crown is a constituent of the local law-making body . . The power to pass laws implies neces- sarily the power to execute or suspend the execution Power to of those laws, else the concession of self-government pass laws . . .... ... _,, mpiies m domestic anairs is a delusion. 1 he sovereign execute. powcr is a unity, and, though distributed in different channels and under different names, it must be politically and organically identical throughout the Empire. Every act of government involves some output of prerogative power. Prerogatives of the Crown may not have been in any sense communi- cated to the Lieutenant-Governor as representative of the Queen ; and yet the delegation of law-making and other sovereign powers by the Imperial parlia- ment to the legislature of Ontario may suffice to enable that body, by a deposit of power, to clothe the chief provincial functionary with all needful commuting and dispensing capacity, in order to complete its system of government." Per Burton, lu the Ontario Court of Appeal, ^ Burton, J. A., ^'^' also expresses his opinion that the legislative and executive powers granted to the provinces were intended to be co-extensive, and, as was seen in the notes to Proposition 7," goes beyond this, and holds, as it would seem, that the Lieutenant-Governor is vested, virtnte officii, with the administration of all I19 O.A.R. at p. 38, (1892). '^Supra pp. 1 13-4. Legislature and Executive. 133 the royal prerogatives, so far as they are capable of Prop. 8-9 being exercised in relation to the government of the provinces. The remaining judges in this Court, however, while agreeing in holding the Act intra vires, decide the matter on narrower grounds, as do J,*^^^„„ " o ' bupreme also the judges of the Supreme Court of Canada, ^^JJ^'^"*" to which the case was afterwards carried,^ though Strong, C.J., as will be seen, when considering Proposition g, does refer to the matter of legislative power over the royal prerogative.- Gwynne, J., Per however, may be thought to countenance the view ^y""*'-*- expressed in Proposition 8, when he says, referring to section 2 of the Ontario Act in question :— " If that section had been passed so as to enact that the Lieutenant-Governor should have the power of commuting and remitting sentences passed under the authority of item 15 of section 92 of the British North America Act, there would have been, I appre- hend, no objection raised to such an enactment." And before proceeding further to review our own decisions in reference to the point under discussion, it may be observed that the opinion of Sir Horace sir Horace Davey and Mr. Haldane, to whom questions were *^*^' submitted by the Ontario government, dated December gth, 1887, in reference to the appoint- ment of Queen's Counsel,^ seems to support our leading proposition as applied to legislative powers conferred by section 92 of the British North America Act, even where the executive power in question is clearly of a prerogative character. It does not, how- ever, go the full length of upholding the supposed 123S.C.R. 458. ^See tn/ra pp. 180-1. ^Ont. Sess. Pap., 1888, No. 37, at p. 30. 134 Legislative Power in Canada. As to power to appoint Queen's Counsel. Prop. 8-9 wholesale distribution of prerogative powers by that Act, though the matter may be one of little present practical importance. The questions sub- mitted to them were whether a Lieutenant- Governor of a province in Canada has power, as it were, ex officio, to appoint Queen's Counsel, and whether a provincial legislature has power to authorize the Lieutenant-Governor to make such appointments. They advised that the appointment of Queen's Counsel is the appointment to an office, and that under section 92, No. 4, (the establishment and tenure of provincial offices, and the appoint- ment and payment of provincial officers), the pro- vincial legislature has power to authorize Lieu- tenant-Governors to make such appointments for the purpose of the provincial Courts, but they say : — " We feel some doubt as to the power of the Lieutenant-Governor of any province, other than Ontario or Quebec, to create Queen's Counsel with or without the incidental privilege of pre-audience. But in regard to Ontario and Quebec, we think, having regard to section 134 of the British North America Act, that the Lieutenant- Governors of the provinces can create Queen's Counsel for the purposes of the provincial Courts. Whether the Lieutenant-Governors can regulate the precedence of the members of the provincial Bars inter se is, in our opinion, one (sic) of some diffi- culty. On the whole, we think not."^ ^And see Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 327, for the case of an Act of the South Australia legislature being disallowed by the Imperial government " as an encroachment upon the undoubted prerogative of the Queen, as the fountain of honour, to determine the precedence of her subjects." Also see i/)., p. 339, se^., in reference to the matter of the Nova Scotia Great Seal, especially at p. 340, where Nova Scotia ^ despatch of the Secretary of State for the Colonies of August 23rd, else. 1869, (Can. Sess. Pap., 1877, No. 86, p. 7), is cited, wherein he expressed his conviction that the right of Her Majesty exclusively to Legislature and Executive. 135 And with this may be compared the opinion of Prop. 8-9 the law officers of the Crown in England given in 1872, on a case stated by Sir John Macdonald, in which they advised that — "The Governor-General '''^^ '^^, ■' omcers of has now power as Her Majesty's representative '•'^ *^''°'^"- to appoint Queen's Counsel, but a Lieutenant- Governor appointed since the Union came into effect has no such power of appointment," but " the legislature of a province can confer by statute on its Lieutenant-Governor the power of appointing Queen's Counsel."^ And in Sir George Cornewall Lewis' Essay on thesirq.c. Government of Dependencies more than one pass- "Gotern- age may be found which supports our leading propo- Depend. sition. Thus he says- : — An Act of legislation by a sovereign government implies the necessity of future executive acts, and every executive act presupposes a prior legislative Act which is carried into execu- tion." And again-^ :— " With respect to the com- parative importance of the legislative and executive powers, it may be observed that a sovereign govern- ment possesses both, and that, inasmuch as each of these powers implies the other, neither can exist alone . . The power of making laws implies the power of determining the delegation of execu- tive functions to subordinate officers, since it is by means of laws that the delegation is made." order and to change at will the Great Seals of the provinces, having been an existing right before the passing of the British North America Act, cannot be deemed to have been taken away by implication to be inferred from section 136 of that Act. See, also, ;7;., p. 596 ; and Doutre's Constitution of Canada, pp. 375-6. See supra pp. 104, n. 2, 114. iCan. Sess. Pap., 1873, No. 50, p. 3. See stipra p. 88, infra p. 136. 2Ed. 1891, by C. P. Lucas, at p. 16. ■'//'. at p. 66. 136 Legislative Power in Canada, Prop, 8-9 Proceeding now to consider such decided cases ^. not already referred to as illustrate our leading Other cases -^ " p"ro''°"'"^ proposition, one of the earliest is Queen v. Reno, ^ Queen I/, wherc Draper, C.J., held that an Act of the Ontario Reno. legislature continuing in force an Act of the old province of Canada which authorized the govern- ment to appoint police magistrates was valid. He held that the latter Act related to the administration of justice, and was within the power of the legisla- ture of Ontario. We may compare with this Kegina v. Bennett,- where it was likewise held by the Ontario Queen's Bench Division that the right of provincial legislatures to legislate in relation to the adminis- tration of justice includes a right to make provision for the appointment of police magistrates and justices of the peace by the Lieutenant-Governor, though, per Cameron, J., it did not follow that it included the right to create Queen's Counsel, the status of whom " is one of mere honour and dignity, and not neces- sarily connected with the administration of jus- tice." » Reg. z'. Bennett. Wilson V. McGuire. On the same principle, in In re Wilson v. Mc- Guire,* the majority of the Ontario Court of Queen's Bench held that provincial legislatures have com- plete jurisdiction over Division Courts, and may appoint the officers to preside over them, Hagarty, C.J,, observing: — "As they {i.e., the local legisla- tures) have power to abolish such Courts, and to 14 O.P.R. 281, I Cart. 810, (186S). -I O. R. 445, 2 Cart. 634, (1882). ^i O.R. at p. 460, 2 Cart, at p. 640. As to this matter of Queen's Counsel, see also per Taschereau, J., in Lenoir v. Ritchie, 3 .S C.R. at pp. 627-9, I Cart, at pp. 534-5, (1879), and passim in that case ; also Hodgins' Prov. Legisl., etc., Vol. i, pp. 26-7; ibid., Vol. 2, pp. 25, 26-7. And see supra p. 88, n. 2. 42 O.R. 118, 2 Cart. 665, (1883). Cf. Ganong z^. liayley, i P. & B. 324, 2 Cart. 509, (1877). See infra pp. 169-70. Provincial Judicial Officers. 137 •establish others for the disposal of the like or other Prop. 8-9 classes of business, I assume their right to appoint officers to preside over them." Armour, J., how- ever, took a different view from his brother judges in this case, for, after observing that even with- out section 96 of the British North America Act the ^^l^^^^^r, j. power to appoint County Court judges would have resided with the Governor-General, as representing Her Majesty in the Dominion,^ and that the power of the local legislatures to appoint judges of the Division Court was not, in his opinion, involved in this case, he adds-:^" When that question shall arise I will, I trust, be able to show by satisfactory reasons that the local legislature has no such power. The reasoning of the Supreme Court in Lenoir v. Ritchie, 3 S.C.R. 575, in which case that Court determined against the power of the local legislatures to appoint Queen's Counsel, is alto- j^^ ^^^c gether against their having the power to appoint any g'']I[f J^^; ^^^ judges." Thus he, evidently, did not consider that No. 14 of section 92 of the British North America Act, whereby provincial legislatures can make laws in relation to " the constitution, maintenance, and organization of provincial courts," etc., carries with it the power to appoint any judges at all.^Reg. z-. But the later case of Regina v. Bush* would seem ^As to which, however, see The Maritime Bank of Canada v. The Receiver- General of New Brunswick, [1892] A.C. 437; and Proposi- tion 7, supra. ^2 O.R. at pp. 128-9, 2 Cart, at p. 677. 3 For some discussion of the meaning of the words "constitution, maintenance, and organization " in .section 92, No. 14, and section loi, see the articles on " Provincial Juri.sdiction over Civil Procedure" in Vol. 2 of The Canadian Law Times, especially at p. 521, seq., and p. 561, seq., and also an article on the power of provincial legislatures to limit appeals to the Supreme Court, ibid., at p. 416, seq. *I5 O.R. 398, 4 Cart. 690, (1888). See infra pp. 175-7. Reference may also be made on this question to the Nova Scotia County Court 138 Legislative Power in Canada. ^'•PP- ^-Q to show a change of view, for Armour, C.J., there concurs with Street and Falconbridge, JJ., of the Ontario Court of Queen's Bench, in holding that Bus^h."' the provincial legislatures have, by virtue of No. 14 of section 92, not only the power, but the exclusive power, to pass laws providing for the appointment of justices of the peace, subject to the royal preroga- tive power of appointment which still exists, though he says that such prerogative power has not been exercised in Ontario since the passing of the British North America x\ct, and adds^: — " Having regard to the purposes for which and the circumstances under which the British North America Act was passed, it cannot, I think, be doubted that the power was thereby conferred either upon the parlia- ment of Canada or upon the legislatures of the prov- inces to pass laws providing for the appointment of justices of the peace, and this Act, having been assented to by the Crown, was in derogation of the prerogative right of the Crown to appoint justices Power to of thc pcacc, although it did not deprive the Crown appoint f <-V-, *- ■ 1 t • i i • justices of 01 tnat right . . It is under this power (sub- the peace. , • r , • ■. • section 14 of section 92), given to the provincial legislatures to make laws in relation to the adminis- tration of justice in the province, that those legisla- tures have, if at all, the power to pass laws provid- ing for the appointment of justices of the peace. Laws providing for the appointment of justices of case of Denton z-. Daley, (1880), thejudgment in which is fully reported in Doiitre's Constitution of Canada, at p. 54, seij., where it was held' that the power to appoint justices of the peace rests solely with the Governor-General, in the absence of any delegation thereof to Lieuten- ant-Governors in their commission or instructions, but this is appar- ently without reference to any power the local legislatures may have to provide for the appointment of justices of the peace under Nos. 14 and 16 of section 92 of the British North America Act. See, however, Todd's Pari. Gov. in Brit. Col., 2nd ed., pp. 597-8. ^15 O. R. at p. 400, 4 Cart, at pp. 692-3. Provincial Justices of the Peace. 139 the peace are, it is contended, — and, I think, rightly, Prop. 8-9 — laws in relation to the administration of justice, for the appointment of justices of the peace is a primary requisite to the administration of justice ; and, if this contention be correct, the passing of such laws is exclusively within the power of the pro- vincial legislatures." And he cites the cases of Queen v. Reno and Regina v. Bennett, above referred to. And in the previous case of Richardson v. Ran- Richardson ., r^ t 11 1 1 1^- Ransom. som,^ Wilson, CJ., expressed the view that local legislatures can provide for the appointment of justices of the peace, but was evidently not so clear as the judges who decided Reg. v. Bush- that thev had the exclusive power. He said-": — " The Per . . Wilson, J. Dominion parliament has, by section gi of the British North America Act, power ' to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclu- sively to the legislatures of the provinces.' It is not necessary to enquire how far that enactment would enable the Dominion parliament to legislate ■ with respect to the appointment of justices of the peace and police magistrates in any province of the Dominion, and to authorize the Governor-General to make such appointments, as with relation to the public works, 32-33 Vict., c. 24, s. 7, (D.), or to the management of Indian affairs, as by declaring that an Indian agent shall have the same power as a stipendiary magistrate, 45 Vict., c. 30, s. 3, (D.). iio O.R. 387, 4 Cart. 630, (1886). 215 O.R. 39S, 4 Cart. 690, (1888). ^10 O.R. at p. 392, 4 Cart, at p. 635. 140 Legislative Power in Canada. Prop. 8-9 In Reg. ex rel. McGuire t;. Birkett,^ the principle „ , of Wilson V. McGuire- was followed, and it was held Reg. ejr rel. ' Birk^'r''' ^^^^ ^^^ provincial legislatures had power to invest the Master in Chambers at Toronto with authority to try controverted municipal election cases, for, as observed by MacMahon, J. (at p. 173) : — " As the provincial legislature has the exclusive right to make laws relating to municipal institutions, it carries with it the authority to create the tribunal for the trial of contested elections, and the appoint- ment of a magistrate or other officer to hear and determine the validity thereof," subject, of course, as he intimates, to section 96 of the British North America Act, by which the power to appoint Superior, District, and County Court judges rests with the Governor-General. Sir J. And some of the cases just passed in review are Thompsons . . . report on discusscd, aud the successive provincial Acts in refer- the Quebec '■ Ma"i'"rates' ^^^^^ ^^ ^^^ appointment of magistrates, judges, etc., Act. reviewed, and the course taken with regard to them by Ministers of Justice pointed out, in the report of Sir John Thompson, as Minister of Justice, on the subject of the disallowance of the Quebec Act, 51-52 Vict., c. 20, being an Act to amend the law respecting district magistrates.^ This able state paper is subsequent to the period covered by Mr. W. E. Hodgin's compilation,* and is so instruct- 121 O R. at p. 162, (1891). 22O.R. 118, 2 Cart. 665, (1883). 3The report was affirmed by the Governor-General in Council on January 22nd, 1889. The Act in question had been disallowed by Order in Council of September 7th, 1888. ■^Correspondence, Reports of the Ministers of Justice, and Orders in Council upon the subject of Provincial Legislation, compiled under the direction of the Minister of Justice, by W. E. Hodgins, M.A., barrister-at-law, of the Department of Justice, Ottawa. This has already been cited in many places under the short title of Hodgin's The Quebec District Magistrates' Act, 1888. 141 ive that, in spite of its length, it seems expedient to Prop. 8-9 reproduce it here.^ It is as follows : — " The undersigned has had referred to him a de-sirj. , r 1 • TT IT- r^ Thompson's spatch irom his Honour the Lieutenant-Governor report on Oucbcc of the Province of Quebec, dated the 2nd day of District _. , , t . r /-^ t ■ Magistrates' October last, transmitting a copy of an Order inAct, isss. Council, passed on that day by his Honour's gov- ernment, on the subject of the disallowance of the Act of the province of Quebec to amend the law respecting district magistrates, being chapter 20 of 51-52 Victoria. " The undersigned has the honour to make the following observations on this Order in Council : — " The disallowed Act recited that ' in the judicial Synopsis of J the Act. district of Montreal the number of cases in civil matters before the Superior Court and the Circuit Court ' was ' so great that, notwithstanding the permanence of the sittings of such Courts, the judges presiding therein ' were ' unable to hear and deter- Provincial Legislation. And as reports of Ministers of Justice are often referred to in this work, it may be well to repeat here, as a note of warning, the words of Mr. Edward Blake, (whose own reports as Minister of Justice are so conspicuous), in the argument in In 7-e Portage Extension of the Red River Valley Railway, Cass. Sup. Ct. Dig. 487, (printed in extcnso by A. S. Woodburn, Ottawa, 1888) : — "I do not understand that even apart from the special circum- stances of this case, your lordships would pay any particular attention to the circumstance that the Minister of Justice on an ex parte pro- ceeding, without anybody complaining, without his attention having been called to those facts, is to be considered as a judicial authority whose conclusion when he is advising the Executive, — sometimes, it is whispered, upon political considerations, as well as upon those strictly legal considerations which alone should animate him in the discharge of that duty, — is to be considered by your lordships :" (p. 105). These objections, however, to the value of reports of Ministers of Justice as opinions on the law of legislative power in Canada are obviously much more applicable in some cases than in others, and in many would seem not to apply at all ; and it is believed that in the extracts made from such reports in this book much will be found which is valuable and suggestive. ^See Can. Sess. Pap., 1889, 47c., and Todd's Pari. Gov. in Brit. Col., 2nd ed., pp. 568-70. 142 Legislative Power in Canada. Prop. 8-9 mine them all with the despatch that would be suitable to the parties interested,' and that ' to remedy this state of things, and in the interest of the administration of justice, it had become neces- sary, so as to permit of the judges of, the Superior Court attending exclusively to the affairs more immediately connected with that Court, to abolish fheTc?°' the holding of the Circuit Court in the district of Montreal, and to establish there a District Magis- trates' Court, before which all the cases, proceed- ings, matters, and things ' then * within the juris- diction of such Circuit Court ' might ' be brought.' "After these recitals the disallowed Act made the following, among other, provisions : — " I. That the Lieutenant-Governor in Council might, ' by proclamation, abolish the Circuit Court sitting in the district of Montreal, and establish in the city of Montreal, for the said district, a special Court of Record under the name of " District Magis- trates' Court of Montreal." ' " 2. That such Court should 'be composed of two justices, called "District Magistrates of Montreal," who should be ' advocates of ten years' practice, be chosen from among the members of the Bar of the province, and be appointed under the Great Seal by the Lieutenant-Governor in Council.' " 3. That no property qualification should be necessary to the magistrates, but that they should be ineligible to be senators or members of the House of Commons, Executive Council, Legislative Council, or Legislative Assembly of the province, or for ' any other office under the Crown.' " 4. ' That such magistrates should hold office during good behaviour,' and be irremovable, 'except Sir John Thompson's Report. 143 on the joint address of the Legislative Council and Prop. 8-9 Assembly.' " 5. That the magistrates should receive a salary of three thousand dollars per annum each. " 6. That all the powers possessed, at the time of the passing of the Act, ' by the j udges of the Superior Court, and the duties imposed on them respecting Synopsis o ... /* 1 the Act. the affairs . . within the jurisdiction of the Circuit Court sitting in the district of Montreal,' should be imposed and conferred upon the district magistrates of Montreal. " 7. That the jurisdiction of the District Magis- trates' Court should be the same, mutatis mutandis, for civil matters as that which had been exercised by the Circuit Courts of the district of Montreal. " 8. That all the provisions of the Code of Civil Procedure, and other provisions respecting the Circuit Court of the said district, should, mutatis mutandis, be applicable to the Magistrates' Court thereby established. ^ "9. That the words 'Circuit Court of the District of Montreal,' ' Circuit Court of Montreal,' ' Court,' and ' Circuit Court,' whenever referring to the Circuit Court sitting in the district of Montreal, wherever found in the Code of Civil Procedure, or in any other law, should mean and include the District Magistrates' Court of Montreal. Also that the words 'judge of the Superior Court,' 'judge,' or 'judges,' whenever referring to their powers and duties respecting matters connected with the Circuit Court sitting in that district, should mean the district magistrates of Montreal. " This Act was disallowed on the 7th day of September, 1888, for reasons which were then com- 144 Legislative Power in Canada. Prop. 8-9 municated to His Honour the Lieutenant-Governor of Quebec, the principal of which were that the provisions which professed to confer upon the Lieutenant-Governor in Council the power to appoint these judges, and which professed to regu- late their tenure of office, their qualifications for office, and their mode of removal from office, were in excess of the powers conferred on provincial legislatures by the British North America Act, and were an invasion of the powers conferred upon the Governor-General and the parliament of Canada by that Act. Provisions of the B.N. A. Act. No. 14 of sect. 92. Sect. 96. Sect. 97. " Among other powers conferred by the British North America Act on provincial legislatures is (section 92, sub-section 14) the making of laws in relation to ' The administration of justice in the province, including the constitution, maintenance, and organization of provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those Courts.' In no other provision is any power conferred on the legislatures of the provinces in respect of Courts or judges, or the appointment and qualification of judges. " All other powers than those expressly enumer- ated by section 92, as conferred on the provincial legislatures, are conferred on the parliament of Canada ; and by section 96 it is, besides, expressly provided that the Governor-General shall appoint the judges of the Superior, District, and County Courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick. The royal instructions convey to your Excellency the power to appoint some inferior judicial officers. " By section 97 it is enacted that ' until the laws relative to property and civil rights in Ontario, The Quebec District Magistrates' Act, i8SS. 145 Nova Scotia, and New Brunswick, and the pro- Prop. 8-9 cedure of the Courts in those provinces, are made uniform, the judges of the Courts of those provinces, appointed by the Governor-General, shall be selected from the respective Bars of those provinces.' "By section g8 'the judges of the Courts ofsect. 98. Quebec shall be selected from the Bar of th;it province.' "By section gg 'the judges of the Superior sect. 99. Courts shall hold office during good behaviour, but shall be removable by the Governor-General, on the address of the Senate and House of Commons.' "By section 100 'the salaries, allowances, and sect. 100. pensions of the judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the judges thereof are, for the time being, paid by salary, shall be fixed and provided by the parliament of Canada.' " At the time of the passage of the British North History of . , . . the Circuit America Act, and ever since, the Circuit Court hasCounin Quebec. been a Court of Record in the province of Quebec, held every year in certain districts, including the district of Montreal. It had jurisdiction up to $200. All powers vested in the Superior Court, or the judges thereof, as to various kinds of procedure, were vested in the Circuit Court, and the judges by whom the same was held. As to certain proceed- ings, the Circuit Court was entrusted with concur- rent jurisdiction with the Superior Court. "The Circuit Court was held by one of the judges of the Superior Court. " The Circuit Court was, therefore, at the time of the Union, in one sense, a branch of the Superior 146 Legislative Power in Canada, Prop. 8 9 Court. The powers and duties of Superior Court judges included the powers and duties of Circuit Court judges. When the Governor-General ap- pointed a judge of the Superior Court under sec- tion 96 of the British North America Act, the appointment carried with it an appointment as Circuit Court judge. Circuit " The judges of the Circuit Court were, therefore, judges. among the judges who, under section g6, were to be appointed by the Governor-General. They were among the judges whose qualification was prescribed by section 98, as being simply membership of the Bar of the province. " The Circuit Court judges, inasmuch as the\' were Superior Court judges, had their tenure of office prescribed b}' section 99, They were to hold office during good behaviour, and were to be remov- able by the Governor-General on the joint address of the Senate and House of Commons. Thev were among the judges whose salaries, under section 100, were fixed and provided by the parliament of Canada. " The disallowed Act not onl\- empowered the Lieutenant-Governor in Council, as before stated, to abolish the Circuit Court, but to appoint, instead of judges of the Superior Court, quoad the Circuit Court, officers who would be, in every sense, judges, in relation to matters wathin the jurisdiction of the Circuit Court, as full\- as the judges of the Superior Court had been, although bearing the name of dis- trict magistrates. "As to judges of the Circuit Court, therefore, the appointing power was taken from the hands of your Excellency and transferred to the Lieutenant-Gov- ernor in Council of Quebec. Sir John Thompson's Report. 147 " The prohibition against the new judges sitting Prop. 8-9 in the Senate and House of Commons is so obviously beyond provincial powers that it would seem irn- f ''°|{ist''°" possible that the legislature of Quebec really ^^^J^^g^^^'^^^ designed, by the third section of the disallowed Act, fl'^^^'^^}''' to declare that the district magistrates should be?"^™^^^',^ ineligible to be senators and members of the House p^^^^f^'^;-^" of Commons. It is easier to believe that the inten-'^^'^'"''"''^' tion was that the new judges should lose their offices if they became members of Parliament, although such meaning failed to find expression. " The provisions of section 4 of the disallowed Act, in so far as the tenure of office was made to depend on good behaviour, is the same as section go other . It • . i-i ultra vires of the British North America x\ct; but while sec- provisions of the tion qq of the British North America Act had the disallowed . . . . Act. effect of making the judges of the Circuit Court removable by your Excellency, on the address of the Senate and House of Commons, section 4 of the disallowed Act declared that they could not be removed from office except on the address of the Legislative Council and Legislative Assembly of Quebec. "Section 5 of the disallowed Act fixed the salaries and emoluments of the new judges and made them payable out of the Consolidated Revenue Fund of Quebec, although section 100 of the British North America Act declared that those salaries and emolu- ments should be fixed and provided by the parlia- ment of Canada. "At the time of the passing of the disallowed Act, the judges appointed by your Excellency's predeces- sors, under section q6 of the British North America Act, were sitting in the Circuit Court ; — section 6 of the disallowed Act professed to strip them of all ii 148 Legislative Power in Canada. Prop. 8-9 their powers, relieve them of all their duties, and impose both powers and duties on the newly-created magistrates, who, in the opinion ofthe undersigned, if the Act was valid, by necessary implication were made judges, although called magistrates, and although appointed b}^ the Lieutenant-Governor. "The legislature of Quebec, however, did not Ultra vires of°the'°"' suffer the matter to rest upon implication, but in ^isaiiowed QQg Qf {.j-,g concluding sections of the Act under consideration declared the words 'judges of the Superior Court,' 'judge,' and 'judges,' wherever used in reference to the Circuit Court, should mean the district magistrates of Montreal attempted to be created by that Act. " If such powers can be exercised by a provincial legislature, it is difficult to see what is to prevent the legislature from asserting the power to appoint judges of all the provincial Courts and regulate their qualifications for office, their salaries, and their tenure of office. " The change of name is so easy of accomplish- ment as not to present any difficulty, especially as the device just described made the terms 'judge' and ' magistrate ' interchangeable. " The undersigned deems it unnecessary to advert at any length, in this place, to the provisions of the disallowed Act abolishing the Circuit Court, as affecting its constitutionality. " Reference to that point would seem wholly unnecessary, excepting for the assumption indicated in the Order in Council under consideration, that every kind of provincial legislation which has not been distinctly questioned is admitted to be cor- rect ; and but for the fact that the power to abolish is stated by the Order in Council to have been ' not The Quebec District Magistrates' Act, 1888. 149 even questioned by the Minister of Justice.' In Prop. 8-9 passing, it may therefore be proper to say that instances may perhaps be suggested in which the power of your Excellency and of Parliament to remove judges might be usurped by provincial legis- latures in the exercise of their authority as to the as^u^mp^ion constitution and organization of the Courts, Cases iegP'ia^u"e'-f may be suggested in which in the exercise of this°emove^'^'° power a Court might be abolished for the purpose ofibonthing removing one or more judges, and, no doubt, in such a case, the control of the Federal authority would be called for, and the power of disallowance would be exercised. "In the consideration of the Act which is at pres- ent the subject of discussion, it has been assumed by the undersigned, and is still assumed, that the abolition of the Circuit Court was not for the pur- pose of usurping the power of removing judges, but was done to accomplish the setting up of a new tribunal. He does not, therefore, deem it necessary to place undue stress on the fact that the disallowed statute had the effect of abolishing the Circuit Court. " It seems necessary, however, to call attention Non- j. ii • I i • , • 1-1 exercise of to the important misconception, which seems to the veto ., , ., , . power rloes prevail throughout the reasoning presented bv the not imply an /"vi'/^'iri^^i 1". admission of Order in Council 01 the Quebec government, that the the validity n/. ..,,.,. .. , of provincial owance ot provincial legislation is, in all cases, an legislation. admission of the validity of such legislation, and an admission which has the effect of depriving the Federal authority of the right or power of disallow- ing statutes similar to those which have been per- mitted to go into operation. "No such inference can properly be drawn. It is apparent to any person conversant with the subject ijO Legislative Power in Canada. Prop. 8-9 that many provincial statutes which have been left to their operation contained provisions beyond the powers of the provincial legislatures, and that many others which have been left to their operation con- tained provisions of very doubtful validity.^ To exercise "The rcasons for this are not difficult to find, first a more In the early history of Confederation, the provincial than now. " legislatures were naturally inclined to follow the lines of legislation which had for so many years been pursued in the parliament of the provinces. The provisions of the British North America Act were novel. Its operation had not been illustrated by the precedents which have since marked out with greater distinctness the difference between the authority of Parliament and the authority of the legislatures, and in the earl}' years of the Union interference with provincial legislation was perhaps a more delicate task than it should be considered now, when the relative positions of the legislatures and Parliament are better understood, and the prin- ciples which should guide both have become more familiar. Provincial " The most remarkable instance in which provin- attempts to _ _ ^ _ prescribe thee ial legislation has overrun the limits of provincial quaUnca- " '^ tionsof competence has been the legislation in reference to judges ^ _ _ _ '^ the administration of justice. It has been common for the provinces to enact from time to time what the qualifications of the judges who were to be appointed by the Governor-General should be, although this seems to the undersigned to be an attempt to control, by provincial legislation, the power vested in the Governor-General by the Brit- ish North America Act. ^As to this, see, also, the notes to Proposition lo. SiK JuHx Thompson's Report. 151 " The most plausible argument offered in defence Prop. 8-9 of such legislation has been the contention set up in one quarter that, masmuch as it is for the provin- cial legislatures to say whether the Court shall be constituted or not, it is proper for them to say that the Court shall be constituted, provided judges of certain qualifications are appointed to preside therein. This seems to the undersigned to be .^^proper. erroneous in principle. It is an attempt to provide that the power of the Governor-General shall be exercised onl\- sub iiiodo, and if the principle were recognized it would be competent to provide that provincial Courts should only be established, pro- vided the judges should be those nominated by the provincial Executive, or taken from a class nomi- nated b\' that Executive. "Again, in reference to this subject, doubtful legis- Provincial lation has been adopted in nearly all the provinces, for ^-, ., --i 1 ••1--1- appointment settmg up Courts with civil and criminal jurisdic-ofjudgesof .... . , , ... . . civil and tion. With judges appomted by provmcial or munici- criminal 1 1 • T • 1-1 Courts, pal authont}-. In some instances, and with respect to some of these tribunals, it would seem that the doubts as to their constitutionality have been less- ened or removed by the Dominion parliament from time to time recognizing them or conferring juris- diction upon them. As regards others of them, the legislation may .still be open to grave question, although in most cases, as in the case of Quebec, now under consideration, the legislatures have been careful to avoid conferring the title of 'judges' upon the officers whom they have really undertaken to clothe with judicial powers. " In legislating upon this subject, the enactments have followed a course which it has been difficult to control without seeming to infringe unnecessarily 1=12 Legislative Power in Canada. And increasing by degrees the juris- diction of such Courts. Prop. 8-9 on provincial action, and without seeming, at least, to impugn a series of provincial statutes which have frequentl}' been left to their operation. " In other instances the promoters of this kind of legislation have been disposed to assume that the organization of a tribunal with small civil and crim- inal jurisdiction, presided over by a judge or magis- trate appointed by the provincial Executive, would be within provincial authority, and that such a tribunal, having been established, its authority and jurisdiction could be widened and increased under the powers which the provincial legislatures possess to regulate the administration of justice in the prov- ince, 'including the constitution, maintenance, and organization of provincial Courts, both of criminal and civil jurisdiction, and including procedure in civil matters in those Courts.' " A reference which will present!}- be made to reports of preceding Ministers of Justice on this and kindred subjects will show how necessary it seemed to the predecessors of the undersigned in times past to prevent encroachments by this means upon the appointing power of the federal Executive, and how necessar\- it was deemed to prevent the con- fusion and injustice which must ensue when a tribu- nal, to which suitors have resorted for justice, has been deciding upon the rights of parties without having had jurisdiction. Examples of such provincial legislation. " The Order in Council under review, in present- ing to your Excellency what is claimed to have been the law respecting district magistrates in the prov- ince of Quebec before the passage of the disallowed Act, refers to a series of enactments which are not unlike the class of statutes which has last been adverted to. The Quebec District Magistrates' Act, 1888. 153 " In the year i86g the legislature of Quebec, by Prop. 8-9 chapter 23 of that year, declared that the Lieutenant- Governor in Council might appoint one or more persons to be district magistrates, with the power of justices of the peace and judges of sessions of the peace. Their salary was not to exceed $1,200, and *3"«^" their civil jurisdiction was limited to $25, excepting as to tithes, taxes, penalties, and damages recover- able under the Lower Canada Municipal Act, and under certain other Acts of Quebec. In these enu- merated cases their jurisdiction was unlimited, pro- District . .... . Magistrates' vided the defendant resided within the county in Act, 1869, which the Court was held, or that the debt was con- tracted therein and the defendant resided v/ithin the district. " The same Act purported to confer power on the Lieutenant-Governor in Council to establish addi- tional magistrates in the district of Saguenay, with jurisdiction up to $200. This Act may be con- tended to have had validity as applying altogether to a provincial Court of lower rank than any of the Courts in respect of which the appointing power has been given to the Governor-General in Council by waspossiWy the British North America Act ; or it may possibly '" '^"^""' be sustained on other grounds, which it is unneces- sary to seek for at present. It cannot be supposed, however, to have had validity from the fact that it was left to its operation by the federal Executive, although this is almost the sole ground on which its validity is assumed in the Order in Council under review. No argument can be drawn from this sta- tute as to the validity of the disallowed Act, because the Act of 1888 differed from it in essential points, some of which have already been enumerated and may be referred to hereafter. The Act of i86g, however, contains provisions which clearlv illustrate 154 Legislative Power in Canada. Prop. 8-9 the remarks before made as to the disposition to encroach upon the powers of the federal Parliament .?"' '' and Executive in regard to the administration of illustrates '^ the tendency justice. ' Some of its Drovisions would hardlv be to encroach J r -^ °^^^°™'"'°" repeated by the legislature now, in the light which has been thrown upon our constitution by twent\- years of experience. Such, for example, are the provisions of the gth section, which conferred on each of the magistrates powers which the parlia- ment of Canada had declared should be exercised onl}- by two justices of the peace, or by certain other specified officers, the district magistrate not being one ; and section lo, which undertook to extend to district magistrates the provisions of an Act of the parliament of Canada respecting justices of the peace ; also section 28, which appropriated the moneys received from penalties, forfeitures, and fines imposed by a district magistrate in such man- ner and at such times as the Lieutenant-Governor might direct, although the greater portion of those fines and penalties would, according to the Act, be recoverable under Dominion statute and belong to the Dominion of Canada. Amending " In the ncxt year, by chapter 11 of 1870, assented Act of 1870. - -^ , „" , to 1st 01 February, 1870, an attempt was made to withdraw the meaning of the obviousl}^ objection- able provisions of the Act just referred to, by adding a section declaring that the Act ' should be con- strued as intended to apply to such matters only as ' were 'within the exclusive control of the legis- lature ' of the province, etc. Under ordinary cir- cumstances, such a provision would be unnecessary.' It is obvious that no provincial statute can be con- strued as extending to anything outside of provin- ^As to the use of such precautionary phrases in provincial Acts, see the notes to Proposition 32, infra. Sir John Thompson's Report. 155 cial powers, but the adoption of the section is some- ppop. 8-9 what significant, and leads to the behef that some of the provisions already referred to were pointed out, between the sessions of 1869 and 1870, as being objectionable. "In the following year, by chapter 9 of iS/i* AcTof^i"^ assented to December 23rd, 1871, the limit of civil jurisdiction was raised from $25 to $50. Jurisdic- tion was given to the district magistrates in certain cases ' to annul or to rescin(;l a lease,' and to award ' damages for breach of the stipulation of the lease.' Power was given also to award costs on the tariff of the Circuit Court, and to sell immovables for sums exceeding $40, according to the practice of the Circuit Court. " Thus the Court having been established, with a magistrate appointed by provincial authority, the process of expanding its jurisdiction began. "It went on in the vear 1874, when by chapter 8, Amending assented to January 28th, 1874, it was again enacted with great particularity, that every district magis- trate should have the power vested in one or more justices of the peace and of a judge of sessions, and that such magistrate should ' exercise all such functions proper to a district magistrate, as required or authorized by any Act or Acts of the province of Quebec, or by any law whatever,' and should 'act in any case or matter, and in any or every manner authorized or required by law.' By three of the sections of the same Act the provisions of several statutes of the parliament of Canada (which, of course, could only be extended by the parliament of Canada) were extended, for the purpose of making the meaning of the legislature clear to confer on those officers the powers which Parliament had conferred on other officers. 156 Legislative Power in Canada. Prop. 8-9 " The fines and penalties recoverable before the magistrates were a^ain dealt with as belonging to the province, and the tenure of office was established by the provision that removal from office should not be made without the reason being assigned in an Order in Council. " In the following year, by chapter 31 of 1875, assented to December 24th, 1875, there is a declar- ation that the Act of 1874 had not enlarged the jurisdiction of the District Magistrates' Courts. Amending "In the following year, bv chapter 12 of 1876, Act of 1876. ^-^ " n ^ ^ ■ -i- • assented to December 28th, 1876, the jurisdiction was altered in such a way that residence within the district was not necessary to jurisdiction in some of the exceptional cases where the jurisdiction had not been limited by the Act of 1869, and it was declared sufficient that the defendant should live in the province. Amending " Bv chaptcr IS of 1885, assented to Mav gth. Act of 1885. -^ - ^ ^ ^ , , , , ' 1885, in the county of Gaspe and part of the county of Saguenay, the civil jurisdiction was raised to $gg. " The extent to which this Court possesses juris- diction in respect of specially enumerated cases may be seen from the fact that in the suit of The Corporation of St. Guillaume v. The Corporation of Drummond, in 1876, (reported on appeal in 7 R.L. 562), judgment was rendered for municipal taxes by the district magistrate (appointed by the Lieutenant- Governor in Council) for $i,8So. The dis- " Finally, by the disallowed Act, the ' District allowed Act ,,. ,^, ,• r ^i t a • j_ r of 1888. Magistrates Court, in so far as the district ot Montreal was concerned (and this includes the city of Montreal and eight counties besides), having matured its growth by being made a Court of Record with such extensive powers, with its judges holding The Quebec District Magistrates' Act, 1888. 157 office during good behaviour, and removable oiil\ Prop. 8-9 on the joint address of the Legislative Council aiul Assembl}-, with the salaries of its judges raised to $3,000, all the powers and jurisdiction of the judges of the Superior Court in respect of the Circuit Court having been conferred upon these ]>n^^^j magistrates, the new tribunal, which had been ^'-■'°'^'^^^- eighteen \-ears in reaching maturit}-, was ready to take the place of the Circuit Court. The Circuit Court was then abolished in the district ot Montreal, and the places of its judges, commissioned by the Governor-General, were taken possession of by the district magistrates. " The veil was still to be kept up over the title of the judicial officer, and had ' district magistrate ' inscribed upon it, but it was provided that this should have no legal effect by the enactment that, although ' district magistrate ' might not mean 'judge,' the word '.judge,' appearing everywhere, should mean ' district magistrate,' in relation to the Circuit Court affairs and jurisdiction. " It seems to the undersigned evident : " (i) That the government of the province of Non- Ouebec are not warranted in assuming that because veto power , . . ^ . - --^. . does not this series or enactments, in reierence to District make a pro- Magistrates' Courts, was permitted to go on with-/«/m-//m-. out disallowance, the statutes are therefore intra vires of the legislature of Quebec.^ "(2) That if, by a gradual increase of jurisdiction, a new Court can be substituted for the Circuit Court, the legislature would have the right, in the gradually " , . ,• j1*-i-»' , -1 increasing same way, to go on extending the jurisdiction until jurisdiction the Court should be sufficiently equipped to take the s^uperior ^ place of the Superior Court, and that by the same ^See Proposition 1 1 and the notes thereto. 158 Legislative Power in Canada. Prop. 8-9 process the Executive of the province could obtain ^ control of ever}' Court in the province, the same device, if necessary, being used to conceal the word 'judge.' Should be " (3) That even if this mode of proceeding by the disallowed ..,,., .,,, even if /«;■>-« provmcial legislature be not ultra vires, it should be vires. 1 ' controlled by the power of disallowance vested in your Excellency, because it eventually results in a transference of the judge-appointing power from the Dominion to the provincial Executive. " The undersigned, therefore, cannot agree with the statement contained in the Order in Council under consideration that because this series of enactments was made by the province of Quebec, ' it is therefore evident that before the sanction of * the statute in question the Lieutenant-Governor had, and that he will have, after the coming into force of the disallowance, the power to appoint district magistrates and to establish magistrates' Courts in every county,' etc., 'with the civil juris- diction already mentioned,' and that ' in declaring the power of appointing judges ultra vires the Dominion authorities deny to the Executive of this province a power it possesses and has exercised since i86g, that it possesses and exercises actually, and will continue to possess and exercise in the future, by virtue of the laws anterior to the dis- allowed statute.' Previous " To show that the view hereinbefore expressed is M?ni"fersof Hot a novel view to take of such enactments, and to show likewise that the government of the province of Quebec is not justified in assuming that the federal Executive admits the validity of all Acts which it leaves to their operation, and loses the power of disallowance over similar statutes thereby, Sir John Thompson's Report. 159 the following references may be made to some of Prop. 8-9 the reports which have been presented by the pre- decessors of the undersigned on provincial legisla- tion of this character^: — " A statute of Ontario, assented to January 23rd, Ontario Act . . . ofi86g i86q, chapter 22, made provision that the judges of ■■especting , , - . . JO tenure of the County Courts of Ontario should hold their Coumy . Court office during pleasure, and should be subject to bei^'^s^^- removed by the Lieutenant-Governor for inability, incapacity, or misbehaviour, and was specially reported on by the Honourable Sir John Macdonald, then Minister of Justice, and, being referred at his suggestion to the law officers of the Crown in England, the latter on the 4th May, i86g, reported Law officers that it was not competent for the legislature of the °,i England" province of Ontario to pass the Act.- The report was signed by Sir Robert Collier and the present Lord Chief Justice of England. It would seem that the legislature of Ontario had acted in pur- suance of the theory that its power to make laws in relation to the administration of justice in the province, 'including the constitution, mainten- p™''"'^=^ ^ " ' cannot ance, and organization of provincial Courts,' involved ^°""'°' 'Or ' Governor- the power to limit the tenure of office and to *^*""^.'''''''* r appointment constitute the Court with a proviso, in effect, that "'^^"''^'''■ the appointing power of the Governor-General should be exercised snb modo. " The Minister of Justice of that day, and the law officers of the Crown in England, maintained that that could not be done. "On Januarv iQth, 1870, the same Minister ^'^^""^T -" ^ J ' 11 ance of Act of Justice reported in favour of the disallowance of?"PP'T''"'" "^ '■ ing judges salaries. lAll the reports referred to are to be found in Ilodgins' Frov. Legisl. ^See Hodgins' Prov. Legisl., Vol. I., p. 50. i6o Legislative Power ix Canada. Prop. 8-9 the Supply Bill of the province of Ontario, because it supplemented the salaries of certain of the judges of that province, and the Act was disallowed accord- ingly. " On the 14th of April, 1873, the same Minister of Justice took exception to an Act of Manitoba, imposing a fine upon judges for neglecting to perform anv duty, and recommended that the Manitoba . ri i-i rn/r-i iij legislation as attention of the legislature 01 Manitoba be called to judges. ,,..,, to the objectionable enactment. In the same report it is recommended that the government of Manitoba should be given to understand that the Governor-General did not consent to the limitation of his power of selection of judges, contained in the Act of Manitoba, which pretended to define the qualification of the persons who should be ap- pointed to the bench. The government of Mani- toba was informed that the Governor-General would not feel bound b}- that Act in any appoint- ments to the bench. In approving that report the Governor-General added in his own hand the words : — ' I conclude that the recommendation to be conveyed to the L.ieutenant-Governor is a sufficient security for the amendment of these Acts.' Mr. "On the 2nd of September, 1874, the Hon. Mr. Fournier. . . ... ' Justice Fournier, then Minister of Justice, com- mented on an Act of the province of New Brunswick, chapter 29 of 1873, as being, in fact, an appointment by local authority of a judge. Corre- spondence led to the amendment of that Act in accordance with his view-. On the i8th of Novem- ber, 1874, the same Minister of Justice reported Similar ^]^^^ ^j^g provisious of an Act of the legislature of Ontario t^ ° legislation. Qutario, with respect to the qualifications to be possessed by certain judges, were ultra vires, as placing a limit on the discretion of the Governor- The Quebec District Magistrates Act, 1888. 161 General which was not to be found in the British Prop. 8-9 North America Act, and he declared that such a provision was ineffectual, and that the Governor- General would not be bound by it. "On the 9th of March, 1875, the same Minister of Justice recommended the disallowance of a statute of British Columbia, because, after the Columbia appointment of County Court judges in particular Ifs^'orl's'i" districts, the statute reported on empowered thefudges"'^ Lieutenant-Governor to appoint the places at which the County Court judges should reside from time to time, the Minister declaring that this was practically assuming the power of the appointment of judges, and the Act was disallowed accordingly. " On the 13th of October, 1875, the Hon. Mr. Edward ' ^\ Blake. Edward Blake, then Minister of Justice, reported against a similar statute of the same province. He said that the 'consequence of permitting the Act now under consideration to go into operation would be to permit the Lieutenant-Governor in Council to arrange the boundaries of these districts and to alter them at his pleasure, and so, practically, to determine, at his pleasure, the places within which the County Court judges should have jurisdiction.' " He contended that such an enactment was objectionable, ' as the alterations thereby authorized might practically result in the appointment, by the . local government, of a Countv Court judge to a newobjecuons . . . - . t° ^"'^h district or judgeship, thus transferring to the local '^s'^'^''""- government a part of the power of appointment vested in this government under the constitution,' and he added, ' so long as the local legislature keeps within its own hands the division of the districts, and the alteration of their boundaries, this govern- ment has, by virtue of the power of disallowance, Courts. 162 Legislative Power in Canada. Prop. 8-9 some measure of control over such action ; but should this Act go into operation, no such control could thereafter be exercised here.' Mr. R. "On September 2gth, 1877, the Honourable R. Laliamme, then Mmister of Justice, called attention to various Acts of British Columbia, relating 'to the Gold Commissioner, and his powers as judge of the Mining Court, and to the danger of allowing legislation which increases, from time to time, the jurisdiction of the Court, the judge of which has not been appointed by the Governor-General.' British ' He proceeded to relate the various Acts by which legidatilfn thc jurisdiction was gradually accumulated, until, in Commis°- the opinion of the Minister, the Court had, at length. Mining become, by five successive enactments, a Court within the meaning of the g6th section of the British North America Act. " He thought it was not ' necessary, in order to bring a Court under the provisions of this section, that it should be called by the particular name of ' Superior,' ' District,' or ' County Court,' and, although he did not recommend the disallowance of the statute, he recommended its repeal or amend- ment by the provincial authorities, and expressed this view : — ' It will be readily seen how easy it would be for the local legislature, by gradually extending the jurisdiction of these Mining Courts, and by curtailing the jurisdiction of the County Courts, or Supreme Court, as now established, to bring within their own reach, not only the adminis- tration of justice in the province, but also, practically, the appointment of the judges of the Courts in which justice is administered.' " On the 3rd of October, 1877, the same Minister reported against an enactment of the province of Sir John Thompson's Report. 163 Ontario to provide that the stipendiary magistrate Prop. 8-9 of the territorial districts of Muskoka, Parry Sound, and Thunder Bay should act as a Division Court judge, with like jurisdiction and powers as wereO"'^"" ^*=' possessed by County Court judges in Division ^J;'^g^^f;^y^ Courts in the counties, as being in conflict with the 96th section of the British North America Act. " He refrained from recommending disallowance of the Act, as Acts previously passed by the provincial legislature, conferring certain judicial powers in civil matters on stipendiary magistrates, in relation to Division Courts in Ontario, had been left to their Division Courts operation, and those powers had not been substan- in Ontario, tially extended by the Act then under his review, but he pointed out that the same danger which had received his notice, in the case of British Columbia, might ensue from this class of legislation. "The jurisdiction of the Court which he had referred to only reached $100, excepting when the consent of parties was given for the disposal of cases of larger amounts. He took special exception, how- ever, to the provision that all enactments from time to time in force in Ontario, relating to Division Courts in counties, should apply to the Division Courts of these districts, stating that while it might be 'quite within the legislature of Ontario to increasing increase the jurisdiction of the Division Courts in of inferior' counties, as such Courts are now presided over by judges appointed by the Dominion,' the attempt to exercise that power in relation to Division Courts, presided over by judges appointed by Ontario, would be objectionable, and he intimated that the Act would be disallowed unless amended. The same objection was conveyed in a report of the same Minister in reference to New Brunswick legis- lation on December 22nd, 1877. 11 164 Legislative Power in Canada. Mr. McDonal Prop. 8-9 "On June 14th, 1879, Chief Justice McDonald, then Minister of Justice, took exception to an Act of Prince Edward Island, which allowed a small fee for costs taxed by the County Court judge, as being a breach of the provisions of the British North America Act in relation to the emoluments of judges. " On January 20th, 1880, the same Minister called attention to an Act of Ontario, in amend- ment of a similar Act to that relating to the terri- torial districts of Muskoka, Parry Sound, and Thunder Bay. This Act gave the appointment of the judge to the Lieutenant-Governor, fixed the salary, and enlarged the civil jurisdiction, but was not different in principle from the statute which had been commented on in 1877. This Act was dis- allowed. Sir Alexander Campbell. " On January 30th, 1882, Sir Alexander Camp- bell, then Minister of Justice, reported that an Act of Ontario, (chapter 5, 1881), consolidating the Superior Courts, and establishing a uniform system of pleading, practice, etc., contained provisions which appeared to be ultra vires, as being in effect The Ontario an assumptiou of the appointing power by the provincial legislature, and he caused commissions to be issued to the judges, on the reorganization of these Courts, in order to place their authority beyond question. " In the same report he took exception to a provision to constitute the judges of County Courts official referees and local masters.^ Act i.Sir A. Campbell's words are : — " The undersigned thinks it doubtful whether the provincial legislature can constitutionally in this manner appoint judges, who hold office by commissions from your Excellency, to other offices under the provincial government. The expediency of allowing county judges to act as referees and local The Quebec District Magistrates Act, 1888. 165 "On May 8th, 1883, the same Minister called Prop. 8-9 attention to the legislation of the province of British Columbia, conferring jurisdiction on Gold Commis- sioners appointed by the Lieutenant-Governor of British Columbia, and the Act was disallowed. "In a report of April 13th, 1887, the under- signed felt himself obliged to state that the provision of a Manitoba statute, to the effect that for certain misconduct the County Court judge should forfeit his office, was ultva vires of the provincial legis- lature. " The contention is, however, made, in the Order in Council under review, that the Court of Appeal of the province of Quebec has recognized, as consti- Decisions of , ,. . . iii-ij- t^^ Courts. tutional and intra vires, m two cases, the legislation for the appointment of such district magistrates. " One of the supposed cases referred to is that of The Corporation of St. Guillaume v. The Cor- of"st.°'^""°" r T>v 1 -T) T r Ti Guillaume z/. poration 01 Drummond, 7 K.L. 502. It seems corporation remarkable to the undersigned that reference should Drummond. have been made to this case for this purpose, especially by the emphatic statement that the judg- ment of the judge of first instance was unanimously confirmed in the Court of Appeal by Judges Tessier, Monk, Sanborn, and Ramsay. The most careful scrutiny of this case fails to detect anything to bear out the statement that in that judgment the enact- ment for the appointment of the district magistrates was ' recognized as constitutional and intra vires.' A judgment had been rendered by Mr. Justice Plamondon for $1,880. An appeal was asserted, Masters is questionable, and the same may at some future time require the consideration of Parliament. Should Parliament think proper to legislate upon the subject, it is evident that the provisions last referred to of the Act now under consideration would become inoperative : " Hodpins' Prov. LegisL, Vol. i, p. 196. See, however. Proposition 45, and the notes thereto. 1 66 Legislative Power in Canada. Prop. 8-9 (i) on the ground that the judge was himself liable to contribute to the defendant corporation towards any amount for which judgment might be given, and that he had been recused ; and (2) that the amount claimed was above the jurisdiction of the Court. " The judgment on the appeal was delivered by Sanborn, J., on these two points only, and the question of intra vires, or constitutionality of the legislation, was not raised, considered, or even referred to. Reg. V. Horner. Reg. 7'. Coote in the Privy Council. " The second case on which reliance is placed is that of Regina v. Horner, in 1876, 2 Cart. 317,^ and the brief judgment delivered throws no light upon the question. The Court (per Ramsay, J.), while admitting that difficulties m.ight exist ' as to the conflict of the powers as an abstract question,' held the difficulty was practically disposed of by the case of Regina v. Coote, L.R. 4 P.C. 599. The Court (per Ramsay, J.) stated : — ' The case of Coote, decided in the Privy Council, directly recognizes the powers of the local legislatures to create new Courts for the execution of criminal law, as also the power to nominate magistrates to sit in such Courts. We have, therefore, the highest authority for hold- ing that, generally, the appointment of magistrates is within the powers of the local Executives. So much being established, almost all difficulty dis- appears.' Turning now to the case of Regina v. Coote, which the Quebec Court of Queen's Bench had relied on as solving all difficulties as to the conflict of powers, it is matter of regret to find that it really has no bearing on that subject whatever. The single passage in that judgment which bears upon any constitutional question is contained in the ^2 Steph. Dig 450, (1876). See su/>ra pp. 123, 127-8. Sir John Thompson's Report. 167 following extract from the judgment delivered by Prop. 8-9 Sir Robert Collier : — ' The objection taken at the trial appears to have been that to constitute such a Court as that of the Fire Marshal was beyond the power of the provincial legislature, and that, con- sequently, the depositions were illegally taken. Subsequently other objections were taken in arrest of judgment, and the question of the admissibility of the depositions was reserved. It was held by the whole Court, (in their lordships' opinion, rightly), that the constitution of the Court of the Fire Marshal, with the powers given to it, was within the com- petency of the provincial legislature.' *' There was no contention at the argument, and Reg. v. . . Coote in the no decision by the Court, as was supposed by Mr. P>-iv>- . •' ' rv J Council. Justice Ramsay, that the ' power to nominate magistrates to sit in such Courts is within the power of the local Executives.' No solution, there- fore, of the difficulty noticed by the Court of Queen's Bench in the case of Regina 57, Horner is to be found in the decision of the Privy Council in Regina V. Coote. " The fact is that the statute then under review created officers called ' Fire Marshals,' with the power of making investigations concerning fires, and their power, in so far as it came under the consideration of the Judicial Committee, was merely that of summoning witnesses and of committing suspected persons for trial. How, then, could it have been supposed that this was a decision even in favour of the principle that local legislatures could ' create new Courts for the execution of the criminal law,' as stated by Mr. Justice Ramsay, much less a decision affirming 'the power' of the local authori- ties to ' appoint the judges to sit in such Courts ' ? i68 Legislative Power in Canada. Prop. 8-9 The power ' to create new Courts for the execution of the criminal law ' was expressly conferred by the British North America Act, and, fortunately, it does not rest on the case of Regina v. Coote. As to the suggestion that the local legislature had even attempted, by the Act then under consideration, to create a new 'Court for the execution of the criminal law,' it is not only apparent from the references of the Judicial Committee that no such attempt had been made, but the Court of Queen's Bench itself had decided, in 1872, {Ex parte Dixon, 2 Revue Critique 231), that the statute in question had no connection with criminal procedure. Reg.z/. "The only remaining passages in the judgment of Horner. -^ i i. j.u Regina v. Horner are an attempt to work out the theory on which it was imagined that the case of Regina v. Coote had been decided, and the case altogether may be considered as far from a con- clusive authority, without disrespect for the eminent tribunal which pronounced the decision. The de- cision, whatever its value, only had in view the District Magistrates' Court as it existed in 1876. Legislation " Having put forward these two cases as the only other°Ihar oucs which could be relied on as judicial confirma- Quebec. ^.^^ ^^ ^^^ ^^^ ^^ ^-^^ charactcr of that which has been disallowed, the Order in Council proceeds to set up the contention that similar laws are in force in all the provinces of the Dominion. If that contention were correct, in point of fact, it would hardly have much bearing on the question of con- stitutionality. But it is not correct. One instance given in the Order in Council is a statute of the New province of New Brunswick, which provides for the Brunswick „,r^.,,^ ,-,i-m"' Parish establishment of 'Parish Courts, with civil juris- diction up to $40. This New Brunswick statute, it The Quebec District Magistrates Act, 1888. 169 must be admitted, is similar to a number of other Prop. 8-9 provincial statutes, but it differs in all the points to which importance has been given in the previous parts of this report, from the disallowed statute. "Reference is made in the Order in Council under review to a decision of the Supreme Court of Nev\' Brunswick, in the case of Ganong y. Bayley, canong j;. I P. & B. 324,^ as sustaining the 'Parish Courts ' ^''^'^^" Act. " The undersigned desires not to be understood as undertaking to discuss here the legality of statutes like the New Brunswick statute just referred to. The wide difference which has been already pointed out between those statutes and the disal- lowed Act, as to criminal jurisdiction, as to the ex- tent of the civil jurisdiction, and as to the attempt to transfer certain of the powers of the Superior Court judges to provincially appointed judges, makes it unnecessary to enter upon such a discussion, but it may be proper that he should notice the New Brunswick decision just mentioned, because it may be supposed that, although the statutes were different, the principles affirmed by the Court may have been sufficiently wide to cover the disallowed statute, as well as the statute of New Brunswick, which was then being considered. " The question before the Court was whether the New Brunswick Act, (39 Vict., chap. 5), intituled, 'An Act to establish Parish Courts,' was ultra vires of the local legislature, as to the section which provided that the commissioners (who are the judges in those Courts) should be appointed by the Lieutenant-Governor in Council. As already ^See supra p. 136. 170 Legislative Power in Canada. Prop. 8-9 stated, the Parish Court was a Court for the recovery of debts under $40. Two of the judges of the „ Supreme Court of New Brunswick, out of five, Ganong v. '^ ' ' Bayiey. denied the validity of the enactment. Two of the judges who affirmed the vaHdity of the enactment did so on the ground that all the powers of the provincial legislature and Executive which existed before the Union of the provinces remained to the provincial legislature and Executive after the Union, except in so far as altered by the provisions of the Union Act. Provincial " This principle, without which there would not legislatures .... have only havc becu a maiority of the Court to uphold the those powers conferred by provlslou of the Parish Courts Act, would not now be the B.N. A. ^ . , , ' . Act. affirmed, since the Judicial Committee of the Privy Council (as well as other tribunals) has so clearly established that no powers are possessed by the provincial legislatures, except such as are conferred by section 92 of the British North America Act, and that all other powers are vested in the parliament of Canada.^ It may be that such statutes as that regarding the Parish Courts are intra vires the provincial legislature, without the disallowed statute being so, but, if they are intra vires, it can hardly be from the weight of the New Brunswick decision just quoted, or from the reasoning given by the majority of the Court. " Another of the statutes referred to in the Order in Council as being similar to the disallowed Act is Ontario Act ouc passcd by the legislature of Ontario, and which stipendiary Conferred jurisdiction on stipendiary magistrates in ' territorial and temporary judicial districts. "The undersigned has, however, already shown that the provisions of this Act were distinctly ^See Propositions i, 2, and 66, and the notes thereto. as to stipe) magistrates. Sir John Thompson's Report. 171 excepted to in the report of the Hon. Mr. Laflamme, ppop. 8-9 and that a request was made that it should be repealed before the time for disallowance should expire ; that that request was unheeded, and that a subsequent enactment of a like character, but going a little further in conferring jurisdiction, was disal- lowed. Legislation of that kind has not been continued in Ontario, but the legislature has, in recent years, avoided doubtful ground by establish- ing the Court merely, and leaving the appointment of the judge to the Dominion Executive. " The Order in Council now under consideration, Provincial /- . , . 1 • 1 1 1 1 • legislation alter presentmg the reasonmg which has been herem authorizing the reviewed, with regard to the constitutionality of the appointment disallowed Act, proceeds to give a statement of facts Superior which seems to the undersigned to have no bearing judges, upon that question, and no relevancy to the ques- tion of disallowance. It refers to the fact that in 1887 the legislature of Quebec authorized the appointment of two additional judges of the Superior Court, and calls your Excellency's attention to the fact, according to a principle acknowledged by the Dominion authorities, and especially by the Right Honourable the First Minister in a speech in Parliament in 1880, that the wish of the provincial legislature on such a subject should be respected. On this point there need be no controversy. . • . " It seems necessary to say, however, that the fact of a provincial legislature having done its part towards enlarging the number of judges, and the circumstance, if such exists, of additional judges being needed, cannot justify the attempt on the part of the provincial legislature to seize the appoint- ing power. Yet such seems to be one of the reasons put forward in justification of the disallowed Act." 172 Legislative Power in Canada. Prop. 8-9 Sir John Thompson then discusses an objection raised in the Quebec Order in Council, that the advice to the Governor-General to disallow the Act of 1888 had been unduly delayed, showing it to be founded on a misconception of facts, and continues : — " The Quebec Order in Council next proceeds to state a grievance which seems to differ materially from the one just noticed, inasmuch as it is a com- plaint that in dealing with the disallowed Act your ^own^in''^ Excellency's advisers acted with too much expedi- Il'^!?,?„ ^r tion. Reference is therein made to a memorandum disallowance of the Minister of Justice, dated the gth day of of statutes, j^^g^ 1868, rccommending the course which should be pursued in reference to a review of provincial statutes, and the government of Quebec declare that in the recent case of disallowance those rules have not been observed.^ " The only rule to which this complaint can refer^ by any possibility, is the following : — " ' That where a measure is considered only partially defective, or where objectionable, as being ^^.^r.,that prejudicial to the general interests of the Dominion,. objections t^ •> ... .,.,.,. . . should be or as clashms: with its legislation, communication submitted " ... before dis- should be had with the provincial government with allowance, 1 • 1 respect to such measure, and that in such case the Act should not be disallowed, if the general interests permit such a course, until the local government has had an opportunity of considering and discuss- ing the objections taken, and the local legislature has also an opportunity of remedying the defects found to exist.' " The undersigned does not understand that the adoption of those general rules in 1868 in any way ^Printed in Ilodgins' Prov. Legisl., Vol. i, p. i. The Quebec District Magistrates Act, 1888. 173 limited or controlled the exercise of your Excel- Prop. 8-9 lency's power of disallowance. They were sugges- tions for the guidance of the Minister of Justice of Donotcon- that time, and for his successors in office, and, in soP""'^'- far as provincial governments were concerned, they were merely indications of a line of action which your Excellency's advisers at that period thought suitable to be adopted. They were not in any sense an agreement with provincial governments^, and at any time when they may be departed from, it would seem that the provincial Executives have no reason to complain of the exercise of your Excellency's powers by any other method. In the present instance it seems apparent that the complaint of departure from these rules is hardly well founded. It can hardly be contended that in dealing with the j^'jerfst""^' objectionable statute, the provincial Executive was p^^^pt^^^fs- at liberty to proceed with the utmost expedition, ^J-' °he^"" but that the federal Executive was bound to pursue ^f^Vg^ a course of remonstrance and delay, which would have led to great confusion and public injury if the view held by the federal Executive was right. It can hardly be contended that if your Excellency's advisers thought the important provisions of the disallowed Act to be unconstitutional, and in excess . of the powers of the legislature, they should have allowed the Act to be proclaimed, the judges to be appointed by the Lieutenant-Governor, the Circuit Court to be abolished by proclamation, the new tribunal to exercise its large powers in a great section of the province of Quebec without authority, suitors to be involved in expense, judgments to be rendered and enforced, seizures made, property sold, ^With regard to this remark of Sir J. Thompson, it would seem clear that Ministers could not bind the Crown by any such agreement. See per Higinbotham, CJ., Attorney-General v. Goldsbrough, 15 V. i^R- at p. 645, (1889). 174 Legislative Power in Canada. Prop. 8-9 personal liberty restricted, while your Excellency's advisers would be remonstrating with the provincial Executive, and waiting for the legislative session of i88g, in order to give that legislature ' an oppor- tunity of remedying the defects found to exist.' " It seems to the undersigned that, quoting the language of the rule which it is claimed was violated, ' the general interests ' did not ' permit such a course.' " Under the circumstances which the undersigned has presented in this report, he ventures to submit that the government of the province of Quebec was under an erroneous impression in supposing that, in disallowing the District Magistrates' Act of 1888, your Excellency's government was actuated by any disposition whatever to limit the actual right of that province ' to adopt any law deemed necessary for the good government and prosperity of the province, within the limits of its powers and attributes.' " In answer to the above report of Sir John Thomp- son, the Lieutenant-Governor of Quebec forwarded to the Dominion government a report of the Presi- dent of the Executive Council of the province, upon Sir J. which the Minister of Justice made a further report Thompson's ^^ j^jy j^j-]^^ jggg^ in the coursc of which he said^ : the Quebec — " I" the documcnt now under review, the President Mag'ilfrates of the Exccutivc Couucil states that he does not Act, 1888. clearly see from the report of the undersigned, approved on January 22nd last, whether the under- signed maintains the opinion that the local legisla- tures have no power to create Courts, of no matter how small jurisdiction, whose judges shall be ^Through the courtesy of the Department of Justice at Ottawa, the writer has had an opportunity of perusing all reports of Ministers of Justice upon provincial legislation from 1887, when Mr. W. E. Hod- gins' wo terminates, to the jiresent time. Provincial Judicial Officers. 175 appointed by the local Executives. In the previous Prop. 8-9 report of the undersigned, no question was raised as to the provincial power to create such Courts, and as to whether the power might not be validly conferred on the local Executives to appoint magistrates or judges for Courts of small jurisdiction, and different from the Courts mentioned in the clause of thepo°el"of''' British North America Act, which confers thCsPP^Sclai appointing power on the Governor-General. Thed?nkd."°' undersigned distinctly declared in that report that that was not a matter involved in the discussion, as the legislature of Quebec, in enacting the District Magistrates' Act, and the Quebec government, in making the appointments, had clearly invaded the powers of Parliament and of your Excellency, even though the power to appoint some classes of officers, with judicial functions, might be with the local authority. The contention which is made in the document under review . . does not, in the opinion of the undersigned, refute the view set forth in his previous report . . That view has been taken by nearly all the Ministers of Justice since the union of the provinces, namely, that the words of rn-a^aci. the British North America Act referring to ' Judges of the Superior, District, and County Courts' include all classes of judges like those designated, and not merely the judges of the particular Courts which at the time of the passage of the British North America Act happened to bear those names." And, again, in his report as Minister of Justice on the New Brunswick Acts for i88g, Sir John Thomp- son objected to section 4 of c. 23, an Act respecting Criminal Courts, which provided that the Lieutenant- Governor in Council might appoint stipendiary or police magistrates within any county, saying : — " The undersigned again desires to express his 176 Legislative Power in Canada. Sir J. Thompson on Reg. V. Bush. Prop. 8-9 doubts as to the right of the Lieutenant-Governor to appoint, or of a provincial legislature to authorize the appointment of, justices of the peace or other judicial officers. The question is one of difficulty, and there have been decisions both ways, but no final Court of appeal has expressly formulated a judgment upon it," and referring to a recent case, which is evidently Reg. v. Bush, (above referred to at pp. 137-9,) he strongly objects to the argument based in the judgments in that case on the acquies- cence of the Dominion parliament.^ Proceeding to Proposition 9, it is one easily deducible from Propositions 7 and 8, and affords a convenient opportunity to briefly discuss the subject of legislative power over the royal prerogative. The words of the Proposition are suggested by those of Taschereau, J., in Lenoir z^. Ritchie," where he says : — " Admitting the theory that the pro- Prop. 9. Legislative power over the royal prerogative ^As to which, see Propositions 14 and 15. In the recent Nova Scotia case of Thomas 71. Haliburton, 26 N.S. at p. 74, (1893), ^""a- ham, E J., says : — " I think that it was the intention of the British North America Act that crimes of this nature," {sc, hbels, forgery, tampering with witnesses), "should be tried by judges appointed and paid by the federal authorities, and not by appointees of the provincial legislature. That it is a usurpation of jurisdiction, which, if allowed in this case," (where the provincial legislature had enacted that the House of Assembly should be a court to adjudicate upon and punish libels upon members during the session of the legislature), " may be delegated to municipal bodies by the same legislature : Reg. v. Toland, . 22 O.R. 505, citing Reg. v. Boucher, Cass. Sup. Ct. Dig., p. 325." The as to^powe°s" question of the power of provincial legislatures to ap^joint police ofappointing magistrates is discussed at length by Mr. Marsh, Q.C., in 8 C.L.T. 97, justices of scq., concluding in the negative. May not, however, the true solution the peace jj^ -^^ ^^^ application of our leading proposition to Nos. 14 and 15 of section 92 of the British North America Act, so that provincial legisla- tures may be found to have power to appoint, or authorize the appoint- ment of, justices of what may be termed the provincial peace, for the enforcement of laws, under No. 15 of section 92, while the Dominion parliament alone has such powers as to the Dominion peace, that is, as to justices to enforce criminal laws, within the meaning of No. 27 of section 91, (as to which see supra pp. 35-7, 49-50, saving always the Queen's prerogative, where that has not been controlled by valid legislative enactment ? 23 S.C.R. at pp. 623-4, I Cart, at p. 530, (1879). Power over Royal Prerogatives. 177 vincial laws must be held to be enacted in Her Prop. 8-9 Majesty's name, and I need not consider how far this may be admissible, this can be so only when such laws are strictly within the powers conceded to the provincial legislatures by the Imperial Act. When they go beyond the limits assigned to them, they act without jurisdiction. Her Majesty's R^"°hie!" authorization to make laws in her name, which, ereau, according to this theory, she has given to them byxlsch the Imperial Act, can apply only to laws passed within the limits assigned to them by the Act, They cannot avail themselves of that authorization to make laws outside of these limits." And in connection with this the words of Armour, C.J., in Regina v. Bush,^ may be cited, where he|eg-^- held that No. 14 of section 92, as to laws relating to the administration of justice, gives local legislatures the exclusive power to appoint justices of the peace, although this was and still is one of the prerogative rights of the Crown, adding : — " If this power was so conferred by the British North America Act, it ^^j/^'"'"""''' is of no consequence that Acts of the provincial legislature are assented to only in the name of the Governor-General, while only Acts of the Parlia- ment of Canada are assented to in the name of the Crown, because the Crown by assenting to the British North America Act assented to the powers thereby conferred, and to the exercise of those powers by the Parliament or legislatures upon which they were respectively conferred." Nevertheless, it was largely upon the ground that provincial Lieutenant-Governors do not represent Her Majesty, and that Her Majesty, therefore, is I15 O.R. at p. 400, 4 Cart, at p. 692, (1888). See also supra 1^7-9. PP- 137-9 178 Legislative Power in Canada. Prop. 8-9 not an integral part of the provincial legislatures, that in Lenoir v. Ritchie^ some of the judges of the Supreme Court of Canada expressed an emphatic opinion that those legislatures, at all events, could not affect or impair the royal prerogatives.- The recent decision of the Privy Council, upon which Proposition 7 rests. The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick,^ has, of course, removed this ground of objection to the provincial power. The question still remains, however, whether, even conceding the principle enunciated in Proposition 8, of the correlation of executive and legislative power, there is among those legislative powers enumerated in section 92 of the British North America Act, and by that section conferred upon provincial legislatures, any which necessarily imply power to interfere with Ritchie.' royal prerogatives. And so in Lenoir v. Ritchie* Taschereau, J., lays it down that : — " Provincial legislatures cannot, directly or indirectly, interfere with Her Majesty's prerogatives, or with her acts Does sect. 92 (5one iu the exercise of these prerogatives," and of B.N. A. '^ ° Act give savs^ : — " Which part of section 02, where the sub- power to -^ '■ interfere . with royal prerog- 13 S.C.R. 575, I Cart. 488, (1879). atives ? 2See per Taschereau, J., 3 S.C.R. at pp. 620-3, i Cart. 527-9 ; per G Wynne, J., 3 S.C.R. at pp. 632-5, I Cart, at pp. 538-9, 542. Cf., per Gwynne, J., in Liquidators of the Maritime Bank of Canada t/. The Receiver-General of New Brunswick, 20 S.C.R. at pp. 699-700, 703. In Mercer z/. The Attorney-General for Ontario, 5 S.C.R. at p. 663, 3 Cart, at pp. 47-8, (1881), Henry, J., observes: — "The Imperial parliament has never, as far as I have been able to discover, at- tempted to deal with the peculiar prerogatives of the Crown until pre- viously voluntarily surrendered by the Sovereign." 3[i892] A.C. 437- *3 S.C.R. at p. 62S, I Cart, at pp. 534-5- 53 S.C.R. at pp. 620-2, I Cart. 527-8. Taschereau, J., goes so far as to say in this portion of his judgment that " under the rule that Her Majesty is bound by no statute unless specially named therein, and that any statute which would divest or abridge the Sovereign of Power over Royal Prerogatives. 179 jects left under their control and authority are prop. 8-9 enumerated, gives them the power to legislate upon Her Majesty's prerogatives ? There is a clause, it is true, giving them exclusive authority over the administration of justice, but, surely, the creation and appointment of Queen's Counsel has never been No. 14, . . . . p . . sect. 92, considered as a part of the admmistration of justice, b.n.a. Act. To grant to these legislatures the exercise of Her Majesty's prerogatives, or the power to give to any one the exercise of these prerogatives, it would require, in my opinion, a very clear enact- ment, and I cannot find it in the British North America Act." But, as has been already seen,^ in the opinion Opinion of rr--TT -r^ iti«-ttii i Sir Horace 01 bir Horace Davey and Mr. Haldane, to whom Davey. the matter was submitted by the Ontario govern- ment, one class of subjects enumerated in sec- tion 92, at all events, involves a royal prerogative power, namely. No. 4, which by assigning to pro- vincial legislatures the establishment and tenure of provincial offices, and the appointment of provincial officers, empowers them to appoint, or authorize the Lieutenant-Governor to appoint, 'o the office of"ientof '■ '■ Queen s Queen's Counsel, for the purpose of the provincial counsel. Courts, and they certainly draw no distinction between such Queen's Counsel and others " assum- ing to be of the rank of Queen's Counsel known his prerogative, in the slightest degree, doto not extend to and bind the King, unless there be express words to that effect, even if the power of creating Queen's Counsel could ever have been interpreted to be included in the power over the administration of justice, it remains in Her Majesty, and in Her Majesty alone, as the Imperial statute does not specially give it to the legislatures." And cf. S.C. per Henry, J., 3 S.C. K. at pp. 614-5, I Cart, at pp. 520-1 ; per Gwynne, J., 3 S.C.R. at pp. 635-6, I (;art. at pp. 542-3. Seci quare. See the Opinion of Sir Horace Davey, supra pp. 133-4 ; also p. 135. ^See supra pp. 133-4. i8o Legislative Power in Canada. Prop. 8-9 under that name in the Empire," to use an expres- sion of Taschereau, J.^ And it would seem that there can be still less doubt as to the power of the Dominion parliament, under its general legislative jurisdiction, to affect the royal prerogatives so far as the internal govern- ment of Dominion is concerned. But in the pardon- ing power case, Attorney-General of Canada v. Pardoning Attomcy-General of Ontario, already referred to,^ Power case. Stroug, C.J,, in his judgment, ^ after Stating that it has been the invariable practice in the case of colonial governors to delegate to thern the authority to pardon in express terms by their commission or Per Strong, iustructions, which he would think implies that, in C f the opinion of the law officers of the Crown, the prerogative of pardoning offences is not incidental to the office of a colonial governor, and can only be executed by such an officer in the absence of legislative authority, under powers expressly con- ferred by the Crown, continues : — " The next question, and one which was argued on this appeal, and which, if we were compelled to decide all the questions presented, we should have been obliged to pronounce upon, is one of the greatest importance, not a question of con- struction arising in any way upon the British North conttfru-^"^^ America Act, but one involving a great principle of of the ^'"^ the general constitutional law of the Empire. That question is, In what legislature does the power of conferring this prerogative of pardoning, by legisla- tion, upon a representative of the Crown, such as a colonial governor, reside ? Is it possessed by any ^Lenoir v. Ritchie, 3 S.C.R. at p. 627, i Cart, at p. 533. "^Sce supra, pp. 113-5, 'SO'S- 323 S.C.R. at pp. 468-9. Power over Royal Prerogatives. • i8i colonial legislature, including in that term under Prop. 8-9 our system of federal government as well the Dominion parliament as a provincial legislature, or is it confined to the Imperial parliament ? That the Crown, although it may delegate to its represen- tatives the exercise of certain prerogatives, cannot voluntarily divest itself of them seems to be a well recognized constitutional canon. Upon this point of the locality of the legislative power to interfere with the ro3'al prerogative, I should have thought that the case of Gushing v. Dupuy,^ and In re Louis Marois,^ decided by the Judicial Committee with reference to the jurisdiction of a colonial legislature to limit appeals to the Queen in Council, would, if not direct authorities, have had at least a very material application to the present question. The judgments delivered in the Supreme Court of Vic- toria, in the case of Toy v. Musgrove,^ might also have afforded us great assistance." It will be seen, then, that the learned Chief Justice speaks of it as still a question whether a colonial legislature, including in such term both the Dominion parliament and the provincial legislatures, has power to interfere with the royal prerogative, — or such a royal prerogative as that of mercy.* Now, ^5 App. Cas. 409, I Cart. 252, (1S80). 215 Mo. P.C. 189, {1862). 3 14 V.L. R. 349, (1888). See s/t/>ra at pp. 11 5-20 for extracts from the judgments in this case on the subject of how far royal prerogative powers were vested in the colonial governor. The judges, however, do not any of them discuss the question of the power of the colonial legislature to control the royal prerogative, that not being involved in the decision of the case before them, where the validity of a purely executive act was in question, defended as an exercise of a royal prerogative power to prevent aliens from landing on British soil, but not done under the sanction of any Act of the legislature. See, however, per Kerferd, J., at pp. 412-3; per Williams, J., at p. 421; per Holroyd, J., at pp. 4289. *See, «//;-« at pp. 131 -2, the views expressed by Boyd, C, in the Court of first instance in this case. l82 Legislative Power in Canada. Prop. 8-9 the prerogative of mercy is one of the highest prerogatives, and is described as inseparably incident to the Crown. ^ But the prerogative of the Crown as the fountain of justice, with which the two cases of Cushing v. Dupuy and In re Louis Marois, to which his lordship refers, had to do, seems to stand on the same footing in this respect.^ They are, however, certainly not direct authorities Cushing V. Dupuy. ^Bacon's Abridg., Vol. 6, sub voce, "Pardon"; Criminal Law Magazine, Vol. 6, p. 457, seq. ; Chitty on the Prerogative, pp. 89, 92, 102. Story on the Constitu- tion. Majors and minora regalia. Chitty. Blackstone. Attorney- General J'. Black. Attorney- General 7'. Judah. ^In Story on the Constitution of the United States, 5th ed., p. 133, sect. 184, as elsewhere, the distinction, taken by what the author terms " the Crown writers," is pointed out between the majora regalia, — " Such fundamental rights and principles as constituted the basis of the throne and its authority, and without which the King would cease to be Sovereign in all his dominions," — and minor prerogatives, which it was held "might be yielded, where they were inconsistent with the laws and usages of the place, or were inapplicable to the conditions of the people." Cf. Chitty on the Prerogative, p. 25, who says : — " To illustrate this distinction, the attributes of the King, sovereignty, per- fection, and perpetuity, which are inherent in and constitute His Majesty's political capacity, prevail in every part of the territories subject to the English Crown, by whatever peculiar or internal laws they may be governed . . . But in countries which, though dependent on the British Crown, have different and local laws for their internal government, as, for instance, the plantations or colonies, the minor prerogatives and interests of the Crown must be regulated and governed by the peculiar and established law of the place." And so Blackstone (Steph., nth ed.. Vol. 2, p. 483) cites from the feudal writers the words : — Majora regalia imperii pra^eminentiam spectant ; minora vero ad commodum pecuniarium immediate attinent ; et hsec proprie fiscalia sunt, et ad jus fisci pertinent. Cf. on the above distinction per Dorion, C.J., Monk v. Ouimet, 19 L.C.J, at p. 75, (1874); Attorney-General v. Black, Stuart, 324, (1828), where Reid, C. J., says: — "We take the principle to be that in all cases where the greater rights and prerogatives of the Crown come in question recourse must be had to the public law of the Empire, as that alone by which such rights and prerogatives can be determined. But the debt here demanded is a minor right," — which might be thought to exclude the greater prerogatives altogether from local legislation. But Attorney- General V. Judah, 7 L.N. 147, (1884), on the other hand, appears to recognize that the local legislature could, by express enactment, affect even the " rights or prerogatives of the Crown as attributes of sovereignty." See also the words of Strong, C.J., in the Queen v. Bank of Nova Scotia, 11 S.C.R. at p. 17, seq., 4 Cart, at p. 403, seq., quoted supra pp. 79"8o, in which case, however, the Court was concerned entirely with one of the minor prerogatives, namely, the right to priority of payment ; and Stokes on the Colonies, p. 243. Power over Royal Prerogatives. 183 on the point in question, and, it is submitted, are Prop. 8-9 not, in fact, authorities on it at all. In the former their lordships especially say^ : — " It is, in their lordships' view, unnecessary to consider what pow- ers may be possessed by the parliament of Canada to interfere with the royal prerogative," nor do they touch the question, except as to the principle that the rights of the Crown can only be taken away by express words, which they affirm. Nor in In re Louis Marois was it necessary to determine Marois°"'^ the point, for, as Lord Chelmsford states, the Act of Lower Canada there in question as to appeals to the Privy Council, 34 Geo. III., c. 6, especially pro- vided by section 43, that "nothing herein contained shall be construed in any manner to derogate from the rights of the Crown," etc. In both these cases, ^ .„. _ Cuvillier V. however, the prior decision of Cuvillier v. Aylwin Ayiwin. is cited." That was a petition for leave to appeal to His Majesty in Council, notwithstanding the restriction imposed by the same Act of Lower Canada as was in question in In re Louis Marois ; and Sir John Leach, M.R., delivering judgment, said :— " It is not necessary to hear counsel on the other side. The King has no power to deprive the subject of any of his rights ; but the King, acting with the other branches of the legislature, as one of the branches of the legislature, has the power of depriving any of his subjects, in any of the countries under his dominion, of any of his rights." By reason of section 43 of the Act just referred to, it may be said that this expression of view was not necessary to the decision of their lordships in the case ; but in the subsequent case of ^5 App. Cas. at pp. 416-7, i Cart, at p. 259. 22 Kn. P.C. 72, (1832). 184 Legislative Power in Canada. Prop. 8-9 The Queen v. Edulgee Byramjee,^ their lordships refer to CuviUier v. Aylwin, and say of it : — -" It was Queen?', held that thoue^h there was a reservation of the Byramjee. " right of the Crown, yet as the Act in Canada was Council''^ made in pursuance of an Act of parliament of Great Britain, the powers contained in that Act did take away the prerogative of the Crown." ^ Thus it would seem that in their lordships' view a colonial Act assented to by the Crown through its authorized representative could interfere with and regulate the exercise of the prerogatives of the Crown as the fountain of justice, so far as the rights of those under its jurisdiction were concerned. If so, there must be a similar power as to other royal preroga- tives of the same character, subject, of course, to the Crown's right of veto. And certainly it would seem that there is such power, if Gwynne, J., is correct in what he says "in Lenoir v. Ritchie^ : — Lenoir f. •' Ritchie. "An Act of parliament passed by the old legislatures of the respective provinces which now constitute p^^ the federated provinces of the Dominion of Canada, Gwynne, J. y^der thc constitutious which they had before Con- federation, of which legislatures Her Majesty was an integral part, as she is of the Imperial parlia- ment, upon being assented to by the Crown, was competent to divest Her Majesty of the right to exercise within the province any portion of her royal prerogative."* 15 Mo. P.C. at p. 295, (1846). -In /;/ re Louis Marois, 15 Mo. P.C. 189, (1862), however, their lordships observe that the Master of the Rolls in Cuvillier v. Aylwin does not appear to have directly adverted to the proviso in section 43 of the Lower Canadian Act. 33 S.C.R. at p. 632, I Cart, at pp. 538-9. *That there was a time, however, when it was the opinion of eminent lawyers that colonial legislatures could not enact anything against Her Majesty's prerogatives, at all events her greater preroga- tives, seems clear : Chalmer's Opinions, pp. 50, 373. The Federal Veto Power. 185 PROPOSITION 10. 10. The possession by the Federal Government of the veto power over Provincial legislation is a special feature of the Constitution of the Dominion of Canada, which distinguishes it from the Constitution of the United States of America. This is pointed out very distinctly by the Privy The PrWy Council in Bank of Toronto z^. Lambe/ where, after having decided in favour of the validity of a certain Bank of Act passed by the Quebec legislature in i882,Lambe whereby certain direct taxes were imposed on all banks doing business in that province, although it was suggested that the legislature might lay on taxes so heavy as to crush a bank out of existence, and so nullify the power of the Dominion parlia- ment to erect banks, their lordships say: — "Their lordships have been invited to take a very wide range on this part of the case, and to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. Funda- B, ,,. -,11 •• r 1 mental dif- ut he was dealmg with the constitution or theference United States. "Under that constitution, as their constitution lordships understand, each State may make laws United States for itself, uncontrolled by the federal power, and il2App. Gas. at p. 5S7, 4 Cart, at pp. 22-3, (1887). i86 Legislative Power in Canada. Prop. 10 subject only to the limits placed by law on the range of subjects within its jurisdiction. In such a constitution, Chief Justice Marshall found one of those Hmits at the point at which the action of the State legislature came into conflict with the power Jhe'reratTon° vested in Cougrcss. The appellant invokes that Sta7e"egis- principlc to support the conclusion that the r.nlT.r'^ Federation Act must be so construed as to allow no power to the provincial legislatures under section 92, which may, by possibility, and if exercised in some extravagant way, interfere with the objects of the Dominion in exercising their powers under Canada"^' ° scctionQi. It is quitc impossiblc to arguc from the one case to the other. Their lordships have to con- strue the express words of an Act of parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative In respect to ^^ ■^ • r \ the relation bodlcs, and at the same time provides for the betwt-en the ' provincial federated provinces a carefully balanced constitu- legislatures ^ -^ ^^y , tion, under which no one of the parts can pass Parhament. ' ^ laws for itself, except under the control of the whole, acting through the Governor-General, and the question they have to answer is whether the one body or the other has power to make a given law. If they find that on the due construction of the Act a legislative power falls within section 92, it would be quite wrong of them to deny its existence, because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion parliament." And in Angers v. The Queen Insurance Co.^ And so per Ramsay, J., thus refers to this distinction in the Ramsay, . ^Q^g^j|.^|.jQj-j ^f ^^ie two countrics :— " It should be I22 L.C.J, at pp. 309-10, I Cart, at pp. 134-5, (1878). And see Bryce's American Commonwealth, (two-volume edition), Vol. I, at PP- 313-14- The United States Constitution. 187 observed that there is a fundamental difference be- ppop. 10 tween our constitution and that of the United States. Here the powers of the legislatures and TOvern-The '■ ° " Dominion ments are partitioned by a supreme authority, p°^ero^f^dis- which has given to the Dominion organization, not only all unassigned powers, not purely of a private or local nature, but also, specially, the power to control absolutely, by disallowance, the legislation of the provinces. In the United States the central government holds its authority from the States, and has no power over the States' legislation other than that it may acquire through the Supreme Court. Here, then, we have by the constitution a complete is a com- check on any practical inconvenience arising from the abuse of the powers confided to the provincial legislatures, which is entirely wanting in the con- stitution of the United States, a defect which may justify, to some extent, the decisions there on this matter," (sc, on the Courts intervening when the rate of license is so great as to interfere with trade). Although, therefore, it may well be, as Fournier, sevem z/. J., said in his judgment in Severn v. The Queen, ^ that it cannot be argued that because this right of veto by the Governor-General exists, we must adopt an interpretation which would lead to the necessity of having recourse to it, yet the language of the Privy Council would seem to justify Ritchie, J., in the reliance which, in this last mentioned case-, he places on the federal veto power. Holding, as he does, against the opinion of the majority of the Court, -"^ that No. g of section 92 gives to the local legislatures a general power as to licenses in ^2 S.C.R. at pp. 131-2, I Cart, at p. 476, (1878). ^2 S.C.R. at p. 102, I Cart, at pp. 445-6. ^See supra p. 27, n. i. i88 Legislative Power in Canada, Prop. 10 order to the raising of a revenue for provincial, local, or municipal purposes, notwithstanding that, Pe"" . as was urged, such a construction conflicts with Ritchie, J" the power of the Dominion government to regulate trade, and commerce, and taxation, he adds : — '• Should at any time the burden imposed by the local legislature under this power, in fact conflict 3?to?o'l^er' injuriously with the Dominion power to regulate serous'' trade and commerce, or with the Dominion power difficulty. ^^ ^.g^jgg money by any mode or system of taxation, the power vested in the Governor-General of dis- allowing any such legislation practically affords the means by which serious difficulty may be pre- vented."^ And in much the same way Strong, J., says-:— "The imposition of licenses authorized by And so per No. Q of scction 02 is, it will be observed, confined Strong,;. y . , ^ ' ^ ■,■.-. to licenses for the purposes or revenue, and it is not to be assumed that the provincial legislatures will abuse the power, or exercise it in such a way as to destroy any trade or occupation. . . And, however carefully the purpose or object of such an enact- ment might be veiled, the foresight of those who framed our constitutional Act led them to provide a B.N.A. Act, remedy in the 90th section of the Act, by vesting sect. 90. ^j^g power of disallowance of provincial Acts in the executive power of the Dominion, the Governor- General in Council." On the other hand, the view of Richards, C.J.,^ and Fournier, J.,* as expressed in this case, would seem to be that the existence of the veto power has little or no bearing on the ques- tion of whether on the proper construction of the iCf. the similar words of Draper, C.J., in Reg. v. Taylor, 36 U.C.R. at p. 224, (1875). 2S.C., 2 S.C.R. at pp. 108-9, I Cart, at pp. 452-3- 32 S.C.R. at p. 96, I Cart, at pp. 439-40- *2 SCR. at pp. 131-2, I Cart, at pp. 475-6- le veto ver The Federal Veto Power. 189 various parts of sections gi and 92 of the British Prop. 10 North America Act, local legislatures have powers, which, in their exercise, might conflict with the legislation of the Dominion parliament. Again, Draper, C.T., refers to the veto power Jhe " ' -^ Goodhue in the Goodhue case,^ saying: — "Though our case. legislature is limited by the Constitutional Act to certain defined subjects, the Act imposes no limit to the exercise of the power on those subjects. It does provide checks, for the Lieutenant- p^^ Draper, Governor may withhold the necessary assent, or*-^-^" the Governor-General may disallow Acts to which his subordinate has assented." And, again-: — " In regard to the absence of a second chamber, it may be further observed, so far at least as^j^^ estate or private Bills are concerned, that as such ^°^'' Bills involve ordinarily no mere party political consideration, all those whose interests are or may be touched have a right, in the first place, to expect a careful examination of their contents on ., , t^ May supply the part of the provincial Executive, and a with-^'ji^^=^^^^^^JJ^'^j^ holding of the royal assent if it is found that the'^'^^'"^" promoters of the Bill are seeking advantages at the expense of others, whose interests are as well grounded as their own. And, further, if from over- sight, or any other cause, provisions , should be inserted of an objectionable character, such as the deprivation of innocent parties of actual or even possible interests, by retroactive legislation, such in checking legislative Bills are still subject to the consideration of the injustice in - 1 .the Governor-General, who, as the representative ofprovinces. the Sovereign, is entrusted with authority, to which a corresponding duty attaches, to disallow any law I19 Gr. at p. 385, I Cart, at p. 568, (1873). ^19 Gr. at p. 384. This passage is omitted by Mr. Cartwright. Three Rivers v. Suite. 190 Legislative Power in Canada. Prop. 10 contrary to reason, or to natural justice or equity. So that while our legislation," (sc, Ontario legislation), " must unavoidably originate in the single chamber, and can only be openly discussed there, and, once, adopted there, cannot be revised or amended by any other authority, it does not become law until the Lieutenant - Governor announces his assent, after which it is subject to disallowance by the Governor-General." So per So, too, iu The Corporation of Three Rivers y. Ramsay, J- ^ , r /'-\ Suite, ^ Ramsay, J., of the Quebec Court of Queen's Bench (Appeal side), observes : — " The true check for the abuse of powers, as distinguished from an unlawful exercise of them, is the power of the central government to disallow laws open to the former reproach. Probably to a certain class of minds this interference appears ' harsh ' and pro- vocative of ' grave complications,' as has been said ; but this is hardly an argument in favour of the Courts extending their jurisdiction to relieve the central government of its responsibility. It seems to be fairer to leave the rule of expediency to be applied by a body responsible to the people at large, rather than to a comparatively irresponsible body like a Court." nl'rrison ^"*^ ^^ Lcprohon V. City of Ottawa," Harrison, ^■^- C.J. , says : — "The power of the Governor-General in Council to disallow a provincial Act is as absolute as the power of the Queen to disallow a Dominion Act, and is, in each case, to be the result of the exercise of a sound discretion, for which exercise of discretion the Executive Council for the time being 15 L.N. at pp. 334-5, 2 Cart, at pp. 289-90, (1882). 240 U.C.R. at p. 490, I Cart, at p. 647, (1877). The Governor-General in Council. 191 is, in either case, to be responsible as for other Acts Prop. 10 of executive administration." And here it may be well to digress for a moment to consider a point in connection with this matter noticed by Taschereau, T., in Lenoir v. Ritchie,^ it's the •' '' Governor- namelv, that the power of veto is given to the General in " ' ^ ° Council to Governor-General in Council, not to the Governor- ^hom veto power lb General himself.- The learned judge argues from §'''«"■ this that it cannot possibly be said that Her Majesty is bound by a provincial statute, because it has not been vetoed at Ottawa by the Governor-General in Council,^ for : — " It cannot be contended that the Governor-General in Council is the Queen, or Argument of the representative of the Queen, or that the j.^'theTeo^n"' Governor-General in Council exercises the prero- gatives of the Queen, or can give directly or indirectly to any person or public body the right to exercise such prerogatives. . . The Governor-General alone exercises the prerogatives of the Queen in her name in all cases in which such prerogatives can be exercised in the Dominion by any one else than Her Majesty herself."* And in Regina v. Bennett,'^ Cameron, J., explains Asex- this language of Taschereau, J., as follows : — " Of Reg"^z/. Ben- course, the learned judge is treating the Governor-"^ General in Council as acting upon the advice of the ^3 S.C. R. at p. 624, I Cart, at pp. 530-1, (1879). -See sections 56 and 90 of the British North America Act. ^As to this see Propositions 7, 8, and 9, and the notes thereto, from which it would appear that if Her Majesty is bound by a provincial * statute, it is because such statute has been assented to by the Lieutenant-Governor, her representative in the provincial legislature, rather than because it has not been vetoed l)y the Governor-General. *But as to this see supra p. 109. *I O.K. at pp. 461-2, 2 Cart, at pp. 641-2, (1882). • 192 Legislative Power in Canada. Prop. 10 Council,! the members of which are responsible under our constitution to Parliament for their advice, as shown by the action following, or the result of such advice; while in the exercise of pure matters of prerogatives, as distinct from acts indi- cameron, J. Gating Or Carrying into effect the policy of the government, he acts of his own mere motion independently of or even against the advice of the Privy Council, if he has chosen to consult them upon the subject. The learned judge, too, in using the language I have quoted, was doing it for the purpose of showing that the fact of an Act of the local legislature not having been disallowed by the Governor in Council could not be taken as an indication that Her Majesty had thereby impliedly consented to any curtailment or transfer of the right of exercise of the royal prerogative that such Act might work." And in Mercer v. The Attorney-General for On- Per tario,^ Gwynne, J., says : — " The power of disallow- Gwynne, J. . ^ , ..,,., . , ing Acts or the provmcial legislature is no longer, as it was under the old constitution of the provinces, vested in Her Majesty, but in the Governor-General of the Dominion in Council, and this is for the purpose of enabling the authorities of the Dominion to exercise that branch of sovereign power formerly Federal veto exercised by Her Majesty in right of her prerogative the same as royal, but to bc cxerciscd no longer as a branch of the old pre- -' '-' nof^er^^ thc prcrogatlvc, but as a power by statute vested in the Dominion authorities (the royal prerogatives being, for that purpose, extinguished)." ^Section 13 of the British North America Act specially provides that : — " The provisions of this Act, referring to the Governor-General in Council, shall be construed as referring to the Governor-General acting l)y and with the advice of the Queen's Privy Council for Canada." 25 S.C.R. at pp. 71 1-2, 3 Cart, at p. 84, (1881). power, The Governor-General in Council. 193 But whether it be or be not proper to say that Prop. 10 when the Governor-General in Council vetoes a provincial Act he exercises a royal prerogative power, he certainly does that, as all other executive acts, as representative of the Queen, in whom, as section q of the Act declares, the executive ■^^f^"'?''^ y ' as to this government and authorit}' of and over Canada ^'^""'^"°"- continues and is vested. And as to the significance of the fact that the power of veto is given to the Governor-General in Council, and not to the Governor-General himself, it may be well to recall the words of Sir John Macdonald, in an official sir john J a ^\7\^ i-U • • Macdonald. memorandum : — Whether m any case power is given to the Governor-General to act individually or with the aid of his Council, the act, as one within the scope of the Canadian constitution, must be on the advice of a responsible minister. The distinc- tion drawn in the statute between an act of the Governor and an act of the Governor in Council is a technical one, and arose from the fact that, in Canada, for a long period before Confederation, certain acts of administration were required by law to be done under the sanction of an order in Council, while others did not require that formality. In both cases, however, since responsible govern- ment has been conceded, such acts have always been performed under the advice of a responsible ministry or minister."^ iCom. Pap. 1S78-9, Vol. 51, p. 153; Todd's Pari. Gov. in Brit. Col., 2nded., p. 454. In a despatch ot the Secretary of State /or the Colonies to the Governor-General, of July 3rd, 1879, (Can. Sess! Pap., 1880, No. 18), in reference to the Letellier case, he says : — " It has been noticed that while under section 58 of the Act the appointment of a Lieutenant-Governor is to be made ' by the Governor-General i.i Council by instrument under the Great .Seal of Canada,' section 59 provides that ' a Lieutenant-Governor shall hold office during the pleasure of the Governor-General,' and much stress has been laid upon the supposed intention of the legislature in thus varying the language of these sections. But it must be remembered that other powers, 13 194 Legislative Power in Canada. The Secretary of State for the Colonies on the veto power. Prop. 10 To return to the general subject before us, the veto power of the federal government in Canada is that principle of central control which Mr. Card- well, as Secretary of State for the Colonies, in his despatch to the Governor-General, of December 3, 1864,^ acknowledging the receipt of the Quebec Resolutions, says Her Majesty's government were glad to observe had been steadily kept in view, although large powers of legislation were intended to be vested in local bodies, adding : — " The importance of this principle cannot be overrated. Its maintenance is essential to the practical efficiency of the system, and to its harmonious operation, both in the general government and in the governments of the several provinces." As was natural, special attention was called to it in the debates in the parliament of the province of Canada before Confederation. Thus Sir John Rose said": — " The other point which commends itself so strongly to my mind is this, that there is a veto power on Its main- tenance is essential. Allusions to it in debates before Con- federation. vested in a similar way in ' the Governor-General,' were clearly intended to be and in practice are exercised by him, by and with the advice of his Ministers ; and though the position of a Governor- General would entitle his views, on such a subject as that now under consideration, to peculiar weight, yet Her Majesty's Government do not find anything in the circumstances which would justify him in departing, in this instance, from the general rule, and declining to follow the decided and sustained opinion of his Ministers, who are responsible for the peace and good government of the whole Dominion to the Parliament to which, according to the 59th section of the statute, the cause assigned for the removal of a Lieutenant-Governor must be communicated." And so in the Australian Colony of Victoria it has been held by Higinbotham, C.J , that the word "Governor" in the provisions of the Constitution Act, and all Acts passed since that Act, which empower the Governor to do various acts, means the Governor acting by and under the advice of one or more of the responsible Min- isters of the Crown in Victoria : Attorney-General z/. Goldsbrough, 15 V.L.R. 638, at p. 647, (1889). ^Can. Sess. Pap., 1865, Vol. 24, No. 12, p. 11. In a letter in 18 C.L J. at p. 267, Mr. .A.lpheus Todd calls the federal veto power " the keystone of the fabric of Confederation." ^Debates on Confederation, at p. 404. The Federal Veto Power. 195 the part of the general government over all the Prop. 10 legislation of the local parliaments. That was a fundamental element which the wisest statesman sir John Rose. engaged in the framing of the American constitution saw, that if it was not engrafted in it must necessarily lead to the destruction of the constitu- tion ... I believe this power of negative, this _ , . ... , (■ The veto a power 01 veto, this controlhng power on the part 01 fundamental . , . , element in the central government, is the best protection and the constUu- safeguard of the system ; and if it had not been provided, I would have felt it very difficult to reconcile it to my sense of duty to vote for the resolutions." And again, in the same debates, Mr. Alexander Mackenzie said^: — "The veto power is necessary in order that the general government JJ'^*^^"""' may have a control over the proceedings of the Mackenzie, local legislatures to a certain extent. The want of this power was the great source of weakness in the United States, and it is a want that will be remedied by an amendment in their constitution very soon." These expressions, as Mr. Goldwin Smith has Mr.Goidwin 1 *i i'i r r ^ ' ' ^ Smith. justly said,- plainly refer to a power of political control to be exercised in the interest of the nation, not to a mere power of restraining illegal stretches of jurisdiction, a function which belongs, not to a gov- ernment, but to a Court of law."^ And it is surely ^Ibid., at p. 433. ^Canada and the Canadian Question, (Macmillan & Co., 1891), at P- 159- ^Referring to these debates on Confederation in the parliament of Canada, Mr. Clement says, (Canadian Constitution, p. 173) : — "Throughout the debates, it was clearly recognized that the exercise by the Dominion government of the power of disallowance was to be exercised in support of federal unity, e.g., to preserve the minorities in different parts of the confederated provinces from oppression at the hands of the majorities." And in his History of the Dominion of Canada, (Clarendon Press, 1890), at p. 222, Mr. Greswell presents another pleasing aspect of the veto power, namely, as enabli^i;^ the central or Dominion government to be " the nurse of weakling provinces." 196 Legislative Power in Canada. Prop. 10 illogical and unreasonable for advocates of extreme provincial rights to claim the full benefit of the doc- Advocaits trine of Bank of Toronto y. Lambe^ embodied in Pro- of extreme ng°htr''^' position 61, — that if a legislative power falls within section 92 of the British North America Act, it is not to be restricted, or its existence denied, because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion parliament, — and, at the same time, en- deavour to ignore or nullify the controlling power of the Dominion veto so pointedly referred to in that very case.- Although, then, the Dominion veto power, which "works in the plane of political expediency as well as in that of jural capacity,"^ may not come strictly Features of within the scope of the present work, it is sufficiently Dominion i-iii r i • ^ • vet. power closely connected with the law of legislative power in Canada to justify some farther observations in respect to it. Must he One year, and no longer period, is allowed by the exercised t-> • • i ^ xt i a • a ■ "• i • within a British North America Act, (section 90), within year which a provincial Act may be disallowed by the Governor-General in Council ; and however detri- mental, from the point of view of the federal government, experience of its working may have shown it to be, it cannot afterwards be vetoed. This is a peculiar feature of our constitutional I12 App. Cas. at pp. 586-7, 4 Cart, at jip. 22-3, (1887). ^At the interprovincial Conference at Quebec, in 1887, the very first of the resolutions agreed to demands an amendment of the British North America Act so as to do away with the federal veto of provincial Acts, leaving such Acts " subject only to disallowance by Her Majesty in Council as before (Confederation." These resolutions are referred to in Ont. Sess. Pap., 1887, No. 51, and Can. Sess. Pap., 1889, No. 65, but not printed. They were published verbatim in The Toronto Daily yJ/azY newspaper of November loth, 1887. ■'Per Boyd, C. , in Attorney-General of Canada v. Attorney-General of Ontario, 20 O. R. at p. 245. The Federal Veto Power. 197 system which was referred to by Mr. Edward Blake Prop. 10 in his report as Minister of Justice of October 13th, 1875, cited supra at pp. 161-2.^ Again, itlXytt"^. would seem that provincial Acts, if disallowed, ^e vetoed. must be disallowed altogether ; this or that clause of an Act cannot be vetoed without the remainder. - And as Sir John Thompson, in his report to the Governor-General, of December 27th, 1893, in respect to certain British Columbia Acts, points out, there is no power vested in the Governor- Nor can the ,..,,.,, disallowance General to make a conditional disallowance, orbecondi- to . . . suspend the operation or a statute, so that the same may have no force or effect until and unless it be assented to by a majority of the members of a legislature constituted differently from that which exists. "•'^ Moreover, the Dominion House of Commons Not consti- tutional for cannot constitutionally interfere with the operation the Domin- ion House of of provincial Acts by passing resolutions urging commons to \ ^ y I- o 00 control vc their disallowance by the Governor-General. " Ifpower. such a resolution were allowed to have effect, it would amount to a virtual repeal of the section of the British North America Act, 1867, which gives the exclusive right of legislating on these matters to the provincial legislatures.'"* ^It may be noted in this connection that under the Imperial Muni- cipal Reform Act, 1835, the Crown was invested with authority to disallow corporation by-laws or any part thereof: 5-6 Will. 4, sect. 90; Todd's Pari. Gov. in Brit. Col., 2nd ed., at p. 428. ^Hodgins'Prov. Leg., Vol. i, at pp. 674-5; and see the passage quoted in the notes to Proposition 34, infra, from Sir John Thompson's report as Minister of Justice, of March 1st, 1S90, in reference to a Manitoba Act. ^See supra p. 174, n. i. ^Despatch of the Secretary of State for the Colonies to the Gover- nor-General of June 30th, 1873 '• Hodgins' Prov. Legisl., Vol. I, at p. 506; see also, !bid.,Yo\. 2, at p. 250. Nevertheless, in the session of 1889, a resolution in favour of disallowing the Act respecting to igS Legislative Power in Canada. Prop. 10 And as to the actual practice of the Dominion , government in respect to the exercise of the veto The actual _ '^ practice in pQwer, it appears to be a prevaihns: rule that where Its exercise, ^ . a provincial Act is clearly within the competency of the legislature passing it, and does not conflict ^ndafActs ^^'^^^ Dominion or Imperial policy or interests, it 7nira^hcs, should bc left to its operation, though it may be open to objection as unjust or otherwise contrary to sound principles of legislation ; while as to provin- cial statutes of doubtful constitutional validity, Sir John Thompson, in his report, as Minister of Justice, to the Governor-General in Council, of July loth, i88g, in respect to a petition presented to the latter for the reference of the Jesuits' Estates Act to the Supreme Court, savs : — " Most of these have And as to ^ . / provincial becu left to their operation, and their validitv has Acts of . . •' . doubtful been left to be tested by those interested in doing constitution- _ -^ ' aiity- so. Indeed, this course has nearly always been followed, in the case of Acts of doubtful constitu- tionality, excepting where some interference with the powers of the federal government would result, or where serious confusion or public injury was likely to ensue from such a course."^ the settlement of the Jesuits' Estates, (51-52 Vict., c. 13, Q. ), was proposed in the Dominion parHament, but was, after a thorough discussion, negatived by an overwhehning majority. For the whole history of the Jesuits' Estates Act, see Todd's Pari. Gov. in Brit. Col , 2nd ed., at p. 484, e( seq. ^This report was published in the issue of the Empire, a Toronto newspaper, of August 12th, 1889. See, also, supra p. 174, n. i. It would seem that at the time of the pas.sing of the British North America Act, it was anticipated that the veto power would be more resorted to in respect to such Acts than it has been, for, on March 1st, 1867, Mr. Adderley, Under-Secretary of State for the Colonies, when asked, in the British House of Commons, how a conflict of jurisdiction between the parliament of Canada and the provincial legislatures would be settled, replied that he did not think that any serious conflict of the kind anticipated by the honourable member could take place so long as a supreme power was vested in the Governor-General to veto Acts : Hans., 3rd Series, Vol. 185, p. 13 19. Disallowing Provincial Acts as Unjust. 199 However, very recent instances are not wanting ppop. 10 in which the Dominion government has taken strong ground against provincial legislation, ^-^ ^^^^"^ j,"' unjust and contrary to sound principles of legisla- Po^^'n'O" J J r r o interference tion. Thus, in i8gs, it objected strenuously and f^.p'^fy^".' ' y^' J J injustice in with success to section 115 of the Nova Scotia Act pjIj'^J^^pJ^ of 1892, (55 Vict., c. i), amending and consolidating the Acts relating to mines and minerals, on the ground that it prejudiced the vested rights, then in litigation, of certain individuals who had petitioned interference 1 /" r^ -i • r^ •! • • with vested the Governor-General m Council in respect to it. rights. In his report upon the matter of May 18th, 1893, Sir John Thompson recognizes the fact of a pro- vincial enactment prejudicing private vested rights as a possible ground for the exercise of the power of disallowance, and says : — " It appeared to the undersigned that the section in question mi^ht have sir John '^ . .^. ® . Thompson. the effect of which the petitioners complained, and he accordingly suggested to the x^ttorney- General of Nova Scotia the justice of an amendment repealing section 115 in so far as it might affect pend- ing litigation. The Attorney-General adopted the suggestion and introduced a bill, which was passed Nova Scotia J • 1 1 • r 1 -NT Act of 1892 and received assent at the present session 01 the N ova as to mines Scotia legislature, which removed the ground of minerals, objection urged by the petitioner." The corre- spondence which issued in this result is of interest. The Attorney-General of Nova Scotia (Mr. Longley) writes to the department : — " Whatever may have been the intention of the legislature, it may be frankly conceded that if the effect of a clause is toxhecorre- I--.., . ,,- 1/-. •• spondence in work injustice to any suitors beiore the Courts it is respect a fair question whether it should not be repealed ;" and he enters upon a discussion of the merits of the petitioners' case, while declaring the clause in ques- tion entirely and exclusively within the legislative 200 Legislative Power in Canada. Prop. 10 competency of the legislature of Nova Scotia. In a later letter to the Deputy-Minister of Justice he an- nounced that, "in compliance with your suggestion," the government would introduce a Bill repealing the obnoxious section " so far as it relates to pending suits," but that the Bill would be submitted to the committee on law amendments to hear evidence as to the real merits of the petitioners' case, and the fate of the Bill must depend upon the judgment of the House and committee. To this the Deputy-Minister rejoins, in a letter of April Legislation 24th, i8g3 : — " I beg to say, if the principle is to be affecting , • 1 1 1 • 1 • '• • 1 • 1 1 rights admitted that legislation is improper which takes pendente Hie . ^ . . . .... improper, away the rights of suitors in pending litigation, it would seem to follow that such legislation could scarcely be justified because the legislature, after full hearing of both sides in committee, had refused to repeal it. The section complained of appears to come within the principle, and I trust that by enacting the proposed measure the legislature may free this department from further consideration of the petition."^ So, again, in a report to the Governor-General of June 2nd, 1893, Sir John Thompson says with So in case of reference to an Ontario Act, (53 Vict., c. 8), Actof 1892, which was complained of by a certain railway company : — " The Minister observes that assuming the statute to have the effect which the railway Sir J. . . , , Thompson company attribute to it, the case would appear to takes firm ^ "^ . ,. , . - . f ground be that of a statute which interferes with vested against ... provincial ri^hts of propcrty and the obligation of contract interference " . . . with vested without providing for compensation, and would, rights. "^ ... . therefore, in his opinion, furnish sufficient reason for the exercise of the power of disallowance." He ^StQ sttpra p. 174, n. I. The Federal Veto Power. 201 came to the conclusion, however, that the Act Prop. 10 could not be so construed as to have such effect,' ' and says that : — " For that reason, but for that reason only, he recommends that the Act should be left to its operation." This, moreover, was in face of a letter of the provincial Attorney-General. Sir Protest of provincial Oliver Mowat, in which he says:—"! repudiate Attomey- . . " General. the notion of the petitioners that it is the office of the Dominion government to sit in judgment on the right and justice of an Act of the Ontario legis- lature relating to property and civil rights. That is a question for the exclusive judgment of the provincial legislature." It is, at all events, very certain that, in the exercise of the veto power, the Dominion govern- ment have not confined themselves within the limits suggested by Casault, J., in Guay v. Blan-P^r chet^: — "The veto can be pronounced by the Queen only when a law assented to by the Governor- General encroaches upon the prerogatives of the Sovereign or of the Imperial parliament ; and that allowed to the Governor-General can equally only as to proper be exercised when a provincial law makes the same federarveto encroachments, or trespasses upon the rights of the ''°'''^"^" federal parliament ... So long as the legislatures abide within the limits of what this section of the Act attributes to them," (sc, section 92 of the British North America Act), " their powers and their authority are absolute, and admit of neither superiors, nor intervention, nor censure."- 15Q.L.R. at p. 53,(1879)- ^Translated from the French. On the whole .subject of Dominion control in matters of legislation, see Todd's Pari. Gov. in Brit. Col., 2nd ed., p. 432, et se , • y^ 1 7-^ . . , ferring new the Courts m Canada, tvery year witnesses in the powers on legislature of England some change in the law. law. The statute containing it does not say in express terms that it shall not extend to the colonies, and is confined to Great Britain ; but surely, notwith- standing that omission, no one would for a moment suppose it in force here." And, therefore, he laid down that the 68th section of the Imperial Act, 7-8 Vict., chapter no, which provided a summary iio Gr. 422, at p. 428, (1864). 220 Legislative Power in Canada. Prop. 12 proceeding whereby a creditor of any company incorporated thereunder, who had obtained a judj?- ment or decree establishing his claim against the company, and failed to realize the same, might call on any shareholder or shareholders of the company, as representing the company and liable for its acts, by motion or otherwise, according to the practice of the various Courts, to pay his claim, did not apply to the Courts of this country so as to give them jurisdiction to entertain such an application by a creditor against shareholders, resident in this country, of a company incorporated under the above Imperial Act. SirG. c. To return to the subiect of the paramount Lewis' , . - , . , ,. "Govern- authority of the Imperial parliament, some pas- mem of De- r ■ . . „ . . pendencies " sages referring to it in Sir Cornewall Lewis' Essay on the Government of Dependencies are of interest. Thus, after speaking of the relation subsisting at the time he wrote, (sc, 1841), between the govern- ments of Hungary and Austria, he says^: — "Some writers have maintained that the English colonies in America and the West Indies are connected with England by a political relation similar to that just described. They have asserted that the English parliament is not supreme in any of these colonies ; and that a law can only be made therein by a body composed of the English king and the local legislature of the colony. According to this view, the colonial local legislature is not subordinate to, but co-ordinate with the English Houses of Parliament ; and the local legislature occupies in the colony the same position with respect to the Crown which the Houses of Parliament occupy with respect to it in England. It follows, of course, lEd. 1 89 1, by C. P. Lucas, at pp. 91 -2. Supremacy of the Imperial Parliament. 221 from this view that the Enghsh colonies in which Prop. 12 this system of government obtains are not Depend- encies of England." This view, however, Sir G. C. Affirms ° supremacy Lewis declares to be erroneous.^ And Mr. C. F.f . . Imperial Lucas, the able editor of the recent edition p^''''^"^^"'- of the Essay, similarly lays it down-: — -"The Imperial parliament, consisting of the Sover- eign, Lords, and Commons, is supreme over all the colonies, whether or not possessing respon- sible government, and can make laws upon any subject binding them or any of them. . , In practice as does, this paramount power of legislation by the Imperialc. p. Lu'cas. parliament is only exercised by Acts conferring constitutional powers, or dealing wuth a limited class of subjects of special Imperial or international concern, such as merchant shipping and copyright. It is, therefore, generally speaking, left to the Crown or to the local legislatures to make laws, as Parlia- ment can, when it thinks fit, make its views upon any colonial question known to the Crown by resolution." And so in a despatch of October i8th, 1875, to Lord 1 -^ /^ 1 T 1 /^ Carnarvon. the Governor-General,* Lord Carnarvon concurs with the representations in an Address to the ^See at pp. 155-6, where he refers to Lord Mansfield as stating the supremacy of Parliament in a British Dependency in his celebrated judgment in Campbell v. Hall, 20 How. St. Tr. 239, (1774) ; and in Campbell z/. two notes at the end of the Essay, he mentions Bryan Edward's ^^"• History of the West Indies, Vol. 2, pp. 420-30, 435-6, and Hali- burton's History and Statistical Account of Nova .Scotia, Vol. 2, p. 346, as places where the "erroneous" view is affirmed that "there are certain su!)jects in which the local government of an English Dependency is legally, as well as practically, supreme." ^App. I, at p. 331. ^Cf. the words of Professor Dicey, supra p. 203. To the above authorities may be added Tarring's Law of the Colonies, 2nd ed., at PP- 33-4 ; and Metherell v. The Medical Council of British Columbia, 2 B.C. (Cassidy) at p. 189, (1892). ''^Hodgins' Prov. Legisl., Vol. i, p. 12. 222 Legislative Power in Canada. Prop, 12 Queen, voted by the House of Commons of Canada, on the subject of the New Brunswick School Act of Imperial 187 1 , that :--" Legislation by the Imperial parliament, parliament ... , . does not now curtailmg the powers vested in a province by the with local British North America Act would be an undue affairs of , self-govern- interference with the provincial constitutions and ing colonies. with the terms on which the provinces consented to become members of the Dominion," And in Hodge v. The Queen, ^ Burton, J. A., says : — " The Imperial parliament has the power, no doubt, to pass laws such as those passed by the local legislatures and affecting all Her Majesty's subjects in the province, but it is equally clear that it is a power existing in name only, and one which it would never attempt to exercise, and there- fore the parliament of the province cannot in that sense be spoken of as exercising a delegated authority." To which may be added the words of So^p^^sir gii- John Thompson, in his report to the Governor- Thompson. General of August 3rd, 1889, in reference to the Dominion Copyright Act of 1889,- presently to be referred to more at large : — " It has never been claimed that the powers of the parliament of Canada are exclusive of the powers of the parlia- ment of Great Britain, and nobody can doubt that the parliament of Great Britain can at any time, (limitations of good faith and national honour not being considered), repeal or amend the British North America Act, or exercise, in relation to Canada, its legislative powers over the subjects therein mentioned. Subject to the same limitations, Her Majesty's government can, of course, disallow any Act of the parliament of Canada. It is respectfully 17 O.A.K. at p. 278, 3 Cart, at p. 182, (1882). 2Dom. Sess. Pap. 1890, Vol. 15, No. 35, p. 8. matters. Ante-Confederation Imperial Acts. 223 submitted that the Canadian parliament, except as Prop. 12 to the control which may be exercised by the Imperial parliament by a statute subsequent to the British North America Act, and except as to the power of disallowance, possesses unlimited power over all the subjects mentioned in the gist section, and that it is necessary that it should do so for the well-being of Canada, and for the enjoyment of self- government by its people." It will be observed that Sir J. Thompson, inniscon- speakmg of the control exercised by the Imperial Canadian J , . power to parliament, refers only to statutes passed by it repeal ante- . . . Confedera- subsequently to the British North America Act. tion 111- Imperial This is Significant of the contention pressed by him legislation .in Canadian in this report, that it is in the power of the Domin- locai ion parliament, and the provincial legislatures, respectively, to repeal Imperial statutes passed prior to the Confederation Act, and dealing with any of the subjects within the legislative powers granted to them by that Act. This contention Mr. Mr. T-. • 1 1 • , * < • 1 Bourinot. Bourmot has stated, in some recent Articles on Federal Government in Canada, was directly raised for the first time in the debates in the Dominion parliament on the Quebec Jesuits' Estates Act.^ Mr. Bourinot says : — " It must be here mentioned that the Imperial government refused its assent to the Canadian Copyright Act of 1872 because it was repugnant, in the opinion of the law officers of the Crown, to the provisions of an Imperial statute of 1842, 5-6 Vict., chapter 45, extending to the colony. - ^9 C. L.T. at pp. 193, 198, et seq. See, also, Todd's Pari. Gov. in Brit. Col., 2nd ed. at p. 502, ct seq., where the passage from Sir J. Thompson's speech, referred to by Mr. Bourinot, is quoted. ^Dom. Sess. Pap., 1875, No. 28. Lord Carnarvon, in his despatch to the Governor-General of June 15th, 1874, here referred to, says : — "The Imperial Copyright Act, 5-6 Vict., chapter 45, is, as you are aware, still in force in its integrity throughout the British dominions 224 Legislative Power in Canada. The deci- sions on which it is rested. Prop. 12 On the other hand, in the debate on the constitu- tionahty of the Quebec Jesuits Bill it was contended Thisconten-b.v the Minister of Justice that a provincial legis- tior. first •' J r C3 raised in laturc ' leffislatini? upon subjects placed under its debate on ft & r J f Jesuits' jurisdiction by the British North America Act Estates J J has the power to repeal an Imperial statute passed prior to the British North America Act affecting those subjects:' (Can. Hans., March 27th, 1889). In support of this position, he referred to three decisions of the Judicial Committee of the Privy Council. One of these, Harris v. Davies,'^ held that the legislature of New South Wales had power to repeal a statute of James I. with respect to costs in case of a verdict for slander. The second case was that of the Apollo Candle Co.,- in which the principles laid down in Regina v. Burah^ and in Hodge v. Reginam* were affirmed. The third and most important case as respects Canada was Riel v. Reginam,^ in which it was practically decided that the Canadian parliament had power to pass legislation, changing or repealing (if necessary) certain statutes passed for the regulation of the trial of offences in Rupert's Land before it .became a part of the Canadian domain. This contention is in so far as it prohibits the printing in any part of such dominions of a book in which there is subsisting copyright under that Act, without the assent of the owner of the copyright." And of the British North America Act, he says, its effect is "to enable the parliament of Canada to deal with colonial copyrights within the Dominion, but it is clear it was not contemplated to interfere with the rights secured to authors by the Imperial Act of 5-6 Vict., c. 45, or to override the provision of that Act." See, also, Dom. Sess. Pap., 1890, Vol. 15, No. 35, at p. 2 ; and infra p. 231, n. i. ^lo App. Cas. 279, (1885). -10 App. Cas. 282, 3 Cart. 432, (1885). 33 App. Cas. 889, 3 Cart. 409, (1878). •I9 App. Cas. 117, 3 Cart. 144, (1883). "'lo App. Cas. 675, 4 Cart, i, (1885). Imperial Copyright Legislation. 225 thus directly raised for the first time, but it is not Prop, 12 supported by the several authorities who have referred to the relations between the parent state 'i>e weight _ _ of authority and her Dependencies. The question is too impor- '^against it. tant to be treated summarily in this brief review, especially as it will come up formally in connection with the Copyright Act of i88g, in which the same conflict as in 1875 arises."^ On February loth, i8go, a Return was made torheLone- 1 -r^ • • 1 • r 1 1 spondence the Dommion parliament of the correspondence with • • 1 Ir"perial which had taken place between the Dommion and government over Imperial authorities with reference to this Cop\'right Canadian '^ . r . o Copyright Act of i88g, 52 Vict., c. 29, (D.).- It opens with a Act, 1889. memorial transmitted by the Colonial Office from the English Copyright Association and the Musical Copyright Association, claiming that the Act was ultra vires, and asking the Imperial authorities to withhold the royal assent. This memorial quotes the Opinion of Sir Roundell Palmer, and Sir Farrer opinion of Herschell, given to the Copyright Association in paime""'^^ reference to the Canadian Copyright Act of 1868. borne)!'^ In this Opinion these eminent lawyers state : — " It is abundantly clear that the provision in the Act of the Imperial legislature, 30-31 Vict., c. 3, by which the Dominion of Canada was constituted, declaring that the exclusive legislative authority of the Dominion "Exclusive" ' in section 91 parliament extends (amongst other things) to copy-of m.n.a. , Act rights, has reference only to the exclusive jurisdiction ^Mr. Bourinot cites against the contention in question, Ilearn's Government of England, Appendix 2, where, (at p. 597), it is stated that, shortly after its creation, the parliament of the Australian colony of Victoria, in an Act consolidating the law of evidence, assumed to repeal certain Imperial Acts containing provisions relating to the admission of evidence in any Court of law in ller Majesty's dominions, and afterwards on the Colonial Office objecting to the Act on this ground, though it was not disallowed, repealed it, thus admitting that it had exceeded its powers. ^Dom. Sess. Pap., 1890, Vol. 1=;, No. 35. There are subsef|uent returns, ih'd., 1892, Vol. 12, No. S"r, and 1894, No. 50. 226 Legislative Power in Canada. Prop. 12 in Canada of the Dominion legislature as distin- guished from the legislatures of the provinces of reference to "^^'^ich it is composed ;" and the}^ held that the provlncr/i Copyright Act of the Dominion parliament of 1868, legislatures ^j Vict., c. 54, gavc a copyrlght throughout Canada to works published in any part of the Dominion, but that it was not competent to, and did not, affect the protection against piracy afforded by the Imperial Act throughout the whole British dominions in respect of woriid., 1894, No. 50, aii'l />i/ra p. 231, n. i. Imperial Copyright Legislation. 229 of urging his views in personal conversation with Prop. 12 Lord Knutsford, Secretary of State for the Colonies, and in a report to the Governor-General of Decem- ber 15th, 1890, he says, referring to this conversa- tion :—" Lord Knutsford was unfavourable to the {^"^■'^^'^^f.^^.j.^ view which I had put forward, as to the powers ^•'<="- of the parliament of Canada, in my report to your Excellency dated August 3rd, 1889. This matter formed the ground of much argument between his lordship and myself, resulting in neither party changing his opinion. Lord Knutsford concluded the discussion by remarking that unless the con- stitutional question should be decided in our favour by the Judicial Committee of the Privy Council, he thought it would not be practicable to get the British parliament to pass an Act to set the colonies free as to legislation on the subject of copyright."^ Conceding, however, Sir J.Thompson's contention ^^1^""'°" to be unsound, the fact remains that it is difficult '"''"'"'■ to draw any essential distinction between holding the great self-governing colonies to the provisions of Imperial Acts extending to them, but passed prior to the grant of self-government, and the Imperial parliament now passing an Act of the same charac- ter embracing such colonies within its scope. The exercise of Imperial authority is as strong in the one case as in the other. On the other hand, there would appear to be nothing to show that in con- ferring self-governing powers upon the colonies, it ever was the intention of the Imperial Crown and Parliament to lessen or detract from the right ^It appears, from the statements made on February 7th, 1895, Iiy Sir Mackenzie Bowell, the Premier, and Sir C. H. Tapper, the Minister of Justice, to a deputation of members of the Copyright Association of Canada, that their government was fully resolved to adhere to the contention as to the powers of the Dominion parliament raised by Sir J. Thompson : (reported in The Daily Mai! aud Empire of February Stii, 1895). 230 Legislative Power in Canada. Prop. 12 of the latter to include such colonies within the scope of an Imperial Act extending to them, upon any subject, save only taxation for the purpose of raising a revenue, in respect to which the Declara- tory Act, 18 Geo. III., c. 12, is, of course, explicit. But the policy of such legislation, and how it would now be regarded by the inhabitants of the colonial possessions affected by it, is a different question.^ Whence In conclusion, a question may present itself to comes power , ., , ... "i-ii'i over such thc mmd as to how it is that a colonial legislature Imperial . Acts as the Can liave power to amend or repeal in respect to Statutes of ^ . ' , ,, Elizabeth? the colony an Imperial statute such as the well- known statutes of 27 Eliz., c. 4, and 13 Eliz., c. 5, the former of which, for example, purports to be amended, and the meaning of the latter declared by Ontario Acts. In Sir George Cornewall Lewis' Essay on the Government of Dependencies- a theory and explanation is advanced on the point as sirG.c. follows: — "In an English Dependency which has ex^pllnation. been colonized by Englishmen, the laws of the mother country are in force so far as they suit the condition of the colony; and an English Dependency acquired by treaty or conquest retains generally the laws which it possessed at the time of the acquisi- tion. But the laws just mentioned are not con- sidered as being among the laws of the supreme government, which the subordinate government ^See Dicey's Law of the Constitution, 3rd ed., p. 102, who re- marks: — "No Victorian Act would V^e valid that lej^alized the slave trade in the face of 5 (Jeo. IV., c. 113, which prohibits slave trading throughout the British dominions ; nor would Acts passed by the Victorian parliament be valid which repealed, or invalidated, several provisions of the Merchant Shipping Acts meant to apply to the colonies, or which deprived a discharge under the English Bankruptcy Act of the effect which in virtue of the Imperial statute it has as a release from debts contracted in any part whatever of the British dominions. No colonial legislature, in short, can override Imperial legislation which is intended to apply to the colonies." See, also, per Proudfoot, \'.C., supra pp. 213-4 ; also, see supra p. 212. 2Ed. 1891, at p. 201. I Supremacy of the Imperial Parliament. .2,^1 cannot alter; probably because they are considered Prcp. 12 to have been estal)lished directly by the express or tacit authority of the immediate government of the Dependency, although they were so established with the tacit consent of the supreme government. The laws of the supreme government, which, according to the English practice, the subordinate government is unable to alter, are the written laws of the supreme government which apply explicitly to the Dependency, and were, therefore, passed at the time or subsequent to its colonization or acquisition, or they are the written laws of the supreme government passed before or after its colonization or acquisition, which apply to the Dependency by a general description." ^ ^By way of supplement to what is above stated in reference to copyright laws (supra pp. 225-30), it may be added that in a Return to Parliament in 1894, (Dom. Sess. Pap., 1894, No. 50), is printed the report of the departmental representatives (of the colonial office, foreign office, board of trade, and parliamentary counsel's office) appointed to consider the Dominion Copyright Act of 1889, and this report states (at p. 7) : — " On January 5th, 1889, the law officers advised that, in their opinion, the then existing powers of colonial legislatures lo pass local laws on the subject of copyright in Ijooks were probably limited to enactments for registration and for the imposition of penalties with a view to the more effectual prevention of piracy, and to enactments within sub-section 4 of section 8 of the International Copyright Act, 1886, with reference to works first produced in a colony." And at p. 10, it is also stated : — "On the question of the competency of the Canadian parliament to pass the Act of 1889, Lord Knutsford took the opinion of the law officers of the Crown, who reported on December 31st, 1889, that in their opinion the powers of legislation conferred on the Dominion parliament liy the British North America Act, 1867, do not authorize that parliament to amend or repeal, so far as it relates to Canada, an Imperial Act conferring privileges within Canada, and that, in their opinion. Her Majesty should witiihold her assent to the Canadian Act of 1889. On the 25th of March, 1890, Lord Knutsford sent a despatch to Lord Stanley of Preston, the Governor-General of Canada, in which he expressed his regrets that he was unable to authorize the Governor-General to issue a proclamation to bring the Canadian Act of 1889 into force. Lord Knutsford referred to the advice of the law officers as to the competency of the Dominion parliament to pass the Act." It may be further added that in this despatch of March 29th, 1890, which the writer has seen, special reference is made to the decision in Smiles v. Belford, mentioned sttpra pp. 213-16. 232 Legislative Power in Canada. PROPOSITIONS 13, 14, AND 15. 13. The power of the Imperial Parlia- ment in the matter of the creation and distribution of colonial legislative powers is supreme, and no Colonial Secretary has ex officio a right by a despatch, or other- wise, either to add to, alter, or restrain any of the legislative powers conferred by the British North America Act, or indeed by any Act, or to authorize a subordinate legislature to do so. 14. The declarations of the Dominion Parliament are not, of course, conclusive upon the construction of the British North America Act ; but when the proper construction of the language used in that Act to define the distribution of legisla- tive powers is doubtful, the interpretation put upon it by the Dominion Parliament in its actual legislation may properly be considered. And the same applies a fortiori where the Provincial Legislatures have b)' their legislation shown agreement ill the views of the Dominion Parliament as to their respective powers. In like The Authority of the Colonial Office. 233 manner, the views acted upon by the ^^reat Prop. 13-5 public departments, as expressed in Im- perial despatches, or otherwise, carry weight in the absence of judicial decision. 15. It is clear that if the Dominion Parliament or a Provincial Legislature do not possess a legislative power, neither the exercise nor the continued exercise of a power not belonging to them can con- fer it, or make their leijislation bindino". These three Propositions are so closel}- connected that they may well be considered together. The first is derived from words of Henry, J., in Lenoir t'. Lenoir 7'. Ritchie,^ and may now seem, perhaps, to be too obvious to need enunciation.- However, in this same case, Sir William Young, Chief Justice of Nova Scotia, had expressed a different view. The question raised was as to the constitutionalit\' of certain Acts of the province of Nova Scotia, authorizing the Lieutenant-Governor to appoint Queen's Counsel, and to issue Letters Patent settling their precedence at the Bar, and Sir W. Young, in his judgment, refers to the correspondence which had sir w. taken place between the government of Canada presses views ^ \ c r r^ r t r^ ^ • opposed to and the Secretary or State for the Colonies as to Prop. 13. the power of Lieutenant-Governors to appoint Queen's Counsel,'^ and especially to the despatch of Lord Kimberley of February ist, 1872, already ^3 S.C.R. at p. 612, I Cart, at page 518, (1879). ^For an interesting account of the early constitutional relations between England and the colonies or plantations, see Pownall on the Colonies, (ed. 1768), at p. 46, cl seq., and see esp. at p. 64. ■'See Dom. vSess. Pap., 1873, No. 50. 1 234 Legislative Power in Canada. Prop. 13-5 mentioned,^ to the effect that a provincial legis- lature could confer such power on the Lieutenant- Governor, and could regulate the precedence in the provincial Courts of such Queen's Counsel and of those appointed by the Governor-General, respec- tively, and observes: — "It is urged that the 20th and 2ist chapters of the provincial Acts of 1874," (being the Acts in question), " are ultra vires, and the appointments under them invalid and of no effect. But the Crown, through its Secretary of State, having authorized such enactments, and the Acts having gone into operation, this contention is quite untenable."-^ Two other Nova Scotia judges concurred with this judgment of Sir W. Young, but, on appeal,^ Henry, Taschereau, Gwynne, J J., agreed m holding the Acts in question to be ultra vires, and Taschereau^ J., says* : — " An interpretation of the law in a despatch from Downing Street is not binding on Taschereau, ^j^jg ^^ ^^^ Court of justicc, and not given as such. . . . How could any officer, either here or in England, give to the provincial legislatures other powers than those they have by the Imperial Act, or authorize the Lieutenant-Governors, or any one else, to appoint Queen's Counsel in Her Majesty's name, or give to provincial legislatures the right to so authorize their Lieutenant-Governors? " Vci views Nevertheless, as pointed out in the last clause of im^perTa^i'' '" Proposition 14, the views acted upon by the great despatches weight. ' "^ Supra at p. 135. It stated the opinion of the law officers of the Crown on the subject. ^2 R. & C. 466-7, I Cart. 548-9. This despatch of Lord Kimberley is also referred to by Weldon and Allen, JJ., in Ganong v. Bayley, I P. & B. at pp. 327, 337, 2 Cart, at pp. 513, 525. And generally as to this matter of the appointment of Queen's Counsel, see supra pp. 88, 133-5. 33S.C.R. 575, I Cart. 488. ^3 .S.C.R. at p. 625, I Cart, at p. 532. But the Supreme Court judges support it Per The Authority of thk Colonial Office. 235 public departments, as expressed in Imperial de- prop. 13-5 spatches, or otherwise, carry weight ; and so in Mercer v. The Attorney-General for Ontario,^ Taschereau, J., himself, after citing from several such despatches bearing upon the question of how far Lieutenant-Governors can be said to represent Her Majesty, observes: — "I do not cite these And so per documents as conclusive evidence tor a Court orj. justice, but as worthy of consideration, and to show that the Imperial authorities and Her Majesty herself consider the Lieutenant-Governors as not generally representing the Sovereign." - And, in like manner, in Citizens' Insurance Com- pany V. Parsons,-^ Fournier, J., referring to the views he had been expressing on the matters there in question, said: — "The most important public And per departments, such as the department of Justice, and °'"^"'^'' the department of Finance, have, for some years past, adopted tWs view of the law, by seeing that the requirements cjf the several federal laws relating to insurance were strictly complied with. Such an interpretation could not prevail, no doubt, against a judicial decision ; but, in the absence of the latter, the interpretation given by the departments must have great weight." And so, speaking of the American constitution. The \t T-> li T • American Mr. J3ryce says . — It is an error to suppose constim that the judiciar}' is the only interpreter of the constitution, for a large field is left open to the other authorities of the government, whose views 15 S.C.R. at p. 673, 3 Cart, at p. 55, (1881). '^As to how far Lieutenant-Governors represent the Sovereign, see Proposition 7 and the notes thereto. ^4 S.C.R. at pp. 279-80, I Cart, at p. 309. ^American Commonwealth (two-volume edition), Vol. i, at p. 365 236 Legislative Power in Canada. Prop. 13-5 need not coincide, so that a dispute between those ^ . . authorities, although turnin? on the meaning of the Thejudi- ' b r. & ciary are not constitution, mav be incapable of beinsf settled by the only ' -^ ^ '^_ -^ J)"nheCon-^ any legal proceeding; " words which might be also stitution. applied to our own constitution. The first clause of Proposition 14 is from the judgment of the Privy Council in Citizens' Insurance Company v. Parsons,^ where their lordships refer in Proposition a marked way to certain Acts of the Dominion parliament in which the power of the provinces to incorporate insurance companies for carrying on business within the provinces is explicitly recog- Recognition nizcd, Doiutiug out that such recognition is directly of provincial ' r o ti powers by oDDosed to thc contentlou raised by counsel in that Dominion '^ t^ -^ _ parliament, case, that by No. II of section 92 of the British North America Act, the " incorporation of companies with provincial objects," is meant companies with " public " provincial objects, so as to exclude insurance and commercial companies.- And in the same case in the Supreme Court of Canada,"^ Per Fournier, J., says: — " We may fairly presume that Fournier, J. ^j^^ agreement of both legislatures to keep within the limit of their respective powers affords a strong 18 App. Cas. at p. Ii6, i Cart, at p. 281, (1881). As Burton, J. A., says in /« re Grand Junction R.W. Co. v. The County of Peter- borough, 6 O.A.R. at pp. 343-4:— "The misapprehension of the legislature as to the state of the laws on any particular subject would not, as was stated by Cockburn, C.J., in Earl of Shrewsbury v. Scott, 29 L.J.C.P. at p 53, have the eflfect of making that the ktw which the legislature had erroneously assumed it to be ; so, also, in Ex parte Lloyd, I Sim. N.S. at p. 250, Lord Cranworth said :—' The legis- lature are not interpreters of the law, and Courts of law are not bound by a mistake of the legislature as to what the existing law is.' " And so per Ritchie, C.J., .S.C, 8 S.C.R. at p. 98, (1883). -As to No. II of section 92, see, further, the notes to Proposition 55. 34 S.C.R. at pp. 27980, I Cart, at p. 309- The Argument from Actual Legislation. 237 presumption that they have only exercised such Prop. 13-5 powers as properly belonged to them."^ And special weight has been attributed by some judges to interpretations of the British North America Act traceable to those who took part in the framing of the Act, and were specially cognizant of all that concerned the federating of the Dominion. Thus, in Valin v. Langlois,- Ritchie, C.J., says that importance . "of the views to hold, as was contended in that case, that " no new of the Fathers of jurisdiction or mode of procedure can be imposed onConfedera- the provincial Courts by the Dominion parliament, in its legislation on subjects exclusively within its power, is to neutralize, if not to destroy, that power, and to paralyze the legislation of Parliament. The statutes of Parliament," he says, " from its first session to the last, show that such an idea has never been entertained by those who took the. most active part in the establishment of Confederation, and who had most to do with framing the British North America x\ct, the large majority of whom sat in the first Parliament.'' Similar is his reference to an Asexpre>^ -^ o Council Queen, ^ while the concluding words, as to the decisions. Dominion parliament, are those of Ritchie, C.J., in City of Fredericton v. The Queen.- In Hodge V. The Queen, the Privy Council illustrate what Hodge i-. ... The Queen. they thus lay down by holding that provmcial legislatures have full authority to delegate their powers.^ In the previous case of The Queen y. The Queen Burah* they had taken a similar view of the position of the Indian legislature, while in the subsequent one of Powell v. The Apollo Candle Co.,^ where the PoweiU/. ^ ' The Apollo question before them was as to the power of theC^ndieCo. legislature of New South Wales to delegate to the Executive authority to impose and levy duties, after referring to their two prior decisions just cited, they say : — " These two cases have put an end to a doctrine which appears at one time to have had some currency, that a colonial legislature is a delegate of the Imperial legislature. It is a legis- lature restricted in the area of its powers, but colonial within that area unrestricted, and not acting as an are not mere agent or a delegate." And, again, in Dobie 7;. The of the ,-r-> 1 ■ • -1 Imperial Temporalities Board,'' their lordships say that with- parliament. I9 App. Cas. at p. 132, 3 Cart, at p. 162, (18S3). See, also, The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] A.C. 437, where their lordships repeat the same language. See, also, per Boyd, C, in Jie McDowell and The Town of Palmerston, 22 O.R. at p. 565, (1892) ; and Proposition 19 and the notes thereto. 23 S.C.R. at p. 529, 2 Cart, at p. 29, (1880). ^As to this, see, also. Proposition 63 and the notes thereto. 43 App. Cas. 889, 3 Cart. 409, (1878). ^lo App. Cas. at p. 290, 3 Cart, at p. 442, (1885). For this case, when before the Supreme Court of New South Wales, see 4 N.S.W. 160, (1883), where it was held that the legislature could not delegate its powers. «7 App. Cas. at p. 146, i Cart, at p. 364, (1882). 246 Legislative Power in Canada. Kiel -'. The Queen, Prop. 17 in the limits prescribed to them by the British North America Act, provincial legislatures are Dobier. The supreme, and "there is really no practical limit to Temporali- , i 1 • j r 1 • 1 , ties Board, the authoHty oi a supreme legislature except the lack of executive power to enforce its enactments."' And quite in accord with the above dicta and decisions was the judgment of the Privy Council in Riel V. The Queen. ^ There it was contended that the Act, 43 Vict., c. 25, D., which provided for the administration of criminal justice in the North-West Territories, was ^tltra vires, that treason is in a peculiar manner an offence against the State, and that the Imperial parliament could not have in- tended that the Dominion parliament should legis- late upon it to the extent of altering the righ'ts under English statute of a man put upon his trial regarding it, and, further, that the Dominion Act was not necessary for peace, order, and good government. Their lordships, however, in the judg- ment point out that the British North America Act, 1871, 34-35 Vict., c. 28, s. 4, enacted that the parliament of Canada might from time to time make provision for the administration, peace, order, and good government of any territory not for the time being included in any province, and add :— " It appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order, and good government cannot, as matters of law, be provisions for the peace, order, and good govern- ment in the territories to which the statute relates ; and, further, that if a Court of law should come to the conclusion that a particular enactment was not calculated as a matter of fact and policy to secure " Peace, order, and good gov- ernment," ^10 App. Cas. 675, 4 Cart, i, (18S5). Supremacy of Canadian Legislatures, 247 peace, order, and good government, that they would Prop. 17 be entitled to regard any statute directed to these objects, but which a Court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion parliament to enact. Their lordships are of the opinion that there is not the least colour for such a contention. The words Are words authorizing of the statute are apt to authorize the utmost the utmost •"■ _ discretion of discretion of enactment for the attainment of the enactment. objects pointed to. They are words under which the widest departure from criminal procedure, as it is known and practised in this country, has been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mis- chievous consequences."^ Now, this supremacy of the legislature under our constitution is one of the points in which, in the words of the preamble of the British North America Canada ... has a Act, it IS a "constitution similar in principle to constitution • » . f similar in that of the United Kingdom."" For as Professor principle to that of the . United Kingdom. ^An(l thus in AV Goodhue, 19 Gr. at p. 386, i Cart, at p 569, (1872), Draper, C.J., aptly quotes the worcls of Mr. Justice Willes in Phillips V. Eyre, L.R. 6 Q.B. at p. 20: — "A confirmed Act of the local Phillips z/. legislature lawfully constituted, whether in a settled or conquered Eyre, colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial parliament." See, also, per Gwynne, J., in City of Fredericton v. The (^ueen, 3 S.C.R. at p. 561, 2 Cart, at p. 54, (1880), and in The Queen v. Robertson, 6 S.C.R. at p. 65, 2 Cart, at p. 1 19, (1882) ; per Ritchie, C.J., in Lynch v. The Canada North-West Land Co., 19 SCR. at p. 212, (1891); per Boyd, C, in Reg. v. Brierly, 14 O.R. at pp. 532-3, (1887); per Spragge, C.J., in Reg. v. Ilodge, 7 O.A.R. at p. 251, 3 Cart, at p. 167, (1882); per Burton, J. A., S.C, 7 O.A.R. at p. 274, 3 Cart, at p. 179; per Begbie, C.J., in Attorney-General of British Columbia V. City of Victoria, 2 B.C. (Hunter) at p. 5, (1890). ■^See per Draper, C.J., in Re Goodhue, 19 Gr. at p. 382, i Cart, at p. 566, (1872). 248 Legislative Power in Canada. Prop. 17 Dicey says in his Law of the Constitution : — "The Th^ sovereignty of Parliament is (from a legal point of sovereignt> ^-^^^^^^ ^^^ dominant characteristic of our," {sc, English), "political institutions"^; again, he calls it "the very keystone of the law of the constitu- tion"-; and he speaks of it as "this marked peculiarity in our institutions."'^ The sovereignty of colonial legislatures, however, is necessarily exercisible only within prescribed limits. As Profes- Professor sor Diccy expresses it*: — "Colonial legislatures are Dicey. .,.,. , . riT • ^ W'lthm tneir own sphere copies 01 the Imperial parliament. They are within their own sphere sovereign bodies ; but their freedom of action is controlled by their subordination to the parliament of the United Kingdom " ; and in Attorney-General of Canada v. Attorney-General of Ontario,^ Boyd,C., thus defines the position of Canadian legislatures PerBoyd.c. in this matter: — "In relation to the supreme authority of the British parliament, Canada, in its composite character, forms a complete and separate subordinate government, possessing a 'central legis- lature ' for the whole Dominion, and 'local legisla- tures ' for the several members of the colonial Union. These various legislatures hold, in sub- division among them, powers applicable to all classes of subjects and to every purpose of government required for the entire territory and its several provincial parts ; but as between the Dominion and the provinces each is an incomplete or limited government, having exclusive jurisdiction i3rcl ed., at p. 37. ^3zd., at p. 67. ^/6iJ., at p. 82. ^Ibid., at p. 105. "20 O.R. at p. 245, {1S90). Legislative Power in the United States. 249 over certain enumerated classes of subjects, defined ppop, 17 in general terms by the Imperial Constitutional Act. Barring, however, this delimitation of area, the parliament of the Dominion and legislatures of the provinces enjoy each in its own sphere and territory, delegations of sovereign power sufficient for all purposes of effective self-government." And so, even in the United States, although the The United • 1 • 1 1 r /^ States State legislatures are not as independent of Congress legislatures. as our local legislatures are of the Dominion parlia- ment,^ and although it is there held that the State legislatures possess only a delegated power, and that, as delegata potestas non delegahir, they cannot delegate their powers to any other person or body,'- it is nevertheless said by Redfield, Ch.J., in Thorpe V. Rutland and Burlington R.W. Co.'^: — " It has never been questioned, so far as I know, that the American legislatures have the same unlimited power in regard to legislation which resides in the British parliament, except where they are restrained by written constitutions. That must be conceded, I think, to be a fundamental principle in the political organization of the American States " ; upon which Mr. Bryce thus comments in his Mr. Bryce. American Commonwealth^:— " It must not, how- ever, be supposed from these dicta that even if the States were independent commonwealths, the Federal government having disappeared, their legislatures would enjoy anything approaching the ^See as to this the notes to Proposition 6i. ■^See Bryce's Amer. Comm. (two-volume edition), Vol. i, p. 451. See also the notes to Proposition 63. 827 Verm, at p. 142 ; quoted by Cooley on Constitutional Limita- tions, 6th ed., at pp. 105-6. *Vol. I, at p. 429, (two-volume edition). 250 Legislative Power in Canada. Prop. 17 omnipotence of the British parhament, 'whose The power and jurisdiction' is, says Sir Edward Coke, omnipotence , i -i 1 1 • 1 of the so transcendent and absolute that it cannot be British , , . , . • 1 • parliament, conhned, cithcr tor persons or causes, within any bounds.' . . Parhament being absolutely sovereign can command, or extinguish and swallow up, the executive and the judiciary, appropriating to itself their functions. But in America a legislature is a legislature, and nothing more. The same instrument American which crcatcs it, creates also the executive governor legislatures j , . , 1 i 1 • 1 restricted by and the iudgcs. Thev hold bv a title as good as its •he r 1 • "^ " • • fundamental own. If the legislature should pass a law depriving law. _ ' _ r o the governor of an executive function conferred by the constitution, that law would be void. If the legislature attempted to interfere with the juris- diction of the Courts, their action would be even more palpably illegal and ineffectual."^ So, also, The Canadian parliament and local legislatures are the Canadian havc morc Unfettered powers, as has been shown in legislatures. . • • o 1 t the notes to Propositions o and g, but neither can override the provisions of the British North America Act, and this is illustrated by a passage in the recent judgment of the Privy Council in the Manitoba school case, Brophy v. The Attorney- General of Manitoba." The question there was whether, certain rights and privileges in relation to The Privy cducation acquired by the Roman Catholic minority Council in • -mt -^ 1 1 • • 1 * 1 the in Manitoba under provincial Acts subsequent to Manitoba ,^-. ,. .ni school case, the Uniou havuig been ariected by a still later Act ^See sj(/>ra pp. 124-6. In Murray v. Hoboken Co., 18 How. at p. 284, the Court say: — "We do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty ; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination.'' .See, also, Fong Yue Ting v. United .States, 149 U.S. at p. 715. '•^11 R. 35, at pp. 49-50; II Times L.R. at pp. 200-1, (1895). The British North America Act Controls. 251 repealing the former Acts, an appeal lay to the Prop. 17 Governor-General under either sub-section 3 of section 93 of the British North America Act, 1867, or under sub-section 2 of section 22 of the Mani- toba Act, confirmed as the latter had been by the British North America Act, 1871. Their lordships say : — " The Chief Justice of the Supreme Court was much pressed by the consideration that there was an inherent right in a legislature to repeal its own legislative Acts, and that ' every presumption must be made in favour of the constitutional right of a legislative body to repeal the laws which it has itself enacted.'^. . Their lordships are unable to concur in the view that there is any presumption which ought to influence the mind one way or the other. It must be remembered- that the provincial legislature is not in all respects supreme within the province. Its legislative power is strictly limited. It can deal only with matters declared to be within its cognizance by the British North America Act, as varied by the Manitoba Act. . . It may be said to be anomalous that such a restriction as that in question should be imposed on the free action of a legislature, but is it more anomalous than to grant to a minority who are aggrieved by legislation an appeal from the legislature to the executive authority? And yet that right is expressly and beyond all controversy conferred. If, upon the natural construction of the language used, it should appear that an appeal was permitted in circumstances involving a fetter upon the power of a provincial legislature to repeal its own enactments, their lordships see no justification for a leaning against that contention, nor do they think that it makes any difference whether the fetter is imposed by express words or by necessary implication." ^See 22 S.C. R. at pp. 654-6. 252 Legislative Power in Canada. Prop. 17 But provincial legislatures having, in the words of the leading Proposition, authority as plenary and as ample within the limits prescribed by section 92 of the British North America Act as the Imperial parliament in the plenitude of its powers possessed and could bestow, and presided over, as they are, by the representative of the Crown, ^ it would seem to be necessarily incorrect to say as Gwynne, J., says in Citizens Insurance Per Co. V. Parsons- that: — "The provinces of the Dominion of Canada, by the wise precaution of the founders of our constitution, are not invested Provinces witli any attribute of national sovereignty. The not invested ^ ^ . . , . , ^ , . with any tramcrs 01 our constitution, having before their eyes attributes of, . ^ . . ^ national the experience 01 the United States 01 America, sovereignty. , i i-, ■ • i -«.t i a have taken care that the British North America Act should leave no doubt upon the subject. Within the Dominion the right of exercise of national sovereignty is vested solely in Her Majest)-, the supreme sovereign Head of the State, and in the parliament of which Her Majesty is an integral part ; these powers are, within this Dominion, the sole administrators and guardians of the comity of nations." In fact, in this very case, the judgment of the Privy Council," as well as of the majority of the Supreme Court, was that provincial legislatures have power to pass Acts controlling and regulating the manner in which a trade or business shall be sedquare. Carried on in the province, legislation which, ac- cording to Gwynne, J., himself, "can only be vindicated upon the principles governing what is called the comity of nations, the administration of ^See Proposition 7. 24 S.C.R. at pp. 346-7, I Cart, at pp. 348-9, (1S80). 37 App. Cas. q6, see esp. at p. 113, i Cart. 265, see esp. at p. 27S, {1881J. Omnipotent within its Sphere. 253 which belongs exclusively to supreme national sov- Prop. 17 ereignty "1 And, with deference, it is submitted that in view of the authorities upon which the leading Proposi- tion rests, it is scarcely correct to speak of either the Dominion parliament or the provincial legis- latures as not possessing " legal omnipotence over the subject-matters" committed to them, as Hag- arty, C.J., does of the latter in Leprohon v. The City of Ottawa.- Yet they are, of course, subject to the paramount authority of the Imperial parlia- ment,'^ and to the veto power in the one case ofHowfar • 1 ■ • 1 r 1 provincial the Imperial Executive, and in the other of the legislatures can be said Dominion Executive.* And so in respect totoi^? omnipotent provincial legislatures, Ramsay, J., says in North within their , , ^ . ~ -' ^ Q^,„ sphere. British and Mercantile Insurance Company v. Lambe'"': — "It is admitted that the local legisla- tures are as omnipotent within the scope of their legislative powers as the Dominion parliament is within its powers. It does not, however, follow from this that the federal organization has no supremacy over the local. Such a pretension would ^Ritchie, C.J., says, S.C, 4 S.C.K. at p. 238, i Cart, at pp. 288-9: — " I may affirm with confidence that the British North America Act recognizes in the Dominion constitution and in the provincial constitu- tions a legislative sovereignty, if that is a proper expression to use, as independent and exclusive in the one as in the other over the matters respectively confided to them." Cf. per Ritchie, C.J., in Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 643, 3 Cart, at p. 33, (1881) ; per Dorion, C.J., in Colonial Building and Investment Asso- ciation V. Attorney-Cieneral of Quebec, 27 L.C.J, at p. 301, 3 Cart, at p. 139, (1883). And as to Gwynne, J.'s view of the subordinate position of provincial governments and legislatures, see Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 711, 3 Cart, at pp. 83-4. Also, supra pp. 105-7, and the notes to Proposition 61. '^2 O.A.R. at p. 532, I Cart, at p. 603, (1878). •.'See Proposition 12. *See Proposition 10 and the notes thereto, "M.L.R. I Q.B. at p. 182, 4 Cart, at p. 74, (18S5). 254 Legislative Power in Canada. Prop. 17 be utterly untenable, for the federal power alone has the power to nominate one of the branches of the local legislature, it can disallow its Acts, it can turn local works into federal works, and it can create new provinces. The true doctrine seems to me to be this, that the federal power is not generally supreme relatively to the local power. Its supremacy Relation of consists in its power to influence indirectly the the federal r i i i • power action of the local power, or to paralvze it to some to them. . . "^ extent, not in the power to destroy it."^ It is matter of surprise, also, that in Regina t'.Wing Chong,- Crease, J., though he cites the passage from the judgment of the Privy Council in Hodge v. The Queen, ^ upon which the leading Proposition is mainly based, nevertheless intimates his view that provincial legislatures cannot impose unequal tax- Powerto ation, quoting with approval a passage from Kent's impose . , .. unequal Commentaries on American Law,* where it is said : taxation. — " The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of American propcrty, SO that no one class of individuals and legislatures ^ i -' cannot. no onc spccics of property may be unequally or unduly assessed."'' Yet in the subsequent case of Regina v. The Gold Commissioners of Victoria District,** the Divisional Court in British Columbia, consisting of four judges, held unanimously that ^See Proposition lo and the notes thereto. 22 B.C. (Irving) at p. i6i, (1885). ^9 App. Cas. at p. 132, 3 Cart, at p. 162. *8th ed., Vol. 2, p. 38S ; 12th ed., Vol. 2, p. 331. •''Also quoted with approval by Gray, J., in Tai Sing v. Maguire, I B.C. (Irving) at pp. 108-9, (1878). In a despatch from Ottawa of April 8th, 1885, the Secretary of State says of some British Columbia Acts relating to Chinese: — "A question may arise as to whether or not the Acts, applying only to a portion and not to the whole of the population of the province, are constitutional:" B.C. Sess. Pap., 1885, at p. 464. 62 B.C. (Irving) 260, (1886). Control by Imperial Treaty. 255 section 14 of The Chinese Regulation Act, 1884, Prop. 17 declaring that "No free miner's certificate shall be British , ^-^1 ■ J- Columbia issued to any Chinese except upon payment 01 judges houi ■ 1 • rr i • 1 i likewise of $15, was an attempt to impose a dinerential tax our ,. , - , -r^i provincial on the Chinese, and, therefore, ttltra vires 01 the legislatures. provincial legislature. And in support they refer ^vrfv. to an instance mentioned in Todd's Parliamentary Government in the British Colonies,^ where the royal assent was refused to an Act of the Queens- land legislature imposing a differential tax on Chinese miners, and say : — " If this Act was wrong Mr. xodd. on the part of Queensland, it would, moreover, be unconstitutional if passed by our local legislature." But a reference to Mr. Todd's account of the matter Taxatian of Chinese shows that it was on Imperial grounds, and because ''"■"'grants, the Act involved a breach of international comity that the royal assent was refused. - Again, in view of the leading Proposition, it is difficult to understand how an Act of the Dominion parliament or of a provincial legislature can be void and unconstitutional merely because in conflict with an Imperial treaty, unless, of course, such treaty has been confirmed by Imperial statute. Such ancoioniai Act would no doubt call for the exercise of the veto conflicting power ; but, if within their spheres, these legisla- imperial . , ,. treaties. tures are as sovereign as the Imperial parliament itself, it may well be asked how can such a conflict render their Act void ?■' ^ist ed. at pp. 154-5. '■^See, also, Proposition II and the notes thereto; also Propositions 19, 21, and 61, and the notes thereto. ^That the provisions of an Imperial treaty cannot override those of an Imperial Act is beyond dispute : /;/ ;v California Fig Syru]) Company's Trade Mark, 40 Ch.D. 620, 627-8, (1885) ; I/t re Carter Medicine Company's Trade Mark, W.iS". 1892, p. 106. And even in the United States, in the recent Chinese exclusion case, Fong Yue Ting V. United States, 149 U.S. 698, the Supreme Court held that the 256 Legislative Power in Canada. Prop. 17 However, in Regina v. Wing Chong,^ Crease, J., Reg. V. referring to the treaties between Great Britain and chong- China, says : — " These obhgations are binding here and in other parts of the Dominion under section 132 of the British North America Act, and no prov- Per ince or the Dominion itself can lawfully pass laws Crease, J. . . . . . . interfering with that right without the previous revision of the treaties of the high contracting parties to them for that purpose. Treaties with foreign Treaties are nations are above all ordinary municipal law, for above all . . . - . , mere obvious uitemational reasons, for without such a municipal ... ... law. provision there can be no permanent security, which is the life of all commercial intercourse . . . Such treaties are the especial care of the Dominion."- And on this same ground amongst others in the previous British Columbia case of Tai Sing v. Maguire,^ Gray, J., held the provincial Chinese Tax Act, 1878, So per to heultra vires,' saying : — " Treaties are regarded as Tai Sing I/, the highest and most binding of laws, be\'ond any Maguire. . . i-i ri • merely internal regulation which one of the parties provisions of an Act of Congress, passed in the exercise of its constitu- tional authority, must, if clear and expHcit, be upheld by the Courts, even in contravention of stipulations in an earlier treaty, although, as pointed out in the previous case of Chae Chan Ping v. United States, 130 U.S. 581, "By the constitution of the United States laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other." However, it is there said that "the last expression of the sovereign will must control." As to Canada, no one, of course, will dispute the dictum of Richards, C.J., in Keg. v. Schram, 14 C.P. at p. 322, (1864) : — "As long as it is admitted that the Home government, by whom the supreme power of the Empire is exercised, is the proper channel through which all our relations and intercourse with foreign governments are to be carried on, the power to pass laws to bind the whole nation so far as regards those relations (and, as necessarily arising out of them, the peace of the Empire) must rest with the Imperial parliament." ■^2 B.C. (Irving) at pp. 161-2, (1SS5). ^See section 132 of the British North America Act. ^i B.C. (Irving) at p. 109, (1878). See this case referred to in Todd's Pari. Gov. in Brit. Col., 2nd ed., at p. 194. Control by Imperial Treaty. 257 thereto may make for the government of its own Prop. 17 people, because, on the subjects to which they refer, they bind the people of both Powers, however dis- similar in other respects may be their institutions, customs, or laws ; " and he cites the American case of Ware v. Hylton as illustrating this principle. He further, (at p. no), implies that such a provincial Act would be ultra vires, "as coming in contact with the Dominion authority," citing section 132 of the British North America Act, by which it is specially b.n.a. Act,, enacted, " that the parliament and government of ' '^' Canada shall have all powers necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries." - It may be observed, in passing, that the Imperial imperial government has not held that the relations of Great ch'?na, 13 Dall. at p. 199. ^See Proposition 6i and the notes thereto. It would no doubt help what has been termed "the discipline of the Empire," if it were finally established that any colonial law which conflicts with an Imperial treaty is, ?fso/acio, void, and ttUra vires, for that reason. See Dilke's Prob- lems of Greater Britain, at p. 531. But with great respect to the views of the British Columbia judges above referred to, it is submitted that under our constitution, if this is so, it can only be on the ground that the fact of a colonial Act conflicting with an Imperial treaty is sufficient to show that it is extra-territorial in its eftect, and does not concern merely local matters : see the notes to Proposition 26, infra. There does not, however, seem to be authority for this position. The matter, however, may be unimportant, for the Empire is held together, not by legal technicalities, but by the good sense and moderation, and national feeling of British people. How far the Crown by its prerogative can bind its subjects by treaty is discussed in the argument in the recent case of Walker v. Baird, [1892] A.C. 491, and many authorities are cited, but their lordships found it unnecessary to decide the point. See, also, Dicey's Law of the Constitution, 3rd ed., at p. 387. At p. 112 of the same work. Professor Dicey, while stating that Imperial treaties legally bind the colonies, adds :— " It should, however, be observed that the legislature of a self governing colony is free to determine whether or not to pass laws necessary for giving effect to a treaty entered into between the Imperial government and a foreign power ; " as to which, see section 132 of the British North America Act, above quoted. 17 \\ 258 Legislative Power in Canada. Prop. 17 And colonial Acts restricting Chinese immi- gration. Sir A. Campbell. Such Acts an interference with " the regulation of trade and commerce." Britain with China require them to interfere with AustraHan legislation restricting the immigration or introduction of Chinese, on international grounds, and it has been treated as a matter of internal administration with which a responsible colonial government is competent to deal. And so in a despatch of May 31st, 1884, from Lord Derby to the Governor-General of Canada, the latter was informed that when the Dominion Ministers advised with regard to a similar Act passed in British Columbia, he might understand that the question was not held to involve Imperial interests, and that he should deal with it as a Canadian question only. His lordship added : — " I do not understand that your lordship invites me to state whether Chinese immi- gration into British Columbia is placed, by the British North America Act of 1867, under the control of the Dominion or of the provincial legis- latures, but I may say that this is a point on which I am not prepared to give an opinion."^ But in 1885 the Minister of Justice, Sir Alexander Camp- bell, recommended the disallowance of the British Columbia Act, 48 Vict., c. 13, intituled "An Act to prevent the immigration of Chinese," as being an interference with the power of Parliament to regu- late trade and commerce, and as a case in which the ordinary tribunals could afford no adequate remedy for or protection against the injuries which would result from allowing the Act to go into operation, and he cited American authorities to show that the Courts of the United States took a similar view of the corresponding section of the Constitution of the United States, whereby Congress is given power to resrulate commerce with foreign nations and among ^Hodgins' Prov. Legisl., Vol. i, at p. 833. See, also, Brit. Col. Sess. Pap., 1885, p. 464. Chinese Exclusion Acts. 259 the several States and with the Indian tribes. The Prop. 17 Act was disallowed accordingly.^ See, however, the discussion as to the meaning of "the regulation of trade and commerce " in the notes to Proposition 49. iHodgins' Prov. Legisl., Vol. 2, pp. 285-7. See, also, ibid., at pp. 288-9. On the general subject of sucli legislation, see Todd's Pari. Gov. in Brit. Col., 2nd ed., at p. 187, et seq.; and on the general subject of Imperial dominion exercisible over self-governing colonies through the operation of treaties, see ibid., chap. 8, p. 247, et seq. hi 26o Legislative Power in Canada. PROPOSITION 18. 18. It is not to be presumed that the Dominion Parliament has exceeded its powers, unless upon grounds really of a serious character ; and so, likewise, in respect to Provincial statutes every pos- sible presumption must be made in favour of their validity.' Estoppel against impugning validity of statute. iJt would seem that one may, under certain circumstances, be estopped from setting up the unconstitutionality of a statute. Thus in Ross V. Guilbault, 4 L.N. 415, (1881), in an action by a liquidator for calls, under a special Dominion Act, placing a certain company in liquidation, the defendant pleaded that the Act incorporating the company, as well as that placing it in liquidation, were Jiltra vires, and Mackay, J., appears to have held that a shareholder could not urge such a plea against his liability for the amount unpaid on his stock. See, however, Ross v. The Canada Agricultural Insurance Co., 5 L.N. 23, (18S2). Again, in Forsyth v. Bury, 15 S.C.R. 543, (1S88), where one had allowed judgment for a sale of certain lands by the Court, without raising any objection to the plaintiff's title to a share in the lands, three of the judges of the Supreme Court of Canada, (Strong, Fournier, and Taschereau, JJ.), held that she was estopped from urging, before the final distribution of the proceeds of the sale, that the Act incorporating the Anticosti Company, which was the plaintiff's vendor, was ztltra vires of the Dominion par- liament, as being a provincial company for provincial objects. Ritchie, C.J., did not discuss the matter, but evidently held that for some reason there was no such estoppel; while Gwynne, J., also held this, but rested it upon the ground that the facts from which the estoppel was supposed to arise had not been properly pleaded. Lastly, in the Quebec case of McCaffrey v. Ball, 34 L.C.J. 91, (1889), it was held in an action for charges for the use of booms constructed in a navigable river under the authority of a provincial Act, according to the tariff provided by the Act, that the defendant, having voluntarily used the booms for the preservation of his logs, could not plead the unconstitutionality of the Act as a defence to the plaintiff's action. In Belanger v. Caron, 5 Q.L.R. at p. 25, (1879), Stuart, J., says : — " No Court should, or can, declare an Act void except in a case where its unconstitutionality is pleaded in due form by some one having an interest in questioning the validity of it." Cf. Cooley on Constitutional Limitations, 5th ed., at p. 197. See, also, infra p. 267, n. 3. Presumption in Favour of Validity of Acts. 261 The above Proposition, so far as it relates to legisla- Prop, is tion by the Dominion parhament, is taken from the The PdvjT judgment of the Privy Council in Valin v. Langlois,^ °""'^' " delivered by Lord Selborne, where the question Vaiin 7-. before the Board was whether they should grant leave to appeal from the decision of the Supreme Court of Canada, upholding the validity of the Dominion Controverted Elections Act, 1874. And so as to provincial Acts, in Severn v. The Queen, - Strong, J., says: — "It is, I consider, our duty to Per make every possible presumption in favour of such legislative acts, and to endeavour to discover a construction of the British North America Act which will enable us to attribute an impeached statute to a due exercise of constitutional authority, before taking upon ourselves to declare that, in Presumption . • , , 1 • • 1 1 • 1 i'l favour of assummg to pass it, the provincial legislature provincial usurped powers which did not legally belong to it ; '''''""'^^" and in doing this we are to bear in mind 'that it does not belong to Courts of justice to interpolate constitutional restrictions ; their duty being to apply the law, not to make it.' "•" And in the United States the rule of law is similar, similar Mr. Bryce says :— " It is a well-established rule rthr^''"" that the judges will always lean in favour of thes!'a«^ validity of a legislative act ; that if there be a reasonable doubt as to the constitutionality of a 15 App. Cas. at p. Ii8, i Cart, at p. i6i, (1879). •^2 S.C.R. at p. 103, I Cart, at p. 447, (1878). ^The source of this last citation is not given. For other references in respect to the presumption in favour of the constitutionality of statutes, see S.C, 2 S.C.R. at pp. 107-8, i Cart, at p. 451; per tourmer, J., in Lenoir v. Ritchie, 3 S.C.R. at p. 606, 1 Cart, at pp. 51 1-2, (1879); per Burton, J. A., in Hodge 7-. The Queen, 7 O.A.R. at p. 272, 3 Cart, at p. 177, (1882), in Reg. v. Wason, 17 O.A.R. at PP- 235-6, 4 Cart, at pp. 593-4, (18S9), and in Edgar v. The Central i3ank, 15 O.A.R. at p. 202, 4 Cart, at p. 541, (1888) ; per Fisher, J., in The Queen v. City of Fredericton, 3 P. & B. at p. 16S, (1879). 262 Legislative Power in Canada. Marshall, CJ. Prop. 18 statute, they will resolve that doubt in favour of the statute ; that where the legislature has been left to a discretion, they will assume the discretion to have been wisely exercised ; that where the construction of a statute is doubtful, they will adopt such con- struction as will harmonize with the constitution, and enable it to take effect."^ And as to the attitude in which Courts should approach the consideration of the validity of sta- tutes, Torrance,}., in Angers ?;. The Queen Insurance Co.,- quotes and adopts the words of Chief Justice Marshall in McCulloch v. State of Maryland ^i— "In the case now to be determined, the defendant, a sovereign State, denies the obligation of and contests the validity of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an Act which has been passed b}' the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered ; the conflicting powers of the govern- ament of the Union and of its members, as marked in the constitution, are to be discussed ; and an opinion given which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance." And similarly in Gibson v. Macdonald,* O'Connor, J., refers to a passage in Mr. Justice Cooley's treatise on Constitutional Limitations as to judges shrinking from declaring Proper attitude of the Courts when validity of statute is disputed. ^American Commonwealth, (two-volume edition), Vol. i, at p. 430. See per Swayne, J., United States v. Rhodes, i Abb. U.S.R. at p. 49, cited Bryce, z/>., at p. 387. 221 L.C.J, at p. 79, I Cart, at p. 153, (1877). 34 Wheat, at p. 399. 47 O.R. at p. 415, 3 Cart, at p. 324, (18S5). Presumption in Favour of Validity of Acts. 263 legislative enactments void, and as to its being a Prop, is delicate task to overrule the decision of the legis- lative department, and, perhaps somewhat quaintly, says that this applies much more forcibly to a like proceeding in this country, "where the expression ' constitutionality of a statute ' is the result of a new departure and the creation of a new practice previously unknown to Canadian and British affairs, and to parliamentary and judicial practice, than to the legislative and judicial system of the United Novelty States, where that institution was made a funda-jectin ,..,_,. . . , , British mental prmciple or their constitution, as a result orcouns. popular volition. There, it is a fundamental prin- ciple of a new constitution, resulting immediately from the will of the people in a state of revolution. Here, it is merely a new thing engrafted on an old constitution, as a mere outgrowth of circumstances resulting from the necessities of local position in this new world, and of colonial dependence. And for the same reasons the application of the institution is also more difficult and irksome here than it is in the United States." ^ ^It would seem that in the Australian colony of Victoria some judges hold that they must obey the legislature where its meaning is certain : Banks v. Orrell, 4 V.L.R., L., 219, (187S) ; per Higinbotham, Australian J., in Reg. v. Pearson, 6 V.L.R., L., at p. 333, (1880) ; per Stawell, decisions. C.J., S.C., also at p. 333, who says: — "Had the legislature given power to make regulations applicable outside the port, and even beyond the territory of this colony, the Court would feel bound to give effect to them" ; per Higinbotham, J., in Reg. v. Call, Ex parte Murphy, 7 V.L.R., L., 113, at p. 123,(1881), who says: — "Laws are the decrees of the High Court of Parliament, and if the Supreme Court should allow itself to judge of the competence of Parliament to enact this or any other law," (the law in question being one of the colonial legislature), " the inferior would be sitting as a Court of appeal from the superior Court, and, by refusing to administer, would, in effect, unmake or repeal the law." See, however, per Stawell, C.J., in In re Victoria Steam Navigation Board, 7 V. L. R., L. , at p. 261, (1881), and per Higinbotham, J., S.C, at pp. 255-6. But it is submitted that such a view is properly met by the words of counsel, arguendo, in Reg. v. Call, Ex parte Murphy, above cited : — " The powers of our local legis- lature are circumscribed within the limits of the Constitution Act, and cannot be exercised beyond the jurisdiction so conferred ; it is not a sovereign legislature like that of Great Britain." 264 Legislative Power in Canada. City of Frederic- ton V. The Queen. Prop. 18 A striking example of the presumption in favour of the validity of statutes, and of the way in which Examples of the Court will strive so to construe them as to the pre- . sumption render it possible to uphold them, is, as pointed out being given effect to. by Mr. Edward Blake in his argument in Regina v. Wason,^ to be found in the course taken by Ritchie, C.J., in City of Fredericton v. The Queen": — "Where dealing with an Act, which was called ' The Temperance Act,' and whose preamble recited the desirability of promoting temperance throughout the Dominion, he rejected both title and preamble as indicative of the legislative object said to be ultra vires ; pointing out that if the enacting clauses were, as he held them to be, within the legislative power of Parliament under its authority to regulate trade and commerce, the Act must be held valid, title and preamble notwithstanding."-^ But even this does not seem so strong a case as that which is to be found in Hamilton Powder Co. V. Lambe.* There, it appears, the Quebec legis- lature passed an Act requiring those who stored or kept gunpowder in any building to take out a license under a penalty. Afterwards, apparently for the very purpose of setting at rest doubts which had arisen as to the constitutionality of this provision, they passed an Act, (46 Vict., ch. 5), declaring that the dues payable for such licenses "were so imposed in order to the raising of a revenue for the purposes Hamilton Powder Co. V. Lambe. 117 O.A.R. at p. 223, (1890). 23 S.C.R. at p. 532, et scq., 2 Cart, at p. 32, ei scq. Cf. S.C, per Taschereau and Gwynne, JJ. ^See this argument of Mr. Blake, printed in extenso by The Budget Printing and Publishing Co., Toronto, from which the above extract is taken. See, also, Proposition 20 and the notes thereto. *M.L.R. I Q.B. 460, (1885). Presumption ix Favour of Validity of Acts. 265 of this province under the power conferred upon the ppop. is legislature of this province by the 9th paragraph of section 92 of the British North America Act of 1867." The majority of the Court, however, upheld the Act as being in the nature of a police regulation, and not as coming within No. 9 of section 92. Cross, J., (at pp. 464-5), after expressing his view, that the requiring a license in such a case was not authorized by No. 9 of section 92, but was author- ized as a police regulation, proceeds: — "Thus comes Per cross, j. the question whether we can go against the legis- lature's own interpretation of the meaning of an Act previously passed by themselves, so as to hold the Act good as a police regulation, which they have declared an Act for raising revenue. While we hold, as in the case of Severn v. The Queen, ^ that they had no right to raise revenue by this means, I am disposed to consider it a mere mistake or oversight The legis- of the legislature to have included in the class ofcTedlration revenue licenses the one in question, should it bcnltureof held to be one not ejiisdem generis with those specially Acts dis- 1 . . . , . . . . regarded in enumerated. And masmuch as it is our business order to rather to give effect to an Act when it is possible to Act valid. do so, than to consider it as having no effect, I hold that a license to meet the present case would still be valid as a police regulation, although it might be held void as to its provision for raising revenue ; and that, if it were so, it was in the power of the powder company to have demanded a license on the payment of a moderate fee, and that the objec- tion made to the validity of the license is not a sufficient bar to the prosecution for the penalty." And Ramsay, J., in like manner, sa^-s, at p. 466 : — " The powers of the local legislatures are gathered Per Rrim- say, J. ^2 S.C.R. 70, I Cart. 414, (187S). See supra p. 27, n. i. 266 Legislative Power in Canada. Prop. 18 from the subject-matter, and not from the declaration of their powers." An Act should be so construed, if susceptible of more than one construction, as to bring it within the Suchcjn- powers of the legislature enacting it. ^ As Ritchie, struction '■ . " . . should be C.T., says m Valin v, Langlois-: — " It must be preferred J J ^ o as will make assumed that parliament intended to do what they an Act _ ^ _ -^ valid. have a right to do, to legislate legally and effectively, rather than that they intended to do what they had no right to do, and which, if they did do, must necessarily be void and of no effect." Notwithstanding, however, the rules thus laid down for upholding, where at all possible, the con- stitutional validity of statutes, the weighty words of Henry, J., in City of Fredericton v. The Queen, "^ may well be borne in mind : — " It has been properly But counter said, that it is a serious matter to consider and considera- j-ji » r t • i • i • i tions must dccidc that an Act or a legislature is ultra vires ; but not be . . overlooked, it IS much more serious and unfortunate, by any judicial decision, to destroy the constitution of a country. The importance of our decision arises, The con- not nearly so much from any effect it may have on stitution , k . • • 1-1'- ^r ^ • r must not be the Act in qucstiou, which, in itseli, claims from us destroyed ; , . i i i • i • i ■ i the most patient and deliberate consideration, but from the general result, in view of the constitutional relations established by the Imperial Act in question. ^See Macleod v. Attorney-General of New South Wales, [1S91] A.C. 455, esp. at pp. 457-9. And so per Fisher, J., in Robertson v. Steadman, 3 Pugs, at p. 639, (1876). In the Australian case, /;/ re Victoria Steam Navigation Board, 7 V.L.R., L., at p. 263, (1881), Stawell, C.J., says in reference to the local statute then under con- sideration : — " In interpreting documents of any kind, the validity of which may depend on a limited authority, it is the duty of the Court to interpret the words, if possible, as applicable only to the limited power, on the principle tit res magis valeat, quampereat." 23 S.C.R. at p. 28, I Cart, at p. 182, (1879). 33 S.C.R. at p. 545, 2 Cart, at p. 42, (1S80). Duty of Courts to Uphold Constitution. 267 as provided in the sections referred to in regard to Prop, is other subjects." And at a later page in the same case,^ he cites from Story on the Constitution of the United States, (section 417), the words : — "Nor should it ever be lost sight of, that the government of the United States is one of limited and enumer- ated powers ; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution." Moreover, as pointed out by O'Connor, J., inNoruncon- Gibson v. Macdonald-: — " It is the privilege of every Ac'ts"°"^ man to insist that his rights and interest shall be"'' ^ regulated by laws of undoubted validity. The sooner, then, a statute, which is seriously believed by many, and especially by a considerable portion of the legal profession, to be unconstitutional, is authorita- tively pronounced upon the better. The public interest requires that proceedings under such a statute should be stayed, if it be void ; or, if pos- sessed of the authority it purports to. have, it is necessary, or at least advisable, that doubts respect- ing it should be set at rest by a declaration of the proper tribunal, clothed with the necessarv author- ity. "-^ One or two judges, it should be mentioned, have seemed to hold the view that provincial Courts should especially lean in favour of the validity of Acts 13 S.C.R. at p. 550, 2 Cart, at p. 46. 27 O.A.R. at p. 416, 3 Cart, at p. 325, (1885). Hn his report as Minister of Justice, on the Ontario Acts of 1889, Sir J. Thompson said of 52 Vict., c. 15, s. 4 :— " If the provincial Act creating an offence and a penalty therefor is void, any enactment like this to give effect to it, if the objection to it is not taken at a certain stage, would be ineffectual. This provision is also open to the objection that is an attempt to limit the power of the Courts to adjudicate upon the constitutionality of provincial legislation." See S7ipra p. 174. n. i. 268 Legislative Power in Canada. Prop. IS of their own province, as, e.g., per Taylor, C.J., in Stephens y. McArthur,i per Burton, J. A., in Edgar V. Central Bank- ; but no such view as this can be said to be expressed in the cases generally. A" Indeed, in the case of provincial Acts, it might argument ^ ' o against the wcll havc becn thought that the presumption rather presumption _ '' '^ '^ in favour of was agaittst than in favour of their validitv, in provincial " -' ' -"^c's. accordance with the reasoning suggested by Mr. G. Cornewall Lewis in his essay on the Government of Dependencies,^ who draws a distinction between a general power of subordinate legislation and a special power of subordinate legislation, using the word " subordinate " as meaning conferred by a supreme legislature, and says : — " Where a general power of subordinate legislation has been delegated, the subordinate legislature can make a law upon any subject, provided that the law which it makes be not inconsistent with a law established by the supreme legislature in relation to the same subject, and provided that the subordinate legislature be not sirG. c. prohibited by a law of the supreme legislature from legislating on such subject . . . But where a special power of subordinate legislation has been delegated, the subordinate legislature can only make a law covering the subject or subjects upon which it Difference is either expressly, or by necessary implication, em- generaiand powcrcd to legislate ... A subordinate gov- power of ernment possesses a power of legislating upon every subordinate , . , . . , , , legislation, subjcct which IS not tacitly or expressly excepted from its powers. A special subordinate legislator possesses no legislative power which has not been expressly or by clear implication conferred upon 16 M.R. at p. 501. -15 O.A.R. at p. 202, 4 Cart, at p. 541. ^Ed. 1S91, by C. P. Lucas, at pp. 76-7. Presumption in Favour of Validity of Acts. 269 him. Consequently, in the latter case the presump- Prop. I8 tion of law is against, in the former case it is in favour of, the existence of any legislative power." However, in view of the authorities upon which Proposition 17 rests, it may not be proper to speak of the provincial legislatures as possessing only a special power of subordinate legislation, and thus, it may be, is justified a presumption in favour of the validity even of provincial Acts, though the legisla- tures are possessed only of specially enumerated powers^; but the point indicated by Sir G. C. Lewis does not seem to have been raised in any case where such a presumption has been relied on. ^See Proposition 66 and the notes thereto. 270 Legislative Power in Canada. PROPOSITION 19. 19. If it be once determined that the Dominion Parliament or a Provincial Legislature has passed an Act upon any subject which is within its jurisdiction to legislate upon, its jurisdiction as to the terms of such legislation is as absolute as was that of the Parliament of Old Canada, or as is that of the Imperial Parliament in the United Kingdom, over a like subject. City of This Proposition is suggested by the words of 7/.'^The"^°" Gwynne, J., in City of Fredericton v. The Queen, ^ '"""■ where the question before the Court was the vahdity of the Canada Temperance Act, 1878, and the learned Judge explains his meaning as follows : Per — "What, therefore, may be the opinion of text- Gwynnej. ^^j-j^gj-g^ qj. ^yhat may be the decision of the United States Courts, as to the powers of the central government and Congress, or of the legislatures of the several States, upon the like subject is unim- portant"; for, as the Dominion government and Canadian parliament are founded upon the model of, and mo'dXTon made similar in principle to, those of the United England. Kingdom of Great Britain and Ireland,^ it follows that, once it is established that the subject-matter of the Temperance Act of 1878 is a matter within 13 S.C.R. at p. 573, 2 Cart, at p. 63, {1880). 2Cf. supra pp. 185-7. 3See Proposition 17, and the notes thereto. Supreme within its Proper Sphere. 271 the jurisdiction of the Dominion padiament to Prop. 19 legislate upon, the provisions of that Act are as The Couns valid and binding and beyond the jurisdiction ofrfdTks this Court to deal with, otherwise than by construing it, as the Temperance Act of 1864, from which the Act of 1878 was taken, was valid and binding, and beyond the jurisdiction of the Courts of Old Their /^ J 1 1 • 1 1 • • function is Canada to deal with, otherwise than by construing, only to annot over- ide its enactments. construe and as a similar Act in Great Britain, if passed by 'hem the British parliament, would be valid and binding upon the Courts there." And so in Lynch v. The Canada North-West Land Company,^ Ritchie, C.J., says: — "As I said in City of Fredericton v. The Queen,- approved by the Privy Council in Russell v. The Queen, ^ in reference to the Dominion parliament, so with So, also, reference to the local legislatures: — 'The general, of the 11 nil- provincial absolute, uncontrolled authority to legislate in its legislatures. discretion on all matters over which it has power to deal, subject only to such restrictions, if any, as are contained in the British North America Act, and subject, of course, to the sovereign authority of the British parliament.' "* In like manner, Badgley, J., in L'Union St. Jacques V. Belisle, observes^: — " It is manifest that the provincial Act in question here, like all other legis- lative Acts which come before the constituted judiciary, are only subjects of interpretation, and only as such can be examined and treated by Courts of justice, which are stopped at interpretation, because anything beyond that as to legislative Acts 119 S.C.R. at p. 212, (1891). 23 S.C.R. at pp. 529-30, 2 Cart, at p. 30, (1880). 37 App. Cas. 829, 2 Cart. 12, (1882). *The sentence is left uncompleted. Some such words as " is given to it," or "is possessed by it," are required to complete it. 520 L.C.J, at pp. 34-5, I Cart, at pp. 78-9, (1872). 272 Legislative Power in Canada. Prop. 19 is legislation, which it is idle to say Courts of justice The same is havc no authority to exercise. . . The powers of the Ctise with Acts of the judiciary in such a case can only be interpretative, States certainly not disallowing ; " and he adds that in the legislatures. . .,.,.. United states also the power of the judiciary is restricted to the discovery of violations of the pro- visions of the constitution. Ambiguity So an Act cannot be declared invalid merely or looseness . . ofianguage bccausc its temis are ambiguous or its language invalidate a loosc. Thus, in Attomey-General of Canada v. statute. Attorney-General of Ontario/ Boyd, C, says : — " Comment was made upon the ambiguity of the Act, the difficulty of ascertaining what was covered by its general language, and upon the need of showing plainly that the limited juris- diction prescribed by our written law had not been exceeded. But so far as frame and phraseology go, the result of ancient observation — juris considtus non curat de verbis — avails for modern makers of the law. Language, large or loose, is to be shaped b}^ presuming an intention to act with candour and within the bounds of constitutional competence. Vague or ambiguous expressions are to be read so as to support rather than to invalidate what is pro- mulgated, and the Court in case of reasonable doubt will refrain from pronouncing against the statute.- " And in the Court of Appeal, Burton, J.A.,-^ says: — "Even if the enactment is open to the criticism of being vague or indefinite, that in itself could be no reason for declaring it void ; " and the Court affirmed Boyd, C, in hcflding that the Act in question was intra vires, as the Supreme Court, on appeal to it, also held.* 120 O.R. at p. 245,(1890). -See Proposition. 18 and the notes thereto. 3i9 O.A.R. at p. 37, (1892). +23 S.C.R. 458. Motives of the Legislature. 273 PROPOSITION 20. 20. If the Dominion Parliament or a Provincial Legislature legislates strictly within the powers conferred, in relation to matters over which the British North America Act gives it exclusive legislative control, we have no right to enquire what motive induced it to exercise its powers. The above Proposition is derived, so far as con- city of cerns the Dominion parliament, from the judgment e'-'ThT*^ °" of Ritchie, C.J., in The City of Fredericton v. The Queen, 1 where he was deahng with the contention, raised as an argument against the validity of the Canada Temperance Act, 1878, that it could not be supported as an Act for the regulation of trade and commerce, and so falling within No. 2 of sec- tion gi of the British North America Act, because it was strictly a Temperance Act passed solely for the promotion of temperance, and that " laws for the prevention of drunkenness, and of the like character of preventive means," were within the exclusive powers of the local legislature, ^ and that the recital of the Act indicated conclusively its character. He uses the words of the above Pro- position, and later on adds: — "If Parliament in Per its wisdom deems it expedient for the peace, order, '"^ '^'^'^' and good government of Canada so to regulate ^3 S.C.R. at pp. 532-3, 2 Cart, at pp. 32-3, (iSSo). ^But as to this see Appendix A, and Proposition 35, and the notes thereto. 18 274 Legislative Power in Canada. Courts are not concerned with what motives Prop. 20 trade and commerce as to restrict or prohibit the importation into or exportation out of the Dominion, or the trade and traffic in, or deahng with, any articles in respect to which external or internal trade or commerce is carried on, it matters not, so far as we are judicially concerned, nor had we, in my opinion, the right to enquire whether such legislation is prompted by a desire to establish prompted '-' r tr j legislation, uniformity of legislation with respect to the traffic dealt with, or whether it be to increase or diminish the volume of such traffic, or to encourage native industry, or local manufactures, or with a view to the diminution of crime or the promotion of tem- perance, or any other object which may, by regulating trade and commerce, or by any other enactments within the scope of the legislative powers confided Or with the to Parliament, tend to the peace, order, and good effects of government of Canada. The effect of a regulation legislation, oi trade may be to aid the temperance cause, or it may tend to the prevention of crime, but surely this cannot make the legislation ultra vires, if the enact- ment is, in truth anrl fact, a regulation of trade and commerce, foreign or domestic. The power to make the law is all we can judge of; and the recital in the Act so much relied on ought not, in my opinion, to affect in any way the enacting clauses of the Act, which are in themselves abundantly plain and explicit, requiring no elucidation from and Nor is the admitting of no control by the recital,^ which can object of the . •" . Act as only be invoked in explanation oi the enacting . It may be that all If the power so to legislate exists. recited in it of clauses if thev be doubtful. importance, if the who voted for this Act may have thought it would enacting -^ ^ auses ; justi ciausescan promotc temperaucc, and were influenced in their be justined »^ '■ under some yQ|-g \^y ^\^.g^^ consideratiou alone, and desired that head of - legislative ^_^ power. ^See supra pp. 264-6. Motives of the Legislature. 275 idea should prominently appear. Still, if the enact- Prop. 20 ing clauses of the Act itself dealt with the traffic in such a manner as to bring the legislation within the powers of the Dominion Parliament, no such declaration in the preamble or permissive title can so control the enacting clauses as to make the Act tiltra vires.'" Thus it would seem that, though the legislature avow on the face of an Act that it intends thereby to legislate in reference to a subject over which it has no jurisdiction, — yet if the enacting clauses of the Act bring the legislation within its powers, the Act cannot be considered tiltra vires. And, in like manner, in the same case,^ Tascher- So per . , Taschereau, eau, J., says: — "It has been said the Temperance J- Act is not an Act concerning the regulation of trade and commerce, because it is not an Act for the regulation of trade and commerce, but only a Temperance Act. To this, I may well answer by the following words of Taney, C.J., in the License The l Cases, 5 How. 504, at p. 583 : — ' When the validity of a State law making regulations of commerce is drawn into question in a judicial tribunal, the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the Court enquire The power, ... . not the whether it was intended to guard the citizens of the object or _, - . motive, is State from pestilence and disease, or to makef^e important regulations of commerce for the interests and p-^'"' convenience of trade. . . The object and motive of the State are of no importance, and cannot influence the decision. It is a question of power,' These words may well be applied here. Is the Temper- ance Act of 1878 a regulation of trade and com- icense Cases. ^2 S.C.R. at p. 559, 2 Cart, at pp. 52-3. 276 Legislative Power in Canada. Prop. 20 merce, or of an important branch of trade and commerce ? I have already said that it seems to me plain that it is so. Then, is it the less so because it has been enacted in the view of pro- moting temperance, or of protecting the country Parliament against the evils of intemperance ? If for this may regulate obiect thc Parliament has thought fit to make a trade and •' . ... commerce rcgulation of the trade and commerce in spirituous with ulterior motives of Hquors, does it lose its character of being a regula- promoting _ _ o c^j temperance, tion of this trade by reason of the motive which prompted the legislator to enact this regulation ? I cannot see it."^ Similar is the rule in the United States Courts. Per Henry, J., contra. And, in like manner, in the United States it is held that a Court cannot enquire into the motives of the legislature;- "nor refuse to appl}^ an Act because they may suspect that it was obtained by fraud or corruption."^ However, Henry, J., in the City of Fredericton v. The Queen,* maintains, it must be admitted, a different view. He says : — '' The first, and, as I think, the most important consideration, is the extent to which effect should be given to the pro- vision, 'the regulation of trade and commerce,' and, admitting for the moment the power of Parlia- ment to pass the Act in reference to that subject, has it properly dealt with it ? In deciding upon this question, our first enquiry is, whether Parliament intended the Act as a regulation of trade or com- merce ? It does not necessarily follow that if one in iSee, also, per Gwynne, J., S.C, 3 S.C.R. at pp. 563-5, 570, 573, 2 Cart, at pp. 56-7, 61, 63. '■^Cooley on Constitutional Limitations, 5th ed., at p. 197. ^Bryce's Amer. Comm. (two-%'olume edition), Vol. i, at p. 431. ^3 S.C.R. at pp. 548-9, 2 Cart, at pp. 44-5. Motives of the Legislature. 277 the pursuit of one purpose or object does an unjus- Prop. 20 tifiable act, he can take shelter under a right he didxheiegisia- _,, . ture cannot not intend to assert or act on. there are circum- shelter its .... , , , J Acts under Stances in which, m such a case, the party would powers it . . , . hadnointen- not be held lustmed. The preamble of an Act will tionofexer- . . , . cising when not, of course, by itself, give or take away jurisdic- legislating, tion to legislate. If, however, the legislature plainly shows by the preamble and provisions of the Act that the legislation was directed, not in the pursu- ance of legitimate power, but in reference to a sub- ject over which it had no jurisdiction, I am far from thinking it would be legitimate." And a little later on in the same case^ he says : — " The Act, taken altogether, shows it was not passed by Parliament as a regulation of trade or commerce. I have serious doubts, whether in such a case we would not be wrong in concluding that Parliament ever intended it as such, or that we should, in view of any power it had over the subjects of trade or commerce which it clearly did not intentionally exercise, give effect to the Act passed avowedly for a totally different pur- pose." But what has been above stated would seem to show the views thus expressed to be unsound. It is obvious that there is nothing in the leading Proposition inconsistent with what is laid down in Proposition 36, that the object and design of an Act must, among other things, be determined in xhe enquiry order to ascertain the class of subjects of legislation rbj^ct La to which it really belongs. In the present Proposi- Aa'fnord^e" ■ • •, • 1 j1 , ,1 A . • • to determine tion it is assumed that the Act in question comes it- true within one or other of the legislative powers con-adiff-erent' ferred by section 91 or 92 of the British North"''' ^'' America Act, as the case may be, and, then, what the Proposition states is that, this being so, the ^3 S.C.R. at p. 549, 2 Cart, at p. 45. 278 Legislative Power in Canada. Prop. 20 motive which induced the legislature to exercise its power cannot be considered. Notwithstanding what is stated in Proposition 32 and the notes thereto, it is easy to conceive of legisla- tion colourably intra vires, but in reality, and in view of its true object, beyond the scope of the legislature Colourable passing it, where there would, nevertheless, be no legislation, i^ o ' remedy under the constitution, except the exercise of the veto power. ^ ^As to which, see Proposition lo and the notes thereto. Statutes Affecting Vested Rights. 279 PROPOSITION 21. 21, When once an Act is passed by the Dominion Parliament or by a Provincial Legislature in respect to any matter over which it has jurisdiction to legislate, it is not competent for any Court to pronounce the Act invalid because it may affect inju- riously private rights, any more than it would be competent for the Courts in England, for the like reason, to refuse to give effect to a like Act of the Parliament of the United Kingdom. If the subject be within the legislative jurisdiction of the Parliament, or of the Provincial Legis- latures, respectively, and the terms of the Act be explicit, so long as it remains in force, effect must be given to it in all Courts of the Dominion, however private rights may be affected. The above Proposition is suggested by a passage 0"een e^. in the judgment of Gwynne, J., in The Queen v. Robertson,^ who, however, there apphes the words only to the Dominion parhament. But they are equally incontestable in their application to the pro- vincial legislatures, though that such is the case has been doubted by some judges. Thus, in L'Union 16 S.C.R. at p. 74, 2 Cart, at p. 125, (1882). 28o Legislative Power in Canada. Prop. 21 St. Jacques de Montreal v. Belisle/ Duval, C.J., maintains a contrary view, stating that a provincial Dicta to the legislature may legislate on the subjects set forth in contrary as . riTixT«» i •• regards sectiou g2 01 the B.N. A. Act, but no power is given provincial . . . , , , . . legislatures, to it to impair the obligation of contracts, — a power which has ever been considered as contrary to every principle of sound legislation."- And so recently as 1883, in The Grand Junction R.W. Co. v. The Corporation of Peterborough,^ Henry, }., said: — " I would require some argument to convince me that the local legislature, or even the Dominion legisla- ture, has the right to interfere so as to affect con- tracts entered into, or quasi-contracts entered into, between parties." And in 1886, in In re Clay,* Gray, J., says : — *' The legislature itself had no power to authorize the breaking of contracts." But, as Dorion, C.J. , states in Dobie v. The Tem- poralities Board,'' in answer to a contention there raisedthat an Act of the province of Quebec amounted to " spoliation " : — "That question was decided by the The Privy Privy Couucil in the case of L'Union St. Jacques V. Belisle." The Union was unable to pa}^ the stipu- L'Union St. latcd aunuities to members, and it got authority Beiisie. from the local legislature to commute the payments for a fixed sum. The question was raised whether the province of Quebec could interfere with vested rights, and the Privy Council maintained the validity of the local Act." In this case of L'Union St. Jacques de Montreal V. Belisle, it appeared that the by-laws of the Union I20 L.C.J, at p. 38, I Cart, at 83, (1872). ^See, however, per Badgley, J-, S.C, 20 L.C.J., at pp. 35-6, i Cart, at pp. 79-80 ; per Drutnmond, J., S.C, 20 L.C.J, at p. 45, I Cart, at p. 93. See, also, Propositions 17, 61, and 64. For a Case before Con- federation, see Reg. z\ John Kerr, 2 Stockton's Bert. (N.Br.) 367,(1838). 38 S.C.R. at p. 100. And see per Gwynne, J., S.C, at p. 125. *i B.C. (Irving) at p. 306. ^Doutre's Constitution of Canada, at p. 259, i Cart, at p. 388. «L.R. 6 P.C 31, I Cart. 63, (1874). Statutes Affecting Vested Rights. 281 fixed the relief to be given, and the class of bene- Prop. 21 ficiaries to receive it, amongst whom were, during their widowhood, the widows of deceased members of a certain standing in the society, the funds being ■derived from the periodical contributions of its members while connected with the society.^ But the Act of the local legislature in question, in the words of the Privy Council judgment, " taking notice of a certain state of embarrassment resulting from what it describes in substance as improvident regu- lations of the society, imposes an enforced commu- tation of their existing rights upon two widows." Their lordships, however, held that the Act was intra vires. - The case in the Ontario Courts which will per- a-^ naps occur most readily to the mmd m connection with this subject is that of Re Goodhue.^ A testa- tor had devised the residue of his estate in trust for such of his children as should be living at the decease of his widow, and for the children of any of them who should then be dead. Before the widow's death, and on her application and that of the testa- tor's children (all of whom were living), the Ontario legislature passed an Act, (34 Vict., c. gg), for dividing the property amongst the children of the testator forthwith, yet three judges concurred in holding that the Act was intra vires. ^ And a striking illustration of the leading Proposition in its application to Dominion statutes is to be found ^See 20 L.C.J, at p. 30, i Cart, at pp. 72-3. •■2L.R. 6 P.C. at p. 35, I Cart, at p. 69. 3i9Gr. 366, I Cart. 560, (1873). For the judges' report in ihi> case, on reference to them by the Lieutenant-Governor in Council, see 9 C.LJ.N.S. 82. See, also, per Harrison, CJ., in Re Hamilton and North-Western R.W. Co., 39 U.C.R. at pp. 111-2, (1876). *See this case further referred to in the notes to Proposition 68, €M/ra. 282 Legislative Power in Canada. Prop. 21 Attorney- General ti. Foster. Retroactive Dominion Act as to Customs duties. Property and civil rights in the province. in the recent New Brunswick case of Attorney-Gen- eral of Canada v. Foster,^ where the question was whether section ig of an Act making certain changes in Customs duties, 53 Vict., c. 20, D., was intra vires, which section provided that the Act should be held to have come into force on March 28th, i8go, (though assented to only on May i6th, i8go), and that it should be held to apply and to have applied to all goods imported or taken out of warehouse for consumption on or after the former date. The defendants had, in April, iSgo, taken whiskey out of warehouse, paying the full duty then chargeable, and had had no warning by prior resolution of the House of Commons or otherwise- that any further claim for duty would or could be made on them, and had since sold the whiskey. The government, however, now sued them for increased duty charge- able under the Act, relying on the above section. All the judges of the provincial Supreme Court except Palmer, J., held the enactment to be intra vires, not- withstanding the hardship of imposing an additional duty, by legislation made retroactive, upon an im- porter who had taken his goods out of warehouse ; and Palmer, J., held otherwise, not on the ground of any hardship or injustice, but because he held that the section infringed to an unconstitutional extent upon property and civil rights in the province, in which the other judges did not agree with him.^ 131 N.B. 153, (1892). 2 In ^a-/ar/e Wallace & Co., 13 N.S.W., L., i, (1892), the Court held that the practice of collecting new duties from the date of the resolution of the House of Asseml)Iy for their imposition, and before the bill imposing such duties becomes law, is a well-established and constitutional practice instituted for the protection of the Queen's revenue, referring to Todd's Parliamentary Government in England, 2nd ed., Vol. i, pp. 792-3. ^See the case further referred to on this point in the notes to Proposition 37, infra.- At p. 160, Fraser, J., suggests that, under Statutes Affecting Vested Rights. 283 To return to cases of provincial Acts, in The Prop. 21 Municipality of Cleveland v. The Municipality of Provincial Melbourne,^ the Quebec Court of Queen's Bench, interfering 1-11111 1 « r ^ /-\ ^ i* with vested Appeal side, held that the Act ot the Uuebec legis- rights. lature authorizing the Lieutenant-Governor to revoke the risfht of certain municipalities to exact tolls on Cleveland r. ° ' . . Melbourne. a toll-bridge for default in making repairs, and to transfer the property to others, was valid, upon the ground that it related to property and civil rights in the province and was merely of a local nature. Ramsay, T., in delivering the judgment, observes-: Per 1 • 1 Ramsay, J. — " I don't think any legislature has the right to deprive a person of his property, but by the theory of the constitution it has the power. In a word, it is assumed that the legislature is a judge of the morality of its own legislation." And, similarly, in the recent case of Re McDowell and the Town of McDowell V. Town of Palmerston,^ where the validity of an Ontario Act, Palmers to 48 Vict., c. 92, was impugned on the ground that the owner was deprived of his land without proper compensation, Boyd, C, held the Act intra vires, saying : — " The Act deals with land in Ontario, and the legislature had power (so far as abstract compe- tence is concerned) to change the ownership, and certain circumstances, the defendant might not be without remedy. He says: — "While I think there are no grounds for disturbing the verdict in this case, it may be that the defendants may have some right to relief, if by reason of what passed between them and the collector of customs, at the time the goods were taken out of ware- house, they have suffered a loss, or if they were induced to withdraw the goods from warehouse, and make sale of them before the duties were actually increased or before they had reason to believe such duties would be increased, and have in consequence been damnified. Whether if the defendants are entitled to relief, it can be given by the government, or can only be obtained by an application to Parliament on the recommendation of the government, it is not for me to say." I4 L.N. 277, 2 Cart. 241, (1881). ^4 L.N. at p. 279, 2 Cart, at p. 244. 322 O.K. 563, (1892). 284 Legislative Power in Canada. Prop. 21 that without making any compensation. The expedi- ency and the justice of such legislation is another ii^c'^'^fd ^^^^^^•' -^"^ 3-S to the power so to legislate, he cites a passage from the judgment of Day, J., in the ante-Confederation case of Ex parte Ira Gould, ^ where he says : — " The powers of legislation of the provincial parliament are as extensive as those of the Imperial parliament while they keep within the limits fixed by that statute, even if they were to interfere with Magna Charta."-' Again, in License Commissioners of Prince Ed- ward County V. County of Prince Edward,^ it was urged that a certain Ontario x\ct was ultra vires and Ex post void because it was of an ex post facto character, provincial inasmuch as it provided for the payment by munici- Act palities of expenses previously incurred by license commissioners, but Spragge, C.J., held the Act valid. 12 Malt. R.K. at p. 37S, (1S54). -It does not seem clear, however, that in 1854, when these words were spoken, being before the Colonial Laws Validity Act, Imp. 28-29 Vict., c. 63, any colonial legislature had power to "interfere with Magna Charta." In an article on the competence of colonial legislatures to enact laws in derogation of common liability or common right, by T. C. Anstey, published in Papers read before the Juridical Society, Vol. 3, p. 401,(1868), the author says, at p. 404: - "Quite independently of Parliament and its supremacy, there were other reservations expressed or implied in every grant of legislative power to every colonial depend- ency ; reservations of allegiance to the Crown and the law, of protection by the Crown and the law, of the King's prerogative, of the liberties of Englishmen, of Magna Charta, of the Petition of Right, of the Habeas Corpus Act, of the leading principles of the Revolution of 1688; and, in fine, of all the natural and common law elements and grounds of the English constitution itself." He goes on to point out, however, that since Tune 29th, 1865, the date of the passing of the Colonial Laws Validity Act : — "Any colonial legislative asseml^ly, — out of India, — if possessing a moiety of elected representatives of the people, may lawfully enact any measure which is not repugnant to some Act of Parliament in force within the colony; and mere 'repugnancy' to the law, — other than statute law, — will not invalidate such enactment. Subject to that statute, however," (sc, Imp. 28-29 Vict., C- 63, s. 2), " the law remains unchanged." ^26 Gr. 452, 2 Cart. 678, (1879). The Right of Eminent Domain. 285 The case of Kelly v. Sulivan^ also calls for men- Prop. 21 tion in connection with the present subject. The Keiiy r^. Prince Edward Island Land Purchase Act of 1875 was passed " to convert the leasehold tenures into freehold estates upon terms just and equitable to the tenants as well as to the proprietors," for which Pnnce purpose it provided a Commissioners' Court, by pro- isiaTid^Land ceedings in which a compulsory transfer of the lands Act, 1875. affected to the government could be obtained, and in Kelly v. Sulivan the Supreme Court of the island held that the Act came within No. 13 of section 92 of the British North America Act as legislation on property and civil rights in the province. Peters, J., observes- that, if the provincial legislature were restricted to subjects coming within what American Per . . . . Peters, J. jurists call the "right of eminent domain," the Act, at least in some of its provisions, would be an excess of legislative power ; that no such public emergency Eminent , II- • r 1 ■ : • ■ r domain. or necessity existed as would j ustiiy legislative interrer- ence under the right of eminent domain, in connec- tion with which he quotes the following passage from Kent's Commentaries^ : — " It undoubtedly must rest, The mie in as a general rule, in the wisdom of the legislature, states. to determine when public uses require the assump- tion of private property ; but if they should take it for a purpose not of a public nature, as if the legis- lature should take the property of A and give it to Legislatures B ; or if they should vacate a grant of property, or private; of a franchise, under the pretext of some public use for public or service, such cases would be gross abuses of their only. 12 P.E.I. 34, I s.C.R. I, (1875-7). *2 P.E.I, at pp. 87-8. In the Supreme Court of Canada, to which the case was taken, Richards, C.J., says, i S.C.R. at p. 35 : — " It is not doubted in the Court below, and we do not doubt that the legislature of the Island had a right to pass the statute in question." 3 1 2th ed., Vol. 2, at p. 340. 286 Legislative Power in Canada. Prop. 21 discretion and fraudulent attacks on private right, and the law would be clearly unconstitutional and void." Difference This forcibly brings out the difference between between the . - , . , powersof the sovcrcigu powers of our legislatures^ when legis- Canadian i • i i • • legislatures lating on the subjects committed to their iurisdic- and those of . ° , / . / the United tion, and the limited powers of legislatures in Amer- States in . . / " _ this respect, ica. In the constitution of the United States, more- over, there is the well-known provision- that " no State shall . . pass any bill of attainder, ex post facto law, or law impairing the obligation of con- Laws tracts;" and, as to Congress itself, it is provided impairins; , .,, _ . the - that " no bill of attainder or ex t'ost facto law shall be obligation ^ .' . ... of contracts, passed."^ And as to the restriction against impair- ing the obligation of contracts not being imposed upon Congress, it is said in Judge Cooley's General Principles of Constitutional Law^: — "That Con- Even gress should not have been prohibited from impairing Congress , , , . . ^ ,10 may, the Obligation or contracts, as the States were, may perhaps, be , , . . ^ . , restricted in wcU cxcitc some surprisc. it was certainly never its powers . ^ . „ , in this intended that Congress under any circumstances respect. ,11 • 1 • 1 1 • 1 should exercise that tyrannical power, and it prob- ably never occurred to any one as possible that it would ever attempt to do so. While, if it should attempt it, in the case of private contracts, the Act, it would seem, might well be held not to be legitimate legislation, and therefore incompetent and void, yet the clause is considered not to apply to congressional legislation. In respect to contracts by the government itself, so long as they remain executory, if it shall choose not to perform them, there can be no redress." ^See Proposition 17 and the notes thereto. 2Art. I, sect. 10, (i). 3Art. I, sect. 9, (3). *2nd ed., by A. C. Angell, at p. 327. enning v. Statutes Affecting Vested Rights. 287 No such limitations of power are imposed upon Prop. 21 legislatures in Canada, and the dicta of Henry, J., ' in Venning v. Steadman,'- would seem unsustainable, v when he says : — " If the government had the right to say, ' You cannot fish on your own land without taking a license,' they could demand a tax so heavy as to prevent the parties using their rights. Per It is possible that the extreme right to legislate to that extent does exist, but it could only be exer- cised where there was an extreme public necessity for it. It is possibly true that extreme course, for the purpose of revenue, might be resorted to by the government, but, then, very great necessity must be shown before, I think, Parliament would have the right to say to a riparian owner, ' You shall not exercise your common law rights of property without paying a tax to the government.' "- We may, however, find some consolation for Dicey on , . , r 1 parliament- having to trust so much more unfettered powers to^i-y , . , . interference our legislatures than is entrusted to legislatures "'"h in the United States in the following remarks of =1"^ private . . contracts. Professor Dicey in his Law of the Constitution-^: — "A ruler who might think nothing of overthrowing the constitution of his country would, in all proba- bility, hesitate a long time before he touched the property or interfered with the contracts of private persons. Parliament, however, habitually interferes, for the public advantage, with private rights. Indeed, such interference has now (greatly to the benefit of the community) become so much a matter of course as hardly to excite remark, and few ^9 S.C.R. at pp. 226-7, (1S84). ^With this may be compared the views of Palmer, J., in Attorney- General V. Foster, 31 N.B. 153, at p. 162, tV ^tv., (1892), further referred to in the notes to Proposition 37, infra. ^3rd ed., pp. 46-7. 288 Legislative Power in Canada. Prop. 21 persons reflect what a sign this interference is of the supremacy of ParHament, The statute book teems with Acts under which Parliament gives privileges or rights to particular persons, or imposes particular duties or liabilities upon other persons. This is, of course, the case with every railway Act, but no one will realize the full action, generally the very bene- ficial action of Parliamentary sovereignty, who does not look through a volume or two of what are called Local and Private Acts." Local and Private Acts. Legislative recitals as to facts. And, in conclusion, it may be well to recall the words of Robinson, C.J., in City of Toronto and Lake Huron Railroad Co. v. Crookshank,^ where he says that if in an Act the legislature recites something as a fact, "so far as this Act is concerned, the legislature stating the fact is conclusive, though, if it were attempted to affect other rights or interests of individuals, in any proceeding wholly apart from this Act, by assuming as incontrovertible facts whatever might happen to be asserted in it, then I apprehend we should be clearly warranted by authority in holding individuals not to be bound by such recitals in any other respect than for the purposes of that Act." ^4 U.C.R. at p. 318. Reference may also be made here to an article on Blackstone's Theory of the Omnipotence of Parliament, by T. C. Anstey, in Papers read before the Juridical Society, Vol. 3, at p. 325. Acts in Part only Constitutional. 289 PROPOSITION 22. 22. Although part of an Act either of the Dominion Parliament or of a Pro- vincial Legislature may be ultra vires, and therefore invalid, this will not invalidate the rest of the Act, if it appears that the one part is separate in its operation from the other part, so that each is a separate declaration of the legislative will, and unless the object of the Act is such that it cannot be attained by a partial execution.' The judgment, or rather the report, of the Judicial The Privy Committee of the Privy Council upon the Dominion Liquor License Acts, 1S83-4, supports and illustrates this Proposition. They say that the said Acts " are Report on not within the legislative authority of the parliament Dominion of Canada. The provisions relating to adulteration, ac""^^ if separated in their operation from the rest of the Acts, would be within the authority of the parlia- ment ; but as in their lordships' opinion they cannot be so separated, their lordships are not prepared to ^As pointed out in the notes to Proposition lo, provincial Acts, if disallowed by the Governor-General in Council, must be disallowed altogether ; this or that clause of an Act cannot be vetoed without the remainder : see supra at p. 197. In the argument before the Privy Council in the Manitoba School Case, 1S94, (printed for the Govern- ment of Canada, London, 1895. ^^ P- 236), the Lord Chancellor said of the Governor-General : — " He disallows an Act as a whole, and could not disallow a section." Attorney-General Miller of Manitoba seems, in 1S84, to have thought otherwise: Plodgins' Prov. Legisl., Vol. I, pp. 685-6. 19 290 Legislative Power in Canada. Prop. 22 report to her Majesty that any part of these Acts is within such authority."^ Per Some of the words of the Proposition, how- ever, have been suggested by expressions of Ramsay, J., in two cases. The first of these is Dobie V. The TemporaHties Board,? where that learned judge says : — " To let a law stand which is partly ultra vires and partly constitutional may be the most perfect mode of defeating the legis- ts the lative will. I, therefore, say that a law which (jbject of . . . 1117 the Act IS ultra vires m part may thereby be ultra vires obtained ^Y . , ■, i • 1 1 i a partial m whole, and so it should be construed, — at all execution ? events, when it appears that the object of the Act is not attained by a partial execution. Take, for instance, an Act of incorporation of a railway com- pany from Quebec to Toronto. Could that be inter- preted as an Act of incorporation from Quebec to the province line ? Unquestionably it could not be."^ It is sufficiently clear that we cannot always treat particular sections of an Act as isolated inde- pendent clauses. The Act may form one connected An Act may scheme to attain one definite object, and so may embody one , 1 i 1 • i 1 i 1 • connected havc to be dealt with as a whole, when its constitu- tionality is impugned. Thus, in Clarkson v. The Ontario Bank,* where the Ontario Act respecting assignments for the benefit of creditors was in ques- tion, Hagarty, C.J.O., says : — " We are not dealing with each section as if it stood b}- itself, but we are I4 Cart. 342, n. 2 ; Todd's Pari. Gov. in Brit. Col., 2nd ed. , p. 555. For the decision of the Supreme Court of Canada in this matter, see Ont. Sess. Pap., 1885, No. 32, at p. 6; Cass. .Sup. Ct.Dig., at p. 509; also Dom. Sess. Pap., 18S5, No. 85, which contains a verbatvn report of the argument before the Supreme Court. 23 L.N. at p. 251, I Cart, at pp. 384-5, (1880). ^See infra pp. 297-8. 4l5 O.A.R. at p. 179, 4 Cart, at p. 514, (1888). Acts in Part only Constitutional. 291 dealing with an Act of general application dealing Prop. 22 with the whole estate, regulating the administration, interfering with existing legal priorities, prescribing ^^ct^j^^.^ modes and times for distribution," etc. And so, per f ^'g"'?^^"'^ ^ '^ forcreditors. Osier, J.A.^: — "The Act in question, with its amendments, is to be regarded as a whole. Its object and scope are to be considered as those of a single scheme or system for dealing with the prop- erty of insolvent persons under certain conditions, in the interest of their creditors providing a uniform law applicable alike to all debtors throughout the province."- To adopt an expression suggested by the words of Killam, J., the rule ma}^ perhaps be Per 11 ■ r ■ r K a Killam, J. Stated thus — it a section or an Act appears proper to be treated as an independent substantive enact- independent , ,, 1 . r • , J • ; • 1 • 1 substantive ment, the question or its constitutionality may be enactments, considered apart from the rest of the Act.-^ The other judgment of Ramsay, T., above referred Per • T-i /^ • ' r ^ • Ramsay, J. to is that in The Corporation of Three Rivers v. Suite,* where a question arose as to the validity Three •' Rivers v. of a Quebec enactment, 38 Vict., c. 76, s. 75, s-s. 2, Suite. which purported to empower the municipal council of Three Rivers to make by-laws for determining under what restrictions and conditions and in what iS.C. 15 O.A.R. at p. 189, 4 Cart, at pp. 525-6. See, also, 15 O.A.R. at p. 193, 4 Cart, at p. 531. -The effect of Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189, would clearly seem to be that the Act here referred to, as a whole, must be held to be intra vires. See an article on this decision, 30 C.L.J- 1S2. ^Stephens v. McArthtir, 6 M. R. at p. 508, (1890). It seems that the constitution of the Hawaiian Islands, as it existed in 1875, contained the following commendable provision : — " To avoid improper influences which may result from intermixing in one and the same Act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in its title." See JMarchant V. Marchant, 3 Haw. Rep. 661. This was continued in the constitution promulgated in 1887: 5 Haw. Rep. App. at p. 717. *5 L.N. at p. 332, 2 Cart, at p. 2S3, (1882). 292 Legislative Power in Canada. Prop. 22 manner the collector of inland revenue for the dis- trict of Three Rivers should grant licenses to mer- chants, traders, shopkeepers, tavern-keepers, and other persons to sell liquors. Ramsay, J., delivering the judgment of the Court, held that this enactment No. 9, could not rest on No. q of section 02 of the British sect. 92, _ _ B.N.A. Act. North America Act, whereby local legislatures are empowered to make laws in relation to shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or municipal purposes, although such a form might be given to restrictions on licenses, (as had indeed been done by the by-law in question in the case), as would have the effect of raising a revenue. " For," he says, " the statute cited in the case under our con- Forpartof sidcratiou is not an authorization to the municipal held intra couucil to tax by way of license, but an Act allowing 7^1 y€S WD lie other' part is the municipality to put restrictions on the sale of ultra vires, , . ; • i each part liquors. . . . A statutc zw^m i'ij'ss docs not rcmam must be a . . , separate m torce lor a part, because some fractional part is declaration . r i i • i i • of the withm the powers 01 the legislature, unless it appears legislative ^. ft. » ff will. that the subject beyond the powers of the legislature is perfectly distinct from that within, and that each is a separate declaration of the legislative will. This is not the case here."^ Statutes What this would seem to illustrate is that the fact intra I'lres in some that Something ma\' be done under a provincial Act applications only. which the legislature would have power to authorize does not necessarily make that Act intra vires even in respect to such application of it. But, on the other hand, an Act ma}' certainly sometimes be intra 1 However, he held that the enactment was sustainable under No. 8 of section 92, " Municipal Institutions in the Province," a decision which was affirmed on appeal by the Supreme Court of Canada : 1 1 S.C.R. 25, 4 Cart. 305, (1883), the decision of the Privy Council in Hodge V. The Queen, 9 App. Cas. 117, 3 Cart. 144, decided since the judgment of Ramsay, J., being held to have put an end to any question on the point. Acts Intra Vires in some Applications only. 293 vires in some of its applications, while ultra vires in Prop. 22 others. Thus, in McKilligan zj. Machar,i Killam, J., held that certain provisions of the Dominion Lands Dominion Act, 1883, 46 Vict., chap. 17, which provided thatisTs.' "' "copies of any records, documents, plans, books, or papers belonging to or deposited in the Dominion Lands office, attested under the signature of the Min- ister of the Interior, etc., shall be competent evidence in all cases in which the original records, documents, books, plans, or papers would be evidence," were ultra ^^^.^^^ ^^ vires so far as they could be considered to apply to°f^^;.^'^^^ suits merely for the cancellation as clouds upon title ^''"^''""• of conveyances (not being letters patent from the Crown), registered under the Manitoba Lands Regis- tration Act. " The provincial legislature," he says, (at p. 422), " has the authority to regulate the admin- istration of justice in the province, including pro- cedure in civil matters in the Courts ; though it has in some cases been held that the Dominion parlia- ment could establish courts for the determination of matters arising under statutes within its powers, or, perhaps, regulate to som.e extent procedure in the ordinary Courts in suits upon subjects within its legislative authority."- And so, in Allen v. Hanson,^ Dominion Dorion, C.J., delivered the judgment of the Quebec ™'"e-"P Court of Queen's Bench confirming the validity of the Dominion Winding-up Act, 45 Vict., c. 23, as amended and extended to all corporations doing business in Canada, no matter where incorporated, by 47 Vict., c. 39, and, after referring to certain pro- visions of the Act which were objected to, observes : — " There are in every statute enactments which do 13M.R. 418, (1886). ^As to this, see the notes to Proposition 37. 3 13 L.N. at p. 133, i6Q.L.tl. at p. 64, 4 Cart, at p. 495, (1890). 294 Legislative Power in Canada. Prop. 22 not apply to every case coming under its provisions ; this does not destroy the effect of such enactments as are apphcable to the particular case to be acted upon ; and, even if such enactments were ultra vires, the remainder of the Act would still remain in force in so far as it is applicable to foreign corporations and their property in this country." And, on appeal to the Supreme Court, ^ Ritchie, C.J., observes of the same Act : — " It by no means follows that because all the provisions of the Act may not be applicable to foreign cases that those portions which are should not be acted on." j^ethe So, again, in Re the Canadian Pacific Railway i^Pin^fj 1 fin Pacific Co.," the Queen's Bench of Manitoba held that the R.W. Co. • • 1 . TT. , • 1 , provmcial Act, 49 vict., c. 11, which by section 4 provided that " No company, corporation, or other institution not incorporated under the provisions of the statutes of this province shall be capable of tak- ing, holding, or acquiring any real estate in this province unless under license from the Lieutenant- Governor in Council, under any statute of this prov- ince," was tdtra vires in so far as it affected the Can- adian Pacific Railway Company.'^ 118 S.C.R. at p. 673, 4 Cart, at p. 477, (1890). 27 M.R. at p. 3S9, (1891). 3In a report, as Minister of Justice, of February 9th, 1895, on an ordinance of the North-West Territories, which empowered the coun- cil of a city, town, or municipality to make by-laws as to permitting railways to be laid along streets, and as to compensation f(jr damage to property caused thereby, and regulating traffic and the speed of trains within the municipality, blowing of whistles, etc., and to impose pen- alties for breach, Sir C. H. Tupper says that " if such powers are intended to apply to railways which are subject to the provisions of the Railway Act, they are, to that extent, ulira vires." But, by section 13 of the North-West Territories Act, R.S.C., c. 50, the power of the legislative assembly to make ordinances is expressed to be subject to any Act of the parliament of Canada at any time in force in the Terri- tories. As to the position in this regard of the provincial legislature, see Propositions 46 and 61, and the notes thereto. Acts Intra Vires in some Applications only. 295 In Attorney-General of Canada v. Attorney- Prop. 22 General of Ontario,^ and the Ontario Act there in The Ex ecu- tive or question, a curious case arose in connection with Pardoning this matter. The Act was 51 Vict., c. 5, and was Case, entitled "An Act respecting the Executive Adminis- tration of Laws of this Province," and provided that: — "In matters within the jurisdiction of the legislature of the province, all powers, authorities, and functions which, in respect of like matters, were vested in or exercisible by the Governors or Lieu- tenant-Governors of the several provinces now form- Use in Act of formula, " so mg part of the Dominion of Canada, or any of the f^r as this . . ... . legislature said provinces, under commissions, instructions, or 'i=»'^ po^^'^"" ■^ _ ' ' thus to Otherwise, at or before the passing of the British ^'i^ct." North America Act, are and shall be (so far as this legislature has power thus to enact) vested in and exercisible by the Lieutenant-Governor or adminis- trator for the time being of this province, in the name of Her Majesty, or otherwise as the case may require, subject always to the royal prerogative as heretofore." Boyd, C, observes- : — "The Act is Per Boyd, c. full of cautionary phrases, saving the royal prero- gative and limiting its provisions to matters within provincial jurisdiction . . It is, perhaps, impos- vaguecom- ... , II- • prehensive- sible to say how much ground this covers; it may benessofan that (apart irom what is specmcali\' named in the invalidate it. next section) not a single appropriate power exists outside of statutes, which will fall within the purview of this enactment. But its vague comprehensive- ness does not make it void if there be suitable powers in matters within the jurisdiction of the prov- ince which are thus annexed to the executive office. And, again, if the section operates on nothing, it may be innocuous, but it is not unconstitutional. ^20 O.R. 222, 19 O.A.R. 31, 23 S.C.R. 458, (1890-4). ^20 O.R. at p. 246. 296 Legislative Power in Canada. Prop. 22 We are not called upon by analysis or criticism of Particular possible powers and functions, which may be em- deait with as braced in the words used, to discriminate as to what are within and what without the scope of the enact- ment ; any particular case is to be dealt with as and when it arises ;" words cited with approval by Four- nier, J., in the Supreme Court. ^ And in the Court So per of Appeal for Ontario, in the same case, Osier, J. A., Osier, J. A. TTTi 11-1 observes- : — " Where the legislatures m passing an Act are careful to say that they only mean it to be effectual so far as they have power to make it so, and no attempt has been made to act upon or to enforce it, it appears to me to be premature to ask for a declaration of its validity," and all the judges of that Court concurred in holding the Act to be intra vires; as did also those of the Supreme Court, wdth the exception of Gwynne, J.^ O'fier Among other cases which illustrate the leading authorities .... . . for Prop. 22. Proposition is Blouin 7;. The Corporation of the City of Quebec* There the validity of a provincial Act which Blouin V. restricted the sale of spirituous liquors between cer- Quebec. . . ... . , tain hours, imposing imprisonment with hard labour as one of the penalties for disobedience, was in question, and Meredith, C.J.,*^says: — "It has not, I believe, been contended that if the provision of law in question was otherwise valid, it ought to be deemed wholly void in consequence of the addition of a penalty which the provincial legislature had not iS.C, 23 S.C.R. at p. 471. 219 O.A.R. at p. 40. ^23 S.C.R. 458. See, also, in connection with the above citations, per Strong, C.J., ?^. at p. 471, and Gwynne, J-, ?^- at p. 475. See, also, j«/r(Z p. 272. And for another instance of an Act being held itttra vires in one application, though it might be uUra vires as to other possible applications, see J^e Windsor and Annapolis R. W. Co., 4 R. «& G. 312, 3 Cart. 387, (1883). 47 Q.L.R. 18, 2 Cart. 368, (1880). S7 Q.L.R. at p. 24, 2 Cart, at pp. 375-6. Acts in Part only Constitutional. 297 power to impose. The part of the law which is objec- Prop. 22 tionable is easily separated from the remainder, and where that is the case, as w-ell according to the law^ of England^ as according to our law, the part which is void cannot defeat that which is valid. - So, also, in Morden v. South Dufferin,^ where a Mordent. • • /• 1 r 11 • 1 South provision for rebate of 10 per cent, on all taxes paid Dufferin. before a certain date was contained in the same section with a provision for the addition of a percentage on all taxes not paid by a certain date, the Court of Queen's Bench of Manitoba held the former intra vires and the latter ultra vires. The provisions, said Taylor, C.J., were entirely distinct from each other. However, on appeal to the Supreme Court of Canada,'^ the Court, (Gwynne, J., dissent- ing), held that even as to the addition of the per- centage the Act was not ultra vires, such percentage No. 19, sect. 1 • • •! • 1 • 1 • r XT 9'' B.N. A. not being " interest within the meaning 01 No. 19 Act. of section gi of the British North America Act. And, in spite of what is said by Ramsay, J., inActincor- the words above quoted from his judgment in company Dobie V. The Temporalities Board, '^ it would seem pan void . . . . and in part that Acts incorporating companies may sometimes valid. be ultra vires in part, without the whole incorpora- tion being invalidated. Thus in Regina v. Mohr," .^Citing Queen v. Robinson, 17 Q.B. 466 ; King v. The Inhabitants of St. Nicholas, 3 A. & E. 79 ; and King v. The Inhabitants of Maulden, 8 B. & C. 78. ^Hodge V. The Queen, 9 App. Cas. 117, 3 Cart. 144, (1883), finally establishes the power of provincial legislatures to impose imprisonment with hard labour. 36 M.R. 515, (1890). *Sud nom. Lynch v. The Canada North-West Land Co., 19 S.C. R. 204, (1891). ^3 L.N. at p. 251, I Cart, at pp. 384-5. Supra p. 290. 67 Q L.R. at p. 190, 2 Cart at p. 266, (1881). 2g8 Legislative Power in Canada. Prop. 22 Dorion, C.J., says, speaking of the Act 43 Vict., c. 67, D., incorporating the Bell Telephone Company with power to build and operate telephone lines in Canada or elsewhere : — " It is not necessary to The Bell decidc whether or not the whole Act of incorpora- Telephone . . . . ^ . - , . Co. tion is ultra vires, it is sufficient for this case that the authority given to erect telegraph poles in the streets of the city of Quebec is ultra vires."' And in the Colonial Building and Investment Associa- tion V. The Attorney-General of Quebec,^ Dorion, The Colonial C. J., with whom Cross and Baby, JJ., concurred, and Invest- says : — " Without deciding that the whole Act ment . •' . ° •. , . Association, incorporating the Company respondent is ultra vires, we hold that the Company has no right to exercise in the province of Quebec the powers conferred by its Act of incorporation, to buy, lease, and sell lands, etc., in the province of Quebec." Tessier, J., however, held the Act of incorporation, which was a Dominion Act, to be wholly void. " He says-: — " It would be a refinement (siibtilite) to con- tend that because there is a question about deben- tures and interest coupons, the Act is within the powers of the federal parliament ; that is not the main {principal) object of the statute, but only an accessory to the main object, and that accessory becomes subject to the general laws of Canada." Colonial In conclusion, it may be noted that the Colonial Validity Laws Validity Act, Imp. 28-29 Vict., c. 63, s. 2, Act* enacts that^: — "Any colonial law which is or shall I27 L.C.J, at p. 304, 3 Cart, at p. 143, (1882). ^27 L.C.J, at p. 299, 3 Cart, at p. 136. The Privy Council, on appeal to it, held the Act in all respects itiira vires: 9 App. Cas. 157, 3 Cart. 118, (1883). ^See per Willes, J., in Phillips v. Eyre, L R. 6 Q.B. at pp. 20-1, cited by Fournier, J., in Allen v. Hanson, 18 .S.C.R. at p. 678. Acts in Part only Constitutional. 299 be in any respect repugnant to the provisions of any Prop. 22 x\ct of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain abso- lutely void and inoperative."^ ^Other citations in support and illustrative of the leading Proposition are : Ex parte Renaud, I Pugs, at p. 291, 2 Cart, at p. 471, (1873) 5 Regina v. McMillan, 2 Pugs, at p. 112, 2 Cart, at p. 491, (1873), where speaking of an Act of the local legislature, imposing penalties for sale of liquors without license, the Supreme Court of New Brunswick said : — " But if they have exceeded their powers, the excess only — that is, the mode pointed out for the recovery of the lines — would be void : Cowan v. Wright, 23 Gr. at p. 626, (1876) ; Keefe v. McLennan, 2 R. & C. at p. 10, 2 Cart, at pp. 406-7, (1876); Johnson V. Harris, I B.C. (Irving) at p. 95, (1878) ; Queen v. The Mayor, etc., of Fredericton, 3 P. & B. at p. 143, (1S79) ; Parent v. Trudel, 13 Q.L.R. at p. 144, (1887) ; and for the case of a by-law, see /« re Crothers and Rural Municipality of Louise, 15 C. L.T. 140, (1895). In Cooley on Constitutional Limitations, 6th ed., at pp. 209-10, the author speaks of part of an Act being unconstitutional, though the Act be not void in toto. It depends, he says, "upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder." Of course the law cannot make any distinction between what is great and what is trivial on a branch of the law, when the legislature has no jurisdiction at all : per Hensley, J., in Munn v. McCannell, 2 P.E.I, at p. 152. 300 Legislative Power in Canada. PROPOSITION 23. 23. A transaction which is ultra vires of the parties to it can derive no support from an Act which is itself ultra vires of the legislature passing it ; nor will the right of those affected by it, to treat it as of no legal force or validity, be interfered with by such an Act. So likewise incapacities imposed upon persons guilty of certain practices by an Act which is ultra vires will not enure against, or affect, those persons. The Privy "Thg flj-gt Dart of thc above Proposition rests Council. '^ '^ upon the judgment of the Privy Council in Burgoin Burgoinv. ^_ -[^^ Compagnic du Chemin de Fer de Montreal.^ Cnemin de r o Mo'tnreai. ^^^ transaction in question in that case was an attempted conveyance by means of a deed and a ratifying Act of the Quebec legislature, of a federal railway with all its appurtenances and all the prop- erty, liabilities, rights, and powers of the e.xisting company to the Quebec government, and through Provincial it to a company with a new title and a different Act assum- . . . , i i r i i ing to organization, dissolving the old rederal company sanction ,,..-. i • i i j transfer of a and substituting lor it one which was to be governed federal rail- ..,,.,. ,_, . , , way to the by and subject to provincial legislation. Iheirlord- provincial . • • • i government, ships held that a Dominion Act was essential to give the transaction between the company and the 15 App. Cas. 381, esp. at p. 406, i Cart. 233, esp. at p. 249, (1880). Nullity of Unconstitutional Acts. 301 government of Quebec full force and effect, and that, Prop. 23 until it was so validated, the public and the creditors of the company, under which category the appel- lants in this case fell, being no parties to the trans- Those not action,^ could not be affected by it, and say- : — " If 5uchatrans- , . , . , . - , action could the transaction, not havmg the sanction of the not be , ^ , affected by parliament of Canada, were tutra vires of the com- ". notwith- standing pany and the government and legislature of Quebec, the Act. it was of no legal force or validity against the appellants, and might be so treated by them whether it were formally set aside or not." The second clause of the Proposition is derived Th^berge v. from the judgment of their lordships in Theberge v. Laudry.^ The Quebec Controverted Election Act, 1875, by section 267, provided that if it was proved before the Court on the trial of an election petition that corrupt practices had been committed by or with the actual knowledge or consent of any candidate, not only the election should be void, but the candi- date should for seven years next after the day of such decision be incapable of being elected to and of incapacities ... .,,.,. , , ^ . imposed by sitting in the legislative assembly, 01 voting at any statute for election of a member of the House, or holding any practices at rp • 1 • • r ^ m r " ^ elections, office in the nomination of the Council of the Lieu- tenant-Governor of the province. One Laudry, having been found guilty of corrupt practices under the above Act by the Superior Court of Quebec, made application to the Privy Council for leave to appeal, and Mr. Benjamin contended on his behalf, that the Act, so far as it engrafted on the decision of the judge the above declaration of incapacity, was ■■■In reference to the qualification, " being no parties to the trans- action," see supra p. 260, n. i. ^5 App. Cas. at p. 406, l Cart, at p. 249. ^2 App. Cas. 102, 2 Cart. I, (1876). 302 Legislative Power in Canada. Prop. 23 ultra vires of the legislature of the province. Their lordships, however, held^ that it was not necessary to express any opinion whatever upon the Cannot take poiut, for that : — " If the Act of parliament was in statute «/^ra this rcspcct, as contended, ultra vires the provincial viyes. legislature, the only result will be that the conse- quence declared by this section of the Act of parlia- ment will not enure against, and will not affect, the petitioner." As Taschereau, J., forcibly remarks in Lenoir v. Ritchie,- speaking of provincial Acts: — " A provin- cial statute passed on a matter over which the legis- lature has no authority or control under the British North America Act is a complete nullity — a nullity A.n ultra of iwu csse. Defectus potestatis, nullitas nullitatum.'" a"ompiete^ And SO in Re Goodhue,^ where an order of the Court had been made to distribute the estate of a deceased testator, as sanctioned by an Act of the local legislature, in spite of contrary provisions contained in the will, which Act was now attacked as 7iltra vires, ^ Draper, C.J., observes: — " If the Act can be shown to be a dead letter, the order founded upon its validity falls lifeless and inoperative." Whether it Aud though in all the above cases the Acts in be Dominion . • • i « . .i i orprovinciai. qucstion werc provmcial Acts, there can be no doubt that what is stated in the Proposition applies as well to Dominion Acts. And the law is evidentlv So, also, in , " the United similar in the United States, for Judge Cooley States. 'JO J says^: — "When a statute is adjudged to be uncon- 12 App. Cas. at p. 109, 2 Carl, at p. 11, (1876). 23 S.C.R. at pp. 624-5, I Carl, at p. 531, (1879). 3 19 Gr. at p. 378, I Cart, at p. 564, (1872). ■*See sti/ra p. 281. ■''Constitutional Limitations, 6lh ed., at p. 222. Nullity of Unconstitutional Acts. 303 stitutional, it is as if it had never been. Rights ppop.23 cannot be built up under it ; contracts which depend upon it for their consideration are void ; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be uncon- stitutional, and which consequently is to be regarded as having never at any time been possessed of legal force." A case of Belanger v. Caron^ has been referred to should the on a former page,- in which Stuart, J., laid it down its own that: — "No Court should, or can, declare an Act declare an , . . . , . Act 2iltra void except in a case where its unconstitutionality tvVc^? is pleaded in due form by some one having an inter- est in questioning the validity of it." This appears an appropriate place to cite the contrary dicta of Meredith, C.J., in Valin v, Langlois,'^ a case decided Per Mere- 1 , • ^T^i • ... dith,C.J.,in about the same time, i here it was contended in valine. . . Langlois. reference to a case cited that, because the constitu- tionality of a certain Act had not been questioned in it, the judges who had decided it could not avoid giving effect to the Act, even if they deemed it unconstitutional. Meredith, C.J., however, says: — " To that view I must say I am altogether opposed, as w'ell upon the ground of authorit}' as upon prin- a legislative . , ,^ . , . , enactment cipie. . . io me it seems plain that a statute must be _ ... , . either void emanating irom a legislature not having power to or valid; it . . or cannot be pass it IS not law; and that it is as much the dutv"iereiy •' voidable. of a judge to disregard the provisions of such a 15Q.L.R. at p. 25, (1879). '■^Supra p. 260, n. i. ■^5 Q.L.R. at p. 16, I Cart, at p. 231, (1879). 304 Legislative Power in Canada. Prop. 23 statute as it is his duty to obey the law of the land. As to the distinction between what is voidable and what is void, I do not think that under our system it is applicable to statutes, which must be either void or valid, — if void, they cannot be rendered more void, and, if valid, they cannot be affected by any judicial Per Duval, authority." And so, also, Duval, C.J., in L'Union St. Jacques de Montreal v. Belisle,^ says: — "The same law which has proscribed boundaries to the legislative power has imposed upon the judges the duty of seeing that that power is not exceeded." - I20 L.C.J, at p. 39, I Cart, at p. 84, (1872). ^See, also, supra pp. 266-7. See, however, Cooley on Const. Limit, 5th ed., at p. 196, et seq. At p. 197 he says : — " Nor will a Court listen to an objection made to the constitutionality of an Act by a party whose rights it does not affect, and who has, therefore, no interest in defeating it." King v. Joe, 8 Ilaw. Rep. 287, may also be referred to. For an unsuccessful attempt to hold respon- sible the members of a provincial Executive Council who had concurred in an ultra vires order in Council for the sale of Crown lands, and in the execution of a deed of the same to a purchaser pur- suant to such order in Council, see Church''. Middlemiss, 21 L.C.J. 319, (1877), afterwards referred to in The Liquidators of the Maritime Bank of the Dominion v. The Receiver-General of the Province of New Brunswick, 20 S.C.R. at p. 698, (18S9). The General Scheme of its Distribution. 305 PROPOSITIONS 24 and 25. 24. The scheme of the British North America Act comprises a fourfold classi- fication of powers : — Firstly, over those subjects which are assigned to the ex- clusive plenary power of the Dominion Parliament; secondly, over those assigned exclusively to the Provincial Legislatures ; thirdly, over subjects assigned concurrent- ly to the Dominion Parliament, and the Provincial Legislatures ; and, fourthly, over a particular subject, namely, educa- tion, which for special reasons is dealt with exceptionally, and made the subject of special legislation. 25. The frame of section 92 of the British North America Act differs from that of section 91 in its form. That of section 91 is general, of section 92 par- ticular.' By section 91, the Liiperial ^" Rut this is precisely in character with the nature of the jurisdiction intended to be given to each," per Gwynne, J., City of Fredericton v. The Queen, 3 S.C. R. at p. 567, 2 Cart, at p. 58, the passage from which this Proposition is derived. Mr. Justice Loranger, however, in his Let- ters upon the Interpretation of the Federal Constitution (first letter), at p. 54, observes : — " The law has granted to the provinces power over all local piatters, in addition to those specially enumerated in the para- graphs preceding paragraph 16. It follows that the concession to the provinces was general, for the aggregate of local and private laws constitutes a generality." See, further, as to Mr. Justice Loranger's view, infra pp. 308, n. 2, 316-7, 342-3. 20 3o6 Legislative Power in Canada. Prop. 24-5 Parliament unequivocally, but in general terms, declares its intention to be to place under the jurisdiction of the Dominion Parliament all matters, excepting only cer- tain particular matters assigned by the Act to the Local Legislatures. The 92nd section, therefore, instead of dealing with the subjects to be assigned to the Local Legislatures in the same general terms as had been used in the 91st section, by placing under the jurisdiction of those legislatures all matters of a purely local or private nature within the Province, (a mode of expression which would natu- rally lead to doubt and confusion, and would be likely to bring about that con- flict which it was desirable to avoid), enumerates, under items numbered from I to 15 inclusive, certain particular sub- jects, all of a purely provincial, municipal, and domestic nature, that is to say, "of a local or private character," and then winds up with item No. 16, to prevent the particular enumeration of the " local and private " matters included in items I to 15 being construed to operate as an exclusion of any other matter, if any there might be, of a merely local or pri- vate nature.^ ^See, also, Propositions 26, 27, 28, 49, 59, 64, and 66, and the notes thereto. J The General Scheme of its Distribution. 307 The above Propositions are derived from the Prop. 24-5 judgment of Gwynne, J., in City of Fredericton v. The Queen, ^ and, so far as the first of them is con- cerned, the words are almost identical with those used by Lord Carnarvon in moving the second reading of the Act in the House of Lords. - The learned judge goes on to state the propriety and wisdom, in his view, of this mode of framing the two sections, as follows : — "The wisdom of this city of mode of framing the gist and gznd sections appears r-. , , , . , . , The Queen. when we read the items enumerated in the gist section, some of which might be well considered to be matters which would come within some of the subjects enumerated in the g2nd section; but the scheme of the Act being to vest in the local legisla- Per tures all matters of a purely provincial, municipal, and domestic, or ' of a local or private ' nature, and in the Dominion parliament all matters which, although they might appear to come within the description of provincial, or municipal, or 'local or The mode , , J . . of framing private, were deemed to possess an interest insects. 91 and which the inhabitants of the whole Dominion might b'.n.a. Act. be considered to be alike concerned, and that, therefore, these matters should be under the con- trol of the Dominion parliament, in order to prevent doubt as to those matters it was, as it seems to me, a necessary and wise provision to make, that not- withstanding anything in the Act, and however The , - , . , . , concluding much any 01 the items enumerated in the gist sec- clause of tion might appear to come within the subjects which, as being of a purely ' local or private ' nature, were enumerated in the g2nd section, yet they should not 13 S.C.R. at p. 562, 2 Cart, at p. 55, and 3 S.C.R. at pp. 566-7, 2 Cart, at pp. 58-9, (iSSo). 2Hans., 3rd Ser., Vol. 185, at p. 565, quoted again by Gwynne, J., in /« re Prohil^itory Licjuor Laws, 24 S.C.R. at pp. 209-10, (1S95). 3o8 Legislative Power in Canada. Prop. 24-5 be deemed to come within such classification or description."^ And this judgment of Gwynne, J., is cited by Mr. Todd in a passage in his ParHamentary Govern- ment in the British Colonies, where he savs : — " The true principle of interpretation applicable to the distribution of powers under the British North America Act to the Dominion and provincial legis- B.N.A. Act are examples latures respcctivcly is pointedly expressed by Chief only of ^ . . , , , , . Justice Harrison, who states that the exclusive legislative powers assigned to the Dominion parlia- ment by section gi of the British North America Act are designed as examples merely of the powers conferred, while section 92 appears to enumerate all the exclusive powers capable of being exercised by the local legislatures. This principle was con- firmed by Mr. Justice Gwynne."- Harrison, C.J., it may be added, in the judgment cited, points out Subjects specified in sect. 91 of Dominion powers. The con- cluding clause of sect. 91. ^However, the authorities referred to in the notes to Proposition 59 {q-V.) would seem to show that the learned judge has here miscon- ceived the proper force and meaning of the concluding clause of section 91 ; but the effect which he attributes to it would seem to have been secured by the earlier provision in that section that, " notwithstanding anything in this Act, the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of sub- jects next hereinafter enumerated." See per Gwynne, J., in City of Frederict. Mercer, 5 S.C.R. at pp. 656-7, 3 Cart, at p. 43, (iSSi), and in Queddy River Driving Boom Co. v. Davidson, 10 S.C.R. at p. 236, 3 Cart, at p. 258, (1883). And so per Weatherlae, J., in The Queen v. Ronan, 23 N.S. at p. 448, (1891), and per Meagher, [., S.C. at p. 460. But see per Henry, J., himself, in Valin v. Langlois, 3 S.C.R. at p. 65, I Cart, at p. 201, (1S79). »7 App. Cas. 136, I Cart. 351, (18S2). *At p. 154. ^At pp. 166-7. Board. 314 Legislative Power in Canada. Prop. 26 could not pass an Act to raise a revenue for provin- cial purposes from tavern licenses in New Brunswick and Nova Scotia, could Parliament do it ? New Brunswick could not pass an Act on solemnization of marriage, pure and simple, for New Brunswick and Nova Scotia, could Parliament do it ? " and so on. Now, in the first place, in Dobie v. The Tempo- ralities Board, ^ their lordships especially point out that, in their opinion, the provincial Act under con- sideration did not fall within any of the classes enumerated in section 92, and thereby assigned to Dobie V. the provincial legislatures; and that it did not, in The Tempo- ^ , . . 1 1 t ^ i ■ , t • i i ■ -i raiities thcir view, deal directly with property and civil rights, but with the civil rights of a corporation, and of individuals, present or future, for whose benefit the corporation was created and exists," and that "the corporation and the corporate trust, the matters to which its provisions relate, are in realit}' not divisible according to the limits of provincial author- ity," and that therefore it was difficult to understand how the va^.yi\ra jnnctn jiivant was applicable, for-': — " If the legislatures of Ontario and Quebec were allowed jointly to abolish the Board of 1858, which is one corporation in and for both provinces, they could only create in its room two corporations, one of which would exist in and for Ontario and be a for- eigner in Quebec, and the other of which would be foreign to Ontario, but a domestic institution in Quebec." Hence it is clear that their lordships by no means there held, as Judge Travis represents, that Parliament could pass an Act directly relating to property and civil rights in the provinces of ^7 App. Cas. 136, I Cart. 351, (1S82). 27 App. Cas. at jx 152, i Cart, at p. 371. Judge Travis' Criticisms. 315 Ontario and Quebec/ or that legislative power Prop. 26 over that subject, or rather subjects, did not lie in the united jurisdictions of the legislatures of those two provinces. They were not dealing with an Act Dobie 7,. upon matters coming Within the classes or subjects raiities enumerated in section 92 at all. And, secondly, their lordships nowhere say that because no single prov- ince can pass an Act in relation to the classes of matters enumerated in section 92, but embracing another province as well as itself, therefore Parlia- ment can do so.- Their lordships, however strictly their language may be construed, do not say that power so to legislate by a single Act, or by Acts of any single legislative body, exists anywhere;'^ what they do say is that legislative power over such sub- ^If their lordships had so held, il would have been difficult to account for the form of section 94 of the British North America Act, the intent B.N. A. Act, of which, it is submitted, is to provide that Parliament may do what, sect. 94. under sections 91 and 92 alone, it could not do, namely, legislate directly for the purpose mentioned upon property and civil rights, and legal procedure in civil matters, in the provinces named, but still subject to the restriction that such Dominion Act should not have effect in any such province unless adopted as law liy the provincial legis- lature, after which the power of Parliament to legislate in relation to any matter comprised in any such Act should be unrestricted. And see per Strong, V.C., in Re Goodhue, 19 Gr. at p. 452, i Cart, at p. 573, (1872), and Proposition 68 and the notes thereto. -In the argument in Hodge v. The Queen, before the Privy Council, in 1883, (Doni. Sess. Pap., 1884, Vol. 17, No. 30, at p. 27), Sir Arthur Hobhouse, one of the Board, observes: — " Russell v. The Queen does not intend to decide that if the subject is one attributed to the provin- cial legislature, the Dominion can get seizin of it by extending the extent of it beyond the provinces;" and no dissent is expressed to this by any of their lordships. And see the notes to Propositions 27 and 28, infra. See, also. Proposition 33 and notes thereto. ^In this sense it is no doubt quite true, as Mr. Edward Blake says in his argument in St. Catharines Milling and Lumber Co. V. The Queen, sometimes termed the Ontario Lands case, that : — " Inherent in the federal form there is with its advantages, great as they are, what may be deemed a defect, — it has the defects of its quali- ties ; and there are some things which cannot at all be done, or at any rate done by the central authority in a federal union, which cannot at all be done iiiodo et fcriiia in which they may be done in a legislative union :" see this argument as printed by the press of " The Budget," 64 Bay Street, Toronto, 1SS8, at p. 8. And so per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C.R at p. 241, (1S95), whose views conflict with those of Hughes, C.J. , in Clemens v. Bemer,7 C.L.J, at p. 127, (1S71), q.v. 3i6 Legislative Power in Canada. Prop. 26 ject, or rather subjects, exists somewhere, for " the Federation Act exhausts the whole range of legis- lative power," and where it exists, it is submitted, clearly is in the different provincial legislatures legis- lating in concert each for its own province.^ And if Judge Travis has misread the judgments of the Privy Council in one way, Mr. Justice Loranger, Lorangcr, in what mav be termed in some respects J.'s pamph- , . . 11/ his rival pamphlet, already several times referred to,- has, it is humbly submitted, misread them in another way. For he advances'^ as a line of demarcation between the legislative power of the let. Judge Travis' own views. ^When Judge Travis, having disposed of what he terms " the horrid perversion "of the British North America Act by the Privy Council, pro- ceeds himself to formulate "tests to ht applied in order to decide whether an Act is ttifra vires Parliament or not," he does so in terms which are very confused, and certainly throw no light upon the words of the Act, so far as the opening words of section 91 are concerned. They are, as put at pp. 1 50- 1 of the treatise, as follows : — " Does the Act in question, bona fide, and as legitimate legislation on the subjects-matter in question, come within any of the subjects-matter enumerated in or covered by section 91, that is to say, all matters not coming within section 92, and on the enumerated subjects in section 91, whether they come within the subjects-matter in section 92 or not? If so, then that is good legis- lation within the power of Parliament, under the express language of the Act." " That," he adds, " we take it, as between sections 91 and 92 of the Act, covers the whole ground." See to like effect at pp. 178-9. It would seem, however, from a general study of his treatise, that Judge Travis' view is that the Dominion parliament can only legis- late for the peace, order, and good government of Canada, (save as to matters coming within the classes of subjects enumerated in section 91), provided they do not in such legislation at all touch or interfere with matters assigned to the provincial legislatures under section 92. This, however, would probably be impossible, and thus the opening words of section 91 would be denuded of all practical effect as conferring legis- lative power. See the notes to Proposition 37. It is scarcely neces- sary to point out that the Canada Temperance Act, 187S, interfered with the power of the provincial legislatures to legislate for raising a revenue for provincial purposes by means of tavern licenses, and affected property and civil rights in the provinces ; but in Russell v. The Queen, 7 App.'Cas. 829, 2 Cart. 12, (18S2), the Judicial Committee held, never- theless, that it was intra vires of the I)ominion parliament under its general authority to make laws for the peace, order, and good govern- ment of Canada. Cf. per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at pp. 240-1, (1S95J. -Letters upon the Interpretation of the Federal Constitution (first letter), Quebec, 1SS4. 3At pp. 56-7. Judge Loranghr's Views. 317 provinces and of the Dominion a proposition which Prop. 26 is certainly at variance with the Privy Council decisions, to which, however, he does not at all refer, namely, that if a subject-matter " interests," or " affects," less than all the provinces it is local, and must be left to be disposed of by the legislatures, and that it is only if it " affects " or " interests " all the provinces that it is within the competence of Parliament. The Act in question in Dobie v. The Temporalities Board ^ affected only two provinces, yet because neither one nor both of those provinces The general could have given legislative force to its provisions, power of , »,...^-, . 1111 1 T-\ ■• Parliament. the Judicial Committee held that the Dominion parliament alone could enact them. The leading Proposition points out that distribu- tion of legislative power which, as Crease, J., says in the Thrasher Case,- "may one day, though in the The perhaps distant future, expand into national life." cale.' ^"^ Section gi of the British North America Act, he says in the same case,'^ he has from the first exam- ination into the Act regarded " as the legal keystone of Confederation, without which the whole fabric built up with such exceeding care would infallibly tumble to pieces from absolute lack of power of cohesion." And, again,* this section, he says, appears to him "'to contain the legal germ of develop- ment of the Union in the future, clearly shadowed forth in the early speeches of Sir John Macdonald." Lord Airi • irTi^-> •■ Carnarvon. And'' he cites words or Lord Carnarvon, in introduc- ^7 App. Cas. 136, I Cart. 351, (18S2). And see Proposition 51 and the notes thereto. 2i B.C. (Irving) at p. 195, (1882). ^At p. 199. *At p. 200. ■"^At p. 202. 3i8 Legislative Power in Canada. Prop. 26 ing the Act into the House of Lords, ^ in reference, as he says, to this gist section : — " In this is, I think, comprised the main theory and constitution of federal government ; on this depends the practical working of the new system. The real object which we have in view is to give to the central government Importance thosc high functious and almost sovereign powers of Dominion i • i i • • i i ■ r ■ r powers. b}' which general principles and uniiormity of legislation may be secured in those questions that are of common import to all the provinces ; and at the same time to retain for each province so ample a measure of niunicipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community." - It is in the sense of the leading Proposition that, as stated by Ritchie, C.J., in Valin v. Langlois^: — "The British North America Act vests in the Dominion parliament plenary power of legislation, in no way limited or circumscribed, and as large, iHans., 3rd Ser., Vol. 1S5, p. 563. -Crease, J., goes so far as to say (S.C. at p. 199): — "The very groundwork and pith of the Constitution is that the Dominion is dominus," and that "on this very point of supremacy of the Dominion where fetleral and provincial laws conflict, and even sometimes where they may concur, in my humble opinion, depends the stability and ulti- mate success of this great Confederation." It seems indeed to be established law, as expressed in Proposition 46, that where over matters with which provincial legislatures have power to deal provincial legis- lation directly conflicts with enactments of the Dominion parliament, whether strictly relating to the enumerated classes of subjects in section 91, or by way of provisions ancillary to legislation on the said classes of subjects, the provincial legislation must yield to that of the Dominion parliament ; and this, together with the e.xistence of the federal veto power, which has been treated of in connection with Proposition 10, may be thought to justify such language, notwithstanding that it is equally well established, as shown in the notes to Proposition 61, that if, on due construction of the British North America Act, a legislative power falls within section 92, it is not to be restricted or its existence denied because by some possibility it may limit the range which other- wise would be open to the Dominion parliament. 33 S.C.R. at p. 16, I Cart, at p. 173, (1S79). General Residuary Powers of Parliament. 319 and of the same nature and extent, as the parha- prop. 26 ment of Great Britain, by whom the power to legislate was conferred, itself had^;" and that, as Gwynne, J., expresses it in Citizens Insurance Co. V. Parsons,- the Dominion parliament has "the supreme jurisdiction to legislate upon all subjects whatsoever, except as to certain specific matters particularly enumerated, purely of a local, domestic, and private nature, which were assigned to the provinces."-^ It was under this general legislative power of the instances of _^ . . . . . , .--^ . . . Dominion Dommion parliament that the Uommion Act, 31 legislation Vict., c. 76, whereby authority is conferred upon general Courts and judges in Canada to make orders for the examination in the Dominion of any witness or party in relation to any civil or commercial matters pending before any British or foreign tribunal, was held to be intra vires, in Ex parte Smith.* It was objected that it was matter of procedure, and there- fore within the jurisdiction of the provincial House; but Torrance, J., held that it was " a matter of international comity, and the Act is one upon which the Dominion parliament might very properly pass." ^See, also, Proposition 17 and the notes thereto. 24 S.C.K. at p. 333, I Cart, at p. 338, (1S80). ^So, also, per Fournier, J., in .Severn v. The Queen, 2 S.C. R. at p. 120, I Cart, at p. 464, (1878); per Dorion, C.J., in Ex parte Dansereau, 19 L.C.J, at pp. 231-2, 2 Cart, at p. 190, (1875). In The North British and Mercantile Fire and Life Ins. Co. v. Lambe, (Bank of Toronto v. Lambe), M.L.R. i Q.B. at p. 166, 4 Cart, at p. 60, (1885), Tessier, J.) draws an inference in favour of a liberal interpretation of provincial powers from the fact that the special powers of the Dominion parliament in certain cases are specified in section 91 of the British North America Act, "as in a treaty between two independent parties which specifies the rights belonging to each of the two," instead of the section merely defining the powers of the provincial legislatures, and then saying that all other powers belonged to the federal parlia- ment. But it is submitted that the specification of certain powers of Parliament in section 91 was made rather in the interest, if one may so s.ay, of Parliament than of the provinces: see supra p. 308, n. i. *i6 L.C.J. 140, 2 Cart. 330, (1872). 320 Legislative Power in Canada. Prop. 26 To it also, in Canadian Pacific R.W. Co. v. North- ern Pacific R.W. Co./ Killam, J., says may be attributed the provision of the General Railway Act of Canada, 51 Vict., c. 29, that no provincial railway shall cross a Dominion railway without making application to the Railway Committee of the Privy Council of Canada, though he suggests that it may also be upheld as incidental to the powers of the Dominion parliament to authorize the construction of certain railways. Of course, as the leading Proposition indicates, - the powers conferred upon the Dominion parlia- Powersof meut arc subject to the express provisions of the parliament ■ • i are subject British North America Act, For example, as put to provisions ofB.N.A. bv O'Connor, T., in Gibson v. ArDonald'^:— " The Act itself. " . . exclusive right to appoint the judges is reserved to, and vested in, the government of the Dominion, and even the parliament of the Dominion cannot divest the government of that power, for it cannot 15 M.R. at p. 313, (1SS8). The Canada Temperance Act, 1878, of course affords the most striking example of the exercise of the general powers of Parliament : see p. 31 1, su/>rtz. It would seem, also, that it must have been under them that the law officers of the Crown in England held, as stated in a despatch from the Secretary of State, of March 29th, 1S77, that it could empower the Lieutenant-Governor of Nova Scotia Nova Scotia, to alter the Great Seal of the province, and also could validate the Great Seal ^^^^ ^^g ^f jj^g ^j^j Qrg^t Seal of the province after and contrary to the injunctions of a royal warrant, directing, in 1869, the use in future of a new seal and the return of the old seal, and could make good all documents passed under it ; though Mr. Edward Blake, as Minister of Justice, doubted whether it had such power : Can. Sess. Pap., 1S77, No. 86, pp. 48-9. And see supra p. 115, note. The despatch there referred to (of August 23rd, 1S69) says : — " I am advised that, the assent of the Crown being first obtained, local Acts afterwards assented toby the Crown would be a legal modeof empowering this alteration," (5^., of the provincial Great Seal), "to be made in those provinces where it is not at present legal ; "' it would seem from the later despatch above referred to, that by "local Acts" here was probably meant Dominion Acts, and not provincial Acts, as stated sitpra p. 115, note. Nevertheless, it is submitted upon the authorities cited in the notes to Propositions 7, 8, and 9, that such powder would belong to the provincial legislatures. 2 And cf. supra pp. 258-41, 250- 1. ^^ O.K. at p. 419, 3 Cart, at p, 328, (1885). As to removal of judges, see supra p. 128, n. i. The British North America Act Controls. 321 so change the British North America Act." And Prop. 26 so in the matter of the Grand Trunk R.W. Co., the Credit Valley R.W. Co., and the Northern R.W. Co.,^ Taschereau, J., held in the Supreme Court of Canada that section loi of the British North America Act gives the Dominion parliament power to grant an appeal from provincial Courts of last resort only, and that, therefore, 42 Vict., c. 39, s. 6, D., was ultra vires." And there are, of course, other ways in which, as Wilson, J., says in Regina V. Taylor,^ "from the inherent condition of a dependency," the powers of the Dominion parlia- ment are "necessarily and impliedly restricted."* Again, as the leading Proposition also indicates, Powers of ,,.,. I- . .. ,. Parliament the legislative powers of the Dominion parliament do not ex- tend beyond do not, any more than those existing in any other territorial •^ _ . limits of country, extend beyond its own territory ;^ and here Canada. ^Doutre's Constitution of Canada, at pp. 337-9. ^See further, as to section loi, McLaren z'. Caldwell, 3 C.L.T. 343, {1883); also II C.L.T. at p. 147; and an article on the power of provincial legislatures to limit appeals to the Supreme Court, 2 C.L.T. 416. 336 U.C.R. at p. 191, (1875). *As to the Imperial veto power, see supra at pp. 202-3 '■> ^^ to the sovereign authority of the Imperial parliament generally, see Proposi- tion 12 and the notes thereto ; as to control by Imperial treaties, see supra pp. 255-9. ^" The statutes of this realm have no power, are of no force, beyond the dominions of Her Majesty, not even to bind the subjects of the realm, unless they are expressly mentioned, or can be necessarily im- plied, and I apprehend it becomes, therefore, a rule in construing a statute not to extend its powers beyond the realm, whether to create a disability or to confer a privilege : " per L. C. Baron Pollock, Jeffery v. Boosey, 4 H.L.R. at p. 939, (1854). "Statutes must be understood in general to apply to those only who owe obedience to the laws, and whose interests it is the duty of the legislature to protect. Natural-born subjects, and persons domiciled or resident within the Kingdom, owe obedience to the laws of the Kingdom, and are within the benefits con- ferred by the legislature :" per Jervis, L.J., S.C. at pp. 946-7. Cf. per Lord St. Leonards, S.C. at p. 955, who adds : — " When I say that the legislature musi pru/td/arte be taken to legislate only for its own subjects, I must be taken to include under the word ' subjects ' all persons who are within the Queen's dominions, and who thus owe to her a tem- porary allegiance." And so per Parke, B., S.C. at p. 926, and Lord 21 322 Legislative Power in Canada. Prop. 26 we are introduced to a subject to which certain recent decisions in England, and in the province of On- tario, have lent a special interest. The matter can, however, be but briefly dealt with in this work, and, indeed, the law in regard to it may not be com- pletely, in all points, settled. Different classes of extra-terri- torial laws. It seems convenient to make a threefold distinc- tion between the different classes of what may be termed extra-territorial statutes which have come into question in the reported cases, and to treat separately of them, as follows : — 1. Statutes relating to the removal of persons from the territory of the law-maker. 2. Statutes purporting to affect and control the civil rights and propert}' of foreigners residing out- side the territory of the law-maker, or, in the case of British colonies, the civil rights and property of foreigners or British subjects, residing outside the colony. 3. Statutes purporting to bring under the criminal laws of the territory of the law-maker acts done outside that territory. Upon each of the above classes of statutes I propose to make a few observations. It is, however, impor- tant to remember with regard to all of them that a statute may be valid within the territory of the law- maker, and such as to bind the Courts there, and yet may not be such that foreign countries or foreign Brougham, S.C. at p. 970. See, also, Macleod v. Attorney-General of New South Wales, [1891] A.C. 455, infra pp. 336-8 ; and Clement's Canadian Constitution at pp. 185-6, and cases there cited. And so in the Australian case of Regina z'. Call, j^x/az/is Murphy, 7 V. L. R.,L. at p. iiS, (1881), Stawell, C.J., says that it is the duty of the Court to assume, unless the contrary is expressly conveyed, that parliament," {sc, the colonial lei^islature), " has not attempted to exceed their territorial limits of legislation." Cf. per Stephen, J., S.C. at p. 120. Extra-Territorial Legislation. 323 Courts of justice will recognize it, or judicial decrees Prop. 26 obtained under it, either because it offends against " international law, or for other reasons. But with La\vsauth- regard to the first of the above classes of statutes apauionor .... ,,,. ,, ,, transporta- further distinction should, it would seem, be drawn tion. between expelling or banishing from the territory of the law-maker, and transporting to another country,^ the latter necessarily involving restraint of the per- son when outside the territory of the law-maker. The former would seem open to no sort of legal objection, while it is otherwise as regards the latter. Leonard Watson's case" would, indeed, seem, from Leonard , , 1 r , - . , . Watson's the headnotes 01 the reports or it, an authority to case, show that even the latter power exists. It was a proceeding by way of habeas corpus in connection with the transportation to Van Diemen's land, under authority of an Act of the legislature of Upper Canada, i Vict., c. 10, of a number of Canadian prisoners, who had been concerned in the late in- surrection, and were then confined in England on their way to that place. In Adolphus and Ellis the headnote reads : — " The provincial legislature under Imp. 31 Geo. 3, c. 31,^ had the power to pass laws for transportation extra fines, which power is recog- nized in Imp. 5 Geo. 4, c. 84, s. 17;"* while in Perry ^It would seem that the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner : In re Adam, I Mo. P.C. 460, at p. 471, (1837) ; Toy v. Musgrove, 14 V.L.R. 349, [1891] A.C. 272. -9 A. & E. 731, (1839). S.C, sub 7iom. Queen v. Batchelor, i P. & Dav. 516. ^The Constitutional Act. Section 2 enacts that His Majesty, by and with the advice and consent of the Legislative Council and Assembly of the province of Upper Canada, and of Lower Canada, respectively, shall have power "to make laws for the peace, welfare, and good govern- ment thereof." *This enactment recites that " by the laws in force in some parts of His Majesty's dominions not within the United Kingdom, offenders con- victed of certain offences are liable to be punished by transportation be- 324 Legislative Power in Canada. Prop. 26 and Davison, the headnote reads: — "Held that the return was not bad for any of the following ob- jections: — . . That the colonial legislature could not authorize transportation intra fines of another terri- tory." But on perusing the case we find that Lord Denman, C.J,, who delivered the judgment of the Court of Queen's Bench on this part of the case, merely says^ that Imp. 5 Geo. 4, c. 84, s. 17, proves the frequency of transportation from certain colonies for criminal offences ; and he does not specifically refer to the objection taken by counsel for the prisoners, that the colonial legislature could not " authorize trans- portation and detention beyond the bounds of the province."- And even if it be assumed that the Court Leonard acceptcd to the full the argument of counsel for the Watson s '^ _ '^ case. Crown in the case, that argument appears to rest upon the effect of the Imperial Act, 14 Geo. 3, c. 83, s. 11,^ importing the criminal law of England into Canada, and upon the recognition by the later Im- perial Act, 5 Geo. 4, c. 84, s. 17, above referred to, of colonial laws authorizing transportation in criminal cases.* In no view does Leonard Watson's case carry the matter beyond the power of the legislature of Upper Canada to legislate for transportation in yond the seas," and enacts that any such convicts as shall have been brought to England in order to be transported may be there imprisoned until transported. 19 A. & E. at pp. 783-4, I P. & Dav. at pp. 547-8. 29 A. lS: E. at p. 767. ^The Quebec Act. The section provides that the criminal law of England "shall be observed as law in the province of Quebec, as well in the description and quality of the offence, as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted," etc. 49 A. & E. at p. 754 ; l P. & Dav. at p. 536. Cf. The Canadian Prisoners' case, 15 M. & W. at p. 46, and Queen v. Mount, L. R. 6 P.C. at pp. 301-2, (1875). In Leonard Watson's case, counsel for the prisoners admitted that the colonial legislature might banish a man out of its own country, but maintained that it could not transport him intra fines of another country. Extra-Territorial Legislation. 325 criminal cases, such power being rested upon special Prop. 26 recognition by the Imperial parliament.^ In 1839, about the time of the decision in Leonard Laws Watson's case, the law officers of the Crown in r"ans°p"rta? England gave an Opinion upon the legality of an ordinance passed by the Governor and Council of Lower Canada, under an Imperial Act authorizing them to make such laws or ordinances for the peace, welfare, and good government of the province of Lower Canada as the legislature of Lower Canada as then constituted was empowered to make, and which ordinance directed certain persons to be Opinion of transported to Bermuda and detained there. Theo'rVe law officers expressed the view that the power to banish existed, but that, "with respect to that part of the ordinance which is to be executed beyond the limits of the province of Lower Canada, we are of opinion that it would acquire no force by being con- firmed by Her Majesty."- Boyd, C, refers to this Opinion in Regina v. Brierly,^ saying that it " is evi- Reg. v. dently based upon the general rule that the laws of ^'""'^' a colony cannot extend beyond its territorial limits, as expressed more recently in Low v. Routledge,"* a case presently to be again referred to. He adds: — "The law officers considered part of the ordinance invalid, because it attempted to justify restraint of the person beyond the confines of the iThe way in which in Leonard Watson's case the prisoners were delivered up by Her Majesty's representative in Upper Canada to her representative in Lower Canada, and by him to the executive govern- ment in England, illustrates the unity and indivisibility of the Crown throughout the Empire See stipra pp. 81-6. ^Forsyth's Cases and Opinions on Constitutional Law, at pp. 465-6. 3l4 O.K. at p. 534, (1887). Ferguson, J., also refers to it, S.C. at pp. 542-3. This case will be more particularly referred to in con- nection with the third division of the subject under discussion. *L.R. I Ch. at p. 47. 326 Legislative Power in Canada. Prop. 26 province, and in another colony, in the case of poH- tical offenders deported without trial before any tribunal. Whether that conclusion may not be affected by the case of Leonard Watson,^ so as to justify a qualified or provisional restraint without the province, I need not pause to consider." Quite in accordance with the view that a colonial legislature cannot authorize constraint of the person beyond the limits of the colony is the report as Sir John Minister of Justice of Sir John Macdonald of Aug- ust 25th, 1873,- in which he pronounced an Ontario enactment (36 Vict., c. 31, s. 29) objectionable which empowered the Lieutenant-Governor by his warrant to authorize the removal of any insane person who had come or been brought into the province back to the province or country from which he had been brought. He says : — " It is believed that the pro- vincial legislature has no power to authorize any such extradition. For the purpose of authorizing an insane or any person to be removed from one province of the Dominion to another, legislation must be procured from the parliament of Canada, and for the purpose of removing out of the Dominion An an Act must be passed by the Imiperial parliament." Australian _ '^_ •' ^ "^ . authority. So in the Australiau case of Ray v. McMackin,^ the Supreme Court of Victoria held that though the legislature of a colony might authorize the exclusion from its territory of a person charged with an offence in another colony, or that he be punished unless he leaves the territory, it cannot authorize the sending him in custody out of its territory into another colony, and they refused to recognize as 19 A. cS: E. 731, I P. & Dav. 516,(1839). ^Hodgins' Prov. Legisl., Vol. i, p. 73. 3iV.L.R.,L. 274, (1875). Extra-Territorial Legislation. 327 valid a statute of the colony of New South Wales Prop. 26 assuming so to do. Barry, J., says : — " The power of extradition from any part of the British dominions to another, or from any part of them to those of a foreign power by treaty, requires the sanction of the Imperial parliament."^ In the subsequent Victorian case, indeed, of Regina v. Call, Ex parte Murphy, - Higinbotham, J., held that though the Act of the Victoria legislature which he was then considering did authorize in certain cases the imprisonment of a person beyond the geographical limits of Victoria, and that, " as a matter of abstract speculation, the legislature of Victoria had no jurisdiction beyond these limits," yet the law was nevertheless binding on Victorian Courts and magistrates, but this view ^At p. 281. vSo in The Brisbane Oyster FisheryCo. v. Emerson, Knox, (N.S.W.), at p. 86, (1877), Sir J. Martin, C.J.,says, (7^/Vtr;—" What- ever the powers of the Imperial legislature over all British sulijects, wherever they are, may be, it cannot l)e contended for a moment that any colonial legislature can bind persons residing out of its colony. Laws This difficulty has been practically felt wherever it has been proposed detent7on'^f to establish a colonial navy, inasmuch as our legislature has no coercive the person jurisdiction outside the limits of our own territory." And it \yo\Ad extra Jines. appear that on the question being raised before the Supreme Court of New Zealand in 1879, " it was adjudged that the colonial legislature had no power to authorize the conveyance on the high sea to another colony, and the detention outside its own jurisdiction of any person whatsoever. Such power must be exercised, or expressly conferred on the local legislature, by Imperial enactment:" Todd's Pari. Gov. in Brit. Col., and ed., p. 303, q.v. In a debate in the House of Lords, on April i6th, 1875, upon the exercise of the prerogative of pardon in colonies enjoying responsible government, a case being mentioned where the governor of New South Wales had commuted a sentence of imprisonment conditionally on the offender absenting himself from the Australian colonies, Lord Carnarvon, Secretary of State for the Col- onies, observed : — " The colony, as a part of the Empire, had no right to transport a criminal to another part of the Empire." To which Lord Belmore, who had been governor of New South Wales, replied that: — " There was difference between exile and transportation. Nobody in New South Wales ever supposed that a governor could transport, but he could pardon on condition of a prisoner exiling himself for the remainder of the term of his sentence : " Hans., 3rd Ser. , Vol. 223, at p. 1074. Imp. 6-7 Vict., c. 34, provides that offenders charged with certain felonies may be apprehended by virtue of a warrant issued as therein mentioned in any part of Her Majesty's dominions, and may be sent to the place where the offence was committed. 27 V.L.R., L. at p. 118, (1881). 328 Legislative Power in Canada. Prop. 26 has been already adversely commented on.^ It seems clear that if the limitation to the powers of colonial legislatures indicated in the above authori- ties, which it will be observed are not of the highest order, really exists, even in respect to the colony's own subjects,- it must rest upon the proper inter- pretation of the fundamental laws under which such powers are derived, and not upon any rules of inter- national law, and the same remark applies to all other kinds of extra-territorial laws in their applica- tion to subjects of the law-maker. Proceeding now to the second division of the subject above mentioned, namely, statutes purport- Laws ing- to affect and control the civil rights and affecting '^ r 1 -^ rights and property or persons residmg out oi the territory persons of the law-makcr, the point decided in Low v. abroad. Routledge^ is that a colonial legislature cannot affect an alien's rights beyond the limits of the colony. There the plaintiff, an alien, temporarily resident in Montreal, claimed to be entitled to copyright under the Imperial Copyright Act, 5-6 Lowz'. Vict., c. 45, in respect to a book she was publishing Routiedge. -^ England, and it was unsuccessfully contended that she could not be so entitled because by a Canadian statute an alien coming into Canada for the purpose of publishing a work, as the plaintiff had done, and publishing his book there, would not be entitled to copyright in the work so published, "^Supra p. 263, n. I. 2For a justification of this expression see infra p. 329. Boyd, C, says in Reg. z*. Brierly, 14 O.R.at p. 533, (1887) : — "0^(7a;/ Canada, and as to British subjects resident here, the parliament of Canada has the same authority as that possessed by the Imperial parliament with reference to British subjects throughout the realm ; " and it is submitted that this is the necessary conclusion from the authorities upon which Proposition 17 rests, to some of which he refers. 3L.R. I Ch. 42, (1865). See supra pp. 213-6. Extra-Territorial Legislation. 329 and because an alien coming into Canada could Prop. 26 acquire only such rights as were given by the law of Canada. Sir G. J. Turner, L.J., however, deliver- ing the judgment of the Court, says^: — "This argument on the part of the defendants is, in truth, founded on a confusion between the rights of ani-ow^'. ° . Routledge. alien as a subject of the colony,- and his rights as a subject of the Crown. Every alien coming into a British colony becomes temporarily a subject of the Crown, — bound by, subject to, and entitled to the benefit of the laws which affect all British subjects. He has obligations and rights both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws ; but as to his rights beyond the colony, he cannot be affected by these laws; for the laws of a colony cannot extend beyond its territorial limits."^ Most of the decisions ^At pp. 46-7, '^This expression, "subject of the colony," is significant and important. In an article in 31 C.L.J. 7, entitled "Can a Colonial legislature affix a criminal character to acts committed beyond its territorial limits?" the writer says that "there is no such thing as a Canadian, Australian, or Indian subject ; " and in an international sense no doubt this is so ; but the above dicta, and other authorities presently to be referred to, {infra pp. 332-3), show that in connection with the matters under discussion there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such. See the dictum of Boyd, C. , in Regina v. Brierly, supra p. 328, n. 2. ^It would seem that the status of individuals resident in the colonies must be determined by the law of England, but the rights and liabilities incidental to such status must be determined by the laws of the colony: In re Adam, i Mo. P. C. 460, (1837); Donegani v. Donegani, 3 Kn. at p. 85, (1835); I-^egina v. Brierly, 14 O.K. at P- 533> (1887). The status in question in In re Adam, and Donegani V. Donegani, was that of an alien. The principle thus laid down may be the one governing the curious case put by Stephen, J., in In re Victoria Steam Navigation Board, 7 V.L.R., L. at p. 265, (1881), of a colonial Act assuming to affect the status of an English barrister in the colony, by enacting that " if an English barrister committed a certain offence he was not an English barrister in Victoria," The learned judge suggests that such an Act would be tiltra vires " by the comity which exists between States." But it is sub- 330 Legislative Power in Canada. Prop. 26 to be noticed in connection with this part of the subject, however, have to do with statutes author- Laws izing the initiation of legal proceedings against authorizing , r i i r i • r ^ ^ legal pro- deicndants absent from the territory oi the law- ceedings . . ■ - , , . against maker, and a consideration oi these cases brings absent . . . . . , defendants, prominently into notice the distinction, already referred to, between the question whether such statutes are valid and binding within the territory and upon the Courts of the law-maker, and the question whether foreign Courts will recognize them, and judgments obtained in such legal proceedings initiated under them ; and, with regard to the latter question, the difference between the position of those who are in some sense subjects of the law- maker, and of those who are not. Thus, in the Ashburyz'. rcccut casc of Ashbury v. Ellis, ^ the Privy Council held that under the power given to it by Imp. 15-16 Vict., c. 72, " to make laws for the peace, order, and good government of New Zealand," the legislature of that colony could subject to its tribunals persons who were neither by themselves nor their agents present in the colony in actions founded on any contract made or entered into or wholly or in part The Privy to be performed within the colony, for": — "Their lordships are clear that it is for the peace, order, mitted this is no ground for holding a colonial Act to be uUra vims. See Propositions 17 and 21. Mr. Clement (Canadian Constitution, pp. 187-8, also, Forsyth's Cases and Opinions on Con- stitutional Law, pp. 24-5. See, too, Reg. v. Giles, 15 C.L.T. 178, (1895), a full report of which will appear in 26 O.R., and which was followed by Ontario Common Pleas, in Reg. v. Howard, June 29th, 1895, unreported. ^Ferguson, T-, seems to have dissented on this point : S.C. 14 O.R. at p. 545, 4 Cart, at p. 682. 52 Ex. D. at p. 160. Extra-Territorial Legislation. 335 beyond the limits of its territory, it would be incum- prop. 26 bent on the Courts of such country to give effect to such enactment, leaving it to the State to settle the question of international law with the governments of other nations."^ Now, as to this latter point raised by Boyd, C, the line of distinction, it is submitted, is this: — Where the sole ground of objection to a colonial Act is that it is contrary to international law, such as might be an Act rendering foreigners amenable to the criminal laws of the colony for offences committed abroad, merely because such foreigners were "caught in the colony,"" it would nevertheless when locai be incumbent on the Courts of the colony to giveoniocai rr 1 * • 1 • • • 1 Courts effect to the Act, just as much as it is incumbent on though extra- _, . _^ , , . „ ATI territorial. Courts in England to give effect to an Act 01 the Imperial parliament, though open to like objection. Such would seem the necessary conclusion from the authorities on which rest Proposition 17. But where, whether also contrary to international law or not, a colonial Act is outside the scope of the legislative power conferred upon the colony to make laws for the peace, welfare, and good govern- ment of the colony, such as might be a law author- izing transportation to another country, in such case even the Courts of the colony would be in duty bound to declare it void, when brought into ques- tion before them. So that, as Boyd, C, says^: — " In Canada there are but two lines of judicial investigation open in order to determine whether the enactment shall or shall not be obeyed. The ■•^Cf. Stephen's Hist, of Crim. Law, Vol. 2, pp. 36-7. -As to this expression, see Macleod v. Attorney-General of New South Wales, [1S91] A.C. at p. 457, presently to be noticed. 3i4 O.K. at p. 531, 4 Cart, at p. 669. 33^ Legislative Power in Canada. Prop. 26 first and chief is, when the question arises whether the statute transcends the powers conferred or invades the Hmits prescribed by the British North America Act. The second and that of compara- tively infrequent occurrence is, when it is needful to determine if the statute is repugnant to Imperial legislation."^ Regina 7'. Plowman. To return, in Regina v. Plowman," the Ontario Queen's Bench Divisional Court held the criminal enactment, upheld in Regina v. Brierly, to be tcltra vires, merely saying : — "The Dominion parliament, being a subordinate legislature, has no such power; and that is the effect of the case of Macleod v. Attorney-General for New South Wales, [1891] A.C. 455, which covers this case." Macleod 7'. Novv, iu the last named case, the Privy Council Attorney- . , , . . - General of had to cousidcr the validity of a New South Wales New South • -1 Wales. enactment similar to the Dominion enactment in question in Regina v. Brierly, and Regina v. Plowman, except that its application was not on its face restricted to British subjects resident in the colony, and their lordships said^: — " If their lord- ships construe the statute as it stands, and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal juris- diction of New South Wales, if he can be caught in that colony. That seems to their lordships to be ^Cf. per Palmer, J., in The Queen v. The Mayor, etc., of Frederic- ton, 3 P. (!v: B. at p. 143, e( seq., (1879), where he says : — "All that Courts in Canada have a right to do is to decide between the two legislatures as to which of them has the power, and not to deny it to both." But see Clement's Canadian Constitution at p. 192. 225 OR. 656, (1894). •'[1891] A.C. at pp. 457-8. Extra-Territorial Legislation. 337 an impossible construction of the statute; the colony Prop. 26 can have no such jurisdiction. . . Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted, ' Extra territorimn jus dicenti, impiine non pareiur,' would be applicable to such a case. . . All crime is local. ^ The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, Her Majesty and the Imperial legislature have no power whatever. ItMacieodr. , i-i- f . . Attorney- appears to their lordships that the effect of givmg General of ^^ r o "New South the wider interpretation to this statute necessary to waies. sustain this indictment would be to comprehend a great deal more than Her Majesty's subjects ; more than any persons who may be within the jurisdic- tion of the colony by any means whatsoever ; and that, therefore, if that construction were given to the statute, it would follow as a necessary result that the statute was tdtra vires of the colonial legis- lature to pass;" and they gave the enactment a construction which confined its application to per- sons amenable at the time of the offence committed to the jurisdiction of the colony, and to offences " wheresoever in the colony committed." It is true, indeed, that their lordships also said that they did not desire "to attribute to the colonial legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law," but it was ^Mr. Woolsey deals with this subject in his Introduction to the Study of International Law, 5th ed. at pp. 112-4, concluding: — "From this exposition it is evident (i) that States are far from universally admit- ting the territoriality of crime : (2) that those who go furthest in carry- ing out this principle depart from it in some cases, and are inconsistent with themselves." As to England, see Stephen's History of Criminal Law, Vol. 2, pp. 12, 23. See, also. Hall's International Law, (Oxford : Clarendon Press, 1S90), at pp. 206-9. 22 338 Legislative Power in Canada. Prop. 26 unnecessary for them to consider whether on the wider construction the enactment would have been in such sense ultra vires the colonial legislature under the fundamental law of the colony as not to be binding on the colonial Courts. However, the circumstance in this case, which it is submitted makes a vital distinction between it and what was before the Court in Regina v. Brierly,^ and Regina v. Plowman," is that on the wider application of the Macieod v. Ncw South Walcs Act it was not confined to " British Attorney- General of subjccts rcsldcnt lu New South Wales," but extended, New South -' _ ' Wales. as their lordships sa}', "to an}' person, married to any other person, who marries a second time anywhere in the habitable globe ;"^ and, as a matter of fact, which appears from the report of the case below, though not in the report of it before the Privy Council, the prisoner's domicile was not New South Wales,* and he was alleged to have committed the offence charged in the United States of America.^ To return to the leading Proposition, it indicates two important points of difference between the Con- I14O.R. 525, 4 Cart. 665, (1S87). 22SO.R. 656, (1894). 3[i89i] A.C. at p. 457. "*" It may be gathered from the evidence that the prisoner's domicile of origin was Scotland, and that at the time he contracted the first marriage he had abandoned such domicile, and became domiciled in New South Wales. Be that as it may, it is clear that he abandoned the New South Wales domicile, if acquired, and thus the domicile of origin again a»ose. There is no evidence to show that such domicile was ever again abandoned:" per Sir F. Darley, C.J., Regina v. M'Leod, II N.S.W. at p. 225, (1890). 5Mr. Todd (Pari. Gov. in Brit. Col., 2nd ed., pp. 175, 177) mentions two instances of Acts of the late provuice of Canada being disallowed by the Imperial government as transgressing the territorial limitations of the colony's legislative jurisdiction. See, also, ib. at p. 178 ; Journal of Legislative Assembly of Canada, 1S62, p. loi ; 31 C.L.J, at pp. S-9 ; Peak v. Shields, 8 S.C.R. 579, at pp. 596, 600 ; Clement's Cana- dian Constitution, pp. 185-93 ; and on the general subject of the internal jurisdiction of the colonies, see Pownall on the Colonies, ed. i774) Vol. 2, p. 36, ct seq. Contrast with United States Constitution. 339 stitution of the Dominion and that of the United Prop. 26 States. We have seen that in Bank of Toronto z;. Points of Lambe/ the Privy Council reiterate what they had with the already laid down in several prior judgments, that states . Ill ri- Constitu- the Federation Act exhausts the whole range 01 legis- tion. lative power. It is the intention of the British North America Act, as Henry, J., puts it in Valin v. Lang- lois- : — " To leave no subject requiring legislation un- provided for; and that in the powers given all should be included ; and, in the distribution, either Parlia- ment or the local legislatures should deal with every subject."^ But under the Constitution of the fO Some . . . . legislative United States, there is a residuum of powers neither powers are possessed granted to the Union nor continued to the States, "e'ti^er by '^ Congress but reserved to the people, who, however, can put"°''the ' ^ ' ' ^ State legisla- them in force only by the difficult process of amend- '"■■"• ing the Constitution.* And in the Queen v. The Mayor, etc., of Fredericton,"^ Palmer, J., points out this distinction very clearly as follows: — " It is to be borne in mind that the great and fundamental differ- ence between the American idea of legislative power and the British is that the American is based upon the idea that all such power was in the people alone, and no American legislature has any power to legis- late at all, except what is given to them by the people in convention, and expressed in their written Con- ^12 App. Cas. at p. 588, 4 Cart, at pp. 23-4, (1887). 23 S.C.R. at p. 65, I Cart, at p. 201, (1S79). ^So, also, per Gwynne, J., City of Fredericton v. The (^ueen, 3 S.C.R. at pp. 561, 571, 2 Cart, at pp. 54, 61, (1880) ; per Tasche- reau, J., S.C, 3 S.C.R. at p. 557, 2 Cart, at p. 51 ; per Gwynne, J., Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 701, 3 Cart, at p. 77, (1881); Reg. V. Toland, 22 O.R. at p. 507, (1892). *Story on the Constitution of the United States, 5th ed., sections 1906-9; Bryce's Amer. Comm., Vol. I, pp. 307-8. ■53 P. & B. at p. 143, ctseg., (1879). 340 Legislative Power in Canada. Prop. 26 But reserved to the people. There are no such reserved powers under the British Con- stitution : To which that of Canada is similar in principle. stitution ; and the people have reserved to them- selves a great part of that power, so that many laws no legislature in that country has power to pass ; whereas, by the British Constitution, no legislative power exists in the people alone at all, but such wholly exists in . . . the Queen, Lords and Com- mons, and the . . . concurrence of these three bodies, and these alone, can express the supreme will of the nation, and there is no limit to their power of legislation . . . Therefore, I think it is an important question to every Canadian desirous of the well-being of his country, whether any and what part of these principles have been secured to him by the British North America Act. And if the enacting parts of that Act have left the question doubtful, I think the recital in the preamble, that the Act was passed to carry out an expressed wish of the legislatures of the different provinces of Canada, that they should be federally united, etc., with a Constitution similar in principle to that of the United Kingdom, would settle the question. I therefore think it clear that the inten- tion was to have no reserved powers ; that there should be in Canada the same kind of legislative power as there was in the British parliament, so far as that was consistent with the confederation of the prov- inces and our position as a dependency of the Empire."^ And so likewise in the argument in Hodge V. The Queen, before the Privy Council, - Mr. Jeune, who was of counsel in the case, observed that he had always understood the preamble to the British North America Act, where it speaks of the Dominion having a Constitution similar in principle to that of the United Kingdom, as referring to this ■■^Ari'l so per Palmer, J., again, Ackman v. Town of Moncton, 24 N.B. at p. 114, (18S4). 2Dom. Sess. Pap., 1S84, Vol. 17, No. 30, at p. 62. Contrast with United States Constitution. 341 feature, that the Dominion has every legislative Prop. 26 power not expressly given to the provinces. ^ And in one of the latest works on Canada,- we read: — Mr. Cres- well's His- '• The Federalists of the United States, in breaking 'o'-y°'" away from the sovereignty of England, were com- pelled to create, in some of its main aspects, an instrument of government deferring always to the will of the people, who were the depository of supreme power. In Canada, all power is supposed to descend down from the Crown." The second feature of the Constitution of the f^) in the ■r\ • • • T 1 • United Dommion mdicated m the leading Proposition, states the .... or general in respect to which it is often spoken of as con- fesid"e.of ^ legislative trasting with that of the United States, is that inP°«'|'-'=«-'^'> ' the States, in the former all powers of legislation not e.xpressly ^^J',^^^J^;''' assigned to the provincial legislatures, are vested in the Dominion parliament, whereas, in the latter, as expressed in the tenth amendment to the Consti- tution of the United States, — which, in the words of Mr. Justice Story, "is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution "^r — " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."* This is again and again pointed out in the cases as a leading distinction between the two Constitutions.^ lAnd so per Henry, J., in Valin v. Langlois, 3 S.C.R. at p. 65, i Cart, at p. 201, (1879), notwithstanding the dicta of that learned judge, noted supra p. 313, n. 2. ^Greswell's History of Canada, p. 220, (Clarendon Press : 1S90). ''Story on the Constitution of the United States, 5th ed., s. 1907. ^Referred to per Harrison, C.J., Leprohon v. City of Ottawa, 40 U.C.R. at p. 4S9, I Cart, at p. 646. sPer Ritchie, C.J., Valin v. Langlois, 3 S.C.R. at p. 14, i Cart, at p. 171 ; per Fournier, J., S.C, 3 S.C.R. at p. 193, i Cart. 342 Legislative Power in Canada. Prop. 26 Nevertheless Mr. Justice Loranger, in his pamphlet so often already referred to, challenges its exist- ence, and makes bold to say^: — "As a general rule, Though all powers belong to the provinces, and the powers Loranger, J., . ^ ^ '■ ^ disputes this, of Parliament belong to it only as an exception ; the powers of Parliament come from the provinces, which are the sources of all legislative authority in the Confederation, and the legislative power of Parliament is only a residue of the provincial legis- lative power. In this order of ideas, it should be said that all power, which is not federal, has remained provincial." But as has been already at pp. 193-4 ; Slavin v. Village of Orillia, 36 U.C. R. at pp. 1 74-5, i Cart, at p. 701 ; per Ritchie, C.J. .City of Fredericton z>. The Queen, 3 S.C.R. at pp. 535-6, 2 Cart, at pp. 34-5 ; per Cross, J., North British and Mercantile, etc., Ins. Co. v. Lambe, M.L. R. I Q.B. at p. 152, 4 Cart, at p. 48 ; per Spragge, C. , Leprohon v. City of Ottawa, 2 A.R. at p. 529, I Cart, at p. 600 ; per Taschereaii, J., in Attorney-General of Quebec v. Attorney-General of the Dominion, i Q. L. R. at p. 181, 3 Cart, at p. 115, who goes so far as to say : — "With us the general government has all the rights, powers, and privileges, all the attributes of sovereignty which, by the British North America Act, have not been expressly reserved to the provincial governments," as to which, however, see supra p. 6, n. i, and Propositions 7, 8, and 17, and the notes thereto, esp. at pp. 106-7. And see the speech of Attorney-Cieneral Macdonald in the Debates before Confederation, (Quebec, 1865), at pp. 33, 41. And by inference from the above distinction between the two Constitutions, it has been argued that there should be a difference in the rules for their interpretation. Thus in the argument /;; re Portage Extension of the Red River Valley R.W. , Cass. Sup. Ct. Dig., p. 487, reported in extenso by Holland Bros., Senate Reporters, Ottawa, and printed by A. S. Woodburn, Ottawa, (1S88), Mr. Edward Blake said : — " There, as your lordships know, the powers of Congress are strictly enumerated, while the States have the whole residuum, and there it has been laid down that the interpretation of State Constitutions is to be liberal, with presump- tions in their favour, while the interpretation of the Constitution of the United States, — of the Congress, — is to be of the reverse order. It must be established, in the case of an Act of Congress, that the authority is within the power ; it must be established in the case of an Act of a State that the authority is beyond its power ; but that distinction, of course, is not applicable here, or, if applicable, it is applicable in a reverse sense, because the residuum of power is here given to the central instead of to the State authorities : " (p. 11). ^Letters upon the Interpretation of the Federal Constitution, p. 55 : (Quebec, 1884). Mr. Justice Loranger's Views. 343 indicated, 1 Mr. Loranger ignores the distinction ppop. 26 between the nature and mode of origin of the Confederation of the various colonies in British North America into the Dominion of Canada, and the confederation of a number of independent countries, such as were the various States of the Union before they became the United States of America, and argues, in abstract fashion, that : — " It is of the essence of the federal system that the central government has only those powers which are conferred on it by the States, and the latter His . 1 . , . , . position, retam the remamder, tor the very simple reason however, that the central government is the creation of the sustainable, several governments that have given it the form and the totality of powers which they deemed suitable, and no more-;" and as to the word "merely" in number 16 of section 92, — " all matters of a merely local or private nature in the province," — he takes it upon himself to pronounce it "void of meaning and altogether inapplicable. "=^ Mr. Loranger's remarks, Tho„gh however, at least serve to call attention to the fact havVa"e^i- that though the Dominion parliament has the general pow7r i'^n residue of legislative power in Canada, the powers of merely locai .1 . ,11 • ,^ 1 • 1 » ,-^^ and private the provinces are not all specified in the Act. They, matters, too, have what may, perhaps, be termed a minor residuary gift of power to make laws in relation to " generally all matters of a merely local or private nature in the province." It is interesting to observe that in his Essay on the Government of Dependencies, published in ^See supra pp. 7-9, and the notes to Propositions i and 2 generally. At p. 15 will be found words of Peters, J., in Kelly v. Sulivan, 2 P.E.I, at pp. 91-2, (1S75), indicating a view somewhat similar to that of Mr. Justice Loranger. "^Ad loc cil., p. 46. See, also, ib. at p. 62 ; and stipra pp. 316-7. ^Ad loc. cit., pp. 57-8. As to the significance of " merely," see the notes to Propoiition 33. 344 Legislative Power in Canada. Prop. 26 1841, Sir George Cornewall Lewis says^: — "The sirG. c. limited extent of the powers given to the common Lewis on the , ,,.,_. ^ , dangers of govemment and the indefinite extent or the powers the American i 1 1 1 • 1 system; Teserved by the several governments are certainly important defects in the political system of the United States, threatening to bring about a dis- ruption or dissolution of their union, and involving the Federal State, which arises from their union, in wars or disputes with other independent communi- ties. But the prejudices and interests which in each of the revolted colonies separated the powers of its peculiar government would have opposed invincible obstacles to a perfect fusion of those colonies into one independent State ; " while in Angers v. The Queen Insurance Co.,- Torrance, J., Which that observes :— " The framers of our Constitution had was before them the melancholy warfare which had so avoid. long desolated so large a portion of this continent, and determined that there should be no question as to the supremacy of the general government or the subordinate position of our provinces. It was intended that the general legislature should be strong — far stronger than the Federal legislature of the United States in relation to the States Govern- ments."^ And in his recent judgment in In re Prohibitory Liquor Laws,* Gwynne, J., cites similar words from Sir John a spccch of Sir John Macdonald in the Debates be- Macdonald - - .. _ , r t 1 i- r on the fore Confederation = : — i am strongly oi the beliei subject. ^See ed. of 1891, by C. P. Lucas, at p. 321. ^21 L.C.J, at p. 80, 1 Cart, at p. 155, (1877). *But as to the term " subordinate" as applied to the position of the provinces, see supra pp. 106-7. Also Proposition 17 and the notes thereto, and supra p. 318, n. 2. 424 S.C.R. at p. 206, (1S95). ^Debates before Confederation, (Quebec, 1865), pp. 32-3. Contrast with United States Constitution. 345 that we have in a great measure avoided in this Prop. 26 system which we propose for the adoption of the ""~ people of Canada the defects which time and events have shown to exist in the American Constitution. . . We have strengthened the general government. We have given the general legislature all the great sub- jects of legislation. We have conferred on them, not only specifically and in detail, all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not dis- tinctly and exclusively conferred upon the local governments and local legislatures shall be conferred upon the general government and legislature." In Judge Gray's work on Confederation,^ as Gray on quoted by the learned author himself in Tai Sing v. tion. McGuire," we find what may be thought, indeed, a somewhat fanciful explanation of the point of differ- ence between the Constitutions of the Dominion and of the United States of which we have been speaking. He says: — "The source of power was exactly re- versed. At the time of the framing of their Consti- tution, the United States were congeries of indepen- dent States which had been united for a temporary purpose, but which recognized no paramount or sovereign authority. The fountain of concession, therefore, flowed upwards from the several States to the united Government. The provinces, on the contrary, were not independent States. They still recognized a paramount or sovereign authority without whose consent or legislative sanction the union could not be formed. True, without their consent, the rights would not be taken from them ; but, as they could not part with them to other ^Toronto, 1872, Vol. i, pp. 55-6. 2i B.C. (Irving) at p. 105, (1S7S). 34^ Legislative Power in Canada. Prop. 26 provinces without the Sovereign assent, the source from which those rights would pass to the other provinces, when surrendered to the Imperial govern- ment^ for the purpose of confederation, would be through the supreme authority. Thus the fountain of concession would flow downwards, and the rights not conceded to the separate provinces would vest in the Federal government, to which they would be transferred by the paramount or sovereign authority." - Implied In conclusion, when we speak of local legislatures powers of . .... provincial havmg only such powers oi legislation as are ex- legislatures. , ^. ^ , " . pressly conferred upon them by sections 92 and 93 of the British North America Act, it must not be forgotten that by virtue of the very fact that they are legislative bodies at all they may have certain implied powers and privileges necessarily incident to such bodies, and may be entitled to regulate by statute the exercise of such implied powers and privileges. This matter, however, will be found discussed in detail elsewhere.^ ^As to this expression, cf. supra pp. 4-9. -As to the history of the adoption by the framers of the scheme of Confederation of the plan whereby the federal legislature should have all legislative powers not specially conferred on the provinces, see Pope's Life of Sir J. Macdonald, Vol. i, at p. 269 ; ib. App. vi., at p. 352 ; Pope's Confederation I^ocuments, at pp. 27, 54, 84 ; also Quebec Resolution No. 29 (37), being No. 28 {36) of the Resolutions as adopted in London. •'See Proposition 66 and the notes thereto. EXCLUSIVENESS OF LEGISLATIVE PoWER. 347 PROPOSITIONS 27 and 28. 27. [With the exception of laws in re- lation to agriculture and immigration,] if the subject-matter of an Act is within the jurisdiction of the Dominion Parlia- ment, it is not, [in its entirety], within the jurisdiction of the Provincial Legis- latures, [whether acting severally or in concert with each other, though some of the provisions of such Act, ancillary to the main subject of legislation, may be within such Provincial jurisdiction] ; and if the subject-matter of an Act is not within the jurisdiction of the Provincial Legislatures, [acting either severally or in concert with each other], it is within the jurisdiction of the Dominion Parlia- ment. 28. With the exception of agriculture and immigration, there is no subject- matter over which there can, [speaking strictly, be said to] exist concurrent powers of legislation ; and even then, should there be conflict, the authority of the Parliament of Canada is supreme, by 348 Legislative Power in Canada. Prop. 27-8 express provision of section 95 of the British North America Act.^ The above Propositions are obviously so closely connected that they may well be treated of together. vaiinr-. The first clause of Proposition 27, with the excep- the Privy tion of the words in brackets, are taken from the judgment of the Privy Council in Valin v. Lang- lois-; while that "that which is excluded by the 91st section," (sc, of the British North America Act), " is not anything else than matters coming within the The classes of subjects assigned exclusively to the legis- principle of , ., . j-.-ii- i-i the decision, latures 01 the provmces, '■" is the basis upon which their lordships reasoned in that case, and is indeed involved in Proposition 26, the notes to which should be read in connection with the Propositions under consideration. Thus in Valin v. Langlois, hold- ing that legislation in relation to Dominion contro- verted elections did not come within any of the classes of subjects enumerated in section 92, they held, as consequent therefrom, that the Dominion Controverted Elections Act, 1874, 2)7 Vict., c. 10, 1 While this portion of the present work is going through the press, judgments are pending in the appeals to the Privy Council in Huson V. The Township of South Norwich, 24 SCR. 145, and In re Pro- hibitory Liquor Laws, ib. 170. It may be anticipated that their lord- ships' judgments will have an important bearing upon the subjects here discussed, and the reader is requested to consult the table of Addenda, and also Appendix A. 25 App. Cas. at p. 119, i Cart, at p. 163, (iSyg). In Belanger v. Caron, 5 Q.L.R. at p. 27, (1879), Stuart, J., says :— " To assert an authority in the Dominion parliament to legislate on any subject is to deny any power in the provincial legislatures to legislate on the same subject ; and it is equally true that any subject upon which the provincial legislatures can legislate, the Dominion parliament is dis- qualified from legislating upon it." The notes to these Propositions, however, will show that it is only in a very qualified sense that such language can be accepted. ^5 App. Cas. at p. 119, I Cart, at p. 163. EXCLUSIVENESS OF LEGISLATIVE PoWER. 349 was intra vires,'^ and that there was nothing to raise a Prop. 27-8 doubt about the power of the Dominion parhament to impose, as in that Act, new duties upon the existing provincial Courts, or to give them new powers as to matters which did not come within the classes of subjects assigned exclusively to the legislatures of the provinces. And these dicta in Valin V. Langlois are referred to by Hagartv,C.T.O., AsappUed " " by Hagarty, m Clarkson v. The Ontario Bank,- where he says : — c.j.o. " It seems to me that if the Act before us be intra vires of Ontario, as not coming under the exclusive right of the Dominion, it must be held on the same chain of reasoning to be ultra vires the legislative power of the Dominion."^ There would certainly seem to be nothing in the Not at T^ . . , ' . . . . . , variance two Propositions under discussion at variance with wuh L'Union . St. Jacques -'. Belisle. ^It had been previously so held in the Court of Review in Montreal in Ryan v. Devlin, 20 L.C.J. 77, (1S75), and Owens v. Cushing, il>. at p. 86, (1875), and also in Dubuc v. Vallee, 5 Q.L.R. 34, (1S79), where Caron, J., held that the Dominion Act in question had not, properly understood, added any new jurisdiction to the provincial Courts, but had constituted those Courts, or one of their judges, a federal Court for the administration of the Act, as it had a right to do under section loi of the Rritish North America Act. It had also been held intra vires in Ontario in the Niagara Election Case, 29 C.P. 261, (1878). On the other hand, in Belanger z'. Caron, 5 Q.L.R. 19,(1879), Guay V. Blanchet, 5 Q.L.R. 43, (1879), and E)eslauriers v. Lnrue, 5 Q.L.R. 191, (1879), cases in the Quebec .Superior Court, the holding had been the other way. In Cuay v. Blanchet, (at p. 51), Casault, ]., observes, that if, in giving this jurisdiction to provincial Courts, Parlia- ment could be said to have only created a federal Court for a federal object, it could give the jurisdiction to try all Dominion election petitions exclusively to one provincial Court, and direct it to sit for this purpose at Montreal or Toronto, Winnipeg or Victoria,— " for the creation or constitution of a Court includes its jurisdiction and the place where it shall sit, as well as its composition." 215 O.A.R. at pp. 177, 181, 4 Cart, at pp. 511, 516, (1888). ^Cf. per Burton, J. A., in Ke Grand Junction R.W. Co. v. The County of Peterborough, 6 O.A.R. at pp. 344-5, (1881). But as to the power of the Dominion parliament to embody like provisions to those of the Ontario Act in question in Clarkson v. The Ontario Bank, as ancillary to an Act in relation to Bankruptcy and Insolvency, see Attorney-General of Ontario v. Attorney-CJeneral of Canada, [1894] A.C. 189, and Proposition 37 and the notes thereto. 350 Legislative Power in Canada. Prop. 27-8 the decision of the Privy Council in L'Union St. Jacques de Montreal v. Belisle.^ The most that can be deduced from their lordships' judgment in that case is that the Dominion parliament might enact a general law which would embrace within its scope the subject-matter of the local law in question, not that it would have been competent for Parlia- ment to enact the very law which they there held to In be intra vires of the provincial legislature. And, in- legislating ,1 • j-ti -j.- ■ • ■ under dccd, as IS cxprcsscd in Proposition 37, in assigning sect. 91, , -j^ . . . . .... . . , . . Parliament to thc Dominiou parliament legislative jurisdiction incidentally in refcrcnce to the general subjects of legislation intrude on -r ii r i • • ■ i the specincalh- referred to in section gi, the Imperial provincial ..... area, Act by ucccssary implication intended to confer on it legislative power to interfere with matters other- wise assigned to provincial legislatures by section 92, so far as a general law relating to those subjects might affect them, and the notes to that Proposition may well be read in connection with what is here being discussed. In them will be found special reference to the recent decision of the Privy Council in refer- uutthe ence to the Ontario Assignment for Creditors Act, latter is not " ' tobe deemed Attorney-General of Ontario v. Attornev-General of limited by -^ .- '^^ . , Canada,- with respect to which, Taschereau, I., unexercised ' ^ ' ' J ' Paritamlnt ^^3^ ^'^ Husou V. The Towuship of South Norwich^: — " It results from that case, if I do not misunder- stand it, that there are, under the British North America Act, subjects which may be dealt with by both legislative powers, and that the provincial field is not to be deemed limited by the possible range of unexercised power by the Dominion par- ^L.R. 6 P.C. 31, I Cart. 63, (1S73). See Propo.-ition 62 and the notes thereto. ^[1894] A. C. 1S9. 324S.C.R. at pp. 155-6, (1S95). EXCLUSIVENESS OF LEGISLATIVE PoWER. 351 liament, so that a power conferred upon the latter, Prop, 27-8 but not acted upon, may, in certain cases, be exer- cised by the provincial legislatures, if it fall within any of the classes of subjects enumerated in section Husonr. 92 . . And where would the provinces be on this Township of question of the liquor traffic if it were not so ? At Norwich, the mercy of the federal power, that is to say, at the mercy of each other . . That is surely not Canada's constitution. The inaction of the Domin- ion lawgiver cannot have such consequences. It cannot be that, simply because the Dominion authority will not prohibit all over the Dominion, the trade must be permitted everywhere in the • provinces." And so in this same case of Huson v. The The power Township of South Norwich, Strong, C.J., with prohibitory , --^ . liquor laws. whom rournier, J., concurred, says^: — " It appears to me that there are in the Dominion and the provinces respectively several and distinct powers authorizing each, within its own sphere, to enact the same legislation on this subject of prohibitory liquor laws restraining sale by retail ; that is to say, the Dominion may, as has already been conclusively decided,- enact a prohibitory law for the whole Dominion, whilst the provincial legislatures may also enact similar laws, restricted, of course, to their own jurisdictions . . To neither of the legislatures is the subject of prohibitory liquor laws in terms assigned. Then what reason is there why a local legislature, in execution of the police power-^ con- I24 S.C.R. at pp. 147-8, (1895). ^The reference is, of course, to Russell v. The ( )ueen, 7 App. Cas. 829, 2 Cart. 12, (1882). 3As to_ police power in Canada, and that the provinces do not possess it exclusively in " the wide meaning which the jurisprudence of the United States has given to it," see 'per Sedgewick, ]., in /;/ re Pro- hibitory Liquor Laws, 24 .SC. R. at p. 248. See, also, p. 360, n. 2, ifi/ra. 352 Legislative Power in Canada. Prop. 27-8 ferred by sub-section 8 of section 92, may not, so long as it does not come in conflict with the legis- lation of the Dominion, adopt any appropriate means of executing that power, merely because the same means may be adopted by the Dominion parliament under the authority of section gi in executing a power specifically given to it ? It has been decided by the highest authority that there are no reasons against such a construction; " and he, too, refers to Attorney-General of Ontario v. Attorney-General of Canada.^ The A doubt, however, may be felt as to the precise meaning of . . . Proposition meaning of Proposition 27. It may be asked whether it m.eans that if an Act is intra vires of the Dominion parliament, a precisely similar Act could not under any circumstances be iutra vires of a provincial legislature ? Now, remembering the rule Can, in any exprcsscd iu Propositlou 35, that subjects which in identical one aspcct and for one purpose fall within section legislation ^ '■ '^ by"'/'" 92 may, in another aspect and for another purpose. Parliament f^u withlu scctiou 91 of the British North Am.erica and the ^ legislatures? ^(.^ . ^^^ a,lso that expresscd in Proposition 51, that if the subject-matter dealt with comes within the classes of subjects assigned to the parliament of Canada, there is no restriction upon its passing an Act which will affect one part of the Dominion and not another, it seems quite possible that a particular Act regarded from one aspect might be intra vires of the provincial legislature, and yet, regarded from another aspect, might be also tjitra Per Wilson, vires o( the Dominion parliament.- And such would J., in Reg. ^ .. z/. Taylor, sccm to bc the view of Wilson, J., in Regina v. ^[1894] A.C. 189. See sitpra p. 348, n. i. 2See, also, Proposition 36 and the notes thereto. What is the "subject-matter " of an Act, in the full sense of Proposition 27, may- depend upon what is the true aspect of the Act. Concurrent Powers of Legislation. 353 Taylor,^ where he says of the Ontario Act, 33 Vict., Prop. 27-8 c. 19, concerning bills of lading and giving con- LegKiaikn , . , J . . upon liilU of signees and endorsees the same rights, and imposing lading on them the same liabilities as if the contract had been made with them: — "I think that the same Might I'e, either under Act which the Ontario legislature passed as a general p.ropenyand (^ i- " civil rigr.ts, provision affecting propertv and civil rights over°r'h'; ^ & r r ^ ci regulation of which it has exclusive iurisdiction, the Dominion "^'^^^"d -> commerce. parliament might also have passed as a necessary and convenient matter to be decdt with in the regulation of trade and commerce . . And the Ontario Act, just as it is, not professing to regulate trade, and not doing so but in an incidental manner only, is not, in my opinion, nlti\i vires so far as the statute itself can be, as I think in such a case it can be, supported as dealing onl\' with propert\' and civil rights." But whether or not there could be a case of an Act which in its entirety both Parliament and the provincial legislatures could constitutionally cenainiy 11 1 , , 1 . I 1 . • ; J Parliament pass, enough has been stated to show tliat it must and the 1 1 1 . 111 T-> 1 • legislatures not be supposed to be impossible that Parhamentmay , , ..,.., ^ sometimes and the provincial legislatures can tor any purpose legislate in 1 1 ■ 1 relation to whatever, or under any circumstances whatever, the same ... . , . , matter. legislate in relation to the same matter. - The leading Propositions under discussion, then. There is not concurrent must be understood to mean that there is, strictlv'^g'siation ' over any speaking, no concurrent iurisdiction between the-"'yect- •^ matter in its Dominion parliament and the provincial legislatures "^'itirety. over any subject-matter in its entiret\-, but not, as stated by Burton, J. A., in /;/ re Local Option Act,'^ that "there is no such thing as overlapping contem- I36 U.C.R. at p. 206, (1875). ^Aiid so per Meredith, C.J., in Blouin 7'. The C. 'iporation of the City of Queljec, 7 Q, L.R. at 'p iS, 2 Cart, at p. 373, (1S80). ■•>lS O.A.R. at p. 5S9, (1S91). 23 354 Legislative Power in Canada. Prop. 27-8 plated in the Act, nor any such principle as local legislation giving way to, or being overborne by, Dominion legislation, . . except in the two cases provided for in section 95 \;" words which may be well met by those of Rose, J., in Regina v. Stone. - There the Ontario Court of Common Pleas held intra vires a Dominion Act to provide against frauds in the supplying of milk to cheese factories, etc., which was very similar to the Ontario Act which had been held intra vires in Regina v. Wason,^ and Rose, J., says (p. 49): — "It was urged upon us that if the legislature had power to deal with the subject, it followed that it was not within the jurisdiction of Parliament. I think this is not so. In my opinion, Mr. Edward Blake, in his argument in Regina v. But the Wason,* correctl}- stated the law as follows : — 'The powers of ... . ^ "' , . , _,^ . . Parliament J urisdictious oi the provmccs and the Dommion and the ... , , . legislatures overlap. The Dommion can declare anythmg a in some . , , . , ^ . , instances crimc, but this oulv SO as not to mterfere with or overlap. " . ^ , . . , exclude the powers of the province of dealing with the same thing in its civil aspect, and of imposing sanctions for the observance of the law ; so that though the result might be an inconvenient ex- posure to a double liability, that possibility is no argument against the right to exercise the power."" The subject-matter of the two Acts here was not, strictly speaking, the same. That of the Dominion ^So, however, per Church, Q.C., arguendo before the Supreme Court of Canada in the matter of the Dominion Liquor License Acts, 1S83-4 : Dom. Se.ss. Pap., 1885, No. 85, p. 107. 223 O.R. 46, (1892). 3i7 O.A.R. 221, 4 Cart. 578, (1890). "* Published in extenso by The Budget Printing and Publishing Co., Toronto, 1890. ^Cf. as to concurrent powers in reference to lotteries, Pij^eon v. Mainville, 17 L.N. at p. 172. EXCLUSIVENESS OF LEGISLATIVE PoWER. 355 Act was a crime, — it was a criminal law passed in Prop. 27-8 the interests of the general public ; that of the Ontario Act was rather the regulation of the mode of carrying on a particular trade or business within the province, so as to secure fair and honest dealing between the parties concerned. Moreover, when the legislative powers of the Moreover, .. ,. ,, ..,,., legislation Dommion parliament and the provmcial legislatures by one may 1 -11 n 1 • 1 • interfere respectively are said to be mutually exclusive, this with . legislation must not be understood, as it would seem to have by the other, been by Taschereau and Gwynne, JJ., in Citizens Insurance Co. v. Parsons,^ as meaning that legisla- tion by the latter cannot be intra vires if it interferes with or even renders nugatory perfectly constitutional legislation by the former. The decision of the Privy Council in Bank of Toronto v. Lambe,- and other decisions cited in the notes to Propositions 48, 55, and 61, show that in certain cases local legislation may by indirect means render inoperative federal legislation, and vice versa. The words of Proposition 28 are suggested by Proposition language of Fournier, J., in Severn v. The Queen^; I4 S.C.R. at pp. 294, 329, I Cart, at pp. 317, 335, (1S79). 2 12 App. Cas. at p. 586, 4 Cart, at pp. 21-2, (1887). 32 S.C.R. at p. 126, I Cart, at p. 470, (1878). So in /« re Pro- hibitory Liquor Laws, 24 S.C.R. at p. 220, (1S95), Cwynne, J., says : — " There is no concurrent jurisdiction given to both,"(j-c., Parliament and the provincial legislatures), " save only over the three subjects specially designated as subject to concurrent jurisdiction ;" and at p. 210, he refers to the words of Lord Carnarvon, on the second reading of the British North America Act in the House of Lords, (Hans., 3rd Concurrent Ser. , Vol. 185, at p. 566) : — " There is, as I have said, a concurrent powers of power of legislation to be exercised by the central and the local legislation, parliaments. It extends over three separate sulijects, — immigration, agriculture, and public works." Later on. Lord Carnarvon adds : — "Public works fall into two classes: first, those which are purely local, such as roads and bridges and municipal buildings, and these belong not only as a matter of right, but also as a matter of duty to the local authorities. Secondly, there are public works which, though possibly situated in a single province, such as telegraphs, and canals. 356 Legislative Power in Canada. Prop. 27-8and in Hodge v. The Queen^ Burton, J. A., uses almost identical words. And so per Henry, J., in City of Fredericton v. The Queen-: — " It has been legitimately contended, that in reference to all but one or two subjects the legislative powers of the parliament of Canada and local legislatures are not concurrent, but fully distributed, and in part enumer- ated."-^ Later on in the same case^ the same learned judge observes : — " By the construction put b}- the Supreme Court of the United States upon its Con- A point of stitution, concurrent jurisdiction has been found to contrast . . , . ... , , . , . with the e.xist in relation to several subjects ; and legislation United 111^ 11 1 1 i ■ • - States by the States has been decreed to be intra vires in Constitution -i /^ 1 • 1 many cases, until Congress legislated on the same and railways, are yet of common import and value to the entire Con- federation, and over these it is clearly right that the central government should exercise a controlling authority." Public works are not men- tioned in section 95 as among the subjects over which there are concur- rent powers of legislation, but, doubtless. Lord Carnarvon and Gwynne, J., include them in the above passages because of the provision in section 92, No. 10, (1;"), of the British North America Act, whereby are excepted out of provincial jurisdiction such works, though local, as, "although wholly situate within the province, are before nr after their execution declared by the parliament of Canada to be for the general advantage of Canada, or for the advantage of two or more of the provinces." As to such declaration by the parliament of Canada, see the notes to Propositit>n 54. I7 O.A.R. at p. 274, 3 Cart, at p. 179, (1SS2). 23 S.C.R. at p. 544, 2 Cart, at p. 41, (iSSo). "Cf. per Begbie, I., in the Thrasher Case, i B.C. (Irving) at p. 170, (1S82) ; per Gray, J., S.C. il>., at p. 230 ; per Fournier, J., in Severn v. The Queen, 2 .S.C. R. at p. 1 19, i Cart, at p. 463, (1878), who says : — " The British North A:nerica Act contains in substance hardly any- thing more than the Quebec Resohuions, ilicir object at that time being, most certainly, to constitute two distinct governments with different and exclusive powers." As a fact, however, Mich an intention is indicated much more clearly by the Aci th.m by the Resolutions, in which exclusiveness of legislative power i.^ expliciily mentioned only once, viz., in No. 29, (37), where ihe general Parliament, it is said, shall have power to make laws " generady respecting all matters of a general character, not specially and exclusively reserved f >r the local governments and legislatures." Cf. No. 28, (36), of the Resolutions as adopted in London: Pope's Lifeof Sir J. .Macdonald, App. xiv.,p. 381. *3 S.C.R. at p. 547, 2 Cart, at pp. 43-4. Concurrent Powers of Legislation. 357 subject.^ The Imperial Act, however, provides Prop. 27-8 against such intermediate legislation, and gives to Parliament and the local legislatures exclusive jurisdiction, not contingent upon previous legis- lation by either," Now, the point of contrast between the Constitu- tion of the United States and of the Dominion here referred to will be discussed in the notes to Pro- position 61, infra ; but it is submitted, and would appear from the authorities already cited, that it can by no means be said that the jurisdiction of provincial legislatures is never contingent upon Dominion . _ . . intrusions on previous legislation by the Dominion parliament.- P'^°v'"ciai In the recent argument before the Privy Council on December 12th, 1893, in Attorney-General of Ontario v. Attorney-General of Canada, -^ Lord Watson is reported to have spoken very instruct- ively on this subject, as follows*: — "The view I have rather taken of it is this, that within the area given to the Dominion parliament by section oi there Lord .... Watson. is a legislative area part of which is their own exclusively, but that area may include, in addition, certain ancillary provisions which touch and trench upon the provincial law, and as long as there are enactments in that part of the area it would exclude the right of the province to legislate to the effect of destroying, — derogating from, — their enactment. It would take away their power as effectually as if it belonged to the primary area. If there had been ^Burton, J. A., refers to this same feature of the Constitution of the United States in Leprohon v. City of Ottawa, 2 O.A. R. at p. 542, I Cart, at p. 615, (1878). ^See, also, Propositions 2,7, 46, and 62, and the notes thereto. 3[i894] A.C. 189. *The following extracts are taken from a transcript of the shorthand notes of the argument in the office of the Attorney-General at Toronto. 35^ Legislative Power in Canada. Prop. 27-8 no legislation, then my impression was that within what I call the secondary area, the provincial parliament was free to legislate." And when Sir R. Webster, arguendo, said : — " By the frame of Lord section oi, you are to read out of section 02 any- W atson. . . . . . ^7 J thing which is enumerated in section 91," Lord Watson replied : — "That is rather suggesting this : the area of the legislative power is defined and capable of definition, and is absolutely exclusive in all cases. That is not the view which has been suggested by the decisions of this Board. The decisions of this Board rather point to this, — that ■ there is a certain extent of that legislation which Ancillary might bc rcscrvcd to the province, but there are legislation. _ ... many ancillary regulations which might be made in carrying out their primary object, and the power given to them," (sc, the Dominion parliament), " in which they can override the provincial authorities. But the provincial authority is there. "^ Sir Horace And there is also a passage from the very lucid Davey. . argument of Sir Horace Davey before the Privy Council in Hodge v. The Queen,- which may well be noted in this connection. He says :^" It has been said in effect that the 91st and 92nd sections of the British North America Act (I do not know that the particular language has been used) are mutually exclusive. . . . My lords, that is true in one sense, and it is untrue in another. I ^This last extract seems somewhat confusedly reported, but the meaning evidently is that while there may be a portion of the legisla- tive power assigned to the provinces, which the Dominion parliament could never properly assume to exercise as being ancillary to the exercise of the powers assigned to it by section 91, yet other portion it may so exercise. See the notes to Propositions 37 and 46 ; an article in 30 C. L. [., p. 182 ; and Todd's Pari. Gov. in Brit. Col., 2nd ed. at pp. 437-8. See, also, su/>ra p. 308, n. i. ^Reported Dom. Sess. Pap., 1884, Vol. 17, No. 30, at pp. 99-100. Concurrent Powers of Legislation, 359 quite agree that an Act passed as ' The Temper- Prop. 27-8 ance Act ' was for the peace, order, and good government of Canada, in relation to matters not On the ■ 1 • ■ J • U power to expressly mentioned m section 92 extending to the legislate for !•• 11 • 1111' P*^ace, order, whole Dominion, would be, as it was held to be in and good government, Russell's case, 7 App. Cas. 829, within the compe- tence of the legislature, but it does not by any means follow that an Act passed by the provincial legislature, local in its character and area, for a similar subject, would not be within the competence of the provincial legislature. It does not by any means follow, because if you consider the latter words of the 91st section, they are these: — 'Any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exchi- Andonthe ■^ -J -^ ^ concluding sively to the legislatures of the provinces,' that is tow°''dsof say, that the provincial legislature cannot legislate on a matter which is expressly mentioned in the enumeration in section 91 confining their legislation to the province,^ and say that this is of a local or private nature ; but where the Dominion legislation is not on any matter which is expressly mentioned in the enumeration of section 91, but is made under the general power to make laws for the peace, order, and good government of Canada, it does not by any means follow that the provincial legislature cannot make a local law of a similar character. . . To illustrate what I mean, the provincial legislature could not pass a local Act as regards beacons, buoys, and lighthouses, and say that it is merely of a local character. I suppose that would be so. ^See Proposition 59 and the notes thereto. 36o Legislative Power in Canada. Prop. 27-8 But it does not follow from that, that they might not pass — although the Dominion legislature might pass a general Act for the whole Dominion, dealing with the subject of temperance — that the local legislature therefore might not pass a local Act dealing to a certain extent with the same subject."^ In a partial Thcsc two passages further illustrate, as Pro- sen^e, there . . i r i r i i i isconcurrent positions 3/ and 02 aoove reierred to clearly sug- power ... . , • 1 ■ - o between gcst, that HI the partial sense indicated therein Parliament and the there is coiicurrent legislative power in Parliament legislature ... in many and the proviucial legislatures in manv cases. - cases. J. o And, in the same way, inasmuch as, — as expressed in Proposition 41, — with regard to certain classes of ijt should be carefully noted that in Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (18S2), their lordships by no means say ihat a provincial legislature could not pass an Act for the province containing similar provisions to tiiose of the prohibitory and penal parts of the Canada Temperance Act, 1878, in their application to localities adopting that Act in the prescribed manner. What their lordships there hold is (i) that the provincial legislatures could not even by concerted action have passed the Canada IVmperance Act, the objects and scope of which were general, namely, to promote temperance by means ot a Russell r'. uniform law throughout the Dominion ; and (2) ihat the principle of The Queen, local option embodied in that Act did not make it legislation upon a matter of a merely local nature. It will be remembered that the matters assigned to provincial legislatures by No. 16 of section 92 of the British North America Act are all matters of a "merely" local or private nature in the province. This word " merely " is not present in any of the other classes of subjects enumerated in that section. Hence there is nothing in the \iew above expoimded by Sir H. Davey, or in the judgment in Russell v. The Queen, rightly regarded, at variance with the important rule embodied in Proposition 33, that the Federal parliament cannot extend its own jurisdiction by a territorial extension of its law and legislate on subjects constitutionally provincial by enacting them for the whole Dominion : see the notes to that Proposition. .See, also, note 2, infra, and p. 348, n. i, supra. -S>o per Taschereau, J-, in Huson v. The Township of South Nor- wich, 24 S.C.R. at p. 160, (1S95) : — "There are a large number of .subjects which are generally accejjted as falling under the denomination of police regulations over which the provincial legislatures have control within their territorial limits, which yet may be legislated upon by the federal [jarliament for the Dominion at large. Take, for instance, the closing of stores and cessation of trade on Sundays. Parliament, I take it for granted, has the power to legislate on the subject for the Dominion; but, until it does so, the provinces have, each for itself, the same power." And as to police power, see supra p. 351, n. 3 ; and the argument in ht re Dominion License Acts : Dom. Sess. Pap., 1885, at pp. 165 and 172, et set/. Concurrent Powers of Legislation. 361 subjects generally described in section 91 of the Prop. 27-8 British North America Act legislative power may reside as to some matters falling within the general description of these subjects in the legislatures of the provinces, there ma}^ be said to be concurrent sometimes, jurisdiction as to such subjects in Parliament and aTroir' the provincial legislatures in this sense, that legis-. subject is , . . , . apportioned lative power as to a certani department, or certain between departments of broad general subjects of legislation, is vested in the one, and as to the remaining depart- ments in the other. Thus there would appear to be concurrent power of legislation in respect to the imposition of direct taxation in this sense, and in Thus as to this sense only, that power to legislate in this way taxation. is in part vested in one and in part in the other. As stated by the Privy Council in Bank of Toronto V. Lambe^: — "As regards direct taxation within the province to raise revenue for provincial pur- poses, that subject falls wholly within the jurisdic- tion of the provincial legislatures ; " while all other power to impose direct taxation is exclusively in the Dominion parliament under No. 3 of section gi, *' the raising of money by any mode or system of taxation. "2 ^12 App. Cas. at p. 585, 4 Cart, at p. 20, (1887). ^See per Taschereau, J., in Angers v. The Queen Insurance Co., 16 C.L.J. N.S. at pp. 204-5, I Cart, at pp. 149-50, and per Ritchie, C.J., in Severn v. The Queen, 2 S.C. R. at p. loi, i Cart, at p. 445, (1878), where taxation by means of licenses, as in No 9 of section 92, is spoken of as being indirect taxation : as to this, however, see Queen V. McDougall, 22 N.S. 462, (1889); per Strong, J., Pigeon v. The Recorders Court and City of Montreal, 17 S.C. R. at pp. 503-4, 4 Cart, at pp. 447 8, (1S90) ; per Osier, J. A., in Regina v. Halliday, 21 O.A. R. at p. 47, (1893); Lambe v. Fortier, 5 R.J.Q. 47, (1894); and Appendix A to this work. The above would also seem the explanation of the words of Cross, J. , in Bank of Toronto v. Lambe, M. L. R. I Q. B. at p. 151, 4 Cart, at p. 47, (1885), when he says of the division of legislative powers under the British North America Act, that it " has been so contrived as to be in part exclusive to each, and in some particulars it must be conceded common to each." See, also, as to concurrent power of taxation, Todd's Pari. Gov. in Brit. Col., 2nd ed. 362 Legislative Power in Canada. Prop. 27-8 So, again, as Strong, J., says in Severn v. The Queen^: — "The general legislature can undoubtedly Thepower tax auctioncers, and by express words the local auctioneers, legislaturcs havc authority to do the same." In this sense there is concurrent jurisdiction to tax auctioneers. But the power to tax auctioneers by the exaction of a license " in order to the raising of a revenue for provincial, local, or municipal pur- poses" is, by No. g of section 92, in the local legislatures exclusivel}'. Judge And Judge Travis, in his constitutional treatise Travis on this aspect already referred to,- puts this matter in a way Constitution worth noticiug, thus'': — "The local legislatures have the right and power, in the first instance, {i.e., before Parliament has effectually legislated so as to affect the particular subject-matter in section 92),* to legislate on all subjects-matter enumerated in the 92nd section, within these subjects-matter, — not farther on them within the subjects-matter enumerated in section 91. For example, the local legislatures can legislate on the solemnization of marriage, but no farther than that within the subject of marriage ; on licenses, etc., under the 9th sub-section, but no farther than that, on that subject, within the subject of regulation of trade and commerce"^; " but he seems to grow care- at p. 564 ; and the argument before the Supreme Court of Canada upon the Dominion Liquor License Acts, 1S83-4 : Dom. Sess. Pap., 1S85, No. 85, at p. 98. .See, too, per Dorion, C.J., in Doliie v. The Temporalities Board, 3 L.N. at p. 254, 1 Cart, at p. 389, (1880). ^2 S.C. R. at p. Ill, I Cart, at p. 455, (1878). ^.See supra pp. 311, ct set]. ^At p. 179. *.See supra p. 308, n. I. And Proposition yj and the notes thereto. •■"As to the proper interpretation of the words " regulation of trade and commerce," however, see the notes to Proposition 49. EXCLUSIVENESS OF LEGISLATIVE PoWER. 363 less, when he adds : — " On the subject of property Prop. 27-8 and civil rights, but no farther than that to make it a legislation on trade and commerce, — on bankruptcy and insolvency, — or on any of the other subjects in section gi," for it would seem impossible to name a more comprehensive subject than property and civil rights, so that the correct mode of statement here would seem to be that Parliament may legislate on trade and commerce, bankruptcy and insolvency, etc., but not further than this on property and civil rights in the province.^ And lastlv, in this connection, the words of Sedge- And so per -' ' Sedgewick, wick, J., in In re Prohibitory Liquor Laws,- may be J- cited : — " When a general subject is assigned to one legislature, whether federal or provincial, and a particular subject, forming part or carved out of that general subject, is assigned to the other legisla- ture, the exclusive right of legislation, in respect to the particular subject, is with the latter legislature. For example, Parliament has marriage, but the legislatures have the solemnization of marriage. On that subject they are paramount and supreme." But, he admits, 2 that the decision of the Privy Council in Russell v. The Queen* forbids the view " that the central Parliament could not, by virtue of any of its powers, destroy a special power given to the local legislatures for a special and particular purpose," and, therefore, as already explained, it is only in a very modified sense that the powers of the ^See supra p. 308, n. I. 224S.C.R. at p. 230, (1895). 35. C. at pp. 240-1 ; see, also, S.C at pp. 248-9. 47 App. Cas. S29, 2 Cart. 12, (1882). 364 Legislative Power in Canada. Prop. 27-8 local legislatures, at any rate, can be said to be exclusive.^ The result of It would secm, then, that the most that can be said the authorities. With accuTacy is that the powers of the Dominion parliament and of the local legislatures to deal directly and in their entirety, and as matter of separate and detached legislation, (as distinguished from legislative provisions merely ancillary to the main subject of legislation), with the various classes of subjects mentioned in sections 91 and 92, are in each case special and exclusive. ■^As to whether provincial legislatures can intrude at all upon the Dominion area of legislative power, qmzre. See the notes to Proposi- tion 37. Statutes of old Province of Canada. 365 PROPOSITIONS 29, 30, AND 31. 29. There is no power given by the Confederation Act to the Dominion Par- liament to amend or repeal an Act passed by a Provincial Legislature within the limits of its authority, nor to the Provin- cial Legislatures to amend or repeal a valid Dominion Act. 30. The powers conferred by section 129 of the British North America Act upon the Provincial Legislatures of Ontario and Quebec to repeal and alter the statutes of the old Parliament of the Province of Canada are made precisely co-extensive with the powers of direct legislation with which these bodies are invested by the other clauses of that Act; and the power of the Provincial Legisla- ture to destroy a law of the old Pro\'ince of Canada is measured by its capacity to reconstruct what it has destroved. 31. In no case can an Act of the old Province of Canada, applicable to the two Provinces of Ontario and Quebec, be validly repealed by one of them, unless 366 Legislative Power in Canada. Pi-op- the nature of the Act is such that in the 29-31 result it still remains in full vieour in the other. Prop. 29. The first clause of Proposition 29 is taken from the words of Dorion, C.J., in Dobie v. Temporahties Board, ^ and with the rest of the Proposition may perhaps be deemed almost too obvious to need enunciation. But it is important to remember that though the Dominion parliament has no power directly and totidem verbis to amend or repeal an Act passed by a provincial legislature within the limits of its authority, there are many cases where its legislation may have the effect of suspending the operation of valid provincial Acts, and of overriding them, as will appear from the notes to Propositions 27, 37, 46, and 62. And, on the other hand, it will be seen from Propositions 55 and 61, and the notes thereto, that provincial legislatures may limit the range which otherwise would be open to the Dominion parliament, or even render nugatory powers conferred by the latter. Prop. 30. As to Proposition 30, it is in the words of the Privy Council in Dobie w. The Temporalities Board. - The question there was as to the power the Quebec The Privy Icgislaturc had of altering and amending the Act of the province of Canada, 22 Vict., c. 66, incor- ^Doutre's Constitution of Canada at p. 261, I Cart, at p. 389, (1880). ^7 App. Cas. at p. 147, i Cart, at p. 365, (1882). As to the exception made in section 129 of the British Is^orth America Act with respect to Imperial Acts, the author of an article on the Constitution of Canada in II C.L.T., at pp. 123-4, points out that it cannot be meant to indicate that no Imperial Acts whatever can be re[)ealed, abolished, or altered in their operation within the Dominion, by either the Dominion parliament or the local legislatures, — as, for example, the Statute of Frauds. See as to this supra pp. 230-I. It must, therefore, refer only to those Imperial Acts which are intended to apply throughout the f^mpire, such as the Copyright laws, as to which see supra pp. 213-16 and 225-9. Council Statutes of old Province of Canada. 367 porating a Board for the management of the Tempo- Prop. rahties Fund ; and their lordships held that the Quebec ^^'^^ legislature could not interfere directly, as they sought to do in the Act impeached, with the constitution and privileges of the corporation in question, which Dobie z'. ^ '-' ... The Tem- had its corporate existence and corporate rights m poraiities '^ . Board. the province of Ontario, as well as in the provmce of Quebec. The professed object of the Act, they pointed out, and the effect of its provisions, was, — not to impose conditions on the dealings of the Corporation '^ . created by corporation with its funds within the provmce of Act of old '^ province ot Quebec, — but to destroy, in the first place, the old Canada. corporation and create a new one ; and, in the second place, to alter materially the class of persons interested in the funds of the corporation. And, after observing that the power of the provincial legislature to destroy a law of the old province of Canada is measured by its capacity to reconstruct what it has destroyed, they say^: — •" If the legis- latures of Ontario and Quebec were allowed jointly to abolish the Board of 1858, which is one corpor- Powerof 1 r 1 1 ■ ii 111 provincial ation m and tor both pro\-inces, tiiey could only legislatures „ 1 • 1 over same. create m its room two corporations, one 01 which would exist in and for Ontario, and be a foreigner in Quebec, and the other of which would be foreign to Ontario, but a domestic institution in Quebec. Then the funds of the Ontario corporation could not be legitimately settled upon objects in the province of Quebec, and as little could the funds of the Quebec corporation be devoted to Ontario, whereas the Temporalities Fund falls to be applied either in the province of Quebec or in that of Ontario, and that in such amounts or proportions as the needs of the Presbyterian Church of Canada I7 App. Cas. at p. 152, l Cart, at p. 371. 368 Legislative Power in Canada. Prop, in connection with the Church of Scotland, and of ^^"^* its ministers and congregations, may from time to time require. The parhament of Canada is, there- fore, the only legislature having power to modify or repeal the provisions of the Act of 1858."' '1 Provincial So Ram.sav, T., in The Corporation of Three legislatures . o" catiMot re- Rivcrs, 7). Sulte," savs : — "I do not see how a peal where they cannot legislature has power to repeal what it cannot re-enact. re-enact," adding, however, " of course, it may sometimes indirectly do so, or do what will have a similar effect."^ And in I)i re Squier,'* accordingly, it was held by Wilson, C.J., and, in fact, admitted by counsel, that the Ontario legislature had no power, as they had assumed to do by 32 Vict., c. 26, O., to abolish the Court of Impeachment for the trial of charges against Count}^ Court judges for inability or misbehaviour in offices, established in Canada by 20 Vict., c. 58.'"' Again, when the Ontario legislature assumed to enact by 40 Vict., c. 18, that the sale of intoxicating liquors in localities in which the The Tern- prohibitory clauses of the Temperance Act, 1864, ori^64!"'^ 27-28 Vict., c. 18, of the late province of Canada had been brought into force, should also be a con- travention of the Ontario Acts relating to selling lAs McCord, T , concisely expresses it in the Court below, S.C. 3 L X. at p. 253, I Cart, at p. 3S5. the B lard for the management of the Temporalities Fiuul created by 22 Vict., c. 66, C, being a corporation " created for the two jnovinces and applicable to them both, it can only be altered liy a puliament having power to legislate for these two provinces." 25 L.N. at pp. 353-4, 2 Cart, at p. 2S6, (1S82). ^See, also, Keefe v. McLennan, 2 R. & C. at p. 10, 2 Cart, at p 407, (1876). 446 U.C.R. 474, I Cart. 7S9, (1SS2). •"•.See supra p. 128, n. i. Statutes of old Province of Canada. 369 without a license, which prescribed punishments, Prop, and proceedings other than those which had been ^^-^^ prescribed by the Temperance Act, 1864, it was held by the Ontario Court of Queen's Bench in Regina v. Prittie,^ and Regina v. Lake,- that Power of . I . , . , . . . provincial such legislation was ultra vires, amounting as it legislatures did to direct legislation upon criminal law and criminal procedure, for the punishment of offences against the Temperance Act, 1864. And in like manner, in Hart v. Corporation of the County of Missisquoi,-^ and Cooey v. Municipality of County of Brome,* it was held that a provincial legislature cannot repeal or modify those sections of the Temperance Act of 1864 which conferred upon municipal councils the power to pass by-laws for prohibiting the sale of intoxicating liquors, upon Or alter the ground that the federal parliament had alone po vers con- ferred by it. power to legislate on the subject of regulating and prohibiting the sale of such liquors.'' In the latter case, Dunkin, J., observes^: — "As to all powers not of provincial competency, so to speak, which they," (sc, municipalities), " may hold under antecedent delegation of the unlimited legislature of the late I42 U.C.R. 612, 2 Cart. 606, (1878). 243 U.C.R. 515, 2 Cart. 616, (1878). 33 Q.L.R. 170, 2 Cart. 382, (1876). *2i L.C.J. 182, 2 Cart. 385, (1872). Cf., also, Township of Compton V. Simoneau, 14 L.N. 347, (1891). sQf course, so far as power to regulate is concerned, Hodge v. The Queen, 9 App. Cas. 117, 3 Cart. 144, (1883), and Corporation of Three Rivers v. Suite, 5 L.N. 330, 2 Cart. 280, 11 S.C.R. 25, 4 Cart. 305, (1882-5), show that this ground is now untenable. See, too, Blouin v. Corporation of City of (Quebec, 7 Q.L.R. 18, 2 Cart. 368, (1880). As to the power to prohibit, see Huson v. The Township of South Norwich, 24 S.C.R. 145, and /;/ re Prohibitory Liquor Laws, 24 S.C.R. 170, (1895) ; and su/rnz p. 348, n. i. See, also, Appendix A to this work. "21 L.C.J, at p. 186, 2 Cart, at p. 388, (1S77). See the notes to Proposition 45, infra. 370 Legislative Power in Canada. Prop, province of Canada, these can be rescinded or ^^'^^ altered by Parliament alone." ^ Sect. 129, It is, of course, plain, as Gwynne, J., points out in '^'^ Suite V. Corporation of Three Rivers," that section 129 of the British North America Act onh' continues prior laws if there be no provision conflicting with them in other portions of that Act. But, on the other hand, Ferguson, J., holds in Reginai;.Brierly,-'' that by "all laws in force" the section means "all laws that, in fact, existed in the respective countries mentioned, and then considered as valid and in force," whether actually valid or not.* ijn view of section 129 of the British North America Act, to which he does not refer, and of the above authorities, the decision of Johnson, J., in Ross v. Torrance, 2 L.N. 186, 2 Cart. 352, (1879), is unsustainable. A municipal corporation was authorized by an ante-Confederation Act to charge ten per cent, on overdue assess- ments. The legislature of Quebec passed an Act repealing this enactment and providing anew for a similar charge ; and Johnson, J., held in the above case, that the ante-Confederation enactment was effectually repealed, although he at the same time held that the new provision was ultra vires. The same objection would apply to the view said to have been expressed by Caron, J., that if the Temperance Act, 1864, had been repealed by the local legislature, the local legislature nevertheless could not have re-enacted it : see per Ramsay, J., in Corporation of Three Rivers v. .Suite, 5 L.N. at pp. 333-4, 2 Cart, at p. 286, (18S2). And on the subject generally of the power of the provincial legislatures to authorize municipalities to charge an additional percentage on overdue assessments, see Lynch r'. Canada North-West Land Co., 19 S.C.R. 204, (1891), and infra pp. 388-90. 2ii S.C.R. at p. 42, 4 Cart, at p. 322, (1885). Cf. Todd's Pari. Gov. in Brit. Col., 2nd ed., at p. 578. 3i4 O.K. at p. 544, 4 Cart, at p. 6S2, (1887). Boyd, C, does not seem to have shared this view: SC, 14 O.K. at \>. 336, 4 Cart, at p. 676. *Other cases illustrating the operation of section 129 are Willett v. De Grosbois, 17 L.C.J. 293, 2 Cart. 332; Noel v. The Corporation of the County of Richmond, i Dor. Q.A. 333, 2 Cart. 246 ; Munn V. McCannell, 2 P.E.I. 148; Reed v. Mous.seau, 8 S.C.R. 40S. Mr. Clement (Canadian Constitution, at p. 535) observes that the whole body of laws, — common law as well as statutory enactments, — was continued by the section. As to powers existing under ante-Confeder- ation charters, see Sandall ly. Wilson, 31 N.B. 43,(1892) ; and Doutre's Constitution of Canada, at p. 143. The words of Patterson, J. A., in Reg. 7'. Eli, 13 O.A.R. at p. 52(S, remind us that an ante-Confederation Act, though not actually repealed, may have become effete by reason of subsequent legislation. Statutes of old Province of Canada. 371 As to Proposition 31, it is derived from the Prop. words of the Judicial Committee in Dobie v. ^^"^^ The TemporaHties Board^: — "In every case where an Act applicable to the two provinces of Quebec and Ontario can now be validly repealed by one of them, the result must be to leave the Act in full vigour within the other province." 17 App. Cas. at p. 150, i Cart, at p. 369, (1882). See this case furthei- commented on in the notes to Proposition 68, infra. ZT'^ Legislative Power in Canada. PROPOSITIONS :^2, 38, and 34. 32. The Parliament of Canada cannot under colour of "'eneral legislation deal with what are provincial matters only ; and, conversely, Provincial Legislatures cannot under the mere pretence of legis- lating upon one of the matters enumer- ated in section 92 really legislate upon a matter assigned to the jurisdiction of the Parliament of Canada. 33. The Federal Parliament cannot extend its own jurisdiction by the terri- torial extension of its laws, and legislate on subjects constitutionally provincial, by enacting them for the whole Dominion, as a Provincial Legislature cannot extend its jurisdiction over matters constitution- ally federal, by a territorial limitation of its laws, and legislate on matters left to the Federal power by enacting them for one province only, as, for instance, incorporat- ing a bank for a province. 34. If the Dominion Parliament, or the Provincial Legislatures, as the case may be, have no power to legislate directly Colourable Legislation. 373 upon a given subject-matter, neither may p^qp. 32-4 they do so indirectly.' The above Propositions may, perhaps, be correctly described, by way of distinction from the others formulated in this book, as having to do with dehberate attempts on the part of Dominion par- harnent, or provincial legislature, to trespass the one upon the other's area of legislative power. The Prop. 32- first of them is concerned with colourable legislation — that is, legislation ostensibly under one or other of the powers conferred by the British North Colourable ^ -^ . legislation. America Act on the enacting body, but, in truth and fact, relating to some subject which is not within the jurisdiction of that body. There appear to be few reported cases in which a Court has actually held an Act to be merely colourably consti- tutional in this sense, but Attorney-General for Quebec v. The Queen Insurance Co.- is such a case. There the Privy Council held that a certain Quebec Act, entitled "An Act to compel assurers to take out a license," and which purported to be, on the face of it, an exercise of the power conferred by Angers z^. Queen No. 9 of section 92 of the British North America ins. Co. Act to make laws in relation to shop, saloon, tavern, auctioneer, and other licenses, was not, in substance, a license Act at all, but a simple Stamp Act on policies, and was indirect taxation, and ultra vires. As stated by Harrison, C.T., in Regina v. Law- Per ■^ ' J ' f^ _ Harrison, rence-^: — "It never could have been the design ofc.j.,m Reg- '-^■ the Imperial legislature, as manifested by the Lawrence. ^See snpra p. 348, n. i. 23 App. Gas. 1090, I Cart. 117, (187S). ^43 U.C.R. at pp. 174-5, I Cart, at pp. 744-5, (1878), cited per Graiiam, E.J., in Thomas v. Ilalilnirton, 26 N.S. at p. 73, (1893). 374 Legislative Power in Canada. Prop. 32-4 language which it has used in the British North America Act, to permit any legislative body, under pretence of exercising only its own exclusive legis- lative powers, to cover ground which, in truth, by the Constitution belongs to another."^ The Privy Thc Privy Council incidentally refer to the subject Council in . i i /^ Russell 7'. in Russell v. The Oueen," where they observe, re- The Queen, - . "^ o i ferrmg to the Canada Temperance Act, 1878, then under discussion: — "There is no ground or pretence • for saying that the evil or vice struck at by the Act in question is local, or exists only in one province, and that Parliament, under colour of general legisla- tion, is dealing with a provincial matter only. It is, therefore, unnecessary to discuss the considerations which a state of circumstances of this kind might present. The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion." And in And in much the same wav in The Colonial Colonial Buiidingand Buildiug aud Investment Association y.The Attorney- investment "-> -^ - TttLme" General of Quebec,^ where their lordships held that Quebe'*c°'^ the mere fact that a Dominion company chose to limit its operations to one province only did not invalidate its charter,'* they say: — "It is unnecessary to consider what remedy, if any, could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object, for the only evidence given in the case discloses no ground for ^There is, of course, nothing in this, or in the Propositions under discussion, inconsistent with Proposition 20, the purport of which is that we have no right to enquire what motive induced the legislature to exercise its powers, assuming that, apart from any question of ulterior motives, the legislation is ini>-a vires. See at pp. 277-8, supra. -7 App. Cas. at pp. 841-2, 2 Cart, at pp. 25-6, (1SS2). 39 App. Cas. at p. 165, 3 Cart, at p. 12S, (1S83). 'See Proposition 57 and the notes thereto. Colourable Legislation. 375 suggesting fraud in obtaining the Act," {sc, of Prop. 32-4 incorporation) ; the case here suggested appar- ently being one in which Parhament had been induced — while ostensibly exercising its proper power of incorporating Dominion companies^ — to, in fact, incorporate a company with a provincial No. i^ object, thus infringing upon the exclusive jurisdic- b.n.a. Act. tion of the provinces under No. 11 of section 92 of the British North America Act.- And it is to this passage in The Colonial Building and Investment Association v. The Attorney-Gen- eral of Quebec that Ramsay, J., refers in Molson V. Lambe," where, speaking of the wholesale liquor shop license exacted from brewers by the Quebec License Act, 1878, he says :— " If it can be defended Per Ramsay, ' ' ' -J J., in Molson at all, it is under sub-section g of section 92 of the^'- Lambe. British North America Act. It is an impost by way of license for the purpose of raising a revenue on what is admitted to be the ordinary trade of a brewer. This, I think, is constitutional, when it is No. 9, sect. 92, B.N.A. fairly imposed ; that is, when it appears that there Act. ^As to the Dominion powers in respect to the incorporation of companies, see Propositions 55, 56, and 57, and the notes thereto. -In Citizens Insurance Co. v. Parsons, 4 S.CR. at p. 310, i Cart, at p. 329, (1S80), Taschereau, J., mentions the case of a Bill to incor- porate the Christian Brothers as a Dominion body, which was referred to the Supreme Court of Canada by the Senate in 1876, and was reported uUra vires by them : (Journal of Senate, 1876, pp. 156, 206); and says : — "This bill purported to incorporate a company of teachers for the Dominion, and consequently as such infringed upon the powers Dominion of the provincial legislatures, in which is vested by section 93 of the !"" '° British North America Act the exclusive control over education; and ["^^'^'^P"'^^ "^ the learned judges, by declaring it unconstitutional, recognized the Christian principle that, for a matter constitutionally provincial, the Federal Brothers, parliament has not the power to incorporate a company for the Dominion. And that that is so seems to me clear." It may be declared added that their lordships' reasons in the matter are not given a.\. ultra vires length, but they expressly state their opinion to be that the bill is " a W Supreme measure which falls within the class of subjects exclusively allotted to provincial legislatures under section 93 of the British North America Act:" Journal of Senate, 1876, \o\. 10, at pp. 206-7. 3M.L.R. 2 Q.B. at pp. 398-9, 4 Cart, at p. 364, (1SS6). 376 Legislative Power in Canada. Prop. 32-4 is no fraudulent use of the British North America Act. If it appeared that the local Act was only nominally legislating for the purpose of raising a revenue, and that the statute was really contrived Prohibiting as a prohibitory measure, another consideration under _ ^ -' pretence of might, perhaps, come in. I onlv allude to this as licensing. <^ ^ r r ^ ^ ^ ^ a precaution, for there is no suggestion of any misuse of the legislative power, and I am not aware that the use of a legislative power to get round the con- stitutional Act has, as yet, been formally insisted upon as deciding as to the constitutionality of an Act, although it has been suggested that a case might occur in which that point would have to be considered. . . It seems, however, to be a neces- sary consequence of deciding, from the object of the law,^ that the Courts must say whether the object is real or delusive.'' Per Strong, j^ Jij^g manner, in Severn v. The Queen,- Strong, J., in Severn f^ ' n' ]'<^^^ J., savs: — "The imposition of licenses authorized Queen. J ^ j r b}' this sub-section g of section 92 is, it will be observed, confined to licenses for the purposes of revenue, and it is not to be assumed that the pro- vincial legislatures will abuse the power, or exercise it in such a way as to destroy any trade or occupa- tion. Should it appear explicitly on the face of any legislative Act that a license tax was imposed with such an object, it would not be a tax authorized by this section, and it might be liable to be pronounced extra vires.'''' -^ iSee Proposition 36 and the notes thereto. 22 .S.C.R. at pp. ioS-9, I Cart, at pp. 452-3, (1878). 3And see to like effect as to a supposed merely colourable use of No. 9 of section 92, per Mackay, J., in Ex parte Leveille, 2 Stev. Dig. at p. 447, 2 Cart, at p. 351, (1877) ; per Ramsay, J., in Angers v. Queen Insurance Co., 22 L.C.J, at p. 310, i Cart, at p. 135, (1878); per Harrison, CI., in Regina v. Lawrence, 43 U.C.R. at pp. 174-5' ^ Colourable Legislation. ^n No doubt, however, as Sedgewick, J., observes in P rop. 32-4 In re Prohibitory Liquor Laws,^ after expressing the view that the effect of No. 9 of section 92 of the ]^^Xlto' British North America Act is practically to give the J-i;;-^^^^^^ '° regulation of the liquor traffic to the legislatures :— temperance. " So long as such regulating legislation has, as its main object, the raising of revenue, it may contain all possible safeguards and restrictions as ancillary to the main object, the effect of which may be to repress drunkenness and promote peace, order, and good government generally."- Cart, at pp. 744-5, (187S) ; per Gwynne, J., in Suite v. The Corpora- tion of Three Rivers, 11 S.C.R. at p. 46, 4 Cart, at p. 325,(1885) ; per Weatherbe,J.,in The Queen z'. McKenzie, 23 N.S. at p. 11,(1890); per Sedc;ewick, J., In re Prohibitory Liquor Laws, 24 S.C.R. at p.240, (1S95); and Hodgins' Provincial Legislation, Vol. i, at pp. 215-7, where we find an Ontario Act respecting license duties actually dis- allowed on the ground that it was not passed, as it professed to be, "with the single object of raising a revenue from licenses," but that " the real object aimed at " was, " if possible, to make the Dominion Liquor License Act, 1883, inoperative, by imposing a heavy and cumulative tax on persons taking out licenses under it," pending the determination of the question of its constitutional validity. I24 S.C.R. at p. 240, (1S95). ^Sedgewick, J., specially refers several times in his judgment to the decision of the Privy Council in Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (1882), and therefore it is somewhat strange to find him following up his statement, above mentioned, that the effect of No. 9 of section 92 is practically to give the regulation of the liquor traffic to the legislatures, by saying (24 S.C.R. at p. 244) :^ " I can only suggest that the limitation," {sc, " in order to the raising of a revenue for provincial, local, or municipal purposes"), "was imposed for the very purpose of clearly limiting the provinces to regu- lation only." In Russell v. The Queen their lordships say expressly :— "It is to be observed that the power of granting licenses is not assigned to the provincial legislatures for the purpose of regulating trade, but in order to the raising of a revenue for provincial, local, or municipal purposes." With deference, it is submitted that the probable explanation of No. 9 of section 92 is that it was intended by it to author- ize the provinces to raise a revenue by the licenses referred to, although some doubt might exist as to whether this was not indirect taxation. And so per Spragge.C.J., in Regina z'. Frawley, 7A.R. at p. 264, 2 Cart, at p. 581 ; per Maclaren, Q.C, arguendo in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 179 ; per Davey, Q.C, arguendo in the matter of the Dominion License Acts, 18S3-4 : see the transcript from Marten and Meredith's shorthand notes, at pp. 126, 131. See al.so supra at p. 361, n. 2. As Sedgewick, J., points out, (24 S.C R. at p. 244), the limitation in No. 9 of .section 92, above referred to, " was an 378 Legislative Power in Canada. Prop. 32 Pretended legislation on commerce. A parallel from the United States Constitu- tion. Per Harrison, C.J., in Reg. ?.. Lawrence. •4 To return, in Citizens Insurance Co. v. Parsons,^ Fournier, J., says : — " The Federal parliament could not, under the pretence of legislating on commerce, entirely control a subject-matter which comes under the jurisdiction of the province ; " while, conversely, in In re Slavin and The Village of Orillia,- Richards, C.J., refers to the words of McLean, J., in the License Cases, -^ that notwithstanding that the power of regulation of foreign commerce rests with Congress, and not with the States ; still, " if a foreign article be injurious to the health or morals of the community, a State may, in the exercise of that great and con- servative police power which lies at the foundation of its prosperity, prohibit the sale of it*;" adding: — " Such a regulation must be made in good faith, and have for its sole object the preservation of the health and morals of society." In like manner, in Regina v. Lawrence,'' Harrison, C.J., delivering the judgment of the Court of Queen's Bench for Ontario, observes : — " While two legisla- tive bodies exist, each having distinct and exclusive legislative powers, there must be care exercised by each to avoid encroachment by either body upon the exclusive powers of the other, and this must be addition made in London, with the assent of the colonial delegates there, just before the Act became law." See Pope's Life of Sir J. Macdonald, Vol. i, App. xiv., at p. 3S3 ; Pope's Confederation Docu- ments, at p. 106. I4 S.C.R. at p. 257, I Cart, at p. 303, (1880). -36 U.C.R. at p. 173, I Cart, at p. 700, (1875). ■'5 IIow. at p. 592. "^As to the power to prohibit the importation, manufacture, or sale of intoxicating liquors in Canada, see Iluson ?'. The Township of South Norwich, 24 S.C.R. 145; In re Prohibitory Liquor Laws, ibid. 170; and Appendix A. .See also supra p. 348, n. i. 543 U.C.R. at i)p. 174-5, I Cart, at pp. 744-5, (1878). Colourable Legislation. 379 prevented by the Courts, whether the encroachment Prop. 32-4 as.sume the guise of an honest neutral or the garb of an aggressive enemy. . . The whole domain of crime and criminal procedure is the exclusive property of the Dominion parliament, and to allow Provincial . Ill interference the parliament of a provmce to declare that an act with ... -Ill '^''''"•"^1 which, by the general law, is a crime, triable and law. punishable as a crime, with the ordinary safeguards of the Constitution affecting procedure as to crime, shall be something other than, or less than, a crime, and so triable before and punishable by magistrates, as if not a crime, would be destructive of the checks provided by the general law for the constitutional libertv of the subject."^ And the Court held that a Under •' • 1 1 • 1 11 1 J- pretended provincial legislature could not, under pretence 01 exercise of ^ ^ - . - No. 15 of legislating under No. 15 of section 02 to enforce a sect. 92 of ^ ^ ^ . ■' B.N. A. Act. law as to shop, saloon, tavern, auctioneer, and other licenses, legislate with regard to acts which are criminal offences at common law, and wholly col- lateral to a prosecution for the violation of such a provincial liquor license Act. And so, too, in Regina v. Wason,- Street, J.,soper says: — "There are good reasons for holding that in Reg. r'! the provincial legislatures could not by the mere act of passing a statute forbidding the doing of some- thing already an offence, and affecting property and civil rights in the province, confer upon themselves jurisdiction to inflict a new punishment for the offence, and justify it upon the ground that they were merely enforcing their own statute. The foundation for the jurisdiction claimed would be ^See, likewise, per Harrison, C.J., in Kegina v. Roddy, 41 U.C.R. at p. 297, I Cart, at p. 715, (1S77). -17 O. R. at p. 63, 4 Cart, at p. 616, (1S89). S.C. in App. 17 O.A.R. 221, 4 Cart. 578. 380 Legislative Power in Canada. Prop. 32-4 defective, because of its dealing with matters of criminal law."^ Butiegisia- It should not, however, apparently be deemed ture may use . ., , . cautionary m anv Way necessarily a device to make unconsti- phrases . ..".^. ... ,., declaring no tutional legislation colourablv valid, for a legislature intention to . . . "' , transcend its to lusert iH its cnactmcnts such cautionary phrases powers. . •!• 1 •!• as "in matters within the legislative jurisdiction of the province," " so far as this legislature has power thus to enact," " subject always to the royal prerogative, as heretofore," etc. ; nor is the Court in such cases called upon by analysis or criticism of possible powers and functions, which may be embraced in the words used to discriminate as to what are within and what without the scope of the enactment ; any particular case is to be dealt with as and when it arises. If no attempt has been made to act upon or enforce enactments thus guarded, it would seem premature to ask for a declaration of their invalidity. Such is the view of Boyd, C, in Attorney-General of Canada v. Attorney- ^Neverlheless, as this case of Regina v. Wason itself shows, the Dominion parliament and provincial legislatures may in many cases have the right to legislate, from different aspects, to prevent and punish similar acts. See Proposition 35 and the notes thereto, where Regina v. Wason is further referred to. See, also, supra pp. 51, n. I, and p. 360, n. 2, and r/i/ra pp. 383-5. For further dicta as to the obligation of do/ia fides in the exercise of the legislative powers con- ferred by the British North America Act, and against legislation merely colourably within such powers, see per Ritchie, J., in Keefe v. McLennan, 2 R. & G. at pp. 11-12, 2 Cart, at p. 40Q, {1876); per Ritchie, J., in Murdoch v. Windsor and Annapolis R. W. Co., Russ. Eq. at p. 140, 3 Cart, at p. 371, (1877); per Spragge, C.J. O., in Peak V. Shields, 6 O.A.R. at p. 647, 3 Cart, at p. 276, (1881) ; per Taschereau, J., in Reed v. The Attorney-General uf Quebec, 8 S.C. R. at p. 426, 3 Cart, at p. 205, (1883) ; per Gwynne, J., in Danaher v. Peters, 17 S.C.R. at p. 54, 4 Cart, at p. 436, (1889). And in this connection may be noted the dicta of Hagarty, C.J.O., in Clarkson v. The Ontario Bank, 15 O.A.R. at p. 181, 4 Cart, at p. 517, (1888), to the effect that a legislature cannot by piecemeal in separate Acts legislate in relation to matters which it could not deal with as a whole in one Act. The actual decision in this case was, of course, over- ruled by Attorney-Cjeneral of Ontario v. Attorney-General of Canada, [1894] A. C. 189. Territorial Area of Legislation. 381 General of Ontario/ and in the same case in appeal, Prop. 32-4 Burton, J. A.,- and Fournier, ].,"' express their agreement. On the other hand, Gwynne, J., takes a different view, saying*: — " I think that the use of such a formula cannot divest the Court of power to pronounce an Act to be ultra vires if the subject- matter dealt with be not within the jurisdiction of the legislature to legislate upon ; that is to say, if an Act of a provincial legislature deals in any way with such a subject-matter, the Act, not being intra vires, must be ultra vires. . . . The formula used does not divest the Act of its character of being an Act of the legislature, nor can it make the subject with which it proceeds to deal to be within the jurisdiction, if in point of law it is not." Passing to Proposition 33 (which might indeed Prop. 33- be deduced from Propositions 27 and 28), it is in the words of Taschereau, J., in Citizens Insurance Co. V. Parsons,^ who adds in explanation: — " The Per . , p Taschereau, British North America Act is not susceptible of a j., in citi- . . zens Ins. Co. different construction without eliminating from j. Parsons. section 91 thereof the controlling enactment that the general power of the central parliament to make laws for the peace, order, and good government of the whole Dominion, does not extend to the subjects left to the provincial legislative power, and that, notwithstanding anything in the Act, the authority of the central parliament over the matters enumer- I20 O.K. at p. 246, (1890). 219 O.A.R. at p. 3S. 323S.C.R. at p. 472, (1894). 423 S.C.R. at p. 475- 54 S.C.R. at p. 310, I Cart, at p. 329, (1880). And so per Gwynne, J., in /;/ re Prohibitory Liquor Laws, 24 S.C.R. at p. 223, (1895)- 382 Legislative Power in Canada. Prop. 32-4 ated as left under its control is exclusive; as also without eliminating from section 92 of the Act the enactment that the provincial legislatures have exclusive power over the matters therein enumer- ated. And this cannot be done ;" and the learned judge says that he presumes that it was upon this principle that the Bill to incorporate the Christian Brothers as a Dominion body was reported by the Supreme Court ultya vires, as above mentioned."^ Parliament And similarly in In re Local Option Act," Burton, re"5isiauire^ J-A., says : — " I think the principle must be clear si've juristic- that ncithcr the Dominion parliament nor the local tion over ,., .,-..,.. subjects, not legislature can attract to itseli a jurisdiction in merely over • i i • i i i area. mattcrs assigucd exclusively to the other power by the mere device of enlarging the geographical area so as to include the whole of the provinces, nor in the other case of restricting the area in which the power is to be exercised."" Sir Oliver As Sir Olivcr Mowat, the Attorney-General for Ontario, expresses it in a report to the Executive Council of the province upon the decision of the Privy Council in Hodge v. The Queen*: — "It is clear that an alleged or supposed expediency of the law being uniform throughout the Dominion on an}' subject which is otherwise within the exclusive jurisdiction of the provincial legislatures does not ^See S!i/>ra p. 375, n. 2. -18 O.A.R. at p. 589, (1891). Ami so, also, per Burton, J. A., in Regina ?: The County of Wellington, 17 O.A.R. at pp. 433-4, (1890). 3" But this, of course, is not done where, in the execution of a power expressly given to it by section Qi, the federal legislature makes laws similar to those which a provincial legislature may make in executing other powers expressly given to the provinces hy section 92 :" jier Strong, C.J , in Iluson 7/.The Townshiji of South Norwich, 24 S.C.R. at p. "147, (1895). See, also, supra pp. 349-53, and Proposition 51 and the notes thereto. •iDom. Scss. r.ip., 1SS4, Vol. 17, No. 30, at p. 143. Mowat. Territorial Area of Legislation. 383 give jurisdiction to the Federal parliament to create Prop. 32-4 uniformity."^ Russell v. The Queen," as has already been remarked,'^ does not decide anything Russeii e-. -- JO xjje Queen adverse to this. On the contrary, as King, J.,<^^'^H^\ -' ' ' J ' nothing to observes in In re Prohibitory Liquor Laws,* it was'^^'="""'3'^y- recognized in the decision of the Privy Council upon the Dominion License Acts, 1883-4, "where Per it was held that where a subject, such as the/«r. The Temporalities Board, Doutre's Constitution of Canada, at pp. 263-4, I Cart, at p. 392. 27 App. 829, 2 Cart. 12, (1SS2). ^ Supra p. 360, n. I. And so per King, J, in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 256, (1895). ^'Ib. See further, as to the decision of the Privy Council in the matter of the Dominion License Acts, the notes to Proposition 35, infra. And for an abstract of the argument before them, see Todd's Pari. Gov. in Brit. Col., 2nd ed. at pp. 553-4. See, also, supra p. 58, n. I. ■■■See this argument as published in cxtcnso by The Budget Printing and Publishing Co., Toronto, at p. 6. See, also, supra p. 315, n. 3. ®See 5«/ra p. 348, n. i. ' TVwfj of August 2nd, 1895 ; sub. nom. Attorney-General for Ontario V. Attorney-General for the I^oniinion of Canada, and the Distillers and Brewers' Association of Ontario. 384 Legislative Power in Canada. Prop. 32-4 observed, consistently with what has been already advanced,^ that Russell v. The Queen did not settle the question whether the same matter as Russell r/. was dealt with by the Canada Temperance Act, The Queen. 1 1 r 1 -n then before the Board, could not be dealt with by the provinces locally in a manner not inconsistent with the Dominion legislation. And on Lord Davey saying it might be for "the peace, order, and good government " of the Dominion to prohibit, for instance, the sale of firearms, in any particular h°^'^ , „ province. Lord Herschell, the report states," said Herschell. '^ _ _ ^ _ " it was difficult to see why a province might not itself deal with such a matter as a local subject. He did not suggest that the Dominion might not also deal with it as much more than a merely local matter. A sanitary regulation might be passed by a local legislature, but that would not prevent a general sanitary regulation of a similar nature, necessary for the safety of the whole Dominion, being enacted by Parliament." To hold otherwise would, it is submitted, be to ignore the significance ;■ Merely" of thc word "merely" in No. i6 of section 92 of sect. 92, ' the British North America Act, which, it will be B.N.A. Act. , , , . , ' . . ^ observed, does not occur m the descriptions 01 any of the other classes of subjects therein assigned to the provinces. Thus the meaning of No. 16 of section 92 would seem to be that, over and above Its the prior fifteen classes of subjects in that section signi cance. j^^^^^g^^ g^j^^ subjcct, of coursc, to the cxclusivc jurisdiction of the Dominion over the twenty-nine classes of subjects enumerated in section 91,^ a provincial legislature may, also, legislate in a ^See supra p. 360, n. i. "^Times of August 7th, 1895. The transcript from Marten and Meredith's .shorthand notes of the argument (first day, at p. 50; third day, at pp. 20-22) confirms the Times' report. ^See supra p. 308, n. i. Territorial Area of Legislation. 385 merely local or private way in the province, on all Prop. 32-4. other matters of a nature admitting of such mere local or private treatment, and may exclusively so Subjects , may. in one legislate.^ But inasmuch as the exclusive power of f^p^"- be " '^ local and legislation thus given is over such matters qua their pj^'J^^^^'^^'" merely local or private nature, if they partake also of s^"^""^'- a general nature — or, in other words, if, in another aspect, they assume the form of matters affecting the peace, order, and good government of the whole Dominion,- — or, it may be, of more than one province,^ — there is nothing m this to prevent Par- liament legislating upon such matters in this latter aspect under its general powers conferred by section gi.* There is nothing in this inconsistent with the provision of section gi, that the general Dominion power of legislation does not extend to matters coming within the classes of subjects assigned exclusively to the legislatures of the provinces, nor is there anything in it inconsistent with Proposition ^^, now under discussion. A contention has been advanced, and has met with Provinces , 1 r , ■ 1 • • cannot trie approval 01 one or two judges, m connection legislate with the question of bankruptcy and insolvency,^ insect. 91 I 1 1 r^ • • -n "1 ■ merely that so long as the Dommion Parliament has passed because 11 , . . , there has no general law deahngwith the subjects enumerated been no . . Dominion in section gi of the British North America Act, the legislation, field is open to the provincial legislatures to supply the want of one so far as concerns their own prov- inces. But Osier, J. A., observes in Clarkson v. ^As to the meaning of "of a merely local or private nature," see the notes to Proposition 59. ^See Proposition 35 and the notes thereto. ^See Proposition 51 and the notes thereto. ■*See Proposition 26 and the notes thereto. ■^See per Ritchie, C.J., in Armstrong v. McCutchin, 2 Pugs, at p. 3S4, 2 Cart, at p. 497, (1874) ; per Maclennan, J. A., In re Assign- ments and Preferences Act, 20 A. R. at p. 502. See, also, Clement's Canadian Constitution, pp. 216-7, 393- 386 Legislative Power in Canada. Prop. 32-4 Ontario Bank,^ that: — " Pushed to its legitimate con- elusion, this argument implies that the legislature of each province may pass a local bankrupt or insolvent Act ; but it is met and answered by the observation of the Privy Council in Lambe v. Bank of Toronto,- not, indeed, for the tirst time made there, ^ that the Federation Act exhausts the whole range of legislative power, and that what is not thereby given to the provincial legislatures rests with the Parliament."* It is submitted upon the authorities referred to in the notes to Proposition 59, iq.v.), that the express object of the concluding paragraph of section gi was to guard against such a construction of the Act. Prop. 34- Proceeding to Proposition 34, in Leprohon v. The City of Ottawa," Spragge, C, says: — "I premise that the provincial legislature cannot do indirectly what it cannot do directl}'. If it cannot impose a Legislatures dircct tax upou public salaries. Dominion as well indirectly as provluclal, it cannot empower municipalities to what they , i j i r i cannot do do SO uudcr the name 01 personal property or otherwise®;" and in Gibson v. M'Donald," O'Con- nor, J., uses similar words, holding ultra vires an Ontario Act which provided that the Countv Court I15 O.A.R. at p. 191, 4 Cart, at p. 52S, (18SS). -12 App. Cas. at p. 5SS, 4 Cart, at pp. 23-4. •''See the notes to Propositions 26, 27, and 28. *See, also, per Ritchie, C.J., in Quirt 7.'. The Queen, 19 S.C.R. at p. 514 ; also an article in 30 C.L.J. 1S2. ^2 O.A.R. at pp. 526-7, I Cart, at pp. 596-S, (1878). ''As to the decision in Leprohon v. City of Ottawa, see the notes to Proposition 61, infra. "'•; O.R. at p. 419, 3 Cart, at p. 328, (1885). I" ^'« County Courts of British Cokinihia, 21 S.C.R. 446, (1892), would seem to overrule the decision of O'Connor, J., in this case. See the notes to Proposi- tion 45. « Indirect Assumptions of Power. 387 judge of one county might preside at the sessions Prop. 32-4 in a county other than that of which he was judge, on the ground that it amounted indirectly to the appointment of a County Court judge. And in connection with this last case, Tarte v. Bei'que^ may be referred to, where Wurtele, J., Ia3-s it down that, since the provincial legislature has not power to provide for the appointment of the judges The appoim- ^ r A 1 1 • ■ f , ■ • ^ merit of 01 Courts 01 superior or extended jurisdiction, it has judicial . , i- ...... ^ officers. no power either to confer the jurisdiction 01 a Superior Court, or the powers of a judge thereof, on any officer appointed by the provincial govern- ment, or on any other person to be named by it.- On this same principle, in Burk v. Tunstall,"^ Drake, J., held that though the provincial legisla- ture could create Mining Courts, it could not give gold commissioners appointed to preside over Sect. 96, ... ,: . B.N.A. Act. them jurisdiction " unlimited as to amount, and limited only b}^ the fact that the questions to be decided must be between persons engaged in mining." This, he said, was to trench upon the powers of the Governor-General under section 96 of the British North America Act. Otherwise "the provincial legislature would only have to constitute a Court by a special name to enable them to avoid this clause ; but in the section itself, after the special ■"•M.L R. 6 S.C.R. at p. 290, (1S90). ^The actual decision of Wurtele, J., in tliis case was that a provision of a Quebec statute that the Lieutenant-Governor should have the same power to enforce the attendance of witnesses on commissions of enquiry issued by him in respect to any matters connected with the good government of the province, and to compel them to give evidence, "as is vested in any Court of law in civil cases," was 7(/ira vires. On appeal, this was reversed ; but, so far as appears from the report, the Court did not state its reasons: M.L. K. 6 Q.B. 263, siil> iioi/i. Turcotte v. Whelan. ■*2 B.C. (Hunter) 12,(1890). See also, as to this case, p. 12J, stipra. 388 Legislative Power in Canada. Prop. 32-4 Courts therein named, the Courts of Probate in Nova Scotia and New Brunswick are excepted from the operation of the clause, thus showing that section g6 was intended to be general in its operation."^ Legislature Again, in Angers v. The Queen Insurance Co.,^ cannot act . ., r /-\ > in fraud of Dorioii, CJ., m the yuebec Court 01 CJueen s the Consti- t-> i ■> • r i ■ '"'■ i \ tuiion. Bench, ODserves, m reference to the provmciai Act there in question, which he held imposed a tax which in reality, though not in form, was an indirect tax : — " It is an evasion of the Act from which the local legislature derives its powers. The local legislature, no more than private individuals, cannot act, as it were, in fraud of the law, to use a technical term ; that is, to do by indirect means what it cannot effect directly." "Interest" So, too, iu Ross V. Torrancc,'"' Johnson, J., held in No. 19 ..... of sect. 91, that a provincial legislature has no power to author- ize a municipal corporation to charge ten per cent, increase on overdue assessments, the so-called '•'increase" being but another name for interest, which, by No. ig of section gi, is exclusively assigned to the Dominion, and he says'*: — "They cannot change its nature by changing its name ; " a ^Reference may also be made to a letter, signed George Patterson, in 21 C.L.J, at p. 421, in which the power of provincial legislatures to delegate the functions of judges appointed by the Governor-General under section 96 of the British North America Act to Masters and Referees appointed by the provincial government is discussed and disputed on the principle of Proposition 34. See, also, supra p. 164, n. I , and Re The Dominion Provident Benevolent and Endowment Associa- tion, 25 O.R. 6iq, (1894) ; and upon the general subject of provincial attempts to evade section 96 in respect to the appointment of judges, see the report of Sir J. Thompson upon the Quebec District Magistrates Act, 1888, supra p. 141, ei seq. '■222 L.C.J, at p. 311, I Cart, at pp. 151-2, (1S77). See, also, supra P- 373- •^2 L.N. 1S6, 2 Cart. 352, (1879). •^2 L.N. at p. 1 88, 2 Carl, at pp. 356-7. B.N. A. Act. Indirect Assumptions of Power. 389 holding which was followed in Schultz v. City of Prop. 32-4 Winnipeg^ in reference to a similar Manitoba enactment, as it was also in Morden v. South Dufferin.- However, these decisions were over- ruled bv the Supreme Court of Canada in Lvnch z^.^ynchz^. •^ '^ - Canada The Canada North-West Co. ,Mhe Court holding, ^orth-west Gwynne, J., dissenting, that " interest" in No. ig of section gi means interest in connection with debts originating in contract, whereas taxes are not such debts.* 16 M.R. at p. 40, (1SS4). •26 M.R. 515, (1S90). 3i9 S.C.R. 204, (1S91). See, especially, at pp. 213, 217, 223. *In reference to this matter of " interest," attention may also be called to the footnote at p. 671 of Mr. Bourinot's Parliamentary Procedure and Practice, (2nd ed.), where he says : — "In 1886 a bill relating to interest on mortgages secured by real estate was withdrawn '• Interest " s.i ttltra vires, the Minister of Justice having drawn attention to the '" '^o- '9°^ fact that, among other olijectionahle features, one of the clauses ^'^j^ A'Act contained a provision not relating to interest, properly speaking, but rather to contracts for the securing of money, — clearly a matter of provincial jurisdiction": Can. Hans., 1SS6, p. 440; Can. Com. Journ., 1886, p. 137. The bill here referred to was brought in to amend the Act 43 Vict., c. 42, D., s. 5, (now R.S.C., c. 127, s. 7), which provides that any mortgage may be discharged after five years, on a three monihs' bonus, though not in terms made payable till after that. It was this enactment as to which the Minister expressed Dominion the above view, and pointed out that the proposed amendment was l["q p^' ^^^' open to the like objection. This seems to suggest the same distinc- ^ \ '' tion as that taken by Dubuc, J., in Schultz v. City of Winnipeg, 6 M.R. at p. 45, where he expresses the view that though by No. 19 of section 91 interest is exclusively within Dominion jurisdiction, this does not prevent a provincial legislature empowering municipalities to issue debentures bearing interest not exceeding seven per cent., or any other rate, for: — " In that case, it only authorizes the corporate body, as an artificial person, to contract for a rate of interest higher than the legal rate. The corporate body is not forced nor bound to pay such rate against its will. It is only allowed to contract for such a rate if it so desires." And Gwynne, J., speaks to like effect in Lynch v. The Canada North- West Co., 19 S.C.R. at p. 223. It may be further mentioned ihat though in Morden 7>. South DufTerin, 6 MR. 515, the Manitoba Court of Queen's Bench held that to authorize the imposition of an increased per- centage on assessments was ultra vires, they held that to authorize the allowance of a rebate on payment before a certain date was not, the distinction being, according to Killam, J., (at p. 519), that for an addition the authority of the legislature is necessary, but that in respect 390 Legislative Power in Canada. Prop. 32-4 In the meanwhile, and before the Supreme Court decision, the Manitoba legislature passed an Act, (52 Vict., c. 45), the object of which was to over- ride the decision of the provincial Courts, and Legislature which declared that the addition of the percentage cannot ac- quire power Qtt arrears of taxes was, and had been, lawful, but by fettering the action of not SO as to affcct anv pending^ suits, and provided the Courts. -^ ^ o '^ that no sale for taxes theretofore or thereafter made should be impeached because such percentage formed part of the claim for arrears for which the lands had been sold, and that the Court of Queen's Bench for Manitoba should not have jurisdiction to impeach any such sale on any such ground. By Sir J. his report, however, of March ist, 1800, Sir John Thompson. . . . Thompson, as Minister of Justice,^ recommended the disallowance of the Act, which was disallowed accordingly,- and his words bear upon the leading Proposition under discussion. He says:— "It may now be assumed, in consequence of the decision of the highest Court in Manitoba, that the imposition of the additional percentage referred to was ultra vires of the provincial legislature. If it be so, the subsequent enactment, which is now under review, is open to the same objection, and the legislature cannot make such legislation intra vires by pro- hibiting the Courts from deciding on the question." Somewhat analogous to this is the holding of Graham, E.J., in Thomas v. Haliburton,^ that : — of the discount there is a qualification of the provisions authorizing the imposition of a general rate, such that there is an absence of authority to charge more than the reduced amount before a certain date." In Lynch v. The Canada North-West Co., 19 S.C.R. at p. 224, however, Patterson, J., disputes the validity of this distinction, and, as we have seen, the Court held that even the authorization of the addition was t/Ura vires. ^See supra p. 174, n. i. 2By Order in Council of March 8th, 1890. 326N..S. at p. 77, (1893). Indirect Assumptions of Power. 391 " If the legislature could not pass a law to enable Prop. 32- the House of Assembly to punish a man for con- tempt, or to punish a man for not submitting to its ^orcanthey i^ ' r^ "^ do so by sentence in a criminal matter, I think it could not P^|^'"g. indemnity get round the difficulty by passing an indemnity Act, •'^'^'^• incorporating in the same Act a section indemnify- ing all of the members if he was so punished at their instance."^. And the discussion of Proposition 34 may be The • r T^i European concluded by mention of The European and North and Nunh American American R.W. Co. v. Thomas,- as suggesting theR-w. Co. ' '^^ '^ . -/. Thomas. need of caution in applying the rule expressed in it. There a railway company had been incorporated by a New Brunswick Act, passed prior to Confeder- ation, for the purpose of constructing a railway from St. John to the boundary of the United States, and No. 10, sect. 92, its charter of incorporation was amended after Con- b.n.a. Act. federation by a further provincial Act, 32 Vict., c. 54, which, it was contended, was ultra vires, because the railway was a part of a scheme for a continuous railway extending through the province into the State of Maine. The Supreme Court of New Brunswick, however, held that it was intra vires under section 92, No. 10, of the British North America Act, Ritchie, C.J., observing'^: — "We think Provincial we have no right to look to the intentions, or antici- may kdw pations, or doings of parties outside the provincial limit of 1 ■ 1 -y 1 • 1 ("' r TL r • • 1 province, legislature, either in the State of Maine or in the though r XT T-. -1 11 1 • • intended to province 01 New Brunswick, and that the intention connect with r L 1 • 1 1 • I . 1 '"^ foreign ot the legislature, as expressed in the Act, alone railway. ^This case has been carried to the Privy Council, and, at the time of this portion of this work going through the press, stands for judgment. ^^i Pugs. 42, 2 Cart. 439, (1871). 3 1 Pugs, at pp. 45-6, 2 Cart, at p. 442. See, as to the power of provincial legislatures to authorize the construction of a railway to the boundary of the province, the letter of Mr. George Patterson, in 22 C.L.J. 307. 392 Legislative Power in Canada. Prop. 32-4 can control us, — that the fact of the legislature of the State of Maine authorizing, or its people intend- ing to construct, or actually constructing, a line of railway in that country, cannot in any way affect the authority of our own legislature to legislate on and deal with railway undertakings, provided always such railways do not connect the province with any other or others of the provinces, nor extend beyond the limits of the province. This is the simple question, and all we have to consider in determining on the validity of the Act.'* Aspects of Legislation. 393 PROPOSITION 35. 35. Subjects which in one aspect and for one purpose fall within the jurisdic- tion of the Provincial Legislatures may, in another aspect and for another purpose, fall within the jurisdiction of the Domin- ion Parliament.' The above Proposition is derived from the words of the Judicial Committee in their judgment in Hodge V. The Queen,- where they sa}- : — "The principle which the case of Russell v. The Queen, •"* The aspects j.i r^i/^-^- T /^ 1 of legislation and the case or the Citizens Insurance Company,'* may ■ 1,., ,. .... ", determine illustrate is that subjects which m one aspect and itsconstitu- r ' rii-1- • r 1 T^ ■ ■ 1 tioriality. tor one purpose tall within section gz ot the British North z\merica Act ma\', in another aspect and for another purpose, fall within section gi." ^The printing of this work, whicli, owing to practical necessities, has to be struck off in small sections, has been stayed, after com- pletion of the notes to Proposition 34, for many months, pending the decision of the Privy Council upon appeal from the Supreme Court of Canada (24 S.C.R. 170) on the reference which it seems probable will be cited henceforth as The Liquor Prohibition Appeal, 1895. which has now (May 9th, 1S96,) been given, and is reported 65 L.J. 26, s!td now. Attorney-General for Ontario v. Attorney-General for the Dominion of Canada and The Distillers and Brewers' Association of Ontario. It has, as was anticipated, a most important bearing, not only upon the subjects to be discussed under this Proposition, but upon many points subsequently to be treated of. Their lordships' decision will also necessarily govern the appeal from the decision of the Supreme Court in the case of Huson z: The Township of South Norwich, 24 S.C.R. 145. (1895). See p. 348, n. i, sti/>ra. ^9 App. Cas. at p. 130, 3 Cart, at p. 160, (1SS3). ^7 App. Cas. 829, 2 Cart. 12, (1882). *7 App. Cas. 96, I Cart. 265, (iSSi). 394 Legislative Power in Canada. Prop. 35 Before, however, considering how these and other cases iHustrate the principle thus expressed, it may be well at once to state that by "aspect" must Meaningof be undcrstood the aspect or point of view of the "aspect." , . , . , . , . 11- 1 legislator in legislatmg, — the object, purpose, and scope of the legislation. The word may be said to be used subjectively of the legislator rather than objectively of the matter legislated upon.^ And so in his lucid and instructive argument be- fore the Privy Council in the above case of Hodge V. The Queen,- Mr. Horace Davey, as he then was, meeting the objection that to intrust the provincial legislature with the power of legislation on licenses was to interfere with trade and commerce, and that Mr. Horace the Ontario Liquor License Act then before the Board was therefore ultra vires, says: — "It may incidentally, of course, affect the particular trade which is dealt with in the licensing law, but the principal object of the Act is not the interference with trade, nor is it aimed at the interference with trade, but is aimed at the regulation of trade carried on by particular persons, within a particular ^Gwynne, J., /n re Prohibitory Liquor Laws, 24 SCR. at pp. 219-21, would nevertheless seem to have understood "aspect" as meaning the aspect of the subject-matter legislated upon rather than, as, it is submitted, with deference, the authorities cited in the text abun- dantly show it should be understood, the aspect of the legislator. Thus he there speaks of the traffic in intoxicating liquor as having two aspects in which it may be regarded, one the aspect of prohibition, and the other the aspect of regulation. But traffic in intoxicating liquor does not in itself import legislation of any kind ; prohibition of such traffic, however, does, and so does regulation of it. And whereas Gwynne, J., says that the right to absolutely prohibit the carrying on of the trade of selling spirituous liquors is a subject which does not admit of two aspects, the judgment of the Privy Council in that very case shows, as will presently appear, that this is not so ; but, on the contrary, that it admits on the one hand of a local and private aspect in the province, and on the other hand of a Canadian or national aspect. King, J., S.C., at p. 257, seems to have understood the matter as explained in the text. ^Dom. Sess. Pap., 18S4, Vol. 17, No. 30, p. 98. Regulation of the Liquor Traffic. 395 area, for what may be shortly described as poHce Prop. 35 purposes." And again in the same argument^ he, in like manner, says : — "From one point of view I can understand that the regulation of liquor traffic may come under the head of trade and commerce, and would be within the competence of the Domin- ion parliament. Your lordships have so held ; your Mr. Horace Dsvsv on lordships have held that the Temperance Act of different 1878, which was before you in the case of Russell v. legislation. The Queen,- was within that competence ... I can imagine on the other hand, and, in fact, my sub- mission is, that police regulations with regard to the times of closing public houses with the object of preventing public houses becoming a resort for thieves and prostitutes, and other bad characters, and with regard to obtaining public quiet, and mat- ters of that kind, — in that point of view the regula- tion of the liquor traffic, if I may use the expression, is a matter of a purely local character, and a lit matter for the provincial legislature to deal with . . , I am bound to admit that if you said it was either one or the other exclusively, either proposition would be wrong, because it may belong, with different aspects in different respects, to both or to either." And so, Ramsay, j., evern v, 1 he Queen, -^ Ramsay, J., says : — In subject. a recent case the Privy Council has intimated that the object of the law might determine its constitu- tionality. In Russell v. The Queen, the object of i//;. at p. 93. 27 App. Cas. 829, 2 Cart. 12, (1SS2). But in their recent judgment on The Liquor Prohibition Appeal, 1S95, their lordships clear up all doubt upon the point that it was under the general legislative power of Parliament to make laws for the peace, order, and good government of Canada, and not as coming within the regulation of trade and com- merce that they held the Canada Temperance Act to be iiiira vhes in Russell v. The Queen : 65 L.J. at pp. 33-4. 3M.L.R. 2 Q.B. at pp. 397-8, 4 Cart, at pp. 363-4. 396 Legislative Power in Canada. Prop. 35 the statute being the general order and good gov- ernment of Canada, it was declared to be constitu- tional, while in Hodge v. The Queen, ^ the object of the law being municipal institutions in the province, the statute was likewise declared to be constitu- tional." Russell r. Thus in Russcll V. The Queen," where it was con- as iiiustra- tended that the Canada Temperance Act, 1878, matter. was iiltra vires of the Dominion parliament, because it had relation to property and civil rights, which by No. 13 of section 92 of the British North America Act are assigned to the provincial legislatures, their lordships say : — ^" What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its rights, but one relating to public order and safety. That is the primary matter dealt with, and, though incidentally the free use of things in which men may have property is interfered with, that incidental interference does not alter the char- acter of the law. Upon the same considerations, the Act in question cannot be regarded as legislation in relation to civil rights . . . Laws of this na- ture designed for the promotion of public order, safety, or morals, and which subject those who con- travene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall w^ithin the general authority of Parliament to make laws for the order and good government of Canada, and have direct relation to criminal law." And then they add in words which will be found embodied in the next Proposition, the notes to which should be read also in connection with the present I9 App. Cas. 117, 3 Cart. 144,(1883). -7 App. Cas. at pp. 838 9, 2 Cart, at pp. 22-3. Aspects of Legislation. 397 Proposition^ : — "The true nature and character of Prop. 35 the legislation in the particular instance under dis- cussion must always be determined, in order to ascertain the class of subjects to which it really belongs." And what, in Hodge v. The Queen,- their lordships are pointing out in the passage from which the leading Proposition is derived is that it was a mistake to suppose that because, in Russell y Hodge r/, ■■ * The Queen The Queen, -^ they had held that the Canada Tem- ?^'""=^"^^'- '^ -^ ms; same perance Act, 1878, which abolished all retail trans- ^"'^J^'^'- actions between traders in liquor and their custom- ers within every provincial area in which its enact- ments had been adopted by the majority of the local electors as in the Act provided, and which, viewed in its proper aspect and with reference to its proper purpose, was a general Act relating to public order and safety and good morals in the Dominion, ihe reguia- . . tion and fell within the powers conferred upon the Dominion prohibition . . . ofthej parliament by section gi of the British North '■q^o'' trade. America Act, to make laws for the peace, order, and good government of Canada, therefore it followed that the whole subject of the liquor traffic was given to the Dominion parliament, and, consequently, taken away from the provincial legislatures, and that the Liquor License Act of Ontario, R.S.O., 1S77, c. 18 1, which was confined in its operation to muni- cipalities in the province of Ontario, and entirely local in its character and operation, was necessarily ultra vires. On the contrary, their lordships held, in Hodge V. The Queen, that the portions of the said Ontario License Act with which they had to deal came within Nos. S, 15, and 16 of section 92, and ^As should also ihe notes to Propositions 27 and 28. ^9 App. Cas. at p. 130, 3 Cart, at p. 160, (1S83). ^7 Afp. Cas. S29, I Cart. 12, (1SS2). 39^ Legislative Power in Canada. Prop. 35 not within section gi.^ Thus in words of Meredith, C.J., in Blouin v. The Corporation of the City of Quebec,- in which case the grounds of the decision of the Privy Council in Hodge v. The Queen were to a great extent anticipated by the Quebec Superior iThat is, they came within the three conjointly. See per Lord Herschell in the argument on The Liquor Prohibition Appeal, 1S95, at p. 156 (published by Wm. Brown & Co., London, 11595). The Meaning of interpretation which the Privy Council have given of No. S of No. 8 of section 92 of the British North America Act, " Municipal Institutions B.N. a!' Act. ^^ ^^^ Province," in their recent decision on that appeal, 65 L.J. at p. 34, namely, that it "simply gives provincial legislatures the right to create a legal body for the management of municipal affairs," effectually disjjoses of the suggestion of Burton, J. A., /« re Local Option Act, 18 O.A.R. at p. 587, et set/.. (1891), that if the attention of their lordships had been drawn, in Russell v. The Queen, to No. 8 of section 92 their decision would have been different, a suggestion somewhat discussed in the judgments in the Municipal .Supreme Court, from which the appeal was taken to the Privy Institutions Council: see per Gwynne, J., 24 S.C.R. at jip. 223, 228; per Province. ^)^'"g' J-' S.C.at pp. 255-6 ; per Sedgewick, J., S.C., at p. 246. See also per Ritchie, C.J., on the argument before the Supreme Court in respect to the Dominion License Acts: Dom. Sess. Pap., 1885, No. 85, at p. 233. The perusal of the transcript from the shorthand notes of Marten & Meredith of the argument in Russell z'. The Queen, which is in the possession of the Department of Justice at Ottawa, shows beyond a doubt that No. 8, though once or twice referred to, was not at all discussed or relied upon. What counsel for the appel- lant (Mr. Benjamin and Mr. Reginald Brown) relied upon in contend- ing that the Act was it/^ra vires of the Dominion parliament was prin- cipally No. 9 of section 92. They also relied on Nos. 2, 13, and 16. The The state of things existing in the municipalities before Confederation argument in was only referred to to show that they always derived a revenue from ThrOueen ''"l^or licenses (see second day at pp. 25-8), as regards which it was contended section 92 meant to give exclusive power to the provincial legislature. At the conclusion of the appellant's argument their lord- ships intimated to Mr. McLaren, counsel for the respondent, that they only wished to hear him on the subject of whether the Act was within No. 16 of section 92, " generally all matters of a merely local or private nature in the province." His argument, therefore, was con- fined to this point. But even if, as so many judges in Canadian courts have supposed (see supra at p. 47. et seq.), and counsel so often argued, municipal institutions in No. 8 of section 92 necessarily implied the right to endow these institutions with all the administra- tive functions which had been ordinarily possessed and exercised by them before the time of Confederation, excepting, indeed, in respect to matters expressly given to the Dominion by section 91, it is submitted that the provisions of the Canada Temperance Act, 1878, as explained by the Privy Council, were quite beyond the scope of power over municipal institutions even as so understood. 27 Q.L.R. at p. 22, 2 Cart, at [>. 373, (1880). Prohibition of the Liquor Traffic. 399 Court, those people are mistaken who ''seem to Prop. 35 think it impossible that Parliament and the provin- cial legislatures can for any purpose whatever, or under any circumstances whatever, legislate in rela- tion to the same matter."^ The cases, then, of Russell v. The Queen and Hodge V. The Queen illustrate the fact that there may be legislation in respect to traffic in liquors in two different aspects, one contemplating its prohibi- Prohibitory 1 • r 1 T^ • • liquor laws tion in the general interests of the Dominion, and may differ ... ..... in aspect. the other contemplating its regulation in the interests of the good order of the municipalities. But as to the prohibition of trade in into.xicating liquors, the recent decision of the Privy Council on The Liquor Prohibition Appeal, 1895,- shows that it also itself mav be treated from two different aspects, under one of which it is within the exclusive jurisdiction of the Dominion parliament, while under the other it is within the exclusive jurisdic- ^So Pomeroy on Constitutional Law, ist ed., at p. 218, cited by Fournier, J., in Citizens Insurance Co. v. Parsons, 4 S.C. R. at p. 260, I Cart, at p. 306, (1880) : — "All experience siiows that the same measures, or measures scarcely distinguishable from each other. Similar may flow from distinct powers : but this does not prove that the measures powers themselves are identical. Although the means used in f..^^ distinct their execution may sometimes approach each other so nearly as to be powers confounded, there are other situaiions in which they are sufliciently distinct to establish their individuality." In Canadian Pacific R.W. Co. V. Northern Pacific R.W. Co., 5 M.R. at pp. 313-4, Killam, J., suggests that the Djuiinion parliament and local legislatures may both have certain powers of legislation as to the conditions under which provincial railways shall be allowed to cross Dominion railways. See, however. In re Canadian Pacific R.W. Co. and County of York, 32 Railway C.L.J. 415,(1896). See, also, %upra p. 352, et seq. And as to control crossings, of railway crossings see, further, CredilValley R.W. Co. v. Great West- ern R.W. Co , 25 Or. 507, I Cart. 822 ; In r 151-51 175; 1S2, 276) ; but, as has been seen, ■ i ■ \ ^ r^ License (the prmcipal Act before the Board), with the Can- Acts 1883-4. ^ ^ ^ ada Temperance Act, decided in Russell v. The Queen ^ to be intra vires of the Dominion parlia- ment, says : — " The difference seems to be that this is a sort of regulating Act rather than a prohibitory Act " ; and (at p. 64) : — " The question is whether this is not, whatever terms it may use in the pre- amble, really regulating in each province the local traffic." Lord Fitzgerald (at p. 66) observes : — " If this Act of 1883 is, as a whole, within the pow- ers of the Dominion parliament, it supersedes the Grounds of wholc of thc Ontario x\ct which we were dealing Privy .° Council with in Hodge v. The Queen." And (at p. 87) Sir decision. " . Montague Smith again says : — "The question may be, — granted that the Temperance Act might over- ride by prohibiting the traffic altogether, — whether when licenses are to be granted and persons regu- lated in a police way that is not a local matter"; and (at p. gS) : — " They think you have regulated minutely in a sort of local way a retail trade. "- 17 App. Cas. S29, 2 Cart. 12, (1S82). -In the argument, however, which took place on December 12th, 1893, before the Judicial Committee in Attorney-General of Ontario v. Attorney-General of Canada, [1S94] A.C. 189, in respect to the Ontario A.ssignment for Creditors Act, as reported by Marten & Meredith, when reference was made to the Dominion License Acts case by counsel, who observed that the only key to their lordships' reasons was in the report of the argument, the Lord Chancellor, who, as Sir Farrer Herschell, had been of counsel for the Dominion in that case, said : — " I have been through it again, and I fail to find the key there." However, Lord Watson, in the same argument, referring also apparently to the Dominion License Acts case, seems to confirm the conclusion arrived at in the text by saying : — " The judgment in that case seems rather to suggest that whilst the Dominion might determine certain conditions which were attached to the liquor trade in the Dominion, it was for each province to determine whether it should be Aspects of Legislation. 405 It may further be observed, in elucidation of their Prop. 35 lordships' decision in the above matter, that under the Dominion License Act, 1S83, sections 8 and g, each board of license commissioners of the sold at all in certain localities, and, if so, at what hours and under what conditions in the interests of the police and the morality of the place." And in the argument in the recent Liquor Prohibition Appeal, 1895, before their lordships (see page 393, n. i, supra), as reported in Marten & Meredith's notes of the first day's argument, at p. 109, /„ re (see page 402, n. i, supra). Lord Davey says, referring to the Dominion Dominion License Acts matter : — " I think what was intended was this, — that the a"^^.""^?^ machinery of the Act was local in its character, that is to say, it ^ ' ^^'''' created local boards with the power to make local by-laws. I think that was what was intended." And so also in the same argu- ment (third day, at pp. 319-20) Mr. Edward Blake, who was of counsel in the case, says of their lordships' decision : — " It seems plain from the decision in that case, and from the general tone of the discussion, that it was held that the Domin- ion could not generalize in a matter which was purely local — purely local as had been decided by Hodge v. The Queen ; that their attempt to deal with that subject, to appropriate it to themselves, it being a local subject, by acting for the whole Dominion, and appointing their own officers, and so forth, did not alter the character of the matter, or deprive the province of that power which they had under 'merely local or private'; that it remained a local or private subject, and, therefore, the Dominion License Act was void, while the local license Act was maintained." And in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 249, Sedgewick, J-, Grounds of seems to take a similar view to that in the te.xt of the grounds on Privy which the Judicial Committee proceeded in this matter of the Domin- Council ion License Acts ; though he maintains that the sole power to regulate '^^'^'s'°"- the liquor traffic is in the provinces. xAnd so also per King, J., S.C. at pp. 256-7. In like manner, the report of the argument before the Supreme Court of Canada on the same reference clearly indicates that the objections to the Acts in the view of the judges was what is above stated : Dom. Sess. Pap., 1885, No. 85, see esp. per Strong, J., at p. 122; see also per Davie, arguendo, ib. at p. 153. For a synopsis of the argument before the Privy Council, see Todd's Par!. Gov. in Brit. Col., 2nd ed. at p. 551, et scq. For other judicial comments upon the decision of the Privy Council in /;/ re Dominion License Acts, see per McDonald, C.J., in Queen v. McDougall, 22 N.S. at pp. 472-3, 476 ; per Weatherbe, J., S.C, at p. 477 ; per Ritchie, J., S.C, at p. 485 ; per Townshend, J., S.C, at pp. 495-7 ; per Osier, J. A., in Reg. v. Halliday, 21 O.A.R. at p. 48; per Palmer, J., in Ex parte Donaher, 27 N.B. at p. 90. It may be added that after delivery of the judgment in the Privy Council in the case of Hodge contrary,- it seems equally clear that the Dominion parliament in so regulating might do so by means of licenses. Indeed, as Hagarty, C.J.O., observes, in In re Local Option Act,'^ the Canada Temperance Act, 1878, which the Privy Council held to be intra vires of the Dominion parliament in Russell v. The Dominion r\ -iir 1 11- • ri' licensing yueen, itselr contemplated the issuing 01 licenses to laws. brewers and distillers and manufacturers of native wines. And so in the course of the argument before the Judicial Committee in the matter of the Domin- ion License Acts* Sir Barnes Peacock observes : — "You could not say that the Parliament could not • create a criminal offence for selling liquors without a license in the same way as they might create a similar offence for carrying arms without a license, 1 As to which see Proposition 49 and the notes thereto. And apart from its powers under No. 2 of section 91, the Dominion parliament has, no doubt, certain powers of regulating the trade under its general residuary legislative power for the peace, order, and good government of Canada, but this would not enable it to encroach upon the provincial powers of regulation. See Propositions 26 and 32-4, and the notes thereto, esp. at p. 381, e^ set/., and the recent decision of the Privy Council in The Liquor Prohibition Appeal, 1S95, 65 L.J. at p. 32. ^As per Fournier, J., in Molson v. Lambe, 15 S.C.R. at p. 265, 4 Cart, at p. 343. And see, also, per Ritchie, C.J., S.C, 15 S.C.R. at p. 259, 4 Cart, at p. 339 ; and per Cartwrighi, Q.C. , arpiendo in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 18B. 3i8 0.A.R. at p. 580,(1891). *At p. 140. 4o8 Legislative Power in Canada. Licensing laws. Prop. 35 or manufacturing dynamite without a license."^ The fact of an Act imposing the necessity of taking out a license before deahng with intoxicating Hquors is not the crucial point to be considered in determin- ing whether such Act is or is not within the exclu- sive power of the provincial legislatures, but whether the Act so requiring a license does or does not come within one of the classes of subjects enumerated in section 92. " Constitutional limitations," says Palmer, J., in Ex parte Donaher, "look only to re- sults, and not to the means by which results are reached." - To return to our leading Proposition, in their recent judgment on the subject of prohibitory liquor ^And as to both the Dominion parliament and the provincial legis- latures having power to lax by means of license, see per Ritchie, C.]., in Severn v. The Queen, 2 S.C.R. at p. loi, i Cart, at p. 445, (1S7S); Taxation by and per Taschereau, J., in Angers v. The Queen Insurance Co., license. 16C.L.J., N.S., at pp". 204-5, ^ Cart, at pp. 149-50. In Raynor v. Archibald, 31 C.L.J. 669, (1895), McDougall, Co.J., expresses the view, though not necessary to the decision of the case, that though the provincial legislature may regulate the selling of liquor by persons holding licenses, and can prohibit such persons giving liquor to a minor, its power does not extend to making it an offence for a person not a licensee, or employee of such licensee, to give any person liquor, whether such other person be an adult or a minor, apparently deeming that this would be an infringement on the Dominion power over criminal law. An .A-merican parallel. ■227 N.B. at p. 590, (1S88). Story on the Constitution of the United States (5th ed.,vol. 2, at p. 14) says :— " The acknowledged powers of the States over certain subjects having a connection with commerce are entirely distinct in their nature from that to regulate commerce ; and, though the same means may be resorted to, for the purpose of carrying each of these powers into effect, this by no just reasoning furnishes any ground to assert that they are identical. Among these are inspection laws, health laws, laws regulating turnpikes, roads, and ferries, all of which, when exercised by a State, are legitimate, arising from the general powers belonging to it, unless so far as they conflict with the powers delegated to Congress. They are not so much regu- lations of commerce as of police." See, also, ih., Vol. I, at p. 342. " The line between interference with commerce and regulation of police is said to be a very dim and shadowy one " : per Wilson, J., in Regina v. Taylor, 36 U.C.R. at p. 211, quoting from Cooley on Con- stitutional Limitations, 2nd ed., p. 586. Aspects of Legislation. 4og legislation, 1 the Privy Council call attention to the Prop. 35 interesting circumstance, that matters which at one time may only admit of being treated in a local or provincial aspect may at another time assume a phase in which they may admit also of being treated in a Dominion or national aspect. They say at the Subjects of place referred to : — "Their lordships do not doubt uTie only"' 1 .,...,, . local, may that some matters, m their origm local and provin- assume a d. 1 , , • 11- ■ /-^ Dominion , might attain such dimensions as to affect the aspect. body politic of the Dominion, and to justify the Canadian parliament in passing laws for their regu- lation or abolition, in the interest of the Dominion. But great caution must be observed in distinguish- ing between that which is local and provincial, and, therefore, within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern in such sense as to bring it within the jurisdiction of the parliament of Canada. An Act restricting the right to carry weapons of offence, or their sale to young persons, within the province, would be within the authority of the provincial legis- lature. But traffic in arms, or the possession of them Traffic in 1 1 • , , . . . firearms, under such circumstances as to raise a suspicion that they were to be used for seditious purposes, or against a foreign State, are matters which their lord- ships conceive might be competently dealt with by the parliament of the Dominion." One may compare with this the case put by Sir Farrer Herschell, then of counsel for the Dominion, (but who also sat as a member of the Board on the recent case above referred to), in the matter of the Dominion License Acts-: — "Take the very case which I put — power ^65 L.J. at p. 33. See supra p. 393, n. i. '■^At p. 62. 410 Legislative Power in Canada. Prop. 35 given by the province to a municipality to require ^ licenses to be taken out by any one for the storing of gunpowder. Suppose such a power conferred on the municipality, and that that was a matter which would be within their competence — would that take Traffic in away or would that be inconsistent with the power exposives. q£ ^j^g Dominion parliament to pass an Act applying throughout the whole of the Dominion, for the public safety, prohibiting altogether the sale of any explosive, or subjecting it to much more stringent regulations ? Then you come to a matter which is not merely municipal, because you are dealing with it from another aspect, as is put in this very case — that which from one aspect might be within section 92 is from another aspect within section gi. You must look at the scope and object, and if you have legislation for a general purpose, which is applicable to and decided to be necessary for the good of the whole country, then to that is subordinated any local legislation merely of a local character."^ Other cases The various decisions, therefore, which have arisen illustrating . . . , , , ., . . , . different m conncction with laws prohibitmg or regulatmg aspects of rr -ii ■ 111 laws. the liquor trarhc illustrate in a remarkable way our leading Proposition. It remains, however, to notice certain other cases which also illustrate it. As we have seen,- the Privy Council, in Hodge v. The Queen, '^ referred to the case of Citizens Insurance Co. V. Parsons,^ as illustrating the principle. What their lordships doubtless mean is that the purport of their judgment in that case was that the true aspect of the Ontario License Act which they there held intra vires was that of an Act intended to ^See Proposition 46 and the notes thereto. ''Supf-a p. 393. ^9 App. Cas. at p. 130, 3 Cart, at p. 160, (1883). *7 App. Cas. 96, 2 Cart. 265, (1S81). Aspects of Legislation. 411 regulate the business of fire insurance companies Prop. 35 in the province of Ontario, with a view to securing uniform conditions in their poHcies, and not that of citizens * r 1 1 1 • r 1 • 1 Insurance an Act lor the general regulation of trade m the Co. v. Dominion ; and that for this reason it fell within No. 13 of section 92 of the British North America Act, "property and civil rights in the province," and not within No. 2 of section gi, " the regulation of trade and commerce."^ A recent writer in the Canadian Law Times" well observes that legislative dealings with an insolvent estate also exemplify the rule expressed in the leading Proposition. Thus he says : — " The Domin- ion may pass an insolvent law, and as incident thereto — or for the purpose of making it effectual, in the aspect of dealing with insolvency' — mav Bankruptcy incidentally pass laws affecting procedure, etc. But ins?ivency , -^ '■ ^ '■ legislation. the province may, in dealing with property and civil rights and civil procedure, pass laws respecting them which do not lose their efficacy because the person affected may happen to be insolvent. That is to say, for different purposes or by different approaches each may deal with the property and civil rights of an insolvent." This is, of course, illustrated by the judgment of the Privy Council in connection with the Ontario Act respecting assign- ments for the benefit of creditors, Attorney-General ^In their recent judgment upon The Liquor Prohibition Appeal, l895) (65 LJ- at p. 33), their lordships say :— " The scope and effect of No. 2 of section 91 were discussed by this Board at some length in Citizens Insurance Co. v. Parsons, 7 App. Cas. 96, where it was decided that in the absence of legislation upon the subject by the Canadian parliament the legislature of Ontario had authority to impose conditions, as being matters of civil right, upon the business of lire insurance, which was admitted to be a trade, so long as those conditions only affected provincial trade." As to the meaning of the words, " in the absence of legislation upon the subject by the Canadian parliament," see Proposition 46 and the notes thereto. 214C.L.T. at pp. 324-5. 412 Legislative Power in Canada. Prop. 35 of Ontario v. Attorney-General of Canada^; and in Parent v. Trudel,- Andrews, J., says in connection with the same subject : — " Notwithstanding the con- cluding paragraph of section gi of the British North America Act, insolvency of debtors seems to be one Bankruptcy of such subjccts," (sc, such as illustrate the rule in insolvency our leading Proposition), " and though a general bankruptcy and insolvency Act such as that, for instance, recently in force here, under the title of the Insolvency Act of 1S75, is admittedly a matter to be dealt with by the Federal parliament, it seems to me that a law defining the conditions under which a writ of capias can be obtained (even though it apply in some of its enactments merelv to insolvent traders) is within the power of our local legislature to deal with.'' And in Pillow v. City of Montreal,-^ Cross, J., suggests what would be another application of the same principle. There the question was whether an Legislation Act of the legislature of Quebec, prohibiting the use of factory chimneys " sending forth smoke in such quantities as to be a nuisance," was ultra vires, and the Court of Queen's Bench at Montreal held that it was not, for that the offence aimed at, though desig- nated a nuisance, fell short of the criminal misde- meanour of common nuisance, and the Act concerned police regulation incidental to municipal institutions. But at the place referred to Cross, J., observed : — " Perhaps the question could be met in a broader sense, that is, admitting that the act of permitting or causing a chimney to send forth smoke in such i[i894] A.C. 189; see, also, per King, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 257, (1895), and Proposition 37 and the notes thereto. against nuisances ■■^ISQ.L.R. atp. 139. sM.L.R. I Q.B. at p. 409, (1SS5). Aspects of Legislation. 413 quantity as to be a nuisance amounts to the mis- Prop. 35 demeanour which is a common nuisance by the criminal law of the land, would the provincial legis- lature be prohibited from taking measures, not to try whether a common nuisance had been committed for which the offender would be amenable by criminal prosecution, but, when a certain state of facts occurred which might or might not amount to such Legislation 111 1-1 1 against common nuisance, would that legislature not be nuisances entitled, always acting within their powers, to pro- different aspects. Vide that such penalties would be a consequence of that state of facts ? . . It is unnecessary to rule this point for the decision of the present case. I may, however, remark that the case is fairly put by Judge Torrance in the case of Ex parte Pillow, 1 where he holds that the power of the Dominion parliament to enact a general law of nuisance, as incident to its right to legislate as to public wrongs, is not incompatible with a right in the provincial legislature to authorize a municipal corporation to pass a by-law against nuisances hurt- ful to public health, as incidental to municipal insti- tutions." And so Osier, J. A., observes in Regina v. Wason- : — " The legislature, when really dealing with property and civil rights, must have power to say 'thou shalt ' or 'thou shalt not,' and as the Provincial 1 irii-i- 1-1 ■ offences and breach 01 the legislative command is always, in one criminal sense, an offence, the line between what may and what may not be lawfully prescribed without trench- ing upon criminal law is sometimes difficult to ascertain, and may shift according to circumstances. As has more than once been remarked, in one way 16 L.N. 209, (1SS3). ■^17 O.A.R. at pp. 240-1, 4 Cart, at p. 599, (1S90). 414 Legislative Power ix Canada, Prop. 35 of dealing with a particular subject it may be within section gi, or in another way or for another purpose it may fall within section 92," citing Citizens Insur- ance Company v. Parsons/ and Hodge v. The Queen.- And in like manner, in the same case, Maclennan, J. A., says'^ : — " What was here enacted, although it may in its widest sense be regarded as a criminal law, falls under section 92 as a legitimate dealing with property and civil rights in the prov- Fr.nudsupon ince.*' And it is instructive to find that the cheese .p. .. ,. ,. , a^/tt- factories. Dommion parliament having passed an Act (52 Vict., c. 43) very similar to the provincial Act in question in Regina v. Wason, to provide against frauds in the supplying of milk to cheese factories, etc., it, too, was held to be intra vires in Regina v. Stone,* as a public criminal law passed in the interest of the general public, while, as Rose, J., says in that case (p. 48), the holding in Regina v. Wason was that the Act of the legislature " merely protected private rights."^ Provincial legislation against malicious injury to property. ^7 App. Cas. 96, I Cart. 265. ^9 App. Cas. 117, 3 Cart. 144. 3i7 O.A.R. at p. 251, 4 Cart, at p. 611. *23 O.K. 46, (1892). See, also, Regina v. Keefe, i N.W.T. (No. 2) 86, (1890) ; and p. 51, n. i, supra. ^Cf. per Scott, J., in Regina z'. Fleming, 15 C.L.T. at p. 247. In connection also with the above cases and the kind of legislation they deal with, the Quebec Provincial Act, 38 Vict., c. 81, may be referred to, which authorized certain persons to erect piers and booths in the river Nicolet, and by s. 6 provided that any person wilfully or maliciously cutting, breaking, or destroying any part of such piers or booths should be liable to be prosecuted for all damages so done, and on conviction be liable for all costs and damages, and, in default of payment or giving sufficient security, to imprisonment according to the decision of the Court before which the suit shall have been brought. In McCaffrey z*. Hall, 35 L.C.J. 38, (1891), this Act was held to be intra vires by the Quebec Superior Court, but without any special reference to the above section 6. And as to the right of provincial legislatures to prescribe a remedy for civil trespass, see the subject discussed in 6 C. L.J. ,N. S. , at pp. 86-7. In his report as Minister of Justice, of December 24th, 1894, on the Nova Scotia Acts of 1894, Sir C. H. Tupper says : — " The subject of malicious injury to property appertains to criminal law, and has been so dealt with under the Aspects of Legislation. 415 Lastly, in Ex parte Ellis, ^ another example is found Prop. 35 which is in point. There a case arose before the Supreme Court in New Brunswick as to the validity of a provincial Act,- which provided for the imprison- ment of a person making default in payment of a sum due on a iude^ment, in case (amonsfst other Enforcing ... . . . judgments thinsfs) the liability was incurred by obtaining credit by imprison- under false pretences, or b}^ means of any other fraud, cabe> of or b}^ the commission of an act for which he might be proceeded against criminally. It was contended that this was idtra vires, because it indirectly attempted to punish a person for criminal offences, and created a tribunal to adjudicate thereon, and that this was legislating on the criminal law, and Weldon, J., so held ; but the majority of the Court held that the Act was a valid Act, because rightly viewed it was an Act for enforcing the payment of judgments, and in the words of Allen, C.J. : — " Surely the enforcing the payment of a judgment is a civil right, and the mode of enforcing it a part of the administration of justice and procedure in civil matters in the province, all of which are expressly within the jurisdiction of the provincial legislature." Criminal Code. It is, therefore, beyond the power of the local legis- lature to constitute the malicious injury of property either general or as regards a particular class of property an offence, or to declare what shall be the punishment of such an offence." He recommends, how- ever, that the matter be left to the Courts to deal with. And in a report of October loth, 1S94, on the Manitoba Acts of 1S94, Sir John The view of Thompson, as Minister of Justice, takes similar grounds on the same ^''"'.^"^''^ °^ subject. In his report of November 2nd, 1895, on 58 Vict. c. 48, O., J"""^^- being an Act for the Prevention of Fraud in the Sale of Fruit, Sir C. II. Tupper says : — " The main object of this chapter is to constitute offences and establish penalties in respect to fraud in the packing and sale of fruit, and it 'appears to relate rather to the subject of criminal law than to any matter of legislation which has been committed to the provinces." He recommends, however, that the matter be left to the Courts. ii P. &B. 593, 2 Cart. 527, (1878). 2Con. Stat. N.B., c. 38, ss. 30, 32. 4i6 Legislative Power in Canada. PROPOSITION 36. 36. The true nature and character of the legislation in the particular instance under discussion — its grounds and de- sign and the primary matter dealt with — its object and scope, must always be determined in order to ascertain the class of subject to which it really belongs, and any merely incidental effect it may have over other matters does not alter the character of the law. The above Proposition, as has already been stated in the notes to Proposition 35, is laid down Russell r'. b}' the Privy Council in Russell v. The Queen, ^ and the way in which it is there illustrated has been pointed out. It may be added that later on in the same judgment- their lordships held that though the Canada Temperance Act, 1878, which was the Act in question, was to be brought into force in those localities only which adopted it by local option exercised in the prescribed manner, it was neverthe- less not to be considered as relating to matters of a merely local or private nature within the province, within the meaning of No. 16 of section 92 of the 17 App. Gas. at pp. S3S-40, 2 Cart, at pp. 21-3, (18S2), cited by Armour, C.J., in Regina v. Wason, 17 O.R. at p. 61, 4 Cart, at p. 614, {1889), who says: — "We have to ascertain therefore the primary object of the Act in question." See stipra pp. 396-7. -7 App. Cas. at p. S41, 2 Cart, at p. 25. The Queen. The Object and Scope of Acts. 417 British North America Act, and say : — " The objects Prop. 36 and scope of the legislation are still general, namely, to promote temperance by means of a uniform law throughout the Dominion." And the previous decision of the Board in Attorney-General of Quebec v. The Queen Insurance Angers 7,'. Company^ also affords an excellent example of the insurance principle under discussion. There it appeared that the provincial Act of Quebec, 39 \'ict., c. 7, purported to be on the face of it an exercise of the powers con- ferred by No. 9 of section 92, as to " shop, saloon, tavern, auctioneer, and other licenses," and to impose a license on persons carrying on the business of assurance in the province, but as a matter of fact did not compel the supposed licensee to take out or pay for a license, but merely provided that " the price of such license " should consist of an adhesive stamp to be paid in respect to each transaction, not stamp Act 111- 1 1 • I "f der guise by the licensee, but by the person who dealt with of License him. Their lordships held that the Act was virtually a Stamp Act, and not a License Act, and they further held that it was not direct taxation,- and was ultra vires. They say" : — " The result is this, that it is not in substance a License Act at all ; it is nothing more nor less than a simple Stamp Act on the policies, with provisions referring to a license, because, it ^3 App. Cas. 1090, I Cart. 117, (187S), also cited as Angers v. The Queen Insurance Company. ^On this point Crawford v. Duffield, 5 M.R. 121, (188S), may be referred to, where the Manitoba Act, 49 Vict., c. 51, was held tuira vires, which enacted that: — "All duties and fees of office payable in law stamps on any search, filing, pleading ... in virtue of any statute, rule, or order, now or hereafter in force, are hereby declared to be a direct tax and duty imposed upon the party directed to pay or paying the same, in order to the raising of a revenue for provincial purposes, and shall not be in any way taxable or recoverable as costs by the said party from any other party or person whatsoever." And as to direct taxation generally, see, further, the notes to Proposition 66. 33 App. Cas. at p. 1099, i Cart, at p. 128. 27 4i8 Legislative Power in Canada. Prop. 36 must be presumed, the framers of the statute thought it was necessary, in order to cover the kind of tax in question with legal sanction, that it should be made in the shape of the price paid for a license." And in the argument on The Liquor Prohibition Appeal, 1895,^ Lord Watson says : — " We are always inclined to stand on what is the main sub- stance of the Act in determining under which of these provisions it really falls. That must be deter- mined secundwn subjectain materiani, according to the purpose of the statute, as that can be collected from iMust its leading enactments. When a legislature proceeds discover ^ ^ . ^ . real object to cnact that not less than a certam quantity 01 and main substance Hquor shall ever be sold retail, Vv'hat is the obiect of Acts; ^. ... of it ? Is it for the physical benefit of the popula- tion that they are legislating ? Is it because small quantities should not in their opinion be sold to any one who wants a drink ? Or is it because they want to regulate the trade ? " Again, later on," he says : — " There may be a great many objects, one behind the other. The first object may be to prohibit the sale of liquor, and prohibition the only object ac- complished by the Act. The second object probably is to diminish drunkenness ; the third object to improve morality, and good behaviour of the citizens ; the fourth object to diminish crime, and so on. These are all objects. Which is the object of the Act ? I should be inclined to take the view that that which it accomplished, and that which is its main object to accomplish, is the object of the statute ; the others are mere motives to induce the legislature to take means for the attainment of it." ^At p. 184 ; see p. 398, n. i, supra. This case is now reported in [1896] A. C. 348. 2At pp. 317-S. The Object and Scope of Acts. 419 As Graham, E.J., says, in Queen v. Ronan,^ of the Prop. 36 Act there in question : — " The Act may be in effect a Temperance Act, but it is something else."- And so in Clarkson v. The Ontario Bank^ Hagarty, C.J.O., says that what we have to look at in an Act "is its general scope and effect . . . The main purpose of the enactment must be looked to." And Osier, J. A., says* that we must have regard to "the scope, object, and effect " of the provisions of the Act.-' And to refer again to two cases already incidentally The true . . . character noticed m the notes to the last Proposition,*^ Regina and nature V. Wason,'^ and Regina v. Stone, "" Osier, J. A., legislation. observes in the former,'' that the proposition that it is by determining the true character and nature of the legislation in the particular instance that the class of subjects to which it really belongs is to be ascertained " merely states the difficulty which presents itself at the threshold of every case in which ^23 N.S. at p. 450, (1S91). ^Wilson, C.J., says in Regina v. Taylor, 36 U.C.R. at p. 206,. (1875) : — " If objects of legislation are lawful objects, and if they can be properly adopted, they do not become unlawful because they cannot be wholly separated from every other matter, or because they are attended with their inevitable consequences." ^15 O.A.R. at pp. 174-6, 181, 4 Cart, at pp. 508-11, 516. See as to the constitutionality of the Act there in question, Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189. *S.C. 15 O.A.R. at p. 193, 4 Cart, at p. 530. ^As Ramsay, J., observes in Hamilton Powder Company v. Lambe,. M.L.R. I Q.B. at p. 466, (1885) :— " It cannot l)e pretended that a government with the general powers which the local legislatures have, must on every occasion express its authority in so many words." •'See supra at pp. 413-4. ■^17 O.A.R. 221, 4 Cart. 578, (1890). ^23 O.A.R. 46, (1892). ^17 O.A.R. at p. 239, 4 Cart, at p. 597. 420 Legislative Power in Canada. Prop. 36 the question arises " ; and applying the test to the Ontario Act then in question, being 'An Act to pro- vide against frauds in the supplying of milk to cheese and butter manufactories,' he says^ : — " What, then. All apparent is the real character and scope of the Act ? Does it criniinal Act may be opcratc to enlarge the borders of the criminal law, as really only regulation that cxpression is used in section qi, sub-section 27 of a trade. ^ . . -^ ' ' of the British North America Act ; or is it concerned primarily with property and civil rights, providing for its enforcement by fine and imprisonment, as may lawfull}' be done where the principal matter is within the class of subjects comprised in section 92?" And he and all the judges of the Ontario Court of Appeal decided in favour of the latter alternative, and held the Act to be intra vires of the provincial legislature. And so, on the other hand, in Regina v. Stone,- the Ontario Common Pleas Divisional Court held the corresponding Dominion Act, 52 Vict., c. 43, to be likewise intra vires, Rose, stoL'-'id J*' observing (at p. 49) : — " As has been pointed out walon' ^^^ Regina v. Wason, the Act of the legislature differs in form from the Act of Parliament in that under the former the offence consists in doing certain things without notifying in writing the owner or manager of the cheese or butter manufactory. The Act in question forbids all persons doing the acts therein stated, and is in form similar to other Acts found upon the pages of the revised statutes of Canada creating crimes." And he cites as apposite the words of Maclennan, J. A., in Regina v. Wason,'' as to the Dominion Act, that " it is universal in its scope and appHcation, and prohibits the forbidden 117 O.A.R. at pp. 239-40, 4 Cart, at p. 598. •^23 O.K. 46, (1892). 3 17 O.A.R. at p. 248, 4 Cart, at pp. 607-8. I The Object and Scope of Acts. 421 acts by all persons whomsoever under all circum- Prop. 36 stances, and in all places throughout the Dominion, while the provincial Act is confined to the dealings between these two particular kinds of manufacturers and their customers. The one has all the features of a public criminal law passed in the interest of the general public; the other is merely the regulation of the mode of carrying on a particular trade or business within the province, so as to secure fair and honest dealing between the parties concerned."^ Lynch v. The Canada North-West Land Com- pany- also well illustrates the leading Proposition. There the Supreme Court of Canada, over-ruling Expressions _ used in Acts the Manitoba Courts, held (Gwynne, J., dissenting:) ""i^y^^. ■^ . . misleading. that a provincial Act imposing an obligation to pay an additional 10 per cent, on the original amount of municipal taxes, if not paid by a certain date, was only an additional rate or tax imposed as a penalty for non-payment, which the local legislature, under its authority to legislate with respect to municipal institutions, had power to impose, and was not " interest " within the meaning of No. ig of section 91 of the British North America Act, although in "interest" the same Act the legislature more than once called sea. 91, , , ,. . , . ,, , B.N. A. Act. the addition to the taxes interest. At pp. 210-13, Ritchie, C.J., says : — " I care not by what name this 10 per cent, may be called ; it was to all intents and purposes, in the case before us, an additional tax. . . . Had it been specifically named as inter- est I am of opinion that it was an incident to the right of taxation vested in the municipal authority, and, though more than the rate allowed by the Dominion statute in matters of contract, in no way in ^See supra p. 414. 219 S.C.R. 204, (1891). 422 Legislative Power in Canada. Prop. 36 conflict with the authority secured to the Dominion parhament over interest by the British North America Act.^ . . In the present case the legis- lature was not dealing or professing to deal with the question of interest, but was dealing exclusively with taxation under municipal institutions." Pat- terson, J., adds (at p. 226) : — "The imposition may not improperly be regarded as a penalty for enforc- ing the law relating to municipal taxation, and in that character it comes directly under Article 15 of section 92." This may recall the way in which, in the case of Pillow V. The City of Montreal," referred to in the The power notcs to the last Proposition, (at pp. 412-3), the Court depends on r /^ the thing of Queen's Bench in Montreal held that the fact done, not '^ ..... thewords that a term of the crimmal law, viz., "nuisance," was used in a local Act to characterize an offence within the jurisdiction of the local legislature did not make the enactment iiUra vires when the offence was not per se an indictable offence at common law. As Ramsay, J., sa}-s (at p. 413), if a " local law declared it to be 'a common nuisance ' not to clear the snow away from the footpath, the law would not by that be tdtra vires. The power depends on the thing done, not on the words used to set it forth."'' Nevertheless, it may be, in the words of Weatherbe, J., in The Queens, Ronan,* used. lAs to this .see the notes to Proposition 37 ; and as to this case of Lynch v. The Canada North-West Land Co., see s!//»-u pp. 389-90. Also, see p. 398, n. i. 2M.L.R. I Q.B. at p. 401, (1885). ''In 1887 the Minister of Justice reported that he found a Manitoba Act entitled "An Act respecting promissory notes and bills of exchange " to be really an Act respecting evidence, and on that ground recommended that it be left to its operations : Hodgins' Provincial Legislation, \'ol. 2, at p. 196. 423 N.S. at p. 433, (1S91). The Object and Scope of Acts. 423 that: — "We all know how a few seemingly harmless Prop. 36 clauses, even a few phrases, a Ime, or even a word, inserted in a law, may entirely change or disfigure the whole features of the legislation." Again, in Tai Sing v. Maguire^ we find another striking application of the same rule. There Gray, J., was dealing with the British Columbia Chinese Tax Act, 1878, which was entitled ' An Act to provide for the better collection of provincial taxes from Chinese,' and by its preamble professed to prevent the evasion by the Chinese of the payment of taxes, and to enact its provisions as a more simple method for the better collection of provincial taxes from Chinese. Gray, J., however, on an examination of its enacting clauses, held that it was plain that it Act for was not intended to collect a revenue, but to drive Chinese" ° the Chinese from the country, thus interfering at o" ta^xic'^^ once with the authority reserved to the Dominion parliament as to the regulation of trade and com- merce, the rights of aliens, and the treaties of the Empire, and on this ground he held it to be ultra vires. ^ And (at^p. 104) he observes: — "The pre- amble is really no substantial part of an Act. It is simply the professed light by which it is alleged the Act should be read ; but in determining the objects of the Act, we must look, not at the preamble, but really at its enacting clauses." In The Queen v. Ronan,"' Weatherbe, J.,Mustread observes :— "We must read the whole Act. If we"' ''^ find, even in a License Act, provisions which show clearly that the main intention and scope of the Act is to put an end to drunkenness, and if we find that ii B.C. (Irving) loi, (1S7S). "3. at p. 112. See, also, su/>ra pp. 257-9. 323 N.S. at p. 433. 424 Legislative Power in Canada. Prop. 36 such an Act, strictly carried out, would make it in- tolerable for any man to engage in the trade, then our enquiry must be still whether the province has not such a power." And before leaving our present subject it may be well, also, to recall the Act may words of Alien, C.T., in The Queen v. The City of incidentally ' J ' » J touch subjects foreign to its real Fredericton^ : — "If the aid of some of the classes of subjects enumerated in the gist section of the purposes. British North America Act can be invoked, when- ever they may mcidentally touch an Act of the parliament of Canada, although, in fact, foreign to the purposes of such Act, and not necessarily and directly involved in the legislation, there is hardly any subject which could not be reached by the par- liament. In some sense or other, in connection with 'trade,' it might legislate upon what we shall eat, and what we shall drink, and wherewithal we shall be clothed." In conclusion, it must, of course, be remembered that when once it is clear to what class any particu- lar Act belongs, and, therefore, whether it is within Courtsnot the jurisdictiou of Parliament, or within that of the concerned ..,,., , . , . , . , , with motives provmcial legislature, the motive which induced of legislature i i i • i • • if Act j«/ra Parliament, or a local legislature, to exercise its power in passing it cannot affect its validity, as pointed out in Proposition 20-; and in this connec- tion we may refer again to the case already men- tioned in the notes to Proposition 34^ of the Euro- pean and North America R.W. Co. v. Thomas.* I3 P. & B. at p. 1S7, (1879). ^See specially at pp. 277-8. ^See sii/>ra at p. 391. 4i Pugs. 42, 2 Cart. 439, (1871) Powers by Implication. 425 PROPOSITION 37. 37. In assigning to the Dominion Parliament legislative jurisdiction in re- spect to the general subjects of legisla- tion enumerated in section 91 of the British North America Act, the Imperial statute, by necessary implication, intend- ed to confer on it legislative power to interfere with [deal with, and encroach upon] matters otherwise assigned to the Provincial Legislatures under section 92, so far as a general law relating to those subjects so assigned to it may affect them, [as it may also do to the extent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated]. As to the applicability of a similar principle mutatis mutandis to Provincial Legislatures, qucEve.'' The above important Proposition will be found stated and illustrated with reference to bankruptcy and insolvency in the judgment of the Privy Council ^Mr. Clement, in his Law of the Canadian Constitution, at p. 349, remarks : — " It is noteworthy that the Judicial Committee of the Privy Council have never used the phrase ' implied powers,' preferring the other form, ' plenary powers. ' " Vet, as will be seen in the passage in their judgment from which the above Proposition is derived, they use the expression " necessary implication." 426 Legislative Power in Canada. Prop. 37 in Gushing v. Dupuy, ^ excepting as to the two clauses enclosed in square brackets, the former of which, as will be seen, is derived from their lordships' Gushing I. judgment in The Liquor Prohibition Appeal, 1895,- Dupuy. Ill r 1 • • i ■ i and the latter irom their judgment m the case respecting the Ontario Assignment for Creditors' Act.^ In Cushing v. Dupuy it was "very faintly urged," to use the expression in the judgment, that the provisions of the Insolvency Act, 1875, as amended by 40 \'ict., c. 41, D., interfered with property and civil rights, and was iiltra vires ; and it was " strongly contended " that the parliament of Canada could not take away the right to appeal to the Queen from final judgments of the Court of Queen's Bench, as it was alleged to have done by 40 \'ict., c. 41, s. 28, because this, it was said, was part of the procedure in civil matters exclusively Bankruptcy assigncd to the legislature of the province. Their insolvency, lordships say^: — "The answer to these objections is obvious. It would be impossible to advance a step in the construction of a scheme for the adminis- tration of insolvent estates without interfering with and modifying some of the ordinary rights of pro- perty and other civil rights, nor without providing some mode of special procedure for the vesting, realization, and distribution of the estate, and the settlement of the liabilities of the insolvent. Pro- cedure must necessarily form an essential part of any law dealing with insolvenc}-. It is, therefore, to 15 App. Cas. 409, I Cart. 252, (18S0). Johnson, J., had previously held otherwise in Fraser Institute £». More, 19 L.C.J. 133, (1875). ^[1896] A.C. at p. 360. See p. 393, n. I, supra. ^Attorney-General of Ontario v. Attorney-General for the Dominion of Canada, [1894] A.C. at p. 200. See as to this decision an article in 30 C.L.J. 182. *5 App. Cas. at p. 415, i Cart, at p. 258. Powers by Implication. 427 be presumed, indeed it is a necessary implication, Prop. 37 that the Imperial statute, in assigning to the ~ Dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure within the provinces, so far as a general law relating to these subjects might affect them."^ As the Privy Council again say inTennant v. TheTennant^/. . The Union Union Bank of Canada-: —" Section gi expressly Bank, declares that ' notwithstanding anything in this Act,' the exclusive legislative authority of the parlia- ment of Canada shall extend to all matters coming within the enumerated classes, which plainly indi- ^In the argument before the Privy Council in Russell v. The ■Queen, on May 2nd, 1882, Sir R. Collier observes : — " If you take the widest possible meaning of ' property and civil rights in the /' province,' it would give the province the right of legislation with Property regard to everything, and would take from the Dominion parliament and civil the power of legislating about anything. You must take it with cer- ""'S^'.^ '" '°® tain restrictions": (see the transcript from Marten & Meredith's shorthand notes in the possession of the Department of Justice at ■Ottawa, first day, at p. 37). And in the argument before their lord- ships in the matter of the Dominion License Acts 1883-4, in Novem- ber, 1885, Sir Farrer Ilerschell arguendo puts the matter thus : — " The truth is hardly anything could be done by the Dominion parlia- ment which would not affect a man's civil right, which is to do every- thing which the legislature has not said he may not do. You could not have any legislation without its affecting matters in a locality, l)ecause the person who offends, or is prevented from doing the thing, is in some locality or other. Therefore, it is clear, the exclusive power with regard to property and civil rights, and with regard to matters of a local character, must have very considerable limitations." Upon which Sir Montague Smith, one of the Board, observed: — " The fact that a legislation may be under one section or the other is one of the great difficulties in the construction of this," (sc., the British North America), "Act." For judicial dicta in harmony with the above words of the Privy Council in Gushing z'. Dupuy, in addition to those presently to be referred to, see per Harrison, C.J., in Ulrich v. The National Insurance Company, 42 U.C.R. at pp. 156-7, (1S77) ; per Spragge, ■C.J.O., in Peek v. Shields, 6 O.A.R. at p. 647, 3 Cart, at p. 275, (1880), as to which case see iu/ra p. 439 ; per Osier, J. A., in Clarkson zi The Ontario Bank, 15 O.A.R. at p. 190, 4 Cart, at p. 527, (1888) ; per Patterson, J. A., in Edgar v. The Central Bank, 15 O.A.R. at p. 207, 4 Cart." at p. 547, (1888) : per Strong, J., in Quirt v. The ■Queen, iq S.C.R. at p. 517, (1891). ^[1894] A.C. at p. 45. 428 Legislative Power in Canada. Prop. 37 cates that the legislation of that Parliament, so long" as it strictly relates to those matters, is to be of paramount authority. To refuse effect to the Thenon declaration would render nugatory some of the legis- clause of lativc powcrs specially assigned to the Canadian B.N.A. Act. parliament. For example, among the enumerated classes of subjects in section gi are ' Patents of Invention and Discovery ' and ' Copyrights.' It would be practically impossible for the Dominion parliament to legislate upon either of these subjects without affecting the property and civil rights of individuals in the provinces."^ And, consonantly thereto, they held in that case that inasmuch as warehouse receipts taken by a bank in the course of the business of banking were matters coming within the class of subjects described in section gi Banking, as ' banking, incorporation of banks, and the issue "warehouse of paper mouey,'" the provisions of the Dominion Banking Acts relating to such warehouse receipts were intra vires, though with the effect of modifying civil rights in the province, and conflicting with ^And so Gwynne, J,, in City of Fredericton v. The Queen, 3. S.C.R. at p. 566, 2 Cart, at p. 5S, (18S0), says : — ''The previous part of section 91, in the most precise and imperative terms, declares that ' notwithstanding anything in this Act,' — notwithstanding, therefore^ anything whether of a local or private nature or of any other character, if there be anything of any other character, enumerated in section 92, the exclusive legislative authority of the parliament of Canada extends to all matters coming within the class of subjects enumerated in section 91." See, also, S7tpra p. 30S, n. 1, which, however, was written and printed before the delivery of the recent judgment of the Privy Council in The Licjuor Prohibition Appeal, 1895, [1896] A.C. 348, presently to be referred to. See supra p. 393, n. i. And as to the non obstante clause in section 91, see per Wilson. C.J., in Re Niagara Election Case, 29 C.P. at p. 296, (1S7S), who, at p. 295, seems some- what to misstate the view expressed by Johnson, J., in Ryan -■. Devlin, 20 L.C.J. 77, (1S75); see the latter case at p. 83 ; and see also Pro- position 33 and the notes thereto. 2" Paper money" they held necessarily means the creation of a species of personal property carrying with it rights and privileges which the law of the province did not and could not attach to it, and "banking" they held is an expression wide enough to include every- thing coming within the legitimate business of a banker. receipts. Powers by Implication. 429 statutory regulations in Ontario, under provincial prop. 37 Acts, with respect to the form and legal effect in that province of warehouse receipts and other nego- tiable documents which passed the property of goods without delivery. Again, in the case of the Ontario Assignment for Creditors Act, Attorney-General of Ontario v. Attorney-General of Canada,^ the Board gave utter- ance obiter to important dicta in reference to the The , . . 1 • 1 , .1 Assignment subject under discussion, which seem to carry the for creditors matter somewhat further than their two judgments already mentioned. After stating that a system of bankruptcy legislation may frequently require various ancillary provisions for the purpose of preventing the scheme of the Act from being defeated,- it may be necessary, they say, for this purpose, to deal with the effect of executions, and other matters which would otherwise be within the legislative compe- tence of the provincial legislatures ; again, provision might be made for a voluntary assignment as an Provisions , . 1 1 1 J 1 • ancillary to alternative to compulsory bankruptcy proceedings, bankruptcy . . ^ ... ^ . . legislation. designed to secure that m the case or an insolvent person his assets shall be rateably distributed amongst his creditors, though an assignment for the general benefit of creditors is no essential part of a bankruptcy law, but has its force and effect at common law quite independently of any system of bankruptcy or insolvency, or any legislation relating thereto. And they add : — " Their lordships do not doubt that it would be open to the Dominion par- liament to deal with such matters as part of a i[i894] A.C. 189. ^See Proposition 27 and the notes thereto. The grant of general legislative power carries with it the power to enact minor provisions incidental to the principal purpose of the Act : see per Osier, J. A., in Regina v. County of Wellington, 17 O.A.R. at p. 444, (1S90). 430 Legislative Power in Canada. Prop. 37 bankruptcy law, and the provincial legislature would doubtless be then precluded from interfering with the legislation, inasmuch as such interference would affect a bankruptcy law of the Dominion parlia- ment ";^ and, as will presently be seen, there have been decisions in our own Courts illustrating the principle thus laid down. Bankruptcy As Pattcrsou, J. A., says in Edgar v. The Central insolvency. Bauk":^ — "A bankrupt or insolvent Act will, of neces- sity, include many such interferences," (sc, with property and civil rights), " and may with propriety make provisions of the kind," (sc, imposing restric- tions upon the disposition of his property by a person who is insolvent), " for the better carrying out of the systems which may yet not be of the essence of a bankrupt or insolvent law." Liquor And iu their recent judgment in the matter of The Prohibition _. ..... lo ji-i ii- Appeai,iS95. Liquor Prohibition Appeal, 1095,-^ their lordships say that the parliament of Canada has power " to deal with " local or private matters referred to in the sixteen classes enumerated in section 92, "in those cases where such legislation is necessarily incidental to the exercise of the powers conferred upon it by the enumerative heads of clause gi."* ^See as to this Proposition 46 and the notes thereto ; also Proposi- tions 17 and 62. 215 O.A.R. at p. 207. ^[1896] A.C. 348. See p. 393, n. i, su/ra. ^Somewhat strangely, the Privy Council base this here upon the concluding clause of section 91 of the British North America Act, which enacts that " any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclu- sively to the legislatures of the provinces." They refer to their prior decisions in Citizens Insurance Co. v. Parsons, 7 App. Cas. at pp. io8-9, I Cart, at pp. 272-3, Cushing v. Dupuy, 5 App. Cas. at p. 415, I Cart, at p. 258, Tennant v. The Union Bank of Canada, [1894] Powers by Implication. 431 The above passages from the judgments in the Prop. 37 cases just referred to of Tennant v. The Union Bank,^ and the Attorney-General of Ontario v. The Attorney-General of Canada," seem to point to a distinction indicated in the leading Proposition, between cases where the exclusive right of the Dominion T>i • • 1 • 1 • 1 ^ 11 power over Dommion parliament to legislate on what would provincial otherwise fall within the classes of provincial sub- jects enumerated in section 92 is involved ex vi termini in one of the enumerated classes of subjects assigned to Parliament in section 91, being neces- sarily included in any complete definition of the latter subjects, and cases where a portion of what actually is the provincial area of legislative power, — as being included in one or other of the classes in section 92 even when defined in such a way as to exclude matters strictly within the enumerated classes in section gi, — may nevertheless be legiti- mately invaded by the Dominion parliament so far as required to complete by ancillary provisions the A.C. at p. 46, and Attorney-General of Ontario v. Attorney-General of the Dominion, [1S94] A.C. at p. 200, as cases in which the same view of the powers of the Dominion parliament was stated and illus- trated. Now, in the first of these cases they refer, it is true, to the concluding clause of section 91, as "this endeavour to give pre- eminence to the Dominion parliament in cases of a conflict of powers"; but, as we have seen, in Tennant v. The Union Bank of Canada they base the Dominion jurisdiction referred to upon the prior words in section 91, "notwithstanding anything in this Act," nor do they in that or in the cases of Gushing v. Dupuy, or Attorney-General of Canada v. Attorney-General of the Dominion, refer to the concluding clause in section 91. With great submission, as held by Strong, J., in Quirt v. The Queen, 19 S.C.R. at p. 516, and urged in the notes to Proposition 59, infra, the primary significance of the concluding clause in section 91 is that provincial legislatures cannot legislate for their own provinces on any of the matters enumerated in section 91 under the pretence or the contention that the legislation is of a provincial or local character. See, however, per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at pp. 212-13, (1S95) '■> P^r Ritchie, C.J., irr City of Fredericton v. The Queen, 3 S.C.R. at p. 540, 2 Cart, at pp. 38-9, (1880). i[i894] A.C. 31. ^[1894] A.C. 189. powers. 432 Legislative Power in Canada. Prop, 37 effectual exercise of the powers given to it by the enumerated subjects in section gi. Thus there is no doubt a sense in which it may be said (subject to what is hereafter stated as to the appHcation of our leading Proposition mutatis imitandis to the provincial legislatures), in the words of Taschereau, J., in Valin v. Langlois^: — "The authority of the Federal power, it seems to me, The absolute over the matters left under its control, is exclusive, Federal full, and absolute, while as regards at least some of the matters left to the provincial legislatures by section 92 the authority of these legislatures cannot be construed to be as full and exclusive, when by such construction the Federal power over matters especially left under its control would be lessened, restrained, or impaired."- And there is also a sense in which it may be said in the words of Gwynne, J., in Citizens Insurance Company v. I3 S.C.R. at p. 77, I Cart, at p. 209, (1S79). ^However, it is laid down in Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart, at p. 22, (1SS7), that where a power falls within the legitimate meaning of any class of subjects reserved to the local legislatures by section 92 of the British North America Act the control of these bodies is as exclusive, full, and absolute as is that of the Dominion parliament over matters within its jurisdiction. See Proposition 61 and the notes thereto. At all events, putting aside any question of power to encroach upon what may be called foreign terri- tory by way of provisions ancillary to legislation within the proper territory of Parliament or the provincial legislatures, the matter would seem to be one entirely of construction of the Act, that is, of properly defining the various classes of subjects enumerated in sections 91 and 92, the general language used in section 91 having to be modified by reason of the language used in section 92 in some cases, as much as the general expressions used in section 92 by reason of the language used in section 91. See Propositions 39, 40, 41, and, also. Proposition 46 and the notes thereto. As Dunkin, J., says in Cooey v. The Munici- pality of the County of Brome, 21 L.C.J, at p. 185, 2 Cart, at p. 387 : — "There is a possible sense of words, under which the exclu- sive power to legislate as to ' property and civil rights in the province ' might involve the power to legislate at least in some measure for 'regulation of trade and commerce' therein. But a sense must be sought on the one hand for the words ' trade and commerce,' and on the other for the words 'property and civil rights,' which shall not involve this consequence." Powers by Implication. 433 Parsons/ that: — "What is vested in the local Prop. 37 legislatures by item 13 of section 92 is only juris- diction over so much of property and civil rights as may remain after deducting so much of jurisdiction Propenyand r civil rights in over those subjects as may be deemed necessary tor the Province, securing to the Parliament exclusive control over every one of the subjects enumerated in section gi — the residuum, in fact, not so absorbed by the juris- diction conferred on the Parliament." Perhaps, however, it will correctly express the result of the decisions, as we have them now, to sa}', (i) that the provincial legislatures have general juris- diction, and they alone have general jurisdiction, over property and civil rights in the province ; but that this is not to be understood, on the one hand, as mean- ing that they can legislate upon any of the subjects assigned exclusively to the parliament of Canada by summary of section gi ; nor is it to be understood, on the other hand, as meaning that the parliament of Canada cannot incidentally affect property and civil rights by its legislation, so far as such power is implied in its power to legislate upon the subjects exclusively assigned to it by section 91, or so far as is required as ancillary to the power to legislate effectually and completely on such subjects-; and (2) that as, on the one hand, the operation of Acts of the provin- cial legislatures respecting property and civil rights in the province, or other provincial subjects, may be interfered with by reason of the operation of Acts of the Dominion parliament, so, also, Domin- ion Acts may be interfered with by reason of the operation of Acts of the provincial legislature,^ I4 S.C.R. at p. 330, I Cart, at p. 336, (1880). Cf. Attorney-Gen- eral of Ontario ii. Mercer, S App.Cas. at p. 776, 3 Cart, at p. 12,(1883). ^See the remarks of Lord Watson quoted supra pp. 357-S. ^See Proposition 61 and the notes thereto. 28 434 Legislative Power in Canada. Prop. 37 though Dominion legislation, whether on one of the enumerated classes in section gi, or by way of pro- visions properly ancillary to legislation on one of the said enumerated classes, will override and place in abeyance provincial legislation which directly conflicts with it.^ And so Fisher, J., in Steadman v. Robertson, - says : — "In conferring upon the local legislatures the power to legislate upon property and civil rights, Propertyand I am of opluiou it was the intention that this power civil rights in i i i i i i i i • i theProvince. should Only bc trcuched upon to the extent required to enable Parliament to exercise the authority to legislate upon the different subjects assigned to it, and the Parliament, in legislating upon the subjects within its competency, can only so far interfere with property and civil rights as is necessary to work out the legislation upon the particular subjects delegated to it."'^ And Fournier, J., in Valin v. Langlois,* refers to the subject thus :— " To the legislatures alone belongs, without doubt, the right of regulating civil rights in the province, as well as the organiza- tion of Courts of justice for the province, and the Federal parliament would certainly exceed its power if it were to legislate on these matters for the prov- ^See Proposition 46 and the notes thereto. 22 P. & B. at pp. 595-6, (1879). ^See as to this limitation ift/ra p. 448, e( seq. So, also, in the United States, the federal power has exercised its jurisdiction over civil rights and contracts. It having been settled, for instance, by judicial construction, that navigation was under federal control, Con- gress has enacted laws regulating the form and nature of the contract of hiring the ships' crews. It has altered the obligations imposed by the common law on the contracts made by shipowners as common carriers, and, though the validity of this enactment has never been directly decided upon by the Supreme Court, it has been brought before that tribunal in such a way that their silence was equivalent to a positive and formal judgment in favour of its validity, as demonstrated in Pomeroy's Constitutional Law, 8th ed., section 381 : per Taschereau, in Citizens Insurance Co. v. Parson, 4 S.C. R. at p. 308, i Cart, at p. 327- *3 S.C.R. at p. 53, I Cart, at pp. 191-2, (1879). Powers by Implication. 435 ince. But does it necessarily follow that the latter Prop. 37 has no jurisdiction over civil rights which concern only the Dominion in general, as well as over the organization and maintenance of Courts, in so far as the Dominion is interested ? Do these two paragraphs," (sc, Nos. 13 and 14 of section 92), "contain an absolute exclusion of all jurisdiction in Property and the Dommion parliament ? I do not thmk so. It the Province, seems to me, on the contrary, that these very terms are opposed to an interpretation so restricted. In fact, the words ' in the province,' following the enumeration of the powers given over civil rights, and the organization of Courts, effectually confine the exercise of these powers to the limits of the province, but do not go so far as to exclude the exercise by the Federal parliament of a similar juris- diction over the different classes of civil rights which are confided to it. Nothing is clearer or more certain than that the legislatures have not complete jurisdiction over civil rights." It will be observed that our leading Proposition has reference only to the enumerated subjects of legislation in section gi, but it would be impossible The genera) r T-i T 1-1 1 • 1 residuary tor rarliament to legislate even under its general power of ° '^ Parliament- residuary power ' to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by the British North America Act assigned exclu- sively to the legislatures of the provinces,' if it was restricted from incidentally affecting property and civil rights in the different provinces and other matters assigned to the latter. ^ And so in Russell V. The Queen,- the Privy Council held that the ^See at p. 316, n. i, supra. *7 App. Cas. 829, 2 Cart. 12, (18S2). 43^ Legislative Power in Canada. Prop. 37 Canada Temperance Act, 187S, was within the competency of the Dominion parliament to pass, its primary object and design being to preserve public order and safet}', although its provisions Mavinci- might incidentally affect and interfere with property affect ^ and civil rights, and although its effect might be subjects!' practically to deprive local legislatures of the power to raise a revenue from licenses, which they would otherwise have.^ Their lordships point out that although such legislation may interfere with the sale or use of an article included in a license granted under sub-section g of section 92 of the British Russell r;. North Amcrica Act, it " is not in itself legislation The Queen. .... , . . , , ? , upon or within the subject 01 that sub-section, and consequently is not by reason of it taken out of the general power of the parliament of the Dominion." - And, as we have seen, they deduce the proposition that " the true nature and character of the legisla- tion in the particular instance under discussion must always be determined in order to ascertain the class of subject to which it really belongs."^ 1 Thus in some degree the powers of provincial legislatures must depend upon the action of the Dominion parliament, notwithstanding the dicliim of Henry, J., in City of F~redericton v. The Queen, 3 S.C.R. at pp. 555-6, 2 Cart, at p. 50, (iSSo), that it should not be so, and that we must so define the power given severally to parliament ~ and local legislatures " that neither will have to depend on the for- bearance of the other." See, also. Propositions 46, 48, and 61, and the notes thereto. 27 App. Cas. at p. 83S, 2 Cart, at p. 21. ^See supra pp.396-7, and Proposition 36 and the notes thereto. And in the same way it would seem that provincial legislatures may by their Acts incidentally touch Dominion subjects without thereby in any proper sense of the word legislating upon them. Thus in the case of In re De Veber, 21 N.B. at p. 425, 2 Cart, at p. 556, (1882), Palmer, J., held (with the concurrence of the majority of the New Brunswick Supreme Court) that an Act of the New Brunswick legisla- ture providing that, as against the assignee of the grantor under any law relating to insolvency, a bill of sale shall only take effect from the time of the filing thereof was intra vires. And the judgment of the County Court judge, whose decision the Supreme Court of the province affirmed in that case, as reported at 21 N.B. at pp. 398-9, Powers by Implication. 437 And in their recent judgment on The Liquor Prop. 37 Prohibition xAppeal, 1895,^ the Judicial Committee " deal with the subject of the distinction between the scope of the Dominion parliament when legislating on the enumerated subjects and when legislating Liquor , •■ 1-1 \ 1 Prohibition under its general residuary power. As we have Appeal, 1895. already seen, they state that it is free to deal with matters assigned to the provinces " in those cases where such legislation is necessarily incidental to the exercise- of the powers conferred upon it by the enumerative heads of clause 91 "; but they say "to those matters which are not specified among the enumerated subjects of legislation, the exception from section 92 which is enacted by the concluding p^^n^^g^^ words of section 91- has no application; and inpr^^ln^iai legislating with regard to such matters the Domin-^''^^" ion parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by section 92 " ; and they proceed to explain their meaning to be that such legislation by Parliament as is last referred to " ought to be strictly confined to such matters as are unquestionably of Canadian interest and impor- seems to afford so clear an argument as to be worth quoting. lie says : — " The Act in question does not profess to deal with the disposal or distribution of an insolvent's property ; it is simply an Act for the protection of creditors, and to prevent frauds from being committed upon them. . . The local law of the province has power to deal with property and civil rights, and in so doing may prescribe the modes and conditions under which title to property may be acquired and held. This cannot lie said to be legislating upon insolvency." But Weldon, J., it may be said, dissented, and held the Act ultra vires. See, also, the judgment of the Privy Council in the case of Attorney - General of Ontario v. Attorney - General of Canada, [1894] ^-C. 1S9, respecting the Ontario Assignnients for Creditors Act, referred to supra p. 429. And as to the power of provincial legislatures to touch Dominion subjects, see i)ifra in the latter portion ot the notes to this Proposition. ^[1896] A.C. 34S, see p. 393, n. i, supra. ^See p. 430, n. 4, supra. 438 Legislative Power in Canada. Prop. 37 tance, and ought not to trench upon provincial legislation with respect to any of the classes of sub- jects enumerated in section 92^; " and ought not to be passed " in relation to matters which in each Parliament provincc are substantially of local or private interest, provinciaj upon thc assumptioii that these matters also con- cern the peace, order, and good government of the Dominion."- Parliament, they say, does not derive jurisdiction from the introductory provisions of section gi " to deal with any matter which is in substance local or provincial, and does not truly affect the interest of the Dominion as a whole."" Returning to our leading Proposition, many illustrations of it are to be found in the cases in connection with the subject of bankruptcy Bankruptcy ^^^^ insolvcncy. Thus in Kinney v. Dudman,'^ in vency.^"' entire conformity with the dicta of the Privy Council in the case respecting the Ontario Assignments for Creditors Act, quoted supra at pp. 429-30, the Supreme Court of Nova Scotia held that section 59 of the Dominion Insolvent Act of 1869, 32-33 Vict., c. 16, was within the competence of the Dominion par- liament, though it provided that no lien or privilege upon the property of an insolvent should be created for a judgment debt by the issue or delivery to the sheriff of an execution, or by levying upon or seizing thereunder the effects or estate of an insolvent, if before the payment over to the plaintiff of the moneys levied the estate of the debtor had been ^[1896] A.C. at p. 360. By " provincial legislation" their lordships evidently mean "provincial powers of legislation." 2[i896] A.C. at p. 361. 3[iS96] A.C. at p. 361. Dtes thereto. *2 R. & C. 19, 2 Cart. 412, (1S76). ^[1896] A.C. at p. 361. See, also, Propositions 32 and 33 and the notes thereto. _ s- ation. Ancillary Powers. 439 assigned or placed in liquidation, thus overriding Prop. 37 existing provincial legislation, giving to a creditor ' a lien on his debtor's property by the levy of his execution on it.^ And, again, the Dominion parliament, by the Insolvent Act of 1875, 38 Vict., c. 16, s. 136, having enacted in substance that any person who purchased goods on credit, knowing or believing himself to be Bankruptcy unable to meet his engagements, and concealing the vency legi fact from the person thereby becoming his creditor, with the intent to defraud such person, and who should not afterwards have paid a debt so incurred, should be guilty of a fraud, and should be liable to imprisonment for such time as the Court might order, not exceeding two years, unless the debt and costs be sooner paid, it was held in Peek t). Shields, - that, although properly regarded, this was not an addition to our criminal law, but a matter of pro- cedure or a mode of enforcing payment of the debt referred to, yet it was intra vires of the Dominion ^And the same Privy Council du-(a may be considered as resolving in favour of the Dominion parliament the doubt expressed by Ritchie, C.J., in McLeod v. McGuirk, 2 Pugs. 24S, (1874), as to whether section 81 of the Insolvent Act of 1869, 32-33 Vict., c. 16, D., restrict- ing a landlord's preferential lien for rent to one year was not i(//ra vires ; and to have shown to be erroneous the view of Wetmore, J., in that case (p. 259) that if the Act had attempted to take away the landlord's right of distress it would have been Jtltra vires. So, also, as to the decision of Wetmore, J., in McLeod v. Wright, i P. & B. 68, (1877), that section 89 of the Insolvent Act of 1869, which declared all sales, transfers, etc., by any person in contemplation of insolvency by way of security to any creditor whereby the latter obtains an unjust preference null and void, was ultra vires so far as operating upon property law- fully acquired by persons not insolvent, as being legislation upon prop- erty and civil rights. At pp. 149-50, he asks, where is the necessity to the carrying out of bankruptcy and insolvency legislation of " legis- lating away a solvent man's property honestly acquired, for the benefit of creditors who have, unfortunately, been dealing with a person who proves unable to pay his debts ?" -31 C.P. 112, 6 O.A.R. 639, 8 S.C.R. 579, 3 Cart. 266, (1S80-3). 440 Legislative Power in Canada. Prop. 37 parliament, because, as Osier, J., expressed it^: — " To legislate generally and effectually on the sub- ject of bankruptcy and insolvency it is absolutely Bankruptcy nccessary that any well considered bankruptcy law, vrncy"1egis- whilc providing for the distribution of the estate among the creditors, and for the relief of the honest debtor, should contain provisions calculated to deter dishonest or reckless trading and fraudulent bank- ruptcies." Burton, J. A., on the other hand,- con- sidered that the enactment, though he agreed it was a mere matter of procedure, did not come within the general scope and scheme of a bankruptcy Act, and was ultra vires. And in the Supreme Court, Ritchie, C.J.," holding the Act intra vires, and reiterating his language in Valin v. Langlois,* said: Procedure " — " The right to direct the procedure in civil mat- courts. ters in the provincial Courts has reference to the procedure in matters over which the provincial legis- lature has power to give them jurisdiction, and does not in any way interfere with or restrict the right or power of the Dominion parliament to direct the mode of procedure to be adopted in cases in which the Dominion parliament has jurisdiction, and where it has exclusive authority to deal with the subject-matter as it has with the subject of bank- ruptcy and insolvency."' 131 C.P. at p. 124. See, also, per Gait. J., S.C, 31 C.P. at p. 125 ; per Spragge, C.J.O., S.C, 6 O.A.R. at p. 647, 3 Cart, at p. 275- 26 O.A.R. at p. 648, 3 Cart, at p. 276. 38 S.C.R. at p. 591. ■*3 S.C.R. at p. 15, I Cart, at p. 172. ^This language is also cited with approval by Osier, J. A., S.C, 31 C.P. at p. 122, and by Burton, J. A., S.C, 6 O.A.R. at p. 651, 3 Cart, at p, 280. And so per Gray, J., in the Thrasher Case, I B.C. (Irving) at p. 226, (1882), who remarks that otherwise the whole Dominion legislation, so far as it has to be carried out in the province, "1 Ancillary Powers. 441 In like manner, under the principle of our leading Prop. 37 Proposition, it was held, in Crombie v. Jackson,^ that section 50 of the Insolvent Act of i86g, 32-33 Vict., c. 16, D., which provided that claims by and Bankruptcy , . , , ,. , and insol- agamst assignees m insolvency might be disposed 01 vency legis- lation. by the judge of the County Court, or by the County Court on petition, and not by any suit, attachment, opposition, seizure, or other proceedings whatever, was not beyond the power of the Dominion parlia- ment, Wilson, J., in the course of his judgment,- stating that, as an abstract proposition, it may be affirmed that if the Dominion legislature were to procedure enact that some of the exclusive matters vested in couns. Parliament, — for instance, bills of exchange and promissory notes, — should be litigated only in a particular local Court, say the Division Court, and not in any other Court whatever, such an enactment would be unconstitutional, because it would be an encroachment on the exclusive powers of the pro- might be rendered nugatory. See, also, per Henry, J., in Valin z>. Langlois, 3 S.C. R. at p. 64, i Cart, at p. 200. And cf. per Caron, J., in Dubuc v. Vallee, 5 Q. L.R. at p. 42, (1879). What is above stated as to ' property and civil rights in the province ' would seem to apply here, nnitatis mutandis, that is, that though the provinces alone have general jurisdiction over the administration of justice j^j ^ (■ in the province by virtue of No. 14 of section 92, the Dominion sect. 92 of parliament may deal with the matter, so far as is necessary to the B.N. .A.. Act. complete and effectual exercise of one of its own enumerated powers ; but, of course, in the absence of such Dominion legislation, the power to legislate remains in the province. And so the administration of justice in the province is only, strictly speaking, exclusively in the provincial jurisdiction in resjiect to the matters assignetl to the legisla- tures by section 92. In the Thrasher Case above referred to, I B.C. (Irving) at p. 208, Crease, J., says : — "In the great majority of Dominion Acts there are provisions not only vesting jurisdiction in the Courts of the province, but also regulating in many instances and particulars the procedure in such matters in those Courts, e.i^., customs, inland revenue, public works, banks and banking, trade marks, fisheries, public lands, inspection of staples, aliens and naturalization, patents, insolvency, and a host of others." I34U.C.R. 575, I Cart. 685,(1874). 234 U.C.R. at pp. 579-80, I Cart, at p. 686. 442 Legislative Power in Canada. Prop. 37 vincial legislatures, under No, 14, section 92, of the British North America Act, to make laws respecting the administration of justice in the province, etc. And, in Pineo v. Gavaza,^ Thompson, J., referring to the view thus expressed by Wilson, J., in Crom- bie ■". Jackson, says : — " The Dominion parliament prr bably had no power to enact that every one who Dominion has a causc of action against a certain class of per- powers over ^ , , . ., , , , ,, civil pro- sons must resort to a certam tribunal, and that all other Courts must be closed against him." And he held that the corresponding section in the Insolvent Act of 1875, 38 Vict., c. 16, D., s. 125, had no such general application ; that for the performance of those duties which arise from the Insolvent Act, and for the enforcement of those rights which are created by that Act, the remedy was that pointed out in the section ; but that where an assignee in insolvency had taken possession of goods mort- gaged, shortly before the insolvency, to the plaintiff, the latter might bring replevin for them in the County Court, and was not driven to his remedy under the section.- 16 R. & G. (18 N.S.) at p. 489, (1885). See this case commented on 22 C. L.J., N.S., at pp. 70-2. ^It is quite in consonance with the above decisions and Jicfa that in McDonald v. McGuish, 5 R. & G. i, (1S83), followed in The Queen V. Wolfe, 7 R. & G. 24, (1886), it was held that there was no appeal to the Supreme Court of the province from a judgment of the County Court quashing a conviction by a magistrate under the Canada Tem- perance Act, as none was expressly given by the latter Act, although the provincial Acts creating and organizing the County Courts gave a general appeal to the Supreme Court of the province. It would indeed be it/ira vires of a provincial legislature to confer a right of appeal from a judgment on certiorari c[\xdLsh\n^ a conviction under the Canada Temperance Act: per Osier, J.A. , in Reginaz». Eli, 13O.A. R. at p. 533, (1886), cited per Moss, C.J. A., in In re Boucher, 4 O.A.R. 191, as to rights of appeal in habeas corpus, who says that to extend the provisions of the provincial Act under discussion as argued "would be to alter criminal procedure over which the provincial legislature has no jurisdiction." Cf. Regina v. Lake, 43 U.C.R. 515, 2 Cart. 616 ; Regina v. Toland, 22 O.R. 505. Powers by Implication. 443 So, again, in In re Bell Telephone Co.,^ Osier, Prop. 37 J. A., decided upon the leading principle which we are now considering, that section 28 of the Patent Act of 1872, 35 Vict., c. 26, D., which, after specify- ing certain cases in which patents are to be null and void, provided that in case dispute should arise under that section such disputes should be settled by the Minister of Agriculture or his deputy, whose Dominion 1 • • 1 1 1 1 /- 1 1^ 1L ■ li C ,) powers over decision should be final, was not nitra vires, tor, dviipro- he observes, "though property and a civil right, it," (sc, the patent), " is yet one of parliamentary crea- tion, and I see no reason why the same power which gives it birth and limits the term of its exist- ence should not also, as a matter of policy and for the purpose of effectual legislation on the subject, also provide a special mode of enquiring into and deciding upon the question whether the conditions upon which it was granted, to which it is expressed to be subject, and on which its existence depends, have been complied with." And he declares that on principle he cannot distinguish this legislation from a number of cases in which by Dominion Acts judicial powers are conferred in some cases on individual judges, in others on provincial Courts, to administer relief arising under Dominion Acts; such ■cases as are referred to by Ritchie, C.J., in Valin v. JLanglois.- ^7 O.R. 'jos, at p. 612, 4 Cart. 6iS, at p. 626, (1884). See per Henry, J., in Smith v. Goldie, 9 S.C.R. at pp. 6S-9, (1882). ^3 S.C.R. at pp. 23-4, I Cart, at p. 178, et seq., (1879). Perhaps, however, the ratio decidendi of the above decision, as expressed in the passage quoted from the judgment of Osier, J. A., may seem to be Dominion not so much the jirinciple of our leading Proposition, as that illus- power to trated and acted upon in the cases of Aitcheson v. Mann, 9 P. R. ^?'?ch con- 253, 473. (1882-3), Wilson v. Codyre, 26 N.B. 516, (1886), and °i'^'h°"V„° . Flick -'. Brisbin, 26 O.R. 423, (1895), namely, that in conferring ferred. some benefit or creating some right the Dominion parliament may impose as a condition upon those who avail themselves of that benefit or that right something which it would be ultra vires for it to enact 444 Legislative Power in Canada. Prop. 37 So, in Doyle v. Bell,^ it was held that the juris- diction of the provincial legislatures over property and civil rights does not preclude the parliament of Canada from giving to an informer the right to Dominion recovcr by a civil action a penalty imposed as a powers over ^ . , ^ • t\ civil rights, punishment tor bribery at an election, Patterson, J. A., observing- that the provision is a recognized, though not an absolutely necessary, incident of the authority to deal with the subject of elections, and referring to the decisions of the Privy Council on the British North America Act as enforcing the duty of reading that Act, and particularly sections gi and Q2, " as embodying a scheme of general legis- lation, and not to be construed in the narrow sense, or without reading one part of the Act or the section with another."^ Again, in Ward v. Reed,* it was held by the Supreme Court of New Brunswick that the provision 0^32-33 Vict., c. 31, s. 78, D., that penalties against justices of the peace for the non-return of convic- otherwise. The first of those three cases held intra vires, on the above principle, section 24 of the Patent Act of 1872, 35 Vict., c. 26, D., which required holders of patents under that Act, in the event of their rights being invaded, to litigate the matter in that Court of which the place of holding should be closest to the place of residence or of business of the defendant. See per Boyd, C, at p. 254. And the other two held intra vires those enactments now included in sections 865 and 866 of the Criminal Code, (1S92), which gives one who is assaulted the option to proceed by complaint in a summary way before a magistrate, but provides that if he elects to take his remedy by this method, and if the defendant obtains a certificate of the justice that the charge against him is dismissed, or that he has paid the penalty or suffered the imprisonment awarded, the plaintiff loses his right of action in respect of the same assault in order to recover damages as a civil wrong. See per Allen, C.J., in Wilson v. Codyre, 26 N.B. at p. 520. 132C.P. 632, II O.A.K. 326, 3 Cart. 297, (1884). -II O.A.R. at p. 331, 3 Cart, at p. 304. •''See Propositions 3, 39, and the notes thereto. *22 N.B. 279, 3 Can. 405, (18S2). Powers by Implication. 445 tions, etc., might be recovered by an action of debt Prop. 37 by any person suing for the same in any Court of Record in the province in which such return ought to have been made, was intra vires of the Dominion Dominion J . 1 powers over parhament, because it is a matter connected withdviipro- the administration of the criminal law which be- longs exclusively to the Dominion parliament, which has the right, in legislating upon a matter within its control, to give authority to the existing Courts in the province to try such matters."^ And it is in accordance with the leading principle under discussion that in Credit Valley R.W. Co. v. Great Western R.W. Co.,- Proudfoot, V.C., declares that in his view there can be no question that the Dominion Act, 40 Vict., c. 45, extending the pro- visions of the Consolidated Statutes of Canada, Dominion r r i i 1 • c •^ laws as • ~ c. 06, s. 130, as to the crossing powers 01 railways railway to railways incorporated under provincial Acts, in any case in which it was proposed that they should cross a railway under the legislative control of Canada, was quite within the competence of the Dominion parliament, as necessary to and essential for the protection of the Dominion railways within their control. And so Killam, J., held the same thing as to a similar provision in the general Rail- way Act of the Dominion, 51 Vict., c. 29, in Cana- dian Pacific R.W. Co. v. Northern Pacific, etc., R.W. Co.-'^ And in Re Canadian Pacific R.W. Co. and ^22 N.B. at p. 2S3, 3 Cart, at p. 407. And so in Clemens v. Bemer, 7 C.LJ. 126, (1S71), Hughes, C.J., upheld the power of the Dominion parliament to legislate as to returns of convictions in criminal cases. And see Proposition 45 and the notes thereto. 225 Gr. 507, I Cart. 822, (187S). ■'5 M.K. at p. 313, (1S88). And see also In re Portage Extension of the Red River Valley R.W.. December 22nd, 1888, Cas. Sup. Ct. Dig. 487. But when, in 18889, 'he legislature of Manitoba passed an Act (52 Vict., c. 19) to i)rovide for the crossing of one railway crossmgs. 446 Legislative Power in Canada. Dominion laws as to rail-vay crossings. Prop. 37 County and Township of York, ^ Rose, J., held intra vires and within the scope of necessary legislation the sections of the Dominion Railway Act, 1888, whereby the Railway Committee are empowered to- order that gates and watchmen be provided and maintained by railways under Dominion control^ under No. 10 of section 92 of the British North America Act, at crossings and highways travers- ing different adjacent municipalities, to decide which municipalities are interested in the cross- ings, and to fix the proportion of the cost to be borne by the different municipalities. A somewhat peculiar application of the principle of our Proposition may be found in Keeferz;. Todd,- in which the Peace Preservation Acts, 32-33 Vict.^ The Peace c. 24, D., and ^^ Vict., c. 27, D., being Acts for the Aas"''^"°" better preservation of the peace in the vicinity of public works in which large bodies of labourers are congregated and employed, and which forbid the possession of firearms and other lethal weapons, and also the sale and possession of intoxicating liquors within the districts in which they were duly pro- claimed in force, were held intra vires by Begbie, J., as being really laws in relation to and confined to- by another, which provided that no railway company, whether incor- porated by the Dominion parliament or otherwise, should cross, intersect, join, or unite its railway with any railway subject to the provincial legislative authority without first obtaining the approval of the Railway Committee of the Executive Council of the province as to the olace and mode of crossing, etc., Sir John Thompson as Minister of Justice, by his report to the Governor-General of March 3rd, 1890, (Hodgins' Provincial Legislation, 2nd ed., at pp. 912-3), said that he entertained doubt "as to whether a provincial legislature may by- legislation of this character interfere with the construction of a railway which is authorized to be built by the parliament of Canada." How- ever, he did not recommend disallowance. See, further, as to legis- lative power over railways. Proposition 54, and the notes thereto, and see also p. 399, n. i, supia. I27O.R. 559,(1896). 22 B.C. (Irving) 249, (1S85). See at p. 255. Powers by Implication. 447 the Canadian Pacific Railway, a public work within Prop. 37 the meaning of sub-section (a) of No. 10 of section 92 of the British North America Act.^ A case which illustrates how difficult it may sometimes be to determine whether, in legislating upon subjects entrusted to its jurisdiction by section gi, the Dominion parliament has or has not unduly encroached upon the sphere of provincial jurisdiction is McArthur y. The Northern Pacific Junction R. W. Difficuityof /^ n • 1-1 r> TTT /^ r y^ determining Company, - in which case Street, J ., Hagarty, C.J .O., extent of 1/-VI T»iiii • r T^ r^ /-^ such Domin* and Osier, J. A., held that section 27 of R.S.C., c. 109, ion powers, whereby all actions for indemnity for any damage or injury sustained by reason of any railway under Dominion control must be commenced within six months, was inti^a vires of the Dominion parliament^ being in accordance with the customary legislation in similar cases both in Canada and England ; while Burton, J. A., and Maclennan, J. A., held that it was ultra vires, as being an unnecessary interference with property and civil rights and with procedure in the province, the latter^ denying that any such clause is ^Further citations supporting the Proposition under discussion are as follows : — Per Allen, C.J., in Robertson v. Steadman, 3 Pugs, at p. 631, (1876) ; per Palmer, J., in the Queen v. City of Fredericton, 3 P. & B. at p. 150, et seq., (1879), as to criminal law interfering with property and civil rights, and as to these latter terms referring to civil or municipal as distinguished from criminal law ; also S. C. at pp. 146-7 ; per Taschereau, J., in City of Fredericton v. The Queen, 3 S.C.I^. ^^ P- 558, 2 Cart, at p. 52, (1880); Beausoleil v. Frigon, i Dor. (^).B.Qu. 70, (1880); per Fournier, J., in Citizens Insurance Co. v. Parsons, 4 S.C.R. at p. 257, i Cart, at p. 303, (1880) ; per Ritchie, C.J-, in the Queen v. Robertson, 6 S.C.R. at pp. loo-i, 2 Cart, at p. 82, {1882) ; per Gwynne, J., in Attorney-General v. Mercer, 5 S.C.R. at p. 703, 3 Cart, at p. 78, (iSSi) ; per Spragge, C, in Hodge V. The Queen, 7 O.A.R. at pp. 252-3, 3 Cart, at pp. 167-8, (1882); per Weatherbe, J., in In re Windsor and Annapolis R.W., 4 R. & G. at p. 321, 3 Cart, at p. 399, (1S83) ; Smith v. .Merchants Bank, 28 Gr. 629, 8 O.A.R. 15, 1 Cart. 828, (1883) ; Ex parte Wilson, 25 N.B. 209, (18S5), as to the regulation of fisheries interfering with civil rights in the province. 215 O.R. 723, 17 O.A.R. 86, 4 Cart. 559, (1888-90). ^17 O.A.R. at p. 127, 4 Cart, at p. 576. 44S Legislative Power in Canada. Prop. 37 to be found in the railway legislation of either England or the United States. In the New Bruns- wick case, however, of Levesque v. New Brunswick Limitation R-W. Co.^ the Supreme Court of that province again'st"^ S-lso held tlic saoic section to be intra vires in raiways. prescribing the limitation. King, J., however (at p. 604), expresses a doubt whether that part of it which authorizes the railwa}' company, in an action for damages, to plead the general issue and give the special matter in evidence is also intra vires, but Allen, C.J., (at p. 613), holds both matters alike to be incident to the right of the Dominion parliament to legislate on the subject of railways. And when it is sought to find some rule regulating the power of the Federal parliament thus incident- ally to deal with matters which are under the jurisdiction of the provinces, it does not appear that The rule of ^"Y ^^s been, or, it ma}^ be, can be, formulated beyond necessity. \\i\c,^ that such powcr docs not extend any further than is reasonable and necessary to enable it to legislate on the general subjects committed to its jurisdiction by the British North America Act.- Andas Palmer, J., says m/« re DeVeber": — " Perhaps the Act can present no more difficult subject for construction than where to draw this line of neces- sity. Lawyers attempting this must always be met with the difficulty that they are, to some extent, allowing the Dominion parliament to exercise legis- 129 N.B. 588, (1889). ^And so per Armstrong v. McCutchin, 2 Pugs, at pp. 383-4, 2 Cart, at p. 497, (1874) ; per Ritchie, C.J., in Valine. Langlois, 3 S.C.R. at p. 16, I Cart, at p. 172, (1S79), and in Citizens Insurance Co. v. Parsons, 4 S.C.R. at pp. 242-3, l Cart, at p. 292, (1880) ; per Fournier, J., S.C, 4 S.C.R. at p. 272, i Cart, at p. 303; per Ritchie, C.J., in Queen v. Robertson, 6 S.C.R. at p. iii, 2 Cart, at 82, (1882). ^21 N.B. at p. 425, 2 Cart, at p. 556, (1882). Powers by Implication. 449 lative powers that are, by the express words of the Prop. 37 Act, not only given to another legislative body, but given to it exclusively." And the same learned judge says in like manner in Attorney-General of Canada v. Foster/ referring to the same point : — " Where that line of necessity is to be drawn in each particular case is the great difficulty that lawyers have to contend with when expounding our constitu- Difficulty of , . application tion. It must, I think, be determined by a consid-°f't- eration of the general scope of the legislation called in question. There must be proper and reason- able limitation of its encroachments upon subjects that are exclusively within the power of the other legislature'"- And agam the same learned judge says in Phair v, Venning^: — " It is obvious that this line of necessity must be drawn somewhere, and where drawn in each particular case must depend upon sound construction with reference to each particular case as it arises." The line was drawn in the case of McClanaghan V. St. Ann's Mutual Building Society.^ There the 131 N.B. at p. 164, (1S92). "See this case also referred to supra pp. 28 1-2. Palmer, J., held, contrary to the opinion of the majority of the Court, that the Act in question in it was ultra vires, for that although Parliament has power to raise money by any mode or system of taxation, they only have the right to interfere with property and civil rights so far as such inter- ference may be necessary for the purpose of effectually exercising that power, and that the Act was not at all necessary to the due and fair ex- ercise of that power. " Suppose," he says, at p. 165," in this case,instead of creating this additional debt upon the former owner of the property that had once been impoited into this country, Parliament had con- fiscated the whole of it, or, further still, if it had declared all such property confiscated, it is obvious, I think, that the exercise of such a power would not be necessary to reasonably and properly exercise the the power conferred upon it of raising a revenue by taxation, for if such a right existed it would be entirely destructive of the civil rights and property of the country." See further as to powers of taxation the notes to Proposition 66, infra. 322 N.B. at p. 371, (18S2). ■124 L.C.J. 162, 2 Cart. 237, (18S0). 29 450 Legislative Power in Canada. Prop. 37 Quebec Court of Queen's Bench (Appeal side) held the Act 42 Vict., c. 48, D., to be ultra vires. This Act was entitled ' An Act to provide forthe liquidation of the affairs of building societies in the Province of Quebec,' and after reciting that " whereas a large number of persons of limited means have invested their earnings in building societies in the Province of Quebec, and on account of the long period of de- pression such persons are exposed to lose their Transgres- earnings for want of means to continue the payment sion of - , . ... 1 • • reasonable of thciT contributions, and it IS expedient to come to limits by . . . . Dominion their relief by providing a speedy and inexpensive mode of liquidating the affairs of such societies in the said province," enacted that liquidation might be resolved upon at any general meeting, after notice, and made other necessary provisions for the liquidation of such societies, whether insolvent or not. In giving judgment Dorion, C.J., said : — " This Act is not in the nature of an insolvent law, for it is intended to apply to all building societies, whether insolvent or not. It is therefore essentially an Act affecting civil rights. . . The case of L'Union St. Jacques de Montreal v. Belisle^ is in point." Vhether the last mentioned case be rightly decided or not it would seem that, in applying the rule in question, it will not be proper to press the meaning of the word ' necessary ' too far. Thus in Doyle V. Bell," in which the constitutionality of the Dominion Elections Act, 1874, was in question in so far as it gave to an informer the right to recover by a civil action a penalty imposed as a punishment for bribery at an election, and in which it was contended by counsel opposed to the Act that, granting the IL.R. 6 P.C. 31, I Cart. 63. *32 C.P. 632, II O.A.R. 326, 3 Carl. 297, (1SS4). Powers by Implication. 451 right of Parliament to make all necessary provisions Prop. 37 to enforce purity of election, they could fully effect such purpose by means of the criminal law, and that, therefore, there was no reason for their conferring the power to sue, Hagarty, C.J.O., says^: — "I think their right to do as they have done here can- not be measured by our view of the necessity of such a proceeding "; while Rose, J., observed": — "I do not understand by the use of the word ' necessary,' as found in various decisions and text-books, that it is meant to lay down the doctrine that to bring Rule of within the powers of the Dominion legislature any mu^rnot be • • r . • 1 ■ , • , 1 • pressed too provision 01 an enactment respecting a subject within far. the exclusive jurisdiction of such legislature, and which provision might affect civil rights, it must necessarily appear that without such provision it would be impossible to carry into effect the inten- tions of the legislature, or that probably no other provision would be adequate. On the contrary, it seems to me that if such provision might, under certain circumstances, be beneficial and assist to more fully enforce such legislation, then it must, at all events, on an appeal to the Courts, be held to be necessary, that is, necessary in certain events. Surely the legislature must be allowed some, and, in my Legislative . , ,. . , ,1 1 p discretion. opinion, a very wide, discretion as to the mode 01 enforcing its own enactments. It cannot be said that the Courts are to sit in judgment on the exer- cise of such discretion, and dictate to the legislature whether they shall adopt this or that mode, because in the opinion of the Courts one mode is more con- venient or better, or at least as well adapted to effect the purpose of the legislature."^ ^11 O.A.R. at p. 328, 3 Cart, at p. 300. 2ii O.A.R. at p. 335, 3 Cart, at pp. 308-9. 3 And see per Rose, J., in the recent case of AV Canadian Pacific R.W. Co. and County and Township of York, 27O.R. at p. 567, (1896). 452 Legislative Power in Canada. Prop. 37 In the Queen v. Robertson, '^ Fournier, J., says, referring to this matter : — " Basing my opinion on that of the highest judicial authorities of the United States, who have been called on to decide analogous questions as to the jurisdiction and the respec- tive rights of the States and of the federal gov- rule of necessity, And SO Story, in his work on the Constitution of the United Slates, 5th ed., Vol. 2, at p. 143, discussing the clause in the constitution, article I, section 8, (18), which gives power to Congress " to make all laws which shall be necessary and proper for carrying into execution Story on the the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof," observes : — "The relation between the measure and the end, between the nature of the means employed towards the execu- tion of a power and the object of that power, must be the criterion of constitutionality ; and not the greater or less of necessity or expediency. If the legislature possesses a right of choice as to means, who can limit that choice ? Who is appointed an umpire or arbiter in cases where a discretion is confided to a government ? The very idea of such a con- trolling authority in the exercise of its powei is a virtual denial of the supremacy of the government in regard to its powers. It repeals the supremacy of the national government proclaimed in the constitution." And again, (il>. at p. 147): — "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appro- priate, which are plainly adapted to the end, and which are not prohibited, but are consistent with the letter and spirit of the instru- ment," (sc, the constitution), "are constitutional." At Vol. 2, p. 137, Story says the above clause in the American constitution is " only declaratory of a truth, which would have resulted by neces- sity and unavoidable implication from the very act of establishing the national government, and vesting it with certain powers." See, also, id,, at p. 143 ; per Spragge, C, in Regina v. Hodge, 7 O. A. R. at pp. 252-3, 3 Cart, at p. 16S ; Bryce's American Commonwealth, (2 Vol. ed.),Vol. I, pp. 321, n. 4, 369-70. It may be here men- tioned that there is a very different class of case in which the rule of necessity is to be applied in connection with the law of legislative power, namely, in determining what powers provincial legislatures must be held to possess as necessarily incident to their character as legislative bodies, apart from their power to legislate on subjects assigned to them by section 92 of the British North America Act. Here it would seem that the assumption of power constructively on the ground of necessity must be restrained to its narrowest limits : per Ramsay, J., in Ex parte Dansereau, 19 L.C.J, at p. 226, 2 Cart, at p. 180, (1875); and, also, in Cotte's case, 19 L.C.J, at p. 217, 2 Cart, at p. 225, (1875), where he says that necessity, to be the groundwork of a power of this sort, must be an absolute necessity. On the other hand, in Ex parte Dansereau, 19 L.C.J, at p. 243, 2 Cart, at p. 211, Monck, J., speaks of 'necessity' and 'convenience' as "pretty much the same thing in matters of this kind." See, however, on the subject of such implied powers of the legislature the notes to Proposition 66, infra ; and, also, supra pp. 63-9. Powers necessarily incident to legislative bodies. 16 S.C.R. at p. 139, 2 Cart, at p. 112, (1882). Powers by Implication. 453 ernment of the American Union, I have adopted p^qp- 37 from the outset their opinion, that it was not possible to estabhsh a uniform rule of interpretation impossible r 1 1-- rn n- ■ to define which would serve tor the decision 01 all connicting exact limits ... ^ '~'^ powers by questions of this kind. This opinion has been also implication, expressed several times by Her Majesty's Priv}^ Council : Gushing y. Dupuy, 5 App. Cas. 409, at p, 415^; Parsons v. Citizens Insurance Company, 7 App. Cas. 96. "2 Now, what is thus stated by Fournier, J., is not laid down in so many words in Cushing v. Dupuy, but, no doubt, what he is referring to is the passage from that judgment already quoted in the notes to this proposition,^ while, in respect to Citizens Insurance Company v. Parsons, he would seem to be referring to the following passage in their lordships' judg- ment, and especially to the concluding words : — " With regard to certain classes of subjects, there- citizens' Insurance fore, generally described in sectional, legislative Co. 7/. ■^ -^ _ ... Parsons. power may reside as to some matters falling within the general description of those subjects in the legis- latures of the provinces. In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each legislature, and to define in the particular case before them the limit of their respective powers. It could not have been the intention that a conilict should exist ; and in order ^i Cart. 252, at p. 258. -I Cart. 265. It, of course, must be rememliered that if the Dominion parliament or a provincial legislature legislates strictly within the powers conferred, in relation to matters over which the British North America Act gives it exclusive legislative control, we have no right to encjuire what motive induced it to e.xercise its powers. See Proposition 20 and the notes thereto. ^See step7-a pp. 425-7. 454 Legislative Power in Canada. Prop. 37 to prevent such a result the language of the two sec- tions must be read together, and that of one inter- preted and, where necessary, modified by that of the other. "^ Their lordships seem to be here referring only to the first class of cases above distinguished, - namely, where the question is really one of defining what is and what is not included in the enumerated classes of subjects in sections gi and 92 respectively. Proceeding to consider how far our leading Propo- Appiica- sition is applicable mutatis mutandis to the provincial Proposition Icglslat urcs, the first consideration which presents provincial itself is that they have not the advantage of the legislatures. . . . ,.,,.. ,. strong position in which the Dominion parliament is placed by the non obstante clause in section gi above referred to, nor of the concluding clause of that section,^ nor does there seem to be any authority to support the view that provincial legislatures can at all legislate upon any of the enumerated classes of subjects in section gi, properl}- understood, by way of provisions ancillary to their own Acts.* Mr. Todd, indeed, in his Parliamentary Government in the British Colonies,'"^ after noting the principle of the leading Proposition under discussion in its application to the Dominion parliament, says: — "The converse of this principle has also been maintained by the Courts in respect to local legislation upon assigned topics, which may appear to trench upon prescribed Dominion juris- 17 App. Cas. at pp. 108-9, I Cart, at p. 273, (1881). ^See supra at pp. 431-2. ^See pp. 427-9, and p. 430, n. 4, supra. *ln /;/ re Prohibitory Liquor Laws, 24 S.C. R. at p. 25S, (1S95), King, J., observes that wliile provincial legislatures have "'what is reasonably and practically necessary for the eflicient exercise of" their enumerated powers, this is so, "sul)ject to the provisions of section 91." ^2nd ed. at p. 436. Powers by Implication. 455 diction." But he does not cite any cases, and what Prop. 37 judicial authority there is, with the exception of one case presently to be noticed, does not seem to carry the matterfurther than this, that whatever powers the provincial legislatures have as included, ex vi termini, within the enumerated classes in section 92 when They may exercise properly understood, those powers they may exercise, their although in so doing they may incidentally touch or powers, affect something which might otherwise be held to com.e within the exclusive jurisdiction of the Domin- ion parliament under some of the enumerated classes in section 91. Thus in Bennett v. The Pharmaceutical Associa- tion of the Province of Quebec^ it was held by the Quebec Court of Queen's Bench (Appeal side) that the Quebec Pharmacy Act of 1875, so far as it required certain qualifications on the part of the persons exercising the business of selling drugs and Though in 1 • • 1-11 T • • 1 • • 1 1 1 ^'^ doing medicmes, was valid, though it might incidentallv they - . • 1 1 1 r 1 '-incidentally interfere in some degree with the sale of drugs and of affect trade. medicines in the province. In delivering judgment Dorion, C.J., no doubt expresses himself in vague and broad terms in stating- that the Court consid- ered it a proper rule of interpretation that the powers given to Parliament or the provincial legisla- ture to legislate on certain subjects included "all the incidental subjects of legislation which are necessary to carry on the object which the British North America Act declared should be carried on by that legislature." But he goes on to explain his meaning thus: — "The determining of the age, or other qualifications required by those residing in the province of Quebec to manage their own business, ii Dor. Q. A. 336, 2 Cart. 250, (1881I. ^I Dor. Q. A. at p. 340. 2 Cart, at \). 255. 45^ Legislative Power in Canada. Prop. 37 or to exercise certain professions or certain branches of business attended with danger or risk for the public, are local subjects in the nature of internal police regulation ; and in passing laws upon those subjects, even if those laws incidentall}^ affect trade and commerce, it must be held that this incidental power is included in the right to deal with the subjects specially placed under their control, the exercise of which cannot be considered to be un- constitutional.^ Thus they Similarly in Ex parte Laveille," where the right of may enforce . . , . . . license laws a provincial lec^islature to impose penalties for by penalties. ... . Violating its laws in relation to licenses was disputed upon the ground that this was interfering with trade and commerce, Alackay, J., sa3's that clearly the right to levy taxes on shops, etc., towards raising a revenue for provincial purposes, has been conceded to the provincial legislatures by section 92, " and all that IS necessary to enable the power to be exercised with effect must be held to have been conceded. Quebec province would in vain tax shops and taverns, unless sales otherwise than under license could be ordered b}' it to expose to penalties." And so per Ritchie, E.J., in Keefe v. McLennan,^ a local legis- lature is not debarred from making laws regulating the sale of intoxicating liquors, " because it indirectly and to a limited extent affects one of the subjects over which the Dominion has power of legislation." iSo, also, in Regina v. Mohr, 7 Q.L.R. at p. 191, 2 Cart, at p. 268, (1S81), Cross, J., says that perhaps "when it is found that the main object of a law is clearly within the power of the legislature that enacted it, what it contains as mere incidents, if essential to its operation, should not be readily treated as ultra vires, although such provisions may seem to invade the powers of the other legislature, unless clearly in opposition to the letter of the statute." ^2 Steph. Dig. at p. 446, 2 Cart, at p. 350, (1S77). 32 R. & C. at p. II, 2 Cart, at p. 408, (1876). Powers by Implication. 457 It must be remembered, as sug^gested b}' the Prop. 37 passage from the judgment of Allen, C.J., in The Queen v. The City of Fredericton, cited in the notes to the last Proposition,^ that the mere fact that an Act of a provmcial legislature may incidentally touch some of the classes of subjects enumerated in section Provinces 91, although, in fact, such subjects are foreign to the incidentally •1 1 1 • 1 'ouch purposes of such Act, and not necessarily and directly Dominion • 1 • , 1 • 1 • . 1 * subjects. involved in the legislation, does not make the Act really one within or upon that class of subjects. And so when the Minister of Justice took objection to s. 23 of the Ontario Act, 51 Vict., c. 70, providing that the railway company therein incorporated might become parties to promissory notes and bills of exchange, and how such notes and bills might be made, accepted, or endorsed so as to be binding on the company, as an infringement on the Dominion But may not lesrislate power, under No. 18 of section gi, over ' bills of ex- upon them, change and promissory notes,' Mr. Mowat, the provincial Attorney-General, replied that the Do- minion power is " not incompatible with the right of the provincial legislature to confer authority on a corporation to become a party to instruments of this nature as a matter incidental to such corpora- tion.- The object of the legislation is not to alter ^.See supra p. 424. -In III re The Dominion Provident Benevolent and Endowment Association, 25 O. R. at p. 620, Armour, C.J., in the course of the arj^u- ment, remarked : — " If the local legislature has power to incorporate the Association, it has power to say what are the rights of the parties under the incorporation" ; and, again, at p. 621, he says : — " If that legislature has power to incorporate, it has jiower to deal with rights acquired under the incorporation." The question involved in that case was, as to the power of the provincial legislature to confer upon the Master in Ordinary the powers it assumed to confer upon him by the Ontario Insurance Corporations Act, 1S92, and what was the jurisdiction of the Master under the powers so conferred. This Act, 55 Vict., c. 3q, by 56(2), provides for the appointment of a receiver, after cancellation of a corporation's registry under the Act, and enacts that the .Master " shall settle schedules of creditors and contributories, direct the realization of assets, the discharge of liabilities, and the dis- 458 Legislative Power in Canada. Prop. 37 or interfere with the general law in respect to those subjects, but to invest the company with the powers necessary for its due working," and he refers to the tribution of the surplus, . . and generally shall have all the powers which might be exercised on any reference to him under a judgment or order of the High Court." And with a view to a clearer understanding of the above somewhat far-reaching dicta, the following memorandum has been obtained from Mr. J. M. Clark, who was of counsel in the case : — "The Chief Justice conveyed the impression, and I have no doubt intended to convey the impres- sion, that the Ontario legislature, having power to create the corpor- ation there in question, had power to provide for the rights which would arise as incident to such corporaiion, and also to provide for the dissolution of the corporation, and the results consequent thereupon. The circumstances under wiiich the words of the Chief Justice were Provinrial spoken clearly indicated that this principle lerl to the conclusion that legislatures the Ontario legislature, having power to legislate respecting insurance may deter- and insurance corporations, had also power to provide for their dissolu- "^"hl '^f *^°" ^'^*^ ^'^^ rights consequent thereupon, and for the judicial seltle- parties ment of such rights and consequences. It will be seen that this under their is carrying the principle exceedingly far, but the Chief Justice inti- own charters mated that such was his view of the decisions, and that in this case the °ion'*^°'^^'^'^^' Ont'irio legislature, having the power to incorporate the Dominion Provident Association, could not only provide for its dissolution, Init also appoint and constitute a tribunal which should determine ?uch rights. Though it seems idle to question the Chief Justice's reasoniug now, still one cannot help observing that, if this reasoning is correct, the provision of the British North America Act giving the provincial legislature power to deal, for instance, with property and civil rights in the province, would give the provincial legislature power to provide for the determination of the rights respecting civil property, and to appoint special judicial officers to make such determination. The ques- tion of the Ontario legislature providing for the dissolution of a corpora- tion created by it by a compulsory process upon insolvency, was not dis- cussed or referred to in the argument before the learned Chief Justice, and, therefore, what he said could have no special relation to such a point. It is, however, to be borne in mind that the dissolution or winding up under the Insurance Corporations Act of 1892 may take place upon the registrar finding a Society, etc., to be insolvent, and the Act specially provides for a statement of the financial condition and affairs of the .Society for the purposes of the Act, and, conse- quently, although this point was not in issue before the learned Chief Justice, it is clear that it is proposed to provide under the Act of 1892 for the dissolution of the Society upon insolvency, and, if the Act is valid, it would involve the right of the Ontario legisla- ture to cancel registration of the corporation under that Act, and the cancellation of the certificate involves the right of the legislature to provide for the winding up of the corporation." Cf. per Robertson, J., in Re Iron Clay Brick Manufacturing Co., 19 O. R. at pp. 119-20, who held that the Ontario Joint Stock Companies Winding-up Act, R.S.O., 1S87, c. 183, had no application in a case where a winding up was sought by a creditor on the grounds that the company was insol- vent, the provincial legislature having no jurisdiction in matters of insol- vency. See also pp. 387-8, and 443, n. 2 supra. See, further, Crowe V. McCurdy, i8 N.S. 301, at pp. 302-3. Powers by Implication. 459 fact that legislation of this nature has for twenty Prop. 37 years passed unchallenged as entitled to weight as showing that it is intra vires. '^ In much the same way, and in the same report, the Minister of Justice objected to section 12 of the same Ontario Act, which provided that aliens as well j^^"'p'^^^^^^j^ as British subiects, and whether resident in the ^hat aliens province or elsewhere, might be shareholders in the ^^^^^^^^oider^s company, and that all such shareholders should be '=°'"p^"'^'- entitled to vote on their shares and be eligible to office as directors, on the ground that this was an infringement on the exclusive Dominion power to make laws in respect to aliens under No. 25 of sec- tion 91 of the British North America Act, and Mr. Mowat contended, in answer, that this power was not intended to give and did not give Parliament juris- diction in respect to such matters as that in ques- tion, which he submitted related not to naturaliza- tion and aliens within the meaning of the British North America Act, but to property and civil rights. This view, he said, is in accordance with the obser- vation of Mr. Todd in his Parliamentarv Govern- ^o. 25 of -> sect. 91, ment in the British Colonies, (ist ed., at p. 218).- b-n.a. Act. Nevertheless, in a report so recent as November 2nd, 1895,^ Sir C. H. Tupper, as Minister of Justice, referring to certain Ontario Acts of 1895, repeats the same objections, expressing the view that it is beyond the authority of a provincial legislature to ^Hodgins' Provincial Legislation, 2nd ed., at pp. 212-4. '^What Mr. Todd says (2nd ed., at p. 299) is that it has been assumed by the Ontario and Manitoba legislatures that provincial legislatures only are competent to authorize aliens to hold and trans- mit real estate under property and civil rights in the province in No. 13 of section 92. lie adds: — ^" But the 4th section of the Dominion Act of 1881 expressly declares that ' real and personal property of every description may lie taken, acquirel, held, and clis- posed of by an alien' in Canada, subject to certain restrictions therein stated, it being understood that the concurrent rights of legislation in the several provinces are not tliereby infringed." ^Hodgins' Provincial Legislation, 2nd ed., at p. 2^^b. institutions. 460 Legislative Power in Canada. Prop. 37 legislate so as to affect the rights of aliens. He, however, recommends that thp matter be left to the Courts. And in the report of May 30th, 1892,^ on an Act of New Brunswick to enable aliens to Legislation acouire, hold, and convey real estate in the prov- .as to aliens. i ' ' j r ince, Sir John Thompson, as Minister of Justice, says that, in his view, " it is very questionable whether the rights purporting to be created by this Act can be obtained by the legislation of a provincial legislature "; but he recommends that the Act be left to its operation.- And in connection with the above may be men- tioned the view expressed by Bain, J., in Schultz v. The City of Winnipeg,'^ that in giving provincial legislatures exclusive powers to make laws in Municipal relation to municipal institutions, power was, of course, given to make all such laws as would be reasonably necessary to establish, carry on, and work such institutions, even if such laws encroach upon some of the subjects that are reserved for the exclusive jurisdiction of the parliament of Canada. -^Ibid. at p. 755. -While referring to aliens, it may be mentioned that in his report of March 2ist, iISqi, on the British Columbia Acts of 1890, {ibid, at p. 1 121), Sir John Thompson, as iNIinisfer of Justice, objects to No. 20, being an Act incorporating a certain company, and which, by Aliens ani section 27, forbade under penalties the employment o'' Chinese, that unmigra- such provision " seems open to question on the ground that it is for the parliament of Canada to legislate respecting aliens, and therefore to prescribe their rights and disabilities." And in another report of January 27th, 1S94, [ibid, at pp. 634-5), on a certain Nova Scotia enactment relating lo the iinmigration of paupers, he expresses an opinion that it is tiltra vires of a provincial legislature to pass an Act relating to immigration, Parliament having passed statutes in that regard. On the general subject of naturalization of aliens, see Todd's Parliamentary Government in the British Colonies, 2nd ed. at p. 293, et seq. 36 M.R. at p. 57, (1SS9). Cf, per Ritchie, C.J., in Lynch v. The Canada North- West Land Co. , 19 S.C.R. at pp. 210-3, (1S91), quoted supra at pp. 421-2. And see supra p. 398, n. I. Powers by Implication. 461 As Crease, J., says in Regina v. Wing Chong,^ Prop. 37 it does not follow because a local Act touches on subjects committed to the jurisdiction of the Domin- ion parliament by section 91, that it therefore inter- feres with them so as to render it unconstitutional ; and it would seem, as already stated, that none of the Provinces 1 !•• 1 1 T 1 r 1 I- '-^'^ never above authorities carry the matter beyond that or den- invade the . . ^ , . ^ , . specific nition 01 the meanings ot the various enumerated Dominioa classes in sections 91 and 92 of the British North America Act, conceding to provincial legislatures the power to legislate to the full extent upon the subjects committed to them, though in so doing they may incidentally touch what may be called the fringe of Dominion subjects. One case, however, as has been stated,- seems to carry the matter somewhat further, namely, Jones v. The Canada Central R.W. Co.,'^ where Osier, J., held that though a debenture bond of an Ontario railwa}' company might, when the holder resided in England, be properly heldjonese/. to be a debt domiciled out of the province, and so Cemrai not within the provincial jurisdiction to affect under No. 13 of section 92, ' property and civil rights in the province,'* yet that the company' in question, being a local work or undertaking within the mean- ing of No. 10 of section 92, such provincial legis- lature had jurisdiction to legislate in respect to such a debt in carrying out by statute a scheme for the fin- ancial reorganization of the company, and that its powers were not paralyzed merely because some or all of the debts payable were payable to creditors resident outside the province, and therefore not property or 12 B.C. (Irving) at p. 158, (1885). ''Supra at p. 455. 346 U.C.R. 250, I Cart. 777, (iSSi). *See Proposition 68, and the notes thereto. 462 Legislative Power in Canada. Prop. 37 civil rights in the province. He says,^ somewhat vaguely: — "It is well settled that the Dominion parliament may legislate with respect to property and civil rights within the province where it be- comes necessary to do so for the purpose of legislat- ing generally and effectually in relation to matters exclusively within their own legislative authority. If the powers conferred upon the provincial legislatures are to be effectually exercised, they must, I think, Provinces rcccivc a not less liberal construction." But it is to Pidentaiiy bc observcd that to make laws in relation to deben- generai turc bonds of provincial railway companies which area. arc held and owned abroad does not, as it would seem, come under any of the enumerated classes of Dominion subjects in section gi, but would, no doubt, be within the power of the Dominion par- liament, under its general residuary power of legis- lation-; but, so far from this residuary power of legislation residing in the Dominion, "notwithstand- ing anything assigned to the provinces,"^ it will be remembered that exactly the reverse is the case, namely, that that power is given only in relation to matters not coming within the classes of subjects assigned exclusively to the provinces ; and, there- fore, the provinces might be held to have power incidentally to invade this area, without having any such power to invade the area of any of the enumer- ated Dominion subjects; and, as already stated, there seems no authority going so far as to give the prov- inces the right actually to invade Dominion terri- tory comprised in the enumerated subjects for the I46 U.C. R. at p. 260, I Cart, at p. 787. Cf. per Savary, Co.J., in Lire Killam, 14 C.L.J., N.S., at p. 242. ^See Proposition 26 and the notes thereto. ^See supra at pp. 427-9. Powers by Implication. 463 purpose of provisions ancillary to one of their own Prop. 37 Acts. There is, however, a class of decisions which at first sight might seem to carry the matter as far even as this, namely, those in which it has been held that They may . regulate the provincial legislatures have power to regulate pro- procedure ^ . . under their cedure affecting the penal laws which they have own penal ° '^ . -^ laws. authority to enact under No. 15 of section 92^ of the British North x\merica Act, notwithstanding that procedure in criminal matters is, by No. 27 of section 91, assigned exclusively to the Dominion parliament." And so Hagarty, C.J.O., in Regina V. Wason,^ who, after citing Gushing v. Dupuy,* says: — "I think we can well keep the two juris- dictions distinct, and as to each adhere to the rule iln Regina f. Frawley, 7 O.A.R. at p. 269, 2 Cart, at pp. 590-1, (1S82), Spragge, C, upholds the contention that provincial legisla- tures would have had this power, even without No. 15 of section 92 as incident to their constitution. And Dugas, J., in Regina v. Harper, I R.J.Q., S.C, at p. 333, (1892), referring to No. 15 of section 92, says that " the .same power exists for the other laws which come within their," (sc. the local legislatures), " jurisdiction under the other parts of the No. 15 of constitution, notwithstanding the fact that nothing is said about it." !^'r'; ^2. And as to the implied powers of Congress to declare acts of disobe- dience to its measures to be crimes, and to affix punishments, though possessing no such general jurisdiction over criminal law as the Dominion parliament has, see per Osier, J. A., in Regina v. Watson, 17 O.A.R. at p. 243, 4 Cart, at p. 602. As to provincial power to impose forfeiture of goods as punishment under No. 15 of section 92, if not under No. 13, (notwithstanding some remarks of Sir Barnes Peacock in the course of the argument /n re The Dominion License Acts 1883-4, pp. 141-2, indicating a view the other way), see King v. Gardner, 25 N.S. at pp. 52-4. And as to Dominion power to impose forfeiture as punishment, e.g.^ the forfeiture of money found in a common gaming house, see O'Neil v. Tapper, 4 R.J.(^. (<). B. ) 315, 26 S.C.R. at p. 132, (1896)., ^Such decisions are the Quebec cases of Pope v. Griffith, 16 L.C.J. 169, 2 ("art. 291, {i?>j2). Ex parte Duncan, 16 L.C.J. 188, 2 Cart. 297, (1872), Page V. Griffith, 17 L.C.J. 302, 2 Cart. 308, (1873), Cutet". Chauveau, 7 O.L.R. 258, 2 Cart. 311, (18S0) ; and others are referred to in the text. ^17 O.A.R. at p. 232, 4 Cart, at p. 590, (1890). The Supreme Court of Nova Scotia followed Regina v. Wason in this respect in The Queen v. Ronan, 23 N.S. at pp. 426, 459, (1891). *5 App. Cas. 409, I Cart. 252, (iSSo). 464 Legislative Power in Canada. Prop. 37 that where either has the right to legislate on a named subject, it must by necessary implication be Provincial held that all powers are given fully to carry out the procedure, object of the enactment, although subjects such as civil rights and procedure, civil or criminal, ma\- be apparently interfered with. The exclusive right to deal with the specific subjects remains wholly un- affected, — the carrying the legislation into practical effect and providing necessary penalties for its observance is alone in question."^ defe competent witness on penal proceedings. ^And so per Maclennan, J. A., S.C. 17 O.A. R. at p. 251, 4 Cart, at pp. 611-2. And Ilagarty, C.J.O., declares again that he adheres fidly to the rule thus expressed in the subsequent case of Attorney-General of Canada v. Attorney-General of Ontario, 19 O. A.R. at p. 35, (1892). See, also, on the same point, Regina v. Fravvley, 7 O.A. R. at p. 269, et seq., 2 Cart, at p. 590, et seq. ; per .Savary, Co. J., in In re Killam, 14 C.L.J., N.S., at p. 242, (187S). In Regina v. Bitile, 21 O.R. 605, (1892), where many of the cases and dicta referred to in the te.xt were cited, it was held ultra vires of the Dominion parliament to enact, as they had done by R.S.C., c. 106, ss. 114, 120, that on the trial of Provincial any proceeding, matter, or question under any Act in force in any "^*^'f h'^'^'"^ province respecting the issue of licenses for the sale of spirituous liquors, the defendant should be competent to give evidence ; and in a proceeding under the Ontario Liquor License Act, R. S.O., c. 194, the defendant was held not to be a competent witness. It seems, however, somewhat strange that R.S.O., c. 61, s. 9, was held not to apply, on the ground that that only made the defendant a competent witness on the trial of any matter 'not being a crime.' This would appear however, to be in accordance with the view taken in another recent case of Regina v. Hart, 20 O.R. 61 1, (1891), that an offence under a provincial penal Act, though certainly it is not a crime within the meaning of No. 27 of section 91 of the British North America Act, (see supra p. 36-7, 49-51), is to be considered a crime for the purpose of the interpretation of such provisions in statutes as the Ontario one just referred to. And so in Regina v. Mart it was held that, notwithstandr ing R.S.O. , c. 61, s. 9, the defendant was not either a competent or compellable witness on the trial of an offence against a city by-law in the erection of a wooden building within the fire limits. See per Hose, J., 20 O.R. at pp. 612-4. In the latter place he says : — "It may well be that the provincial legislature has power to pass an enactment and affix certain sanctions, and that an offence against such an Act woulil be a crime punishable under the provisions of a provincial criminal law." And see Regina v. Becker, 20 O.R. 676 ; Regina w. Rowe, 12 C.L.T. 95. And in this case of Regina v. 15ittle, (at p. 612), McMahon, J., seems to imply that if the Canada Temper- ance Act had made an offence under the Ontario License Law a crime, then the procedure respecting the admissibility of the evidence of a defendant would be controlled by section 114 above referred to. With deference, however, it is submitted that what procedure governed would depend upon whether the charge was laid under the Dominion Powers by Implication. 465 But it is submitted that, as held in the Quebec Prop. 37 decisions above noted, as an offence against a pro- vincial Act such as is referred to is not a ' crime ' at all within the proper meaning of No. 27 of section 91 of the British North America Act, neither is the procedure in question 'criminal procedure ' within the meaning of that clause.^ And so Dunkin, J., in Provincial Ex parte Duncan," says: — -"Whatever infractions of procedure, law, whether as to matters of Dominion or provincial legislation, Parliament sees fit to designate as crimes, it and it alone can so declare and as such punish, and to that end regulate procedure. Whatever infractions of any provincial law coming within the purview of this g2nd section of the British North or provincial statutes, even though the Dominion parliament had made the infraction of a provincial Act a crime. As to the difficulty of drawing the line between what is within No. 27 of section 91, and what within No. 15 of section 92, see the report of the Minister of Justice of March 14th, 1895, on a Nova Scotia Act respecting the use of tobacco by minors : Ilodgins' Provincial Legislation, 2nd ed. at p. 762. As to whether provincial Courts created by local legislatures can, as such, have jurisdiction to interfere with the decisions of a Dominion tribunal, such as the Minister of Agriculture in the case of patents, see In the Matter of the Bell Telephone Co., 9 O. R. 339, at p. 346, (1S85). As to the Courts not enforcing an ultra vh-es order of such a tribunal, see Re Canadian Pacific R.W. Co. and County and Township of York, 27 O.K. at p. 570. ^As to what is ' procedure in criminal matters,' under No. 27 of section 91, as distinguished from the 'constitution, maintenance, and organization of provincial Courts of criminal jurisdiction,' under No. 14 of section 92, see Regina v. O'Rourke, i O.R. 464, 2 Cart. 644 ; Regina v. Provost, M.L.R. i Q.B. 477, 29 L.C.J. 253 ; Regina w. Levinger, 22 O.R. 690 ; Regina v. Toland, 22 O.R. 505 ; Sproule v. No. 27 of Reginam, 2 B.C. (Irving) 219. Reference may also be made to ^n jf N A 'a article on Criminal law and the British North America Act, 29 C.L.J. 240, as to which, however, the principle contained in our leading Proposition seems to justify the Dominion legislation, which, the writer suggests, must be ii!t)-a vires. See, also, Clement's Law of the Canadian Constitution, at pp. 235-6. By Order in Council of April 19th, 1888, a British Columltia Act, (c. 7 of the Acts of 1887, being an Act to establish a Court of Appeal from the summary decisions of magistrates), which gave a right of appeal to a judge of the Supreme Court of British Columbia from any conviction made under a statute of Canada, was disallowed as legislation affecting procedure in criminal matters : Hodgins' ibid, at p. iioS. ^16 L.C.J, at p. 191, 2 Cart, at p. 301, (1872), 30 466 Legislative Power in Canada. Provincial penal procedure. Prop. 37 America Act Parliament may not see fit thus to deal with, the interested province may punish by fine penalty or imprisonment ; but its so doing does not make the offence to be thus punished a crime, nor the procedure laid down in order to its punish- ment procedure in a criminal matter. On the contrar}', such whole matter must remain a civil matter within what is here the true meaning of these respective terms." ^ And if the view of the law above expressed is correct, it would seem that the decision of Harrison, C.J., in The _ Dominion jurisdiction over crimes. ^See, too, per Ramsay, J., in Pope v. Griffith, i6 L.C.J, at p. 171, 2 Cart, at p. 296, (1872). And see Regina v. Boardnian, 30 U.C.R. 553, (1S71), esp. at p. 556. The above words of Dunkin, J., seem to imply that the Dominion parliament, having once legislated in respect ♦o the Acts in question, the provincial legislature can no longer legis- late in regard to them. And see the report of Sir J. Macdonald, as Minister of Justice, of Noveml)er 4th, 1869, to the same effect : Ilodgins' ibid, at p. 484. See, however, supra pp. 51, n. i, 412-4. In the argument in Russell v. The Queen, in 1882, (2nd day at p. 102 ; see supra p. 398, n. i), Sir James Ilannen says :—" If you have got a thing clearly, — I will not stop to consider what would be clearly, — but if you have got a thing clearly within the com- petency of the provincial legislature, it certainly seems to me that the Dominion parliament could not indirectly take that away from the province by making it a crime to do that which the provincial legis- lature had authority to say might be done." See, also, 10 C. L.T. at p. 233,6'/ seq., where the question whether Parliament can make a crime of the breach of a provincial Act is raised and somewhat dis- cussed ; and supra at pp. 49-50. A writer of an article on the Con- stitution of Canada, in 11 C.L.T. at p. 141, cites, "as illustrating the inability of the legislatures to deal with breaches of their own laws, where the offence is already known to the law as a criminal offence," Regina v. Lawrence, 43 U.C.R. 164, i Cart. 742, noted supra at p. 36, and followed in Regina z'. Matheson, by Ontario Divisional Court, Sept. 15th, 1S96, unreported. And in his report of January 28th, 1889, as Minister of Justice, Sir John Thompson, referring to a Nova Scotia Act, giving a town council power to make by-laws for ' the prevention and punishment of vice, drunkenness, immorality, and indecency in the public streets, highways, and other public places, and prevention of the profanation of Sunday', observes : — "These matters are within the control of the parliament of Canada, and have been legislated upon by that parliament, and it can only be competent for a provincial legislature to enact laws in respect to them for the purpose of aiding the enforcement of the laws of Canada. In any other view it would be diflicult to assent to the constitutional character of the pro- visions mentioned ": Ilodgins' ibid, at p. 581. As to the power of the provincial legislatures to legislate in furtherance of Dominion Acts, see Proposition 47 and the notes thereto. Powers by Implication. 467 Regina ?y. Roddy, ^ must be considered overruled, Prop. 37 where he draws the curious distinction that, although a provincial law prohibiting the sale of spirituous liquors on Sunday, and punishing by fine or imprison- ment, may not be a criminal law within No. 27 of section gi, but a perfectly good and valid law under No. 15 of section 92, yet the provincial legislature cannot enact that a man charged with an offence under it shall be a compellable witness, on the ground that the provincial legislatures have no power " directly or indirectly of destroying the general rules of evidence appertaining to criminal procedure, or quasi-criminal procedure throughout the Dominion, as, for example, by passing an Act Provincial ... . P . , . 1 r • Acts making subjectmg a man to testify against himself in cases defendant , , . ..... , competent where the charge against him is in substance a witness on charge of crime." They had, he held, no power proceedings, "to alter well-understood rules of evidence made for the protection of persons substantially accused of crime" ; and for persons authorized to sell spirituous liquor to make sale thereof on Sunday, contrary to the provisions of the provincial Act in that behalf, was a crime " in the broad sense of that word."" And that this is no longer law would seem to be indicated by the recent case of Weiser v. Heintzman (No. 2),^ where the Dominion parliament, having provided by 56 Vict., c. 31, s. 5, that no person shall be excused from answering any question on the ground that the answer may tend to crim- inate him, Boyd, C, held that this enactment, " by necessary constitutional limitations, as well as by I41 U.C.R. 291, I Cart. 709. ^41 U.C.R. at pp. 296, 302, I Cart, at pp. 714, 721. 3is O.P.R. 407, (1893). Cf. Regina v. Bitlle, 21 O.R. 605. 468 Legislative Power in Canada. P^op- 37 express declaration, applies only to proceedings respecting which the parliament of Canada has jurisdiction."^ ^A subsidiary question of a criminal character may arise in a civil action, as when one claimed the ownership of money found in a common gaming house, and, on the intervention of the Minister of Justice, it was set up that the money had been forfeited to the Crown under section 575 of the Criminal Code, but the ordinary rules of civil proceedure will apply, as, for example, in the matter of competency of witnesses: O'Neil v. Tupper, 4 R.J.Q. (Q.B.) 315, 26 S.C.R. 122, esp. at p. 132, (1896). General Language of the Constitution. 469 PROPOSITION 38. 38. As it was scarcely possible to make a complete enumeration of all the powers to be vested in the Dominion Parliament and Provincial Legislatures respectively, and, no doubt, to avoid grave inconveni- ences, use was made in drawing our Constitution, as in that of the United States, of general language, containing in principle the conferred powers, and leaving to future legislation [and judicial interpretation] the task of completing the details. The above Proposition, — excepting the words " and judicial interpretation," — is based on the language of Fournier, J., in Valin v. Langlois,^ where he cites a passage from Kent's Commentaries on American Law," summarizing the following words of Marshall, The . , . American C.J., m Martm v. Hunter's Lessee^: — " The consti-constitu- tution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execu- ^3 S.C.R. at p. 56, I Cart, at p. 194, (1879). 2i2th ed., Vol. I, at p. 318. 3 1 Wheat, at pp. 326-7. 470 Legislative Power in Canada. Prop. 38 tion. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The in- strument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifi- cations of power might be indispensable to effectuate the general objects of the charter ; and restrictions The general and specificatlons, which at the present might seem terms used , . , . , , , , - in it. salutary, might in the end prove the overthrow or the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."^ And the following words of Marshall, C.J., in M'CuUoch V. The State of Maryland,'-' cited by Harrison, C.J., in Leprohon y. The City of Ottawa,^ may also be appropriately referred to: — " A consti- tution to contain an accurate detail of all the sub- The great divisious of which its great powers will admit, and 'markTd.°" ^ of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which ^The above words are also quoted in Story on the Constitution of the United States, (5th ed., Vol. I, p. 323). So, also, per Burton, J. A., in Regina v. llodge, 7 O.A.R. at p. 272, 3 Cart, at p. 177, (1882). 24 Wheat. 316, at p. 407. »40 U.C.R. at p. 48S, I Cart, at p. 645, (1S77). General Language of the Constitution. 471 compose those objects be deduced from the nature Prop. 38 of the objects themselves^ ; " words which may be supplemented by those of Wilson, J., in Regina v. Taylor,- who, after observing on the impossibility of expressing the details of the respective powers of the two legislative bodies in any other way less than a code, adds : — " But the code itself would have to be supplemented from time to time, and even then, General with all the elaboration it received, it would not be [fre'ferabie, so convenient, or practical, or comprehensive, or useful to all purposes, as a simple enumeration of the rights and powers intended to be exercised under the general terms by which they are com- monly known, and which are quite as well under- stood as, and perhaps better than, they could be if it were attempted especially to define them." And so Crease, J., observes in the Thrasher Case^ : — " The fact is the Constitution Act of Canada only lays down broad but distinct well- guarded principles and lines of demarcation between the different legislative powers of separate legislative Leaving ' . scope for bodies, sometimes over the same subject, leaving ^"'"''e -* <^ development these principles to be applied from time to time according to the ever-varying growth and changes in the subjects of legislation incident to a new and progressive country" ; and again* : — " We must not expect to find that an organic Act of this kind will attempt to specify particularly even all the general heads of the subjects on which either Dominion or local legislatures can be expected to legislate. It ^These words are also cited per Richards, C.J. , in Slavin v. The Village of Orillia, 36 U.C. R. at p. 17S, 1 Cart, at p. 705, (1S75). 236U.C.R. atpp. 191-2, (1S75). »I B.C. (Irving) at p. 209, (1SS2). ''^S.C. at p. 211. 472 Legislative Power in Canada. Prop. 38 would require omniscience to foresee what in the course of time may arise to call for legislative inter- ference. All that the framers of it could be expected to do would be what they have done in sections gi and 92, lay down clear principles of distinction between the classes of subjects which were to be dealt with by the several legislatures, enunciate clear principles to guide them in their respective legis- lation, and compile the other sections of the Act with special, though inferential, reference to the guiding principles so laid down, and especially guarding agamst clashing of authority." Elasticity And ill North British and Mercantile, etc., of our Con- stitution. Insurance Co. v. Lambe,^ Tessier, J., says: — "In my opinion, the Confederation Act is a model of legislation which I have always admired. It required a great effort of science, intelligence, and experience to include in one law of 147 sections the regulation of interests so varied of several provinces covering an immense territory with different systems of law. The general terms employed show that the wish has been to give a general elasticity in our constitution. It is for our Courts to give a reason- able interpretation in order to reconcile all interests, and not create and favour those which are likely to raise conflicts."" " Much must of necessity, as occasion arises, be left to be supplied by judicial interpretation ": per Harrison, C.J., in Ulrich v. The National Insurance Co.-^ "The Imperial Act," says Peters, J., in Kelly v. iM.L.R. I Q.B. at p. 167, 4 Cart, at p. 60, (18S5). ^And so per Tessier, J., also in Poulin z>. The Corporation of Que- bec, 7 Q.L.R. at p. 339, 3 Cart, at p. 239, (1S81). »42 U.C.R. at p. 156, (1877). General Language of the Constitution. 473 Sulivan/ "has bone and sinew, but, like the dry Prop. 38 bones of the valley, it has yet to be clothed by many a judicial decision from all parts of the Dominion, tempered and corrected by the supreme tribunal, before its true form and features will become per" fectly developed"; to which we may add the words The of Crease, J., in Regina v. Wing Chong,^ that " it is the couns. natural that in the working out of such a constitu- tion in a new and growing country, questions should be continually cropping up, and call upon the Courts to define gradually and with greater exact- ness, as time progresses and population expands, the relative powers given by the Act to the Dominion and provinces respectively." And, in one of his short but trenchant articles in the Legal News,^ " R." has touched upon this matter, saying in reference to the British North America Act : — " Plainly it is an outline the details of which are to be filled up on the suggestion of practical necessities. That this should be the case The b.n. a. . , , , ... Act an IS evident to those who remember the circumstances outline, of Confederation, The assent of the people of the four provinces had to be obtained. Manifestly it would have been impossible to get them to under- stand, and not less difficult to get them to adopt, a multitude of details. It was comparatively easy to indicate in general terms the powers of each govern- ment, and this is what was done. No one ever seriously contended that even the catalogues of sections gi and 92 were perfectly conclusive. There- fore there must exist a doctrine resulting from, but ^2 P.E.I, at pp. 90-1, (1875). ^2 B.C. (Irving) at p. 156. ^7 L.N. at p. 49. "R" is, on good authority, believed to be the late Judge Ramsay. 474 Legislative Power in Canada. Prop. 38 undeveloped in, the words of the Act. In practice, it may be added, the Privy Council has frequently laid down principles of the most abstract kind. It is difficult to conceive how, with any hope of avoiding, even by hair-breadth escapes, contra- dictions in the last degrees unsatisfactory and disquieting to litigants, the Courts are to proceed without adopting broad principles."^ Difficulty of At the same time, as pointed out by the Privy don'^'"^ Council in Citizens Insurance Co. v. Parsons,- the very general language in which some of the powers of legislation are described in sections gi and 92 of the British North America Act gives rise to con- siderable difficulty of interpretation^; and on the argument before the Board in the matter of the Dominion License Acts,* Sir Montague Smith said: — " It is the great misfortune of this Act that they have used such extremely general terms." x\nd before passing on to the next Proposition there are two passages in Story on the Constitution of the United States which are very apposite to the matters now under discussion. In the first he says^: — "It is to be taken that the sovereign ^In the Australian case o{ Ex parte Wallace & Co., 13 N.S.W., L. I, (1S92), Innes, J., says (at pp. 13-4) : — "Our Constitution Act is not so rigid and inexpansive that the varying circumstances in the development of our political system are not to have some effect on it. ... It is well known that it is moulded on the lines of the English constitution, and in matters not expressly referred to we follow the precedents of the English constitution." For an article on the English Character of Canadian Institutions, by J. G. Bourinot, C.M.G. , see Contemporary Eeviezu for October, 1S92. -7 App. Cas. at p. 107, i Cart, at p. 271, (1881). ^See, also, per Ritchie, C.J., in The Queen v. Robertson, 6 S.C.R. at p. Ill, 2 Cart, at p. 83, (1S82). ■*Transcript from Marten & Meredith's shorthand notes, at p. 127. 55th ed., Vol. 2, at p. 5. See, also, ibid., pp. 569-70, note. The American Constitution. 475 power, the people, in adopting the constitution and Prop. 38 thereby giving to the Courts the function of in- terpretation, intended that interpretation should, within reasonable limits, be influenced by the demands of public policy and the public welfare, story on the , . , r • 1 • Constitu- accordmg to changes or time and circumstances ; tion. and that the Courts should not be tied down by the special state of things existing in times of a new and untried experiment in government. On that theory the Federal Supreme Court has often acted ; so has Congress, and so has the Executive. There is reason for saying that the term * police powers ' cannot be held to mean at the present day all that it meant a hundred years ago." However, with reference to our constitution what is stated in PuWic -P, . . , , feeling may Proposition 3 and the notes thereto must be remem- [nfluenneits bered. And Story himself adds in the other pas- 'ion. sage referred to, a useful warning^: — "If the constitution is to be only what the administration of the day may wish it to be, and is to assume any and all shapes which may suit the opinions and theories of public men as they successively direct the public counsels, it will be difficult, indeed, to ascertain what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing to-day and another thing to-morrow, and, again, another thing on each succeeding day. The which, j.Mir-1 •! 1 r • however, past Will turnish no guide, the future no security, must be It will be the reverse of a law, and entail upon the certain, country the curse of that miserable servitude so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government." And the same learned writer in another place observes=^: — " It has been justly remarked that the ^Ibici. at p. 150. "^Idid. at p. 654. 47^ Legislative Power in Canada. Prop. 38 erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety ; and these may, in a particular manner, be expected to Time flow from the establishment of a constitution required to - , , , , • i • • r mature the toundcd upon thc total or partial incorporation or a number of distinct sovereignties. Time alone can mature and perfect so compound a system ; liquid- ate the meaning of all the parts ; and adjust them to each other in a harmonious and consistent whole." 1 '^Pomeroy, in his work on Constitutional Law, 8th Ed., p. I2, s. 17, says: — "In discussing the powers, capacities, incapacities, rights, and duties of the governmental agents, all appeals to general ideas of civil polity, all references to the analogies of other forms and other nations, from whom we may be supposed to have drawn some of our methods, all purely historical deductions, are and must be constantly restrained and limited by the letter itself of the written instrument. On the other hand, this written instrument is so much one of enumera- tion rather than of description ; is so much an expression of general grants of power rather than the embodiment, in a codified form, of minute detail, that an appeal to history, to the analogies of other political organizations, and to fundamental ideas of civil polity, of justice and equity, is not entirely superseded, nay, is often absolutely neces- ary. " See, however. Proposition 3 and the notes thereto. Federation Act to be Treated as a Whole. 477 PROPOSITIONS 39, 40, AND 41. 39. In order to construe the general terms in which the classes of subjects in sections 91 and 92 of the British North America Act are described, both sections and the other parts of the Act must be looked at, to ascertain whether language of a general nature must not by necessary implication or reasonable intendment be modified and limited. 40. The British North America Act has to be construed as a whole, and where some specific matter is mentioned as with- in the exclusive powder of one body, Do- minion Parliament or Provincial LcQisla- ture, as the case may be, which, but for that reference, would fall within the more general description of a subject-matter confided to the other, the statute must be read as excepting it from that general description. 41. With regard to certain classes of subjects generally described in section 91 of the British North America Act, leeis- lative power may reside as to some matters 47^ Legislative Power in Canada. Prop, fallino- within the Q^eneral description of 39-41 . . . these subjects in the Legislatures of the Provinces ; [and, in a sense, the converse is also true in certain cases, with regard to the subjects generally described in sec- tion 92 and the legislative power of the Dominion Parliament]. The first of the above Propositions is laid down by the Privy Council in Citizens Insurance Co. v Par- sons,^ and they again reassert the same principle in Russell V The Queen," saying that sections gi and Sections 92 of the British North America Act must be read ^he^RN-A"*^ together, and the language of one interpreted and Act^mustbe^^.j^^j.^ j^g(>essar_v modified b}' that of the other, illus- togeiher. trating their meaning by the observation that it could not have been intended, while assuring to the prov- inces exclusive legislative authority, on the subject of property and civil rights, to exclude Parliament from the exercise of its general power to make laws for the peace, order, and good government of Canada in relation to matters not coming within the classes of subjects exclusively assigned to the provincial legislatures, whenever any such incidental interfer- ence would result from it.^ And so in Attorney- General of Ontario v. Mercer,* their lordships say : — " The extent of the provincial power of legislation over ' property and civil rights in the province ' can- not be ascertained without at the same time ascer- I7 App. Gas. at p. no, i Cart, at p. 274, (1S81). ^7 App. Gas. at p. 839, 2 Gart. at p. 23, (18S2). ^See supra at p. 396. And see, also, Proposition 26 and the notes thereto. *8 App. Gas. at p. 776, 3 Gart. at p. 12, (1SS3). Federation Act to be Treated as a Whole. 479 taming the power and rights of the Dominion under Prop, sections gi and 102."^ ^^"^^ And in Doyle v Bell,- Patterson, J. A., refers to the decisions of the Privy Council m the two cases above mentioned of Citizens Insurance Co. v. Parsons and Russell V. The Queen, as well as in L'Union St. Jacques de Montreal v. Belisle,^. Dow v. Black,* Valin V. Langlois," and Hodge v. The Queen, ^ and says of them: — "We have now the assistance of The Act, 11-- r ^ T-.- ^ •!■ 1-11 embodies a several decisions 01 the Privy Council, in which the scheme of general duty is enforced of reading the British North America legislation. Act, and particularly these sections gi and g2, as embodying a scheme of general legislation, and not to be construed in a narrow sense or without reading one part of the Act or the section with another." As Begbie, C.}., expresses it in the recent British Columbia case of Sauer v. Walker " : — " The Judicial Committee have pointed out that these two sections ^-See sjipra at pp. 432-3. In the argument on The Liquor Prohibition Appeal 1S95, (at p. 209; see pp. 393, n. 1,398, n. i), Lord Halsbury, L.C., observes with immediate reference to the words 'regulation of trade and commerce' in No. 2 of section 91 : — " I think one must bear in mind that you are not at liberty to construe these words in their ordi- nary natural meaning. Vou must take the words as used by the legis- lature. . . I cannot help thinking that you must give what I will call the statutory meaning to those words." This case is now reported [1896] A.C. 348. The words of Taschereau, J., in Huson V. The Township of South Norwich, 24 S.C.R. at p. 156, (1S95), may be here noted : — " In cases of implied limitations or prohibitions of power it is not sufficient to show a possible or potential incon- venience. There must be a plain incompatibility, a direct repug- nancy, or an extreme practical inconvenience, leading irresistibly to the same conclusion," quoting the words from Story on the Constitution of the United States, 5th ed., Vol. i, s. 447. "^W O.A.R. at p. 334, 3 Cart, at p. 307, (1SS4). •''L.R. 6 P.C. 31, I Cart. 63, (1S74). *L.R. 6 P.C. 272, I Cart. 95, (1875). •''5App. Cas. 115, I Cart. 158, (1S79). «9 App. Cas. 117, 3 Cart. 144, (1883). ^2 B.C. (Hunter) at p. 95. restrictive. 480 Legislative Power in Canada. Prop, gi and 92 are to be construed leniently, and, if possi- ^^"^^ ble, so as to give effect to the real intention of the whole Act." And in Bank of Toronto v. Lambe,^ in deciding upon the validity of a certain Act of the Quebec legislature passed in 1882, entitled ' An Act to impose certain direct taxes on certain commercial corpora- tions,' the Privy Council say that the first thing to enquire into is whether the tax falls within the de- Sections scription of taxation allowed bv No. 2 of section 02 91 and 92 _ - ^ are mutually of the Federation Act, namely, 'direct taxation within the province in order to the raising of a revenue for provincial purposes,' and, secondly, they say : — " If it does, are we compelled by anything in section gi or in the other parts of the Act so to cut down the full meaning of the words of section 92 that they shall not cover this tax ?"- And they point out^ that in Citizens Insurance Co. v. Parsons,* when dealing with the meaning of the words "regu- lation of trade and commerce," in No. 2 of section g2 : — " It was found absolutely necessary that the literal meaning of the words should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures."^ An example of construing one class in section gi by aid of the other is Lynch v. The Canada North- ^12 App. Cas. at p. 581, 4 Cart, at p. 14, (18S7). ^See Propositions 43 and 58, and the notes thereto. 3i2 App. Cas. at p. 5S6, 4 Cart, at p. 21. *7 App. Cas. 96, I Cart. 265, (18S1). ^For other judicial dzcia in accordance with Proposition 39, see per Wilson, J., in Regina v. Taylor, 36 U.C.R. at p. 20, (1875) ; per Henry, J., in Valin v. Langlois, 3 S.C. R. at p. 63, i Cart, at p. 199, (1879) ; per Ritchie, C.J., in Queen v. Robertson, 6 S.C.R. at p. 113, 2 Cart, at p. 84, (18S2) ; per Burton, J. A., in AV Local Option Act, 18 O.A.R. at p. 591, (1891). Federation Act to be Treated as a Whole. 481 west Land Company,^ where the majority of the Prop. Court held in the words of Ritchie, CJ., (at p. 207), ^^''^^ that " the matter of interest which was intended to be dealt with by the Dominion parliament- was in connection with debts originating in contract, and that it was never intended in any way to conflict with the right of the local legislature to deal with municipal institutions in the matter of assessments construction "^ . of one class or taxation, either in the manner or extent to which section 91 by reference the local legislature should authorize such assess- '°t'^^°'^^'^^- ments to be made," and that therefore a Manitoba Act imposing the addition of a percentage upon all municipal taxes unpaid by a certain date in each year was intra vires. " Does not the collocation of No. 19, ' interest,' " (says Ritchie, C.J., at p. 212), " with the classes of subjects as numbered 18, ' bills of exchange,' and 20, ' legal tender,' afford a strong indication that the interest referred to was con- ' '"'fi""^^'' ■" No. 19 of nected in the mind of the legislature with regulations jf". 91. =' ° _ B.N. A. Act. as to the rate of interest in mercantile transactions and other dealings and contracts between individ- uals, and not with taxation under municipal institu- tions and matters incident thereto ? " and so, (at p. 225), Patterson, J., says: — "We find that article," (sc. No. ig of section gi), " associated with others numbered from 14 to 21, all of which relate to the regulation of the general commercial and financial system of the country at large. No. 19 is ejusdcm generis with the others, and does not, in my judg- ment, include the matter of merely provincial con- cern with which we are now dealing."'^ ^19 S.C.R. 204, (1S91). See, as to this case, supra pp. 421-2. "Sc. under No. 19 of section 91 of the British North America Act. ^A'; to "interest" in No. 19 of section 91, see, further, supra pp. 388-9; also per Burton, J. A., in Edgar v. The Central Bank, 15 O.A.R. at p. 202, 4 Cart, at p. 541. 31 4^2 Legislative Power in Canada. Prop. And a curious example of interpreting one 39-41 q£ ^Yie classes in section qz by reference to an- other of the classes in section 92 is to be found in Dulmage v. Douglas/ where the constitutionality of a provincial Act purporting to provide for the Cor.striictk.n maintenance of courts of justice and court houses by of one class , . . . ^ , , , insect. 92 by the imposition 01 law stamps on legal proceedmgs reference to . . r ,'-\ """ t t-. the others, was HI qucstion, The Court of Queens Bench of Manitoba, on appeal from Dubuc, J., held the Act ultra vires, and Taylor, J,, in delivering the judgment of the Court, says, (at pp. 498-9) : — " The use of the words ' maintenance ' in sub-section 14 of section 92 of the British North America Act cannot, as the learned judge seems to have thought it did, warrant the imposition of such stamps. That sub- section does authorize the legislature to make laws in relation to the maintenance of the provincial Courts, but it must clearly mean laws for their Provinci.ii maintenance in such manner and by the exercise of powers of ... r i i • i taxation. such powcrs as are within the scope or the legisla- ture. . . The power of the provincial legislatures as to taxation is defined by sub-section 2 of section 92, ' direct taxation within the province in order to the raising of a revenue for provincial purposes.' . . If this Act is one competent for the provincial legislature to pass, then the provisions of the British North America Act as to ta.xation by provincial legislatures amount to nothing, and they have unlimited powers of indirect taxation to raise a revenue for the maintenance of provincial institu- tions, and for carrying on the government of the province."- And so per Wilson, J., in Regina v. MM.R. 495. (1S87). -As to Dulmnge v. Douglas, and whether the provinces have any powers of indirect taxation, see, further, the notes to Proposition 66, ivfra. See, also, Attorney-General of Quebec v. Reed, lo App. Cas. at p. 145, 3 Cart, at p. 195. J Federation Act to be Treated as a Whole. 483 Taylor/ "power No. 13 as to property and civil prop, rights must be qualified in its turn by power No. 2, ^^'^^ for the right to deal with property and civil rights would not authorize the levying of any indirect tax." But although the provisions of sections gi and 92 Construction , . , . , ^ , of one class must be mterpreted with reterence the one to in sect. 92 the other, and to other parts of the Act, it seems a to the others, somewhat strange construction to say that a certain legislative power might have been held to have been given by one of the classes specified in one of those sections, if another legislative power had not been given by another class specified in the same section. As to the second of the leading Propositions nowprop. 40. under discussion, as Mr. Benjamin observed upon the argument in Russell v. The Queen before the Privy Council on May 2nd, 1882,- referring to sections gi and g2 of the British North America Act : — " The general rule of construction is one of course which your lordships will keep in view, that general words are controlled by special and specific provisions ; that you do not take general words to override special provisions, but you take special General .. •.!• , words and provisions as constituting in their nature excep- special . • , , t 1 1 XT 1 • provisions. tions to the general words. Now, the two sections are side by side, and are to be construed together, and, if you find anything specially enumerated in that which the provinces retain for their home legislation, you cannot deprive them of that special legislation by saying it could be embraced in these other general words. It is possible to embrace them in (the) general words. It is true it is possible to do it, but if you look to nothing but (the) general 136 U.C.R. at p. 201, (1875). ^Second day at pp. 24-5. See supra at p. 398, n. i. 484 Legislative Power in Canada. Prop, words there remains nothing for the province to ^9-^' act upon."^ And so in the City of Fredericton 2;. The Queen, - Henry, J., says that we must "ascertain if, in the employment of the general term," (sc, the regula- The special tioH of trade and commerce), " and the giving of provisions -r ii • i areexcep- powcr to another body to deal specmcally with a subject that might be otherwise considered to be embraced by the general term," (sc, licenses under No. 9 of section 92), " it was not intended that the specific power should not be considered as excepted from the general provision."^ The words of Proposition 40, however, which may be regarded as only a particular instance of the application of Proposition 39, are suggested by those of Burton, J. A., in Hodge v. the Queen.* As Begbie, C.J., says in the Thrasher Case^: — "All ^Thereupon the following took place : — Sir Montague Smith : " It is very difficult, because the legislature would appear to have reversed the general principle. They say, notwithstanding anything in the 92nd section contained, the classes that are enumerated at all events are to prevail, if there is anything like a conflict." Mr. Benjamin : " Undoubtedly, if there was anything like a conflict. If the Domin- ion parliament could not exercise its power of regulating trade and commerce, for example." Sir Montague Smith : " That declaration only applies to the enumerated provisions." See the passage quoted from Citizens Insurance Co. v. Parsons, 7 App. Cas. at p. 108, I Cart, at p. 273, ivfra pp. 488-90 ; see, also, per Sedgewick, T-, in ftt re Prohibitory Liquor Laws, 24 S.C.R. at pp. 230, 239, (1895). .\t pp. 240-1, he observes that Russell v. The Queen forbids the view that the exclusive right of a provincial legislature over a particular subject assigned to it " carved out " of a general subject is unlimited, and cannot be taken away by anything in section 91. See, also, S.C. at pp. 248-9. 23 S.C.R. at p. 551, 2 Cart, at p. 47, (1S80). 3Cf. per Richards, C.J., in Reglna v. Boardman, 30 U.CR. at p. 556, I Cart, at p. 679, (1871), as to Dominion criminal law and provincial offences. ••7 O.A.R. at p. 277, 3 Cart, at p. 181, (1882). And see per Burton, T.-'^., also, in Re Local Option Act, 18 O.A.R. at p. 589, (1891) ; per "Draper, C.j., in Regina jy. Taylor, 36 U.CR. at p. 233, (1875). ■^I B.C. (Irving) at p. 170, (1882). Federation Act to be Treated as a Whole. 485 the sub-sections in section 92 (so far ns they are Prop, exclusive) are exceptions out of the otherwise ^^'"^^ universal grant to the parliament of Canada in the first part of section gi." And in Severn v. The Queen, 1 Stronj^, J., observes: — "It is, I conceive, the duty of the Court so to construe the British North America Act as to make its several enact- ments harmonize with each other, and this may be effected, without doing any violence to the Act, by reading the enumerated powers in section 92 in the manner suggested, as exceptions from those given to the Dominion by section 91. Read in this way sub-section 2 must be construed to mean the regula- Powers in sect. 92 tion of trade and commerce, save in so far as power exceptions from those to interfere with it is, by section 92, conferred upon of sect. 91, the provinces."- And,-^ speaking of the decision of the Court of Appeal for Ontario in Regina ?;. Taylor,* where it was held that the words 'other licenses ' in No. 9 of section 92 gave power to impose licenses upon persons carrying on the trade of brewers,^ Strong, J., says: — "This conclusion was reached by the consideration that all powers conferred in section 92 were to be read and regarded as exceptions to those enumerated in section 91, and by that section given to Parliament "; though he somewhat strangely adds : — " Section 92 was, ^2 S.C.R. at p. no, I Cart, at p. 454, (1878). ^Cf. per Strong, C.J., in Huson z". The Township of Snuth Norwich, 24 S.C.R. at p. 150, (1895). Another way of putting the matter would be that the assignment to the provincial legislatures of power to make laws in relation to the sixteen subjects mentioned in section 92 shows that power to make laws in relation to the regulation of trade and ccmmerce in No. 2 of section 91 means something different from the mere power to make laws in relation to any one of those sixteen classes of subjects. ^Severn v. The Queen, 2 S C.R. at p. 106, i Cart, at p. 450. *36 U.C.R. at p. 218. 'As to which see p. 27, n. i, supra. 486 Legislative Power in Canada. Prop, therefore, to be construed as if it had been contained ^^-^^ in an Act of the Imperial parhament, separate and apart from section 91, and is, therefore, to be read independently of that section," which, it is sub- mitted, would be quite at variance with the rule of Proposition 39.^ In Hodge v. The Queen," Burton, J. A., points out that in some instances it would be more correct to say that the Dominion parliament has been invested with a power excepted out of some general power conferred upon provincial legislatures. He sa}-s : — " There are cases in which the power is given gener- ally to the provinces to deal with a particular subject. Except Take, for instance, ' propertv and civil rights,' which where the . ' r f . . converse is in thcsc general terms would comprise the power to the case. ° .... regulate contracts of every kind, including bills of exchange and promissory notes. When therefore we find the Dominion entrusted with an exclusive power to legislate upon bills and notes, the only way to make the Act consistent is to read this as an ex- ception to the general power granted to the province. So again, although the provinces have exclusive power under sub-section i.[ to make laws in relation to the administration of justice in the province, including the constitution, maintenance, and organiz- ation of provincial Courts, both of civil and criminal jurisdiction, when we find bankruptc}^ and insolvency ' For other th'cia in accordance with Proposition 40, see Mackay, J., in Ex parte Leveille, 2 Steph. Dig. at p. 446, 2 Cart, at p. 350, (1S77); per Taschereau, J., in Angers v. The Qi'^en's Insurance Co. , 16C. L.J., N.S., at p. 204, I Cart, at p. 149, (1S80), who seems to overlook the fact that the provincial power of direct taxation is confined to raising a revenue for provincial purposes ; per Dorion, C.J., in Bank of Toronto V. Lambe, iM.L.R. i Q.B. at p. 134, 4 Cart, at p. 33. (1S87) ; per Osier, J. A., in Clark.son v. The Ontario Bank, 15 O A.R. at p. 190, 4 Cart, at p. 527, (188S). Reference may also be made to a letter signed "George Patterson," in 21 C.L.J. 341, in connection with Proposition 40. 27 O.A.R. at p. 274, 3 Cart, at p. 179. Federation Act to be Treated as a Whole. 487 mentioned as a subject for the exclusive jurisdiction Prop, of the Dominion we must necessarily understand ^^"^^ that the organization of an insolvent Court, and administration of justice and proceedings connected Powers in sect. 91 with insolvency, are excepted from the general words excepted •' ^ ° out of those of that sub-section. But to that extent only can the i'l sect. 92. Dominion parliament assume to interfere. Adopting the same rule of construction, sub-section 15 of section 92 must, in my opinion, be read as an exception or modification of sub-section 27 of section gi, which vests in the Dominion parliament the power to deal generally with the criminal law."^ What is laid down in Propositions 39 and 40 is a very different thing from what is said by Gray, J., in the Thrasher Case,- namely, "that the provisions of any particular section of the Act must be read, as affected by and subject to the imerpreta- , . ^ , . , , tion to be general objects, uses, and powers tor which the confined to TT- 1 ^ r ... 1-1 the terms of Union was made, and tor maintaining which the Act. efficiently the British North America Act was passed."'^ In the course of the argument in Russell V. The Queen,* Sir Montague Smith observed : — " I do not think there is anything so obscure in the construction of the Act with regard to the distribu- tion of power and the dominium given to the Dominion of Canada that renders it necessary to go into the history of it." Passing now to Proposition 41, it is taken, with Prop. 41. the exception of the words in square brackets, from ^It may be observed that in the Quebec Re.solution No. 43 (15) the words are: — "Property and civil right.s, excepting those portions thereof assigned to the general parliament." See, also, supra pp. 362-3; also pp. 433-4, and 440, n. 5. '■^I B.C. (Irving) at p. 225, (1SS2). ^'As to which see Propositions 2, 3, and 4, and the notes thereto. ■'Second day, at p. 68. See p. 39S, n. i, supra. 488 Legislative Power in Canada. Prop, the judgment of the Privy Council in the Citizens ^^"* ^ Insurance Co. v. Parsons,^ and expresses the con- clusion at which the Judicial Committee arrived from the consideration of the fact, that notwith- Broad standing the endeavour of section gi of the British classes of - , . sect. 91 North America Act to give pre-eminence to the Dominion parliament in case of a conflict of powers,- it is obvious that in some cases in which this apparent conflict exists the legislature could not have intended that the powers exclusively assigned to the provincial legislature should be absorbed in those given to the Dominion parlia- ment. For example, they say that solemnization of marriage would come within the general descrip- Notintendedtion 'marriage and divorce,' which is contained thoseTn in the enumeration of subjects in section gi, yet s^c-9- 'solemnization of marriage in the province' is enumerated among the classes of subjects in sec- tion g2, and no one can doubt, notwithstanding the general words of section gi, that this subject is still within the exclusive authorit}' of the legisla- tures of the provinces.-^ So the raising of money by ^7 App. Cas. at p. loS, i Cart, at p. 273, (iSSi). -See sitpra at pp. 427-9, and p. 430, n. 4. ^As to ' marriage and divorce ' and ' solerrinization of marriage in the province,' reference may be made to tlie speech of Solicitor- General Langevin in the Deljates on Confederation in the parliament of Canada, (at p. 3SS), where he says : — " The word ' marriage ' has been < Marriage placed in the draft of the proposed constitution to invest the Federal and Divorce' parliament with the right of declaring what marriages shall be held and ' Sol- and deemed to be valid throughout the whole extent of the confed- emnization •., . , ■ ^ r ■ ■ .■ 1 -.u ..i. 1 of marriage.' ^''^"-y' ^"''"'^*> however, interfermg in any particular with the doc- trines or rights of the religious creeds to which the contracting parties may belong." It appears from the official report of the debate that the above words were read by the speaker from some written document, and when asked by the present author to explain the source of this ex- tract, Sir Hector Langevin most kindly supplied the following informa- tion in a letter of August 25th, 1S94 : — " I was entrusted by my leaders, Sir John A. Macdonald and Sir George Cartier, with the explanation not only of the general features of the proposed constitu- tion, but also of some very important details which they could not have given in their own speeches without having lengthened their Federation Act to be Treated as a Whole. 489 any mode or system of taxation is enumerated Prop, among the classes of subjects in section 91, but the ^^"^^ description is sufficiently large and general to include ' direct taxation within the province in order to the raising of a revenue for provincial purposes ' assigned to the provincial legislature by section 92, and it obviouslv could not have been Couns must ,.,.."' limit and mtended that m this mstance also the general define, power should override the particular one. In these cases their lordships add : — " It is the duty of the Courts, however difficult it may be, to ascertain in what degree and to what extent authority to deal with matters falling within these classes of subjects exists m each legislature, and to deiine in the par- ticular case before them the limits of their respective speeches unduly. My explanations were those of the government, and on the question of marriage and divorce, in order that there might be Sir Hector no equivocation or misunderstanding, it was agreed between my Langevm s colleagues and myself that I would put in writing those eight lines '^^^^^'^(g^'^,^ that you quote in your letter, and are found at p. 38S of the English Confedera- version, and p. 395 of the French version, of the Confederation tion. Debates of 1865. Those eight lines cover and give the meaning that the conference of 1864 put on the words 'marriage and divorce,' which meaning was conHrmed by the adoption of the proposed con- stitution in 1865, and later on in London, when all and every detail of the draft of the constitution were discussed and rtnally delivered to the government of Great Britain and passed by the Imperial parlia- ment." Reference may also be made to the opinion of the Law Officers of the Crown in England in 1S70, (Dom. Sess. Pap., 1877, No. 89, p. 340), to the eflect that under ' the solemnization of mar- riage in the province,' the provincial legislatures have the power of legislating upon the subject of the publication of and the issue of mar- Law officers riage licenses; while ' marriage and divorce,' in section 91, " signify °^ '■'^^ ^'^°"'" all matters relating to the status of marriage, between what persons and under what circumstances it shall be created, and (if at all) destroyed." This opinion is quoted at length by Doutre on the Con- stitution of Canada, at p. 238. .See, also, supra at p. 63. Mr. Todd, (Parliamentary Government in the British Colonies, 2nd ed., at pp. 197-8), mentions certain Acts of colonial legislatures relating to marriage and divorce which have been from time to time disallowed in England. And see ibid, at p. 794, et seq., on the general subject. See, also, per Gwynne, J., in City of Fredericton v. The (^)ueen, 3 S.C.R. at pp. 568-70, 2 Cart, at p. 60, (1880), and the letter of an "Exile" in 18 C.L.J, at p. 246, commenting on the language of the Privy Council in Citizens Insurance Co. v. Parsons, quoted in the text ; also, McDougall v. Campbell, 41 U.C.R. at pp. -ttyj and 341, as to power over the subject of granting alimony being in the pro- vincial legislatures. 490 Legislative Power in Canada. Prop, powers. It could not have been the intention that ^^"'^^ a conflict should exist ; and in order to prevent such a result the two sections must be read together, and the language of one interpreted and^ where necessary, modified by that of the other." ^ And so in Lambe v. The Canadian Bank of Com- merce,- Rainville, J., sa}-s, after referring to the opening clauses of section gi : — '' It would seem, A reasonable then, that with regard to all matters specially men- interpreta- ... ... tionmustbe tioucd in sectiou Qi the provincial legislatures have reached. . "^ ° _ no power, even if there should be found in the 29 classes matters which by section 92 seem to be exclusively assigned to the provincial legislatures. However, as was stated by the Privy Council in the case of the Citizens Insurance Co. v. Parsons these two sections must not be interpreted so absolutely, and a reasonable interpretation must be assigned to them in cases where the same matters are desig- nated in the classes of these two sections."'^ ^The above words are referred to and commented on by Ritchie, C. Tm in Queen v. Robertson, 6 S.C.R. at pp. III-6, 2 Cart, at p. 83, (1882). 213 R.L. 146 at p. 152, (1SS3). "In the argument before the Supreme Court of Canada in the Matter of the Dominion License Acts, 18S3-4, (Dom. Sess. Pap., 1S85, No. 85, at p. 136), Mr. G. F. (iregory, of counsel for New Bruns- wick and Nova Scotia, thus e.xpresses the ideal aim in the matter : — " It will be for Parliament and the respective legislatures in the first in- stance, and for the Courts as a last resort, to attach such a limited meaning to the classes of subjects mentioned in these sections respec- tively," (sc, sections 91 and 92 of the British North America Act)," as The ideal will make them distinct, and as each subject of legislation is presented in view. {q determine as best they can what class of legislation it falls in, Par- liament and the legislatures being held to a bo7ui fide exercise of their powers within their respective limits. ... In this way the Courts of Appeal and of last resort will from time to time put down milestones and landmarks to mark the division line lietween these two classes of subjects. It may not be an absolutely straight line, but it will be as use- ful and practical, whether it be a straight line or otherwise, so long as it becomes a certain line ; and by degrees this line will become marked by the milestones which the Courts will lay down, so that eventually those classes will be so understood by every one that we can easily determine within wliich class of subjects a matter of legislation falls." And so per Ramsay, J., in North British and Mercantile, etc., Insur- FederatiOxN Act to be Treated as a Whole. 491 Shortly after their above judgment in Citizens Prop. Insurance Co. v. Parsons, the Privy Council, in ^^-^^ Dobie V. The Temporalities Board, ^ referred to the principles laid down therein, and said that they saw no reason to modify them in any respect, and so again, in Bank of Toronto v. Lambe,- they referred to this subject, and to their language in Citizens In- The literal /^ -ri 1 T^i 1 11- meanine of surance Co. v. Parsons, and say : — ■" Their lordships words must . Ill '■'" restricted. adhere to that view, and hold that as regards direct taxation within the province to raise a reve- nue for provincial purposes that subject falls wholly within the jurisdiction of the provincial legislatures." In such cases, to quote another expression of the Privy Council in Bank of Toronto v. Lambe -^ : — " The literal meaning of the words in section gi should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures." As Begbie, C.J., puts it in The Queen V. Howe*: — " We must put a reasonable construction on these two sets of general words." As it has been often expressed the subjects Overlapping . . . of subjects in enumerated in sections 91 and 92 in many cases sects. 91 and 92. "overlap,"^ or to use an expression of Lord Watson's on the argument before the Privy Council on the Manitoba School case, 1S94, Broph}' v. Attorney- ance Co. v. Lambe, M.L.R. i Q.B. at p. 169, 4 Cart, at p. 62 : — "The work of reconciling these conflicting expressions must go on till all the possible cases have been disposed of." '7 App. Cas. at p. 148, i Cart, at p. 366, (1S82). 2 12 App. Cas. at p. 585, 4 Cart, at p. 20, (1S87). ^12 App. Cas. at p. 586, 4 Cart, at p. 21. *2 B.C. (Hunter) at pp. 38-9, (1890). See, also, per Begl)ie, C.J., in Poole v. The City of Victoria, 2 B.C. (Hunter) at p. 275, (1S92). "As per Cross, J., in North British & Mercantile Fire and Life Insurance Co. v. Lambe, M.L.R. I Q.B. at p. 151, 4 Cart, at p. 47, (1885). And see supra pp. 353-5- 492 Legislative Power in Canada. Prop. General of Manitoba,^ "interlace"; and it is ^^"'*^ especially this " double enumeration " which causes difficulty in the construction of the British North America Act-; and has been sometimes made the subject of hostile comment.^ In Ackman v. Town of Moncton,* Palmer, J., deals with the matter by saying that in his view the powers of the federal government and parliament, They are ... 'exclusive' aud likcwisc those of the provincial government and only in a . . . . broad and parliament, as criven by the British North America general '^ ' & J sense. Act, are only "exclusive in a broad and general sense," and that it is obvious that the "exercise by either of the powers conferred on it must of neces- sity, in many cases, in some degree affect subjects over which exclusive control is given to the other " ; and he proceeds to cite examples. Each, he says, must be allowed " to exercise its respective powers, ^See transcript from Marten & Meredith's shorthand notes at p. 2l6. ■^Andso per Ramsay, J., in Attorney-General of Quebec 7). Attorney- General of the Dominion, 2 Q.L. R. at p. 243, 3 Cart, at p. 107, (1876). On the argument in the matter of the Dominion License Acts, 18834, before the Privy Council, Sir Montague Smith observes : — " The fact that the legislation may be under one section or the other is one of the great difficulties in the construction of this Act : "(Tran- script from Marten & Meredith's shorthand notes at p. 51). "Per Ramsay, J., who calls it "a faulty construction," in North British & Mercantile Fire and Life Insurance Co. v. Lambe, M.L. R. I Q.B. at p. 190, 4 Cart, at p. 81; and even "vicious": Angers V. Queen Insurance Co., 22 L.C.J, at p. 308, i Cart, at p. 132, where he arrives at the conclusion that " the exclusive authority of Parliament is absolute, while that of the several legislatures is only so when the matter does not clash with powers specially conferred on Parliament " ; otherwise, he says : — " If the two enumerations clash, we should thus have two exclusive jurisdictions over the same matter, which is impossible." See Proposition 37 at pp. 432-3, supra. On the other hand, Dorion, C.J., in Dohie v. The Temporalities Board, 3 L.N. at p. 254, i Cart, at p. 3S6, says :— " I consider that the Act is as clear as it could be made to embrace so many questions in a small compass." As Taschereau, J., says, how- ever, in Angers v. Queen Insurance Co., 16 C.L.J., N.S., at p. 205, I Cart, at p. 149 : — "A literal interpretation of these two sections would make them contradictory." And see supra at p. 210, et seq. *24 N.B. at pp. iio-i, {1884). And see Propositions 27 and 28 and the notes thereto. Federation Act to be Treated as a Whole. 493 although such exercise may in some degree affect Prop, subjects, to make laws in regard to which exclusive ^^'"^^ powers are given to the other. "^ As Wilson, J., says in Regina v. Taylor,- if objects of legislation are lawful objects, " and if they can be properly adopted, they do not become unlawful, because they cannot be wholly separated from every other matter, and because they are attended with their inevitable consequences."'^ And although it is not mentioned in our leading Proposition, it will be found that not only do some of the enumerated subjects in section 92, such as property and civil rights in the province, overlap in r r J o X I Overlapping a certain sense some of the enumerated subjects in in sects. 91 and 92 of section 91, and vice versa, but if either of these two b.n.a.aci. sections are taken separately, in some instances the subjects enumerated in the same section overlap the one the other. As Cross, J., says in Regina v. Mohr*: — " We have a series of special powers attributed to each of the respective legislatures, some of which may have very indefinite limits, and some of which in each series may be found in their exten- sion to overlap and interfere v/ith the extent of some in the other series, those not included in either falling, of course, to the jurisdiction of the Dominion parliament, including those specially excepted in the enumeration of powers attributed to the local legislatures."^ ^In North British and Mercantile, etc., Insurance Co. v. Lambe, M.L.R. I Q.B at p. 169, 4 Cart, at p. 62, Ramsay, J., refers to " the evident misuse of the word ' exclusively ' in each section." 236 U.C R. at p. 206, (1875). ^See supra pp. 457-60. V Q.L.R. at p. 191, 2 Cart, at p. 268, (iSSi). °As to which see Proposition 26 and the notes thereto. 494 Legislative Power in Canada. Prop. And as to section 91, as Sir Farrer Herschell, of ^^"^^ counsel for the Dominion, observed on the argu- ment in the matter of the Dominion License Acts^: — " It must be remembered that the enumerated Classes in subjccts iu that section are only subordinate enu- sect. 91 only , • r . , • \ i i subordinate mcratious lor greater certamty, but not to exclude dons. the generality of the words that go before ; and when they are simply specifying things for greater certainty, some of those specifications may very well overlap. They may very well include certain things that would be included within the more general terms, but they specified them for greater certainty."^ ^See transcript from Marten & Meredith's shorthand notes at p. 167. -And see supra at pp. 308-9. Conditional Legislation. 495 PROPOSITION 42. . 42. The Dominion Parliament and Provincial Legislatures have power to legislate conditionally ; for instance, by enacting that an Act shall come into oper- ation only on the petition of a majority of electors.^ The above Proposition, which might be regarded as a necessary corollary to Proposition 17, is as regards the Dominion parHament, (and it must apply equally Russeiir. • 11 •! \oi' ^ r j1 -j The Queen. to provmcial legislatures),- derived irom the judg- ment of the Privy Council in Russell v. The Queen, ■'^ where, speaking of the Canada Temperance Act, 1878, the constitutional validity of which was in question, their lordships say : — •" The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not con- fer on these persons power to legislate. Parliament itself enacts the condition, and everything which is r.ocai option to follow, upon the condition being fulfilled. Con- ditional legislation of this kind is in many cases con- venient, and is certainly not unusual, and the power so to legislate cannot be denied to the parliament of Canada, when the subject of legislation is within its competency. Their lordships entirely agree with ■^See, in connection with this Proposition, Propositions 50 and 63, and the notes thereto. ^See Propositions 17 and 19. 37 App. Cas. at p. S35, 2 Cart, at p. 17, (1SS2). 49^ Legislative Power in Canada. Ppop.42 the opinion of Chief Justice Ritchie, ^ on this objec- tion. If authority on the point were necessary, it will be found in the case of Regina v. Burah, 3 App. Cas. at p. 889,- lately before this board." Reginar'. In Rcgina V. Burah the Judicial Committee had held that the Governor-General of India in Council, who under the India Councils Act, 1861, 24-25 Vict., c. 67, has a general power of legislation over all persons in Her Majesty's territories in India, had power to legislate conditionally, by conferring on the governor of Bengal the power to determine whether a certain Act shall be applied in a certain district. Conditional In their judgment they say ^: — "Legislation condi- egisation. ^j^j^g^^ ^^ ^j-^^ ^gg q£ particular powers, or on the exer- cise of a limited discretion, entrusted by the legisla- ture to persons in whom it places confidence, is no uncommon thing ; and in many circumstances it may be highly convenient. The British statute book abounds with examples of it ; and it cannot be supposed that the Imperial parliament did not, when constituting the Indian legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred." ^See 3 S.C.R. at p. 529, 2 Cait. at p. 29. Ritchie, C.J., cites from Cooley on Limitations, 4th ed. at p. 142, as follows: — "It is not always essential that a legislative act should be a completed statute, which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking etTect may depend upon some subsequent event." See Propcjsition 50 and the notes thereto. = 3 Cart. 409, (1878). 33 App. Cas. at p. 906, 3 Cart, at p. 430. Rule for Testing Dominion Acts. 497 PROPOSITION 43. 43. In determining the validity of a Dominion Act, the first question to be determined is, whether the Act falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the legislatures of the provinces. If it does, then the further question will arise, whether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and so does not still belong to the Dominion Parliament. But if the Act does not fall within any of the classes of subjects in section 92, no further question will remain. The above Proposition is taken from the judgment of the Privy Council in Russell v. The Queen," who The Queen. there refer again to their judgment in Citizens Insur- ance Co. V. Parsons,^ where they enunciate what is really the same rule as applied to an enquiry into the validity of a provincial Act. Their lordships add : — " It cannot be contended, and, indeed, was not contended at their lordships' bar, that, if the Act does not come within one of the classes of subjects ^See Proposition 66 and the notes thereto. "7 App. Gas. at p. 836, 2 Cart, at j). 19, (1882). 37 App. Gas. at p. 109, i Gart. at p. 273, (1S81). See Proposi- tion 58. 32 49S Legislative Power in Canada. Prop. 43 assigned to the provincial legislatures, the parliament of Canada had not, by its general power, to make laws for the peace, order, and good government of Canada, full authority to pass it."^ Variation in 111 the form of the rule as stated in Citizens Insur- rule iis stated in ancc Co. V. Parsons, the words which take the place Citizens Ins. /- ,, ... , , ... Co. z'. 01 and SO does not still belong to the Dommion Parsons. , . , . . parliament ' in the Proposition under discussion are, " and whether the power of the provincial legislature is or is not thereby overborne " ; and on the argu- ment before the Privy Council in Russell v. The Queen, in 1SS2," Sir Montague Smith said, refer- ring to the judgment of the board in Citizens Insur- ance Co. V. Parsons : — " That decision left open the question whether the special powers of section 92 may not in some cases be overborne by the more general powers of section gi. . . We expressly said that the question did not arise whether, when it," (sc, the subject-matter of an Act), " was apparently The within one and also within the other, the gist sec- explanation. . . , . , . tion might not overbear it. That question did not arise in that case. There we held, rightly or wrongly, that what was done was not a regulation of trade and commerce. We decided that it did fall within that sub-section of section g2 as to property and civil rights. The question of one over-riding the other did not arise. If it had been an interference with the regulation of trade and commerce, a ques- tion would have arisen which did not arise. "■'' ^As to which see Proposition 26 and the notes thereto. -i^t clay, at pp. 10, 5 j. See supra p. 39S, n. i. ^See Proposition 5S, infra. Reference may be made as to the varia- tion in the way in which the rule is stated in the two cases to the remarks of Mr. G. F. Gregory, arguendo, liefore the Supreme Court of Canada, in the Matter of the Dominion License Acts, 1S83-4 : Dom. Sess. Pap., 1S85, No. 85. at p. 130 On the argument in the same Rule for Testing Dominion Acts. 499 But as the authorities noted under Proposition 41, Prop. 43 q.v., show the subject-matter of a provincial Act may fall within one of the general subjects enumer- ated in section 91, in a broad interpretation of the latter, and yet the provincial legislature may have exclusive power to deal with it. " The exceeding generality of the words must be applied with very considerable modifications indeed ": per Crease, J., in the Thrasher Case.^ In Propositions 4^ and =^8. then, we have the rulecwynnej.'s ■^ ^-^ ^ ' . rule or test. correctly expressed rather than in the words of Gwynne, J., in City of Fredericton v. The Queen," repeated by him in Citizens Insurance Co.y. Parsons,^ and The Queen v. Robertson,* and which he says appear to him to furnish an unerring guide in deter- mining whether any given subject of legislation is within the jurisdiction of the provincial legislatures case before the Privy Council, Sir Fatrer Herschell puts the rule thus : — " For determining the question whether any matter is a matter within sir F. Her- the exclusive jurisdiction of the province, the proper course is first to schell's look at section 92, to see whether it comes within any of the clauses sta'ei"ent oi enumerated there. If it does not, then there is an end of the conten- tion that it is within the exclusive legislature of the province. But even if you do find it in section 92, then you have to look to section 91 and see whether you find it in section 91, because if it be in section 91, then so far section 91 over-rides and limits section 92. . . Unlessyoucan read the two together, and give a so much larger meaning to the words in section 91 that you can still leave section 92 to have effect, I should think section gi over-rode section 92, because it says that ' it is here- by declared that notwithstanding anything in this Act,' — that must include the words in section 92, — ' the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated,' — so that I should have said if there was any inconsistency between section 92 and 91, section 91 over- rode section 92 " : Printed transciini from Marten & Meredith's shorthand notes, pp. 31, 89-90. At p. 63, where Sir Farrer Ilerschell again speaks of section 91 over-riding section 92, Lord Ilobhouse, one of the Board, corrects him, saying: — " \\."{sc., section 91)," may over- ride the construction of section 92." See, also, supra at pp. 427-9. ij B.C. (Irving) at p. 206, (18S2). -3 S.C.R. at pp. 564-5, 2 Cart, at p. 56, (iSSo). ^4S.C.R. at pp. 329-30, I Cart, al p. 335. 6 S.C.R. at p. 64, 2 Cart, at p. iiS, 4 500 Legislative Power in Canada. Prop. 43 or of Parliament, namely : — " All subjects of what- ever nature, not exclusively assigned to the local legislatures, are placed under the supreme control of the Dominion parliament, and no matter is exclu- sively assigned to the local legislatures unless it be within one of the subjects expressly enumerated in Objections section g2,' and, at the same time, [is outside of the several items enumerated in section gi, that is to say,^] does not involve any interference with any of the subjects enumerated in section gi." For not only does this seem to ignore what is stated in Proposition 41, just referred to, but Proposi- tion 61 and the notes thereto show that it is at least liable to mislead to say that provincial legislation may never involve any interference with Dominion subjects." Per Ritchie, In The Queen v. Robertson,^ Ritchie, C.J., indeed, says : — " In construing the British North America Act, no hard and fast canon or rule of construction can be laid down and adopted, by which all Acts passed as well by the parliament of Canada as by the local legislatures upon all and every question that ^The words in square brackets are inserted in the rule as enunciated by the learned judge in The Queen v. Robertson, 6 S.C.R. at p. 64, 2 Cart, at p. Ii8. ^In the recent case of In re Prohibitory Liquor Laws, 24 S.C.R. at p 213,(1895), G Wynne, J., thus expresses the rule, as being, "accord- ing to the canons of construction, as laid down by this Court in City of Fredericton v. The Queen, and by the Judicial Committee of the Privy Council in Russell v. The Queen," — "between which," he adds, " I do not find there is any substantial difference": — "Even though a particular subject of legislation may be capable of being construed to come within section 92, reading that section by itself, still, if that subject comes within any of the items enumerated in section 91, it is taken out of the operation of section 92, which in such case has to be construed as not comprehending such subject." Of course if the subject-matter falls within the enumerated subjects in section 91, as strictly defined in their meaning under the Act, then the power of the provincial legisla- ture is overborne. =^6 S.C.R. at p. no, 2 Cart, at pp. S1-2. Rule for Testing Dominion Acts. 501 may arise, can be effectually tested as to their being Prop. 43 ornot being hitra vires of the legislature passingthem." He goes on to say : — " The nearest approach to a rule of general application that has occurred to me for reconciling the apparently conflicting legislative powers under the British North America Act, is what Propertyand . civil rights. I suggested in the cases of Valm v. Langlois,^ and the Citizens Insurance Co. v. Parsons," with respect to property and civil rights over which exclusive legislative authority is given to the local legislatures, that as there are many matters involving property and civil rights expressly reserved to the Dominion parliament, the power of the local legislatures must, to a certain extent, be subject to the general and special legislative powers of the Dominion parlia- ment.^ 13 S.C.R. at p. 15, I Cart, at p. 172, (1S79). -4 S.C.R. at p. 242, I Cart, at p. 292, (18S0). ''See supra pp. 425 438. 502 Legislative Power in Canada. PROPOSITION 44. 44. Before the laws enacted by the Federal authority within the scope of its powers, the provincial lines disappear ; for these laws we have a quasi legislative union ; these laws are the local laws of the whole Dominion, and of each and every province thereof. This Proposition is taken from the words of Taschereau, J., in Citizens Insurance Co. v. Parsons,^ and is in harmony with the statement of law in Proposition 46, that where over matters with Dominion which provincial leg^islatures have power to deal, laws prevail ..,,.,., In cases of provmcial legislation directlv conflicts with enact- direct '■ ° , _ / •conflict. ments of the Dominion parliament, whether strictly relating to the enumerated classes of subjects under section gi, or by way of provisions ancillary to legislation on the said classes of subjects, the pro- vincial legislation must yield to that of the Dominion parliament.- At the passage referred to, Taschereau, J., pro- ceeds : — " The Dominion as to such laws is but one 14 S.C.R. at p. 307, I Cart, at p. 326, (1880). And cf. the words of Badgley, T-, in L'Unicn St. Jacques de Montreal t'. Belisle, 20 L.C.J. at p. 31, I Cart, at p. 74. -]n Baxter v. The Central Bank of Canada, 20 O.K. at p. 214, (1890), we have a case of an Ontario Court enjoining the plaintiff in a case in a Montreal Court from proceeding in his action so far as he complained of the official conduct of liquidators appointed by an Ontario Court in certain winding-up proceedings under the Dominion Winding-up Act, then being carried on in the latter Court. National Scope of Dominion Laws. 503 country having but one legislative power, so that a Prop. 44 contract made under these laws in Ontario, or any one of the provinces, is to be considered, territorially, or with respect to locality, as a contract in the Dominion, and as such governed by the Dominion laws, and not as a contract locally in the province, As to them , , . . , , ,^, . . , , theDominion governed by the provincial laws, ihis is why the one country. contracts to convey passengers and goods on the railways under Dominion control, for instance, the contract made b}' the sender of a message with a telegraph company, the contracts of a sale of bank stocks, are all and every one of them, when made any- where in the Dominion, regulated by federal author- ity. And the power of the federal authority to so regulate them has never been doubted ; yet are they not all local transactions and personal contracts? Undoubtedly they are; but these railway companies, these telegraph companies, these banking companies, being under the federal control, their contracts are Dominion ■ 1 11 1111 1 '^'■^^ ^* '■° necessarily under the same control absolutely and ex- contracts. clusively. It would be impossible for them to carry on their businessifeach province could impose uponthem and their contracts different conditions and restric- tions. A Dominion charter would be absolutely useless to them if the constitution granted to each province the right to regulate their business."^ ^See, also, per Taschereau, J., S.C.,4 S.C.R. at pp. 312-4, i Cart, at pp. 331-2. Nevertheless, the cases referred to in Proposition 61 show that Dominion legislation may be in some degree interfered with Ijy provincial legislation. And a question might perhaps be raised as to whether the exclusive power thus given to the Dominion parliament by the combined effects of section 91 and 92 of the British North America Act to make laws in relation to matters coming within the class of ' railways, canals, telegraphs, and other works and undertak- ings connecting the province with any other or others of the provinces, or extending beyond the limits of the province,' etc., extends to regulat- ing the contracts and business in the different provinces of such companies. No. 15 of section 91, which was in question in Tennant V. The Union Bank, [1894] A.C. 31, specifically gives power to make laws in relation to all matters coming within the subject of banking, which obviously includes the business carried on by banks. can cont and when not. 504 Legislative Power in Canada. Prop. 44 But as the judgment of the Judicial Committee in that case shows, the learned judge omitted to draw the necessary distinction that the power of the Dominion parliament to regulate in the different provinces the contracts and other business of a cor- poration depends, not upon its power to incorporate Dominion companics to do business throughout the Dominion, rlfts'^'^hut upon whether such power to regulate their busi- ness comes or does not come within one of the enu- merated classes of section gi. As the judgment shows, the power to incorporate companies to do business throughout the Dominion belongs to the Dominion under their general residuary power of legislation, inasmuch as the only companies which the provincial legislature can incorporate are those with provincial objects, under No 11 of section 92.'- Thus the Dominion parliament had power to incorporate insurance companies authorized to Citizens Ins. transact their business throughout the Dominion, Co. V. ^ Parsons. byj; ^^g regulation of the insurance business carried on by such a company in any given province is not committed to Parliament by any of the enumerated classes of section 91, and their lordships held that such legislation did not come within what is meant by the regulation of trade and commerce in No. 2 of section 91. In such cases as the decisions in Citizens Insurance Co. v. Parsons,- and Colonial Building Association v. The Attorney-General of Quebec,"^ cited in the notes to Proposition 55, show, contracts made in a particular province are subject to the laws of that particular province, though 'See 7 App. Cas. at pp. 116-7, i Cart, at pp. 282-3. -'^s to what are companies with provincial objects, see the notes to Proposition 55. *7 App. Cas. 96, I Cart. 265, {1881), 39 App. Cas, 157, 3 Cart. 118, (1883). National Scope of Dominion Laws. 5^5 made by a company operating under a Dominion Prop. 44 charter, even though statutory. As Mr. Dickey says in his report as Minister of Justice, of March 12th, i8g6, recommending the disallowance of a certain Manitoba statute requiring Dominion and other corporations " duly authorized to carry out or effect any of the purposes or objects to which the legislative authority of the legislature of Recent Manitoba extends " to obtain a license from the pro- Mr. Dickey,. . , J f. . . Minister of vmcial Lieutenant-Governor before carrymg on its Justice, on . . f. , the subject. business in the province,^ — the recent decisions of the Privy Council in Tennant v. The Union Bank of Canada,- and Attorney-General of Ontario v. Attorney-General of Canada,^ show "that the legis- lative powers of the parliament of Canada depend- ing upon section gi* may be fully exercised, although with the effect of modifying civil rights in the province ; also that the Dominion parliament, in legislating with regard to a subject enumerated in section 91, has power to enact ancillary provisions, relating to the enumerated subjects, and affecting rights, which but for the enactment of such provisions by Parliament would have been within the legitimate range of provincial legislation."^ And so In re Canadian Pacific R. W. Co. and ^Hodgins' Provincial Legislation, 2nd ed. at pp. 1009-10. 2[i894]A.C. 31. 3[i894]A.C. 1 89. *That is upon the enumerated classes of section 91, to which the Minister would seem to be referring. See, however, supra pp. 435-8. ^See Proposition 37 and the notes thereto, especially at pp. 431-2 ; also Proposition 46 and the notes thereto. The question of the right of provincial legislatures to require foreign corporations to take out licenses before carrying on business is of course a different one from that under discussion here, namely, under what laws their business must be carried on, whether Dominion or provincial, — and will be found discussed in the notes to Proposition 55, infra. :5o6 Legislative Power in Canada. Prop. 44 County and Township of York,^ Rose, J., says in reference to certain provisions of the Dominion Railway Act, 1888, which empowered the Railway Committee of the Privy Council to make orders for the necessary protection of railway crossings, and to ap- portion the costs thereof between the company, " and any person interested therein," which the Commit- tee had interpreted to include municipalities : — " It Parliament must bc bomc in mind that when the parliament theDomin- of Canada is legislating respecting any subject ion as a whole. Within its exclusive legislative authority, its juris- diction and powers cannot be affected, limited, or controlled by any provincial legislation ; it deals with the Dominion as a whole, irrespective of any territorial divisions, municipal or otherwise; There- fore, if a provincial legislature sees fit to create a municipal corporation and to vest in such corpor- ation highways or lands, such legislation manifestly cannot prevent the parliament of Canada from dealing with such lands so vested in such corpor- ation, and the corporation in which they are vested, in the same way and manner as if such lands had been in the hands of private citizens," And a curious instance of the way in which the legislative scope open to the provinces may depend upon Dominion legislation is suggested by a passage in the judgment of Gwynne, J,, in Lynch v. The Canada North-West Land Co.,- R.S.C., c. 127, sec- 127 O.K. 559, at p. 569, (1S96). ^19 S.C.R. at p. 223, (1S91). Cf. per Dubuc, J., in Schultz z: City of Winnipeg, 6 M.R. at p. 45. And as to legislative power as to interest, and No. 19 of section 91 of the British North America Act generally, see supra pp. 388 90. In a report as Minister of Justice on some (Quebec Acts, on February 12th, 1894, (Hodgins' Provincial Legislation, 2nd ed., p. 461), Sir J.Thompson says : — " The provincial legislature has, of course, no power to authorize any Act which has been constituted an offence by Parliament." National Scope of Dominion Laws. 507 tion I, enacts that : — " Except as otherwise provided Prop. 44 by this or by any other rVct of the parhament of ^ Canada any person may stipulate for, allow, and exact, on any contract or agreement whatsoever, any rate of interest or discount which is agreed upon "; and, accordingly, at the place referred to. Provincial scope may Gwynne, J., says : — " The provincial legislatures can depend on undoubtedly pass an Act authorizing the issue by'^^. the provincial government of debentures payable with any rate of interest that may be agreed upon between the government and its creditors or persons advancing money to the government upon the security of such debentures, for such an Act would be in the nature of a contract or legislative affirmation of a contract, and any rate of interest may be made payable by contract inter partes.'' may ement ion In the course of the argument before the Privy Provinces " -^ may Council in the recent Liquor Prohibition Appeal, ippp'.^' i r r ' JJomin 1895,^ Lord Herschell remarks that in cases where '^"'' Parliament has legislated under its general power of legislation, as distinguished from the enumerated powers," there maybe nothing to prevent a province supplementing its legislation by legislation in pari materia to meet the special wants of that particular locality. He says : — " Supposing that the Dominion parliament thought that certain regulations were necessary for the peace, order, and good govern- ment of Canada, and supposing that in a particular province a state of things existed which rendered it unsafe for the public that regulations so little stringent should exist, that is to say, that it would * Printed transcript from Marten & Meredith's notes at pp. 165-7. See p. 398, n. i, supra. ^See pp. 437-8, supra. 5o8 Legislative Power in Canada. Prop. 44 be necessary that some further and more stringent regulations should be in force if peace was to be maintained there, then it does not follow that because the parliament of Canada considered that for the Dominion generally you must at least do- this, that the provincial legislature could not, as a And provide merely local matter where the locality needed some- thus lor . ... special wants thing much more drastic, so legislate. 1 do not see of special . 111 1 i ■ localities, why not. It is a merely local matter. They do it for their locality, and it affects it only. It may be the legislature in question think it proper, not for the whole Dominion, but for their locality; and what is the inconsistency between these two acts of legislation? . . . Take sanitation, for example. Supposing that the Dominion parliament had, with a view to the health of the whole Dominion, passed certain regulations, and supposing in a particular province a particular disease was raging which rendered it necessary for the safety of all those within the province that much more stringent regu- lations as to the inhabitants of the houses should come into force, why should not that be considered sirFarrer a mcrcly local matter ? If it is so, it is intended to Herschell. ■' be dealt with, and you limit your regulation to the locality; and why is that inconsistent with legisla- tion which is^ on the same lines as that which is in force in the Dominion at large ? . . . One cannot help having certain doubts as to whether the parliament of Canada could legislate as regards the sanitary arrangements of houses in a particular town in a province under this general power for the peace, order, and good government of Canada, which must mean Canada at large, in general ... It is difficult to suppose that the parliament of Canada ^Probably this should read for " if the legislation is," or words to that effect. National Scope of Dominion Laws. 509 could legislate for what may be a temporary measure prop. 44 required to meet a local exigency at a particular time, in a particular town in a province, and if the parliament of Canada cannot legislate, it is very difficult to suppose that the provincial parliament cannot, and that there is no power of legislation about it at all, because all legislative power was intended to be in one or other of the provinces."^ ^See Proposition 51 and the notes thereto. 510 Legislative Power in Canada. PROPOSITION 45. 45. The Dominion Parliament can, in matters within its sphere, impose duties upon any subjects of the Dominion, whether they be officials of Provincial Courts,^ other officials, or private citizens; and there is nothing in the British North America Act to raise a doubt about the power of the Dominion Parliament to impose new duties upon the existing Provincial Courts, or to give them new powers, as to matters which do not come within the subjects assigned exclusively to the legislatures of the Provinces, [or to deprive them of jurisdiction over such matters]; and so, also, it would appear that in matters within their sphere Pro- vincial Legislatures can impose duties upon Dominion officials in certain cases. The broad general words of the first clause of the above Proposition are derived from those of Dorion, lAs to what are ' Provincial Courts,' see letter of Mr. Alphens Todd, in iS C.L.J, at p. i8i, commenting on the Thrasher Case, I B.C. (Irving) 156 ; also a series of articles on Provincial Jurisdiction over Civil Procedure, in 2 C.L.T., asp. at pp. 366-9, 410, and 456, et seq. Dominion Power over Provincial Courts. 511 C.J., in the case of Bruneau v. Massue,^ as quoted Prop. 45 with approval by Meredith, C.J., in Valin v. Langlois," where he speaks of the right of the Dominion to impose the burden of trying contested elections upon provincial Courts, and the further authorities to be cited seem to render them unques- tionable. In the report of the case of Bruneau v. Massue, in 23 L.C.J., however, the precise passage quoted by Meredith, C.J., does not appear, but Dorion,C.J., is represented assa3'ing: — "The judges Dominion r ^ r- • r^ ■ • i i authority or the Superior Court as citizens are bound to per- over judges . . of provincial form all the duties which are imposed upon them courts, by either the Dominion or the local legislature. If these duties were either incompatible or too onerous to be properly performed, provided neither legislature had exceeded the limits of its legislative power, it would become the duty of the local and Dominion governments to suggest a remedy by some practical solution of the difficulty, but it does not devolve upon the Courts of Justice to assume the authorit}: of declaring unconstitutional a law on account of the real or supposed inconveniences which ma\- result in carrying out its provisions." The second clause of the leading Proposition with the exception of the concluding words in brackets is from the judgment of the Privy Council in the above case of Valine. Langlois,'' where their lord- ^23 L.C.J, at p. 60, (1S7S). See also, in connection with this Pro- position, an article on Federal License Commissioners as affected by the Municipal Act of Ontario, 3 C L.T. 319. Also some remarks in II L.N. at pp. 349-50, on the question of the expediency of vesting Dominion or federal judicial powers in provincial Courts. 25 O.L.R. at p. 16, I Cart, at p. 231, (1S79). 35 App. Cas. at p. 120, I Cart, at p. 164, (1S79). As to this case reference may also be made to Todd's Parliamentary Government in the British Colonies, 2nd ed., at p. 542, et seq. As to the provincial appointment of election judges for the trial of contested municipal elections, see Crowe v. McCurdy, 18 N.S. 301, (1SS5). 512 Legislative Power in Canada. Dominion may give new juris- diction to ^''QP- "^^ ships refused leave to appeal from the judgment of the Supreme Court of Canada, wherein the judges had held unanimously that the Dominion Con- troverted Elections Act, 1874, ■^'j Vict., c. 10, D., which conferred upon the provincial Courts juris- diction with respect to controverted elections to the Dominion House of Commons was valid, ^ and clearly recognized, (in opposition to the view expres- cTnJ^'''' ^^^ ^y Wilson, C.J., in Re Niagara Election Case," but in accordance with that expressed by Ritchie, C.J., and Fournier, Henry, and Taschereau, JJ., in the Court below), "^ the right of the Dominion parliament to commit the exercise of a new juris- diction to provincial Courts as to matters which do not come within the classes of subjects assigned exclusively to the legislatures of the provinces.* As Ritchie, C.J., says," were it otherwise, " in no case could the Dominion parliament invoke the powers of these Courts to carry out their enactments ^For other prior decisions in reference to the same matter, see supra p. 349, n. I. ^29 C. P. 261, at pp. 29.5-4, (1878). ^See 3 S.C.R. at pp. i8, 20-2, 38, 50, 64, 74, i Cart, at pp. 174, 175-7, 189, 200, 207. *See 5 App. Cas. at p. 119, i Cart, at p. 163. At the same time they say, referring to the language of the Act in question : — " Words could not be more plain than those to create this as a new Court of record, and not the old Court with some superadded jurisdiction to be exercised as if it had been part of its old jurisdiction": 5 App. Cas. at p. 121, I Cart, at p. 165. There is a point of distinction here between our constitution and that of the United States, where Con- gress cannot vest jurisdiction in St.ite Courts, nor the State legislatures give jurisdiction to the Federal Courts. Wilson, J., in the Niagara Election Case, 29 C. P. at pp. 293-4, and Meredith, J., in Valin v. Langlnis, 5 Q.L.R. at p. ii, i Cart, at p. 227, took the view that our constitution was analogous to the American in this respect, and that the Federal parliament could not exercise any rights whatever over provincial Courts. But see per Fournier, J., in Valin v. Langlois, 3 S.C.R. at p. 55, I Cart, at p. 193. ^^3 S.C.R. at pp. 20-2, I Cart, at pp. I75-7- Dominion Power over Provincial Courts. 513 in the manner they having the legislative right to do Prop. 45 so, ma}^ think it just and expedient to prescribe. , • The statutes of Parliament, from its first session to the last, show that such an idea has never been entertained by those who took the most active part in the establishment of Confederation," And he goes on to cite a number of instances, amongst others the Railway Act of 1868, 31 Vict., c. 68, s. g. Examples 1111 r • • 1 • of this. s-s. 15, whereby the duty 01 appomtmg arbitrators is imposed upon the judges of one of the Superior Courts in the province in which the place giving rise to the disagreement is situated ; and the Insolvency Acts of i86g and 1870, whereby, in Nova Scotia, an entirely new jurisdiction was given in insolvency to the probate Courts, or judges of probate, which they never in any way before possessed.^ In the same part of his judgment, Ritchie, C.J., b.n.a. Act, says, referring to section 129 of the British North ^■"^' America Act : — " They," (sc, the provincial Courts), "are the Courts which were the established Courts of the respective provinces before Confederation, existed at Confederation, and were continued with all laws in force, 'as if the Union had not been made,' by the I2gth section of the British North America Act, and subject, as therein expressly provided, ' to be repealed, abolished or altered by the parliament of Canada, or ^And see per Henry, J., S.C., 3 S.C.K. at u. 69, i Cart, at p. 203, and the words of Johnson, J., in Ryan z*. Devhn, 20 L.C.J, at pp. 83-4, (1875), may be referred to. In the recent British CoUimbia case of Piel Ke-ark-an v. Reginam, 2 B.C. (Hunter) at p. 76, (1891), Drake, J., observes, that although the legislature of the Dominion has power to impose on the judges additional duties, "these additional duties must be performed within the limits of the judicial districts to which the judges are appointed ; any other contention would interfere witli the power of appointment of the judges vested in the Governor-General by section 96 of the British North America Act " ; but it is subinitted that the Dominion parliament by an Act assented to by the Governor- General could certainly e.xercise any powers vested in the latter. See, supra, at pp. 90-2, 176, ct seq., 193. 32 514 Legislative Power in Canada. Prop. 45 by the legislature of the respective province, according to the authority of the Parliament, or of that legisla- ture under this Act.' They are the Queen's Courts bound to take cognizance of and execute all laws whether enacted by the Dominion parliament or the local legislatures, provided always such laws are within the scope of their respective legislative powers." And others of the judges of the Supreme Court refer in this case in like manner to section 129.^ Dominion In Ex pavtc Perkius," Allen, C.J., delivering the selection . ^ of provincial judgment 01 the Supreme Court or New Brunswick, officers to .... enforceits obscrves that: — "In matters within the power of the Dominion parliament, it has power to declare by what Courts or officers its laws shall be enforced," referring to Valin v. Langlois. And so it was held in that case that section 103 of the Canada Temper- ance Act, which purported to give Parish Court Commissioners in New Brunswick, (officials ap- pointed under an Act of the provincial legislature with civil jurisdiction), power to adjudicate in prose- cutions for violations of that Act, was intra vires. And this decision was followed in the subsequent New Brunswick case of Ex parte Porter,'^ where it was held that the Dominion parliament can empower magistrates, appointed by the provincial government, to hear informations under the Summary Convictions Act for violations of Dominion statutes, as per R.S.C., c. 178, s. 10. In which case Allen, C.J., (at pp. 592-3), with whom Wetmore and King, JJ., concurred, seems to indicate the view that though the Dominion parliament had the right to make use ^See further as to this section, Proposition 30 and the notes thereto. 224 N.B. at p. 70, (1SS4). 328 N.B. 587, (1889). . Dominion Power over Provincial Courts. 515 of provincial magistrates for the purpose of enforc- Prop. 45 ing the law, where the provincial legislature, as in the case before him, had not authorized the consti- tution of any Court to try such offences, yet that if the provincial legislature had established such a Court, the Dominion parliament would have had b.n.a. Act, either to make use of that Court or establish a Do- minion Court under section loi of the British North America Act, but could not select some other pro- vincial Court in lieu of the one so established by the provincial legislature.^ In Attorney-General of Canada v. Flint," the Supreme Court of Canada held that section 156 of the Inland Revenue Act, 31 Vict., c. 8, which enacts that all penalties and forfeitures incurred under that Dominion Act, or any other law relatmg to excise, may be fm^eriar' prosecuted, sued for, and recovered in the Court ofaitj^Coun. Vice-Admiralty having jurisdiction in that province of Canada where the cause of prosecution arises, is on the principles laid down in Valin v. Langlois,^ ^As to section lOi of the British North America Act, the opinion is expressed in an article on the Constitution of Canada, in 1 1 C.L. T. at p. 147, that by ' the laws of Canada ' for the better administration of which Parliament may under it establish additional Courts, must be understood not merely laws passed by that Parliament, but " laws in force in Canada whether originating at common law, in the Imperial or Canadian parliaments, or provincial legislatures." The writer cites in support the remarks of the Judicial Committee on the motion for leave to appeal in McLaren v. Caldwell, as reported 3 C. L.T. 343. He seems, however, to have misread the remarks of the Board which have reference to the jurisdiction of the Supreme Court of Canada as a general Court of Appeal for Canada, established under the prior part of section loi, rather than to that part of the section relating to the establishment of any additional Courts for the better administration of the laws of Canada. And see also as to this section an article on Provincial Juris- diction over Civil Procedure, in 2 C.L.T. at p. 513 ; also Farwell v. The Queen, 14 S.C. R. 392, where it was held that under 't the Don in- ion parliament has power to give jurisdiction to the Exchequer Court inactions where the Crown in right of the Dominion is plaintiff or defendant : The Picton, 4 S.C.R. 648, i Cart. 557, (1879) ; Forristal V. McDonald, Cas. Sup. Ct. Dig. 406, 4 Cart, at p. 441, n., (18S2) ; Clarkson v. Ryan, 17 SCR. at pp. 253-4, 4 Cart, at p. 440, (1S90). 2i6 S.C.R. App. at p. 707, 4 Cart. 288, (1884). *5 App. Cas. 115, 3 S.C.R. 1, i Cart. 158, 167. 5i6 Legislative Power in Canada. Prop. 45 intra vires of the Dominion parliament, and that the fact that the Vice-Admiralty Court at Halifax was an Imperial Court, established under Imperial authority, made no difference, although Strong and Henry, J J., express the view that the Court of Vice-Admiralty might, if it saw fit, decline the jurisdiction conferred upon it by the legislature of the Dominion. The Court appealed from, the Supreme Court of Nova Scotia,^ had held the other way on the ground that the Imperial legislature " never contemplated, in clothing Parliament with power to make laws for the government of Canada, Dominion that it should pass an Act conferring a new juris- imperiai dictiou upou the British Vice-Admiralty Court, and Vice-Admir- alty Court, require that Court without further Imperial legis- lation to adjudicate upon such a matter as this collection of a penalt}-." Weatherbe, J., delivering the judgment of theCourt, observes, (at p. 460) : — " I suppose if the province were to assign the recovery of a penalty for breach of one of its own laws on a subject within its exclusive power to the Vice-Admiralty Court, that would be the same question that is now before us."" It also appears from this judgment that the judge of the Vice- Admiralty Court at Halifax, Sir W. Young, (who held that he had jurisdiction, and appears, indeed, to have thought that the Imperial Act governing the practice and proceedings of his Court itself required him to adjudicate on breaches of all revenue laws in force in the Dominion), in giving judgment said: — " Much was said at the argument of the power of the Dominion legislature over this as an Imperial Court, and no doubt if a Dominion Act were to I3R. &G. 453,(1882). "See Proposition 17 and the notes thereto. Dominion Power over Vice-Admiralty Court. 517 attempt to ^ive this Court a jurisdiction analogous Prop. 45 to that of Admiralty Courts in the United States, and exceeding that of the High Court of Admiralty in England, I would have no difficulty in hol'ding that such an Act was ultra vires ; but it is very certain that no such Act will ever pass." But Weatherbe, J., says as to this,^ that his Court considered that this admission, if good law, was fatal to allowing the jurisdiction of the Vice-Admiralty Court in the case before them, which must be allowed, if at all, " not on account of any power it derived by virtue of its being an Imperial Court, and thereby having juris- diction over the general subject of inland revenue," but "on the broad ground that the parliament of the Dominion is not to be limited in organizing, Dominicn 1 • 1 • ■ Ml 1 r selection of adoptmg, or selectmg its tribunal or procedure tor its own ^ . ^ ^ . . ^ . tribunals. the trial of any matter over which it has exclusive right to legislate, that its power is not even to be confined to creating new Courts, or clothing estab- lished provincial tribunals with any authority it sees fit, but that it may require any Imperial Court having jurisdiction of any kind in this country — and even in one province of the Dominion — to exercise jurisdiction of another kind altogether, and adopt a new procedure, and hear evidence which in no other case would be heard, and even to impose a duty on the war and naval authorities on this station requiring, for instance, the Courts, — Courts Martial, — which have been erected by the Imperial power for particular purposes, to try offences against regulations of the service, — to try questions of Cana- dian militia, revenue, or shipping." The words of our leading Proposition as to depriving provincial Courts of jurisdiction are sug- 13 R. & G. at p. 461. 5i8 Legislative Power in Canada. Prop. 45 guested by the passage in the judgment of Tasche- reau, J., in this case of Vahn v. Langlois,^ where he says : — " I think that to decide that the federal ParHament can never or in any way add to or take from the jurisdiction of the provincial Courts would be curtailing its powers to an extent perhaps not thought of by the appellant, and that it would destroy, in a very large measure, the rights and privileges which are given to the federal power by sections gi and loi of the Act. I take, for one Dominion iustancc, the criminal law. The constitution, main- deprive pro- tenance, and organization of provincial Courts of vincial ..,..,.. . . , ... Courts of crnnmal jurisdiction, is given to the provincial jurisdiction; , . , 111 ■, • legislatures, as well as the constitution, maintenance, and organization of Courts of civil jurisdiction, yet cannot Parliament in virtue of section loi of the Act- create new Courts of criminal jurisdiction, and enact that all crimes, all offences, shall be tried exclusively before these new Courts ? I take this to be beyond controversy." Later on,^ passing to civil laws as distinguished from criminal laws, the learned judge says: — "I see in the British North America Act many instances where Parliament can Andestab- alter the jurisdiction of the provincial civil Courts. Couns^*^'^ For instance, I am of opinion that Parliament can take away from the provincial Courts all juris- diction over bankruptcy and insolvency, and give that jurisdiction to Bankruptcy Courts, estab- lished by such Parliament. I also think it clear that Parliament can say, for instance, that all judicial proceedings on promissory notes and bills of exchange shall be taken before the Exchequer • 13 S C.R. at p. 74, I Cart, at p. 207. "See as to this section, supra p. 515, n. i. 33 S.C.R. at p. 76, I Cart, at p. 208. Dominion Power over Provincial Courts. 519 Court or before any other Federal Court. ^ This Prop. 45 would be certainly interfering with the jurisdiction of provincial Courts. But 1 hold that it has the power to do so quoad all matters within its author- ity. So it has the power, and it has done so by the Public Works Acts, to enact that the moneys b.n.a. Act, due on expropriations by the Crown shall be^'^^' °'''^' deposited in the provincial Courts, and to order and regulate how these Courts are to distribute such moneys. I read sub-section 14 of section 92 of the British North America Act as having no bearing on the jurisdiction of the Courts in the matters not left to the provincial legislature."^ And in Re North Perth, Hessint^. Lloyd, ^ it was held by theOntarioChancery Divisional Court, over-ruling Re Simmons & Dalton,* that, whereas in the Elec- Dominion toral Franchise Act, the Dominion parliament had officers, committed the whole matter of the registration of parliamentary voters (one essentially within its own power and control) to a body of public functionaries called revising officers, appointed by the Governor- in-Council, while there was nothing in the Act to give any indication of an intention that provincial Courts were to have any jurisdiction, power, or control over any of the proceedings under the Act, or the revising officer, there was no jurisdiction in the High Court of Justice to control by prohibition the revising officer. As Meredith, J., says, (at P- 546): — "This provincial Court is asked to exer- cise a controlling jurisdiction over a purely federal ^But see supra at pp. 441-2. "See supra p. 440. »2i O.K. 538, (1891). *I20.R. 505, (1886). 520 Legislative Power in Canada. Prop. 45 Court established, under the authority of the British North America Act, 1867, for the better adminis- tration of the laws of Canada pertaining solely to the representation of the people in the House of Commons, a matter entirel}' beyond any provincial right or control, a jurisdiction neither expressly nor impliedly conferred, but rather by implication excluded"; while Boyd, C, (at p. 542), takes occasion to observe that the right of voting is not Provincial an Ordinary civil right ; it is historically and trulv Courts can- . .... , " not control a statutory privilege of a political nature, and the Dominion . , - . - . tribunals, right of voting for the Dominion House of Commons "falls within the categor}', not of civil rights in the province, but of electoral rights in Canada." And the words of Killam, J., in Canadian Pacific R. W. Co. V. Northern Pacific, etc., R.W. Co.,^ as to the Railway Committee of the Privy Council as the tribunal empowered to decide certain matters by the general Railway Act of Canada, 51 Vict., c. 29, D., may be referred to : — " The Railway Com- mittee may be considered by some not to be a satisfactory tribunal. If Parliament should so determine, probably another will be substituted, but in the meantime it is the one which must determine such question so far as the Dominion parliament could bestow jurisdiction."- ^5 M.R. at p. 313, (18SS). The subject of Provincial Jurisdiction over Civil Procedure is discussed at length in a series of able articles in Vol. 2 of the CiDtadian Law Times. At p. 367, the writer says : — "Wherever those Couris,' (\jy., the provincial Courts), "are utilized for the purpose of enforcing rights respecting any of the subjects within the legislative jurisdiction of the Dominion, the litigant must in the absence of a special forum and a special mode of procedure devised by the parliament of Canada conform to the practice of the provincial Courts." -See supra pp. 441-6. In the same way in the matter of a pro- vincial Act of Quebec which amended the law respecting railways in that province by empowering the Lieutenant-Governor in Council upon the report of the Railway Committee of the Executive Council to cancel the charter of any railway company incorporated under the Dominion Power over Municipalities. 521 The cases of Hart v. The Corporation of the Prop. 45 County of Missisquoi,^ Cooey y. The Municipahty of the County of Brome," and The Township of Comp- ton V. Simoneau,^ suggest the possibihty of powers and functions being conferred upon municipal cor- porations, either by the legislature of the late prov- ince of Canada, or by the Dominion parliament, in Power over respect to matters not of provincial competency corpor- under the British North America Act. In the case of Cooey v. The Municipality of the County of Brome,* Dunkin, J,, observes :-^" Each provincial legislature, alone, can create municipalities, properly so called, establish their functionaries, and assign them their proper duties and their powers, but always within the limits of its own. Whether or not it can render them incapable of other duties and powers, to be delegated by Parliament, is a question that need not here be considered. . . And as to all powers, not of provincial competency, so to speak, laws of the province in certain cases, Sir John Thompson, as Minister of Justice, in his report of March 24th, 1891, (liodgins' Trovincial Legislation, 2nd ed. at p. 439), observes :— " It may be objectionable, as it transfers to the Railway Committee of the Executive Council of the Province powers, functions, and responsibilities which are gener- ally reposed by legislation in legal tribunals, and does not establish the safeguards which legal procedure possesses, but it seems clear that a legislature may invest other bodies than the Courts with such powers and functions without exceeding its jurisdiction." It will be observed that the Minister is here speaking of the power of the provincial legis- lature to create a special tribunal for the determination of a special matter, and not of the power to confer general jurisdiction. As to the latter, and as to the powers of the Governor-General in respect to the appointment of judges under section 95, see Proposition 8 and the notes thereto, especially at p. 136, ei seq.; also see supra p. 457, n. 2, in connection with which cf. Ross v. The Canada AgricLdtural Insurance Co., 5 L.N. 22, (1882). 13 Q.L.R. 170, 2 Cart. 382, (1876). 221 L.C.J. 182, 2 Cart. 385, (1S72). 3l '14 L.N. 347, (1S91). See these cases also referred to sttpra pp. 368-70. ^ ^ ^ *2i L.C.J. at p. 186, 2 Cart, at p. 38S, (1877). Cf. Clement's Law of the Canadian Constitution at p. 444. 522 Legislative Power in Canada. Dominion use of municipal machinery Prop. 45 which they may hold under antecedent delegation of the unlimited legislature of the late province of Can- ada, these can be resumed or altered by Parliament alone. "^ It is submitted that provincial legislatures could no more interfere in the former case than in the latter. And in In re Prohibitory Liquor Laws," Sedgewick, J., says : -^" Regulations made by Do- minion law as well as by local law must be enforced by some sort of machinery. Parliament, I think, ma}^ use existing municipal machinery for this pur- pose ; may in respect to those subjects committed to it, such, e.g., as weights and measures, the fisheries inspection, navigation, etc., give to municipal coun- cils power to make by-laws."^ The concluding words of the leading proposition under discussion are supported by the decision of the Ontario Court of Queen's Bench in hire Wilsons. McGuire.* In that case it appeared that an Ontario statute had provided that two or more counties might be grouped together by the Lieutenant-Gov- ernor for judicial purposes therein specified, and conferred on the County Court judges of grouped counties the same authority to try suits in each of the grouped counties as they possessed in their own counties respectively. There had been prior to Confederation, and since, in each county in Ontario, Division Courts for the trial of small causes, and these Provincial control of Dominion judges. ^ As to this latter point see Proposition 30 and the notes thereto. 224 S.C.R. at p. 247, (1S85). ^And that Parliament may in certain cases exercise legislative power over municipal corporations, see supra p. 446. *2 O.R. 118, 2 Cart. 665, (1883). In Bdanger v. Caron, 5 Q.L.R. at pp. 31-2, Stuart, J., asks: — " I( the Dominion parliament can create a new jurisdiction in a provincial Court, what will prevent a provincial legislature from imposing a jurisdiction on a Dominion Court? The prohibition to make certain laws attaching to all these legislatures springs from the same source, is couched in the same language, and is mutual and reciprocal." See as to this case, supra p. 349, n. i. Provincial Power over Dominion Judges, 523 had always been presided over b}^ County Court Prop. 45 judges, who since Confederation are appointed by the Governor-General under section 96 of the British North America Act ; and on the authority of the above Ontario Act, the County judge of the County of Lambton had assumed to exercise jurisdiction in the Division Court of the County of Middlesex. The Court of Queen's Bench held that the provincial legislature having complete jurisdiction over the Div- Provincial • • f-^ , . . control of ision Courts could appoint the officers to preside over Dominion them, and that the Ontario enactment was valid, andHagarty, C.J.O., observes^:— " I do not feel that in the case before me any difficulty is created by the fact of the judge of Lambton being an officer ap- pointed by the Dominion expressly for that county. It was urged that he could not perform judicial duties beyond its limits. It is sufficient here to say that he has in fact performed them under the auth- ority of the provincial legislature, and that the latter having complete power over the Division Courts, have designated him, among other named function- aries, to preside in the Court, and that he so pre- sided." In Gibson v. McDonald,- O'Connor, J., held that a provincial legislature cannot " clothe the judge of a County Court, who has been duly appointed for that county, with the powers and authority of a judge of the County Court in other counties, which are not included in his commission."^ But ^2 O.K. at pp. 124-5, 2 Cart, at p. 672. See this case also referred to, supra pp. 136-7. 27 O.R. at p. 419, 3 Cart, at p. 328, (18S5). 'From these two last-mentioned cases of In re Wilson v. jMcCkiire, and Gibson v. McDonald, Mr. Clement, in his work on the Law of the Canadian Constitution, (p. 233), deduces the proposition that : — "A provincial government can impose upon the individual who is County Court judge, duties, (falling of course within the range of matters of 5^4 Legislative Power in Canada. Prop. 45 in the recent case of In re County Courts of British Columbia,^ the Supreme Court of Canada decided that the legislature of British Columbia had power, under No. 14 of section 92 of the British North America Act, whereby provincial legislatures are empowered to make laws regarding the adminis- tration of justice in the province, including the con- stitution, maintenance, and organization of provincial Courts both of civil and criminal jurisdiction, and B.N.A. Act, including procedure in civil matters in those Courts, "to enact, as they had done, that a County Court judge appointed for one district, might, under certain circumstances in the Act mentioned, act as judge in another district, and also that until a County Court judge of Kootenay had been appointed, the judge of the County Court of Yale should act as such, and have while so acting, whether sitting in the County Court district of Kootenay or not, "all the powers Provincial control of Dominion judges. provincial cognizance), other than those covered by his commission from the Governor-General, care being necessary, perhaps, in defining that those super- added duties are when exercisable otherwise than in his own county, — to be exercised by him, not qua County Court judge, but qua provincial officer." The subject is also discussed in 3 C.L.T. at pp. 20, 81, 145, where referring to the Ontario enactment, R.S.O., 18S7, c. 47, s. 19, under which County Court judges act as judges of the Division Courts, it is said, (at p. 20): — "These judges act under a statutory commission, just as the Superior Court judges act in election cases, under the statutory commission of the Con- troverted Election Act: see Valin v. Langlois, 3 S.C.R. i." In his report to the Governor-General, of November 2nd, 1895, (Hodgins' Trovincial Legislation, 2nd ed. at p. 244, b.), referring to section 185 of the Ontario Judicature Act, 1895, 58 Vict., c. 12, Sir C. II. Tupper, as Minister of Justice, says:— "The practice has hitheito been, where a provincial legislature has constituted the office of local judge of a Superior Court, and declares that the County Court judges shall exercise the jurisdiction conferred upon such local judges, for your Excellency to issue commissions to such County Court judges, appointing them to the office which under the provincial statute they are qualified to fill. The section in question appears to be merely a re-enactment of a previous one, and if the practice formerly existing be continued, there could be no doubt as to the authority of judges so appointed to exercise the jurisdiction which is intended to be con- ferred." See, also, «ra at pp. 4,35-6. ^Cf. Keeferz'. Todd, 2 B C, (Irving), at p. 249 (1885), a case referred to, also, si{/>ra pp. 446-7. Conflict of Powers. 543 Fisher, J., in The Queen v. The Mayor of prop. 48 Fredericton,^ namely: — "Whether the exclusive power of Parliament to regulate trade and com- merce, and the exclusive power of the local legis- lature as to shop, tavern, and other licenses, being concurrent, one can constitutionally trench upon the other, and whether in working out any given authority it must not be so limited and restricted as not to interfere with any other." AndRusseiiv. 1 • • 1 , • • ■ -111 -ii ^i • The Queen. their judgment IS quite irreconcilable with the view nevertheless expressed by Henry, J., in the subse- quent case of Suite v. The Corporation of Three Rivers,- that the right to make laws for the peace, order, and good government of Canada does not include power to interfere with local legislation as to licenses for shops, taverns, etc. Henry, J., indeed, seems to imply that the Privy Council were led to the conclusion reached by them in Russell v. The Queen by virtual admission of counsel on the argu- ment.^ But it is clear that in Russell v. The Oueen we have the deliberate conclusion of their lordships, for in Hodge v. The Queen* they expressly say that they " do not intend to vary or depart from the reasons expressed for their judgment in that case." However, Ritchie, C.J., reminds us in Valin v. Langlois,'' that the power of the local legislatures was, 13 p. &B. at p. 169, (1S79). -II S.C.R. at pp. 37-40, 4 Cart, at pp. 316-9, (1S85). 3See II S.C.R. at pp. 37-8, 4 Cart, at p. 317. And to the admis- sion in Russell t'. The Queen, see, also, Mr. S. II. Blake, Q.C., arguendo, before the Supreme Court of Canada in the Matter of the Dominion License Acts, 1883-4 : Dom. Sess. I'ap., 1885, No. 85, p. 232. And on the recent argument on The Liquor Prohibition Appeal, 1895, Lord Herschell said of it : — " We had a large admission made there :" printed report at p. 168, (see i/z/ra p. 398, n. i). *9 App. Cas. at p. 130, 3 Cart, at p. 160. ^3S.C.R. at p. 15, I Cart, at p. 172, (1S79). Cf. his language in 544 Legislative Power in Canada. Prop. 48 indeed, to be subject to the general and special legisla- tive powers of the Dominion parliament, but yet while the legislative rights of the local legislatures are in this sense subordinate to the right of the Dominion parliament, such latter right must be exercised, "so far as may be, consistently with the right of the local legislatures ; and, therefore, the Dominion parlia- ment would onlv have the right to interfere with Dominion property or civil rights in so far as such interference i!i?erf^"e^ may be necessary for the purpose of legislating with provin- . , i rr , 1 1 • i , • ciai powers generally and eriectually in relation to matters con- to extent r 1 1 1 !• r r-- i >ii necessary to hdcd to the parliament oi Canada. ^ exercise of Its own. jj^ ^i^g words of Ramsay, J., in Corporation of Three Rivers v. Suite,- citing in support like views expressed by Meredith, C.J., in Blouin i^.The Corpor- ation of Quebec'^ : — " Where a power is specially granted to one or other legislature, that power will not be nullified by the fact that, indirectly, it affects a special power granted to the other legislature." It is impossible, therefore, tonowaccept as accurate the conclusion arrived at by Spragge, C, in Lepro- hon V. City of Ottawa*, that : — " Acts of the provin- cial legislature which conflict with the powers con- ferred specifically or generally upon the general government are ultra vires'" ; so, on the other hand, Citizens Insurance Co. v. Parsons, 4 S.C.R. at p. 242, i Cart, at p. 292, (1880). 'Cf. supra p. 448, el seq. In this sense only can the words of Bur- ton, J. A., in Regina v. Hodge, 7 O. A.R. at p. 274, 3 Cart, at p. 179, (1882), that the ))rovincial legislatures are absolute and supreme ovor the subject-matters assigned to them, " without any possibility of inter- ference bj the Dominion legislature," be now accepted. -5 L.N. at p. 333, 2 Cart, at p. 2S7, (1882). 37 Q L.R. 18, 2 Cart. 368, (1880). *2 0.A.R. at pp. 524-5, I Cart, at pp. 594-5, (1878). *See Proposition 61 and the notes thereto, where Leprohon v. City of Ottawa is further referred to. Conflict of Powers. 545 Acts of the Dominion parliament or government Prop. 48 conflicting with powers conferred exclusively upon the provincial legislature would he ultra vires, — would be acts of usurpation. This must result from each being creatures of the one power; each deriving its authority from the one source. . . . There is, at the same time, an implied limitation upon every power conferred, whether conferred in terms or by implica- tion, that it must not encroach upon or interfere with the powers conferred elsewhere." ^ Rather, as shown by the authorities cited in the notes to this Propo- sition, and Proposition 61, provided Acts of the in same way T-v • • 1 • 1 1 • 1 provinces Dommion parliament and local legislatures are upon may inter- • 1 1 ... f"^''^ with subjects over which they respectively have jurisdic- Dominion tion, the fact that they may interfere prejudicially with each other does not make them in either case tdtra vires, but in the veto power of the Governor- General a check exists in the hands of the central government.- And, in fact, it may perhaps be ques- tioned how far the dictum of Patterson, J., in Smith v. The Merchants Bank," that we should, if possible, avoid a construction of a Dominion Act which would bring it into conflict with the law of the province, can now be accepted as sound, further than a proper application of the rule laid down in the Interpreta- tion Act may require, that every Act and every provision or enactment thereof shall receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment, according ^Cf. per Ritchie, C.J., in Attorney-General of Ontario -'. Mercer, 5 S.C.R. at p. 644, 3 Cart, at p. 33, (1881). -As to the Dominion veto power, see Proposition 10 and the notes thereto ; also the notes to Proposition 61. »8 O.A.R. atp. 28, (1883). 5 546 Legislative Power in Canada. Prop. 48 to its true meaning and spirit.^ It would not seem that in interpreting a Dominion Act, a Court of jus- tice can, consistently with the scheme of the Con- stitution, allow itself to be influenced in any way by any consideration of what laws the provincial legislat- ures may have enacted. M^.S.C, c. I, s. 7, s-s. 56. 547 PROPOSITION 49. 49. The principle of the 91st section of the British North America Act is to place within the legislative jurisdiction of the Dominion Parliament general subjects which may be dealt with by legislation, as distinguished from sub- jects of a local or private nature in the province.' The above Proposition is suggested by the judg-oomi ment of the Privy Council in L'Union St. Jacques subjictr'' de Montreal v. Belisle,- where they say : — " Their lordships observe that the scheme of distribution in that section, {sc, section gi of the British North America Act), is to mention various categories of general subjects which may be dealt with by legis- lation. There is no indication in any instance of anything being contemplated, except what may be properly described as general legislation ; such legislation as is well expressed by Mr. Justice Caron when he speaks of the general laws governing faillite, bankruptcy, and insolvency."^ But, though union ^As the Privy Council say in their recent judgment on The Liquor Prohibition Appeal, 1895, ['§96] A.C. at p. 359, all the matters enumerated in the sixteen heads of section 92 of the British North America Act are, " from a provincial point of view, of a local or private nature." And see Proposition 59 and the notes thereto. 2L.R. 6 P.C. at p. 36, I Cart, at p. 70, (1874). 'As to bankruptcy see tn/ra at p. 550, n. 2. In Leprohon ?'. The City of Ottawa, 40 U.C.R. at p. 508, l Cart, at p. 662, (1S77), Morrison, J., 54^ Legislative Power in Canada. Prop. 49 their lordships here seem to be using the expression ' general legislation ' principally by way of contrast to legislation relating to a particular association,^ such as the Act in question before them, the object of the leading Proposition is to point out that the subjects assigned to parliament by section 91 are matters of general quasi-national importance. ofcommon In the words of Lord Carnarvon in introducing import to all i-r^.,, it->--i • provinces, the Bill now the British North America Act, 1S67, in the House of Lords, quoted by Burton, J. A., in Hodge V. The Queen,- the real object of the Act " is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces, and at the same time to retain for each province so ample a measure of municipal liberty and self-government as will allow and compel them to exercise those local powers cites the words from the judgment of the Privy Council in L'Union St. Jacques de Montreal v. Belisle just quoted, and he draws the inference that we are to give the classes in section 91 a wide inter- pretation, as he says we are also those in section 92. Thus he says : — " The general rule in construing statutes is that where a general power is conferred any particular power is also conferred ; and so in the case of L'Union St. Jacques de Montreal v. Belisle . . ," (citing the above passage). But the decisions in Citizens Insurance Co. v. Parsons, 7 App. Cas. 96, i Cart. 265, (1881), The Queen zi. Robert- son, 6 S.C.R. 52, 2 Cart. 65, (1882), and the case in relation to the Ontario Act respecting assignments for the benefit of creditors, Attorney-General of Ontario ''. The Attorney-General for the Dominion of Canada, [1894] A.C. 189, show that we may easily err if we give the classes of subjects enumerated in section 91 too wide an inter- pretation with a view to including particular powers, or in order to accord with popular usage. See, infra, pp. 551-62. ^Tn the chapter on Private Bills in Mr. J. G. Bourinot's Parliament- ary Procedure and Practice, 2n(l ed. at p. 663, et seij., he discusses questions of legislative jurisdiction arising out of private bill legis- lation in Parliament, and chiefly in connection with the incorporation of companies. 27 O.A.R. at p. 273, 3 Cart, at p. 178. DoMiNiOxN Powers. 549 which they can exercise with great advantage to the Prop. 49 community."^ Thus criminal law is one of the subjects assigned criminal to the Dominion parhament, for, as observed by Harrison, C.J., in Regina v. Lawrence- :— " It is important that the law of a country as to crime and criminal procedure shall be uniform, so that the rights of all citizens shall be as much as possible equally respected, and the public wrongs of any citizen as much as possible equally punished."-^ ^Hans. 3rd Ser., Vol. 185, p. 563. To the Dominion parliament Z)/<:/a as to has been given "legislation upon the general classes of matters general ^^ affecting the Dominion of the four provinces": per Badgley, ]., in ^^njinion L'Union St. Jacques de Montreal v. Belisle, 20 L.C.J, at pp. 31-2, i powers. Cart, at p. 75, (1874) ; "the large and extensive subjects afi^ecting all the provinces": per Henry, J., in City of F"redericton v. The Queen, 3 S.C.R. at p. 552, 2 Cart, at p. 47, (1880) ; "subjects which from their nature affect the interest of the whole Dominion ": per Dorion, C.J., in Regina v Mohr, 7 Q.L.R. at p. 187, 2 Cart, at p. 262, (1881); "matters of general importance to the Dominion": per Begbie, C.J., in the Thrasher Case, i B.C. (Irving) at p. 183, (1882) ; "all properties, institutions, and powers that were essential to the good government of Canada": per Gray, J., S.C at p. 227; "all subjects which are of general public interest to the whole Dominion ": per Gwynne, J., in Queen v. Robertson, 6 S.C.R. at p. 66, 2 Cart, at p. 120, (1882); "subjects of national and general concern": per Burton, J. A., in Regina v. Wason, 17 O.A.R. at p. 236, 4 Cart, at p. 595, (1890) ; " matters in which as being of a general quasi- national and sovereign character the inhabitants of the several provinces might be said to have a common interest ": per Gwynne, J., in Re Prohibitory Liquor Laws, 24 S.C.R. at p. 205, (1895); "gener- ally those subjects that would be common to the whole Canadian people irrespective of origin or religion": per Sedgewick, J., S.C. at p. 233. Cf. Lord jNIonck's despatch to the Secretary of State of November 7th, 1864, transmitting the Quebec resolutions, (Can. Sess. Pap., 1865, Vol. 3, No. 12), who says that to the central government and legislature is "committed all the general business of the united provinces." ^^43 U.C.R. at p. 174, I Cart, at pp. 743-4> (1878)- "And cf. per Burton, J. A., in Regina 7'. Wason, 17 O.A.R. at p. 237, 4 Cart, at pp. 595-6, (1890). And as to ' criminal law' in No. 27 of section 91 of the British Nurth America Act, see further supra at PP- 35"7> 49-50. 413-4' ^n<^l 463-4 ; and Queen v. Ronan, 23 N.S. 421, (1891); Queen v. A. McDonald, 24 N.S. 35, (1891). In his Par- liamentary Procedure and Practice, (2nd ed. at p. 674), Mr. Bourinot says :— " In the session of 1882 a bill respecting pawnbrokers, to prevent them practising extortion, was withdrawn by the mover at the request of the Minister of Justice, as it was doubtful if it was within the jurisdiction of the Dominion parliament": citing Can. Han., 1882, p. 266. 550 Legislative Power in Canada. Prop. 49 And among the general powers thus conferred upon the Dominion parHament, it is natural to find Theregu'.a- that of making laws in relation to the regulation of tion of trade i • i • i and com- trade and commerce, as to which in the Queen v. merce. . . The Mayor, etc., of Fredericton,^ Fisher, J., says : — " This power like that relating to bills of exchange, or interest,- weights and measures, or legal tender, and certain other powers, was a necessary incident to the Union to secure a homogeneous '3 Pugs, and B. at pp. 168-9, (i879)- Interest. " ^^ ^'^ 'interest' which is assigned to the Dominion parliament by No. 19 of section 91 of the British North America Act, in Lynch V. The Canada North-West Land Co., 19 S.C.R. at p. 225, (1891), Patterson, J., says: — "We find that article associated with others numbered from 14 to 21, all of which relate to the regulation of the general commercial and financial system of the country at large. No. 19 is ejitsdcin generis with the others, and does not in my judgment in- clude the matter of merely provincial concern with which we are now dealing." .See supra pp. 388-9, 481. And cf, per Johnson, J., in Royal Canadian Insurance Co. v. Montreal Warehousing Co., 3 L.N. at p. 157, 2 Cart, at p. 366, (18S0), where he held that an Act of the legislature of Quebec giving a certain company power to borrow money at such rate of interest as might be agreed was intra vires, and did not conflict with the power of "general legislation on the subject of interest," reserved to the Dominion parliament. No. 21 of the Bankruptcy Dominion powers thus referred to by Patterson, J., is that over 'bank- and insol- ruptcy and insolvency,' as to which in Dupont -'. La Cie de Moulin a Bardeau Chanfrcne, 11 L.N. 225, (iSSS),in the Superior Court, Mont- real, (where it was held that under it the Dominion parliament could legislate for the distribution of the estate of the debtor either with or without a discharge of his liabilities), Wurtele, J., quotes words of Mr. Wharton in his Treatise on Private International Law, to the effect that bankruptcy " is a species of national execution against the estate of an insolvent," and says • — " It is in the interest of the trade and commerce of the whole Dominion that there should be one uniform law for all the provinces, regulating proceedings in the case of insolvent debtors, unrestricted in its operation by provincial boundaries ; that it should be possible to obtain a national execution, and not merely a limited provincial one against the estate of an insolvent debtor who might hold property in several provinces, or transfer it from his own province into another." And as to 'bankruptcy and insolvency,' see AttorneyGeneial of Ontario i'. The Attorney-General of Canada, [1894] A.C. 189, which seems clearly to show that the provincial Acts in question in Johnson t. Poyntz, 2 R. & G. 193, 2 Cart. 416. (1881), and in In re The Wallace Ihiestis Grey Stone Co., Russ. Eq. 461, 3 Cart. 374, (1881), were rightly held not to be within the Dominion power over bankruptcy and insolvency ; and that Queen v. Chandler, I Ilann. 458, 2 Cart. 421, (1868), was wrongly decided. -See also an article on the Privy Council on Bankruptcy, 30 C.L.J. 182 ; and supra pp. 429-30. vency. Dominion Powers. 551 whole, the object of the Union being to draw prop, 49 together the scattered settlements of the different provinces, of diverse races and religions, into one common people, to give them as far as practicable a community of interest and feeling ; that so far as could be done consistently with their relative posi- tions, their commercial intercourse with each other The reguia- 1 11 1 ''°" °^ trade should be analogous; that the merchant or manu- and com- facturer in Ontario should find in Nova Scotia or New Brunswick the same principles of commercial law as were in operation in his own province ; and transact his business, buy, sell, and trade, upon the same principles with an inhabitant of Pictou or St. Stephen as with a citizen of Toronto or London." And what Burton, J. A., ^ has termed "the general and quasi-national sense " given to the Dominion power to make laws in relation to ' the regulation of trade and commerce,' by the Privy Council, in the Citizens Insurance Co. v. Parsons,- well illustrates the leading Proposition." Their lordships here say that the words " may have been used in some such sense as the words ' regulations of trade ' in the Act of Union between England and Scotland, (6 Anne, c. 11)," Article 6 of which enacted that all parts of the iRegina v. Wason, 17 O.A.R. at p. 237, 4 Cart, at p. 595, (1S90). ^7 App. Cas. at p. 112, i Cart, at pp. 277-8, (1881). 'Under the Constitution of the United States, Article i, section 8, Analogy of (3), power is given to Congress to ' regulate commerce with foreign United nations, and among the several States, and with the Indian tribes. ' ^^'j^J^^J^j^"' Upon the argument in the Matter of the Dominion License Acts, 1883-4, before the Supreme Court of Canada, Mr. Bethune thus referred to the difference in the words conferring the Dominion power : — " I take it that there was a purpose in using the word 'trade, because the word • trade ' was not necessary to be used in con- nection with the American Constitution, the word 'trade' relating entirely to internal trade, which was not given, in fact, to the American Congress. And I take it that the word ' trade ' was supplied with the very purpose of enabling the Dominion parliament to deal with all kinds of trade, internal trade as well as foreign trade": Dom. Sess. Pap., 1885, No. 85, at p. 154. 552 Legislative Power in Canada. Prop. 4 9 United Kingdom, from and after the Union, should be under the same ' prohibitions, restrictions, and regulations of trade.' ^ " Parliament has at various The regula- tion of trade and com- The Act of Anne. Ante-Con- federation Canadian legislation. ^As to this reference to the statute of Queen Anne, on the same argument, referred to in the last note, Ritchie, C.J., observes: — " Is there a man living in the Dominion of Canada who believes that when the Act of Confederation was agreed upon by the representatives of this country, to be submitted to the Imperial parliament, any one of those men had in his mind's eye the statute of Anne as the foundation of our Con- stitution ? " : Ibid, at p. 202. And cf. per Gwynne, J., in /;/ re Prohibi- tory Liquor Laws, 24 S.C.R. at p. 217, (1895) ; and per Sedgewick, J., S.C. at pp. 237-8. But, with deference, the Privy Council merely refer to the Act of Union to illustrate the sense in which the words ' regula- tion of trade and commerce ' may have been used, and do not say that in the use of the expression the framers of the British North America Act took the words from that Act. Sedgewick, J., (S.C. at pp. 232, et seq.), declares that the true answer to the question what is meant by the regulation of trade and commerce is to be sought by reference to provincial statutes and jurisprudence at the time of the Union, and to the circumstances under which that Union, as well as its particular character, took shape and form, and he refers especially to the consolidation of the statutes of Canada in 1859, and claims, (at p. 236), that by referring to these sources we have a clear indication of what at the time of the Confederation the Canadian people and legis- latures understood to be included within those words. " They included in it," he says, " unquestionably, the carrying on of particular trades or businesses, and I think commercial law generally." (Cf. S. II. Blake, Q.C., arguendo before the Supreme Court in the Matter of the Dominion Liquor License Acts, 1883-4 : Dom. Sess. Pap., 1885, No. 85, at pp. 82, 84-5.) But upon the argument before the Privy Council on appeal, Lord Watson said, as to this : — " You might derive some light from previous legislation if it was relevant. It might be rele- vant. Supposing there had been words in the old provincial Acts grouped under a particular head, and you found that head in this Act, I think such legislation would throw light on that." And Lord Herschell add- ed : — "If you take it from two provinces, are we to suppose they used it," (.u., ' regulation of trade and commerce'), " in the sense they used it in those two ? If you could show they had used it in all the provinces, or that it was in general use, that would be different. It seems to me rather dangerous to take the use in two provinces." (See also j-///;-(z ^^ P- 53' <^''' •s''^'/') -^ncl Lord Davey said : — " I have read Mr. Justice Sedgewick's judgment very carefully, and more than once. This passage I have read more than twice, but I cannot for the life of me find out what he thinks ' trade and commerce' means, because . the classes of subjects to which he attributes it seem to me incapable of any, I will not say scientific, but any logical meaning." Where- upon Mr. Edward Blake said : — "I suppose the object of the learned judge was this, to combat the ])roposition that it meant only in the view of the Canadians this general regulation of trade and commerce, that it was shown that in each province under ' regulation of trade or commerce ' there were laws dealing with particular trades ; and, therefore, that laws dealing with particidar trades should be taken to be within the scope of the words": (printed report of the argument, at pp. 296- 7 ; supra p. 398, n. l). merce. Dominion Powers. 553 times, since the Union," they say, " passed laws Prop. 49 affecting and regulating specific trades in one part of the United Kingdom only, without its being sup- posed that it thereby infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notorious!}^ vary in the two Kingdoms." And they come to the conclusion that ' regulation The reguia- . . tion of trade of trade and commerce' in No. 2 of section gi ofandcom- the British North America Act includes " political arrangements in regard to trade, requiring the sanction of Parliament, regulation of trade in matters of inter-provincial concern, and may perhaps include general^ regulation of trade affecting the whole Dominion, but it does not comprehend the power to regulate by legislation the contracts of a particular business or trade, (such as the business of fire insur- ance), in a single province. "- ^ As to the use of this word ' general,' on the argument of the recent Liquor Prohibition Appeal, 1895, (printed report at p. 200 : see p. 398, n. i), Lord Watson saj's : — " It is apt to be misused, and it is apt to mislead. It is not general as including all particulars, but it is general as distinguished from certain particulars." -Neither would it, it is submitted, comprehend the power to Regulating regulate by legislation this or the other portion of what may be termed the machin- the machinery of trade, such as warehouse receipts. In Smith v. The ^""^ of trade. Merchants Bank, 28 Gr. 629, (1881), however, Spragge, C, seems to have thought otherwise. But in Beard v. Steele, 34 U.C. R. 43, (1873), the Ontario Act as to the rights and liabilities of parties to bills of lading was held to be httra vires. Nevertheless in his report of January 28th, 1889, on a similar Nova Scotia Act of 1888, (ch. 30), relating to bills of lading, Sir John Thompson, as Minister of" Justice, says that the competency of the provincial legislature in this regard is doubtful : Ilodgins' Provincial Legislation, 2nd ed. at p. 582. Moreover, with refeience to the regulation of a particular trade, on the argument in the Matter of the Dominion Liquor License Acts, 1883-4, before the Privy Council, Sir Farrer Herschell says :— " My contention certainly is that when once you show that any trade is regulated for the whole Dominion, as the insurance business was in that statute referred to in the Citizens Insurance Co. v. Parsons, and that that is done, not for any local purpose, but for the general purposes of the Dominion ; then you have shown that it is for the peace, order, and good govern- ment of Canada in relation to the regulation of trade": (printed tran- script from Marten & Meredith't. shorthand notes at p. 168; see also ibid, at pp. 92, 165). merce. 554 Legislative Power in Canada. Prop. 49 Their lordships, however, while speaking in this way as to the regulation of trade and commerce in Citizens Insurance Co. v. Parsons, expressly say that they abstain from any attempt to define the limits of the authority of the Dominion parliament in this direction. The effect of what they did say was thus paraphrased by Mr. Horace Davey, now Lord Davey, upon the argument before the Board in the Matter of the Dominion Liquor License Acts, 1883-4^ : — " Regulation of trade and commerce means general regulations as applicable to trade generally, of what may be called, for want of a better word, a Thereguia- poHtical charactcr, that is for regulating trade and tion of trade ^ . . ^ . and com- commcrce between the Dominion and foreign coun- tries, or other countries, including, of course. Great Britain, or, for instance, for regulating the trade between the provinces themselves. But it does not include minute regulations affecting the terms and conditions on which persons carrying on particular trades are to be allowed to do so in different locali- ties." Their lordships also have themselves referred to their language in two subsequent judgments, but without further elucidating the subject ;- and * Printed transcript from Marten & Meredith's shorthand notes, at P- 134- Later Privy ^See Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart. Council at p. 21, (1887), where they say that in Citizens Insurance Co. dtcta. ^_ Parsons : — " It was found absolutely necessary that the literal meaning of the words should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures. It was there thrown out that the power of regulation given to the Parliament meant some general or inter-provincial regulation. No further attempt to define the subject need now be made, because their lordships are clear that if they were to hold that this power of regula- tion prohibited any provincial taxation on the persons or companies regulated, so far from restricting the expressions, as was found necessary in Parsons' case, they would be straining them to their widest conceivable extent ;" and The Liquor Prohibition Appeal, 1895, Attorney-General for Ontario v. Attorney-General for the Dominion of Canada, and the Distillers and Brewers' Association of Ontario, [1896] A.C. at p. 363, where they say: — "The scope and effect of Dominion Powers. 555 although the Dominion power in question has Prop. 49 been the subject of much discussion elsewhere, the precise determination of its scope can scarcely be said to have been much advanced. And so upon the recent argument of The Liquor Prohibition Appeal, 1895/ Lord Watson says : — " I do not think any of the cases afford a definition, or anything hke a The reguia- precise definition, of what precisely is meant by the and com- expression regulation or trade in sub-section 2. There are explanations of it, but the explanations, as far as I can find, require as much explanation as the section itself." For the most part, the words of the Privy Council in Citizens Insurance Co. v. Parsons have been quoted in terms equally large.- On the No. 2 of section 91 were discussed by this Board at some length in Citizens Insurance Company v. Parsons, where it was decided that, in the absence of legislation upon the subject by the Canadian parliament, the legislature of Ontario had authority to impose conditions, as being matters of civil right, upon the business of fire insurance, which was admitted to be a trade, so long as those conditions only affected pro- vincial trade. Their lordships do not find it necessary to reopen that discussion in the present case." 'Printed transcript from Martin & Meredith's shorthand notes, at p. 210. ^Thus it has been said the ' regulation of trade and commerce ' in Attempted No. 2 of section 91 means: — " The regulation of trade and commerce explanations in the Dominion, which is " a very distinct thing from the individual trades or callings of persons subject to the municipal government of cities": per Johnsr)n, J., in Angers v. The City of JNIontreal, 24 L.C.J, at p. 260, 2 Cart, at p. 337, (1876) ; cf. Mallette v. The City of Montreal, 2 L.N. 370, (1879); "not everything which might be connected incidentally with the operations of trade or the transactions of commerce": per Allen, C.J., in Queen v. The City of Fredericton, 3 P. & B. at p. 185, (1879); "the general features, and not the minute and trifling sulijects which might otherwise be considered as included": per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at p. 552, 2 Cart, at pp. 47-8, (1S80) ; "general regulations of trade between the provinces or between the Dominion and other States, but not internal regulations and local trade within one province or within any one locality in the province": per Tessier, J., in Cor- poration of Three Rivers v. Major, 8 Q L.R. at pp. 185-6, (1881) ; "the regulation of commerce in the wide sense," but the provinces may " make certain regulations affecting purely internal commerce": per Mackay, J., in Ex parte Leveille, 2 Steph. Dig. at p. 446, 2 Cart. 55^ Legislative Po\vi:k ix Canada. Prop. 49 argument, however, in Russell v. The Queen, in 1882;^ counsel for the appellant says: — "Any such matters as embargo laws, intercourse between the different provinces, coasting regulations, regulations of navigation, and all those sort of matters, I submit, would come within it, but not an Act really dealing with the morals of a people in a particular district, which may be a very small district." And there are some dicta of Strong, J., as he then was, on the argu- Thereguia- mcnt in the Matter of the Dominion Liquor License tion of trade . ^ , ^ . and com- Acts, 1803-4, wortli rcfcrrmg to m this connection. Thus he says : — " It has always struck me that those words, * regulation of trade and commerce,' had reference to regulations of a fiscal, or what may be called an economic and fiscal character, and did not apply at all to these police regulations."" Again, he inerce. at p. 349, (1887) ; (cf. Lepine v. Laurent, 17 Q.L.R. at p. 229 ; and per Taschereau, J., in Iluson 2'. The Township of South Norwich, 24 S.C.R. at p. 162); "commerce in a national point of view": per Jette, J., in Bank of Toronto v. Lambe, M.L.R., I S.C. at p. 45, 4Cart. at p. loi, (1887) ; " regulations relating to trade and commerce in iheir general and quasi-national sense, and not to the contracts or conduct of particular trades": per Burton, J. A., in Regina v. Wason, 17 O.A.R. at p. 237, 4 Cart, at p. 595, (1890); "not such matters as in the wordsof section 92, sub-section 16, of the British North America Act are merely of a local character": per Begbie, C.J., in Queen v. Howe, 2 B.C. (Hunter) at p. 37, (1890) ; " something of general con- cern to the Dominion at large," "sDuiething larger than a particular stipulation restricting a particular trade on some particular day": per Begbie, CJ., in Sauer v. Walker, 2 B.C. (Hunter) at p. 96, (1892); they may deal with " trade and commerce in a general way," "trade and commerce in its broad and large sense": per Ritchie, C.J., on the argument in the Matter of the Dominion License Acts, 1883-4, before the Supreme Court : Dom. Sess. Pap., 1885, No. 85, at p. 201. Cf. Story on the Constitution of the United States, 5th ed., Vol. 2, p. 23; ibid. pp. 156-164, n. I. 'Manuscript transcript from Marten & Meredith's shorthand notes, second day at p. 18 ; see supra p. 398, n. i. -Dom. Sess. Pap., 1885, No. 85, at p. 73. But in the course of the argument on the recent Liquor Prohibition Appeal, 1895, members of the Board find some fault with the term ' police regulation.' Thus, Lord Herschell : — " Police regulation is a very vague phrase. I am quite aware that that was used in Hodge's case ; but it only means something conducive to the good order of the Dominion. It has Dominion Powers. 557 says : — " My proposition is that although trade and Prop. 49 commerce is not restricted to foreign commerce, or commerce between the provinces, as in the United States, it is still something different from mere retail buying and selling ; that is, it is restricted to wholesale dealing and the word trade is a synonymous term. A British merchant would not call a man who kept a dram shop a merchant. . . . I do not under- stand the words ' trade and commerce ' mean mere The regula- tion of trade buying and selling. x'\n operation of trade is some- and com- merce. thing more than buying and selling again. It means this, buying goods and carrying goods, bringing goods from foreign countries, or bringing goods from the place where they are manufactured. No doubt that is the true import of both these words. They mean buying and selling, but they mean some- thing more."^ And in Poulin v. The Corporation nothing to do with the police. Saying that licensed premises shall Police not be open within prohibited hours is not a ' police regulation.' -phg regulations, police have nothing to do with it except to see that the law is not broken as in every other case." The Lord Chancellor: — "We have substituted the word 'police' for 'constable,' and if you get the old common law word there is a thread of theory that ran through it which was the preservation of the peace." Lord Davey : — " If you look at the derivation ' police,' I expect it means the maintenance of municipal order." Lord Watson : — " We are apt to use these expressions which really are not definitive of the thing enacted, but are descriptive of the executive body entrusted with the execution of the statute. It becomes a police matter, and we use the words ' police regulation ' whenever it is entrusted to the police for enforcement. But that word does not define the nature of tlie enactment or the object of the legis- lature in passing it. Sanitary arrangements and that kind of thing are entirely for the benefit of the community." Lord Herschell : — "There is nothing about police in section 92 at all. It was used in Hodge's case. It was thought it pointed to a distinction which helped one. I confess you may call them police regulations ; but it does not help one with reference to other cases to call them police regulations": printed report of the argument, at pp. 232-3. On the argument before the Supreme Court, Strong, C.f., had said: — "The superintendence of markets, roads, bridges, keeping order in public places, streets, and so on, is all police power ": transcript from shorthand notes of Nelson R. Butcher, at p. 68. See also supra p. 360, n. 2. ^Dom. Sess. Pap., I'diJ., at pp. 117 and 155. Cf. per Strong, C.J., in Iluson V. Townsbip of South Norwich, 24 S.C. R. at p. 150 ; and cf., also. Story on the Constitution of the United States, 5th ed.. Vol. 2, at merce. 558 Legislative Power in Canada. Prop. 49 of Quebec,^ Tessier, J., also attempted to be more specific in this matter, saying : — " It is manifest that by the words ' traffic et commerce,' especially the English words ' trade and commerce,' it was intended to express legislation over the general interests of Thereguia- commcrce which relate to the whole Dominion of tion of trade ^"jjcom- Canada, the mode of importing and exporting mer- chandise, the storing of this merchandise in towns so as to protect the customs, entire prohibition in cer- tain cases for the general protection of the commerce of the Dominion," but not special laws of provin- p. 160, n., where he quotes from an argument of Mr. Hamilton these words : — " This," (sc, prescribing rules for buying and selling), " is a species of regulation of trade, but it is one which falls more aptly within tlie province of the local jurisdictions than within that of the general government, whose care they must have presumed to have, been intended to be devoted to these general political arrangements concerning trade on which its aggregate interests depend, rather than to the details of buying and selling. Accordingly, such only are the regulations to be found in the laws of the United States whose objects are to give en- couragement to the enterprise of our merchants, and to advance our navigation and manufactures." See, however, p. 551, n. 3, sitpra. 17 Q.L.R. at p. 340, 3 Cart, at pp. 239-40, (1S81). The prohibi- "As to the prohibition of a trade possibly coming in certain cases tin"^"*^ within the Dominion power under discussion, on the recent argument in The Liquor Prohibition Appeal, 1895, Lord Ilerschell observed : — " It is the regulation of trade generally. One may be said to regulate trade by prohibiting or putting a fetter on a particular trade. If you prohibit all trades, you certainly do not regulate trade ; but you may be said to regulate trade by saying certain trades shall be unlawful " : printed report of the argument at p. 190 ; (see supra at p. 398, n. l). And the Lord Chancellor (Lord llalsbury) also said : — "Trade generally may be regulated by prohibiting a particular trade. Take the case of the prohibition of tiie exportation of wool with which this country was familiar at one time. That was a regulation of trade, and it was a prohibition of a particular trade. " Whereupon Lord Watson observed :- — '' We regulate the trade of these islands in tobacco by prohibiting its production, except to a very limited extent" : ibid, at p. 226. See, also, ibid. , at p. 1 79. There seems nothing inconsistent here with the fact that in their judgment in this case, [1896] A.C. at p. 363, the Judicial Com- mittee say of the Canada Temperance Act, 1S86 : — " Their lordships are unable to regard the prohibitive enactments of the Canadian statute of 18S6 as regulations of trade and commerce. They see no reason to modify the opinion which was recently expressed on their behalf, by Lord Davey, in The Municipal Corporation of the City of Toronto v. Virgo, [1896] A.C. at p. 93, in these terms : — 'Their lordships think there is marked distinction to be drawn between the prohibition or preven- trades. Dominion Powers. 559 cial legislatures which do nothing more than regulate ppop, 49 the mode of selling and trading in certain matters of a merely local nature in the province." But it can scarcely be said that anything more definite has really been arrived at than is stated by Mr. Edward Blake in the course of the recent argument in The Liquor Prohibition Appeal, 1895^, namely, that The reguia- those regulations of trade are in the Dominion, and and com' ,,,.,.. Ill- 1 merce. wholly m the Dommion, under both its powers, the general and the special, " which march wider, which cut deeper, which are of more general application, which go beyond minute regulations affecting a particular trade, which go be3'ond simple ' police matters,'- dealing with the varying circumstances and conditions of small and differently circumstanced localities."^ tion nf a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.'" This clearly is not saying that as part of a legislative scheme for the regulation of trade, the prohibition of a particular trade might not be incidentally involved. See also in the Virgo case in the Court below, 20 O.A.R. at pp. 43S-9, 441, (1893). But as pointed out supra p. 402, n. i, the Board in this judgment clearly overrule those cases there cited where the provincial power to prohibit the liquor trade was denied as being an infringement upon the exclusive power of the Dominion parliament to regulate trade and commerce. And as to powers of prohibition, see siip7-a pp. 339- 401. ^Printed report of this argument at p. 225 ; (see supra p. 39S, n. i). ^See supra p. 556, n. 2. "'In accordance with the above the following provincial Acts have Provincial been held to be no infringements of the Dominion power for the Acts affect- " regulation of trade and commerce " : — Act making police or muni- '"S trade, cipal regulations of a merely local character for the good government of taverns, etc., licensed for the sale of liquors by retail : Hodge v. The Queen, 9 App. Cas.117, 3 Cart. 144, (1883); Act imposing a license duty on the vendors of provisions from any stall, place, or shop in any market place : La Cite de Montreal v. Riendeau, 31 L.C.J. 129, (1S87) ; Act forbidding the carrying of any load of more than 2,000 lbs. in any wag- on on any highway in Victoria district, unless the tires were at least four inches wide: Queen v. Howe, 2 B.C. (Hunter) 36, (1S90) ; Act regulating selling from private stalls outside the public markets : Pid- geon V. The Recorders Court, 17 S.C.R. 495, 4 Cart. 442, (1890) ; Liquor License Regulation Act, closing saloons on Sunday : Sauer v. 5^0 Legislative Power in Canada. Prop. 49 Returning to the leading Proposition the de- Walker, 2 B.C. (Hunter) 93, (1892); Act authorizing municipalities to issue licenses and levy by such means a sum not exceeding $50 every six months from every one who ' either on his own behalf or as agent for others sells, solicits, or takes orders for the sale by retail of goods, wares, or merchandise, to be supplied or furnished by any person or firm doing business outside the province, and not having a permanent and licensed place of business within the province ' : Poole v. City of Vic- toria, 2 B.C. (Hunter) 271, (1892) ; cf. Corporation of Three Rivers v. Major, 8 Q.L.R. 181, (1S81) ; (but in his report of May i8th,i889, on the Ontario .Acts of 1S8S, the Minister of Justice objected that section 23 of the Municipal Amendment Act, 1888, in reference to license fees on transient traders, might be an infringement upon the jurisdiction of Parliament over trade and commerce : Hodgins' Provincial Legisla- tion, 2nd ed., p. 312) ; Act enabling the Corporation of Vancouver to pass by-laws ' for regulating with a view to preventing the spread of infectious disease, the entry or departure of vessels at the port of Van- couver, the landing of passengers and cargoes from such boats or vessels. or from railroad carriages or cars ' : The Canadian Pacific Navigation Co. Z'. City of Vancouver, 2 B.C. (Hunter) 193, (1S02) ; (but as to whether there was not here an invasion of the Dominion power over quarantine under No. 11 of section 91 of the British North America Provincial Act, see the report of the Minister of Justice of January 28th, 1S89, Acts affect- upon the Nova Scotia Acts of 1888 : Hodgins' Provincial Legislation, ing trade. 2nd ed. at p. 582, also referred to in the notes to Proposition 62 ; also the report of the Minister of Justice of March 21st, 1891, on the Mani- toba Act of 1890 respecting the diseases of animals : Hodgins' Provin- cial Legislation, 2nd ed. at p. 946 ; also cf. ibid, at p. 929, and Chy Lungz'. Freeman, 92 U.S. at p. 280) ; .Act as to the rights and liabili- ties of parties under bills of lading : Beard v. Steele, 34 U.C.R. 43, (1873); Act sul'jecting to penalty any hotel-keeper who should receive in payment or as a pledge for any liquor supplied in or from his licensed premises anything except current money or the debtor's own cheque on a bank or banker: Benard v. McKay, 9 M.R. 156, (1893). Cf. also for other cases where provincial Acts were held iiit7-a vires, which regulated the mode of selling and trading in articles other than intoxi- cating li(|uors : Angers v. City of Montreal, 24 L.C.J. 259, 2 Cart. 335' (1876); J\e Harris and the Corporation of the City of Hamilton, 44 U.C.R. 641, I Cart. 756, (1879) ; Mallette v. City of Montreal, 24 L.C.J. 263, 2 Cart. 340, (1879) '■> Bennett v. Pharmaceutical Associa- tion of Quebec, I Dor. Q.A. 336, 2 Cart. 250, (1881). And doubt may well be felt as to the correctness of the decision in The Canadian Pacific Navigation Co. 2>. City of Vancouver, 2 B.C. (Hunter) 193, (1892), so far as it was there held that a provincial Act authorizing the exclusion from Vancouver of all passengers fiom Victoria would be iiit?-a vi7-es as infringing on the Dominion power over the regulation of trade and commerce ; and also of the view expressed by Begbie, ('.J., in Regina v. The Corporation of Victoria, i B.C. (Irving) at p. 331, (1888), that for a provincial legislature to authorize municipalities to refuse pawnbrokers' licenses or other municipal licenses to members of a special class, such as, in that case, Chinamen, would be ultra vires as " a very wide interference with trade and commerce which is totally removed from their control by the British North America Act " ; (cf. , however, supra pp. 258-9); and also of the objection taken by Sir John Thompson as Minister of Justice in 1886 against the provisions of a Nova Dominion Powers. 561 cision of the Supreme Court in the Queen v. Robert- Prop. 49 Scotia Act, 48 Vict., c. 23, respecting 'the regulation and inspection of provisions, lumber, fuel, and other merchandise,' that some of its provi- sions amounted to legislation respecting trade and commerce : Hodgins' Provincial Legislation, 2nd ed. at p. 532. On the strength of its power Incorpora- over the regulation of trade and commerce, tlie Dominion has objected t'on of — it may perhaps be thought unjustifiably — to the incorporation under Commerce" provincial Acts of Chambers of Commerce and Boards of Trade : Hod- gins' Provincial Legislation, 2nd ed. at pp. 1 158-9, and has itself incor- porated such Boards of Trade ; cf. R.S. C, c. 130, being a general Act for the incorporation of such bodies throughout the Dominion, and Bourinot's Parliamentary Procedure and Practice, 2nd ed. at p. 669. Sir J. Thompson as Minister of Justice, in his report of jNLirch 21st, 1891, in reference to No. 12 of the British Columbia Acts of 1890, being an Act to amend the Game Protection Act, which forbade the exporta- tion out of the province of any animals or birds mentioned in the Game Protection Act in their raw state, inclines to the opinion that " the legislation operates directly as a restriction on trade and commerce, and the Dominion parliament alone, under its general powers of legislation and under its particular powers in connection with the regulation of trade and commerce, may declare what goods may or may not be ex- ported from Canada " : Hodgins' Provincial Legislation, 2nd ed. at Game pro- p. 1 121. And in the report of the same date he raises similar objec- taction Acts. lions to a Manitoba Act, (c. 32 of iS9o),being an Act for the protection of game and fur-bearing animals, which contained similar provisions : Hod- gins, lb. at p. 929. But cf. Regina v. Boscowitz, 4 B.C. 132, (1S95), where such an Act was held intra vires of the province, the Dominion power over trade and commerce not preventing "the legislature prohib- iting export as incidental to and as carrying out the general scheme of game protection in the province. ' And so per Killam, J., in Queen v. Robertson, 3 M.L. R. at p. 620, (1886). It may be observed also in this connection that in their recent judgment in The Liquor Prohibition Appeal, 1895, [1S96] -A..C. at p. 368, the Privy Council referring to the provisions of the Canada Temperance Act, 1886, whereby manufacturers of liquor and wholesale merchants may sell for delivery anywhere beyond the district in which they carry on business, say : — " If the adjoining dis- trict happens to be in a different province, it appears to their lordships to be doubtful whether, even in the absence of Dominion legislation, a restriction of that kind could be enacted by a provincial legislature." Cf., also, supra at p. 322, et seq., as to extra-territorial legislation. And as to the distinction betw^een regulation and taxation, see Weilert'. Distinction Richards, 26 C.L.J. N.S. 33.'^, (1890), where it is pointed out that between although these often go together they are essentially different. See anj" axai^cn also Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart, at p. 21, where the Privy Council say with reference to the Dominion power to regulate trade and commerce: — "If they were to hold that this power of regulation prohi'iited any jirovincial taxation on the persons or things regulated, so far from restricting the expressions, as was found necessary in Parson's case, they would be straining them to their widest conceivable extent." And on the same point on the recent argument on The Liquor Prohibition Appeal, 1895, where this case of Bank of Toronto v. Lambe is referred to. Lord Watson says :— " Do you regulate a man when you tax him ? " And Lord Herschell there- upon says : — " May it not be necessary to regard it from this point of view to find what is within regulation of trade and commerce, what is the object and scope of the legislation ? Is it some public ol)ject which 36 562 Legislative Power in Canada. Prop. 49 son^ seems to harmonize well with it. There they decided that the British North America Act in assigning to the parliament of Canada the right to legislate with respect to sea coast and inland fisher- ies did not thereby give authority to deal with matters of property and civil rights, such as the ownership of the beds of the rivers or of the fisher- Thereguia- ies, or the right of individuals therein ; but that tion of -ri 1 • • 1 fisheries. what thc Act gavc to Parliament was a right to legislate in regard to matters of national or general concern, such as the forbidding fish to be taken at improper seasons, or in an improper manner, or with destructive instruments, — such general laws as are for the benefit of the public at large as well as of the owner.- And in The Longueuil Navigation Co. v. The City of Montreal;; it was held that notwithstanding that by No. lo of section gi of the British North America Act, 'navigation and shipping' were placed under the jurisdiction of the Dominion parliament, incidentally involves some fetter on trade or commerce, or is it the dealing with trade and commerce for the purpose of regulating it ? May it not be that, in the former case, it is not a regulation of trade and commerce, while in the latter it is, though in each case trade and com- merce in a sense may be affected ? " And Lord Watson then says : — " It would be diflicult to imply from these words 'the regulation of trade and commerce,' whilst the power of direct taxation is given to the prov- ince, — the clauses must be read reasonably together, — it would be diffi- cult to suppose that regulating commerce meant the passing of an Act by the Dominion legislature exempting banks from provincial taxation, for practically that is what the argument in that case had to come to ; that under the words ' regulating commerce' was implied a power of exempting a bank from provincial taxation or the liability to be taxed by the provincial parliament " : printed report of the argument, at pp. 120-1 ; cf. also ibid, at p. 141 ; see sitpra p. 398, n. i. 16S.C.R. 52, 2 Cart. 65, (18S2). ^This decision has been very recently followed and confirmed by the same Court in /;/ re Provincial P'isheries, 26 S.C. R. 444. See, however, per (iwynne, J-, in that case at pp. 542-4 ; and see also the notes to Propositions 53 and 54. 3i5 S.C.R. 566, M.L.R. 3 Q.B. 172, 4 Cart. 370, (1888). Dominion Powers. 563 an Act of the Quebec legislature authorizing the prop. 49 levy of a tax upon ferryboats, including steam- boats, carrying passengers and goods between Montreal and places not distant more than nine miles, was intra vires. And so in Re Lake Winnipeg Trans- portation Lumber and Trading Co.,^ Taylor, C.J., held that the incorporation of a compan\- as carriers Navigation i'i"rii-i- ^"^ shipping of passengers and goods by water did not fall within 'navigation and shipping," in No. 10, saying:— "Legis- lation on that subject would seem rather to deal with such matters as the law of the road, lights to be carried, how vessels are to be registered, evidence of ownership and title, transmission of interest and such matters. "- And to conclude by a reference to the Constitution Analogy of •10 I r 11 • the Constitu- of the United States we may cite the following tion of the '^ United words of Burton, J. A., in Leprohon v. City ofstates. Ottawa" :— "The powers delegated to the govern- ment of the United States, like those granted by the Imperial legislature exclusive!}' to the Domin- ion, concern, speaking generally, pubHc functions and duties of a higher and more extensive order than the remaining powers which the people reserved to the States governments. In other words, the people entrusted to the central authority the powers i7M.R.atp. 259,(1891). '^ By virtue of its power over 'navigation and shipping,' and 'the regulation of trade and commerce,' the Dominion parhament has power to declare what shall be deemed an interference with navigation, and to require its previous sanction to any work in navigable waters : per Girouard, J., in /« re Provincial Fisheries, 26 S. C.R. at p. 576. All the judges were of the same opinion, and held R. S.C., c. 92, an Act respecting certain works constructed in or over navigable waters, iti^ra vires. Cf. as to the similar power of Congress, by virtue of its right to regulate commerce with foreign nations, and among the several Slates : Sloiy onthe Constitution of the United States, 5tii ed., Vol. 2, pp. 16-7, n. {a). 32 O.A.R. at p. 546, I Cart, at p. 619, (1S7S). 564 Legislative Power in Canada. Prop. 49 and functions which were deemed necessary for the " carrying on the government of the Union, whilst those deemed appropriate for the carrying on of the government of the individual States were reserved to the State authorities. With the exception of the power of declaring war and making treaties, the powers granted to the general government of the United States are similar to those granted by the Imperial legislature to the Dominion, — among others, the power of appointing its own officers, and an unlimited power to raise money by any mode or system of taxation." Local Option Legislation. 565 PROPOSITION 50. 50. If an Act of the Parliament of Canada, the objects and scope of which is general, and within its proper competency to deal with, provides that it shall come into force in such localities only in which it shall be adopted in a certain prescribed manner, or, in other words, by local op- tion, this conditional application of the Act does not convert it into legislation in relation to matters of a merely local or private nature, which by No. 16 of section 92 of the British North America Act are within the exclusive control of the Provincial Legislatures. The manner of bringing such an Act into force does not alter its general and uniform character. This Proposition is established by the judgment Russeii p. of the Privy Council in Russell v. The Queen.- It was there contended with reference to the Canada Temperance Act, 1878, that as the prohibitory and penal parts of the Act in question were to come into force in those counties and cities only in which it was adopted in the manner prescribed, i.e., b}- local option, the legislation was in effect, and on its face, upon a ^See Proposition 42 and the notes thereto. -7 App. Gas. at pp. 841-2, 2 Cart, at pp. 24-6, (1882). 566 Legislative Power in Canada. Prop. 50 matter of a merely local nature. Their lordships, however, overruled this contention, and held the Act to be tJitra vires, observing' : — " The Act as soon as it was passed became a law for the whole Dominion, and the enactments of the first part, relating to the machinery for bringing the second part into force, took effect, and might be put in motion at once, and everywhere within it. . . The manner of bringing the prohibitions and penalties of the Act into force, which Parliament has thought fit to adopt, does not alter its general and uniform character. . . Thepres- Conditionai cnt legislation is clearly meant to apply a remedy to legislation. .,,.,. . , , , "!,-^ an evil v/hich is assumed to exist throughout the Do- minion, and the local option, as it is called, no more localizes the subject and scope of the Act, than a provision in an Act for the prevention of contagious diseases in cattle, that a public officer should proclaim in what districts it should come into effect would make the statute itself a mere local law for each of these districts. In statutes of this kind the legis- lation is general, and the provision for the special application of it to particular places does not alter its character."^ Local option ^ On the argument in this case, counsel for the Dominion met the Acts. contention above indicated thus : — " Permissive Bills are by no means rare. Let us look at some which have been passed before, and just see whether the local option connected with them at all results in " \qitccre, 'from') " their not beinij matters of i)uhlic interest. I venture to say that the very contrary is the case, and that why, as a rule, a Bill is made per- missive or subjected to a local option, is that public feeling is in such a state about it from its general interest and importance that it is difficult for the legislature to do more than make tentative legislation ; and that the object of making the option is not because it is not a matter of pub- lic interest, or is of a merely local or private nature, but because, as yet, they do not dare, in the state of public opinion, to do, as I said, more than make tentative legislation. . . . I submit it is the greatness and not the smallness or meanness of the interest which is at the root of this local option ": second day at p. 123, et scq. See supra p. 39S, n. i. Dominion Local or Private Laws. 567 PROPOSITION 51. 51. If the subject-matter dealt with comes within the classes of subjects as- signed to the Parliament of Canada, [or if, though this be not the case, the law be one for the peace, order, and good govern- ment of Canada in relation to any matter not coming within the classes of subjects assigned to the Legislatures of the Prov- inces], there is no restriction upon that Parliament to prevent it passing a law^ affecting one part of the Dominion and not another, if in its wisdom it thinks the legislation applicable to or desirable in one and not in the other. The above Proposition is, with the exception ofRusseiiv. the portion in brackets, suggested by the words of Ritchie, C.J., in City of Fredericton v. The Queen, ^ in which the vahdity of the Canada Temperance Act, 1878, came into question. They are, however, only obiter dicta, for he immediately goes on to remark that the Act in question is a general law applicable to the whole Dominion, though it may not be brought into active operation throughout the whole Dominion.- But the principle of the Proposition would certainly I3 S.C.R. at p. 530, 2 Cart, at p. 30, (iSSo). -See Proposition 50 and the notes thereto. 56S Legislative Power in Canada. Prop. 51 seem affirmed, so far as concerns the enumerated classes of sul)jects, b\' the Supreme Court in Quirt v. The Queen, ^ where the Court held intra "vires as an Act in relation to bankruptcy and insolvenc}- the Dominion Act, 33 \'ict., c. 40, which, reciting the in- solvency of the Bank of Upper Canada, provided for Special its winding up, and for a fair and equitable adjust- winding-up " r' ii Act. ment and settlement of the claims of all creditors. For if b}.' virtue of its power to make laws in relation to bankruptcy and insolvency Parliament can pro- vide for the winding up in insolvenc}' of a single institution, it would seem a /or^z'on that it could con- fine the scope of its bankruptcy and insolvency legis- lation within any territorial lim.its it saw fit." Quirt V. The dicta of the Privy Council in L'Union St. The Ou6cn. Jacques de Montreal v. Belisle,^ already referred to in the notes to Proposition 49,-^ to the effect that there is no indication in anv instance of anvthini^ being contemplated in the enumeration of subjects of legislation in section gi of the British North America Act, " except what may be properly de- scribed as general legislation," were cited in Quirt v. The Queen-""' against the validity of the Act in ques- tion, but it will be remembered that in the former case their lordships in a later portion of their judg- '19 S.C.R. 510, (1891), affirming the decisions of the Courts below, reported siili nom. Regina v. Cjunty of Wellington, 17 O.K. 615, 17 O.A.R. 421. -In the chapter on Private Bills in Mr. J. G. Bourinot's Parliamen- tary Procedure and Practice, 2nd. ed. at p. 663, ei seq., he discusses questions of les^islative jurisdiction arising out of private bill legis- lation in the Dominion parliament, chiefly in connection with the incorporation of companies. ^L.R. 6 P.C. at p. 36, I Cart, at p. 70, (1S74). *See supra p. 547. = See 17 O.A.R. at pp. 423-4, 19 S.C.R. at p. 512. Dominion Local or Private Laws. 5^9 ment^ take pains to point out that tlie provincial Prop. 5 1 Act, the vahdity of which was in question before them, and which itself was a special Act relating to the financial affairs of a single institution, and was held by them to be intra vires, did not propose a final L'Union st. J..,"'. f. . ..... , Jacques V. distribution or the assets or the institution on the Beiisie. footing of insolvency or bankruptcy, did not wind it up, but, on the contrary, contemplated its going on, and possibly at some future time recovering its pros- perity ; and that there was no proof that the insti- tution was in any legal sense within the category of insolvency.- Accordingly, in Quirt v. The Queen, ^ Strong, C.J., considers the Privy Council as indi- cating in L'Union St. Jacques de Montreal v. Belisle *' that a special statute, providing for the winding Special r • 1 11111 winding-up up or an incorporated company, would be bankruptcy Acts. or insolvency legislation"; while Patterson, J. A., with whom Taschereau concurs, expresses himself in like manner,* saying : — " The words ' bankruptcy and insolvency ' in that article," (sc, No. 2i of section 91 of the British North America Act), " no doubt point primarily to the enactment of a general bank- rupt or insolvent law, as was well explained by Lord Selborne in delivering the judgment of the Judicial Committee in L'Union St. Jacques de Montreal v. Belisle, but, as I think is conceded by the same judg. ment, a special Act for the winding up of some par- *L.R. 6 P.C. at pp. 37-8, I Cart, at pp. 71-2. -On the other hand, the Privy Council did not actually decide, nor was it nece-ssary for them so to do, that if the Act in question had been, properly regarded, an Act providing for the winding-up in bank- ruptcy and in.solvency of the institution to which it related, it would have been ////;■« vires as an infringement of the Dominion power over No. 21 of section 91. 'iq S.C.R. at p. 517. And cf. per Osier, J. A., S.C, 17 O.A.Pv. at P- 443- *I9 S.C.R. at pp. 521-2. 57^^ Legislative Power in Canada. Prop. 51 ticular company which was insolvent and the dis- tribution of its assets would not be beyond the competency of the Dominion parliament. . . It is easy to imagine cases arising in connection with bankruptcy proceedings under a general law where special legislation would be required, such, for in- stance, as the necessity for curing some irregularity so as to validate or remove doubts as to titles taken under the proceedings. There must be power to do this in one legislature or the other, ^ and I take it to be obvious that the power would be in the Dominion legislature alone. Such legislation would be like that now under consideration, special legislation addressed to an individual case, but it would not on that account be ultra vires.'' In the Court of first instance. Street, Special Acts T ^^ witliout mentioning the above Privy Council in matters of -" ^ ■' insolvency, judgment. Said : — " The right to pass a general law of the kind must also involve the power to pass a special law to meet a particular case ; the local legis- lature having no power to deal with insolvency legis- lation at all are debarred from passing either a general or special Act, and the right must therefore exist in the other legislature." In the Ontario Court of Ap- peal, Hagarty, C.J.O., and Osier, J. A., agreed that the Act was intra vires. Burton, J. A., did not find it necessary, in the view he took, to consider the question-' whether the Dominion parliament " were empowered to pass a law affecting only a particular firm who were in embarrassed or insolvent circum- stances, and making a special bankruptcy law ap- plicable to that particular firm." Maclennan, J.A.^ iCr. per Osier, J. A., S.C., 17 O.A.K. at pp. 443-4, and Proposition, 26. •■^17 O.R. at p. 61S. ■■'17 O.A.K. at pp. 4323. Dominion Local ok Private Laws. 571 alone expressed the view that ^ "the power of legisla- Prop. 51 tion over bankruptcy or insolvency, which was intend- ed to be conferred on the Dominion parliament, was the same as had been exercised by the Imperial par- liament and by the provincial legislatures before Con- federation, namely, the passing of laws more or less Bankruptcy general in their application, with proper courts and vency."" procedure and machinery for carrying them into effect, and not Acts declaring a particular person or firm or corporation bankrupt or insolvent, or putting their affairs into a course of liquidation." Legis- lation of the latter kind, he held, was " intended to be given to the legislatures of the provinces, as matters of property and civil rights, and matters of a merely local and private nature. "- ■17 O.A.R. at pp. 452-3. -See, also, supra at pp. 385-6. As Mr. Clement says in The Law of the Canadian Constitution, at p. 355, the judgment of the Supreme Court in Quirt v. The Queen "must be taken as conclusive upon all Canadian Courts, that the power of the Dominion parliament under the various sub-sections of section 91," {sc, of the British North .America Act), " does extend to private bill legislation so long as the subject-mat- ter legislated upon can be fairly said to fall within any of those sub- sections." See, also, ibid.-aX pp. 352 and 464-5. In tlie former place, Mr. Clement refers in this connection to the fact that the Privy Councii has affirmed the right of the Dominion parliament to incorporate com- panies : as to which see supra p. 504. Whether the Act in question in Qui,t v. Quirt £>. The (^ueen was properly regarded as within the category of The uueen. bankruptcy and insolvency legislation seems somewhat doubtful since the decision of the Privy Council in reference to the Ontario Act as to assignments for creditors, .\ttorney-General of Ontario v. Attorney- General of Canada, [1S94] A.C. 189. See per Burton, J. A., S.C, 20 O.A.R. at pp. 496-8. Perhaps, however, such view may still be up- held on the ground that the Act amounted to a bankruptcy proceeding by Parliament itself z« iiivituni against the insolvent institution. And see per Street, J., in Regina v. County of Wellington, 17 O.R. at p. 618. In the Court of Appeal in that case (17 O.A.R. at p. 428), Hagarty, C.J.O., placed the Act in question rather under the Dominion power over banking and the incorporation of banks, saying : — " It per- haps may be objected that such special legislation may be faulty. I hardly see this, where the special legislation is in reference to settling the affairs of an institution wholly the creation of Parliament, and wholly outside the creative powers of the provinces ;" as to which cf. supra p. 457, n. 2 ; and Ross v. Guilbault, 4 L.N. 415, (1S81) ; Ross V. The Canada Agricultural Insurance Co., 5 L.N. 22, (1SS2). In the 572 Legislative Power in Canada. Prop. 51 It is in harmony with the leading Proposition that in the case of the Picton,^ the Supreme Court unani- mously affirmed the validity of the Dominion Act constituting the Maritime Court of Ontario, al- though it was contended that as a Dominion Court its jurisdiction could not properly be limited to one province. The judgment of the Court pro- ceeded on the Dominion powers over ' navigation The Mari- and shipping,' and 'the regulation of trade and com- time Court ... . of Ontario, mcrcc,' iu conjunction \vith that given by section loi of the British North America Act to establish Courts for the better administration of the laws of Canada.- Ritchie, C.J., dismissed the opposing contention as not arguable, and said: — " You might as well contend that the Exchequer Court Act is idtra vires, because some parts are only applicable to one province."-' Dominion But the corrcctncss of the leading Proposition residuary . .... power. m respect to laws m relation to the enumerated classes of Dominion subjects may seem more obvious than in respect to other Dominion laws for the peace, order, and good government of Canada,* not only because those classes of sub- jects are assigned, ' notwithstanding anything in this Act,' and, therefore, notwithstanding an}' legislative powers given' to the provinces, exclu- sively to the Dominion parHament,'' but, also, Supreme Court in Quirt v. The Queen, 19 S.C. R. at p. 514, Ritchie, C. [., also rested the validity of the legislation in question on ' banking and the incorporation of banks.' I4 S.C.R. 648, I Cart. 557, (1S79). -As to section loi, see supra p. 515, n. i ; also Farwell v. The Queen, 22 S.C.R. at p]5. 561 2. ^See, further, upon the suljjects under discussion. Proposition 33 and the notes thereto, supra at pp. 381-6. ■^See supra pp. 308-9, 494. ^See supra pp. 427-9. Local Dominion Laws. 573 because of the concluding clause of section 91 J Prop. 51 For although the Privy Council have in their recent judgment on The Liquor Prohibition Appeal, 1895,- construed this clause as intended " to derogate from the legislative authority given to provincial legislatures" by the sixteen sub-sections of section 92 of the British North America Act, "to the extent of enabling the parliament of Canada to deal with matters local or private, in those cases where such legislation is necessarily incidental to the exercise of the powers conferred upon it by the enumerative heads of clause 91 "•^; it would seem, also, to have the further meaning and effect, that The last the legislatures of the provinces cannot legislate on sec^y, r .1 1 ] ... • i-- r H.N. A. Act. any 01 the enumerated matters in section gi tor their own provinces under the pretence or conten- tion that the legislation is of a provincial or local character. And such is the force attributed to it by Strong, C.J., in the case just referred to of Quirt v. The Queen,* where he says: — "The only reason- able ground upon which such enactments as these under consideration could be rejected from the category of bankruptcy and insolvency statutes authorized by section 91, sub-section 21, would be that they were special and not general laws, and, therefore, were to be considered as assigned to the provincial legislature under the i6th clause ^As to which see, further. Proposition 59 and the note? thereto. ^^[1896] A.C. 34S, at pp. 359-60. See supra p. 393, n. i. ^See sitp)-a p. 430, n. 4. *I9 S.C.R. at p. 516. Cf. Clement on the Law of the Canadian Constitution, at ])p. 352-3. And see the notes to Proposition 59. As to Dominion bankruptcy and insolvency Acts, applying to one or more provinces only, see per Hagarty, C.J.O., in Clarlcson v. The Ontario Bank, 15 O.A.R. at p. 178, 4 Cart, at p. 513; per Osier, J. A., S.C, 15 O.A.R. at p. 191, 4 Cart, at pp. 528-9. 574 Legislative Power in Canada. Dominion residuary power. Prop. 51 of section gi, which authorizes legislation on matters of a local and private nature within the province. The answer to this, however, is, that any matter which comes within the terms of any of the subjects enumerated in section gi, although in other respects it might be classed under the head of local and private legislation, is expressly excepted from the powers of the provincial legis- lature by the last clause of section gi."^ Nevertheless the Proposition under consideration seems equally correct in its application to the Do- minion power under the introductory provisions of section gi of the British North America Act to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects assigned exclusively to the provinces, even though such matters are not within the classes of subjects enumerated in that section, which latter are only stated as examples of the Dominion legislative powers.- As pointed out b\- the Privy Council in the recent Liquor Prohibition Appeal, i8g5,^ the Parliament of Canada does not derive jurisdiction from these introductory pro- visions of section gi " to deal with any matter which is in substance local or provincial, and does ^In the argument in the recent Liquor Prohibition Appeal, 1895, on Mr. Haldane saying : — " The enumeration in section 91 is only for greater certainty as is stated," Lord Davey says : — " The enumeration has some value besides that, because if it comes within the enumerated matters, then it is not of a local or private nature, because it is confined to the locality, so that it has something more than that value ": print- ed report, at p. 142; see ibid., pp. 163, 195, and 212, at which last place Lord VVatson says :— " No pretext could be made by the pro- vincial legislature that it could legislate on the subject of bankruptcy. " And so Lord Davey, ibid, at p. 244. -See supra pp. 30S-9, 494 ; and Proposition 26 and the notes thereto. :i[iS96] A.C. 348, at p. 361. Local Dominion Laws. 575 not truly affect the interest of the Dominion as a Prop. 51 whole;" but "some matters in their origin local and provincial/might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian parliament in passing laws for their regulation or abolition, in the interest of the Dominion;" and although, as Lord Her- schell stated on the recent argument before the Board m Fielding v. Thomas^ — " there can be no doubt, speaking generally, that the object and Dominion . . . . legislation scheme of the Act is in section qi to give the forpanicuiar . provinces. Dominion parliament those things which were to be dealt with as a whole for the whole Dominion ; that is the scheme of it "; yet in the words of Lord Davey, immediately preceding, it seems clear that — " if the particular circumstances of any province demanded a particular kind of legislation which was within the ambit of the Dominion parliament, the Dominion parliament might pass an Act relating to only one province."- Direct authority on the subject is not, indeed, to be found in reported decisions, but it has been considerably discussed in various other arguments before the Judicial Committee, and in a manner which tends to confirm the correctness of this con- clusion. Thus in the argument in Hodge v. The '[1896] A.C. 600. See manuscript transciijDt from the shorthand notes of Cock and Kight, at p. 50. *Mr. Edward Blake, who was arguing the case for the respondent, the plaintiff, replied to Lord Davey's observation : — " That has been the rule " ; and Lord Davey then read the concluding clause of section 91, al)ove referred to, whereupon Lord Ilerschell said : — " If you cannot find it in section 92 anywhere, it is in section 91. Only then the doubt that occurred to me was whether under section 91 they could deal otherwise than with the whole of Canada." Lord Watson refers to the fact as notable that section 94 gives Parliament power to legislate for a single province for the purpose of producing uniformity. See, also, section 95. 57^ Legislative Power in Canada. Prop. 51 Queen, ^ Mr. Jeune, who was of counsel, said : — " In the division of subjects by the British North America Act the way in which the legislation is divided between the provinces and the Dominion is not with reference to the area to which the legislation is to apply, but with reference to the subject-matter of that legislation. Of course, when the Imperial par- liament took upon itself the duty of apportioning the legislative functions between the Dominion and the provinces it would have been possible to have pro- ceeded on the principle of the division of legislation Distribution by area; that is to sav, they might have said a 1 if power "" _ . ' ./ o under proviiice may legislate with reference to all matters B.N. A. .Act f . "' is by subject- in the proviuce, but where you have legislation ex- matter, not ■■ ■ . by area. tcudiug ovcr the wholc Dominioii that legislation shall be given to the Dominion. That would have been a possible mode of dividing the legislative func- tions. It is obvious that it would have been a very inconvenient one, and probably one in which- would very soon have found itself in inextricable difficulties, because, of course, these difficulties would have arisen, that it would have been extremely difficult to say that the Dominion, having power to legislate for the four provinces, should not have the power to legis- late for three, or for two, or for one. It would have been almost absurd to say that the Dominion should have no power to legislate unless their legislation was such as was capable of being similarly enforced with reference to all the provinces. It would have been almost absurd in any case when one considers the vast natural differences which exist between the four provinces ; some of them more inland than others ; iDom. Sess. Pap., 1884, Vol. 17, No. 30, at pp. 62-3. -There is a word missing here in the reprint ; perhaps " Canada " may be suggested. Local Dominion Laws. 577 some more crowded than others, and in altogether Prop. 51 different positions ; but the absurdity is brought to its highest point when one considers that two wholly different sets of laws (are) in force within the prov- inces, and that while the province of Quebec had its laws based on the laws of France, the province of Ontario would have its laws based on the common law of England. . . The Constitution of Can- ada has proceeded upon this principle, that certain subjects are given expressly and exclusively, — and I think stress is to be laid on the word " expressly,"^ — to the provinces. Certain other subjects are given CO nomine, and expressly to the Dominion." He then proceeds to make some remarks which, Special though directed to the enumerated classes of special T-v • • 1 • 1 ■ K r localities. Dominion subjects only, are worth quoting. After referring to the rule laid down in Citizens In- surance Company v. Parsons,- from which Pro- position 58 is derived^ ; and, pointing out that that rule states that in determining the validity of a provincial Act " you have hrst to see whether a thing is expressly in the list as a provincial matter as regards its subject-matter, not as regards its area of legislation," he says : — " There are things that strike one's eye at once, where it is obvious that legislation would affect provinces in a very different degree. For example, matters like beacons and lighthouses, and I see even the individual case of Sable Island.* , . Clearly legislation with re- gard to things like beacons and lighthouses, although ^It seems probable this is a misreport for 'exclusively'; as to which see, however, the notes to Proposiuon4i, supra, pp. 487-494 ; also, supra, pp. 432-3. 27 App. Cas. 96, I Cart. 265, (1881). 'See, also. Proposition 43. *No. 9 of section 91. 37 57^ Legislative Power in Canada. Prop. 51 made by the Dominion, must be legislation of a local character. . . Sable Island is a place where for lighting purposes it is necessar}' juris- diction should be exercised; therefore legislation with regard to that would be legislation as regarded its area as local as any legislation could be, but it is within the Dominion, because the subject-matter is given to the Dominion — that applies to every single one of that list of subjects. The}' are all matters in which the Dominion can legislate, either by the general law applying to all the provinces, or by a law applying to particular parts of the Dominion." And these remarks were listened to by the Board without interruption or question. ' Merely And in the still earlier argument in Russell v. private The Quccn,^ one of the counsel, Mr. Fullarton, in the . . i tt province.' makcs somc interesting remarks. He says : — " What is the meaning of the words ' matters of a merely local or private nature in the pro- vince ' ? . . . It does not mean that anything that happens to be limited in its locality, though it is of public importance in its nature, is without the bounds of the legislative powers of the Do- minion ; but it only means, if it is a matter so merely local in its nature that it could only interest that locality, and could not affect any person outside that locality, then it is not a matter which the Dominion ought to deal with. . . Could it for a moment be contested, for instance, that if for the reasons of the public safety of the Dominion of Canada, it were desirable to prevent the manufac- ture and storing of gunpowder, or of dynamite, or any other thing that might be used for defensive or military purposes in Montreal, and if it were adjudged i2nd day, at p. 119. See p. 398, n. I, supra. Local Dominion Laws. 579 by the Dominion of Canada unsafe that such should ^''^p- 5i be permitted to be done or continued there at all, or without certain strict regulations, could it be argued for a moment that they could not pass an Act for regulatmg and storing gunpowder and munitions of war in the town of Montreal, or in the town of Quebec, because it did not transcend in mere area a definite locality, much smaller than a province, or within a province ? The answer would be it is not a matter of a merely local or private nature, because the safety of Canada concerns the public, and it would be threatened by the storing of munitions of Test is war, gunpowder, or dynamite in Montreal, because TnteresT' ^ they might be seized by a foreign power coming from theioraiuy. the sea, or by the United States from land, or if there were any public rising in Canada itself. . . . It therefore cannot be tested by looking at whether a thing occurs in a narrow locality, but whether it is not of a nature the interests of which transcend that locality, and which affect a more public interest than that of a single person or a single village."! Again, in Huson y. Township of South Norwich, - Strong, C.J., says :— " It is established by Russell v. The Queen, '^ that the Dominion being invested with authority by section gi to make laws for the peace, order, and good government of Canada may pass what are denominated local option laws. But, as I understand that decision, such Dominion laws must be general laws, not limited to any particular prov- ince." But when, on the argument before the ^Cf. per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C.R, at pp. 212-3. -24 S.C.R. at p. 147. (1895). ^7 App. Cas. 829, 2 Cart. 12. 580 Legislative Power in Canada. Prop. 51 Privy Council on The Liquor Prohibition Appeal, 1895,^ these words were quoted by Mr. Haldane, Lord Watson observed : — " I am not sure ; it is always dangerous to lay down a proposition of that kind. I do not know that they must be general laws not limited to any particular province, that they must be for the benefit of the whole of the provinces. It is much too narrow to say that." Whereupon Lord Herschell said : — " But to legis- late in a matter which is a local matter for one Dominion proviucc Only, and merely say we thought it would not extend bc for the benefit of all Canada that Ontario should to every province, bc made a very sober place, would be to my mind legislation about which there would be a good deal of question. I think it is too narrow to say that the law must extend to every province ; but, on the other hand, the general idea that it must not be local legislation in a particular province, though it is by the Dominion parliament "';" and Lord Morris interrupts with : — " I think the Chief Justice is only dealing with the local option law^. It is the local option laws, and I think he is strictl}- right. "^ And again, in the course of the same argument,* Mr. Edward Blake says, in words which may well be adopted as a correct summary of the whole matter : — " You have the powers limited, when you come to the province, by the area and the objects ; provincial area and provincial objects are the scope. I think each ons of the provincial powers is indicated in itself to be for provincial purposes. In- 1 Printed report, pp. 149 50 See, supra, p. 398, n. i. ^And see, also, per Lord llerschell, ibid., at p. 231. ^See, also, ibid pp. 203-4 ; and the remarks of Lord Herschell, quoted, supra, pp 507-9. * Printed report, p. 229 Local Dominion Laws. 581 stead of setting that out generally at the commence- Prop. £t ment, in each oneofthe articles it is specifically stated. ~ But you find, on the contrary, unlimited, save by the express exception, general powers both as to scope, area, and objects in the Dominion. There is, there- fore, as I submit, nothing whatever to mdicate in the least degree that the power of the parliament of Canada was so limited as to those subjects on which it might enact that it could not, if the welfare of the whole community in its opinion demanded, enact with reference to particular parts of that community. Summary- i.y ...,. ,.,, . . " Mr. Edward the legislation which the condition 01 that part make might, in the interest of all, specially demand. It is quite true that it was hoped and expected, and it was a reasonable hope and expectation, that, as a rule, the legislation would be general, extending over the whole area, the subjects being common. But there is nothing in these powers which pre- scribes any such limitation, and it is perfectly clear that the peace, welfare, and good government of the whole community may demand within the undis- puted bounds of the legislative powers of the Do- minion an Act of Parliament affecting directly not the whole area, not the whole community, but some part of that community, as to these matters on which the Dominion has power to legislate for all."' 'On the argument in the Matter of the Dominion Liquor License Acts, 18834, before the Supreme Court of Canada, Ritchie, C.J., ob.served : — " If the Dominion parliament have the power to deal with this subject,"' (regulation of the liquor traffic), " surely they are not bound to make the same provisions for every county. They must judge of the necessities of each individual province, if they have the general power to deal with it ": Dom. Sess. Pap., 1885, No. 85, P- 135- The view of the law expressed in the text is, of course, quite at variance with that of Mr. Justice Loranger, referred to supra, pp. 316-7, q.v. Cf. per Mathieu, J., in Export Lumber Co. v. Lambe, 13 R.L. at pp. 889,(1885), who, referring to section 91 of the British North America Act, says :— " Le mot ' exclusif ' ne doit pas etre pris a la lettre, mais doit seulement s'interpreter comme manifestant I'intention des provinces que le parlement du Canada aurait le pouvoir exclusif de faire des lois pour toutes les provinces et pour I'Union, mais seulement pour TUnion sur les sujets qui y sont mentionncs.'' 582 Legislative Power in Canada. PROPOSITIONS 52, 53. and 54. 52. As to matters coming within the classes of subjects enumerated in section 91 of the British North America Act, over which the exclusive legislative authority of the Parliament of Canada is declared to extend, there is not to be found one word expressing or implying the right to interfere with Provincial executive auth- ority. 53. We are not to assume, without express words or unavoidable implication, that it was the intention of the Imperial Legislature to confer upon the Dominion Parliament the power to encroach upon private and local rights of property, which by other sections of the Act have been especially confided to the protection and disposition of another legislature.' 54. When a question arises as to whether the Dominion Parliament has power in any case over any property or ^It is well to note at once that the rule of law embodied in this Proposition has not yet, at the time of going to press, come before the Privy Council. It will doubtless do so on the pending appeal from the decision in In re Provincial Fisheries, 26 S.C.R. 444, in which the Supreme Court uphold it. Provinciai, Executive Authority. 583 civil rights in a Province, it is always Prop- 52.4 necessary to form an accurate judgment upon what is the particular subject-matter in each case, for the extent of the control of Parliament over the subject-matter may possibly be limited by the nature of the subject. Decisions upon questions arising under the sections of the British North America Act relating to public property referred to and discussed. Proposition 52 is in the words of Ritchie, C.J., Do^ini^^^ in Mercer v. The Attorney-General of the Province Pr^^^^nciaT^ of Ontario,' who adds the words " or property and '"^°''''^'^'' its incidents." And no doubt, as the Privy Council say in St. Catharines Milling and Lumber Co. v. The Queen-: — "There can be no rr/)r/orz probability that the British legislature, in a branch of the statute which professes to deal only with the distribution of legislative power, intended to deprive the provinces of rights which are expressly given them in that branch of it which relates to the distribution of revenues and assets." But it is submitted that there mav be cases where, in accordance with the principle em- bodied in Proposition ^y, the Dominion parliament may have power to interfere with provincial property in order to the effectual exercise of the enumerated powers conferred upon it by section 91. A case in '5 S C.R. at p. 638, 3 Cart, at p. 29, (1881). Cf. per Ritchie, C.J., S.C, 5 S.C.R. at p. 644, 3 Cart, at p. 33. See, also, Prop. S. ^14 App. Cas. at p. 59, 4 Cart, at p. 125, (:88S). 5^4 Legislative Power in Canada. Prop. 52-4 point is suggested by Booth v. Mclntyre/ where the question is mooted whether the Dominion parhament Dominion cannot confer on those railway companies which are raiKva\ s and . , . . , . . . , . . , . , „ provincial withm its exclusive jurisdiction the right oi con- structing their Hne through the waste lands of the Crown in the several provinces through which they run without obtaining the permission of the Lieutenant-Governor in Council, though that may be prescribed as necessary b}' Act of the pro- vince, as by R.S.O., 1877, c. 165, s. 9, s-s. 3, in respect to all railways subject to the legislative authority of the province. And it may be well also to recall in this connection section 117 of the British North America Act which provides that: — "The severalprovinces shall retain all their respective public property not otherwise disposed of in this Act, subject to the right of Canada to assume any lands or pub- lic property required for fortifications or for the defence of the country." Proposition 53 is in the words of Strong, J., in The Queen v. Robertson,- who observes that it is analo- gous to the well-recognized principle in regard to the interpretation of statutes, that we are to assume Dominion powers and provincial property. Prop. 53. '31C.P. atp. 193,(1880). -6 S.C.R. at p. 134, 2 Cart, at p. 107, (1S82). See, also, sufra pp. 24-5. This case is referred to in Venning v. Steadman, 9 S.C.R. 206, per Sliong, J., at p. 214, per Fournier, J-, at pp. 221-2, and per Henry, J., at pp. 224-5, who, at p. 226, observes that Parliament might have power to re(iuire people to take out licenses to fish on their own lands, though he curiously adds that such " extreme right " of legislation '''could only be exercised where there was an extreme public necessity for it," as to which see Proposition 17 and the notes thereto. In Phair 7'. Venning, 22 N.B. 362, where the judges also discuss the Queen 7'. Robertson, Palmer, J. (at p. 372), says that he thinks that " a law that would prevent a person using his fishery at any time or in any way without the authority of the Dominion government, would be a law wholly destructive of the property in the fishery, and consequently an absorption of the whole powers of the local legislature to make laws relating to that property," and would be it/tra vires of the Federal parliament. DoMiNiux Powers and Property Rights. 585 nothing calculated to impair private rights of owner- Prop. 52-4 ship, unless compelled to do so by express words or necessary implication ; and in conformity with it the Supreme Court held in that case that the British xheyueen ■»T 1 . • . • • • . -r> 1 • , ii ^'- Robertson North America /\.ct, m assigning to Parliament the right to legislate with respect to ' sea coast and inland fisheries,' did not thereby give authority to deal with questions of property or civil rights, such as the ownership of the beds of the rivers or of the fisheries, or the right of individuals or the provinces therein ; for that, in the words of Strong, J.,,^ there was no difference in this respect " between the rie:hts of private owners which had been acauired'Sea coast ^ * . ^ and inland by grant from the Crown before Confederation, and fisheries.' the rights of the provincial governments in respect of fisheries in non-navigable rivers, the beds of which, not having been granted, were vested in the provinces at that date"; and in the words of Ritchie, C.J.,- that "any lease granted by the Min- ister of Marine and Fisheries to fish in such fresh water non-tidal rivers, which are not the property of the Dominion, or in which the soil is not in the Domin- ion, is illegal."^ And this decision and the rule of interpreta- No. izof tion ot the Dominion powers expressed in Pro- h.n.a. Act. position 53 have recently been followed and reaffirmed b}- the Supreme Court in In re Pro- vincial Fisheries,* (Gwynne, J., however, dissent- ing, whose view will be referred to presently), 16 S.C.R. at p. 135, 2 Cart, at p. io8. =6 S.C.R. at p. 126, 2 Cart, at p. 98. ^Notwithstanding section 4 of the Dominion Fisheries Act, R..S.C., c. 95, which provided : — "The Minister of .Marine and Fisherie.s may, wherever the e.xclusive right of fishing does not aheady exist by law, issue or authorize to he issued fishery leases and licenses for fisheries and fishing wheresoever situated or carried on, etc." '26 S.C.R. 444. 586 Legislative Power in Canada. Prop. 52-4 in answer to questions submitted on behalf of the Governor-General under R.S.C., c. 135, as amended by 54-55 \'ict., c. 25, s. 4/ as to the jurisdic lion of the Dominion parliament to authorize the giving by lease, license, or otherwise of the right of fishing in navigable or non-navigable lakes, rivers, streams, and waters, the beds of which had been granted to private proprietors before Confederation, or not havmg been so granted are assigned to the provinces under the British North America Act. Power to The Court follows Queen v. Robertson, and holds feTsel'^''''"^ that the legislative authority of Parliament under section gi, No. 12, of the Act, is confined to the conser- vation of the fisheries, by what may be conveniently designated as police regulations,- and that the Dominion has no such right of leasing or licensing in the case either of navigable or non-navigable, tidal or non-tidal waters.'' And the view expressed by Ritchie, E.[., in Windsor and Annapolis R.W. Co. v. The Western Counties R.W. Co.,* presently to be again referred to, seems to be in conformity with the Proposition under consideration, namely, that though the Domin- ion parliament has unquestionably the right to legis- late as to and dispose of any property belonging to the lAs to 54-5 Vict. c. 25, s. 4, D., see supra p. 126, n. 2. In /n re- Provincial Fisheries, Taschereau, J., declined to answer two of the questions submitted, saying: — "The words 'important questions of law or fact touching provincial legislation,' in 54-55 Vict., c. 25, s. 4, mean, in my opinion, touching provincial legislation enacted since Con- federation, and the words ' touching any other matter' mean any other matter of the same nature, /.<•., on the law, either federal or provincial, since Confederation. But I do not think that under the intent of that enactment we are called upon to determine what was the law in ary of the provinces before Confederation : " 26 S.C. R. at p. 540. ^See, uipra, p. 556, n. 2. •"•Excepting presumably as to the water in harbours, the beds of which, as will he presently seen, they reaffirm Ilolman v. Green, 6 S.C. K. 707, 2 Cart. 147, in holding to be the property of the Dominion. *Russ. Eq. at p. 307. Dominion Powers and Property Rights, 587 Dominion^ it has only the right " to dispose of the Prop. 52-4 interest it may have in such property." The ques- tion before him was as to the right of the Dominion parhament to legislate in relation to the Windsor Branch railway, a provincial railway which had passed to it at Confederation under schedule 3 and section 108 of the British North America Act, in derogation of certain running powers and other rights over it granted or leased to a Dominion , /■ /-^ r J • powers in certain private railway before Confederation, re.pect to Dominion Ritchie, E.J., says: — "If, for instance, when the property. Windsor railroad was originally made over to the Dominion the right to the use of it at a rent had been reserved to the province of Nova Scotia for a period of years, could the Dominion government dispose of the interest so reserved to the province ? Clearly not, and, if not, neither could they dispose of the interest of their lessee which was so reserved. While property of the Dominion is one of the sub- jects over which the parliament of Canada has the power of legislating, private property and civil rights were placed within the powers of the local legislature, and private property and civil rights are both invaded by this Act, if the right to the pos- session of the railroad in question belongs under this agreement to the plaintiffs?"- ^See section 91, No. i, of the British North America Act. rSee, however, infra at pp. 5S8 90. See, also, sii/>m, pp. 18-20, as to the views expressed by Fisher, J., in The Oueen t. The City of Freder- icton, 3 P. & B. at pp. 169-70, (1879). In Bayer v. Kaizer, 26 N.S. 280, (1894), where the ])Iaintifif had had his nets seized and forfeited for not having them raised so as to allow of the free passage of fish Dominion _ between the hours mentioned in R. S.C. , c. 95, s. 14, s-s. 14, the fi'^l}«''y '^gis- County Court judge of the district of Halifax held that forfeiture and '*"°"- confiscation were not necessary to the \\orking of the Fisheries Act, and that the above provision in that regard was ti/fra vifes of the Dominion parliament, as a manifest interference with property and civil rights. It appears, however, that on appeal to the Supreme Court of the province, counsel for the plaintiff virtually admitted that the judgment 5^8 LEGisLAini-: Powiik in Canada. Prop. 52-4 It is well to observe, however, that in Robertson V. Steadman,^ which ma\- be said to mark the incep- tion of the litigation which terminated in The Queen V. Robertson in the Supreme Court of Canada, the Supreme Court of New Brunswick, (Fisher, J., dis- senting), had arrived at a different conclusion from Dissenting that iu the latter case, and held that the Dominion opinions as to Dominion parliament had power to grant the exclusive rie^ht to powers over \ _ ... . property fish iu the uou-tidal river there in question, the bed rights. _ _ -^ of which was vested in the province. Allen, C.J., delivering the judgment of the Court savs, (at p. 631) : — " I understand the Imperial parliament .to sav, in effect, in the g2nd section, that all matters affecting property and civil rights in the province shall be under the control of the provincial legis- lature, unless they relate to some of the matters over which the exclusive legislative authority has could not be sustained on this point. As to the enactment in R.S.C., c. 95, s. 17, s-s. 4, that in discharge of his duties any fishery officer may enter upon or pass through or over private property without being liable to trespass," Graham, E.J., says, in this case, (p. 289): — " Wiien there is power to regulate the inland fisheries, it is absolutely necessary, in order to have the regulations carried out, that power should be given to go on private property," and he holds that the power of forfeiture was similarly necessary. As to this case it further appears Dominion that the County Court judge held the decision of the Supreme Court in fishery legis- Queen 7\ Robertson to have established that fresh non-tidal waters '■ which are not the property of the Donnnion, or in which the soil is not in the Dominion, are not 'inland fisheries' within the meaning of No. 12 of section 91. But the Supreme Court of the province took a different view, upholding the jurisdiction of the Dominion parliament to pass the legislation under which the plaintiff's nets were seized, though the locus was a fresh non-tidal water. See this case also discussed in an article on sea coast and inland fisheries, 13 C. L.T. 231. In /;; re Provincial Fisheries, 26S.C. K. at p. 540, however, Taschereau, j., also speaks as though he thought provincial legislatures might have a jurisdiction over fisheries in non-navigable rivers and lakes, which they would not have over those in navigable waters, but the other judges indicate no such view, nor is Taschereau, J., explicit ■as to his. An appeal in this case to the Privy Council is pending as this goes to press. And see as to forfeiture of fishing materials, Mowat V. McP^ee, 5 S.C.R. 66, (iSSo). '3 Pugs. 621, (1876). Dominion Powers and Property Rights. 589 been given to the Dominion parliament by the 91st Prop. 52-4 section.''^ And in In re Provincial Fisheries, Gwynne, J., emphatically dissents from the principle of con- struction expressed in Proposition 53, as interpre- ted by the judgment of the Supreme Court in Queen V. Robertson, saying :"- — " No jurisdiction is given to the provincial legislatures, or any of them, over any- thing whatever under the term ' fisheries.' What- ever comes within that term is given exclusively to the Dominion parliament, and that term as used in Dissenting /- , • 11- • • opinion as to Item 12 01 section 91 comprehends, m my opmion Dominion not merely regulations for the protection of the fish grrnTfi°hing and prescribing the times and seasons and modes of ^^'' ' fishing, but also provisions for . . . granting leases or licenses to take fish at certain places or in certain waters, to as full an extent, in short, as the parlia- ment of the late province of Canada, or of the sev- eral other provinces, prior to Confederation, could have done within their respective provinces. ' Fish- eries ' being provided for specially in section 91, none of the powers conferred on provincial legis- latures by the items enumerated in section 92 can in any manner detract from, qualify, or affect the power vested in the Dominion parliament over whatever comes within the term ' sea coast and inland fisheries.' This is the plain result of the last clause of section 91." . . . There is no difficulty ^See the words of the Privy Council in Tennant v. The Union Bank of Canada, [1894] A.C. at p. 45, noted, supra, pp. 427-9 ; also, supra, pp. 432-5. When the case of Steadman v. Robertson, 2 P. & B. 580, (1879), came before the Supreme Court of New Biunswick, somewhat differently composed, the majority came to a different conclusion from that in Robertson v. Steadman just referred to, and held as did the Supreme Court of Canada in The Queen v. Robertson, Weldon, J., who sat in both cases, having apparently changed his opinion. ~ 226 S.C.R. at pp. 5424, (1896). ^As to which see Proposition 59 and the notes thereto. 590 Lhgislative Power in Canada. Prop. 52-4 whatever that I can see in holding the ' fisheries' in in- land waters to be placed exchisively under the jurisdic- tion of the Dominion, even though the beds of those waters may be the property of the provinces, and I can see no principle whatever upon which the term ' sea coast and inland fisheries ' should be given a Dominion limited construction, or upon which language used proplny''" in prescribing the limits of the jurisdiction of the "^ '"' Dominion parliament should be construed in the narrowest and most limited sense, while the lang- uage used in prescribing the limits of the jurisdic- tion of the provincial legislatures should be construed in a most unlimited sense." ^ On the appeal to the Judicial Committee in this case, pending as this portion of the present work goes to press, one or other of these conflicting views of the proper con- struction of the British North America Act in this important matter will no doubt be finally determined. Prop. 54. Passing now to Proposition 54, it is suggested by the words of Gwynne, J., in The Queen v. Robert- son,- and he explains his meaning as follows: — " For example, the first item enumerated in the 91st sec- tion as placed under the exclusive control of the Parliament is * the public debt and property,' and by section 108 the provincial public works and property are declared to be the property of Canada. The jurisdiction of Parliament over such property is in virtue of the subject-matter being the property of Canada ; but if Parliament should so legislate as to dispose absolutely by sale of portions of this property from time to time, it may well be that the property so sold, when it should become the prop- ^ All this is in accordance with Gwynne, J.'s views expressed in The Queen z'. Robertson, 6 S.CR. atp. 6^,et seq., 2 Cart, at p. 119,^/^^^., (1882). ^6 S.CR. at pp. 65-6, 2 Cart, at pp. 119-20, (18S2). Power over Property. 591 erty of individuals, should be no longer subject to Prop. 52 4 the control of the Dominion parliament any more than any other property of an individual should be."^ But as Gwynne, J., goes on to observe, over most Dominion r 1 1 • 1-1 -1 legislative or the subjects enumerated in the qist section, the power and ■ 1 r 1 • • 1 • 1 • 1 • provincial right of the Dominion parliament to legislate is property, wholly irrespective of there being any property in the several subjects vested in the Dominion; and so in St. Catharines Milling and Lumber Co. v. The Queen,- where it was urged in favour of the Domin- ion that, inasmuch as No. 24 of section gi of the British North America Act in express terms confers on the parliament of Canada power to make laws in relation to ' Indians and lands reserved for the Indians,' the exclusive power of legislation and Indian lands administration carries with it by necessary implica- tion any patrimonial interest which the Crown might have had in the reserved land, the Priv}^ Council held' the contrary, and that under section log of the Act the proprietary interest of the Crown in lands reserved to Indians at the time of Confederation passed to the respective provinces. They say :"' — "There can be no a priori probability that the British legislature, in a branch of the statute Vv'hich pro- fesses to deal only with the distribution of legislative power, intended to deprive the provinces of rights ^And so in Attorney-General of British Columbia i>. The Attorney- General of Canada, 14 App. Gas. at p. 302, 4 Cart, at pp. 249 50, (1889), where the Privy Council were dealing with the tights of pro- perty of the Crown, as represented by the Dominion government, in what is known as the Railway Belt in British Columbia, they say : — " The object of the Dominion government was to recoup the cost of constructing the railway by selling the land to settlers. Whenever land is so disposed of the interest of the Dominion comes to an end. The land then ceases to be public land, and reverts to the same posi- tion as if it had been settled by the provincial government in the ordinary course of its administration." *I4 App. Cas. 46, 4 Cart. 107, (1888). ^14 App. Cas. at p. 59, 4 Cart, at p. 125. 592 Legislative Power in Canada. Prop. 52-4 which are expressly given them in that branch of it which relates to the distribution of revenues and assets. The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial inter- est in these lands, available to them as a source of revenue whenever the estate of the Crown is disen- vestingof cumbered of the Indian title." And so in the same property not . \ r^ . • /^ r » i t-« to be inferred case 111 the Uutario Court or Appeal, Patterson, from gift of 1 1 • • 1 r legislative J. A., savs ' that it IS clear irom reading section lo.b, and the third schedule therein referred to, along with section 91, " that in the scheme of the xAct the vesting of property in the Dominion as against the provinces was not intended to follow or to be inferred merely from the bestowal of exclusive legislative jurisdiction over the subjects with which the prop- erty was connected. Thus while exclusive legisla- tive power is given over postal service, militia, mili- tar}^ and naval service and defence, beacons, buoys, lighthouses and Sable Island, navigation and ship- ping, the schedule expressl}' enumerates post offices, " '13 O.A.R. at p. 170, 4 Cart, at p. 211. No. 8 of -No. 8 of schedule 3 of the British North America Act, by the aid Sched. 3, of of section 108, makes the property of Canada, ' custom houses, post K.N..A. Act. offices, and all other public buildings, except such as the government of Canada appropriates for the use of the provincial legislatures and governments.' A question arose in 1893 as to the effect of this on a New Brunswick Act, which assumed to declare the rights of the Crown in respect to what was theiein described as ' Government House pro- perty,' the Act being reserved for the signification of the Governor- Generol's pleasure. By order in Council of February lith, 1870, the property had been appropriated by the Dominion government to the use of the government and legislature of the province of New Bruns- wick, and in a report, as Minister of Justice, on the Act, dated January 26th, 1893, Sir John Thompson expresses the view that : — " That order in C'ouncil constituted an appropriation of the property in ques- tion within the meaning of the statute, changing its character and con- Terting it sud niodo into public property of the province. It did not, as the Minister thinks, vest an absolute title in the Crown in right of the province, but gave the use thereof to the provincial authorities for Power over Property. 593 ordnance property, armouries, drill sheds, etc., light- Prop. 52-4 houses, piers and Sable Island, harbours, river and lake improvements, etc.^ There is, however, nothing answering in the schedule to the ' lands reserved for Indians ' over which, by article 24 of section gi. Parliament has exclusive legislative jurisdiction. "- the purpose specified in the order in Council. He admits that he can- not assert that the matter is free from doubt, but submits any such doubt should not be set at rest by a provincial statute asserting the provincial view, and recommended that no action be taken on the Bill : Hodgins' Provincial Legislation, and ed. at pp. 757-8. *The recent Supreme Court decision in the provincial fisheries jur- No. 5 of isdiction case [In re Provincial Fisheries, 26 S.C.R. 444), overrules, Schedule 3, as one may, perhaps, surmise the Privy Council will do on the pending ^^.^ ' '" ' appeal, the peculiar contention which has from time to time been ad- vanced by the Dominion government that the words 'rivers and lake improvements' mean not 'river improvements' and 'lake improve- ments,' but 'rivers, and lake improvements,' thus making all rivers uiigranted before Confederation the property of the Dominion. Girouard, J., says (26 S.C.R. at p. 565): — "The text has no punc- tuation. The ' s ' thrown in at the end of the word ' river " is, to my mind, a clerical error or misprint. It is not to be found in the Quebec Conference resolutions, nor in the address of the provinces to the Queen ' Rivers and praying for the Confederation Act, which read ' river and lake improve- ^^^^ '"•" inents.' When the Act was first published in the two official languages P'^°^'^"'"^"'''' in Canada the Dominion authorities adopted as correct the following translation, ' ameliorations sur les lacs et rivieres,' which is also to be found in the address of the provinces to the Imperial parliament." All the judges were evidently of the same opinion ; and so, also, per Gwynne, [., in Queen 7>. Robertson, 6 S.C.R. at pp. 9S-9, 2 Cart, at p. 144; Doutre oil the Constitution of Canada at pp. 351-2. See, also, Pope's Confederation Documents at p. loS, from which it seems that the word ' rivers ' first appeared in the London Resolutions of December 4th, 1866. And for reports of Ministers of Justice in which the beds of all rivers ungranted at the time of the passing of the British North A'nerica Act have been claimed as the property of Canada and not to be interfered with by provincial legislatures, see Hodgins' Provincial Legislation, 2nd ed. at pp. 764, 1 122, 1147. ^A writer in 12 C.L.T. 163 observes of the case of St. Catharines Power to Milling and Lumber Co. v. The Queen that : — " It is left undecided e-^tinguish whether a province could of its own motion and power extinguish the ^"'^■^" '" ^• Indian rights. But apparently it could not. To permit that would be to permit an interference with the direct powers of legislation granted to the Dominion parliament." .See, however, per Burton, J. A., S.C., 13 O.A.R. at p. 167, 4 Cart, at p. 208, who considers that provincial authorities undoubtedly have the power to extinguish the Indian title. The further point presents itself whether the legislative power of the provinces over such lands when divested of the Indian title is not con- trolled and limited by the provisions of any treaties made with the 38 594 Legislative Power in Canada. Prop. 52-4 A further illustration of Proposition 54 is supplied by the words of Ramsay, J., in Dobie v. The Tern- Treaties prior to surrender. Nature of Indian title Effect of surrender. Dominion powers over Indians. Indians at the time of their surrender. At all events the Dominion government would doubtless in all cases protect the rights of the Indians under such treaties by exercise of its veto power, as it did in the case of an ordinance of the North- West Territories of 1889, which assumed to restrict rights of hunting contrary to such treaties, and which was disallowed pursuant to the report of Sir John Thompson as Minister of Justice, of August 1st, 1S90 : Hodgins, tdii^. at pp. 1254-6. And so on similar grountls a British Columl>ia Act of 1874, relating to Crown lands in the province, but making no reservations for the Indian tribes, was disallowed : Hodgins, //>/(/. at pp. 1024-8, i/.v., on the general subject of the Indian title. As to that title in Canada being a mere burden on the proprietary estate of the Crown in the lands, and to be ascribed, except in special instances, to the general provisions of the royal proclamation of October 7th, 1863, ^nd as to such Indian lands being, before surrender, vested in the Crown subject to 'an interest other than that of the province in the same»' within the meaning of section 109 of the British North America Act, the tenure of the Indians, however, being only a personal and usufructuary right, depend- ent upon the goodwill of the Sovereign, see St. Catharines Milling and Lumber Co. v. The Queen, 14 App. Cas. 46, 4 Cart. 107, (1888). The fact that under the treaty of surrender, it may still possess exclusive power to regulate the Indians' privilege of hunting and fishing, cannot confer upon the Dominion power to dispose,, by issuing permits or otherwise, of the beneficial interest in the timber which passes to the province : S.C. 14 App. Cas. at p. 60, 4 Cart, at p. 126. Lands sur- rendered by Indians to the Crown, though for a consideration in the nature of an annuity by way of interest accruing from the proceeds of the sale of the lands, do not come within No. 24 of section 91 of the British North America Act as * lands reserved for Indians,' but, on such surrender, become ordinary unpatented lands, and upon being sold to private purchaseis are liable to assessment under provincial Acts, even before patent granted : Church v. Fenton, 28 C.P, 384, i Cart. 831, 4 O.A.R. 159, 5 S.C.R. 239, (1880). Where a tribe of Indians was entitled to enjoy the constituted rents of a certain seigniory, it was held by the Court of Queen's Bench, at Montreal, that though the naked property or naked right of ownership of the constituted rents was vested in the Crown as represented by the province of Quebec, that province held them subject to the usufruct or enjoyr.ient of the Indians, being an interest other than that f)f the province in the same within the meaning of section 109 above referred to, and that it pertained to the Dominion government to sue for and collect the arrears of such rents, that government being entrusted with the administration of the affairs and property of the Indians in Canada, the power to legislate on a subject necessarily implying a right of administration respecting the matter of such subject ; for that the Privy C^'uncil had now held in the Indian Claims case, (referring to the words of Lord Watson, 66 L.J.(P. C. ) at p. 18 ( 1896), that the enumeration of subjects contained in sections 91 and 92 of the British North America Act, not only confers legislative power, but also defines the governmental powers and functions of the vari- ous governments : .Mowatz'. Casgrain, Jan. 20th, 1896, reported in Mont- real Gazette. .See Proposition 8 and the notes thereto. In New Zealand, also, the Crown is bound to recognize native proprietary right: In re Lun- don and Whitaker Claims Acr, 1S71, 2 C.A. 41, at pp. 49-50, (1872). It Power over Property. 595 poralities Board, ^ that thouo^h by No. 13 of section Prop. 52-4 92 provincial legislatures may exclusively make laws in relation to property and civil rights in the prov- ince, this is not to be understood as giving them the power in relation to such property and civil rights propeny as are necessary to the existence of a Dominion "xikTence'f object. He says : — "In practice it never has been object""''"^ contended that property means all property. Rail- road companies incorporated by Parliament, for instance, hold and manage their property under Dominion laws, and such companies evict people from their private property in the province under Dominion laws. No one will venture to affirm that a local Act could confiscate the property of a rail- way company incorporated by Parliament, or trans- fer it to another company or person. And so it has been decided in the case of Bourgoin v. The Montreal, Ottawa and Occidental R.W. Co.,"^ that a railway with all its appurtenances, and all the The prop- property, liabilities, rights, and powers of the exist- minion a ing company, could not be conveyed to the Quebec government, and through it to a company with a new title and a different organization, without legis- lative authority, and that if the railway was a fed- eral railway the Act authorizing the transfer must be an Act of the parliament of Canada. Nor by parity of reasoning could the local legislature con- fiscate the surplus funds of a bank on the pretext has been there held that the right of conclusively determining when the a New Zea- native title has been duly extinguished is a prerogative right ; that land case as transactions with the natives for the cession of their title to the Crown to "•i"ve are acts of Slate, and cannot be examined in any Court, and that the issue of a Crown grant implies a declaration by the Crown that the native title to the land has been extinguished, and is conclusive in all Courts against any person asserting that the land therein comprised was never duly ceded : Wi Parata v. The Bishop of Wellington, 3 J.R.N.S., S.C. 72. »3 L.N. at p. 248, I Cart. 381, (1880). 25 App. Cas. 381, I Cart. 233, (1880). See sie/>ra pp. 300-I. 50^ LliCISLATlVH PoWKR IN CANADA. Prop. 52-4 that it was property in tlie province. It is impos- sible to conceive more obvious limitations to the right to legislate as to property than these." The measure of the limitation, how-ever, of the power of a provincial legislature over property of a railway compan}' incorporated b}^ the Dominion parliament or under Dominion control, must, it is submitted, be found in the application of the principle expressed in Proposition 37 and illustrated b}- the authorities referred to in the notes to that Proposition.^ Provincial powers in respect to D' minion railways. Act for pro- tection of railway employees. ^The decree lo which railways incorporated by the Dominion parlia- ment, or railways which, having been declared by that parliament to be for the general advantage of Canada, or for the advantage of two or more of the provinces, under No. lO, (c) of section 92 of the British North America Act, (see p. 603, n. 2, ivfra) are as effectually Dominion companies as if they had I'een originally incorporated by the Federal parliament, (see per Hall, J., in Baie des Chaleurs R. W. Co , v. Nan- tel, R. T- Q. 5 QB., at p. 69 ; Redfield v. Corporation of Wickham, 13 App. Cas. at p. 475 ; Larsen v. Nelson and Fort Sheppard R. W. Co., 4 B. C. at p. 156), are subject to be affected by provincial legis- lation has not been clearly determined. In Clegg v. Grand Trunk R. W. Co., 10 O. R. at p. 71.4, ra, pp. 5S6-7. '6o2 Legislative Po\vi:k in Canada. ■Prop. S2-4 statutory transfer."' But the question then arose whether the Dominion parh'ament after Confedera- tion could legislate in respect to the Windsor branch railvva}^ in such a way as to override and defeat the Legislative rights of the Windsor and Annapolis railway com- Dominion pauy abovc referred to. The Privy Council, when erty trans- the casc Came before them, held that the Dominion ferred by . , . , , . sched. 3. Act in question did not do this, and therefore they expressed no opinion whatever on the point, which they called, however, "a question of difficulty and importance." But the judge of first instance (Ritchie, E.J.), though he took a similar view as to the proper import of the Dominion Act in question. Vested S'^ys also- that the Dominion parliament has power to dispose only of the interest it may have in Dominion property, on the principle which has been already mentioned." When the case came before the Supreme Court of the province all the judges except James, J., held that the Dominion Act in question was ultra vires, not upon the ground suggested by Ritchie, E.J., however, but upon the ground that the Windsor branch railway was not a railway coming within the exceptions mentioned in No. 10 of section 92 of the British North America .Act. Sir William Young, C. J., delivering the judgment of the Court, says : — * ■rights 'Cf. per Sedgewick, }., in the Indian Claims case, The Province of Ontario -'. The Dominion of Canada and the Province of Quebec, 25 S.C.R. at p. 532, (1895). There would seem to be a certain analogy in the holding of the Supreme Court in The Queen v. Moss, 26 S.C.R. 322, (1896), that if a province before Confederation had so dedicated the lied of a navigable river for the purposes of a biidge that it could not have objected to it as an obstruction to navigation, the Crown, as representing the Dominion, on assuming control of the navigation, ■was bound to permit the maintenance of the bridge. -Russ. Eq. at p. 307. "See, supra, at pp. 586 7, and Proposition 53. ■•3 K. & C. at p. 405. Property Provisions of Feueratiox Act. 603 *' I have sought in vain for any such declaration," Prop. 52-4 isc, by the parhament of Canada, that it was for the general advantage of Canada, etc.), "as to the Windsor branch, and as that branch neither con- Declaration as to a rail- nects our province with anv other, nor extends ways being i -^ for the beyond its limits, it seems to me that the power ofgenerai^^^ legislation as to that branch belongs exclusively to of Canada. the local legislature. This is not inconsistent with the ownership or property and the management of the branch being in the Dominion government, who would be protected from any ill-advised or hostile legislation by the acts of the Governor-General under sections 55 and go," {sc, of the British North America x\ct). On the other hand, James, J., the dissenting judge, held that the Dominion parliament had exclusive jurisdiction over the Windsor branch railway, it having declared that it " was of public advantage to the Dominion, by disposing of it to the Western Counties railway company as a valuable No. 10, (c), . . ,. r- ., of sect. 92, consideration for their building another line of rail-ofB.N.A. way which was considered to be greatly for the public advantage. This is the most emphatic declaration the legislature could possibly have given." Besides which he says'. : — " Why should the Dominion par- liament carefully set itself to do over again w^hat had already been done by the IJritish parliament ? An Act for that purpose would read as follows : — ■* Whereas the British parliament, for the general benefit of Canada, has given her certain railways : therefore be it declared that those railways are for the general benefit of Canada.' Such an Act would be on its face a work of supererogation."- But, on 3 R. & C. at p. 415. -It thus appears that in the opinion of James, J., such a declaration may be implied in a Dominion Act, thou}»h not made in express words. But in A'e Grand Junction R.W. Co. ?'. The County of Peterborough, 6o4 Lhc.islativk Power in Canada. Prop.52-4the other hand, James, J., says : — "If the Uritish Declarations 45 U.C.R. 302, 6 O.A.R. 339, (18S0), three judges express the view wfavslTeine ^^^^ ^"^^ declaration must be made in express words : per Cameron, for 'the J-, 45 U C R. at pp. 316-7; per Burton, J. A., 6 O. A. R., at p. 341; per general Patterson, J. A., ihid. at p. 349 ; and in the argument in a certain matter advantage sulimitted by the Railway Committee of the Privy Council of Canada to the Supreme Court of Canada in 1888, known as In re Portage Extension of the Red River X'alley Railway, Cas. Sup. Ct. Dig. 487, (see, supra, p. 140, n. 4), an opinion is cjuoted, (at p. 65), of Wurlele, J., from p. 549 of a work entitled Parliamentary Procedure of Quebec, to the eft'ect that in accordance with the general rule of in- terpretation that enactments which cut down, abridge or restrain powers shall have a strict and limited construction, the exceptional legislative authority conferred upon the Dominion parliament by sec- tion 92, No. 10, ((■) of the British North America Act, in conjunction with No. 29 of section 91, —" Cannot be exercised in a general, but only in a specific manner ; that local works and undertakings can only be brought williin the purview of that authority by name, and not by general terms or by implication." But at p. 112 of the argu- ment Mr. Blake advances strong neasons v,hy such an opinion cannot be sustained, being contrary to the scheme of No. 10 of section 92, which Ijy both {a) and (/') excludes works by classes from the provin- cial legislature. And as to the effect of such declaration when made, see a letter in 22 C.I^.J. 307. Mr. J. G. Bourinot, in his Parliamentary Procedure and Practice, 2nd ed., p, 667, says: — "The policy of No. 10, (c), Parliament has been for years in the direction o( practically controlling of b'n a"' 'he entire railway system of the Dominion, and during the ses>ion of Act. 1^83 the Government l^irought in a Bill which became law with the object of giving effect to that policy," referring to 46 N'ict., c. 24, D., entitled ' An Act further to amend the Consolidated Railway Act of 1879, ^nd to declare certain lines of railway to be works for the general advantage of Canada.' This policy of the Dominion has been made a cause of complaint by the provinces, " who had spent large sums of money for constructing railways to see them taken over by the federal authorities : " speech of Premier Mercier at the annual banquet of the Clul) National, Toronto Mail, luly 3rd, 1890. Indeed the whole power given l)y section 92, No. 10, (<"), to the Federal parliament, of withdrawing from provincial jurisdiction the local works situated with- in any province, was complained of as going beyond the intention expressed in Quebec Resolution No. 29,(11), and an amendment of the British North America Act in that respect demanded by the 6th resolution passed at the Interprovincinl Conference at ()uebec in 1S87- Sec, ,i7//>Y7, p. 196, n. 2. At p. 672 of his work above mentioned. Mr. Simil.-ir (le- Bourinot says that in 18S2 the Dominion parliament took the claration .ns further step of making a similar declaration with respect to works 'works' other than railways, namely, those of two electric light companies. In the argument in /;/ re Portage Extension of the Red River Valley Railway just referred to will be found a very full discussion (.f the Dominion legislation as to railways in the above matter, and also of the proper interpretation and effect of No. 10, (c), of sec- tion 92, which Mr. Mowat, counsel for Manitol)a, actually contend.s (p. 59) was not intended to include railways at all, (but see ibid, at p. 105), that the ' works ' referred to in (r) was meant to apply to works not included in (a), and that in its real meaning, No. 10, (c), refers to works " which the Dominion parliament might be willing to undertake themselves, to sanction and to execute." And in AV Junction Railway Property Provisions of Federation Act. 605 North America Act did not pass the whole title,"' prop. 52-4 (sc, to provincial railways), " to Canada, it did not, I think, pass the whole legislative jurisdiction ; and we are driven to the singular and most anomalous position of being asked to decide that the British North America Act intended to vest in the Canadian government not onh- half a title, but a divided legislative jurisdiction."- It is strange, however, that none of these judgments take notice of the Co. and The County of Peterborough, 45 U.C.R. at p. 317, (18S0), 'Works'in Cameron, J., also says: — "It may be that sub-section 10 has No. 10, (c), relation solely to works of a public character, to be undertaken o*^^*^^- 9^j_^ at the public expense, and not to works of a quasi-private character, such as a railway to be constructed by a private company, in which view the Dominion parliament will be unable to give itself jurisdiction, and exclusive power of legislation would be confined to the local legislature under sub-section 11," {sc, of section 92 of the British North America Act), " if that section in fact gives power to create a corporation, and is not confined to the making of a general law or laws under which companies with provincial objects may be in- corporated." As to which see the notes to Proposition 55. In the result in /« 7-e Portage Extension of the Red River Valley Railway, the Supreme Court unanimously held that notwithstanding the Dominion Act referred to by Mr. Bourinot, the Manitoba legislature could authorize the construction of a railway wholly within the province, but crossing the Canadian Pacific Railway, (one of the railways specially declared by the said Dominion Act to be a work for the general advan- tage of Canada, as were also ' all branch lines or railways connecting wiih or crossing them or any of them '), the Railway Committee of the Privy Council first approving of the mode and place of crossing, etc.: Cas. Sup. Ct. Dig. 487. Their lordships, however, do not give their reasons. It is staled by Mr. Edward Blake on the argument that it Railways, was at one time thought, at an early period after the completion of the Canadian Constitution, that all railways were under the exclusive juris- diction of the parliament of Canada. Me states, however, that he did not consider the question open on that application, while Mr. Chris- topher Robinson, who was with him, refers to Grand Junction R.W. Co. V. The County of Peterborough, 8 S.C.R. at pp. 118-9, per Gwynne, J., who expresses doubt on the point, but seems to admit that the matter is not open to question now because of the long continued course of legislation which has been adopted by the different provinces, and which has been practically affirmed and confirmed by the Dominion parliament. As to which see Proposition 14 and the notes thereto ; and as to legislation relating to the crossing powers of railways, see, supra, pp. 399, n. I, 44S-6 ; and Cie du Grand Tronce and IJuard, R.J.Q. i Q.B. 501, (1892), esp. at pp. 506, 508. ille held that it did so, but, as already mentioned, the Privy Council decided otherwise. -I R. & C. at p. 412. 6o6 Legislative Power in Canada. Prop. 52 4 fact that by No. i of section 91 the exclusive power ~ of making laws in relation to the public debt and Dominion property is assigned to the Dominion parliament ; power over , , , . ... i • , i 11 'the public and the only question is, it is submitted, whether property.' . , . , . , ... in legislating on such public property it can or cannot override any vested rights which the property was subject to before Confederation, as well of course as any to which it may become sub- ject by Act of the Dominion government or parlia- ment after Confederation, short of its ceasing No. I of altogether to be public property of the Dominion. sect. 91, » 1 1 1 • • • 1 r 1 B.N.A. Act. And the answer to this question, it may be lound, should now be in favour of the Dominion power, upon the principle of Proposition 37, and the authorities there cited. ^ Proceeding now to section 109 of the British North America Act, which provides that ' all lands, mines, minerals, and royalties belonging to the several provinces of Canada, Nova Scotia, and New Sect. 109, Brunswick at the Union, and all sums then due or Act.' ' " payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate and arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same,' there are some important decisions upon it to be noted. In the first place, however, it may be well to recall the words of the Privy Council in the St. Catharines Un Kennedy v. City of Toronto, 12 O.R. 211, 4 Cart. 649, (1886), where certain ordnance lands had been granted in 1858 to the city of Toronto, subject to a trust for their maintenance as a public park for the benefit of the citizens for all time to come, Ferguson, J., held that the provincial legislature had power to enact that the city might alien- ate this land without regard to the trust, as a matter of ' property and civil rights in the province.' Qiuere, however, whether the holding would have been the same if what was construed as a trust had been, as was contended, a condition, in breach of which there would be a reverter to the Crown. Property Provisions of Federation Act. 607 Milling and Lumber Co. 27. The Queen \, that : — Prop. 52-4 " In construing these enactments," (sc, of the British North America Act), "it must alwa^'s be kept in view that where public land, with its inci- dents, is described as the 'property of or as ' belonging to ' the Dominion or a province, these expressions merely import that the right to its bene- ah public ficial use, or to its proceeds, has been appropriated vested in t'he , .p^ . . , . , Crown. to the Uommion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown." And also that in the recent case I)i re Provincial Fish- eries,-- the Supreme Court has decided that under ' lands ' in this section are comprised the beds of all lakes, rivers, and other waters (except public har- bours) within the territorial limits of the severa provinces, which had not been granted by the Crown before Confederation, of every description ; and that there is no distinction, as suggested in that case, in this respect, between salt waters or fresh waters, Ownership, tidal or non-tidal, navigable or non-navigable, or lakes and between the so-called great lakes and other lakes, or the so-called great rivers, such as the St. Law- rence river, Richelieu, Ottawa, and other rivers, or between waters directly and immediately connected with the sea-coast and waters not so connected, or between other waters and waters separating (or so far as they do separate) two or more provinces of the Dominion from one another, or between other waters and waters separating (and so far as they do separate) the Dominion from the territory of a ^14 App. Cas. at p. 56, 4 Cart, at p. 120, (1888). 226 S.C.R. 444, (1896). And see Queen v. Moss, 26 S.C.R. 322, (1896). See, also, supra, p. 600. As to a Crown grant deroy;at- ing from a public right of navigation, see Queen v. FisHer, 2 Ex. C. R. 365, (1891) ; Queen v. St. Johns Gas Light Co., 4 Ex. C. R. 326, (1895), at p. 346 ; in re Provincial P'isheries, 26 S.C.R. at p. 575. But see Narmand v. St. Lawrence Navigation Co., 5 Q..L. R. 215, 2 Cart. 231, (1879), and, su/>ra, p. 563, n. 2: 6o8 Le(;islative Power in Canada. Prop. 52-4 foreign nation.^ Gwynne, J., however, speaks somewhat ambiguously, saying simply that the beds of all such waters not granted before Confederation are vested in Her Majesty, subject to the jurisdiction and control of the Dominion parliament in so far as may be deemed necessary by that parliament or Ownership Tequircd for creating future harbours or for the TakelaVd ercctions of beacons, piers, or lighthouses, or other rivers. public works hereafter to be constructed for the benefit of the Dominion and within the jurisdiction of the Dominion parliament, as, for example, bridges over navigable waters, railways, or the termini of railways and the like, and, in short, all other works placed under the jurisdiction of the Dommion par- liament by virtue of the exception to item lo of section 92, or otherwise ; and also specially as regards the administration of the fisheries." - The fore- ^Giiouard, J., observes in this case that it had been suggested that shore and " the ownership of the lands covered by sea within the three miles limit, tidal waters. ggjjg|.^|]y j^j^Q^^.j^ 3g jj^g foreshore, and of all lands covered by tidal waters, is subject, under section 109 of the British North America Act, to a ' trust ' or ' interest ' created by Magna Charta in favour of the public, which, since Confederation, is held and represented by the Dominion for the benefit of the people of the Dominion at large, and is under the control of the Dominion parliament." But he says the contention is not maintainable, and points out that even if the provisions of Magna Charta could be held to constitute any such 'trust' or 'in- terest,' the public interested in the foreshore fisheries before Confedera- tion was the public of the province which held the same for its lienefit only, and not the public of the Dominion, which had no existence : 26 S.C.R. at p. 569.^ Tlie law in " 26 S.C.R. at p. 541. See, however, his words at pp. 544-5. the United Girouard, J., observes: — "In the United States it is well settled law that the title to all tidal waters and their beds and the fisheries therein is vested, not in the United States, but in the several States of the Union, subject to the regulations of Congress wherever connected with inter- state or foreign commerce. Likewise in many of the States inland rivers and lakes navigable are, like tide waters, State public property : " S.C. 26 .S C. R. at ]3. 555. In this case, too, the Supreme Court judgments affirm the view in acci>rdance with several prior provincial decisions, Doctrine of that the rule, applicable to non-navigable water, that the riparian pro- ad jiteiHuiii pfietors whose grants are bounded by the stream are entitled to pro- '^ "'"' perty in the bed ad viediitJii filum does not apply to the great lakes of Canada, or to rivers ^/^/^^/(J navigable: see per Strong, C.J., 26 S.C.R. at p. 520, ct seq., with whom King, J., concurs ; per Girouard, J., at Property Provisions of Federation Act. 6og And as to the words in the section under consid- Prop. 52-4 eration 'lands, mines, minerals, and royalties,' in Attorney-General of Ontario 7'. Mercer,^ the Privy Council decided that whether the word 'royalties,' extended to royal ri^^hts besides those connected with 'Lands, . . . mines, lands, mines and minerals, or not, a point which they minerals, were not called upon to decide, it certainly included '"°y=''''«''' royalties in respect to lands, such as escheats, and ought not to be restrained to rights connected with mines and minerals onh' ; and so they held that lands in the province of Ontario escheated to the Crown for defect of heirs belonged, " in the sense in which the verb is used in the British North America Act," to the province and not to the Dominion;- and that this was one of the exceptions Escheats, referred to in section 102 of the Act, whereby, sub- ject to such exceptions, the general public revenues of the province were vested in the Dominion ; for the profits and proceeds of sales of lands escheated to the Crown are part of the casual territorial rev- p. 548, ct scq. Girouard, J., says that in most, if not all, the provinces the distinctions of the Englisii common law had been removed by local legislation before Confederation. ^8 App. Cas. 767, 3 Cart, i, (1883). -See supra at p. 607. A grant or conveyance of lands ' to the Grant to Dominion government ' should be interpreted as though expressed to Dominion be ' to Her Majesty, her heirs and successors, in right of and for the K°^*'""'"^"'* u.se of her Dominion of Canada : ' The Queen v. Farwell, 14 S.C. R. 392, (1887), (see especially per Strong, C.J., at p. 425), reversing the deci- sion of Henry, J., ibid, at p. 404. And in Attorney-General of British Columbia zj. Attorney-General of Canada, 14 App. Cas. 295, 4 Cart. 241, (1889), where the same grant or conveyance was in question as that in The Queen nd "• !)> pending as this goes to press ; and see the report of Sir J. penalties. Thompson of .A.pril 6;h, 1887 : Hodgins' ilnd. at p. 1 107. As to provincial legislatures, (and not the Dominion parliament, as it assumed to do by 3233 Vict. c. 29), having power to legislate respecting the Forfeiture forfeiture of goods of a felon, under property and civil rights in the for felony. province, see Dumphy 7j. Kehoe, 21 R. L. 119, (1891), and supra p. 79, n. 2. Sed qiitcre as to the Dominion parliament not being able so to legislate under the principle of Proposition 37. I N' CORPORATION OF COMPANIES. 617 PROPOSITIONS 55, 56, and 5 7. 55. The Dominion Parliament can alone incorporate companies with powers to carry on business throughout the Dominion, and the business of com- panies so incorporated may have to do with property and civil rights, yet it can- riot empower them to carry on business in any Province otherwise than subject to and consistently with the laws of that Province, [unless the business is such that power to make laws in relation to it is exclusivelv in the Dominion Parlia- ment, under one of the enumerated heads of section 91 of the British North America Act]. 56. The fact that Provincial Legisla- tures may have passed Acts relating to ■companies of a particular description, such, for example, as building societies, and defining and limiting their opera- tions, does not interfere with the power of the Dominion Parliament to incorpor- ate such companies, with power to oper- ate throughout the Dominion. 57. The fact that a company incor- porated under an Act of the Dominion 6i8 Legislative Power in Canada. Prop. 55-7 Parliament with power to carry on its busi- ness throughout the Dominion, chooses to confine the exercise of its powers to one Province cannot affect its status or capacity as a corporation, if the Act incor- porating the company was originally within the legislative power of the Domin- ion Parliament. Constitutional questions especially rela- ting to incorporated companies discussed- Citi2ens Insurance Co. V. Parsons. The judgment of the Privy Council in the Citizens Insurance Co. v. Parsons/ and that in Tennant v. The Union Bank of Canada,- read together, seem clearly to establish and illustrate the first of the above Propositions. In the former it was held that the Ontario Act, 39 Vict., c. 24, to secure uniform conditions in policies of fire insurance, bound fire insurance companies, whether incorporated by Imperial, Dominion, provincial, colonial or foreign authority, so far as it related to insurance on pro- perty within the province of Ontario, inasmuch as it was within the power of a local legislature to pass, by virtue of its jurisdiction over civil rights, under No. 13 of section 92 of the British North America ^7 App. Gas. 96, I Cart. 265, (1S81). For a discussion of the con- stitutional decisions affecting insurance companies, see the introduct- ory chapter to Hunter's Insurance Corporation Act, 1892 ; also J. G. Bourinoi's Parliamentary Procedure and Practice, 2nd ed., at pp. 95 ■?/ seq., 670 et seq. See, also, supra, p. 568, n. i. As to the action of a local lej^islature in a self-governing colony over-riding a royal charter of incorporation, [e.g. of a bank), within the limits of its jurisdiction, see Todd's Parliamentary Government in the British Colonies, 2nd ed., at at pp. 220 I ; also supra p. 176 et seq. ■^[i894]A.C. 3>. Incorporation of Companies. 619 Act.^ Their lordships say :- " It by no means fol- Prop. 65-7 lows , . that because the Dominion parliament has alone the right to create a corporation to carry on business throughout the Dominion,'^ it alone has the right to regulate its contracts in each of the provinces. Supposing the Dominion parliament were to incorporate a company, with power among Domini :iiion Companies other things, to purchase and hold lands throughout may be /-^i- •• 11 11 iji subject to Canada m mortmam, it could scarcely be contendea provincial that if such a company were to carry on business in a province where a law against holding land in mortmain prevailed, (each province having exclusive legislative power over property and civil rights in that province), that it could hold land in that pro- vince, in contravention of the provincial legislation; and, if the company were incorporated for the sole purpose of purchasing and holding land in the Dominion, it might happen that it could do no • business in any part of it, by reason of all the provinces having passed Mortmain Acts, though the corporation would still exist and preserve its status as a corporate body.* And in their subsequent judgment in Colonial Building and Investment Association v. The Attor- ney-General of Quebec,"' the Judicial Committee re-affirm that the parliament of Canada can alone constitute a corporation with powers to carry on its ^ The same thing had been previously held in the Ontario Courts in Billington v. The Provincial Insurance Co., 24 Gr. 299 ; Dear v. Western Assurance Co., 41 U.C.K. 553 ; Ulrich v. National Insur- ance Co., 42 U.C. R. 141. ^ 7 App. Cas. at p. 117, i Cart, at p. 283. ' As to the Dominion power to incorporate companies to do business throughout the Dominion, see supra pp. 504-5. * A Dominion corporation, of course, cannot be dissolved by a pro- vincial Act: Bourgoin v. La Compagnie du Cheniin du Fer de Nlon- treal etc., 5 App. 381, i Cart. 233. See as to this case J////77 pp. 3001. "9 App. Cas. at pp. 164-5, 3 Cart, at iip. 127S, (1883). 620 Lkgislativ]; Power in Canada. Prop. 55-7 business throuj^hout the Dominion, and again allude to the passage just cited from Citizen's Insurance Co. V. Parsons, and observe that in it they " had not in view the special law of any one province, nor the question whether the prohibition was absolute, or only in the absence of the Crown's consent. The object was merely to point out that a corporation could only exercise its powers subject to the law of the province, whatever it might be in this respect." And so they say of the corporation whose charter they were then considering:^ "What the Act of incorporation has done is to create a legal and artificial person, with capacity to carry on certain kinds of business, which are defined, within a defined area, namely, throughout the Dominion. Among other things, it has given to the association power to deal in land and buildings, but the capacity so given only enables it to acquire and hold land in any province consistently with the laws of that province relating to the acquisition and tenure of land. If the company can so acquire and hold it, the Act of incorporation gives it capacity to do Thus a Dominion land com- pany must conform to provincial law. so. ' 9 App. Cas. at pp. 165 6, 3 Cart, at pp. 128-9. ■^ .\ccordingly in Cooper v. Mclndoe, 32 L.C.J. 210, (1887), a building society incorporated by Dominion statute with power to buy, sell and hold real estate in the different provinces of Canada was held, by the Quebec Superior Court, unable to maintain an action for sptcific performance of a contract for the sale of land, because it had not obtained power to acquire, hold and sell real estate in Quebec under the recjuirements of the law of that province. And cf. per Ritchie, C. J., in Citizens Insurance Co. v. Parsons, 4 S.C. R. at pp. 250-1, I Cart, at pp. 298-9; per Fournier, J., S.C, 4 S.C.R. at p. 281, 1 Cart, at p. 310. In Lindley's Law of Companies, 5th ed., at p. 913, it is said : "Suppose that a registered company is formed in Eng- land for the purpose of working mines or cultivating estates in a colony. If by the laws of that colony, a corporation cannot hold lands, the com- pany will not be able to attain its object without obtaining special authority from the proper quarter to hold lands in the colony." The judgment of the Privy Council in Colonial Building and Investment Association v. The Attorney-Cieneral of Quebec, shows Tessier, J., to be in error, when he says in the Court below, 27 L.C.J, at p. 300, 3 Incorporation of Companiks. 621 It may be observed that so far as any mere Prop. 55-7 requirement of a license from the Crown is con- cerned, the opinion is expressed by Armour, C.J., in McDiarmid v. Hughes, \ and concurred in by Street, J., that the Dominion parliament has power to enact that a license from the Crown shall not be necessary to enable corporations to hold land within the Dominion ; and that a Dominion Act enabling a Quebec corporation to hold lands in Ontario would operate as a license. But from the subsequent As to ...... licen<^e to decision of the Privy Council m The Liquidators ofhoidUmis in mortmaiti. the Maritime Bank of Canada y. The Receiver-Gen- eral of New Brunswick,- elsewhere noticed more at length,-* and the view there taken of the provin- cial Executive, it would appear that the only license from the Crown which can enable corporations to hold land in the provinces, in which the provincial laws require such license, is a license from the Crown as represented by the provincial Executive, and that the Dominion parliament has no jurisdiction at all to dispense with such license, * unless incidentally to the exercise of one of its enumerated powers, such Cart, at p. 137 : " The creation of a corporation for objects relating to and extending to (pour des fins louchant) properly and civil rights, falls exclusively under the control of the locallegislature, and to remove it therefrom the object of incorporation must be one, so to say, of inter- provincial law, that is to say, one in which the Federal parliament has the right to establish the rules of civil right and of property in all the provinces in a uniform manner." As the Minister of Justice states in a report of October 24th, 1S95, (Hodgins' Provincial Legislation, 2nd ed., at p. 1006): "There are, of course, many powers which might be conferred upon a corporation by the parliament of the United King- dom, or by the parliament of Canada, which could also be conferred by the legislature of the province." The question slill remains whether the exercise of the powers so conferred is subject to provincial law or not. 1 16 O.R. 570, 4 Cart. 701, (1888). H1892] A.C. 437. 3 Supra p. 92 ei scq. * See Proposition 7, 8, and 9, and the notes thereto. 622 Legislative Power in Canada. Prop. 55-7 as the power assigned to it to regulate ' banking ', as well as to incorporate a bank. Tennanii/. For, to retum to the leading Proposition, the case The Union r t^ r.ank. of Tennant i). The Union Bank of Canada^ suggests and illustrates the qualification at the end of it. As Mr. Dickey submits, in his report as Minister of Justice, of March 12th, 1896,^ this case, and that of Attorne3^-General of Ontario v. Attorney-General of Canada^ show that the rule of subjection of Domin- ion corporations to the law of the province wherein they carry on business does not apply so as to affect " Dominion corporations in the exercise of powers conferred upon them by Parliament and strictly relating to the subjects of legislation enumerated in section giof the British North America Act," and that the enumerated powers of Parliament may be fully As to exercised, although with the effect of modifving Dominion ..,.,., . iri i V» companies civil rights in the proviucc ; and further, that Par- deahng with ..... . , , ^ , Dominion liament in legislating with regard to one 01 the enu- -subjects. ^ . merated classes of subjects, has power to enact ancillary provisions relating to those subjects, and affecting rights which, but for the enactment of such provisions b}' Parliament, would have been within the legitimate range of provincial legislation.* But to determine the precise scope of such Dominion powers, and how far the invasion, by way of ancil- lary provisions, of the provincial area may properly go, and how far a Dominion corporation, even though the business it is incorporated to carry on may come under one of the enumerated Dominion ^[1894] A.C. 31. See the case referred to at length, j'/^/' a pp. 427- 9 ; also pp. 504-5. ^Ilodgins' Provincial Legislation, 2nd ed., at p. loio, referred to also supra at p. 505. 3[i894] A.C. 189. *See rroposition 37 and the notes thereto. Incorporation of Companies. 623 powers, may, nevertheless, be subjected to provin- Prop. 55-7 cial enactments in certain respects, must no doubt always be a matter of difficulty.^ And notwithstanding the judgments of the Privy Council in Citizens Insurance Co. v. Parsons,- and The Colonial Building and Investment Association V. The Attorney-General of Quebec,^ to which we have been referring, and notwithstanding it may be added their subsequent judgment in Bank of Toronto V. Lambe,* as which see Proposition 61 and the ^ See supra at p. 447 at seq. In Cie du C. F. de La Baie des Chaleurs v. Nantel, M.L.R. 5 Q B. at p. 71, (1896), Hall, J. says : — "The Bank of Montreal or the Bank of Toronto can own real estate in the province for the purpose of its business. The local legislature can make laws which will contrijl such real estate, tax it for local purposes, estalilish the procedure under which it might be seized and sold upon an unsatisfied judgment against the bank or for non-payment of taxes, but it could not validly interfere with the manner in which the bank carries on in those premises its business of banking, for the power and franchise in this respect are acquired from Parliament. The local legislature could not legally put in force an Act stipulating that if the bank charged a rate of interest exceeding six per cent, or discon- tinued business for over 30 days, it should be liable to the appointment of a sequestrator who would take charge of, and continue, and extend its business under the direction and control either of the Executive of Proyinf^ial the provincial government, or even of a judge of the Superior Court." law and But Hall, J,, in his iudgmeni in this case dis?ented from the view Domimoi. r 1 . -" . , , Jo , , , . • , . • ,• r corporations 01 the majority of the court, which upheld a provincial Act providing for sequestration of Dominion railway companies under certain circum- stances : see supra p. 597, n. And as to banks, in connection with the provincial power to regulate the tenure and conveyance of real estate, of. per Maclennan, I. A,, in Regina z>. Cv>unty of Wellington, 17 O.A. R. at pp. 449-51, (1890) : none of the other judges however adopt the same view in that case ; also cf. Rourinot's Parliamentary Procedure and Practice, 2nd ed., at pp. 130, 674 ; and per Dorion, C. J., in The Colonial Building and Investment Association v. The Attorney-General of the Province of Quebec, 27 L.C.J, at p. 303, 3 Cart, at p. 141. Also cf. supra p. 457, n. 2. And as to provincial powers in regard to Dominion rail ways generally, see .f«/;vT pp. 595-7. As to the laws relat- ing to banks being left to the province where the bank is domiciled to administer, save as regards duties imposed by the P>anking Act on the Dominion Execu'ive, or to be inferred from the law : see per Sir A. Campbell, as Minister of Justice, in Sarazin v. La Banque de Saint Hyacinthe, 20 R.L. 580, at p. 584, (1881). *7 App. Cas. 96, I Cart. 265, (1881). ^9 App. Cas. 157, 3 Cart. 1 18, (1883). *I2 App. Cas. 575, 4 Cart. 7, (18S7). 624 Legislative Power in Canada. Prop, 55-7 notes thereto, Ministers of Justice have always strenuously objected to provincial Acts imposing the necessity upon companies incorporated under the laws of the United Kingdom or of the Dominion, of taking out a provincial license before doing business in the province : and when such Acts have contained express prohibitory provisions forbidding the doings of business without obtaining such license, they have been disallowed, the ground being distinctly n^en!"ng^of takcu that they are ultra vires, although other ^rpo'mions ^rounds of objection to them are also assigned. Thus in a report of March 28th, 1887,^ Sir John Thompson says : " Although any company incorpo- rated by the parliament of Canada must, within any province within which it is carrying on its business, be subject to all laws enacted by the provincial legislature (within its legislative authority), in the opinion of the undersigned, it is not within such legislative authority to provide that such a company shall not do business within the province without taking out a license for that purpose." And again in a report of July i6th, 1887,- he says : " The right ^Hodgins' Provincial Legislation, anded., p. 315. * Hodtjins' ibid, at p. 339. Cf. Hodgins' ibid, at pp. 2446, 818, 941, 1005-1010. The last citation is to the latest instance, in which the report of Mr. Dickey was made already referred to (supra p. 50";), and in which the Manitoba Act, 58 59 Vict. c. 4, was disallowed, although it only sought to impose the necessity of taking out a provin- cial license upon such United Kingdom, Dominion, and foreign corporations as were 'duly authorized to carry out or effect any of the purposes or objects to which the legislative authority of the legislature of Manitoba extends. ' It was contended by the Attorney-General of Manitoba, (Hodgins' ibid, at p. IO09), that " it is perfectly competent for the legislature to make provisions as to the conditions under which such companies shall transact business affecting property and civil rights in the province." Mr. Dickey observes, (Hodgins' //!i/V/. p. loio). "no attempt has been made to justify the Act as a measure of taxation ;" liut if, as i.s submitted, a tax by way of license for carrying on a business is direct taxation, as the Privy Council have now decided in the Brewers' and Maltsters' Association of Ontario v. The Attorney- General of Ontario, 13 Times L.R. 197, (1897), (and see stip7-a p. 361, n. 2), it would seem unquestionable that the provincial legislatures- Imperial and Dominion Companies. 625 of a corporation, so created by the federal author- Prop. 55 7 ity, to hold lands or to make contracts in the sev- eral provinces in which it is established as a civil person, may be dependent on the general law of each province as to corporations, but cannot, in the opinion of the undersigned, be restricted by any provincial legislation aimed at corporations estab- lished by the federal parliament." And as to cor- porations incorporated under the laws of Great Britain and Ireland, Sir John Thompson says :^ " A Provinda , r 1 T T • 1 licensing of company incorporated by a statute 01 the United imperial Kingdom and engaged under and within the powers Dominion ... .... companies. conferred by such statute, in business within the province of Quebec, or elsewhere within the Empire, requires no license from the provincial authorities, and it is undoubtedly within the powers of the par- liament of the United Kingdom to confer upon a company any powers and rights which it may please to convey, whether the power of holding lands and the right of making contracts, or otherwise." But with deference, it is submitted that the mere fact of a company being incorporated by Imperial Act, or Dominion Act, does not in itself make it the less subject to the law of the province in which it carries on business, whether in respect to the require- ment of a license or otherwise. To produce such a result the Imperial Act would have to so enact, either expressly or by necessary implication ;- and could so lax Dominion or any other corporations : Bank of Toronto v. Lambe, 12 App. Cas. 575, 4 Cart. 7, (1887). Such taxation was upheld in City of Halifax v. Western Assurance Co., 1 8 N.S. 387, {1885), and City of Halifax v. Jones, 28 N.S. 454, (1896). And see Proposition 61. ^Hodgins' ibid, at p. 342. ^And so in Allen v. Hanson, 13 L.N. at p. 134, 16 O.L. R. at p. 85, 4 Cart, at pp. 493-6, Dorion, C.J., says : — " It can hardly be contended that a declaration in the articles of association of a company incorpor- ated in Great Britain under the Imperial Companies Act, that the company intend to carry on business in Canada, can have the efifect of 626 Legislative Power in Canada. Prop. 55-7 the powers of the Dominion corporation would have to relate to some business, such as banking, over which it has exclusive jurisdiction under one of its enumerated powers, and in relation to which it had actually legislated.^ To repeat the words of the Privy Council already cited,-' what an Act of incorporation does, " is to create a legal and artificial person with capacity to carry on certain kinds of business, incorpora- which are defined, within a defined area," but it may tion merely •' artffidar "evertheless be subject in carrying on that business person with to the law of the locality wherein it does so. As certain -^ powers. Cameron, J., says, in Re Junction R.W.Co.,'^ " creat- ing a corporation can hardly be said to be making a law ; " and so the same learned judge says, in Clegg y. Grand Trunk R. W. Co.:* " 1 wish to be free to consider whether a corporation created by the Dominion parliament must not outside of its corporate powers and functions, be regarded as a simple entity which is, as far as the exercise of civil rights are concerned, not expressly provided for by the Act of incorporation, subject to the laws res- pecting such rights within the province in which it relieving the company from the operation of Canadian laws as regards their property, and the dealings of such company in Canada. If this authority to carry on business in Canada had been conferred on the company by a special Act of the Imperial parliament, such enactment should be construed as permissive only, so as to enable the company to do business elsewhere than in Great Britain, without forfeiture of its charter, and not as overriding the laws of Canada any more than the laws of any foreign country to which its operations might extend." And see Proposition 12 and the notes thereto, especially at pp. 2l8-20. ^It is sulimitted that if the Dominion parliament incorporated a bank, but had passed no banking law, the bank would be subject to the general law governing property and civil rights of any province where- in it carried on business. 'Supra, p. 620. «45 U.C.R. at p. 317, (1880). ^loO.R. at p. 714, (1886). I Incorporation of Companies. 627 may carry on its authorized business or exercise its Prop. 6S-7 corporate powers ; and whether in this respect a corporation can have any greater or higher rights than a natural person," But, it is submitted, although the Dominion parhament can give a cor- poration it is creating any powers and functions it lilies, outside ' provincial objects ' within the mean- ing of No. II of section gz of the British North America Act, it can only regulate its exercise of civil rights in respect to the classes of subjects enumerated in section 91. And analogously, as to provincial corporations Provincial ■^ _ _ compani'.s being subject to Dominion laws, Patterson, 1. and says in Schoolbred v. Clarke,^ "the body politic 'a^- created by any provincial Act of incorporation becomes, like a natural body, subject to the laws of the land. There are a number of subjects over which exclusive legislative jurisdiction is given to the parliament of Canada, as well as others in relation to which the parliament may make laws for the peace, order and good government of Canada, the legislation on which must govern all corporate bodies as well as natural bodies ; for example, interest, legal tender, currency, taxation, the criminal law, and bankruptcy and insolvency.'"- ^17 S.C.R. at p. 274, 4 Cart, at p. 464, (1890). '^There is an apposite passage in Story on the Constitution of the United States, (5th ed., Vol. 2, p. 153). He says: "A strange fal- lacy has crept into the reasoning on this subject," (sc. the power to create corporations). " It has been supposed that a corporation is some great independent thing ; and that the power to create it is a great substantive, independent power ; whereas, in truth, a corpora- tion is but a legal capacity, quality, or means to an end ; and the power to create it is, or may be, an implied and incia vires. . . It is possible that a company chartered in the United States or other foreign country doing business here might be wound up under the Dominion Act, if such could be done without interfering with the terms of the constating articles, but 1 see serious difficulties in the way, even in such a case." And see Lindley's Law of Companies, 5th ed., at p. 623. It may be observed that Henry, J., did not sit in Allen v. Hanson. It may also be observed, with special reference to the dissenting judgment of Four- nier, J., in Merchants Bank of Halifax v. Gillespie, 10 S.C.R. 312, that in Citizens Insurance Co. v. Parsons, 7 A pp. Cas. 96, i Cart. 265, no such question arose of direct conflict with, or repugnancy to an Impe- lial Act as arose in Merchants Bank of Halifax ?■. Gillespie. ^18 S.C.R. 667, 4 Cart. 470, (1890). -18 S.C.R. at p. 674, 4 Cart, at pp. 477-8. •■14O.R. 618, (1887); affirmed 16 O.A.R. 161 ; and also in the Supreme Court, sub iiom. Schoolbred v. Clarke, 17 S.C.R. 265, 4 Cart 459, (1890J. For an extract from the judgment of Patterson, J,, in this case, see stipra ]). 627. 632 Legisi.ativk Powkk in Canada. Dominion Act requir- ing a deposit from foreign companies Prop. 55-7 and observes, (at p. 620) : '• The case in the Supreme Court of The Merchants Bank v. Gillespie,^ does not touch the status of the present company, which is a domestic corporation within the terri- torial limits of Canada, whereas the company there in question was for the purpose of the Act a foreign one domiciled in England." And the Merchants Bank of Halifax v. Gillespie, was again distinguished in Re Briton Medical Life Association- where it was held by Proudfoot, J., that the Dominion Acts, 31 Vict. c. 48, D. and 34 Vict. c. g, D., requiring foreign insurance companies doing business in Canada to make a certain deposit with the Minister of Finance, were intra vires, and an order was there made, on petition, for the distribu- tion of the deposit made by the English company in question among the Canadian policy holders, not- withstanding that proceedings to wind up the com- pany were pending before the English Courts, Proudfoot, J., observing with reference to the Merchants Bank of Halifax v. Gillespie, that in that case there was no question of a deposit, and what was sought was not the distribution of the deposit, but the general winding up of the company. To return to Proposition 55, although the Domin- ion parHament can alone incorporate companies to carry on business throughout the Dominion, and can alone incorporate companies for objects other than provincial, a provincial corporation existing in one province, may doubtless also be incorporated with similar rights and powers in another province by Vnd so in Dobie v. The the legislature of the latter. ^loS.C.R. 312. Supm pp. 629-31. 2i2 O.R. at [)p. 447-8, 4 Cart, at pp. 646-7, (1886). Incorporation" of Companies. 633 Temporalities Board, ^ Dorion, C. J., speaking of an Prop. 55-7 Act incorporating a religious body for the purpose of acquiring property, and of managing it for the support of their ministers, and of educating young men for the ministry, says : — " When the powers imparted by such incorporation apply to one province only, the incorporation is for provincial purposes, and its franchises can only be conferred by the leg- islature of the province where those franchises are to be exercised, and not by the Dominion parliament. . . A religious body so incorporated in one province Provincial • i_ i L -1 1 • • incorpora- mignt, however, wish to extend its operations andtioncfa , , . , ... body already .seek to obtain the same corporate rights in one or incorporated - , . with similar more of the other provinces: and, it can hardly be powers in another contested, each local legislature would have the same province. power to grant to a body, already incorporated in one province, the same franchises to be exercised within the limits of its own jurisdiction, and all the local legislatures might successively do the same. These corporate rights would not cease to be civil rights, nor to have provincial objects, for having been successively granted in more than one of the provinces of the Dominion ; and the Dominion parliament could not, therefore, claim to interfere and grant to a society incorporated in Quebec the same corporate rights in Ontario, under the pretence that the society being already incorporated in Quebec, its operations would extend to more than one pro- vince by the new Act of incorporation." - 'Doutre on the Constitution of Canada, at p. 260, i Cart, at pp. 388-9, (1880). ^It is competent, however, for the Dominion parliament to incor- porate under Dominion charter the members of a provincial company, and so enlarge the scope of their operations and powers. See Todd's Pari. Gov. in Brit. Col., 2nd ed. at p. 437. And as to railways, Mr. Todd says, (ilnd. at p. 482), that the Dominion parliament is em- powered by declaring a railway or " other corporation," (as to which see supra p. 604, n.), to be a work for the general advantage of ^34 Liaiisi.A ri\i-: P()\\i-.K IX Canada. Prop. 55-7 The learned Chief-Justice goes on to intimate his opinion that the Dominion parHament could not incorporate a religious society, such as the Orange society, with franchises applying to the whole Dommion, which, he says, shows " that what are civil rights and provincial objects is not to be deter- mined by the extent of territory, to which interested parties may wish to apply legislative action, but by the character of such rights and objects." But it is submitted that the reasoning of the Privy Council in Citizens Insurance Co. v. Parsons,^ is decisive Incorpora- tion of religious societies. Dominion grant of powers to provincial companies. Canada to extend its powers, and give it a right of operation in two or more provinces. And see some remarks on federal extension of provincial charters in 3 C.L.T. 242. It may also ht noted that the Dominion Consolidated Insurance Act, 40 Vict, c. 42, s. 28, enacts that it shall be lawful for any company within the exclusive legislative control of nny one of tlfe provinces of Canada to avail itself of its provisions, ' and if it do so avail itself, such company shall then have the power of transacting its business of insur- ance throughout Canada.' See infra pp. 638-9. As to the incorporation by the Dominion parliament of a company already incorporated in the United Kingdom, see Todd ibid, at pp. 539-40. In certain cases pro- vincial companies must resort to Parliament for necessary powers. Thus Mr. Bourinot says, (Parliamentary Procedure and Practice, 2nd ed., at p. 680): "Whenever companies incorporated under provincial Acts have required certain privileges upon navigable streams, they have always sought and obtained them from the general legislature ; " and he refers to 45 Vict. c. 37, D., an Act respecting bridges over navigable waters, constructed under authority of provincial Acts. So, in a report as Minister of Justice in 1889, Sir J. Thompson expresses the view that it is beyond the powers of a provincial legislature "to authorize the erection of a bridge over a navigable stream thereby necessarily interfering with its navigation :" Hodgins' Provincial I..eg- islation, 2nd ed., p. 379. And in a report of 1890, he says: "A provincial legislature niay authorize a company to build a railway be- tween two points in a province on a line crossing which there may be a navigalile stream, but the parliament of Canada alone can legalize the erection of a bridge across such stream: Hodgins, ibid. p. 11 18. And so in Re Brandon Bridge, 2 M.R. 14, (1884), a provincial Act authorizing the construction of a bridge over a navigable river was held ultra vires. Cf., also, Attorney-General of Canada v. \'ictoria, 32 C.L.J. 597, (1896). See, also, S!i/>ra p. 563, n. 2, and ivfra pp. 639-43. In a report of May 31st, 1890, as Minister of Justice, (Ilodgins' Provincial Legislation, 2nd ed., at p. 586), Sir John Thompson expresses an opinion that it is ultra 7'ires of a provincial legislature to confer on a company incorporated by Dominion charter enlarged powers and franchises, and thus in effect amend the provisions of the Dominion Act of incorporation. 17 App. Cas. at pp. 116-7, i Cart, at pp. 2S2-3. See supra p. 504. Incorporation of Companies. 635 that the Dominion parhainent could incorporate Prop. 55-t such a society as he is referring to.^ In the same way the decision of Dorion, C.J., in Regina v. Mohr,- seems now unsustainable, holding as he did that the Dominion Act, 43 \'ict. c. 67, incorporating the Bell Telephone Compan}-, was ultra vires, because, though it authorized the com- pany to build, construct and operate any line or Dominion lines for the transmission of messages by telephone tion of m Canada or elsewhere, and to make connection and . , , . , . - , , , , telephone with any hne or Imes or any telegraph or telephone companies, company in Canada or elsewhere, yet it did not incorporate the company for the purpose of con- necting two or more provinces by telephone lines, and consequently-' " the company can establish inde- pendent lines of telephone in each province, not connecting the one with the other. . . To give to the Dominion parliament the power to authorize the Bell Telephone company to impede circulation and traffic in the streets of Quebec, one ^Nevertheless there may no doubt be objects for which only a pro- vincial legislature could incorporate a company because of their neces- sarily provincial character. Thus in Forsyth z'. Bury, 15 S.C.R. 543, (1888), Ritchie, C.J-, says, at p. 549, of the Dominion Act purporting 10 incorporate the Anticosti company :— " This Dominion Act, so far objects as it professes to confer the right to purchase the island of Anticosti, necessarily m the province of Quebec, and to sell or lease the same, is, in my provincial opinion, clear])' n/ira I'ires of the Dominion parliament. It is for a provincial object, and affecting property and civil rights in the province of Quebec alone ; the legislative right to incorporate such a company belongs to the provincial legislature under the British Nor:h America Act. Strong, J., (p. 551), also expresses the same nphiion, while G Wynne, [., intimates an inclination to hold otherwise, but in the view these last two judges took of the case, it was unnecessary for them to determine the point, while the remaining judges, (Fournier and Taschereau, J.J.), do not pass upon it. See, also, sie/ira p. 375, n. 2. As to the ( iuebec Act, 50 Vict. c. 28, incorporating the Society of Jesus being /'it/ni ?'ires, see La Compagnie de Jesus v. The Mail Print- ing Co., 20 R. L. 30, (1S90). ^ -7 Q. L. R. 1S3, 2 Cart. 257, (1881). See as to thiscase, per Dorion, C. J., in Loranger v. Colonial Building and Investment Association, 3 Cart, at p. 140. "7 Qt.L. R. at p. 1S9, 2 Cart, at pp. 265-6. 636 I-i-:(;isLAi i\ ]•: P()\\i;k in Canada. Prop. 55-7 of two conditions would be required; either the company should have been incorporated for the purpose of connecting by telephone lines the prov- ince with any other or others of the provinces of the Dominion, or of extending its line of telephone beyond the limits of the province of Quebec ; or it should have been declared by the parliament of Canada to be for the general advantage of Canada,, or for the advantage of two or more of the prov- mces."^ And Cross, J., in that case, though he differed in his interpretation of the Act in question appears to have agreed with Dorion, C.}., in his view of the constitutional point. It is submit- ted, however, in view of the subsequent Privy Council decisions on which Proposition 55 is based,, that the Act in question was intra vires, and that the company might indeed, if it chose, confine its operations to any one province, but that as to blocking the streets of (Juebec, which was the mat- ter of complaint in the case, the company would be subject in all its local operations to any municipal regulations or any other laws or regulations existing in the locality and validly made by or under the authority of the provincial legislature. - Dominion incorpora- tion of telegraph and telephone companie>; 'As to such declarations in the case of companies other than rail- ways, and Sir John Macdonald's expressed opinions as to the existence and expediency of the power to make them, and Mr. Blake's view ihat they could not l)e made in the case of mere trading companies, sec Mr. Bourinot's Parliament Procedure and Practice, and ed. at p. 672. And see supra p. 604, n. -In the same case Dorion, C.J., says that " the Dominion parlia- ment cnuld not authorize the establishment of a telegraph wholly within the province of ()ntario, or of any of the other provinces.'' But thoujjh the Dominion parliament could not indeed incorporate such a company for the sole purpose of operating within the limits of any- one province exclusively, yet it, and it alone, could incorporate a company with power to operate in all or any of the provinces, and such company coulti then, if it chose, confine its operations to any one province, being in subjection, however, to all valid provincial laws. See Proposition 57, and infra, p. 614. By a report of January 28th, 1889, it may be noted, tlie Minister of Justice, (Sir John Thompson), Incorpokatiox of Companies. 637 And although by No. 11 of section 92 of the Prop. 55-7 British North America Act, the provincial power to incorporate is confined to ' companies with provm- cial objects,'^ a corporation, though existing only within the limits of the sovereignty which created it, Provincial , , , , , , companies may, as a general rule, act elsewhere through agents, operating ■ i- 1 1 r I • ■ .) » 1 • Ti outside the H the laws 01 other countries permit.- And in Iheprovince. Colonial Building and Investment Association v. The Attorney-General of the Province of Quebec," recommended the disallowance (unless sooner repealed) of a New- Brunswick Act incorporating a telephone company, on the ground that it conferred upon it certain exclusive rights interfering with and restricting the Dominion Act of incorporation of the Bell Telephone company and materially diminishing the value of the latter's franchise, though the latter had been ratified and confirmed by Act of New Brunswick: }iodgins' Provincial Legislation, 2nd ed., p. 749 Un Re Grand Junction K. W, Co., 45 U.C.R. at p. 317, (1880), No. n.secf. Cameron, J., raises the curious point, not apparently raised elsewhere, 92. B.N. A. whether No. 1 1 of section 92 of the British North America Act ^'^^' " in fact gives power to create a corporation, and is not confined to the making ot a general law or laws under which companies with provin- cial objects may be incorporated. Creating a corporation can hardly be said to be making a law, and the power given to the local legislatures in respect to corporations is to make laws in relation to the incorpor- ation of companies with provincial objects." But the passage quoted from Story on the Constitution of the United States, supra, p. 627, n. 2, may be again referred to. The power of provincial legislatures to pass special Acts of incorporation seems universally conceded. *Per Harrison, C.J., in Ulrich v. National Insurance Co., 42 U.C.R. at p. 158, citing Bank of Augusta v. Earle, 13 Peters 519. In The Chaudiere Gold Mining Co. 7). Desbarats, 15 L.C J- at pp. 52-3, (1870), (see also S.C. in App. L.R. 5 P.C. at p. 283), Badgeley, J., says: "Corporations are creatures of limited powers, and are not and never can be citizens of the country ; they are artificial creations, beings only in contemplation of law, and have no other attributes than those which Companies the law confers upon them or suffers them lo enjoy or e.xercise, and oper.itine; hence, as the law of their establishing country has no extra-territorial abroad. operation, a foreign corpora'ion, merely as such, cannot challenge as matter of right the privilege of dealing in a country not under the sov- ereignty which created it. Its being a trading corporation dcjes not alter the principle applicable to corporations in general, although the Crown or the provincial legislature may confer corporate powers locally effective even upon foreign corporations, whilst il is competent for the provincial legislature to afifix upon all corporations such conditions upon their powers as may be deemed expedient and politic, although such conditions are not imposed upon citizens, and from these conditions foreign corporations can of right claim no exemption." •"'27 L.C.J, at p. 299, 3 Cart, at p. 136, (1882). On the general subject of corporations ccmtracting and carrying on business abroad, see Howe Machine Co. v. Walker, 35 U.C.R. 37, (1S74) ; and The Can- adian Pacific R.W^. Co. v. The Western Union Telegraph Co., 17 S.C.R. 151, (1889). 638 Lhcislativi: P()\vi:k in Canada. Provincial companies operating outside the province. Prop. 55-7 Tessier, J., says that this power of establishing agen- cies in places outside the province belongs to a pro- vincial corporation, "as it belongs to every individual whatsoever, provided he submits to the laws of the country in which he establishes thst agency." So, also, in Clarke v. The Union Fire Insurance Co.,^ where it was contended that a provincial corporation had not the status or capacity to contract outside of provincial jurisdiction which a Dominion corporation possesses, the Master in Ordinary in Ontario held that there was no warrant for this contention, and that such a corporation, in that case an insurance company, might transact its business outside the pro- vince, wherever by comity or otherwise its contracts are recognised. - However, Ministers of Justice have always taken strong ground that companies with power to trans- act business beyond the limits of the province, in- cluding fire and life insurance companies,'^ or marine insurance companies with power to take risks on vessels not touching provincial ports, or on vessels going beyond the limits of the province, though the policies be granted within the limits of the province,* ^loO.P.R. 313. 3 Cart. 335,(1883). '^But see Clement's Law of the Canadian Constitution, at p. 452, where the author questions this decision, and submits that such a pro- vincial company must be treated by the Courts of other provinces as an unincorporated association of individuals. •^Hodgins' Provincial Legislation, 2nd ed., at pp. 811, 1052, 1182. Also ibid, at p. 583, where Sir John Thompson says: "A provincial legislature cannot authorize a company to do business beyond the limits of the province ; nor can it ratify an agreement made betvveen two companies which provides for the carrying on of business by one or the other of them in another province." *Hodgins' ibid, at pp. 142, 253, 492-3, 635, 1162. See the contrary view expressed by Mr. Mills, M. P., in Parliament : Can. Hans. 1887, pp. 637-8. At p. 676 of his Parliamentary Procedure and Practice, and ed., Mr. Bourinot says : " In the case of Dobie it was practically decided ihat the question of ' territoriality,' to use a convenient expres- sion in such cases, that is, the extent within which the company was to operate, is to be one test of its constitutionality." For the Dobie case see supra pp. 366-8. Incorporation of Companies. 639 or steamship companies for the purpose of running Prop. 55-7 steamers on the coast of the province ' and else- where,'^ are not companies 'with provincial objects,' within the meaning of No. 11 of section 92 of the British North America Act. And the writer in the Canadian Law Times in the article alreadx' referred what are ' provincial to, on Federal Extension of Provincial Charters,-' isobjects .' of a like opinion that the meaning of this clause is " that when the object of the company is to restrict its business (whatever it may be) to a particular province, the legislature of that province ma}' incor- porate it." But if this is so it follows that for a provincial corporation to carry on its business out- side the province must be ultra vires. To proceed, in a report as Minister of Justice of Jan. i8th, 1889,'^ Sir J. Thompson says :—" Doubt- less a provincial legislature has power to incorporate a company for any local or provincial purpose, but in order to the effectual execution of such purpose, Provincial , ,^ • ■ 1 • I . T-v ■ • companies recourse to the Uominion legislature or Dominion may need ~„ , , , Dominion orhcers may be necessary, and upon such consent assistance. being obtained, the provincial company may legall}' carry on the work for which it was incorporated."' And in the same report he says in reference to a Quebec Act purporting to incorporate a company for the purpose among other things of erecting and ^ Ylodgms' zdi'd. at p. 488. As to provincial navigation companies see vi/i-a p. 641, n. 2. "^ Supra p. 634, n. See the subject of what class of bills come within the meaning of the words ' the incorporation of companies with pro- vincial objects ' discussed by Mr. Bourinot in the light of debates and discussions in the House itself: Parliamentary Procedure and Practice, 2nd ed., p. 669, et set/. It may be observed that what corresponds to No. u of section 92 of the Act, in the Quebec Resolutions, viz. No. 43 (11), is as follows : "The incorporation of private or local companies, except such as relate to matters assigned to the general parliament." •'Hodgins' Provincial Legislation, 2nded., p. 379. And see supra p. 634, n. 640 Legislativk Power in Canada. Prop. 55-7 maintaining dams along the rapids of the River " Richeheu, and to conduct water from said river by canals or flumes from such dams, for hydraulic and manufacturing purposes, — " had it appeared that the intention of the legislature in incorporating To sanction, this company was merely to associate the cor- interfe^re'nce' porators together in order that they might, by navigable obtaining the necessary authority for the purpose, either by Dominion legislation or from the proper authorities, carry on the enterprise for which they were incorporated, there would be no constitutional objection to it, but the evident intention of the Act is otherwise. It professes to give absolute rights to the company in respect to the river, dealing with a subject wholh' within the powers of the Canadian parliament. The undersigned is of opinion that the Act so far as it trenches upon the Federal jurisdic- tion, as herein pointed out, should be amended." Quite in accordance with this is the decision in the Queddy River Driving Boom Co. v. Davidson\ Quecidy iH which the validity of a provincial Act purporting DHviW to incorporate a Boom company with power to rrDTvidson. obstruct by piers and booms a public tidal and navigable river came into question, and the Supreme Court, (Taschereau, J. dissenting), held the Act ultra vires in so far as it assumed to confer such powers, for that the legislative control of navigable waters belongs exclusively to the Dominion parliament under No. 10 of section 91 of the British North America Act, which assigns to it the power to make laws in relation to ' navigation and shipping.' The ^loS.C.R. 222, 3 Cart. 243, 263, (1883) ; followed in /« rg Provin- cial Fisheries, 26 S.C R. 444. (1896). At p. 515, Strong. C. J., says : " In the case of Queddy River Boom Company v. Davidson, this Court determined that a provincial legislature had no authority to legalize an obstruction to navigation, for the reason that the exclusive right so to legislate was under section 91 vested in the parliament of the Dominion." And see supra p. 563, n. 2. Incorporation of Companies. 641 ratio decidendi, is that the objects of the company Prop. 55-7 could not be said to be ' provincial objects ' because, involving as they did the interference with naviga- tion, they affected the public as well without as within the province. But Palmer, J.,^ the judge of if 'objects • , . , . , , ' of a first Histance, places the matter more clearly upon company 1 11 1 1 o • T -T-i affect public the same ground as that taken by Sir J. 1 horn pson outside the 1 r • -jTri province, HI tne report referred to, saymg : — ^" When a com p- they are not I • 1 1 1 1- ■ 1 ' provincial.' any is given the right to take away the public right of navigation, if such be a federal and not a provin- cial matter, I think such company is not a company having only provincial objects, and therefore not within the nth sub-section at all." However any federal matter would presumably in a greater or less degree affect the public as well without as with- in the province, so that this might probably in all cases be advanced as a reason why such a matter could not be a ' provincial object,' in addition to the fact of its being federal. - 13 Cart, at p. 262. '■^See also supra p. 634 n. In McMillan v. The Southwest Boom Co., 1 P. c% B. 715, 2 Cart. 542, (1878), the New Brunswick Supreme Court had held that ' navigation and shipping ' in No. 10 of section 91 of the British North America Act was not intended to cover the right to ' Na\igatior. authorize the erection of booms for securing lumber in the rivers of the ^nd provinces, but "was used in the sense in which it is used in the "jj'f'^'^^r '" several Acts of parliament of Ureat Britam relating to navigation sect. 91, and shipping,' and in the Act of the parliament of Canada, 30 Vict c. B.N. A. Act. 58, namely, the right to prescribe rules and regulations for vessels navigating the waters of the Dominion." And see supra pp. 5^2- 3. In McCaffrey v. Hall, 35 L.C.J. 38, (1891), the Quebec Superior Court held intra vires the local Act, 36 Vict. c. 81, whereby certain persons were authorized to erect piers and booms in the River Nicolet, ' provided always that the said piers and booms shall be so construcled and placed, as in no way to interfere with or obstruct the crossings, or free intercourse and navigation of said river.' And notwithstanding the Dominion power over ' navigation and shipping,' in Macdougall v. The Union Navigation Co., 21 L.C.J. 63, 2 Cart. 228, (1877), the Quebec Court of Queen's Bench held intra vires a Quebec Act incor- porating a navigation company, the operations of which were limited to the province, for ' carrying on any forwarding business, and the con- strucling, owning, chartering or leasing ships, steamboats, wharves, roads or other property required for the purpose of such forwarding business,' as a local work or undertaking, under No. 10, of section 92. A writer in the Cattadian Law Times, Vol. II., at p. 238, observes 41 642 Prop. 55-7 Legislative Power in Canada. In his dissenting judgment in this case, Tascher- eau, J., doubts whether the erecting of the booms under the Act in question was not a ' local work Provincial navigation compnnie?. in connection with this case : " It follows that the incorporation of a provincial navigation company is not an inlerfeience with navij^ation and shipping. The constitution of the company is all that is dealt with. The building and working of the ships ; their obligations to observe the laws of navigation with respect to each other ; their liability for wrongs, and so on, would naturally fall within the jurisdic- tion of the Dominion." See, also, as to provincial navigation companies: Union Navigation Co. v. Couillard, 7 R.L. 215. (1875), ^"<:' ^^ Lake Winnipeg Transportation Lumber and Trading Co., 7 M-R. at p 259, (1891), noted szipia at p. 563. In Longueil Navigation Co. v. City of Montreal, M.L.R. 3 Q.B. 172, 15 S.C.R. 566, 4 Cart. 370. 388, the Quebec Act, 39 Vict. c.r52, whereby the City of Montreal was author- ized to impose an annual tax on steamboat ferries was adjudged intra vires, notwithstanding the Dominion power over ' navigation and shipping.' It was presumably by reason of the Dominion power over ' Navigation ' navigation and shipping,' that by his report in 1871, as Minister of ^?^ . , Justice, Sir J. Macdonald recommended the disallowance of a Nova s ipping. Scotia Art to regulate pilotage in the Bras d' Or Lake, on the ground that a provincial legislature has no power to regulate the fees of pilots : Hodgins' Provincial Legislation, 2nd ed., at p. 476. A Dominion Act passed in 1878 to repeal ' as respects all ships while in the wafers of Canada,' a section of the Imperial Merchant Shipping Act of 1876 relating to deck cargoes was disallowed by the Imperial government as claiming to legislate not merely for Canadian shipping, but for ' all ships' while in Canadian waters, "a provision," says Mr. Todd, "obviously in excess of the powers of the Canadian parliament:" Pari. Gov. in Brit. Col., 2nd ed., at p. 184. But it appears from a letter from the Board of Trade to the Colonial ofhce dated July 13th, Dominion jurisdiction over ships in Canadian waters. 187.^ a copy of which is on file in the Governor-General's office at Ottawa, but which is not referred to by Mr. Todd, that apart from questions of convenience, the ground of objection to the Canadian enactment on the strict point of power was as follows : '" This Colon- ial Act professes to repeal a section of the Imperial Act as regards all ships in Canadian waters, and the Board presume that it is passed in pursuance of seciion 547 of the Imperial .Merchant Shipping Act. That section, however, only applies to ships registered in Canada, and the repeal therefore seems tc) lie u/ira 7'/res." The reference here is to Imp. 17-18 Vict. c. 104, s. 547. It may be added that this letter of the Board of Trade also states that " whilst measurement of tonnage is an Imperial matter, local taxation of shipping is essentially a colonial matter." And as to the validity of the the Dominion Act respecting the navigation of Canadian waters, 31 Vict. c. 58, and the applicability of its provisions to collisions occurring in those waters, see Eliza Keith, 3 Q.L.R. 143, (1877); The Hibernian, L.R. 4 P.C. 511, at pp. 5167. And see supra p. 212. And as to the extension of the powers of the Canadian parliament and the legislatures of the other self governing colonies conferred by the Imperial Act of 1869, amending the law concerning the coasting trade and colonial merchant shipping, see Todd idit/. at p. 226. See, also, Hid. at p. 229. And as to the establishment of Vice-admiraliy Courts, ?i^/rt'. at pp. 230240 ; also, supra pp. 515 17. In 1887, Sir J. Thomp- Incorporation of Companies. 643 or undertakins; ' within the meaning of No. 10 of Prop. 55-7 section 92 of the British North America Act, and so the Act in question intra vires notwithstanding that the booms might interfere with navigation and shipping. But this seems to overlook what may be termed the predominance of the Dommion powers, as to which see supra p. 427, ct seq., and Proposition 43 and the notes thereto. Passing to Proposition 56, it is based upon the Prop. 56. judgment of the Privy Council in The Colonial Building and Investment Association v. The Attor- ney-General of Quebec.^ The question before their lordships in that case was in part the validit)' of the Dominion Act incorporating the said associa- tion. At the place cited they say : — " Chief Provincial _ . 1 r • • i_ legislation Justice Dorion appears to be of opinion that cannot inasmuch as the legislature of the province Dominion of . ... power to had passed Acts relating to such societies, and incorporate, defined and limited their operations, the Domin- ion parliament was incompetent to incorporate the present association, having for one of its objects the erection of buildings throughout the Dominion. Their lordships at present fail to see how the exist- ence of these provincial Acts, if competently passed for local objects, can interfere with the power of son, as Miniiter of Jasiice, reconiinended the disallowance of a Nova Scotia Act concerning collection of freight and wharfage and warehouse charges, as u/ira vires as infringing the exclusive; jurisdiction of the I)(5minion over navigation and shipping, and trade and commerce : llodgins' Provincial Legislation, 2nd ed., p. 558. In 1S88, he says in another report : " The undersigned is of opinion that a provincial- legislature cannot give to a town council power to make regulation.s- for the discharging and depositing of ballast, rubbish, or refuse in harbours or rivers" : Hodgins' tdid. p. 573 : and in 1889, in another report, he says of a New Brunswick Act civing a town council "power to regulate the anchorage, lading and unlading of vessels and other craft arriving at the said town," that this is " clearly beyond the competency of a provincial legislature, having undoubted reference to navigation and shipping, and the management and control of harbours, those being subjects exclusively assigned to the Dominion parliament :" llodgins idi(^. p. 751. I9 App. Cas. at p. 167, 3 Cart, at p. 130, (1883). 644 Legislative Power in Canada. Prop. 55-7 the Dominion parliament to incorporate the Associa- tion in question." They, however, add : " If the association by its operations has really infringed the Building Societies Acts, a proper remedy ma}- But the doubtless be found adapted to such a violation of corp"oration the proviucial law. ... If the company is really Object to holding propert}' in yuebec without having complied provincial with the law of that province, or is otherwise violat- ing the provincial law. there may be found proceed- ings applicable to such violations, though it is not for their lordships to anticipate them or to indicate their form."' Prop. 57. Proposition 57 is clearly laid down by the Privy Council in the same case. The Colonial Building and Investment Association had been incorporated with power to carry on its business, consisting of various kinds, throughout the Dominion. It was, however, contended that inasmuch as the Association Dominion had confiued its operations to the province of Que- companies .,. 1,1 rii i- may confine bcc, and its busuiess had been oi a local and private their ..,, . operations uature, it followcd that Its objects were local and to one . . ... province provHicial, aud consequently that its incorporation belonged exclusively to the provincial legislature. Their lordships overruled this contention laying down the above Proposition, and adding:^ "The parliament of Canada could alone constitute a cor- poration with these powers ; and the fact that the exercise of them has not been co-extensive with the grant cannot operate to repeal the Act of incorpor- ation, nor warrant the judgment prayed for, viz., that the company be declared illegally constituted." They, however, add : " It is unnecessary to consider what remedy, if any, could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object." - ^See supra at p. 374, et seq. -9 App. at p. 165, 3 Cart, at p. 12S, (1S83). Rule for Testing Provincial Acts. 645 PROPOSITION 58. 58. In determining the validity of a Provincial Act, the first question to be decided is, whether the Act impeached falls within any of the classes of subjects enumerated in section 92 of the British North America Act, and assigned exclu- sively to the Legislatures of the Provinces; for, if it does not, it can be of no validity, and no further question would then arise. It is only when an x\ct of the Provincial Legislature p-ima facie falls within one of these classes of subjects that the further question arises, namely, whether, not- withstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, [and so does not belong to the Domin- ion Parliament]. iluensi The above Proposition is in the words of the Priv} cii Council in Citizens Insurance Co. v. Parsons, ^ p'a''sfn°s."' excepting that the concluding words there are " and whether the power of the provincial legislature is or is not thereb}^ overborne," as to which see supra p. 498 ; and Proposition 43 and the notes thereto should be read in connection with it. Their lord- '7 App. Gas. al p. 109, i Cart, at p. 273, (1881). 646 Legislative Power in Canada. Kule for testing provincial Acts applied. Prop. 58 ships repeat and apply the rule in substantially the same words in Dobie v. The Temporalities Board ^ ; while they again apply it in Bank of Toronto v. Lambe.- There the question before the Board was, whether a certain Act of the Quebec legislature, passed in 1882, entitled ' An Act to impose certain direct taxes on certain commercial corporations,' was valid. Their lordships say : " To ascertain whether or not the tax is lawfully imposed, it will be best to follow the method of enquiry adopted in other cases. First, does it fall within the description of taxation allowed by class 2 of section 92 of the Federation Act, namely, 'direct taxation within the province in order to the raising of a revenue for provincial pur- poses ' ? Secondly, if it does, are we compelled by anything in section 91 or in the other parts of the Act so to cut down the full meaning of the words of section 92, that they shall not cover this tax." It must be remembered, however, that the exercise of provincial legislative powers, and the operation of provincial Acts, may be sometimes more or less restricted by reason of existing Dominion legislation, as to which see Propositions ;^y and 62 and the notes thereto ; also supra pp. 357-8. ^7 App. Cas. at p. 149, i Cart, at pp. 367-8, (1882). ■^12 App. Cas. 575 at p. 581, 4 Cart. 7 at p. 14, (1887). Predominance of Dominion Powers. 647 PROPOSITION 59. 59. Any matter coming within any of the classes of subjects enumerated in section 91 of the British North America Act shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces. The above Proposition is in the words of the con- Final clause eluding clause of section 91 of the British North b.n. a. Act. America Act,^ and, after much discussion in various cases, its force and meaning have been determined by the Privy Council in the following passage of their judgment in the Liquor Prohibition Appeal, 1895- : — " It was apparently contemplated by the framers of the Imperial Act of 1867, that the due exercise of the enumerated powers conferred upon the parliament of Canada by section g£ might, occa- sionally and incidentally, involve legislation upon matters which are /r/j^^r/ac/g committed exclusively to the provincial legislatures by section 92. In order to provide against that contingency, the con- 'It appears from Pope's Confederation Document?, (Toronto, 1895), that in the final draft of the Bill this clause had, in place of ' within, the class of matters of a local or private nature comprised, etc.,' the words 'within the subject of propeity and civil rights comprised, etc' A'nd this draft further had in place of No. 16 of section 92 of the Act, — 'such other classes of subjects (if any) as are from time to time added to the enumeration in this section by any Act of the Parlia- ment of Canada,' (pp. 234-6). ^[1896] A.C. at pp. 359-60. 648 Legislative Power in Canada. Prop. 59 eluding part of section 91 enacts that 'Any matter, etc. . .' It was observed by this Board in Citi- zens Insurance Co. v. Parsons' that the paragraph just quoted ' apphes in its grammatical construction only to No. 16 of section 92.' The observation was not material to the question arising in that case, and does not appear to their lordships to be strictly The Li.juor accuratc. It appears to them that the language of Prohibition ... i Appeai,i895. the exception in section 91 was meant to include, and correctly describes, all the matters enumerated in the sixteen heads of section 92, as being, from a provincial point of view, of a local or private nature. - It also appears to their lordships that the exception was not meant to derogate from the legislative authority given to provincial legislatures by these Final clause sixtecn sub-scctious, save to the extent of enabling of sect. 91 . r/^-i 11-I 11 B.N.A. Act. the parliament of Canada to deal with matters local or private in those cases where such legislation is necessarily incidental to the exercise of the powers conferred upon it by the enumerative heads of clause gi. That view was stated and illustrated b}- Sir Montague Smith in Citizens Insurance Co. v. Parsons," and in Cushing v. Dupuy* ; and it has been recognized by this Board in Tennant v. The Union Bank of Canada,' and in Attorney-General I7 App. Cas. at pp. 10S-9, i Cart, at pp. 272-3, (1881). -In the argument in Hodge v. The (^ueen. in 1883, Sir Arthur liolihouse, one of the Board, had observed that such a view of the Act as would hold the clause in question to refer to all the classes in section 92, and not only to No. 16, " would support the Dominion in almost anything," and had favouied the vievv that the words refer only to class 16 : Dom. Sess. Pap., 1884, Vol. 17, No. 30, at p. 29. ■'7 App. Cas. at pp. 108-9, i Cait. at pp. 272-3. ''5 App. Cas. at p. 415, i Cart, at p. 258, (18S0). See su/>ra pp. 426 7. ■''[1S94] .\.C. at p. 46. Sec uipra pp. 427-9. Predominance of Dominion Powers. 649 of Ontario v. Attorney-General of the Dominion.^ Prop. 59 To those n:iatters which are not specified among the enumerated subjects of legislation, the exception from section 92, which is enacted by thesubjectsof , , . 1 r • 1 1 • • legislation concludmg words 01 section 91, has no application ; not enumer- and, in legislating with regard to such matters, the Dominion parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by section 92."- ^[1894] A.C. at p. 200. See sttpa pp. 429-30. The first of the above four judgments stated the view here taken by their lordships of the meaning of the clause in question, rather thin illustrated it, speak- ing of it as " this endeavour to give pre-eminence to the Dominion parliament in cases of a conflict of powers." See supra pp. 410-11. The next two cases illustrate the pre-eminence of the Dominion par- liament when legislating under its enumerated powers, and the last affirms it, but none of these three rest it upon or refer to the clause in question: see supra p. 430, n. 4. And see, also, supra pp. 432-3. -In the Manitoba School case, Brophy c'. The Attorney-General of Manitoba, [1895] A.C. at p. 222, the Privy Council say: — "In relation to the subjects specified in .section 92 of the British North America Act, and not falling within those set forth in section 91, the exclusive power of the provincial legislature may be said to be absolute. " In the argument before the Privy Council in the recent case of Lord Fielding zk Thomas, [1896] A.C. 600, Lord Watson says of the con- Watson, eluding clause of section 91 of the British North America Act now under discussion : — " I think that clause plainly shows the consciousness of those who framed that Act, that the things given to the one parlia- ment by section 92 and the supreme parliament by section 91, did run into each other or over-ride each other, and they got rid of the difli- culty by the declaration that nothing done by the supreme legislature under the express and exclusive power given them by section 91 should be deemed to be within the exclusive power given to the province by section 92. In other words, if the Dominion exercises their power, that matter is no longer within the exclusive power committed to the province. It is a very wise provision and shows a good deal of fore- sight :" Manuscript transcript from the shorthand notes of Cock and Kight, at pp. 53-4. As already stated, the meaning of the clause had Judicial been considered by many judges in different cases, and several had put dicta on final upon it the interpretation now established by the Privy Council, xhe *:'^"^^ ""^ following references to such ptior dicta may possibly be of use: per hn.A.'.Aci. Ritchie, C. J., in The Queen v. Chandler, i Hann. at p. 556, 2 Cart. at p. 426, (1869) ; per Fisher, J., in Robertson v. Steadman, 3 Pugs, at p. 637, (1876); per Allen, C.J., S.C, i/nd. at p. 631 ; per Dunkin, J., in Cooey v. The Municipality of the County of Brome, 21 J^.C. I. at p. 185, 2 Cart, at p. 386, (1877) ; per Fisher, J., in Steadman ?'. Robertson, 2 P. tt B. at pp. 593-4, (1879); per Gwynne, J., in Citizens Insurance Co. v. Parsons, 4 S.C.R. at pp. 330-1, i Cart, at p. 336, (1880) ; per Ritchie, C.J., in City of Fredericton v. The Queen, 3 S.C.R. at pp. 537, 540, 2 Cart, at pp. 35, 38-9, (1880); per B.N.A. Act. 650 LiiGiSLATivE Power in Canada. Prop. 59 Now, although in the above passage the Privy Council say that the concluding clause of section 91 was not meant to derogate from the legislative authority of the provincial legislatures save to the extent of enabling the Dominion parliament to fully exercise its enumerated powers, it would not seem that they intend this as a pronouncement in any way against that interpretation of it, which would Further also find in it the further significance that the pro- offinai vmcial legislatures cannot legislate on any 01 the clause of . . ^ , . sect. 91, enumerated matters in section ni for their own provinces, under the pretence or contention that the legislation is of a provincial or local character. We have seen that this is the force attributed to the clause b}- Strong, C.J., in Quirt v. The Queen. ^ Indeed passages in the course of the argument on this very Liquor Prohibition Appeal, 1895, have been already noted" wherein Lords Her- schell and Davey attribute this meaning to the clause, and Lord Watson says : — " No pretext could be made by the provincial legislature that it could legislate on the subject of bankruptcy.*''* And, therefore, although the occasion has not arisen as yet* for their lordships definitely to pronounce Gwynne, J.,S.C., 3 S.C.R. ai pp. 565-6, 570-1, 2 Cart, at pp. 57-8, 61 ; per Duff", f., in Ex p. Owen, 4 P. & B. at p. 498, (1881) ; per Gwynne, J., in The Queen v. Robertson, 6 S.C.R. at p. 64, 2 Cart, at p. 1 19, (1882); per Ritchie, C.J.,S C, 6 S.C.R. at p. 112, 2 Cart, at p. 83; per Ritchie, C J., in the The Queddy Driving Boom Co. v. Davidson, 10 S.C.R. at p. 233, 3 Cart, at p. 255, (1883) ; per Pahiier, J., S.C, 3 Cart, at p. 262 ; per Henry, J., in Suite v. The Corporation of Three Rivers, 11 S.C.R. at p. 36, 4 Cart, at p 315,(1885) ; per Ramsay, J., in North British and Mercantile Ins. Co. v. Lambe, M.L. R. I Q. B. , at p. 189, 4 Cart, at p. 80, (1885) ; per Gwynne, J., in In re Prohibi- tory Liquor Laws. 24 S.C.R. at pp. 212-3, (i^95)- '19 S.C.R. at p. 516. See supra pp. 573-4. '^ Supra p. 574, n. i. See, also, at p. 204 of the printed report ol the argument. 'See supra pp. 385-6 ; also p. 573, n. 4. *It may arise in the appeal before the Privy Council in the Fisher- ies case {26 S.C.R. 444) pending as this portion of the present work goes to press. EXCLUSIVENESS OF DOMINION PoWERS. 65I against the right of a provincial legislature to legis- Prop. 59 late on any of the subjects enumerated in section 91, though only locally for the province, there can be little doubt that such will be their decision, and that they will find that the concluding clause of section 91 prohibits such legislation. Indeed did that clause not contain that force and meaning, as well as that which their lordships call attention to in the passage just quoted from the j udgment on the Liquor Further Prohibition Appeal, 1895, it would appear open tOof^finar"" the charge brought against it bv Dunkin, J., insec^l" B N A \ct. Cooey f. The Municipality of the County of Brome,' of having been added unnecessarily, on account of the non obstante clause contained in the earlier part of the section, upon which we have alread}- commented.- But without the concluding clause it might have been supposed that although section 91 says that Parliament may exclusively legislate upon the matters therein enumerated, this only means that it alone may legislate upon these sub- jects for the whole Dominion,-' but does not prevent the provinces legislating upon them within the lim- its of each province. And although it has thus been finally decided that the clause of section 91 which we are considering, has reference not only to No. 16 of section 92, but to all the matters enumerated in the latter section, this seems, nevertheless, a convenient place for discussing the purport of No. 16, which assigns to the provincial 121 L.C.J, at p. 185, 2 Cart, at p. 386, (1877). Mr. Edward Blake indeed says, aj-giiendo, on the Liquor Prohibition Appeal, 1895 : — " My submission is that . . no more is accomplished in effect by the end of section 91 than to make surer the provision which was in the beginning of it with reference to the effect of the enumeration, and I say that it leaves the general language of section 91 just where it was : " Printed report, p. 245. "^Supra pp. 427-9. 'But as to this see Proposition 51 and the notes thereto. 652 Legislative Power in Canada. Prop. 59 legislat ures the exclusive power of making laws inrelat- ion to 'generally all matters of a merely local or private nature in the province.' In their recent judgment No. 16 of in the Liquor Prohibition Appeal. 1895,^ the Privy B.N.A. Act.' Council say: — "In section 92, No. 16 appears to have the same office which the general enactment with respect to matters concerning the peace, order, and good government of Canada, so far as supple- mentary of the enumerated subjects, fulfils in sec- tion 91. It assigns to the provincial legislature all matters in a provincial sense local or private, which have been omitted from the preceding enumeration," and, although its terms are wide enough to cover, they were obviously not meant to include provincial legislation in relation to subjects already enumer- inierpreted atcd." And although in an immediately preceding by the Privy . , . ... - . Council on passage m the same judgment it is said : — " It is not Liquor . .,,,,. ., Prohibition impossible that the vice of intemperance may prevail 1895 ' in particular localities within a province, to such an extent as to constitute its cure by restricting or pro- hibiting the sale of liquor a matter of a-merely local or private nature, and therefore falling prima facie within No. 16," it must not be supposed that their lordships mean by this that a law may not operate over a whole province, and yet come within No. 16 of section 92. On the contrary it appears from the passage just quoted that they regarded No. 16 as refer- ring to matters local or private in the same provincial sense as that of the preceding enumerated classes. And when upon, the argument, counsel for the Do- minion contended that a local matter in No. 16 meant a matter which does not affect the province generally, — does not affect the entire province, but '[1896] A. C. at p. 365. ■■'Cf. sttfra p. 343. Local Matters in the Province. 653 that it might perhaps be fair to construe the Prop. 59 words as having regard to local or private bills, ^ Lord Davey observed : — " The words are * generally all matters,' which looks as if things not previously enumerated were considered as being within it."- Indeed the previous decision of the Privy Council Hodges. , „ . , till The Queen. m Hodge v. The Queen' might probably be con- sidered decisive on the point. There the Act under discussion was the Ontario Liquor License Act of 1877, which, by sections 4 and 5, empowered license commissioners to make regulations as to the condit- ions and qualifications requisite to obtain tavern licenses for the retail of spirituous liquors within the municipalities of Ontario, and in their judgment the Privy Council say :* — " That Act is so far con- fined in its operation to municipalities in the prov- ince of Ontario, and is entirely local in its character and operation. . . Their lordships consider that Regulations 1 • 111 r 1 1 1 A • of license the powers intended to be conierred by the Act in commission- 6rs. question, when properly understood, are to make regulations in the nature of police or municipal regulations'' of a merely local character for the good government of taverns licensed for the sale of liquors by retail. . . The subjects of legislation in the ^So in the argument before the Board in Hodge v. The Queen counsel had contended that Acts of a local or private nature in No. i6 of section 92 mean "Acts passed in the ordinary course of private Bill legislation in England, Acts affecting particular localities, and particular matters in those localities, and clearly not matters such as those of liquor licensing or matters of the kind:" Doni. Sess. Pap. 1884, Vol. 17, No. 30, at p. 64. See, also, //>/. absence of conflicting legislation by the parliament of Canada, their lordships are of opinion that the provincial legislatures would have jurisdiction to that effect, if it were shown that the manufacture was carried on under such circumstances and conditions as to make its prohibition a merely local matter in the province."'^ ^3zd. at pp. 126-7. ^[1896] A.C. at p. 371. In the course of the argument Lord Watson said : — " A municipal prohibition to take effect within the limits of a municipality may be a local subject within the meaninij of sub-section 16," (st:. of section 92 of the British North America Act), "when a general prohibition of all imports would not be local. . Would that be a provincial matter, the stoppage of spirits not intended to stop in the province and not intended to he consumed there ? At present it does not appear to me it would be a provincial matter": Printed report, at p. 181. ^[1896] A.C. at p. 371. And as to the significance of the word ' merely' see, further, supra pp. 384-5. See, also, per Robinson, C.J., in Gordon z>. Fuller, 6 O.S. at p. 182, (1836), who held that the power given by Imp. 31 Geo. III., c. 31, to ' make laws for the peace, welfare, and good government ' of Upper Canada, was to be construed as a power " to make laws to operate directly only on the peace, wel- fare, and good government of this province though indirectly they may affect — which is inevitable, — persons resident out of it ;" and that it 42 658 Legislative Power in Canada. Prop. 59 It must no doubt be difficult in many cases, espec- iallv when the enactment extends to the whole province, to say what is and what is not a matter of a merely local or private nature in the province. For as Lord Herschell said on the argument just referred to^: — " Everything that is for the benefit of No. 16, a part is in its degree and sense for the benefit of the B.N.A.Act. whole ;" and " there is scarcely anything which it may be desirable and beneficial for a province to deal with locally that might not become at some time or other a matter of Dominion concern, and therefore one on which it might be necessary for the Dominion to legislate for the whole Dominion. That deprives the provincial legislature of all legislative power." - On the other hand, as Mr. Edward Blake observed, in the course of the same argument^: — "One can suggest extreme cases in which it would be perfectly ' Merely of clcar. For instance with reference to a small ordin- private ary travelled road in one portion of a great province, nature in the . . , • r ^ province.' you might Say m one sense that the prosperity or the whole Dominion depends on the prosperity of each of the inhabitants : there are twent}' people that live on this road, the whole Dominion will be infinite- simally better off, but still better off if these twenty are better accommodated, and therefore it is a Canad- ian matter to see to the repair of that road or legis- late with regard to it. I should say that that prop- osition would be obviously absurd, and that that did not reasonably extend to the repeal of an Act of the British parlia- ment expressly passed to afford facilities to British subjects resident in England, such as Imp. 5 Geo. II., c. 7, s. i, respecting affidavits to be made in England for proofs of debts sued for in this province, then under consideration. ^At p. 230. '^At p. 248. And see the judgment, [1896] A.C. at p. 361, and stipj-a pp. 360, n. I, 3835, 408-10, 507-8, and Proposition 47 and the notes thereto. At p. 233. Local Matters in the Province. 659 matter would be obviously a merely local or private Prop. 5S matter. There must be some reasonable suggestion to sustain the proposition that there is a common interest in the condition of the question and of the treatment of it by the parliament concerned." Whereupon Lord Davey said: — "If there were a matter 1 1 r 1 • 1 1111- • ""^y extend larger elements or disorder and rebellion against to the whole , . . Ill province government in one particular province, it would be and yet be ' local,' a matter of the peace, order, and good government to prohibit the sale of fire arms in that province," To which Mr. Blake rejoined : — " Yes, and it would be, as I submit, within the power of the parliament of Canada." But, as we have seen,^ the Privy Council clearly uphold the view that a law may extend to a whole province and yet relate to a matter of a merely local nature in the province within the meaning of No. 16 of section 92. And so the preservation of the public health within the province, excepting, of course as regards ' quarantine and the establishment *-.^»'.,satiitary 1 ■ r ■% r • TT '1)1 XT p legislation. and maintenance or Marine Hospitals, by No. 11 or section gi assigned to the Dominion parliament,- has been held in Ringfret i'. Pope,'^ to be a matter of a merely local or private nature in the province, Cross, J., dissenting so far at all events as concerns the establishment of a central Board of Health, with a system of subordinate Boards, as in C.S.C., c. 38.^ He observes, at p. 313 : — " Although the provincial legislature might make and enforce police regulations directly, or by giving that power to be executed by the municipalities so as to promote health within their several jurisdictions, or deal with the subject in a sense that was purely local, the Dominion legis- ^ Supra, at pp. 652-4. ^As to which see, also, supra p. 560, note. 3 12 Q.L. R. at p. 303. *For some unexplained reason he considers this not matter ' of a merely local or private nature' (p. 313). 66o Legislative Power in Canada. Prop. 59 lature could deal with it in a general sense, and take appropriate measures to prevent or mitigate an epid- emic, endemic or contagious disease, with which the Dominion, or any part of it, was threatened." And in La Municipalite du Village St. Louis du Mile End V. La Cite de Montreal,^ the Superior Court at Montreal held in the words of Mousseau, J.-: — "La santc est de juridiction municipale, de juridic- tion locale ou provinciale."'^ Ferries and Again a fcrr}' between two points in a province rnjhts of . ... ferriage. and the right of ferriage has been held to be a matter of a local or private nature.* And the judg- ment of Wurtele, J., in Tarte v. Beique-^ may be cited in support of the view that matters of a * merely local or private nature in the province' referred to in No. i6 of section 92*^ cover a law commanding all ^M.L.R. 2 S.C. 218, (1885). ^At p. 225. 'And so Boiland z>. Dugas, 15 R. L. 266, (1885); and Dooley v. La Cour du Recorder, RJ.Q. 6 S.C. 126, (1894). And see per Cross, J., in Pillow v. City of Montreal, M.L. R. i Q.B. at p. 409. In 1S69 a bill providing for vaccination was not proceeded with in the Dominion parliament, as it was considered doubtful if it was within its jurisdiction : Bourinot's Parliamentary Procedure and Practice, 2nd ed., p. 674, citing Com. Deb. i860, p. 64 ; Sen. Deb. 1879, P- 47- ■*See Longueil Navigation Co. z'. City of Montreal, M.L. R. 3 Q.B. at p. 190, 15 S.C.R. at p. 574, 4 Cart, at pp. 377, 388, (1888) ; and Dinner v. Humberstone, 26 S.C.R. at pp. 266-7, (1896). ^M.L.R. 6 S.C. 289, 296, {1890). For S.C. in appeal see suf> nom. Turcotte v. Whelan, M.L.R. 7 Q.B. 263, (1891), over-ruling the decision of Wurtele, J., but not on this point. And see supra p. 387. *In the argument in Russell v. The Queen, (see supra p. 398, n. i), considerable discussion arose among members of the Board whether No. 15 of section 92 of the British North America Act, applies to the subsequent No. 16, not only because of its position, but on the ground suggested by Sir Barnes Peacock, that No. 16 is not one of the 'subjects enumerated in this section,' but " is general, and there- fore the 15th clause is put in before the i6th." Their lordships finally came round to the conclusion that No. 16 must be considered one of the ' subjects enumerated,' resting this, however, on the concluding clause of section 91 from which our Proposition 59 's taken, which they there considered as referring expressly to No, 16 : 2nd day, at p. 95, et seq. Local Matters in the Pkovinxe. 66i persons within the provincial jurisdiction, when Prop. 59 called before commissions of enquiry directed under proclamation of the Lieutenant-Governor, pursuant Provincial , , , , . . . . commissions to statute m that behali, as witnesses, to give evi- of enquiry-, dence, and making it incumbent on them to answer all pertinent questions which may be put to them. 6f)2 Legislative Power in Canada. PROPOSITION 60; 60. Where the validity of a Provincial Act is in question, and it clearly appears to fall within one of the classes of subjects enumerated in section 92 of the British North America Act, the onus is on the persons attacking its validity to shew that it does also come within one or more of the classes of subjects specially enumer- ated in section 91. Onus in This Proposition rests upon a passasre in the attacking _ "^ . ... provincial judsfment of the Privv Council in L'Union St. Act. JO ., Jacques de Montreal v. Belisle.^ The respondent in that case was contending that a certain Act of the provincial legislature of Quebec was ultra vires. Their lordships say in the course of their judgment-: "The onus is on the respondent to show that this, being of itself of a local or private nature, does also come within one or more of the subjects specially enumerated in the 91st section."^ ^L.R. 6 P.C. 31, I Cart. 63, (1874). 2L.R. 6 P.C. at p. 36, I Cart, at p. 69. ^Cited per Weatherbe, J., in /vV Windsor and Annapolis Railway, 4 R. & G. at p. 323, 3 Cart, at pp. 400-1, (1883). .And see Proposi- tions 43 and 58. As to the presumption in favour of the validity of all statutes, 5ee Proposition 18 and the notes thereto. Plenary Nature of Provincial Powers. 663 PROPOSITION 61. 61. If on due construction of the British North America Act, a legislative power falls within section 92, it is not to be re- stricted or its existence denied because by some possibility it may be abused or may limit the range which otherwise would l^e open to the Dominion Parliament. What- ever power falls within the legitimate meaning of the classes in section 92, is what the Imperial Parliament intended to give ; and to place a limit on it because the power may be used unwisely, as all powers may, would bean error, and would lead to insuperable difficulties in the con- struction of the Federation Act.' The above Proposition is stated and illus- p,ankof trated by the Privy Council in Bank of Toronto t'. Lam"'? Lambe,- who at the same time point out the dis- tinction existing so far as concerns liniiting the range which would otherwise be open to the Fed- eral power,"' between the Constitution of the United ^Cf. Proposition 48 and the notes lliereto. 2 12 App. Gas. at pp. 586-7, 4 Cart, at pp. 22-3, (1887). There are some brief comments on this case in 22 L.J. (Eng. ) 398, reprinted in 10 L.N. 257. ■'As to denying the existence of a legislative power, because if it existed it might be abused or might be used unwisely, Story says : — "It 664 Legislative Power in Canada. Prop. 61 States and that of the Dominion of Canada. Hav- ing decided in favour of the vaHdity of a certain Act passed by the Quebec legislature in 1882, whereb}' certain direct taxes were imposed on all banks doing business in that province, they say at the passage referred to : — " Then it is suggested that the legislature may la}^ on taxes so heavy as to crush a bank out of existence, and so to nullify the power of Parliament to erect banks. But their lordships cannot conceive that, when the Imperial parliament conferred wide powers of local self-gov- Provinciai emmcnt on great countries such as Quebec, it power to rax . .... . banks. mtended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes. There are obvious reasons for confining their power to direct taxes and licenses, because the power of indirect taxation would be felt all over the Dominion. But whatever power falls within the legitimate meaning of classes 2 and g," {sc. of sec- tion 92), "is in their lordships' judgment what the Imperial parliament intended to give ; and to place a limit on it because the power ma}' be used un- wisely, as all powers may, would be an error, and would lead to insuperable difficulties in the construc- Po.ssible unwise exercise no ground for denying legislati\e power. is always a doubtful mode of reasoning; to argue from the possible abuse of powers that they do not exist :" On the Constitution of the United States, 5ch ed., at p. 2S1. Again he says : — " Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed": t6i(i. at p. 744. See, also, tdid. at pp. 324-5 ; and Cooley's Constitutional Limitations, 6th ed., pp. 87-8. And of. per Wilson, J., in Regina v Taylor, 36 U.C. R. at p. 202, (1875) : per Gwynne, J., in /// re Niagara Election Case, 29 C. 1'. at p. 279, (1S78) ; City of Montreal <7. Standard Light and Power Co., R.J.Q. lO S.C. 209, 5 Q.B. 558, (1896). In another place, Story calls attention to the converse rule, "not to enlarge the construction of a given power beyond the fair scope of its terms merely because the restriction is inconvenient, impolitic, o;' even mischievous : " Story, ibid, at p. 325. Plenary Nature of Provinxial Powers. 665 tion of the Federation Act. Their lordships have Prop. 6I been invited to take a ver}' wide range on this part of the case, and to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. But he was dealing with the Constitution of the United States. Under that Constitution, as their lordships understand, each Contrast o A 11 r • 1 r between btate may make laws for itself uncontrolled by the provincial ■j^ J , 1 1 • powers in rederal power, and subject only to the limits placed Canada and , , , - State powers by law on the range of subjects within its iurisdic- '" '^e ■' United tion. in such a Constitution Chief Justice Marshall ^'^'^s. found one of those limits, at the point at which the action of the State legislature came into conflict with the power vested in Congress. The appellant invokes that principle to support the conclusion that the Federation Act must be so construed as to allow no power to the provincial legislatures under section 92, which may by possibility, and if exer- cised in some extravagant way, interfere with the objects of the Dominion in exercising their powers under section 91. It is quite impossible to argue from the one case to the other. Their lordships have to construe the express words of an Act of Parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative bodies, and at the same time pro- vides for the federated provinces a carefully balanced Constitution, under which no one of the parts can pass laws for itself except under the control of the whole, acting through the Governor-General.^ And ^ As to the Federal veto power in Canada, see Proposition lo and the notes thereto. Reference may also be made to per Jette, J., in Lambe v. North British and Mercantile, etc. Ins. Co., M.L. R. i S.C. at p. 48, 4 Cart, at p. 103 ; per Morrison, J., in Leprohon t. City of 666 Legislative Power in Canada. Prop. 61 the question they have to answer is, whether the one bod}' or the other has power to make a given law. If they find that on the due construction of the Act a legislative power falls within section 92, it would be quite wrong of them to deny its existence because by some possibility it ma}' be abused, or may limit the range which would otherwise be open to the Dominion parliament." The United The distinction here referred to between the Colistliution Constitution of the United States and that of Canada compared, had bccn previously pointed out by Morrison, J., in Leprohon v. City of Ottawa,^ a case shortly to be discussed, and also by Palmer, J., in Ackman v. Town of Moncton,- where after remarking that, in his opinion, cases by the Courts of the United States under their Constitution are generally of little value on questions of contiict of power between the Dominion and provincial legislatures under the British North America Act, and pointing out some other points of distinction between the two Con- stitutions, he says-': — "In the United States, the States themselves granted the Federal government its power of legislation on the specific subjects, and consequently parted with it and all additional power to enable their grantees to legislate generally Ottawa, 40 U.C.R. at p. 501, i Cart, at pp. 656-7; per Harrison, C. J., .■^.C, 2 O.A. R. at pp. 536-7, I Cart, at p. 608 ; per Burton, J., S.C. in App., 2 O.A.R. at p. 547, 1 Cart, at p. 621. As to Leprohon v. City of Ottawa, see iii/'ra pp. 671-6. I40 L.C.R. at p. 501, I Cart, at pp. 656 7, (1877). See it/fra p. 671 c/ scq., as to this case. -24 N.B. 103, (18S4). In this case it was held that the provincial legislature couhi not empower a municipality to levy a tax on the salary of an employee of the Intercolonial railway, received by him from the Dominion government. Sed (/mne. See infra p. 678; and cf. Fillmore t'. Colburn, 28 N.S. 292, (1896), noted infra p. 677 n. ^24 N.B. at pp. 1 1 5-6. Plenary Nature of Provinxial Powers. 667 and effectually on those subjects, and they did not Prop. 6 1 reserve out of such s:rant to themselves power to legislate on any specified subjects exclusively ; and, therefore, there is nothing to prevent the operation of such grant so as to include all that may be fairly necessary to enable the Federal legislature to legis- late fully and effectually with reference to all the subjects so granted,^ and to that extent to operate as a prohibition of any legislation by the grantors p.ovinciai 1 ~r 11- 1 •! powers that would operate to anect such subject; while specific and ... , , . , . exclusive. with us the powers to both are given by one instru- ment, and all of them are made exclusive, and in construing such instrument there does not appear to be any more reason for restricting provincial legislatures from legislating on such subjects ex- clusively assigned to them, than the Dominion parliament from legislating on subjects exclusively put under its control. This construction not only prevents the a fortiori deduction- from the principle of the American cases, but makes the principle of them so far as they affect the questions of conflict of pov^'ers between the Federal and State legislatures, ^It must not be supposed from this that the Dominion parliament has not also power fully and effectually to legislate with reference to the enumerated subjects assigned to it. See Proposition 37 and the notes thereto. But by reason of having certain specified subjects of legis- lation exclusively assigned to them, provincial legislatures in Canada cannot be so restricted in their action as State legislatures are under the American Constitution. -Some judges had expressed the view that the principle of the -American decisions placing a limitation upon the powers of State legis- latures where their action came into conflict with the powers of Congress, was actually more applicable to our Constitution than to that of the United States, because with us, as shown in Proposition 26, (see supra p. 341, et seq.), the reserve of legislative power is with the Dominion parliament : e. g., per Spragge, C. , in Leprohon v. City of Ottawa, 2 O.A.R. at p. 529, i Cart, at p. 600 ; per Hagarty, C. J. O., S.C, 2 O.A.R. at pp. 532-3, I Cart, at p. 604 ; per itarrison, C. ]., S.C. 40 U.C. R. at p. 499, I Cart, at p. 654. See, also, per Duff, ]., in Ex parte Owen. 4 P. & B. (20 N.B. ) at pp. 493-4. 66S Legislative Power i\ Canada. Prop. 61 entirely inapplicable to the construction of our Constitution. "1 Thus the position seems to be this. Although when provincial legislation and Dominion legis- lation directly conflict with each other, the latter must prevail,- and although by virtue of the non obstante clause of section 91 of the British North Our system Amcrica Act,'' and the concluding clause of that and that of . , . ^ , , United section,* the construction 01 the enumerated powers States ... contrasted, conierrcd upon the Dominion parliament may be said to over-ride the construction of section 92,* yet the provinces, under our Constitution, have not, as the several States of the Union have, a general power of legislation subject only to certain specitied powers which they themselves have con- ferred upon the Federal body,** but they, as well as the Dominion, have received from one and the same Powers of Congrpss not, as a rule, exclusive. ^Cf. also per Palmer, J., in Queddy River Driving Boom Co. v. Davidson, 3 Cart, at p. 264, (1883), where the judgment is taken from the appeal book used in the Supreme Court. -See Proposition 44 and 46 and the notes thereto. =^See supra pp. 427-33. *See Proposition 59 and the notes thereto. "See J?//;-a! pp. 49S-9, n. 3. The powers of Congress are not expressed to be exclusive, and "unless from the nature of the power, or from the obvious results of its operations, a repugnance must exist, so as to lead to a necessary conclusion that the power was intended to be exclusive, the true rule of interpretation is that the power is merely concurrent " with that of the States : Story on the Constitution of the United States, 5lh ed., p. 335 ; per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at pp. 546-7, 2 Cart, at pp. 43-4, (1880) ; per Duff, J., in Ex parte Owen, 4 P. (N: B. (20 N.B.) at p. 494, (1881) ; per Palmer, J., in <^)ueddy River Driving Boom Co. v. Davidson, supra. See, also, supra p. 527, n. 5. And as to how far there can be said to be con- current powers of legislation in the Dominion parliament and the provincial legislatures, and how far provincial powers are contingent upon the exercise or non-exercise of Dominion powers, see Propositions 28 and 62 and the notes thereto. See, also. Proposition 55 and the notes thereto. Plenary Nature of Provinxial Powers. 669 source, namely the Imperial parliament,^ certain Prop. 6 1 express powers of legislation upon specified subjects, which are theirs exclusively,- and therefore their power to legislate upon these specified subjects cannot be denied, as in the case of the States, merely because in doing so they may interfere with or restrict the range of Federal legislation.^ But ^See supra pp. 6-9. 2 See this point emphasized per Dorion, C. J., in Ex parte Dansereaii, IQ L.C.J, at pp. 231-2, 2 Cart, at p. 190, (1875) ; per Fournier, J-, in Severn v. The Queen, 2 S. C.R. at pp. 124-6, I Cart, at pp. 468-70, (1877); per Ritchie, C. J., in Citizen's Insurance Co. v. Parsons, 4 S.C. R. at p. 238, I Cart, at pp. 288-9, (1879); per Burton, J. A., S.C, 4 O. A.R. at pp. 100- 1 ; per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at pp. 546-7, 2 Ca'rt, at p. 43, (iSSo). See, however, supra pp. 427-33. ^So in Town of Windsor v. The Commercial Bank of Windsor, Provincial 3 R. & G. 420, 427, 3 Cart. 377, 385, (1S82), Weatherbe, J., held tax on hi.nk intra vires a provincial Act imposing a tax on the Dominion notes held '■^^^'''■^• by a bank as a portion of its cash reserve, under the Dominion Act relating to banks and banking. And see per Torrance, J., in Angers V. Queen Insurance Co., 21 L.C.J, at p. 81, i Cart, at pp. 155-6; and Heneker v. Bank of Montreal, R. J. Q. 7 S.C. at p. 262, {1895). And contrast the view of Rainville, J., on this point in Lambe v. Canadian Bank of Commerce, 13 R.L. at p. 166, (18S3). And it follows from what has been stated that it is not well to speak in general language, as many judges have done, of provincial legislation being ultra vires when it deals or interferes or meddles or comes in conflict with, or obstructs Dominion legislation : see, e.g., per Ritchie, C.J., in Armstrong v. McCutchin, 2 Fugs, at p. 384, 2 Cart, at p. Provincial 497, (1874) ; per Fournier, J., in Severn v. The Queen, 2 S.C.R. at Acts not pp. 125-6, 133, I Cart, at pp. 470, 47S, (1877) ; per Henry, J., S.C, '^^^^^ 2 S.C.R. at pp. 136-9, I Cart, at pp. 480-4 ; per Taschereau, J., in because Citizen's Insurance Co. v. Parsons, 4 S.C.R. at p. 312, i Cart, at p. interfering 331, (1879) ; per Gray, J., in Tai Sing v. ^laguire, i B.C. at p. 106, with (1882). And where in Citizen's Insurance Co. v. Parsons, 7 App. Cas. [g^iXt'ion at p. 109, I Cart, at p. 273, (1881), the Privy Council say with refer- ence to the respective powers of the Dominion parliament and provincial legislatures, that "it could not have been the intention that a conflict should exist," the context shows that what they mean is that the intention of the Act clearly was to give power over certain specific departments of legislation to the Parliament, and over others to the provincial legis- latures, and not in any case (except, of course, agriculture and immigration), to give concurrent and conflicting powers to both at once. See supra pp. 487-90, and Propositions 27 and 28 and the notes thereto. And cf. Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart, at p. 21 ; in which case, in the Court below, Jette, J., says : — " Is it not necessary to grant to the provincial legislatures the recognition in the sphere which is given to them of their full liberty of action, with the elasticity necessary to the working of all political institutions?": M.L.R. i S.C. at p. 46, 4 Cart, at p. 102. 6/0 Legislative Power i\ Canada. Prop. 61 on the other hand, the Dominion government possess what the United States government has not, a veto power over all provincial legislation.' In their recent judgment in The Liquidators of the Maritime Bank of Canada v. The Receiver- General of New Brunswick,- the Privy Council say: — "The object of the British North America Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal govern- B N.A. Act ment in which they should all be represented, does not , . , , . - . . subordinate cntrustcd With thc exclusive administration of the provinces to affairs in which they had a common interest, each llie . .... ijominion. proviuce retaining its independence and autonomy."' . . . In so far as regards those matters which by section 92 are specially reserved for provincial legis- lation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the passing of the Act. . . It is clear, therefore, that the provincial legislature of New Brunswick does not occupy the subordinate position which was ascribed to it in the argument of the appellants. It derives no authority from the government of Canada, and its status is in no way analogous to that of a municipal institution, which has an authority for the purpose of local adminis- tration.* It possesses powers not of administration ^See Proposition 10 and the notes thereto. -[1892] A.C. at pp. 441 3. See this case referred to, also, supra pp. 92-5- ^See Proposition 64 and the notes thereto. *See Proposition 17 and the notes thereto. In Ex pafte Dan- sereau, 19 L.C.J, at p. 236, 2 Carl, at pp. 198-9, (1875), Sanborn, J., says: — " The remark is as common as it is erroneous, that the legis- latures of the provinces are mere large municip.1l corporations. It is true that every government is a corporation, but every municipal cor- poration is not a government. Consider the powers given exclusively Plenary Nature of Provincial Powers. 671 merely but of legislation in the strictest sense of Prop, ei that word : and within the limits assigned by section 92, of the Act of 1867, these powers are exclusive and supreme."^ And returning to the judgment of the Priv\' Leprohon?/. Council in Bank of Toronto v. Lambe,- it is ouawa. difficult to see how the decision of the Ontario Courts in Leprohon v. The City of Ottawa,'' can be maintained in view of it. There the Ontario Court of Appeal unanimously held, over-ruling the judgment of the majority of the Court of Queen's Bench, and confirming the judgment of Moss, J., at the trial, that a provincial legislature cannot impose a tax upon the official income of an officer of the to provincial legislatures . . . No such powers were ever conferred Provinces upon mere municipalities in their ordinary sense. They are subjects not mere which in all nations are entrusted to the highest legislative power. mui'c'Pal Legislatures make laws, municipal corporations make by-laws." Cf. tions. per Dorion, C. J., S.C, 19 L.C.J, at pp. 231-2, 2 Cart, at p. 190. Ramsay, J-, however, points out, (S.C, 19 L.C.J, at pp. 224-5, 2 Cart, at p. 177), that though within the scope of their own functions, provincial legislatures are not subordinate, except in respect to the veto power of the Dominion government, there are many good grounds for saying that they are of inferior dignity and rank to Parliament. Cf. per Ramsay, J., in Bank of Toronto z>. Lambe, ^LL.R. I Q.B. at p. 182, 4 Cart, at p. 74. And see supra pp. 318, n. 2, 432-3. There are some remarkable words of Mr. Cardwell, late Secretary of State for the Colonies, spoken in the debate on the second reading of the British North America Act in the flouse of Commons, which seem worth quoting in this connection. He said :^" The provinces will, I hope, Mr. gradually approach more nearly to the character of municipal institu- Cardwell. tions than the Bill at present contemplates ... It is well that these wise men have left it to a future time, when experience will enable them to determine how far these legislative bodies may continue to retain their inherent powers, and how far they can be reduced to the level of municipal institutions :" Hans. 3 Ser., Vol. 185, pp. 178-9. ^Speaking of Federal government in its perfect form, as distinguished from a mere Confederacy or system of confederate States, Mr. Freeman says : — " The State administration within its own range will be carried on as freely as if there were no such thing as an Union ; the Federal administration, within its own range, will be carried on as freely as if there were no such thing as a separate State : " Federal Government, p. 9. -12 App. Cas. 575, 4 Cart. 7, (1887). =^40 U.C.R. 47S, 2 O.A.R. 522, (1877-8). 672 Legislative Power in Canada. Prop. 61 Dominion government, or confer such a power on the municipahties.^ All the judges who supported the prevailing view in this case, rested their judg- ments upon the principle of the decision of Marshall, C. J., in McCulloch v. Maryland,'- in which it was held that a law of the State of Maryland imposing a tax upon a branch of the Bank of the United States established in that State was unconstitutional, and upon subsequent American cases upholding and Provincial illustrating the same principle. " The principles,'' tax on . official says Harrison, C. T.,'' " to be deduced from the income of . Dominion (Amcncan) cases appear to be, that the National officer. government and the State governments are, as it were, distinct sovereignties ; that the means and instrumentalities necessary for the carrying on of either government are not to be impaired by the other ; that as the power to tax involves the power to impair, the exercise of such a power by the one government on the income of the officers of the other is inconsistent with independent sovereignty of the other ; and that in such cases exemption from taxation, although not expressed in the national Constitution, exists by necessary impli- ^The reasoning in this case was much relied on by the judges of British Cohimbia in the Thrasher case, i B.C. (Irving) 153, {1882), to support their holding that it could not be the intention of the British North America Act that provincial legislatures should have control of the Superior Court judges, whom the Dominion government was entitled to use to carry into effect the powers conferred upon it. Their judgment, however, was overruled by the Supreme Court of Canada : Cass. Dig. S.C. 480, 3 Cart. 320, n. See, also, as to the Thrasher case, supra pp. 124-126. And Leprohon z: City of Ottawa, was followed in the New Brunswick case oi £x />ar/e Owen, 4 P. & B. (20 N.B.)486,(i88i), where the Supreme Court of the province held, (Allen, C.J., dubitante), that the income of an officer in the Customs who resided in the City of St. John, was not subject to taxation. And see Regina v. Bowell, 4 B.C. 498, (1896), noted infia p. 676, n. 5. *4 Wheat. 316. 340 U.C. R. at p. 499, I Cart, at p. 654. Plenary Nature of Provincial Powers. 673 cation ; " while Hagarty, C.J., cites with approval' Prop. 6 1 the words of Marshall, C.J., in McCulloch ir. Maryland- : '' If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. . . . We are relieved, as we ought to be, from clashing sovereignty ; from inter- fering powers ; from a repugnancy between a right Marshall, in one government to pull down what there is ani'mit'sof _ _ State powers acknowledged right in another to build up; from of taxation, the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing enquiry so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give." Now it may, of course, be said that there is an obvious distinction between the case of the Bank of Toronto v. Lambe, and the case we have been reviewing of Leprohon v. The City of Ottawa, inasmuch as the former case brought into question the validity of a provincial Act which merely im- posed direct taxation on banks doing business in the province, whereas in the latter the question was whether the provincial legislature could tax the official income of an officer of the Dominion gov- 12 O.A.R. at p. 536, I Carl, at pp. 607-8. In Ex fiarte Owen, 4 I^ & B. (20 N.B.) at p. 493, (1881), Duff, J., also expresses approval of these words. See sup7\i p. 672, n. i. '^4 Wheat. 316, at pp. 428-9. 674 Legislative Power in Canada. taxing a bank and taxing a Dominion officer. Prop. 61 ernment, a direct instrument whereby the Domin- ion government executed its power ; and as Har- rison, C.J., observes in the latter case,^ it does not follow from the principles laid down in the Amer- ican cases relied on by himself and the other judges, "that railway corporations and other corporations, created by or under the authorit}' of the Dominion legislature for other than government purposes, Distinction would be morc free from municipal taxation than between . . 111 • • 1 i • companies incorporated by the provincial legis- lature ; " or as Burton, J. A., points out- echoing the distinction drawn in National Bank v. The Commonwealth,"' " the doctrine which exempts the instruments of the Federal government from the intiuence of State taxation, being founded on the implied necessity for the use of such instruments by the government, such legislation as does not impair the usefulness or capability of such instru- ments to serve the government is not within tke rule of prohibition." But it is to be observed that McCulloch v. The State of Maryland* and Osborn t'. The Bank of the United States"' on which the Ontario judges in Leprohon v. The City of Ottawa principally based the decision in which so many of them concurred, were, as appears from the report of the argument in '40 U.C. R. at p. 499, I Cart, at p. 655. On the general subject of provincial power over Dominion railways see supra p. 596, n. i. ■^2 O.A. R. at pp. 541-2, I Carl, at p. 614. 39 Wall. 353. *4 Wheat. 316. As to this case see siipi-a p. 672. •'•9 Wheat. 738. In this case the Supreme Court of the United States, whose judgment was delivered hy Marshall, C.J., adhered to its prior decision in McCulloch v. The State of Maryland, holding that a State cannot tax the Bank of the United States. Plenary Nature of Provincial Powers. 67 = Bank of Toronto v. Lambe^ with the further case Prop. 61 of Railroad Co. v. Paniston,- the verv cases which were cited to the Board in Bank of Toronto v. Lambe, to show the invaHdity of the provincial Act there in question, for that "it is impossible for the Dominion legislature to exercise these powers," (sc, those conferred upon it b)- section gi), " if banks, as such, are subject to taxation by the provincial legis- The basis latures. The power to tax involves the power to Council ■ . . . . decision in destroy. Yet the Privy Council drew no distinc- Bank of Toronto 7>. tion on the ground that these American cases were '-ambe. cases of State legislation interfermg with instru- ments of the Federal government,'^ and that the banks they were concerned with could not be so considered, but they say that the principle which under the United States decisions limit the action of State legislatures at the point at which it comes into conflict with the power vested m Con- gress, is inapplicable to the Constitution of the ^ 12 App. Cas. at p. 579, 4 Cart, at p. 12. '■^18 Wall. 5. In this case the doctrine is laid down, as appears by American the headnote, ihat the exemption of agencies of the Federal Govern- case of ment from taxation by the States is dependent, not upon the nature of .^^p"^"^'^^^" the agents nor upon the mode of their constitution, nor upon the fact that they are agents, but upon the effect of the tax ; that is, upon the question whether the tax does in truth deprive them of power to serve the government as they were intended to serve it, or hinder the effic- ient exercise of their power ; that a tax upon their property merely, having no such necessary effect, and leaving them free to discharge the duties they have undertaken to perform, may be rightfully laid by the States ; but that a lax upon their operations being a direct obstruction to the exercise of Federal powers may not be. And this doctrine was there applied to the case of a tax by a State upon the real and personal properly, as distinguished from its franchises, of the Union Pacific railroad company, a corporation chartered by Congress for private gain, and all whose stock v/as owned by individuals, but which Con- gress assisted by donaiions and loans, and over which it reserved and exercised many special rights, and which amongst other things was bound at all times to transmit despatches and transport mails, troo|)s, munitions of war, etc., for the g(jvernment whenever so required. "See on this point Osborn 7-. The Bank of the United States, 9 Wheat, at pp. 859-868. 676 LiiGisLATivK Power in Canada. Prop. 61 Dominion. That principle is described in Dobbins V. Tile Commissioners of Erie county,^ quoted by Burton, J. A., in Leprohon i>. City of Ottawa,"^ as a necessarily implied restraint of the States in exer- cising their right of concurrent legislation with the United States,''' "when the exercise of the right by a State conflicts with the perfect execution of another sovereign power delegated to the United States"; and if this principle is inapplicable to the iheprinci- Coustitutiou of the Dominion, there appears no American othcr upoii which the decisiou in Leprohon v. City decisions not 1 • 1 n ^ applicable of Ottawa can be rested. In this latter case, rat- to the Dominion, tcrsou, J. A., refers to the fact that two of the learned judges, before whom the case had come in the Courts below, had held the Act in question ultra vires and two intra vires, and observes* : — " The difficulties indicated by this even balance of judicial opinion arise not so much from divergent views in the application of principles upon which all are agreed, as from the uncertainty as to the principles themselves upon which the solution should rest, and for this reason they can only be definitely removed by a Court of final resort." In Bank of Toronto v. Lambe the Court of final resort has determined the principle to be applied to such cases under the Dominion Constitution, and found it different to that applicable to similar cases in the United States." 5 I16 Peters 435, at p. 447. -22 O. A.R. al pp. 542-3, I Carl, at \->. 615. "See sttp) a p. 668, n. 6. ■■2 O.A. R. at p. 549, I Cart, at p. 623. ■'■'Ilowever, notwithstan. The City of Ottawa, that the local legislature had no power to tax the official income of a Dominion officer for provincial or municipal purposes, would compel us, in my opinion, to hold Provincial -/ • power over that the local governments alone must be the Indian title, judges of the extent to which lands belonging to them shall be set apart for the use or benefit of any tribe of Indians. If the Dominion government have the power, being in its nature unlimited, it might as was pointed out in that case, be so used as to defeat the provincial power and control over these lands altogether." To return to the leading Proposition under dis- Provincial cussion, in view of the Dominion power over theb^ew^rs 1 . ■ r J. 1 1 • • • 1 licensed by regulation ot trade and commerce, its prmciple may theDomin- be said to be illustrated by the recent decision of the'°"' Privy Council in The Brewers and Malster's Asso- ciation of Ontario z>. The Attorney-General of On- tario,- wherein they held, affirming the decision of the Ontario Court of Appeal, •' that an Ontario Act, R.S.O.jC. 194, s. 51, subs. 2, requiring every brewer, distiller, or other person, though duly licensed by the government of Canada for the manufacture and sale of fermented, spirituous and other liquors, to take out licenses to sell the liquors manufactured by them, and pay a license fee therefor, was ijitra vires. And the same may be said of the decision of the Supreme Court in Fortier v. Lambe,^ holding intra vires a Que- 'See supra p. 593, n. 2. ^[1897] A.C. 231. •''January 14th, 1S96, unreported. Their lordships followed their prior decision in Regina v. Halliday, 21 O.A.R. 42, (189;), utpra p. 361, n. 2. ■ ^ "25 S.C.R. 422, (1895). For the case below seeR.J.Q., 5 S.C. 47, 355. This case also decided, illustrating thereby the latter portion of 68o Legislative Power in Canada. taxation. Prop. 61 bee Act imposing a license fee on every trader doing business in Montreal by wholesale, or by wholesale and retail. In both cases the tax in question was held to be a direct tax, ^Bank of Toronto 7'. Lambe,^ being specially cited and relied upon. At p.43oofthe Provincial latter case, Taschereau, J., savs: — " Ifthis is a direct right of ■' J ■> . direct tax, cadit qucestio, this statute is intra vires ; the fact that it might involve in a certain degree a regulation of trade and commerce cannot deprive a provincial legislature of the right to raise a revenue by means of direct taxation, or impair such right in any way.^ And if the conclusions above arrived at are sound, it would seem incorrect to deny to the provincial legislatures jurisdiction to prohibit the manufacture of spirituous liquors in the province, or the importation of them into the province, merely for the reason that prohibition to that extent would affect the revenue of the Dominion derived from the the leading Proposition, that the want of uniformity or equality in the apportionment of the tax is not a ground for declaring it unconstitutional, ^As to what are direct taxes, see Proposition 66, and the notes thereto. -12 App. Cas. 575. 4 Cart. 7, (1887). •'But as to the meaning of ' regulation of trade and commerce,' in No. 2 of section 91, of the British North America Act, see supra p. 551, et seq. In Severn v. The Queen, 2 S.C.R. 70, i Cart. 414,(1878), all the Supreme Court judges had agreed that to impose a license fee on brewers for purposes of provincial revenue, was ultra vires of the province as falling within No. 2 of section 91.. In that case, too, (2 S.C.R. at pp. 1201. 126-7, I Cart, at pp. 464-6, 471-2), Fournier, J., regards as applicable to the Dominion the reasoning of Marshall, C. J., in Brown z'. State of Maryland, 12 Wheat. 419, where the latter held that a State law requiring importers of foreign merchandise, or such other persons as should sell by wholesale such merchandise, to take out licenses before selling the same, was void, because it came into conflict with the power of Congress to regulate exterior commerce. Cf. per Cray, J., in Tai Sing ?'. McGuire, i B.C. (Irving) at p. 106, (1882). Sed quiEre. If, as it would seem, such taxation would be direct taxa- tion, it appears clear on the Privy Council decision in Bank of Toronto V. Lambe, that it would be within the provincial power. And see5 zz/za p. 361, n. 2, and the notes to Proposition 66. Plenary Nature of Provincial Powers. 68i customs and excise duties. Yet this is the view Prop. 6i expressed by two of the judges of the Supreme Court in the recent Liquor Prohibition case.^ But on appeal to the Privy Council, their lordships expressed the opinion that provincial legislatures would have jurisdiction so to prohibit the manu- facture, "if it were shown that the manufacture was carried on under such circumstances and conditions as to make its prohibition a merely local matter in the province."*' And though, in answer to the question : — 'Has a provincial legislature jurisdiction Provincial ,.,.,. . ^ II. • powers of to prohibit the importation of such liquors into the prohibiting , , . sale and province, they replv that — "it appears to them manufacture , , ■' 1 1 ••11 °'^ intoxicat- that the exercise by the provincial legislature of such '"s Hquors. jurisdiction, in the wide and general terms in which it IS expressed, would probably trench upon the exclusive authority of the Dominion parliament,"'^ it seems clear enough from certain observations in the course of the argument already referred to in the notes to Proposition 59,+ that the view they took was that such legislation, because it interfered with Dominion revenue and excise, among other reasons, could not be said to relate to ' matters of a merely local or private nature in the province,' within the meaning of No. 16 of section 92 of the British North America Act, on which it was necessary to found the right so to legislate if such right existed. The inter- ference with Dominion revenue and excise was not in their lordships' view, it seems clear, a ground for denying the power to provincial legislatures if such 'Per Strong, CJ., in In re Prohibitory Lieiiior Laws, 24 S.C. R. at p. 204 ; per King, J., S.C. at p. 262, (1895). -[1896] A.C. at p. .571. ■^Ibid. *Supra pp. 656-7. 682 Legislative Power in Canada. Prop. 61 legislation had come within section 92, but it took the legislation out of the only class of section 92 which could possibly be relied on to support it. As to the last portion of the Proposition under discussion, which lays it down that the possibility of the unwise exercise ot legislative power in no way warrants a denial of its existence, Ramsay, J., Possible says in Re Cotte^: — "The Courts cannot enquire as tmwise exer- •' t "^'rmindfor ^^ ^^^ modc of cxercising a power, but only as to feg"isiatfve its existeucc." And in Municipality of Cleveland ?y. power. Municipality of Brompton- the same learned judge says : — " It is not the province of the Courts to guide the policy of the legislature. They may consider the reason of a law to interpret its doubtful pro- visions, or to give effect to the manifest intentions of the legislator, but they have no right to suspend the operation of an Act clearly expressed."'^ '19 L.C.J, at p. 216, 2 Cart, at p. 224, (1875). -4 L.N. at p. 279, 2 Cart, at p. 244, (1881). **And so per Draper, C.J., in A'e Goodhue, 19 Gr. at p. 383, i Carl., at pp. 567-8, (1872); per Ritchie, C.J., in City of Fredericton 7>. The Queen, 3 S.C. R. at p. 535, 2 Cart, at p. 34, (1880); per Osier, J. A., ia /« re Bell Telephone Co., 7 O.R. at p. 608, 4 Cart, at p. 622, (1884), a case also referred to supra p. 443 ; per Weatherbe, J., in City of Halifax v. Western Assurance Co., 6 R. & G. at p. 393, (1885); per Hegbie, C.J-, in Attorney-General of British Columbia v. City of Victoria, 2 B.C. (Hunter) at p. 5, (1890); per Begbie, C.}., in The (^ueen v. Howe, z'did. at p. 37, (1890). See, also, supra p. 663, n. 3. In Re Goodhue, 19 Gr. at p. 415, Spragge, C, says : — " It is hardly necessary to say that we are not entitled to attribute to the legislature mistake or ignorance in regard to anything that is done by it." See as this case, supra, p. 281. In his Law of the Constitution, (4th ed. at p. 60), Professor Dicey says : — " A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or liecouse it went beyond the limits of parliamentary authority." And as to any enquiry into the motives of the legislature in exercising its power, see Proposition 20 and the notes thereto. Dominion Over-lapping Powers. 683 PROPOSITION 62. 62. A Provincial Legislature is not incapacitated from enacting a law other- wise within its proper competency merely because the Dominion Parliament might under section 91 of the British North America Act, if it saw fit so to do, pass a general law which w^ould embrace within its scope the subject matter of the Pro- vincial Act. The above leading principle is affirmed and ^^°7or*^'^' illustrated by the Judicial Committee of the Privy ^*^'j,?^°''? Council in L'Union St. Jacques de Montreal ^- ^ifficuitL Belisle,^ where they held that a certain Act of the legislature of Quebec, passed for the relief of a benefit and benevolent Society in Montreal named L'Union St. Jacques de Montreal, was within the legislative capacity of that legislature. As the judg- ment points out,- the Act dealt solely with the affairs of that particular Society and in this man- ner : taking notice of a certain state of embar- rassment resulting from what is described in sub- stance as improvident regulations of the Society, it imposed a forced commutation of their existing rights upon two widows, who, at the time when ^L.R. 6 I'.C. 31, I Cart. 63, (1874). See this case further referred io supra pp. 280-1, 568-71. 2L.R. 6 P.C. at p. 35, 1 Gait, at p. 69. 684 Legislative Power in (Canada. Prop. 62 the Act was passed, were annuitants of the Society under its rules, reserving to them the rights so cut down in the future possible event of the improve- ment up to a certain point of the affairs of the Association. Their lordships held that clearly this matter was private and local, relating as it did to a benevolent or benefit Society incorporated in the City of Montreal within the province, which appeared to consist exclusively of members who would be subject prima facie to the control of the Provincial proviucial legislature.^ Thev, however, allude- to legislation , . " 1 ■« i- t-> ■ • not invalid the hypothesis stated m argument by Mr. Benjamm because possible of a law having been previoush' passed by the Dominion . . i <• ' 1 • legislation Dommion parliament to the effect that any Associ- might ... supercede it. at ion of that particular kind throughout the Dommion on certain specified conditions, assumed to be exactly those which appeared upon the face of the statute in question, should thereupon ipso facto fall under the legal administration in bank- ruptcy or insolvency ; and say that they are " by no means prepared to say that if any such law as that had been passed by the Dominion legislature it would have been wathin the competency of the provincial legislature afterwards to take a particular Association out of the scope of a general law of that kind, so competently passed by the authority which had power to deal with bankruptcy and insolvency. But," they add, " no such law ever has been passed : and to suggest the possi- bility of such a law as a reason why the power of the provincial legislature over this, a local and private Association, should be in abeyance or altogether taken away, is to make a suggestion, which, if followed up to its consequences, would ^See Proposition 68 and the notes thereto. -r..K 6 r.C. at pp. 36-7, I Cart, at pj). 701. Dominion Ovek-Lapping Powers. 685 go far to destroy that power in all cases." They Prop. 62 point out that upon the same principle, because under No. 7 of section gi of the British North Amer- ica Act, the Dominion parliament has the exclusive right of legislating as to all matters coming under the head of ' militia, military and naval service and defence,' and because any part of the land in the province of Quebec might be taken by the Dominion legislature for the purpose of military defence, and because that which had not been done as to some if Dominion 1 11 "li -111 1 1 forbears to particular land might possibly have been done, legislate, ii therefore, it not having been done, all power over provincial 1 11 - 11111-1 powers that land, and theretore over all the land in the unfettered. province of Quebec is taken away so far as it relates to legislation concerning matters of a purely local or private nature, which they say they think neither a necessary or reasonable, nor a just or proper construction. /\s Ramsay, J., says in Dobie v. The Temporalities Board, '^ referring to this decision of the Privy Council in L'Union St. Jacques de Montreal v. Belisle : — " When the question is be- tween the authority of Parliament and that of a local legislature the forbearing to legislate in a particular direction by Parliament may leave the field of local legislation more unlimited." Thus as Lord Watson observed in the course of the argument on the Liquor Prohibition Appeal, 1895, one of the oldest principles of the law governing the exercise of legislative power in Canada to be found is this, that " there are matters with which the province can deal, which are not excepted from their legislative jurisdiction until the Dominion government has proceeded to act upon the powers given to it by certain sub-sections of section gi."- 13 L.N. at p. 250, 1 Cart, at p. 382, (1880). '^ Printed report at p. 245. See p. ,598, n. i. See, also, supra pp. 686 Legislative Power in Canada. Prop. 62 And another example in point is suggested by the report of Sir John Thompson, as Minister of Justice, of Januar}' 28th, i88g, upon the Nova Scotia Acts of 1888, where he says in reference to an Act in relation to the public health, which autho- rized the Governor-in-Council to regulate ' so far as this legislature has jurisdiction in this behalf, with a view of preventing the spread of infectious disease, the entry or departure of boats or vessels at the dif- Pubiic ferent ports or places in Nova Scotia, etc' : — "The health and _ ' ' quarantine. British North America Act gives exclusive legislative power to the parliament of Canada in respect of quarantine, navigation, and shipping. It would clearly not be competent for a provincial legislature to make an enactment relating to the arrival of vessels, vehicles, passengers or cargoes from places outside the province, but it may be that provincial control may be exercised in relation to transport from one port of the province to another, subject, of course, to an)' regulation on the subject of quarantine by the Federal authority."^ 4H-2. In Citizens Insurance Co. i'. Parsons, 7 App. Cas. at p. 113, I Cart, at pp. 27S-9, (1881), the Privy Council said that it was unnecessary there " to consider the question how far the general power to make regulations of trade and commerce, when competently exercised by the Dominion parliament, might legally modify or affect property and civil rights in the provinces, or the legislative power of the provincial legislatures in relation to those subjects ; questions of this kind it may be observed arose and were treated of by this P)Oard in the cases of L'Union St. Jacques de Montreal v. Belisle, L. R. 6 P.C. 31, I Cart. 63, and Gushing v. Dupuy, 5 App. Cas. 409, i Cart. 252." See also their judgment in the Liquor Prohibition Appeal, 1S95, ['896] A. C. 348 at p. 363. As to Gushing v. Dupuy, see supra pp. 425-7. Criminal law MIodgins' Provincial Legislation, 2nd ed., p. 582. Cf. ibid, at pp. and penal 946-7. As to whether the fact of the Dominion parliament having ^* drawn an act into the domain of criminal law, interferes with the provincial legislature also niaKing similar acts penal, see supra pp. 412-14; and cf. per Dugas J., in Regina v. Harper, R.J.Q. i S.G. at pp. 333-5. And as to whether provincial powers can be restricted or placed in abeyance by the very (act that the Dominion parliament has not seen fit to act in the premises, or has enacted only subject to local Dominion Over-Lapping Powers. 687 We have already seen^ that where such a gen- Prop. 62 eral law as is referred to in the leading Proposition is passed, provincial legislation which directly conflicts with it is superceded and placed in abeyance by it. But the case of Ex parte Ellis, - seems to point a useful warning against too readily concluding that such a conflict exists. There it was contended that a provincial Act which enabled a judge to order the imprisonment of a person making default in the payment of a sum due on a judgment, if among other things, the liability was incurred by obtaining credit under false pretences imprison- or by means of anv other mode for which he might debtors and '' .... ... . , insolvency be proceeded agamst crmimally, conflicted with laws, section 127 of the Insolvent Act of 1875, 38 Vict., c. 16, D., by which a judge might discharge a debtor confined in goal or on the limits in any civil suit, who had bond fide made an assignment as provided for in the Act. But the judgment of the Supreme Court of New Brunswick, delivered by Allen, C. J., points out that, admitting that a debtor imprisoned under the New Brunswick Act might be entitled to be discharged under the Insolvent Act, his imprisonment might yet be perfectly legal up to the time that he proved him- self entitled to be discharged under the provisions of the Insolvent Act ; and that there might, also, be cases of imprisonment under the provincial Act of persons not subject to the provisions of the Insolvent Act, in which cases no question of con- option, which has not declared in favour of the operation of the Act, see supra pp. 534-7. 'See Proposition 46 and the notes thereto. See, also, Proposi- tion 44. -I P. & B. at pp. 598-9, 2 Cart, at pp. 534-5, (1878). Also refer- red to sup7-a p. 415. 688 Legislative Power in Canada. Prop. 62 flict could arise ; and therefore the two Acts were not necessarily inconsistent.' ^Cf. per Savary, Co. J., in In re Killani, 14 C.L.J.N.S. at pp. 242-3, (1878), quoted sup7-a p. 531 ; and see Gould v. Ryan, 26 N.S. 461, (1894), holding a provincial Act authorising a judge to order pay- ment of a debt by instalments intra vires. Provincial Powers of Delegation. 689 PROPOSITION 63. 63. Within the area and limits of sub- jects mentioned in section 92 of the British North America Act Provincial Legislatures are supreme, and have the same authority as the Imperial Parlia- ment or the Parliament of the Dominion would have, under like circumstances, to confide to a municipal institution or body of its own creation, authority to make by-laws or regulations as to sub- jects specified in the enactment and with the object of carrying the enactment into operation and effect. This Proposition rests upon the language and Hodge ?a decision of the Privy Council in Hodge v. The Queen. ^ It has been pointed out in connection with Proposition 17, the notes to which should be referred to here, that in this case their lordships say that the British North America Act conferred upon the provincial legislatures by section 92, " powers not in any sense to be exercised by dele- gates from or as agents of the Imperial parliament, but authority as plenary and as ample within the limits prescribed as the Imperial parliament in the plenitude of its power possessed and could bestow." They follow that passage with the words embodied igApp.^Cas. 117, 3 Cart. 144, (1S83). 6go Legislative Power in Canada. Prop. 63 in Proposition 63, and continue^:— " It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail.- The very full and very elaborate judgment of the Court of Appeal'^ contains abundance of precedents for this legislation, entrusting a limited discretionary author- ity to others, and has many illustrations of its necessity and convenience.^ It was argued at the bar that a legislature committing important regula- tions to agents or delegates effaces itself. That is Delegation not SO. It retains its powers intact, and can, is not self- . , . , effacement. whcncvcr it plcascs, destroy the agency it has created and set up another or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of law to decide. Their lord- ships do not think it necessary to pursue this subject further, save to add that, if by-laws or resolutions are warranted, power to enforce them seems necessary and equally lawful." And so they held that the Ontario legislature had power to entrust to a Board of commissioners authority to enact regulations, in the nature of by-laws and municipal regulations of a merely local character, for the good government of taverns ; and thereby to create '9 App. Cas. at p. 132, 3 Cart at pp. 162-3. '■'See this passage (|uoted sztpra at p. 129 ; and generally Proposition 8 and the notes thereto. "7 O.A.K. 246, 3 Cart. 166. ■'See, also, for examples of delegation of legislative power, an article in i8 C.L.J. 431. There is also an article on the delegation of legis- lative functions in 3 C. L.T. 279, written, however, before the above judgment of the Privy Council. Provincial Powers of Delegation. 6gi offences and annex penalties thereto, in the manner Prop. 63 purported to be done by the Liquor License Act, R.S.O. 1877, c. 181. As Cross, J., says in Molson z'. Lambe^: — " The Legislative 1 • IT • 1 1 • 1 1 11- powers object the IrnDerial legislature must have had m under • 1 1- •, • r • 1 • B.N.A. Act view was the distribution of powers, plenary in their are plenary; nature, between two bodies, who should each have full exercise of the authority to them respectively attributed. It was not the case of a supreme legis- lature giving limited authority to a subordinate administrative tribunal, supposed, therefore, to retain all the power not specifically or in exact terms conferred." Nor was it, it may be added, a case such as is found in the various States of the Union. There the people of the State, having all legislative power reserved to them, subject to the powers granted to Congress,- and subject to And not like \ r^ • • r 1 X ' • 1 those of certain restrictions in the Constitution of the united state • . . legislatures. States, themselves form a Constitution for their own State, and thereby delegate some only of their own powers of legislation to the State legislature ; and, as we have seen^ the State legislatures possess- ing only delegated powers, cannot delegate them to any other person or body. But even there, it is held, that the bestowal upon municipal corporations of such powers of making by-laws as are commonly bestowed upon them is not to be considered as trenchinguponthe maxim that legislative powermust 'M.L.R. 2 Q.B. at p. 393, 4 Cart, at p. 360, (1886). 2' The powers, not delegated to the United States by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people : ' Art. 10 of amendments to the Consti- iiition of tlie United States. See also Art. 9. •^ Supra p. 249. And so Cooley's Constitutional Limitations, 6th ed.„ p. 137 : Bryce American Commonwealth, (2 Vol. ed.). Vol. i, pp. 451-2. 692 Legislative Power in Canada. Prop. 63 not be delegated.^ " Municipal corporations," says Field, J., in Meriwether v. Garrett,- " are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text writers."-^ Legislature Qf course, as Duukin, J., observes in Cooey v. can only delegate The Municipality of the County of Brome,* " for a powers u _ * -^ -^ itself legislature of strictly limited jurisdiction, nothing is possesses. "^ ^ j ' <_> clearer than that it can delegate no powers beyond those it can directly exercise." And so in their recent judgment on the Liquor Prohibition Appeal, 1895, the Privy Council says^ : — " Until Confeder- ation the legislature of each province as then con- stituted could, if it chose, and did in some cases, entrust to a municipality the execution of powers which now belong exclusively to the parliament of Canada. Since its date, a provincial legislature cannot delegate any power which it does not posess ; and the extent and nature of the functions which it can commit to a municipal body of its own creation must depend upon the legislative authority which it derives from the provisions of section 92, ^Cooley's Constitutional Limitations, 6th ed., p. 13S. ■2 102 U.S. at p. S"- ^Cited by Ritchie, C.J., in Lynch 7j. Canada North-West Land Co., 19 S.C.R. at p. 209, (1891). + 21 L.C.J, at p. 186, 2 Cart, at p. 388, {1877). And see this case further noticed, sif/>ra pp. 521-2, where the subject of the power of the Dominion parliament to confer powers and impose duties on municipal corporations, a subject also suggested by some words in the leading Proposition, is somewhat discussed. ^[1896] A.C. at p. 364. Provincial Powers of Delegation. 693 other than No. 8."^ On the other hand the con- Prop. 63 stitutionahty of an Act cannot be affected by any ' by-law or regulation made under it, if there be nothing unconstitutional in the Act itself. - In accordance with the decision of the Privy Delegation Council in Hodge t'. The Queen, above referred to, Governor in in Attorney-General of British Columbia v. Milne,"'' the Health Act of British Columbia, (C.S.B.C. 1888, c. 55), having enacted that the Lieutenant-Governor in Council might make, repeal and vary such rules, regulations, and by-laws, as he might deem expedient as to the establishment, management and mainten- ance of local Boards of Health, their functions and powers, and that such regulations ' shall have the force of law and be so recognized in all Courts of the province,' the Divisional Court, (affirming Begbie, C. J.), held the Act intra vires, and that it meant that the regulations should have the force of statute law, and that such regulations, when passed, superseded all provincial and municipal enactments inconsistent with themselves.* ^As to their interpretation of No. 8 of section 92, see supra p. 398, n. I. ^And so per Ritchie, C.J., and Fisher, J., in Ex parte Renaud, I Pugs, at pp. 290, 299-300, 2 Cart, at pp. 470, 483-5. ^2 B.C. (Hunter) 196, (1892). *On the other hand it certainly seems at variance with Hodcje v. Delegation The Oueen, which, however, does not appear to have been cited, to of powers of hold as Wurtele, J., did in Tarte v. Beique, M.L.R., 6 S.C. at p. 296, P'"iisbment. (1890), that a piovincial legislature, notwithstanding No. 15 of section 92 of the British North America Act, has no authority to delegate power to fix the amount of the fine or penalty or the term of imprison- ment for a violation of its laws to commissioners conducting an enquiry into matters connected with the good government of the jirovince, although it may fix a maximum and minimum, leaving a discretion between them. " The legislature," he says, " has no power to decree that the punishment of an offender should be at the discretion and accord- ing to the will of the Court before which he migJit be tried." His decision, however, was reversed on appeal, sub noni. Turcotte v. Whalen, ALL. R., 7 QB. 263. See as to this case, also, supra p. 387. As to No. 15 see also Aubry v. Genest, R.J.Q. , 4 O.B. 523, (1895). 694 Legislative Power in Canada. Prop. 63 And although a distinction may be drawn between delegation of legislative power, and legislation by Legislation reference to the enactments of another legislative y re erence. i^^j^^ J thc dcclsion in Rcgina V. O'Rourke,- is also in entire accordance with the subsequent decision of the Privy Council in Hodge z'. The Queen,-" and with the leadmg Proposition. It was there decided that the Dominion enactment, 32-33 Vict., c. 29, s. 44, that 'every person qualified and summoned as a grand juror or as a petit juror in criminal cases, according to the laws which may be then in force in an}'- province of Canada, shall be, and shall be held to be, duly qualified to serve as such juror in that Dominion provincc, whethcF such were laws passed before or Act 3.S to jurors. be passed after the coming into force of the British North America Act, 1867, subject always to any provision in any Act of the parliament of Canada, and in so far as such laws are not inconsistent with any such Act,' was intra znres.* And the Court of Queen's Bench in Montreal held likewise in Regina V. Prevost.^' And in view of these authorities one ^Cameron, J., says in Regina v. O'Rourke, i O.R. at p. 481, 2 Cart, at p. 6^^, (1882), that the distinction is a fine one. Wilson, C.J., however, had drawn it in that case in the Court below, 32 C. P. at p. 402, 2 Cart, at p. 661 ; and see per Hagarty, C.J., S.C., i O.R. at p. 475. Mr. Todd also draws it, (Parliamentary (iovernment in the British Colonies, 2nd ed., p. 570), saying that it is not competent for the Dominion parliament " to delegate its functions to the local legis- lature, so as by an absolute grant of discretionary power to enable the local authority to deal with the matter itself. It is otherwise, however, if the Dominion parliament merely accepts and ratifies arrangements made or to be made in accordance with its own legislation on the sub- ject, etc." See infra pp. 697-700. •232 C.P. 388, I O.R. 464, 2 Cart. 644, (1S82). "9 App. Cas. 117, 3 Cart. 144, (1883). •s^ Wilson, C.J., refers to 35 Vict., c. 14, s. 2, D., which enacts that the voters' lists in Ontario for Dominion elections shall be the same as in elections for the Ontario legislature, as legislation of the same kind : S.C. 32 C.P. at p. 402, 2 Cart, at p. 660. ^M.L. R. I Q.B. 477, 29 L.C.J. 253, (1885). See, too, Sproule v. Reginam, 2 B.C. (Irving) 219. In his report of May loth, 1892, upon Provincial Powers of Delegation. 695 may even doubt the soundness of Proudfoot, J.'s Prop. 63 dictum in International Bridge Co. v. Canadian Southern R. W. Co./ that : — " Were the Canadian parHament to say that Canadian subjects and Canadian corporations were to be subject to legis- lation that might be passed by Congress, it would, Legislation T 111 • • 1 • 1 1 1 '^y reference 1 apprehend, be unconstitutional ; it would be to laws of Congress. authorizing a foreign power to legislate for its subjects ; an abdication of sovereignty inconsistent with its relation to the Empire of which it forms a part." As is pointed out in the passage above cited from Hodge z>. The Queen,- there is no abdication of sovereignty in legislating by delegation, nor is there in legislating by relation or reference. A curiously complicated example of the delegation Delegation r 1 • 1 • 1 -ri 1 • 1 r i • '■° Governor- 01 legislative power by Parliament mav be round in General of • • M " power to section 308 of the Dominion Railway Act of 1888, apply provincial ^i Vict., c. 20. Certain railways having been Acts to ^ ' y J & Dominion declared to be works for the general advantage of''='''«'=*ys. Canada by Parliament in 1883, and thereby brought under Dominion jurisdiction,'' it was enacted by the above section : — ' The Governor-General may at any time and from time to time, by proclamation or proclamations confirm any one or more of the Acts of the legislature of any province of Canada, passed before the passing of this Act, relating to any railway which, by an Act of the parliament of certain British Columbia Acts of 1891, Sir John Thompson, Minister of Justice, says of chapter 14, — an Act to further amend the Jurors Act : — "The sections of this Act 8 to 15 inclusive deal with the sub- ject of juries in connection with the trial of criminal cases. In the view of the undersigned those provisions have to do exclusively with proce- dure in criminal matters as distinp;uished from the constitution of Courts of criminal jurisdiction, and are therefore beyond the provincial jurisdiction": Hodgins' Provincial Legislation, 2nd ed , p. 1125. See also supra, p. 465, n. i. '28 Or. at p. 134, (1880). '^Siipra p. 690. See also infra pp. 697-700. •'As to such declarations, see supra p. 603, n. 2 ; also p. 596, n. i. 696 Legislative Power in Canada. Prop. 63 Canada has been declared to be a work for the gen- eral advantage of Canada, and from and after the date of such proclamation the Act or Acts thereby declared to be confirmed, shall be confirmed, rati- fied and made as valid and effectual as if the same had been duly enacted by the parliament of Canada.' An interesting point in connection with the subject of delegating legislative powers, and legis- lating by relation and reference, is raised by Sir Barnes Peacock, in the argument before the Privy Council in Hodge v. The Queen. There, as we have seen, the question was as to the power of the Ontario legislature to entrust to a Board of com- missioners authority to enact regulations for the good government of taverns, and at the place referred to,^ Sir Barnes Peacock observes: — "Another difficulty which occurstomymindisthis, that these resolutions or laws or whatever they may be called, would not Delegation rcouire the assent of the Lieutenant-Governor, of law- '■ making whcreas, if they were passed by the legislative power no > j r j c3 infringement assembly, they would require that assent." And on veto J ^ J T power of ]\jj- Horace Davev, as he then was, met this objec- Crown. ^ ' ' '^ tion as follows, to the complete satisfaction appar- ently of the Board : — "I answer that the Lieutenant- Governor, when he assented to the Act by which these commissioners were empowered to make rules and regulations, consented to the rules and regula- tions which they might make, and it is just the same as if the enactments were in this form, ' it shall be an offence against the law of the province to commit any infractions of the rules and regulations to be made by the commissioners,' The Lieutenant-Gov- ernor assented to that, and impliedly he assented to the infractions of these rules and regulations being iDom, Sess. Pap. 1884, Vol. 17, No. 30, at p. 113. Provincial Powers of Delegation. 697 treated as an offence against the law of the province, Prop. 63 in just the same way as when Her Majesty assented to the Act of Parhament by which the judges were empowered to frame rules of procedure, she assented to these rules of procedure, when framed by Her Majesty's judges, being part of the law of the land. You may say it is part of the Constitution of this country that every Act shall be assented to by Her Majesty, and no doubt it is ; and you may say that the rules and regulations made by the School crown-s 11 1 1 T 1 assent to Board or by other bodies under statutory powers, — delegating the by-laws or rules, or whatever they may be, made assent to under statutory powers — have not been assented to delegates ^nitiy do by the Queen, and therefore have not the force of under u. law according to the Constitution of the country. But the answer is that when Her Majesty assents to a law empowering a body to make rules and regulations for carrying general legislation into execution and detail, the Crown authorizes those, and gives its assent to legislation in this form, that these rules and regulations shall have the force of law, or that any infringement of the rules and regulations to be made by the body shall be an offence against the law and shall be punishable accordingly."^ A further question which suggests itself in con- nection with the present subject is whether the Dominion parliament or the provincial legislatures could create in Canada and arm with general legislative authority a new legislative power not created or authorized by the British North America ^It may be noted that under the Imperial Municipal Reform Act, 1835, 5-6 Will. IV., c. 76, s. 90, the Crown was invested with author- ity to disallow corporation by-laws : Todd's Parliamentary Govern- ment in the British Colonies, 2nd ed., at p. 428. And in connection with the above, reference may be made to some remarks in 3 C.L.T. at pp. 285-7, which it is submitted are sufficiently answered in the text. 698 Legislative Power in Canada. Prop. 63 Act. The judgment of the Privy Council in the Queen v. Burah/ points the other way.^ They were there deahng with the powers of the Governor- General of India in Council under the India Councils Act, 24-25 Vict., c. 67, whereby power Queen :■. was givcn to him to make laws and regulations for all places and for all persons and things whatever within the Indian territories under the dominion of Her Majesty, and they held that he had power to legislate conditionally.'' But they say in the passage above referred to : — " Their lordships agree that the Governor-General in Council could not, by any form of enactment, create in India, and arm with general legislative authority a new legislative power, not created or authorized by the Councils Act. Nothing of that kind has in their lordships opinion, been done or attempted in the present Creation of casc." And it mav be observed that while speaking new J^sjsiaiive thus, they also use language of the Indian legislature, ver}' similar to that above quoted from their judg- ment in Hodge v. The Queen,* and embodied in Proposition 17, in reference to the plenary powers of legislation possessed by Canadian legislatures. However, in his argument before the Board in Hodge V. The Queen,'' Mr. Horace Davey con- tended that under the British North America Act, the provincial legislatures are freed from the quali- fication suggested by the decision in Queen v. Burah, above referred to, because, he said, under I3 App. Cas. at p. 905, 3 Cart, at pp. 428-9, (1878). *And so per Begbie, C.J., in The Thrasher case, i B.C. (Irving) at p. 175, (1882). ' ^See supra p. 496. « ^Supra p. 689. ^Dorn. Sess. Pap. 1884, Vol. 17, No. 30, [). 10 . new le!»i; body. Provincial Powers op' Delegation. 699 No. I of section 92, they can amend the Constitution ppop. 63 of the province, except as regards the office of ~ Lieutenant-Governor, and so, " they could do what Lord Selborne, no doubt correctly, said in that case," (Queen v. Burah)," the Indian legislature could not do, abdicate their whole legislative functions in favour of another body, and, as a matter of fact, one of the provinces has abolished its House of Lords, Delegation has abolished its legislative council, and it has abdication I /-.I 1 -.IT-. 1-1 1- • 1 of functions. only one Chamber. ^ But a little earlier in the same argument- on the words above quoted from the Queen v. Burah being cited by Mr. Jeune, Sir A. Hobhouse had said : — " That must be what you are now speaking of as abdicat- ing their functions, which they cannot do. They remain invested with a responsibility. Everything is done by them and such officers as they create and give discretion to. There must be some power of conferring discretion." However as we have seen-^ they held that in the case before them ^As to No. I of section 92 of the British North America Act see No. i of supra p. 100. In the recent argument in Fielding v. Thomas, [1896] ^ect. 92, A.C. 600, before theTrivy Council, Lord Watson observed :— " I take P'-^-^- Act. it under the power given to the provincial legislature by the statute of 1867, the provincial legislature had the same power to alter and amend its Constitution by its own legislative Act as the Imperial parliament of Great Britain possessed at that date. It could give to itself any power which the parliament of Great Britain could constitutionally have given": Manuscript transcript from Cock and Right's notes, p. 23. And later on in the same argument, on counsel observing : — " The Canadian parliament has no power at all given to it to alter the Constitution of Canada," Lord Davey said : — "That is a big question that it would be unwise to express any opinion upon. There is ' peace, order and Provincial good government of Canada': " ibid. p. 47. Cf. the report of Sir J. pjwer to Macdonald, M.f., of July 14th, 1869: Ilodgins' Provincial Legisla- ';j;P^[jf^^°"- tion, 2nd ed., at p. 83. In the judgment in Fielding v. Thomas the "" ' " '^"' Board held that No. i of section 92 authorises provincial legislatures to pass Acts for defining their own powers and privileges : [1896] A.C. at p. 610. \x\ Ex parte Dansereau, 19 L.C.J, at pp. 224-5, 2 Cart, at p. 177, (1875), Ramsey, J., says that No. i of section 92 in its widest sense would amount to a power to upset the British North America Act. '^Dom. Sess. Pap. 1884, No 30, p. 70. ^ Supra pp. 689-91. 700 Legislative Power in Canada. ^''"P- ^ ^ of the delegation to a Board of commissioners of authority to enact regulations for the good govern- I ment of taverns, and impose penalties for their \ violation, there had been no such abdication of ; functions.^ ' ;| ^In his Essay on the Government of Dependencies, (ed. 1891, at pp. 88-9), Sir G. Cornewall Lewis discusses, in abstract fashion, whether there can be a dependency of a dependency, and whether a subordinate government can create a subordinate government, and arrives at the conclusion that " provided such a delegation be not prohibited by the laws of the supreme government, a subordinate government may make a general delegation of its powers with respect to a portion of the territory subject to it." Provincial Autonomy. 701 PROPOSITION 64. 64. The aim of the law-giver in divid- ing the legislative powers by sections 91 and 92 of the British North America Act between the Federal Government and the Provinces was, so far as compatible with the new order of things, to conserve to the latter their autonomy in so far as the civil rights peculiar to each of them were concerned. The words of this Proposition are taken from Provincial the judgment of Fournier, J., in the Citizens under ^ 1 TT 111 B N.A. Act. Insurance Co. z'. Parsons.^ He was there deal- ing with the contention that the Ontario Act to secure uniform conditions in pohcies of fire insur- ance was ultra vires on the ground that the power of legislating in reference to the subject matter of insurance belonged to the Federal parliament, as the necessary sequence of its exclusive power to regulate trade and commerce,- and said : " In order to determine the scope of the second para- graph of section 91, it should not be read alone, but on the contrary, it should be taken in connect- ion with the whole of the provisions of the Consti- I4 S.C.R. at p. 255, I Cart, at p. 302, (1880). The original French of the concluding words is :^" Leur autonomie sous le rapport des droits civil particuliers a chacune d'elles." "Under No. 2 of section 91 ; as to which see supra p. 551, et seq. And see Heneker ■ • rule. Benjamm expressed it on the argument before the Privy Council in Russell v. The Queen ^: — "What- ever was domestic, whatever was private, whatever was home rule was to be left with the provinces. Their domestic institutions, their home rule was not to be interfered with." Whether the recognition of this feature of the scheme of Confederation can be of much, or any, assistance in the construction of the words of the British North America Act, it is referred to in many cases. Thus in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Bruns- Theyare wlck,- the Privy Couucll Say I — " The object of the subordinated BHtish North America Act was neither to weld the to the . . ... ... Dominion, proviiices Hito ouc, nor to subordmate provmcial governments to a central authority, but to create a federal government in which they should all be represented entrusted with the exclusive admin- istration of affairs in which they had a common interest, each province retaining its independence and autonomy." And in Attorney-General of Ont- ario V. Mercer,'^ Ritchie, C. J., observes, "special pains appear to me to have been taken to preserve the autonomy of the provinces, so far as it could be consistently with a federal union." And in Hodge ^See supra p. 398, n. 1. ^[1892] A.C. at pp. 441-3. As to this case see supra pp. 93-5. •'5 S.C.R. at p. 637, 3 Cart at p. 28, (1883). Provincial Autonomy. 703 V. The Queen/ Spragge, C. J., says, "The pro- Prop. 64 vinces had possessed plenary powers upon subjects of a local and domestic nature before Confeder- ation ; and the general scheme of Confederation ap- pears to have been to leave to them the plenary control of these subjects. They were, under the Act, legislatures in regard to these subjects in the true and full sense of the term. This is the more apparent from the use of the words 'exclusive' and 'exclusively,' (and they are used repeatedly), in the Imperial Act."- In conclusion the following passage from the Mr. BiaUe argument of Mr. Edward Blake before the Privv general ■' scheme of Council in St. Catharines Milling and Lumber Co ihe h.n.a. . . . Act. V. The Queen, -^ may be quoted in this connection: — " What then was the general scheme of the Act ? First of all, as I have suggested, it was to create a federal, as distinguished from a legislative union ; but a union composed of several existing and con- tinued entities. It was not the intention of Parlia- ment to mutilate, confound and destroy the provinces mentioned in the preamble, and, having done so, from their mangled remains, stewed in some legislative caldron, to evoke by some legislative incantation absolutely new provinces into an absol- utely new existence. It was rather, I submit, the design and object of the Act, so far as was consist- 17 O.A.R. at p. 252, 3 Cart, at p. 167, (1882). -To the above may be added the words of Mathieu, J., in The Ex- port Lumber Co. v. Lambe, 13 R.L. at pp. 84-5 : — " Par cet Acte de 1867, qui a ete passe a leur demande el conformement a leur desir, elles n'ont pas renonce a leur autonomic, niais ont conserve, pour leur gouvernement interne, tous leur droits, pouvoirset prerogatives." Cf., also, per Strong, C.J., in Huson v. The Township of South Norwich, 24 S.C.R. at p. 150. ^Published at the press of the Budget, 64 Bay street, Toronto, 1888, sub noin. 'The Ontario Lands Case'; see at pp. 6-7. 704 Legislative Power in Canada. The old provinces not destroyed but continued. Prop, 64 ent with the re-division of the then province of united Canada into its old poHtical parts, Upper and Lower Canada, and with the federal union of the four entities, Nova Scotia, New Brunswick and the resettled parts of old Canada, Ontario and Quebec, — it was the design I say, so far as was consistent with these objects, by gentle and considerate treat- ment to preserve the vital breath and continue the political existence of the old provinces. However this may be, they were being made, as has been well said, not fractions of an unit, but units of a multiple. . . Thus I ask your lordships to say that the scheme was one for preserving and not for destroying the provinces, and for securing to them equal rights and similar conditions.^ And if so we must seek an interpretation preservative and not destructive, and a construction equalising and not discriminating."- As might be expected, however, their lordships in giving their judgment,^ avoided entering upon these general considerations, and confined themselves strictly to the interpretation of section 109 and the other sections of the British North America Act, immediately bearing upon the question before them. ^See Proposition 65 and the notes thereto. -And see supra p. 16 ; and the notes to Propositions i and i gener- ally. Reference may also be made to Fielding v. Thomas, [1896] A.C. at pp. 610-11, as to the continuance under section 88 of the British North America Act of the ante-Confederation Constitution of the legis- lature of the province of Nova Scotia. See also supra pp. 64-9. ■'14 App. Cas. 46, 4 Cart. 107, (1888). See supra pp. 591-2. Co-EguALiTY OF Provincial Powers. 705 PROPOSITION 65. 65. Co-equal and co-ordinate legisla- tive powers in every particular were con- ferred bv the British North America Act on the Provinces. The Act placed the Constitutions of the Provinces on the same level.' The words of the first clause of the above Pro- Provincial powers, position are taken from the judgment of Strong, T. co-ordinate ^ ^ . , and similar. in Severn v. The Queen," who referrmg to the judgment of Richards, C. J., in that case, and in Slavin v. The Village of OriHia-'^ says : — " I am unable to accede to the doctrine that we are to attribute to the words ' other Hcences,' " {sc. in No. 9 of section 92 of the British North America Act), "the same meaning as though the expression had been ' such other licenses as were formerly imposed in the province,' or equivalent words. The result of 1 " The plan of division of the governmental and legislative authority, under the written constitution of the United States, between the Federal and State governments, though it produces a certain uniform- ity by its limitations of Federal powers, and its prohiliitions upon Stat» powers, yet allows of the growth of diversity and dissimilarity in the State governments. The Iramers of the Canadian constitution hoped to produce a greater uniformity and simplicity by limiting the authority of the provincial legislatures, and vesting the residue in the Dominion parliament": Article by Mr. E. Meek on Federal Government and the Distribution of Powers in the Canadian Federal System, in The Ameri- can Law Review, Vol. 30, pp. 203-4. ■■^2 S.C.R. at p. 109, I Cart, at p. 453, (1S7S). * 36 U.C.R. 159, I Cart. 688, (1875). See supra pp. 46-7. And as to 'other licenses' in No. 9 ot section 92, see supra p. 27, n. i, and inf}-a pp. 725 6. 7o6 Legislative Power in Canada. pfop. 65 such a construction would be that the same words would have a different meaning in different pro- vinces, and that the several provincial legislatures would have different powers of taxation, though the power is included in the same grant. This, it appears to me, would be in direct contravention of the principle which forbids a different interpretation being given to a general law in different localities, how^ever much local law^s or usages may favour such Provincial divcrsc interpretations. However, apart from powers 1 • T 1 • 1 1 • 1 • • r co-ordinate authonty, 1 canuot thmk this was the intention ot and similar. . , , . t i ■ i i • ■ i • the Imperial pariiam.ent. 1 think everything indi- cates that co-equal and co-ordinate legislative powers in every particular were conferred by the Act on the provinces, and I know of no principle of in- terpretation which would authorise such a reading of the British North America Act as that proposed. Had such been the design of the framers of the Act, the meaning of which I can onl}' discover from the words in which it is expressed, we should have found the case provided for."^ And so Ritchie, J., ^ In the course of the argument in the matter of the Dominion License Acts, 1883-4, Strong, J., referred to and re-afiirmed these words of his: Dom. Sess. Pap. 1885, No. 85, at pp. 83, 177. But in the recent case of Huron v The Township of South Norwich, 24 S.C. R. at pp. 150-I, he withdraws from this position, saying : — " If the words ' muni- cipal institutions ' in sub-section 8 ", (of section 92 of the British North America Act), " are to have any meaning attributed to them, they must surely be taken as giving authority to repeal, re-enact, and re-modei the laws relating to all municipal legislation tlien in force. . . In Change of the case of Severn z'. The Queen, 2 SCR. 70, 1 expressed some doubt opinion by as to the decision in Slavin v. The Village of Oriliia, 36 U.C. R. 159, Strong, C. J. upon the ground that the effect of that case would be to make the law vary in the different provinces. These observations were not material to the judgment I then gave, which was founded entirely on the 9th sub-section of section 92, and I have now come to the conclusion that ihey were not well founded." But the weight of authority is altogether in favour of the leading Proposition. In the course of the argument in the recent Brewers and Maltsters Association case, [1S97] A. C. 231, supra p. 679, infra pp. 725-7, Lord Herschell observed : — ■ "There is very great difficulty in construing section 92, which applies to all the provinces, an-1 saying that the powers of the provincial legislature would differ according to what had been done by the prov. Co-Equality of Provincial Powers. 707 in the same case^ says : — " If the law at the time of Prop. 65 Confederation is to be looked at as affording a key to the construction of the statute, then the state of the law throughout the Dominion must, I think, be looked at, and not that of any individual province, as I think it clear that the statute was to have a uniform construction throughout the whole Do- minion, and the powers of all the local legislatures were to be alike." And so, also, per Taschereau, J., in Mercer v. The Attorney-General for Ontario^; and per Burton, 1. A., in Regina 7'. The St. Provincial ^ ' J ' o constitutions Catharines Milling and Lumber Co.-^ And in their feo"^^'"^ ^ level. recent decision in the The Liquidators of the Mari- time Bank of Canada v. The Receiver-General of New Brunswick,* the Privy Council have stated, in the words of the second clause of the leading Pro- position, that the British North America Act placed the constitutions of all provinces within the Do- minion on the same level ; and that what is true with respect to the legislature of Ontario is equally applicable to the legislature of New Brunswick. So, of the province of British Columbia, Begbie, C. J., says, in the Thrasher case^: — " It seems to be too clear for argument that whatever the nature or derivation of the local legislature previously and inces prior" to Confederation: Manuscript transcript from Marten Meredith and Henderson's shorthand notes, p. 80. And as to the meaning of ' municipal institutions in the province,' in No. 8 of section 92, see the judgment of the Privy Council on the Liquor Prohibition Appeal, 1895, [1896] A. C. at pp. 363-4; and supra p. 398, n. I. ^ 2 S.C.R. at p. 99, I Cart, at p. 442. And see, generally, supra pp. 41-71. 2 5 S.C R. at p. 669, 3 Cart, at p. 52, (1881). 3 13 O.A.R. at p. 164, 4 Cart, at p. 206, (1886). * [1892] A.C. at p. 442. * I B.C. (Irving) at p. 162, (1882). See, also, S.C. at pp. 156,212. 7o8 JLegislative Power in Canada. ^''QP- ^^ up to the 20th of Jul}-, 1871, everything became, as has been said, completely extinct on the admission British of British Columbia into the Dominion, and that all Columbia. the legislatures of the present statutory provinces have precisely the same authorit}' within their respective geographical limits, namely, that given to them by the British North America Act, and no other authority ; and that, not by transmission or inheritance, but solely and entirely by virtue of the Act." So, also, with regard to Manitoba, in the Manitoba. Manitoba School case, Strong, C. J., says^: — "It is not to be presumed that Manitoba was intended to be admitted to the Union upon any different terms from the other provinces, or with rights of any greater or lesser degree than the other provinces. Some differences may have been inevitable owing to the difference in the pre-existing conditions of the several provinces. It would be reasonable to Pre-existing attribute any difference in the terms of Union, and conditions . . mayocca- m the rights or the province to this, and as tar as sion some variations, possiblc by interpretation to confine any variation in legislative powers and other matters to such requirements as were rendered necessary b^^ the circumstances and condition of Manitoba at the time of the Union." But in their judgment on appeal, the Privy Council say-: — "Their lordships do not think that anything is to be gained by the inquiry how far the provisions of this section," (sc. section 22 of the Manitoba Act 1870, ^^ Vict. c. 3, D., whereby Manitoba was created a province of the ^ /« re Certain Statutes of the Province of Manitoba relating to Education, 22 S.C.R. at p. 657, (1S94). On the subject of reading the provi.sions of the British North America Act into .special statutes ad- mitting provinces into Confederation, see S.C. at pp. 635-8, 654, 674, 702, 712. - Brophy v. The Attorney-General of Manitoba, [1895] A.C. pp. 214-5- Co-EguALiTY OF Provincial Powers. 709 Dominion), "placed the province of Manitoba in a Prop. 65 different position from the other provinces, or whether it was one more or less advantageous. There can be no presumption as to the extent to which a variation was intended. This can only be determined by construing the words of the section according to their natural signification"^ Lastly it may be mentioned, in connection with Exercise of ■'._•' _ ' E-ederal the Proposition under consideration, that a principle ^'^'o- has been established with regard to the disallowance of Acts by the Governor-General, that where Acts of doubtful validity have been left to their operation in certain provinces, similar Acts passed in other provinces should not afterwards be disallowed. - 1 In his argument before the Board in this case, Mr. Edward Blake B. N. A. said : — " I submit that the general view of the original British North -'^'^t places America Act, and the general view of the Manitoba Act, was to put P''^^'"'^^*' 11,1 • " , , , . , . ', on same all the provinces as near as may be on the same footmg as to the rights footing. given by the Act. As I have said before I never have suggested any- thing so aljsurd as that it was intended by a stroke of the pen to alter the conditions which existed in different provinces on many local points. But when the British North America Act was providing for their in- clusion in the federation, the general intent of that Act, as indicated by its provisions, is to put the provinces as near as may be on the same footing with reference to their rights under the Act :" Printed report, at p. III. See p. 39S, n. i, supra. " See for example Hodgins' Provincial Legislation, 2nd ed., at pp. 244a-244b, 817. But for cases where, upon an Act deemed objection- able being passed by a provincial legislature, the attention of the Lieu- tenant-Governor has been called to the objection which existed to such enactments, and his advisers have been notified in due time to obtain a repe.il of the statute, though similar Acts liy other provinces have been allowed to go into operation, see Hodgins' ibid. Vol. 2, at pp. 31-2, 60-4, 314-5, 342. And as to the Federal veto power generally see Proposition 10 and the notes thereto. 710 Legislative Power in Canada. PROPOSITION 66. 66. The Provincial Legislatures have no powers excepting the enumerated powers which are given to them by the British North America Act. They cannot legislate beyond the prescribed subjects. Provincial powers of taxation specially discussed. Provinces That this Propositloii expresses the view of the theenumer- Pflvy Council vvc havc seen clearly stated in those ' passages from their judgments in Citizens' Insurance Co. V. Parsons,^ and Russell v. The Queen,- upon which Propositions 43 and 58 are based ; and in Bank of Toronto v. Lambe,"^ they state that they " adhere to the view which has always been taken by the Committee, that the Federation Act exhausts the whole range of legislative power, and that what- ever is not thereby given to the provincial legislatures rests with the Parliament."* V App. Gas. at p. 109, i Cart, at p. 273, (1881). -7 App. C.1S. at p. 836, 2 Cart, at p. 19, (1882). ''la App. Gas. at pp. 587-8, 4 Cart, at pp. 23-4, (1887). *In this passage, however, (see sitpra pp. 2-3), where they were immediately referring to powers of taxation, the Privy Council cer- tainly seem to speak as though they do not consider the matter so entirely concluded, as to debar counsel hereafter, should occasion arise, from arguing before them : — " that the provincial legislatures possess powers of legislation either inherent in them, or dating from a time anterior o the Federation Act, and not taken away by that Act." See supra pp. 63 69, 170, and infra p. 741 et seq.; also Propositions The Provincial Powers. 711 However, in the course of the argument before the Prop. 66 Supreme Court, in the matter of the Dominion Liquor License Acts, 1883-4, Strong, J., is reported as saying^ : — " It has been assumed that all that is not expressly given to the provinces is exclusively reserved to the Dominion. Now, there are no words The form 1 of sect. in the Act to that effect. The enumerated powers b.n.a. Act are exclusively given to the Dominion, but there is nothing to say that anything beyond the enumerated powers is exclusively given to the Dominion. It is out of the question to say that. The treaty rights of the province of Quebec would be utterly gone and annihilated if you said that the corporate powers I, 2, and 65, ahd the notes thereto. The following are references to dicta supporting the leading Prt)position : Regina v. Justices of Peace of King's County, 2 Pugs, at p. 541, 2 Cart, at p. 507, (1875) ; C(,tte's case, 19 L.C.J, at p. 215, 2 Cart, at pp. 223-4, {supra pp. 66-7) ; Severn v. The Queen, 2 S.C.R. at p. 128, i Cart, at p. 472, (1878) ; Lenoir v. Ritchie, 3 S.C.R. at pp. bio, 612, i Cart, at pp. 515-6, 518, (1879) ; S.C. 3 S.C.R. at p. 625, i Cart, at p. 531 ;City of Fredcricton V. The Queen, 3 S.C.R. at p. 557, 2 Cart, at p. 51, (1880) ; S.C. 3 S.C.R. at p. 536, 2 Cart, at p. 35 ; The Thrasher case, I B.C. (Irving) at pp. 1989, 205, (1882) ; Reed v. Mousseau, 8 S.C.R. at pp. 418-9, 3 Cart, at p. 199, (1883) ; Regina v. WingChong, 2 B.C. (Irving) at p. Dicta 156, (1885); Attorney -General of Canada v. Attorney-General of On- supporting tario, 23 S.C.R. at p. 475, ( I 894) ; /« r^ Prohibitory Liquor La w.=, 24 p^^'^'^^^'."? S.C.R. at p. 258, (1895), where Iving, J., says that if a power exists in the provinces, it must be found in the enumerations of section 92, " or in what is reasonably and practically necessary for the eflficient exercise of such enumerated powers, (subject to the provisions of section 91)," as to which see supra pp. 454-68. In Lord Monck's despatch to the Secretary of State of November 7th, 1864, transmit- ting the Quebec Resolutions, he says of the provincial legislatures : — "To these local bodies are to be entrusted the execution of certain specified duties of a local character, and they are to have no rights or authority beyond what is expressly delegated to them by the Act of Union:" Can. Sess. Pap., 1865, Vol. 3, No. 12. And in moving the second reading of the British North America Bill in the Mouse of Commons, on February 28th, 1867, Mr. Adderley, Under-Secretary of State for the Colonies, said : " The power of the provincial legisla- tures in reference to legislation will be confined to a certain number of specified subjects": Hans. 3rd Ser. Vol. 185, p. 1 167. For the opposing view, see supra pp. 10, n. i, 12-16. As to the use of the term 'legislature,' as distinguished from the term 'parliament,' reference may be made to Mr. Justice Loranger's letters upon the in- terpretation of the Federal Constitution, (tst letter), at p. 31 el seq. ^Dom. Sess. Pap. 1885, No. 85, at p. 185. And cf. per Mathieu, J., in The Export Lumber Co. v. Lambe, 13 R.L. at pp. 88-9, (1885). 7^2 Legislative Power in Canada. Prop. 66 of the provinces before Confederation were to be utterly wiped away by the British North America Act." But Mr. Bethune, who was of counsel, replied that as he understood them the decisions of the Privy Council seemed to point to that ; and in the notes to Proposition 26 the Privy Council decisions on the matter have been referred to. But it must Provincial uot be forgottcn that, as there pointed out,^ among power over , . . , local or the powers expressly given to the provmces is what private . matters may be termed a minor residuarv gift of power to generally. , , . , . ^ '^ ^ make laws in relation to ' generally all matters of a merely local or private nature in the province': and there would seem to be no doubt that in respect to any subject matter of legislation not within the enumerated classes of section gi, a provincial legis- lature can make laws in relation to it of a local or private nature in the province ; while if it is also not within any of the specified subjects in section 92, the Dominion parliament can legislate upon it for the peace, order, and good government of Canada generally.- The general subject of provincial powers of taxa- tion, hitherto undealt with in detail in this work, mav be appropriately discussed in connection with this Proposition."^ In this case, as generally, any powers they have must be looked for in section 92 of the British North America Act. It is true that in Bank of Toronto v. Lambe,* Baby, J., claims for the provincial legislature, as " one of its inherent ^ Set supra p. 343. And cf. per Ramsay, ]., in Bank of Toronto V. Lanibe, M.L.R. i Q.B. at p. 1S3, 4 Cart, at p. 75, (1885). -See supra pp. 360, n. i ; 399-401 : 437-S ; 655 et seq. 3As to provincial taxation generally in relation to Dominion powers and objects, see supra pp. 671-80. 4M.L.R. I Q.B. at p. 197, 4 Cart, at p. 88, (1885). Cf. per Mathieu, J , in E.xport Lumber Co. v. Lambe, 13 R.L. at p. 1 17, (1S85). The Provincial Powers. y^Z powers," the right to levy money by any mode or Prop. 66 • system of taxation within the province and for pro- vincial ends, saying : — " A people can undoubtedly tax itself through its legislators in parliament assembled. . . The general powers of taxation cannot be impliedly taken away from them. It requires an express and clear enactment of the law to deprive them of what is a primary right. There is nothing of the kind, however, in the (British North America) Act." But we have already seen how the Privy Council treated this claim of inherent powers, and that it is opposed to the authorities.^ Now as Gwynne, T., says in Reed v. Mousseau," Provincial J J ' - powers of the only subsections of section 92, which expressly '^^^"°n- authorise the raising by Act of the provincial legis- latures of any revenue whatever, by any system of taxation, are Nos. 2, g, and 15. The last, dealing with the imposition of punishment by fine, penalty, or imprisonment, we need not concern ourselves with here. No. 2, however, empowers the legisla- tures exclusively to make laws in relation to ' direct taxation within the province in order to the raising of a revenue for provincial purposes ;' and in con- nection with this several questions arise, and first as to what is ' direct taxation,' within the meaning of this clause. This question has been brought before the Privy Council in four cases. The first was Attorney- General for Quebec v. The Queen Insurance Co.,^ where however the Board did not find it necessary to ^ Supra pp. 2-3, 710. See, also, pet Strong, J., in Reed v. Mou.s- seau, 8 S.C.R. at pp. 418-9. 3 Cart, at p. 199, (1883). 2 8 S.C.R. at p. 431, 3 Cart, at p. 208. Cf. per Dorion, C.J., S.C. 3 Cart, at p. 213. The public property and assets transferred to each province constitute an additional source of revenue. ' 3 App. Cas. 1090, I Cart. 117, (1878). Supra p. 373. 714 Legislative Power in Canada. Direct taxation. Prop. 66 consider the scientific definition of direct or indirect taxation, because they found that whether as used by poHtical economists, or in jurisprudence in the Courts of law, or in the popular use, the term ' direct taxation ' was held not to apply to the tax they had to deal with, namely, a stamp imposed by statute on policies, renewals, and receipts, with provisions for avoiding the policy, renewal, or receipt, in a Court of law, if the stamp was not affixed.^ The next case m which the matter came before the Board, is Attorney-General of Quebec v. Reed,- where the tax in question was a stamp duty of ten cents imposed by a Quebec Act on every exhibit produced in Court in any action depending therein. Their lordships say that the view more favourable to the tax being a direct tax was that of Mill and those who agree with him, namely, that a direct tax is " one which is demanded from the very persons Taxation by law stamps. Stamp Acts. i In Attorney-General of Quebec i>. Reed, 3 Cart, at pp. 220-1, Ramsay, J., comments on the Privy Council judgment in this case, and denies that it " implies that a duty being subject to collection by means of a stamp, makes it necessarily indirect taxation." He says : " No one can seriously contend as an abstract question, I should think, that the form of collection, the evidence of payment, can de- termine as to the nature of the impost. If there was a poll-tax on each elector and the law said that each elector should take a receipt therefor on paper, bearing a penny stamp, it would hardly be said that the penny stamp was a different kind of taxation from the poll-tax." What he says the Privy Council decided was "only that the duty sought to be collected in that case, by a so called license, was in reality an ordinary Stamp Act, and indirect taxation." And in Choquette v. Lavergne, R.J.Q. 5 S.C. at pp. 122-3, (1893), Pelietier, J., speaks to the same effect and gives illustrations of his meaning : — "Que la taxe s'appelle timbre ou autrement, peu importe, car pour la qualifier, il faut examiner son incidence.'' So, also, per Lacoste, C.J., S.C. in App. R.J.Q. 3Q.R. at pp. 30S 9. See further as to this case, i>//Va p. 716. n. I. See, too, Todd's Pari. Ciov. in Brit. Col., 2nd ed, at p. 549. ■^ 10 App. Cas. 141, 3 Cart. 190, (1883), followed Plummer Wagon Co. V. Wilson, ^ M. R. 68; and see some remarks by " R " in 8 L. N. 58. The 9th Resolution at the Inter-provincial Conference at Que- bec in 1887, protested against the result of this decision, and declared in favour of the amendment of the British North America Aci so as to expressly give the provinces the right to legislate as to fees payable in legal proceedings in the provincial Courts, and apply the revenue thence derived to jirovincial purposes. See supra p. 196, n. 2. The Provincial Powers. 715 who it is intended or desired should pay it," while Prop. 66 indirect taxes are "those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of an- other ; " but that even on this view of the matter the Definition of r r 1 r 1 1 direct taxa- tax was not direct, tor from the very nature ot legal tion. proceedings, "until they terminate, as a rule and speaking generally, the ultimate incidence of such a payment cannot be ascertained. . . The legis- lature in imposing the tax, cannot have in contem- plation one way or the other, the ultimate determ- ination of the suit, or the final incidence of the burden, whether upon the person who had to pay it at the moment when it was exigible, or upon anyone else. ... In truth that is a matter of ab- solute indifference to the intention of the legislature. On the other hand, so far as relates to the know- Taxation by ledge which it is possible to have in a general way ^"'^^'"p*- of the position of things at such a moment of time, it may be assumed that the person who pays it is in the expectation and intention that he may be in- demnified, and the law which enacts it cannot assume that that expectation and intention may not be realized. As in all other cases of indirect taxation, in particular instances, by particular bar- gains and arrangements of individuals, that which is the generally presumed incidence may be altered.^ An importer may be himself a consumer. Where a stamp duty upon transactions of purchase and sale is payable, there may be special arrangements ^Cf. The Brewers and Maltsters Association of Ontario v. The At- torney-General for Ontario, [1897] A.C. at p. 237, v.here the Privy Council say : — " If the legislature were under the guise of direct taxa- tion, to seek to impose indirect taxation, nothing that their lordships have decided or said in the present case would fetter any tribunal that might have to deal with such a case if it should ever arise." See, also, Proposition 32 and the notes thereto, supra p.p 373-81. 7i6 Legislative Power in Canada. Prop. 66 between the parties determining who shall bear it.^ The question whether it is a direct or an indirect tax cannot depend upon those special events which may vary in particular cases ; but the best general rule is to look to the time of payment, and if at the time the ultimate incidence is uncertain, then, as it appears to their lordships, it cannot, in this view be called direct taxation within the meaning of the second section of the 92nd clause of the Act in ques- tion." The third case in which this matter came before the Board was Bank of Toronto v. Lambe,- and their lordships' judgment therein can be best refer- red to in their own words in the subsequent case of The Brewers and Maltsters Association of Ontario v. The Attorney-General for Ontario,'^ which is the last of the four cases alluded to. They there say: "The question what is 'direct taxation' within the meaning of sub-section 2 does not come now before this Board for consideration for the first time. In the case of the Bank of Toronto v. Bank of Toronto V, Lambe. on sale transaction iR might seem from the context, that the Privy Council here inti- mate the view that a stamp duty upon transactions of purchase and sale would be an indirect tax, by reason of the uncertainty of the ultimate incidence of it. But in Choquette v. Lavergne, R.J.Q. 5 S.C. io8, in App. sub nom. Lamonde v. Lavergne, R.J.Q- 3 Q-B. Stamp duty 303, (1893-4), a Quebec Act imposing a tax for provincial purposes on sales of immoveable property of i}4. cents on the dollar upon the ;ions. vai^g^ which tax was to be paid in stamps before the registration of the transfer in addition to payment either in money or stamps of the registrar's charges for recording the deed, was held a direct tax and i'nira v/'res. The judgment of the Privy Council in Attorney-General of Quebec v. Reed was referred to. Lacoste, C.J., says: "Dans I'espece, le droit de mutation est impose sur I'acheteur. C'est lui seul que le le^^islateur a en vue, c'est le plus interesse et bien souvent le seul interesse, comme dans le cas oil le vendeur recoit son prix au comptant. Lorsqu'il paie, il n'a pas I'espoir de se recuperer. Un im- meuDle n'est pis, de sa nature, un objet de commerce, que Ton achele pour revendre et I'acheteur ne peut en general compter sur une revente pourse refaire: " R.f.Q. 3 Q).B. at p. 30S. Cf. per Pelletier, J., S.C, R.J.Q. 5 S.C. at pp. 121-3. 2 12 App. Cas. 575, 4 Cart. 7, (1887). •'[1897] A.C. 231. The Provincial Powers. 717 Lambe, it was necessary to put a construction on prop. 66 those words. The legislature of Quebec had im- posed a tax on every bank carrying on business Taxation within the province. This tax was a sum varying" with the paid-up capital, with an additional sum for each office or place of business. The question at once arose, was this ' direct taxation ' ? . . . The legislation impeached was held valid on the ground that the tax imposed was direct taxation in the province within the meaning of sub-section 2. Their lordships pointed out that the question was not what was direct or indirect taxation according ' Direct . ,.„. I- . . . . -11 • taxation ' in to the classincation or political economists^ but in No. 2 of sect 02 what sense the words were employed by the legis- b.n'.a.' lature in the British North America Act. At the same time they took the definition of John Stuart Mill as seeming to them to embody with sufficient accuracy the common understanding of the most obvious indicia of direct and indirect taxation, which were likely to have been present to the minds of those who passed the Federation Act."- ^In the judgments in the Courts below in this case the views of economists are much considered and discussed. The judgments of Mathieu, and Rainville, J.J., not printed in Mr. Cartwright's collec- tion, will be found in 13 R.L. 68, 125. ^For Mill's definition referred to, see supra pp. 714-5. A writer in 22 L.J. Eng. at p. 398, (quoted 10 L.N. 257), seems somewhat hyper- critical in his remarks on this use of Mill's definition by the Privy Council. He says: "The citation of J. S. Mill for a definition of indirect taxation in an Act of parliament was not happy. For pur- poses of legislation and political economy Mill's distinction that indi- rect taxes are demanded from one person in the expectation and in- Mill's tention that he shall indemnify himself at the expense of another was definition sufficient. His point of view was that of the statesman ; but when °^ d'''.e<~' .1 r I • 1 i J -.. • 111 taxation, the powers of a legislature are concerned, it is necessary to look not at the intention of the legislature, but at the effect of the Act." In the first place, as shown in the text, the Board do not quote Mill's words as a binding legal definition ; and, in the second place, the words of Lacoste, J., in Lamonde v. Lavergne, R.J.Q. 3 Q.B. at p. 307, in reference to this use of Mill's definition, seem to afford a sufficient answer : " Ce desir, cette intention, cette expectative se presument et s'inferent non pas tant des tercnes du statut que de ce qui arrive dans le cours ordinaire et natural des choses. C'est a dire que le taxe est ' direct ' ou 'indirect' suivant queceluiqui la paie d'apresle cours ordin- aire des choses, se recupere ou ne se recupere pas." 7i8 Legislative Power in Canada. economists. Prop. 66 In the course of their judgment they point out that though it is quite proper, or rather, necessary, to have careful regard to the opinions of writers on political economy on the subject of what is 'direct ' The political and what is ' indirect ' taxation, yet " it must not be forgotten that the question is a legal one, namely, what the words mean as used in this statute, while the economists are always seeking to trace the effect of taxation throughout the community, and are apt to use the word ' direct ' and ' indirect ' accordmg as they find that the burden of a tax abides more or less with the person who first pays it," whereas, " the legislature cannot possibly have meant to give a power of taxation, valid or invalid according to its actual results in particular cases. It must have contemplated some tangible dividing line, referable to and ascertainable by the general tendencies of the tax, and the common understand- ing of men as to those tendencies.^ They reject as certainly incorrect "for legal purposes," the view attributed to Mill, that "to be strictly direct, a tax must be general," but they take his definition "as a fair basis for testing the character of the tax in question " ; not, however, " with the intention that it should be considered a binding legal definition, but because it seems to them, to embody with sufficient accuracy for this purpose an understand- ing of the most obvious indicia of direct and indirect taxation, which is a common understanding, and is likely to have been present to the minds of those who passed the Federation Act."" The last of the four cases in which the meaning of 'direct taxation' in No. 2 of section 92 of the British North America Act has come before the The statutory meaning of ' direct taxation.' ^ 12 App. Cas. at pp. 581-2, 4 Cart, at p. 15. ^12 App. Cas. at pp. 582-3, 4 Cart, at pp. 16-7. The Provincial Powers. 719 Privy Council is that of The Brewers and Maltsters Prop. 66 Association of Ontario v. The Attorney-General for ' Ontario,^, where they hold that the provincial legis- lature has power, in order to raise a revenue for provincial purposes, to impose a license fee on brewers, distillers, and other persons, though duly The Brewers, licensed by the government of Canada, for theftersca^se'. manufacture and sale of fermented, spirituous, or other liquors, for licenses to sell within the province the liquors manufactured by them, as had been done by R.S.O. c. 194, s. 51, which imposed a license fee of $100 upon every such brewer and distiller for license to sell wholesale within the province, and that this was direct taxation, within No. 2 of section 92.- After referring, as has been seen, to their prior decision of Bank of Toronto v. Lambe, and Mill's definition, their lordships say: — "In the License present case, as in Lambe's case, their lordships whoklaie think the tax is demanded from the very person whom the legislature intended or desired should pay it. They do not think there was either an expecta- tion or intention that he should indemnify himself at the expense of some other person. No such transfer of the burden would in ordinary course take place, or can have been contemplated as the natural result of the legislation in the case of a tax like the present one, a uniform fee, trifling in amount, im- posed alike upon all the brewers and distillers with- out any relation to the quantity of goods which they sell. It cannot have been intended by the imposi- '[1897] A. C. 231. ^For the previous authorities in favour of the view that such taxa- tion on trades ami businesses is direct and not indirect taxation, see su/>ra p. 361, n. 2 ; cf. Bank of Toronto v. Lambe, 13 App. Cas. at at p. 584, 4 Cart, at pp. 18 9, (1897 1 ; and Lambe v. Fortier, R.f.Q. 5 S.C. 47, 355, 25 S.C.R. 422, H894-S). 720 Legislative Power in Canada. Prop. 66 tion of such a burden to tax the customer or con- sumer. It is, of course, possible that in individual instances the person on whom the tax is imposed may be able to shift the burden to some other shoulders. But this may happen in the case of every direct tax."^ Provincial taxation need not bi^ equal and uniform Difference in this respect from the United States constitution. ^This case was a reference of certain questions by the Lieutenant-Governor in Council, and one of these questions was, whether, if the imposition of such license fee was intra vires, " must one and the same fee be exacted from all such brewers, distillers, and persons?" The Ontario Court of Appeal, by their judgment of January 14th, 1896, unreported, answered this ques- tion in the negative in accordance with the prior case of Fortier z/. Lambe, R.J.Q. 5 S.C. 47, 355, 25 S.C.R. 422, (1894-5). Cf., also, Dow v, Black, L.R. 6 P.C. at p. 282, i Cart, at p. 107, (1875), where the Privy Council decided that No. 2 of section 92 " must be taken to enable the provincial legislature, wherever it shall see fit, to impose direct taxation for a local purpose upon a particular locality within the province;" and see Proposition 17 and the notes thereto. In The Brewers and Maltsters Association case no appeal was taken to the Privy Council in regard to the answer to the above question. Plence in entire accordance with that omnipotence of Canadian legislatures within their respective spheres, which is one of the points in which, in the words of the preamble of the British North America Act, the Dominion has ' a constitution similar in principle to that of the United Kingdom,' there is no such necessity for uniformity and equal- ity of taxation with us as exists in the United States, where the con- stitution provides by Article i, section 3, that 'direct taxes shall be apportioned among the several States. . . . according to their respec- tive numbers, which shall be determined by adding to the whole num- ber of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other per- sons,' and by Article i, section 8, that 'all duties, imports, and excises, shall be uniform throughout the United States'; and that ' no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.' Hence it would seem that no tax can be a direct tax in the sense of the United States constitution, which is not capable of apportionment according to the rules thus laid down ; and it has been seriously doubted if, in the sense of that constitution, any taxes are direct taxes, except those on polls or on lands : -Story on the Constituion of the United States, 5th ed.. Vol. i, pp. 703-4. Hence the American decisions as to what are 'direct taxes' within the United States con- stitution are inapplicable to the constitution of the Dominion. See this point of distinction pointed out and commented on : per Dorion, C.J., in Bank of Toronto v. Lambe, M.L.R. I Q.B. at p. 125-6, '4 Cart, at p. 26 ; per Tessier, J., S.C, M.L.R. ijQ.B. at p. 163, 4 Cart, at p. 57 ; per Jette, J., S.C, M.L.R. i S.C. at p. 36, 4 Cart, at p. 93; per Pelletier, J., Choquette z'. Lavergne, R. I.Q. 5 S C. at p. 115. See, also, supra pp. 254-5. In Fortier v. Lambe, R.J.Q. 5 S.C. 47, however, Tait, J., quotes a very apposite passage trom Cooley on Taxation, that : " Taxes are said to be direct, under which designation would be included those which are assessed upon the property, person, The Provinxial Powers. 721 It remains, before passing on to the next point to Prop. 66 be considered, to notice the recent case of Re York- shire Guarantee and Securities Corporation, (Limit- ed),^ in which the Supreme Court of British Colum- bia held unanimously that a tax imposed by the pro- vincial Assessment Act, (C.S.B.C. 1888, c. in, s. 3), upon mortgages was a direct tax and intra vires, not- withstanding the evidence showed that the company required their mortgagors to recoup the amount. At p. 274, Drake, J., says: — "The intention of the Provincial legislature is that the owner of the personalty is to montages bear the tax; it is imposed on him, and he is the person intended to bear it. It is not imposed on him with a view that someone else (the mortgagor) shall bear it, or that it shall be distributed over a class of persons. The tax is not imposed on the dollars, but on the owners of the dollars. Customs duties are imposed on the goods, not on the owner of the goods. I cannot see how the appellants in this case can escape from the decision of Bank of Toronto v. Lambe.- This tax appears to me to fall within the indicia laid down by the Privy Council in that case for discriminating between a direct and indirect tax."^ business, income, etc., of those who are to pay them ; and indirect are those which are levied on commodities before they reach the con- sumer and are paid by those upon whom they ultimately fall, not as taxes, but as part of the market prices of the commodity." H B.C. 258, (1895). ^See supra pp. 716-8. ''In a report as Minister of Justice, of December 24th, 1894, Sir C. Taxes in H. Tupper says : " The cjuestion may arise whether taxation which respect renders both the owner, occupier, and tenant of land liable for a tax, o'^'^"''- the amount of which is arrived at having regard to the extent and value of the land so owned, occupied, or held under lease, is not indi- rect, and therefore ultra vires of a provincial legislature : Ilodgins' Provincial Legislation, 2nd ed., p. 1229. In Le College de Medecins V. Brigham, 16 R. L. 283, (1888), it was held that a provincial Act requiring all members of the College of Physicians and Surgeons of the province to pay two dollars for the use of the College was intra vires. 4'5 purposes. 722 Legislative Power in Canada. Prop. 66 A further question however arises with regard to No 2 of section 92 of the British North America Act besides that of the meaning of ' direct taxation,' namely whether the words * in order to the raising- No. 2 01 of a revenue for provincial purposes,' indicate that sect. 92 . , B.N.A. Act. direct taxation may not be resorted to by a provin- cial legislature in order to raise a revenue for local or municipal purposes, as distinguished from general provincial purposes. This has been supposed to be the intent of the clause by some judges,^ and colour is lent to such a view by the fact that No. 9 of section 92, expressly authorizes legislation in relation to the licenses there referred to ' in order to the raising of a revenue for provincial, local, or munici- ' Provincial pal purposcs.' Howevcr in Dow v. Black,- where the constitutionality of a provincial Act authorizing^ the inhabitants of a parish to raise by direct tax- ation, within the parish, a subsidy for a certain rail- way came into question, and it was contended that *See e._g: per Weatherby, J., in City of Halifax v. Western Assur- ance Co., lb N.S. at p. 392, (1S85) : per Betjbie, C.J., in Regina v, Mee Wah, 3 B.C. at pp. 404-5, (1886). As recently as on the argu- ment in The Brewers and Maltsters Association of Ontario z'. Attorney- General for Ontario, [ 1897] A. C. 231, {supra p. 679), Sir R. Couch, no- doubt forgetting for the moment the decisifjn in Dow v. Black referred to in the text, is reported as saying : " May it not mean this. By sub-section 2, there is a power of direct ta.xation for provincial purposes, then by sub-section 9 is not the power of direct taxation by licenses given, not only for provincial purposes, but for municipal purposes. That might reconcile the two : " Manuscript transcript from notes of Marten Meredith and Henderson, at p. 58. And see I'did. at pp. 52-3, where Lord Herschell said in reference to this point, addressing Mr. Edward Blake, who was arguing : " You would say that a local or municipal purpose is a provincial purpose."' To which Mr. Blake replied : " Yes, and I may say that the vast mass of the whole of the enormous municipal expenditure of the province of Ontario is borne by direct taxation imposed under the authority of the legislature by the municipalities for municipal purposes. We would go to pieces altogether if that were not so." And Lord Watson shortly afterwards said : " You construe it very reasonably as meaning revenue purposes, arising within the province somewhere " ; and >Ir. Blake replied : " Yes, I have no doubt about that, and I do not raise any point about it." 2L.R. 6 P.C. 272, I Cart. 95, (1875). The Provincial Powers. 723 No. 2 of section 92 of the British North America Prop. 66 Act only authorizes direct taxation incident on the whole province for the g^eneral purposes of the whole Tax to ^ . . subsidise province, the Privy Council say : ^ " Their lordships ^ railway see no ground for giving so limited a construction to this clause of the statute. They think it must be taken to enable the provincial legislature, whenever it shall see fit, to impose direct taxation for a local purpose upon a particular locality within the pro- vince."- In the recent Brewers and Maltsters Association case,^ above referred to, their lordships confined their judgment to the question of the val- idity of the specific enactment before them, under which the license fee imposed was expressed to be ' in order to raise a revenue for provincial purposes,' and held it valid as direct taxation under No, 2 of section 92 ; but did not answer the more academic question submitted to them as to whether the pro- The Brewers •11-1 1 • J ^"'^ Malt- vincial legislature coulu so tax not only in order tosterscase. raise a revenue for provincial purposes, but also " for any other object within provincial jurisdiction," further than to give utterance to a dictum in refer- ence to No. 9 of section 92, which will be referred to in connection with what has now to be said in respect to that clause. No. 9 of section 92, assigns to provincial legis- latures the exclusive power of making laws in relation to 'shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local, or municipal purposes,' and up to a recent date it has been very generally supposed that iL.R. 6 P.C. at p. 282, I Cart, at p. 107. - Mr. Clement observes, in his Law of the Canadian Constitution, at p. 425, that this decision "is sufficient warrant for the whole sys- tem of municipal taxation now operative throughout Canada." ^[1897] A.C. 231. See siip>-a p. 679. As to what is taxation ' within the province ' see the notes to Proposition 68. 724 Legislative Power in Canada. Prop. 66 such taxation by licenses was indirect taxation, and that the object of this clause was to allow provincial legislatures to tax indirectly in this way, though No. 9of otherwise confined to direct taxation.^ In more sect. 92 B.N. A. recent judgments, however, as has been already in- timated,- the view that such taxation was direct and not indirect found much support, and has now been established, as we have seen, by the Privy Council in the recent Brewers and Maltsters Association case,^ for although they did not find it necessary Relates to posltlvely to dccidc that the license fee imposed taxation, upou brcwcrs and distillers which they were dealing with came within No. g of section 92, they did decide that it was a direct tax, and this whether it came within that clause or not. So that the sug- gestion made in a previous part of this work* may be again repeated that the probable explanation of No. 9 is that it was inserted to secure this mode of Its probable ralsln^ revenue to the provinces, although some explanation. , doubt might exist as to the direct or indirect charac- ter of the taxation. And on the argument in the last mentioned case Lord Herschell is reported as saying : " They may have put in sub-section 9 in order to make certain that a particular kind of things would beyond all question be within taxation pow- ers." = ^ So, ^f^'-., per Wilson, J., in Regina v. Taylor, 36 U.C.R. at pp. 195, 201, (1875) ; per Taschereau, }., in Angers v. Queen Insurance Co., 16 C.L.J.N.S. at pp. 201, 205, I Cart, at pp. 141, 147 ; per Richards, C.J., in Severn v. The Queen, 2 S.C.R. at p. 88, I Cart, at pp. 431-2 ; per Ritchie, C.J., S.C, 2 S.C.R. at p. 98, i Cart, at pp. 441-2 ; per Strong, J., 2 S.C. R. at pp. 105, 108, i Cart, at pp. 448, 452; per Fournier, J^., 2 S.C.R. at pp. 123-4, i Cart, at pp. 467-8 ; per Tasch- ereau, J., S.C, 2 S.C.R. at pp. 1 13-4, I Cart, at p. 457. "Supra p. 361, n. 2. 3[i897] A.C. 231. ''Supra p. 377, n. 2. "Manuscript transcript of notes of Marten Meredith & Henderson, at p. 55. The Provincial Powers. 725 There is also another point which arises as to the Prop. 66 construction of No. 9 of section 92, and in respect to which it seems probable that the view long preva- lent will soon have to be finally abandoned. It con- cerns the import of the words ' and other licenses; ' 'Other licenses and in an early pae than the retail trade, per Richards, C. J., in Slavin v. The Village of Orillia, 36 UC.R. at p. 180, i Cart, at p. 707, (1875) ; per Wilson, J, in Regina v. Taylor, 36 U.CR. at pp. 195-8, (1875) ; per McDonald, C. J., in The Queen v. McDougall, 22 N.S. at pp. 471, 5, 6, (1889) ; per Ritchie, J-, S.C. at p. 488. And see per Eoyd, C., in Regina v. Halliday, 21 O.A.R. at pp. 44-5, (1893) ; per 728 Legislative Power in Canada. ^^°^- ^^ of the Dominion License Acts, 1883-4,^ wherein Townshend, J., says- that both sides conceded, and the Court concurred with them, that no distinction, in reality, exists between wholesale and retail licenses, and consequently in the power of regulating both by provincial legislatures. The Dominion License Acts there in question, as has been seen in an earlier part of this work,-^ were concerned rather wqth regulation of the liquor trade, than with rais- ing a revenue by taxation, though license fees were imposed; and whereas the Supreme Court had held Wholesale ■ their provisions intra vires as to wholesale and vessel and ' retail.' , . i -i ? • -i i • i licenses, while ultra vires as to retail licenses, the Privy Council held them ultra vires in respect to all the licensing provisions alike. And so Weatherbe, J., in The Queen v. McDougall,^ says of that case : "Though I have paid attention to all that has been said before the Supreme Court of Canada and the Privy Council, I am unable to see that the words 'wholesale and retail' are anything but mere arbi- tary terms adopted for convenience."^ Thus, as Osier, J. A., S.C. , ib/\L at pp. 47-8 ; per Ritchie, C.J., in Molson v. Lambe, 15 S.C.R. at p. 259, 4 Cart, at p. 339, (1888) ; per Fournier, J., S.C, 15 S.C.R. at p. 565, 4 Cart, at p. 343 ; per Dorion, C.J., S.C, M.L.R. 2 Q.B. at p. 403, 4 Carl, at pp. 367-S ; The Queen v. McDougall, 22 N.S. 462, (18S9); Lepine v. Laurent, 17 Q.I .R. at p. 236, (1891); Fortier v- Lambe, R.J.Q. 5 S.C. 47, 355, 25 S.C.R. 422, (1895). ^Cas, Dig. S.C. 509, 4 Cart. 342, n. 2. See sicpra pp. 289-90. -22 N.S. at p. 495. ^Su/ira pp. 403-6. *22 N.S. at p. 477. ^The Dominion License Act, 1883, 46 Vict. c. 30, s. 7, (d), defined wholesale as consisting in sales of over two gallons. In the argument before the Privy Council in this matter of the Dominion Liquor License Acts, Mr. Horace Davey, as he then was, is reported as saying : — " I agree that no logical distinction whatever can be drawn between wholesale and retail licenses, — that there is no logical distinc- tion between regulating the power of a shop-keeper to sell a dozen bottles at a time, and regulating the power of a tavern-keeper to sell Provincial Powers. 729 in the Brewers and Maltsters Association case where Prop. 66 the main object of the Act before them was to raise ^ a revenue for provincial purposes/ so in the matter of the Dominion Liquor License Acts 1883-4, where the object of the legislation was rather regulation of the liquor traffic, the Privy Council finds nothing turns, so far as legislative power is concerned, upon the fact that those affected by the statutory provis- ions dealt in wholesale quantities, and not in retail ' wholesale ,•• «!• I T- -r-.i-i- ^"'^ 'retail. quantities. And in the recent Liquor Prohibition Appeal, 1895,- they, in like manner, draw no dis- tinction whatever between the sellers of liquors in wholesale quantities, and other sellers, and say of the Canada Temperance Act, 18S6 : — " They draw an arbitrary line at eight gallons in the case of beer, and at ten gallons in the case of other intoxicating one bottle at a time, or half a bottle, or a pint. ' Wholesale licenses' may be a convenient expression in the Act, but it is really retail trade." Whereupon the following took place : Sir Montague Smith : " Whether he sells one bottle or twelve he is selling by retail." Mr. Davey : " Ves, and there is no logical distinction between the two. It is a different kind of retail trade." Sir Montague Smith: "It is a convenient phrase to express the ' Wholesale meaning instead of repeating every time the number of bottles:" ^"^ 'retail.' Printed transcript from Marten & Meredith's shorthand notes at p. 137. A little later on Mr, Davey says : " I entirely accept and agree with what was so forcibly put by my fiiend, Sir Farrer Merschell, that the Dominion parliament cannot arrogate to itself the power and give itself jurisdiction by giving its own definition to ' wholesale,' and that you must look really to the substance of the matter:" ibid, at p. 138. See, also, ibid, at pp. 90-1 ; and see pei Townshend, J., in the Queen V. McDougall, 22 N.S. at p. 496. In In re Prohibitory Liquor Laws, 24 S.C. R. at p. 204, (1S95), Strong, J., says: "I do not think any statutory definition of the terms ' wholesale ' and • retail ' is requisite, but if legislation is required for such purpose, it is vested in the Do- minion as appertaining to the regulation of trade and commerce." In Regina v. Ilalliday, 21 O.A.R. at p. 44, (1893), Boyd, C, says that the regulation of the liquor traffic, both wholesale and retail, must now be considered to be a matter of provincial competence. See an article on Legislation and Liquor Dealers, 32 C.L.J, at pp. 43942 ; also, some remarks in 5 C.L.I', at pp. 161-3. i[i897] A.C. 231. -[1896] A.C. 348, at pp. 367-8. 730 Legislative Power in Canada. Prop. 66 liquors, with the view of discriminating between wholesale and retail transactions."^ Returning to the general subject under discussion of provincial powers of taxation, No. 2 and No. g of section 92 of the British North America Act, are, as has been already stated, the only clauses in the Act, excepting section 124 concerning New Bruns- Powersof wick lumber dues," which give express powers of taxation. . ..,,., taxation to provmcial legislatures, and both of them relate to direct taxation. If then the provinces have any powers at all of indirect taxation, a question which it is proposed presently to consider, it can only be such indirect taxation as is of ' a merely local Wholesale licenses. ^There is nothing in this at variance with the previous decision of the Ontario Court of Appeal in Re Local Option Act, 18 O.A.R. 572, (1891). All that was there decided was that on the proper construction of the Ontario enactment in question, the prohibition contemplated was one of sale by retail only, and that this was intra vb-es. The Court, how- ever, rested this on No. 8 of section 92, as to which see supra p. 398, n. 2. Since the Privy Council decision in the matter of the Dominion Liquor License Acts, it has been unanimously held by the Supreme Court in O'Danaher v. Peters and 0"Regan v. Peters, 17 S.C.R. 44, 4 Cart. 425, (1SS9), that the New Brunswick Liquor License Act, 1887, was iiiti-a vires in imposing the necessity of taking out a license on wholesale sellers of liquor. No mention is made of No. 9 of section 92 of the British North America Act, and it would seem that the Act was viewed in the light rather of police regulation. Taschereau, J. there remarks : " Whether he sold wholesale or retail is immaterial, it is not because he sold a large quantity that he can claim to have the action against him dismissed." And Patterson, J., says : " The power of the local legislatures to provide for the issuing of licenses for the sale of spirituous liquors, either in large or small quantities, to limit the number of licenses, and to prohibit, under penal- ties, the sale of sucii liquors without a license, cannot now be treated as an open question." It would seem, therefore, that as under the Ameri- can decisions cited by Ritchie, E.J., in Keefe v. McLennan, 2 I\. & C. at p. 12, 2 Cart, at p. 410, so in Canada, the power of police regula- tion e.xtends to wholesale trade, though in Severn v. The Queen, 2 S.C.R. at pp. 105-6, I Cart, at p. 449, Strong, J., had expressed an opinion the other way. And see the citations supra p. 427, n. 3. Sect. 124, B.N. A. Act -In Attorney-General of Quebec v. Reed, 26 L.C.J, at p. 355, 3 Cart, at p. 216, (1882), Dorion, C.J., points out that the right thus re- served to New Brunswick by section 124 to collect existing lumber dues, coupled, however, with the condition that they should not be in- creased, is an e.xception to the general rule that provincial legislatures have no power of mdirect taxation. See as to it, further. Debates on Confederation, at p. 377. Provincial Powers. 731 or private nature in the province,' within the mean- ^^°^' ^^ ing of No. 16, or such indirect taxation as is inci- dental to the exercise of the other express powers conferred by section 92. And moreover, any such provincial power of indirect taxation is obviously immensely restricted by section 121, which provides that 'all articles of the growth, produce or manufac- ture of any one of the provinces shall, from and after the Union, be admitted free into each of the other provinces', and by section 122 which places customs and excise laws under the Dominion jurisdiction. Thus these two sections place beyond provincial Powers of 11 ■ r 1 1 r • 1 • • -I taxation. control the mam field of mdirect taxation, and speaking generally it may therefore be, without doubt, correctly said that the provinces are confined to direct taxation. And it would seem in this general sense that the Privy Council were speaking when they said in Bank of Toronto v. Lambe,^ refer- ring to the provinces : " There are obvious reasons for confining their power to direct taxes and licenses, because the power of indirect taxation would be felt all over the Dominion." And so also in St. Cathar- ines Milling and Lumber Co. z'. The Oueen,'- where ^12 App. Cas. at p. 5S6, 4 Cart, at p. 22 (1887). Cf. per Wurtele, J., in Lamonde v. Lavergne, R.J.Q., 3 Q.B. at p. 314,(1894): — " The Confederation Act, by the second paragraph of section 91, places the regulation of trade and commerce under the e.xclusive con- trol of the parliament of the Dominion, and when we remember that the bulk of indirect taxes consists in customs and excise duties, the reason for the provision which restricts the taxing powers of the provincial legislatures to direct taxation, becomes apparent. The imposition of taxes by the provincial legislatures on commodities might interfere with the movement of trade between the various provinces of the Dominion and seriously ol)Struct commercial transac- tions, and might affect indirectly the provisions made by the Parlia- ment for the regulation of trade and commeice. It would seem therefore that the purpose of the restriction is ti> prevent the occur- rence of such a state of things." = i4App. Cas. at p. 57,4 Cart, at p.i2i,(iS8S). Cf. also Dow f. Black, L.R. 6 P.C. at p. 282, I Cart, at p. 108, (1875), as to which see i/i//a pp. 739-40. So likewise in Severn -'. The Queen, 2 S.C.R. 70, i Cart. 414, (1878), some of the Supreme Court judges speak as though provincial 732 Legislative Power in Canada. Provincial indirect taxation. ^''°P' ^^ they speak as though the provincial legislatures could raise a revenue only by direct taxation. But it does not seem to follow that the provincial legislatures may not have a limited power to inpose indirect taxation, either under No. i6 of section 92, in which case it would have to be imposed under such circumstances and conditions as to make its imposition a merely local matter in the province;^ or as incidental to one of their other express powers. Some of these seem to forcibly suggest taxation, as No. 4, ' the payment of provincial officers,' — No. 6, ' the maintenance ' of public and reformatory prisons in and for the province,' — No. 7, ' the main- tenance ' of hospitals, etc., — No. 14, 'the mainten- ance ' of provincial courts ; and there is not a word in them to limit such taxation to direct taxation. The only decision on the point would seem to be that of the Quebec Court of Queen's Bench in Bank of legislatures are confined to direct taxation : 2 S.C. R. at pp. io8, 123, 138, I Cart. 452, 467, 483 ; and so, per Wurtele, J., in Lamonde t. Lavergne, R.J.Q. 3 Q.B. 303, (1894), at p. 31 1 ; per Lacoste, C.J., S.C. at p. 304 ; and the report of Sir John Thompson, as Minister of Justice, of January aSth, 1889: liodgins' Provincial Legislation, 2nded., at p. 581. It would certainly seem as though the founders of Confed- eration supposed that the provincial legislatures would, in the matter of taxation, be confined to direct taxation and the licenses under No. 9 of section 92, which, as has been seen, {supra pp. 723-4), themselves constitute direct taxation. Cf. the speech of the Hon. A. T. Gait in the Debates on Confederation, p. 68. And cf. per Taschereau, J., in Angers V, The Queen Insurance Co., 16 C.L.J.N.S. at pp. 201-3, i Cart, at pp. 145-7, (1877) ; per Dorion, C.J., Bank of Toronto v. Lambe, M.L. R. I Q.B. at pp. 136-8, 4 Cart, at pp. 35-6. So also when the British North America Bill was Ijefore the British Parliament, Lord Car- narvon in the House of Lords and Mr. Card well in the House of Commons both spoke as though the only provincial power of taxation was to be that of direct taxation : Hans. 3rd ser., Vol. 185, at pp. 564, 1 179. But as to these debates being no authority on the inter- pretation of the Act, see per Ramsay, J., in Bank of Toronto v. Lambe, M.L.R. i Q.B. at p. 186, 4 Cart, at p. 77 ; per Moss, J. A... in Smiles v. Belford, i O.A.R. at p. 450 ; per Burton. J. A., S.C. at p. 445, who, however, merely says that " at any rate little or no weight can be attached to them." *See the words of the Privy Council in the Liquor Prohibitioa Appeal, 1895, [1896] A.C. at p. 371, quoted supra p. 657. Debates before Confedera- tion. Provincial Powers. 733 Toronto z^ Lambe,^ where after deciding that the Prop. 66 taxes there in question were direct taxes, the Court, as would appear from the report, went beyond what was necessary to add a clause in the formal judg- ment that, even assuming they were not direct taxes, the legislature had power to impose the same, inas- much as the said taxes were ' matters of a merely local or private nature in the province.' And as will Provincial presently be seen there are more judicial dicta in taxation, favour of the provinces having this limited power of indirect taxation than against it ; and the Privy Council certainly seem to countenance the claim, at all events under No. 14 of section 92, in Attorney- General of Quebec v. Reed,- where after deciding that a Quebec Act imposing a stamp duty of ten cents upon every exhibit filed in Court, the fund so created to be applied as part of the general revenue of the province, was ultra vires as indirect taxation, they add^: — " One of the things which are to be within the powers of the provincial legislatures — No. 14 of • i-,i. ,. ., ,.. . sect. 02, withm their exclusive powers — is the administration b.n.a. Act. of justice in the province, including the constitution, maintenance, and organization of provincial Courts, and including the procedure in civil matters in the Courts. Now it is not necessary for their lordships to determine whether, if a special fund had been created by a provincial Act for the maintenance of the administration of justice in the provincial Courts, raised for that purpose, appropriated to that purpose, and not available as general revenue for general provincial purposes, in that case the limit- ation to direct taxation would still have been appli- iM.L.R. I Q.B. 122, 199, 4 Cart. 24, 90, (1885). 2io App. Cas. 141, 3 Cart. 190, (1884). *lo App. Cas. at pp. 144-5, 3 Cart, at pp. 194-5. 734 Legislative Power in Canada. Attorney- General of Quebec v. Reed. Prop. 66 cable. That may be an important question which will be considered in any case in which it may arise ; but it does not arise in this case. This Act does not relate to the administration of justice in the province ; it does not provide in any way, directly or indirectly, for the maintenance of the provincial Courts ; it does not purport to be made under that power, or for the performance of that duty. The subject of taxation, indeed, is a matter of procedure in the provincial Courts, but that is all. The fund to be raised by that taxation is carried to the pur- poses mentioned in the second sub-section," (sc. of section 92, of the British North America Act); "it is made part of the general consolidated revenue of the province. It, therefore, is precisely within the words ' taxation in order to the raising of a revenue for provincial purposes.' If it should greatly exceed the cost of the administration of justice, still it is to be raised and applied to general provincial purposes,^ and it is not more specially applicable for the admm- istration of justice than any other part of the general provincial revenue. Their lordships, therefore, think that it cannot be justified under the 14th sub- section, "^ Indirect ^It is clear from this passage that Gwynne, J., is mistaken when taxation by he says, (S.C, 8 S.C.R. at p. 433, 3 Cart, at p. 210) : — " The judg- law stamps, u^gnt of the Privy Council in The Attorney-General of Quebec v. The Queen Insurance Co., 3 App. Cas. 1090, i Cart. 117, in effect decides that the provincial legislatures cannot by any Act of theirs, authorise the raising a revenue by any mode of taxation other than direct." See supra pp. 713-4, and infra p. 736. But notwithstanding these words of the Privy Council, the Manitoba Court of (^)ueen's Bench decided in Dulmage v. Douglas, 4 M.R. 495, (1SS7), overruling the decision of Dubuc, J., 3 M.R. 562, that a provincial Act, 49 Vict., c. 50, imposing taxation by law stamps in order to provide for the maintenance of the administration of justice in theiCour>s, and of the Court houses and goals in Manitoba, and providing that the proceeds of the sale of the law stamps by the provincial treasurer, should pass, not into the general revenue of the province, but should form a special fund, to be respect- ively called " The Administration of Justice P'und," and " The Build- ing Fund," was nevertheless ultra vires. The Court held that ' main- tenance ' in No. 14 of section 92 does not warrant such indirect taxa- Provincial Powers. 755 Now it will be seen that the Privy Council in this P''°p- ^^ case make no mention of No. 16 of section 92, as possibly authorizing indirect taxation in certain cases. And yet, as has been seen in a former part of this work/ a subject matter of legislation may be of a ' merely local or private nature in the province,' Provincial within the meaning of that clause, and yet may ex- taxation, tend m its operation over the whole province. There- fore if in any case indirect taxation were justifiable under this clause it would, it is submitted, be no ob- jection to it that the proceeds of such taxation were to be applied as part of the general revenue of the province. But on the other hand to come within No. 16, the taxation would have to be of such a character as to be a matter of merely local or private nature, in which the people of the province alone have an interest-; and it might well be argued that a tax upon legal proceedings in a province was a matter in which the whole Dominion was interested, No. 16 of 1 • 1 rill I • • 1 sect. 92, as the residents or all the other provinces might b.n.a. Act. have at times to resort to the Courts of the province imposing the taxation. However it does not appear from the abbreviated argument as reported in Vol. 10 of Appeal Cases, ^ that the question of whether the taxation in question was supportable under No- 16 was at all raised before their lordships. For these reasons it would not seem that the judgment in Attorney-General of Quebec v. Reed can be properly tion, but means " maintenance in such manner and by the exercise of such powers as are within the scope of the authority of the legislature," and so must be by direct taxes or licenses, which it regarded as an ex- ceptional form of indirect taxation allowed to the province. But see supra pp. 723-4. See also, supra pp. 417, n. 2, 482, and the report of the Minister of Justice of November 2nd, 1895: Hodgins' Provincial Legislation, 2nd ed., pp. 244a, 244b. '^ Supra pp. 651-5. "^Supra pp. 655-61. ^There does not appear to be a verbatim report of this argument. 736 Legislative Power in Canada. Prop. 66 considered as deciding anything for or against the right of the provinces to impose indirect taxation in certain cases under No. 16 of section 92^; nor can the previous judgment in Attorney-General of Quebec v. Queen Insurance Co.,- where in like manner no attempt appears to have been made to support the tax under any other clauses of section 92 than Nos. 2 and 9. Provincial Howcvcr in Attorney- General of Quebec v. Queen taxation. Insurance Co., in the Supreme Court of Canada,^ Gwynne, J., holds against any right whatever of indirect taxation being possessed by the pro- vinces, firstly, on the ground that No. 2 of sec- tion 92, while it authorizes the provincial legisla- tures to make laws in order to the raising of a revenue for provincial purposes by taxation, limits the exercise of the authority thus con- ferred to direct taxation, and thus, in his judg- ment, " very clearly excludes the power of raising a revenue by any species of taxation other than direct ; "* and, secondly, because, " this implied power of raising revenue by indirect taxation, which it is contended the legislatures have, being exercised, as it might be if they have the power, to raise sufficient revenue to defray all the expenses of the government and legislatures in respect of all the several matters under their control and jurisdiction, ^Nor do the words of the Privy Council in reference to this clause, quoted supra p. 652, from their recent judgment on the Liquor Prohi- bition Appeal, 1S95, [1896] A.C. at p. 365, appear to affect this ques- tion. And see Dow v. Black, L.R. 6 P.C. 272, i Cart. 95, (1875), ^s referred to infra pp. 739-40. 23 App. Cas. 1090, I Cart. 117, (1878). 38 S.C.R. at pp. 431-3, 3 Cart, at pp. 208-10, (1883), sub nom. Reed v Mousseau. *And so per Jette, J., in Bank of Toronto v. Lambe, M.L.R. i S.C. at p. 42, 4 Cart, at p. 98. Provincial Powers. 737 it would be quite unnecessary for them to exercise Prop. 66 the power conferred by item 2, raising by direct tax- ation a revenue for provincial purposes, or to draw upon the revenue created by the subsidy paid by the Dominion or by sale of the public property, or other income arising therefrom, or from the assets assigned to each province. Such a contention appears to me to involve so palpable a reductio ad ahsurdwn as to carry with it its own refutation."^ With deference, this second argument is not a provincial strong one, for the intention of the Act may well 'taxation. have been, it is submitted, while giving the provinces a general power of direct taxation, and the other sources of revenue referred to, to leave to them also such powers of indirect taxation as they might, with- out interfering with customs and excise, or infringing section 121,- appropriately exercise under their other express powers. But the first ground of objection may be supplemented by the words of Dorion, C. J., in Bank of Toronto z^. Lambe," so far at least as concerns No. 16 of section 92 : — " One of the most elementary rules of interpretation of statutes is that general provisions in an Act of parliament do not control nor affect the special enactments which it contains, and therefore the general authority con- ferred by sub-section 16 as to matters of a purely local or private nature in the province can only apply to such other matters as are not specially pro- vided for by the Act, and as the subject of provincial ^C. per Taylor, J., in Dul mage 5v. Douglas, 4 M.R. at p. 498, (1887), sufra p. 482. ^See supra p. 731. 3M.L.R. I Q.B. at p. 136, 4 Cart, at p. 35, (1885). However see per Dorion, C. J., in Attorney-General v. Reed, 26 L.C.J, at p. 355, 3 Cart, at p. 216, (1882). See, also, supra p. 26, n. i. 738 Legislative Power in Canada. Prop. 66 taxation is specially provided for by sub-sections 2 and 9 of section 92, sub-section 16 does not apply to the subject of taxation." But this, it is obvious, would be much stronger if, as was until lately generally supposed, No. 9 related to a mode of indirect taxa- tion. But, as has been seen, ^ it too is direct taxation ; so that all that is expressly referred to by Nos. 2 and 9 is direct taxation, and there is no express reference to indirect taxation in section 92 one way or the other. However, Dorion, C. J., goes on to say : " If sub-section 16 was not limited by the preceding sub-sections 2 and 9 these sub-sections would have Provincial bccn Quite unuecessarv, since sub-section 16, by the taxation, generality 01 its terms, would have covered all sub- jects over which the provincial legislatures could have exercised their legislative authority." In the same case, however, Ramsay, J., also dis- cusses the matter-^ observing that inclusio unius, exclusio alteyiits, is one of the feeblest of the rules of interpretation, if it can be called a rule at all ; that words that are, strictly speaking, unnecessary, may be used ex majore canteld ; that the right to tax the person might have been questioned with much greater force than the right to tax indirectly if nothing had been said; that there is no express exclusion of the general power to tax, which seems to be an inherent right of government ; that on the arguments advanced to prove Nos. 2 and 9 to be impliedly a dealing with the whole question of the -'Siipya pp. 723-4. -See, also, supra pp. 482-3. For other o'iV/a adverse to the right of provincial legislatures to impose indirect taxation, see per;Mackay. J., in Auorney-Cieneral of Quebec v. Reed, 3 Cart, at p. 229, (1882) ; per Begbie, C. J., in Regina v. Mee Wah, 3 B.C. at p. 404, (1886). And see supra p. 732, n. ^M.L.R. I Q.B. at pp. 184-5, 4 Cart, at pp. 75 7. Provincial Powers. 739 taxing power, the local legislatures could not legis- Prop. 66 late as to shops, saloons, or taverns at all, except in regard to licences in order to raise a revenue; and, later on, he says^: "On the main question, as to whether there is any other power to tax, except by Provincial way of license, than that set forth in sub-section 2, taxaibn. the case of Dow v. Black,- seems to furnish direct authority. Sir James Colvile in pronouncing the judgment of the Privy Council said'*: 'Their lord- ships are further of opinion with Mr. Justice Fisher,* the dissentient judge in the Supreme Court, that the Act in question, even if it did not fall within the second article of section 92, would clearly be a law relating to a matter of a merely local or private dow -/. nature within the meaning of the gth article of sec- tion 92 of the Imperial statute.' It is evident the learned judge meant the i6th article of section 92, for he had just declared that article 9 had obviously no bearing on the present question. . . It seems to me then that it is safe to say that Dow v. Black lays down the principle as formally as it can iM.L.R. I Q.B. at p. 192, 4 Cart, at pp. 83-4. '^L.R. 6 P.C. 272, I Cart. 95, (1875). 3L.R. 6 P.C. at p. 282, I Cart, at p. 108. ■*The provincial Act in question in Dow ?: Black, was one empower- ^ ing the majority of tiie inliabitants of the Parish of St. Stephen, in New Biack.' Brunswick, to raise, by local taxation, a subsidy designed to promote the construction of a certain railway extending beyond the limits of the province into the State of Maine, but already authorized by statute prior to Confederation. The Judicial Committee held the Act valid as direct taxation under No. 2 of section 92 of the British North America Act, as we have seen supra pp. 722-3. The Stipreme Court of New Bruns- wick had held the Act nlt7-a vires on the ground that it was legislation in relation to a local work or undertaking, extending beyond the limits of the province, within No. 10 (a) of section 92, with which view of the nature of the .4ct the Privy Council did not agree. Fisher, J., in a dissenting judgment held, first, that the Act was not within No. 10 (a) at all, for that that referred to extension into another province of the Dominion, not to extens.on into a foreign country, and secondly, that it came within the general authority to tax for local purposes, com- prised within the category of powers provided for in No. 16 of section 92, being purely a matter of a local nature. 740 Legislative Power in Canada. Prop. 66 be laid down, (barring only the slip as to the num- ber of the sub-section), that sub-sections 2 and 9 do not exclude from the powers of the local legislatures the right to propose other forms of taxation." And other judges who gave judgment m these cases of Bank of Toronto v. Lambe, and Attorney General of Quebec v. Reed, expressed views on the whole favourable to the provincial power of imposing in- direct taxes under No. 16 of section 92, or as inci- dental to some of the other of their express powers under that section.^ Provincial ^j-,(j jj- jg j|. jg submitted, more consistent with indirect ' taxation. j.j_,g plenary nature of the powers of provincial legislatures under the British North America Act- that they should be held to have this right, than that it should be denied to them. And so Ramsay, J., says in Bank of Toronto v. Lambe'': " It would seem beyond question that this (British North America) Act attributes plenary governmental powers with regard to certain matters to both the federal and local bodies, and so far as I know this has never been doubted. We have, therefore, one point settled. The local organizations are govern- ments. They enjoy regalian powers, and all the incidents of such powers ; and these powers have not been limited by the charter, which, although it has specially passed on the taxing power, has been i.So per Baby, J., in Bank of Toronto v. Lambe, M.L.R. I Q.B. at pp. 197-9, 4 Cart, at pp. 88-90; per Strong. J., in Attorney-General of Quebec v. Reed, 8 S.C. R. at p. 419, 3 Cart, at p. 199 ; per Henry, J., S.C, 8 SCR. at p. 424, 3 Cart, at p. 203 ; per 'I'aschereau, T.. S.C, 8 S.C.R. at p. 427, 3 Cart, at p. 206 ; per Dorion, C J., S.C, 26 L C.J. at p. 355, 3 Cart, at p. 216 ; per Cross, J., S.C, 26 L.CJ. at p. 361, 3 Cart, at p. 224. Cf. also per Ritchie, C.J., S.C, 8 S.C.R. at at p. 417, 3 Cart, at p. 198. -See Proposition 17 and the notes thereto. »M.L.R. I <^>. r>. at p. 188, 4 Cart, at p. 80. Provincial Powers. 741 silent as to the powers of indirect taxation."^ No Prop. 66 doubt the matter may some day become one of great importance, though perhaps the same learned judge may have taken an exaggerated estimate of it, when he said in Attorney-General of Quebec z-. Reed-: " As soon as the Privy Council lays down as a proposition of law, the issue being clearly before them, that the local governments have no power to Provincial 1 • 1 11- 1 1 T indirect tax otherwise than by licenses and by direct taxa- taxation. tion, and that direct taxation means certain taxes, and no more, then I shall accept the decision as conclusive, and conform my judgments to it, al- though I know that its effect must be to break up Confederation." Returning to the leading Proposition it should be pointed out before concluding, that apart from law- making powers, provincial legislatures have doubt- less, by virtue of being legislative bodies at all, such powers and privileges as are necessarily inherent in and incident to such bodies; and having them, may regulate their exercise by statute or standing rules if they see fit so to do.' Thus in ex parte Dansereau,* the Court of Queen's Bench at Montreal, decided that the provincial legislatures have the right to ^It was at one time thought that under No. 8 of section 92 of the British North America Act, ' municipal institutions in the province,' the lei^islatures would have certain rights of indirect taxation, t'.^. per Wilson, J., in Regina v. Taylor, 36 U.C.R. at pp. 195, 201, (1S75). But asto No. 8 of section 92, see now supra p. 398, n. i. ^26 L.J.C. at p. 358, 3 Cart, at p. 220, (1S82). 'Reference may be made on this subject to Todd's Parliamentary (iovernment in the British Colonies, 2nd ed., p. 6S7 et seq.; 'Are legislatures parliaments? a Study and Review,' by Fennings Ta> lor, Deputy Clerk and Clerk Assistant to the Senate of Canada: John Lovell, Montreal, 1879 ! ^ review of the last named work, in the Can- adian Monthly, vol 3, p. 345, and two articles by S. J. Watson, entitled ' The Powers of Canadian I>egislatures ' : ibid, at pp. 519, 561. ^19 L.C.J. 210, 2 Cart. 165, (1875). See, as to this case, "also supra pp. 69, 452, n. 742 Legislative Power in Canada. Prop. 66 summon witnessess, and to punish persons who disobey such summons, on the ground that such ^ - right was a necessary incident of the powers of legis- latures and of the admmistration of public affairs ; and that the provincial Act, 33 Vict, c. 5, regulating this matter was valid. Inherent The Judicial Committee of the Privy Council have TegisUtures in sevcral judgments recognized the existence of such inherent powers in colonial legislatures, though the actual case of a Canadian legislature under the British North America Act exercising them does not seem yet to have come before the Board. In Doyle v. Falconer, ^however, they say of the Legislative Assembly of the Island of Dominica, constituted under Royal Proclamation and Commis- sions, — " As it must be conceded that the common Doyle !■. law sanctions the exercise of the prerogative by which falconer, ^j^^ Asscmbly has been created, the principle of the common law, which is embodied in the maxim, Quaudo lex aliquid concedit, concedere videtur et illud, sine quo res ipsa esse non potest applies to the body so created," and that the only question was whether the power to punish and commit for con- Punishment tcmpts Committed in its presence, with which they ^°'''^°"'^'"^'' were there concerned, was one "necessary to the existence of such a body as the Assembly of Dom- inica, and the proper exercise of the functions which it is intended to execute".- And they decided that the Assembly did not possess the power of punishing a contempt, even though committed in its presence there being a distinction between the power to punish a contempt, which is a judicial power, and iL.R. I r.C. 328, (1866). 2L.R. I I\C. at p. 340. Inherent Powers of Legislatures. 743 a power to remove any obstruction offered to the Prop. 66 deliberations or proper action of the legislative body during its sittings, which last power is necessary to self-preservation. And on the authority of this case of Doyle v. Fal- Landers 7/. coner, it was decided by the Supreme Court in wo°th. Landers v. Woodworth,^ (where the subject of the powers and privileges of the present provincial legis- latures apart from the general law-making powers conferred by sections 92 and 93 of the British North America Act, is elaborately discussed), that the Legislative Assembly of Nova Scotia has, in the absence of express grant, no power to remove one of its members for contempt, unless actually obstruct- ing the business of the House, and therefore had no right forcibly to remove the member in question from his seat in the House, merely because having made in the House certain serious charges against the Provincial Secretary, which, after enquiry before a Committee were adjudged unfounded, contempt of he refused to repeat in the House the form '^^ "°"^^" of apology required from him. Taschereau, J., admitted himself bound by the decision in Doyle V. Falconer,-' but stated'^ that the result amounted to a declaration that all the decisions in the province of Quebec for the last sevent}' years on the subject were against law. And in the subsequent case of Barton v. Taylor,* the Privy Council approved and followed their prior ^2 S.C.R. at p. 158, (1878). See, also, as to this case, suj»-a pp. 68-9. ^L.R. I P.C. 328, (1866). ^2 S.C.R. at pp. 205-6, 2oS. ^11 App. Cas. 197, (18S6). Specially referred to in Fielding v. Thomas, [1896] AC. at pp. 612-3 presently to be further noticed. The case is reported in the Court bek'W, 6 N.S.W. i, 7 N.S.VV. 30. 744 Legislative Power in Canada. Prop. 66 decision in Doyle v. Falconer, in relation to the Legislative Assembly of New South Wales. They there lay it down, in like manner, that the powers Barton t;. incident to or inherent in a colonial Legislative Assembly, which, they say, ^ "undoubtedly exist," are in the words of Kielley v. Carson,'- " such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" ; and add: " Whatever in a reasonable sense, is necessary for these purposes is impliedly granted whenever any such legislative body is established by competent authority. For these purposes protective and self-defensive powers only, and not punitive are necessary." And they held that, Suspension though somc power of suspending members guilty "' of obstruction or disorderly conduct was " rea- sonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind," a power of unconditional suspension for an indefin- ite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, was not. This, the}' held, " is more than the necessity of self-defence seems to require, and is dangerously liable, in possible cases, to excess or abuse." But, at the same time, in Doyle v. Falconer, 3 their lordships say : — " The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of the lex et consuetudo Par- liamenti, which is a law peculiar to and inherent in the two Houses of Parliament of the United King- dom. It cannot, therefore, be inferred from the '11 App. Cas. at p. 203. ^^ Moo. P.C. 63, at p. 88, q v., a case of the Newfoundland legis- lature. sj-.K. I P.C. at p. 33q, (1866). Inherent Powers of Legislatures. 745 possession of certain powers by the House of Com- Prop. 66 mons, by virtue of that ancient usage and prescrip- tion, that the hke powers belong to Legislative Assemblies of comparatively recent creation in the dependencies of the Crown. ^ Again there is no resemblance between a colonial House of Assembly, Lex et being a body which has no judicial functions, and ParHamemi. a Court of justice, being a Court of Record.- There is, therefore, no ground for saying that the power of punishing for contempt, because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other.""' ^And as to the /ex et consitetiido Parliaineiiti not applying to colon- ial legislatures, see further per Pollock, C. B., in Fenton v. Hampton, II Moo. P.C. 347, at p. 397, (185S) ; per Dorion, C.J., in Ex parte Dansereau, 19 L.C.J. , at p. 232, 2 Cart, at p. 191 ,(1875) ; per Ritchie, J., in Landers v. Woodworth, 2 S.C. R. at pp. 201-2, (1878); Norton z'. Crick, 15 N.S.VV., L.R., 172, (1894). "As far back as 1704, it was resolved and agreed by the House of Lords and House of Commons, that neither tlouses of Parliament have power, by any vote or declaration, to create to themselves new privileges, not war- ranted by the known laws and customs of Parliament. The lex et (Ofisuetudo Parliamenti, by all the late decisions, have limits. They cannot be added to, and new cases of privilege adjudged, even by the House of Commons of England": per Henry, }., in Landers v. Woodworth, 2 S.C.R. at p. 209. 2 " In America the authority of legislative bodies in this regard," (so. power to punish for contempt), "is much less extensive than in England, and we are in danger, perhaps, of being misled by English precedents. The Parliament, before its separation into two bodies, was a High Court of judicature, possessed of the general power, inci- cent to such a Court, of punishing contempts ; and after the separation, American the power remained with each body ; therefore each was considered to legislatures. be a Court of judicature and exercised the functions of such a Court. American legislative bodies have not been clothed with the judicial function, and they do not therefore possess the general power to punish for contempt ; but, as incidental to their legislative authority they have the power to punish as contempts the acts of members or others which tend to obstruct the performance of legislative duty, or to defeat, impede, or embarrass the exercise of legislative power " : Cooley's Con- stitutional Limitations, 6th ed., pp. 159-60. Cf. also Story on the Constitution of the United States, 5th ed.. Vol. i, p. 612, et seq. ^On this subject the following Australian cases may be mentioned. Australian In The Queen z^. MacPherson, 7 N.S.W., 230, (1868), an indictment cases. for an assault committed by one member upon another in an ante-cham- ber of the House of Assembly 'in contempt of the Legislative Assembly,' and ' to the great obstruction of its business ' was successfully demurred to by the defendant, though this decision was over-ruled by the Judicial 746 Legislative Power in Canada. Prop. 66 However, the practical importance of this subject does not seem very great so far as Canadian legis- latures are concerned, for in the recent case of Fielding v. Thomas,^ the Privy Council have decided No. I, sect, that No. I of section 92 of the British North Act. ' ' ' America Act, whereby provincial legislatures may exclusively make laws in relation to ' the amendment from time to time, notwithstanding anything in this Act, of the Constitution of the province, except as regards the office of Lieutenant-Governor,'- confers Amendment the power " to pass Acts for defining the powers Constitu- and privileges of the provincial legislature." *' It surel}^ cannot be contended," they say, " that the independence of the provincial legislature from out- side interference, its protection, and the protection of its members from insult while in the discharge of their duties, are not matters which may be classed as part of the Constitution of the province, or that Fielding-^, legislation on such matters would not be aptly and properly described as part of the constitutional law Committee of the Privy Council, on the ground, however, that a com- mon assault was sutiiciently charged : L. R. 3 P.C 268. \x\ I/i re Wngh Glass, 6 W.W. and A.'B.,L.,45, 103, (1S69), a warrant of the Legislat- ive Assembly committing for contempt was held bad on habeas corpus, for not stating grounds showing that the powers of the Assembly had not been exceeded ; and see S.C. in App., Speaker of Legislative Assembly of Victoria v. Glass, L.R. 3 P.C. 560, (1871). See also the Contempt of report of Sir. J. Thompson as Minister of Justice, of February 17th, the House. 1894, objecting to a certain Act of Prince Kdward Island giving the Legislative Assembly power to commit to jail persons adjudged by resolution of the Assembly guilty of contempt or breach of its privi- leges : Hodgins' Provincial Legislation, 2nd ed., at pp. 1 227-8. But see now Fielding v. Thomas supra. As to ejecting members guilty of di>orderly conduct, see per Henry, J., in Landers v. Woodworth, 2S.C.R. at p. 158, (1878). In Tooheyw. Melville, 13 N.S.W., L., 132, (1893), it was held that the Speaker or Chairman of the Legis- lative Assembly has power, withouc a resolution of the House to eject from the Chamber a member guilty of disorderly conduct and wilful obstruction of the business of l^irliament, under Standing Order 176 of the British House of Commons of 1857, adopted by the Legislative Assembly. '[1896] A. C. 600, at pp. 610 I. ^See as to No. 1 of section 92, sup' a p. 100, n. 2. Provincial Powers. 747 of the province."^ Further, they hold in this case Prop. 66 that Nova Scotia, with which they were deahng, would have such power under the Colonial Laws Fielding i.. Validity Act, saying as to this: "By section 88," ^In Ex parte Dansereau, 19 L.C.J, at p. 228, 2 Cart, at p. 183, No. i, sect. (1875), Ramsay, J., had held the contrary view, that No, I of sec- 92. B-NA. tion 92, does not refer to any such matters, but only to matters dealt with in sections 58-90 of the British North America Act, under the general rubric " Provincial Constitutions ;" and so, again, in Cotte's case, 19 L.C.J, at p. 217, 2 Cait. at p. 226. Sanborn, J., however, in Ex parte Dansereau, 19 L.C.J, at p. 237, 2 Cart, at pp. 199 200, expressed the view now upheld by the Privy Council. Cf. per Rich- ards, C.J., in Landers v. Woodworth, 2 S.C.R. at pp. 191 -2, who says: "The legislators of Ontario and Quebec seem to have con- ferred on the Houses of Assembly in these provinces extensive powers to enable them effectively to exercise their high functions and dis- charge the important duties cast on them. It may be necessary still further to extend fheir powers. The legislatures of the other prov- inces will probably consider it desirable to take the same course, and in that way unmistakeably place these tribunals in the position of dignity and power which it is desirable ihey should possess." For such legislation in Ontario, see R.S.O., 1887, c. 11, s. 48. Cf. also Dill V. Murphy, i Moo. P.C.N. S. 487, (1864), (reported below in the Australian reports, i Wyatt & Webb, L., 171), a case referred to at length in Landers v. Woodworth, 2 S.C.R. at p. 183. In the course of the argument before the Privy Council in Fielding v. Amendment Thomas, Lord Watson is reported to have said: "I take it under of the Con- tbe power given to the provincial legislature by the statute of 1867, stitution. the provincial legislature had the same power to alter and amend its Constitution by its own legislative Act as the Imperial parliament of Great Britain possessed at that date. It could give to itself any power which the parliament of Great Britain could constitutionally have given :" Manuscript transcript from Cock and Right's short- hand notes, p. 25. For reports of Ministers of Justice prior to Field- ing and Thomas, ol)jecting to, and even recommending the disallow- ance of provincial Acts attempting to define the privileges, immuni- ities and powers of the legislatures of the provinces, see Hodgins' Provincial Legislation, 2nd ed., pp. 83-93, H67, 254-5, 495, 531-2, 780, and Dom. Sess. Pap. 1870, Vol. 3, No. 35, pp. II-23, 39-42; and for the opinion of the law officers of the Crown in England Privileges given in 1869, see Hodgins' ihiJ. at pp. 84-5. See, also, Todd's Par- ?nd liamentary Government in the British Colonies, 2nd ed., p. 523 ; and a Jj^^"^' letter signed "An Exile" in 18 C.L.J, at p. 245. It maybe inci- °e»is dentally mentioned here that in the Australian case of Stevenson v. The Queen, 2 W.W. and A'B., L., 143, (1865), it was held that the Legislative Assembly could not levy customs duties by its own resolu- tion, neither it nor the English House of Commons possessing such a privilege. In Gipps z'. Malone, 2 N.S W., L. R., 18, (1881), it was held that no action for defamation will lie upon any question put by a member of a colonial legislature in the course of its proceedings ; and in Norton v. Crick, 15 N.S.W., L.R., 172, (1894), that a mem- ber of the Legislative Assembly was not privileged from arrest under a writ of ca. sa. even though the Assembly be sitting at the time of his arrest. iinmuntties latures. 748 LegislativI': Power in Canada. Prop. 66 (sc. of the British North America Act), "the con- stitution of the legislature of the province of Nova Scotia was, subject to the provisions of the Act, to continue as it existed at the Union until altered by authority of the z\ct. It was, therefore, an existing legislature, subject only to the provisions of the Act. The Colonial By section 5 of the Colonial Laws Validity Act, 28- vaiidity 29 Vict. c. 63, it had at that time full power to make laws respecting its Constitution, powers, and pro- cedure. It is difficult to see how this power was taken away from it, and the power seems sufficient for the purpose,"^ And this would of course apply ^Cf. as to this power under the Colonial Laws Validity Act, per Sir J. W. Colvile, in Doyle v. Falconer, L.R.i P C. at p. 341, (1866). In Fielding v. Thomas, [1896], A.C. 600, the Privy Council further hold that section 30 of the provincial Act in cjuestion, which enacted that : — Making ' Each House shall be a Court of Record, and shall have all the rights legislatures jjfj^j privileges of a Court of Record for the purpose of summarily inquir- Record°\vith '"8 into, and (after the lapse of twenty-four hours) punishing the acts, punitive matters, and things herein declared to be violations or infringements powers. of this chapter,' etc., amongst which were libels upon members of either House during the session of the legislature, and section 31, which prescribed imprisonment for such time during the session of the legislature then being held as might be determined by tlie House, be- fore which such violation or infringement should be inquired into, were not tt/ira vires as infringing upon the jurisdiction of the Do- minion parliament over criminal law, thus over-ruling the view of Graham, E.J., in the Court below, {26 N.S. at p. 74, sub nom. Thomas z'. Haliburton), noted j///;-rt pp. 40, n. 1,176, n. i. They say : — "It is true that the criminal law is one of the subjects reserved by the British North America Act for the Dominion parliament, but that does not prevent any inquiry into, and the punishment of an interference with the powers conferred upon the provincial legislatures by in- sult or violence. The legislature had none the less a right to prevent and jumish obstruction to the business of legislation because the inter- ference or obstruction was of a character which involved the commis- sion of a criminal offence or brought the offender within reach of the criminal law. Neither in the House of Commons of the United Kingdom nor the Nova Scotia Assembly could a breach of the privi- leges of either body be regarded as subjects ordinarily included within that department of State government which is known as the The trial of criminal law.'' They added, however: "Their lordships are dis- posed to think that the House of Assembly could not constitute itself a Court of Record for the trial of criminal offences. But read in the light of the other sections of the Act, and having regard to the subject-matter with which the legislature was dealing, their lordships think that those sections were merely intended to give to the House the powers of a Court of Record for the purpose of dealing with breaches of jjrivilege and contempt by way of committal. If they Criniina law. crimina offences Provincial Powers. 749 to the legislature of New Brunswick, also mentioned Prop. 66 in section 88, and doubtless to that of Prince Edward Island. 1 It is to be observed, however, that b)' section i8r..NA. Act, of the British North America Act, the power of the ^^'^ • ' • Dominion Parliament in respect to these matters is expressly provided for, and it is enacted : ' The privi- leges, immunities, and powers, to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the parliament of Canada, but so that the same shall never exceed those at the passing of this Act- Privileges of held, enjoyed, and exercised by the Commons House parliament, of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.' In Fieldin.sj ?'. Thomas,-^ the Privy Council remark as to this : '' It is to be observed that the House of meant more than that, or if it be taken as a power to try or pun- ish criminal offences otherwise than as incident to the protection of members ia their proceedings, section 30 could not be supported." They further held that the provincial legislature had power to provide, as it had done by the Act in question, that members of the House ^^ts of should be relieved from civil liability for acts done and words spoken indemnity, in the House, whether it could or could not so relieve them from liability to a criminal prosecution. For the report of the acting Minister of Justice refusing to recommend the disallowance of the Nova Scotia Act of 1892 passed to indemnify the Speaker, the Sergeant at Arms and the keeper of the county jail against all liability in con- nection with the acts complained of in T"ielding v. Thomas, see Hodgins' Provincial Legislation, 2nd ed., p. 630. Cf. Phillips v. Eyre, L R. 6 Q.B. i, {1870). ^See section 10 of the Order in Council dated June 26th, 1873, con- taining the terms of union of Prince Edward Island : Dominion Statutes, 36 Vict, at p. xxii. British Columbia possessing at the time of entering Confederation, a legislature only in part representative, was not, it would seem, within the terms of section 5 of the Colonial Laws Validity Act. ■■^Amended so as to read " such Act " by Imp, 38-39 Vict, c 38, s. I. 3[i896] A.C. at p. 610. 750 Legislative Power in Canada. Prop. 66 Commons of Canada was a legislative body created for the first time by the British North America Act, and it may have been thought expedient to make Privileges of express provision for the privileges, immunities, and Dominion r i i i i t • i parliament, povvers ot the body so created, which was not necess- ary in the case of the existing legislature of Nova Scotia."^ And as has been seen, the power of the Dominion parliament in this regard is restricted, while that of the provincial legislatures is not.^ ^See supra p. 748. In this case in the Court below, (26 N.S. at p. 59), counsel suggested that it may have been necessary to give this ex- press grant to the parliament of Canada to exercise the same powers as the English House of Commons, because it is dealing with civil rights. ^Cf. per Ramsayi J., in Cotte's case, 19 L.C.J, at p. 218, 2 Cart, at p. 226; and per Graham, E. J., in Thomas v. Haliburton, 26 N.S. at p. 76, (1893). I Provincial Powers. 751 PROPOSITION 67. 67. Provincial Legislatures cannot by corresponding legislation in any degree enlarge the scope of their powers. This Proposition is suggested by the words ofconj.im Ramsay, J., in Dobie v. The TemporaHties Board, ^ Provinces! * who says : " There is a sort of floating notion that by conjoint action of different legislatures the incapa- city of a local legislature to pass an Act may be in some sort extended. I cannot understand anything more clear than this, that the local legislatures by corresponding legislation cannot in any degree en- large the scope of their powers." Uniformity of legislation on provincial subjects can of course be produced in different provinces by the respective legislatures enacting similar laws, but it is abund- antly clear that the sphere of law-making power of each legislature remains identically the same as before. - '3 L. N. at p. 250, I Cart, at p. 382. *See supra pp. 314-6. 752 Legislative Power in Canada. PROPOSITION 68. 68. A Provincial Legislature by virtue of No. 13 of section 92 of the British North America Act has power to make laws in relation to such 'property and civil rights' [within the meaning of that clause as restricted to allow scope for the due operation of the other provisions of the said Act] as have a local position within the Province ; but they have no such power in relation to property and civil rights having- their local position in another Province ; and if, in any case, they cannot legislate in relation to the one, without at the same time legislating in relation to the other, that is a case be- yond their powers of legislation altogether. Dobier.The Thc above Proposition is suggested, as will pres- ties'"Boatd. ciitly be seen, by the judgment of the Privy Council in Dobie v. The Temporalities Board. ^ But first, as to what is meant by ' property and civil rights ' in No. 13 of section 92 of the British North America Act, whereby the provincial legislatures are given the exclusive power of making laws in relation to ' prop- erty and civil rights in the province.' In Citizens Insurance Co. tK Parsons'- where it was contended ^7 App. Gas. 136, I Cart. 351, (1882). '^7 App. Cas. at pp. 10911, i Cart, at pp. 2746, (1881). Provincial Powers. 753 that ' civil rights ' in this clause meant only such ppop rights as flowed from the law, as for example, the status of persons, their lordships say that they "find no sufficient reason in the language itself, nor in the other parts of the Act, for giving so narrow an inter- pretation to the words 'civil rights.' The words are sufficiently large to embrace, in their fair and ordi- nary meaning, rights arising from contracts.'' And they refer to section 94 of the Act, which the}- term 'Property . ,, , ,T and civil "the uniformity section, whereby the parliament right- in the • 1 • • r 1 Province.' of Canada is empowered to make provision for the uniformity of any laws relative to * property and civil rights ' in Ontario, Nova Scotia, and New Brunswick, and to the procedure of the Courts in those three provinces, if the provincial legislatures choose to adopt the provisions so made, and point out that : — " The province of Quebec is omitted from this section for the obvious reason that the law which governs property and civil rights in Quebec is in the main the French law, as it existed at the time of the cession of Canada, and not the English law which prevails in the other provinces. The words ' property and civil rights ' are obviously used in the same sense in this section as in No. 13 of sec- No. 13, S6Ct Q2 tion 92, and there seems no reason for presuming b.n'.a.' Act. that contracts and the rights arising from them were not intended to be included in this provision for uniformity.'' Otherwise, they.say," the Dominion parliament could, under its general power ^, legislate in regard to contracts in all and each of the prov- inces, and, as a consequence of this, the province of Quebec, though now governed by its own Civil Code, founded on the French law, as regards contracts and their incidents, would be subject to have its law on that subject altered by the Dominion legislature, ^See Proposition 26 and the notes thereto. 754 Legislative Power in Canada. Prop. 68 and brought into uniformity with the EngHsh law prevailing in the other three provinces, notwith- standing that Quebec has been carefully left out of the uniformit}' section of the x\ct."^ The Privy Council then refer to section 8 of the Quebec Act, 14 Geo. III., c. 83, which enacted that His Majesty's Canadian subjects within the province of Quebec should enjoy their property, usages, and 'Property othcr civil rights, as they had before done, and that and civil _ rights in the in all mattcrs of controversy relative to propertv and province. ... i i ./ civil rights, resort should be had to the laws of Canada, and be determined agreeably to the said laws, and sa}' : " In this statute the words 'property' and ' civil rights ' are plainly used in their largest sense ; and there is no reason for holding that in the statute under discussion they are used in a differ- ent and narrower one."- It has been shown, however, in the notes to Pro- No. 13, 'In Dubuc V. Vallee, 5 Q.L.R. at p. 37, (1879), Caron, J. says: R v' a^'a " ^^ teste precis et formel de ce paragraphe, c'est a dire les mots ■ ■ ■ ^ ' droits civi'.s dans la province, ne peuvent signifier autre chose que ces droits civils conferes dans la province de Quebec par notre code civil, ou les droits qui y correspondent dans les autres provinces. Les expressions dans la province ont pour objet de restreindre le sensde la signification des mots droits civils que le precedent a cette espece de droits qui n'embrassent que les droits prives tels qu'ils sont regies par notre code civil, lequel, conime on sait, n'atfecte pis les droits politi- ques des citoyens de la Puissance. II est evident, surtout en ce qui concerne la province de Quebec, qui occupe une position exceptionnelle dans la Confederation Canadienne, ainsi qu'on le voit par la section 94 de I'Acte de I'Amerique Britannique du Nord, que le but du legis- lateur par ce paragraphe 13 etait d'empecher le parliament du Canada de pouvoir modifier en aucune inaniere quelconque la faculte d'acquerir ou de transmettre la pr<3priete et le pouvoir de contracter." ^In the despatch from the Lieutenant-Ciovernor of Ontario to the Secretary of Stale, of January 22nd, 1886, on the subject of the power to appoint (Queen's Counsel (as to which power see sttpra pp. 87-9, 133-6, 178-9, and In re Queen's Counsel, 23 O A. R. 792, since affirned by the Privy Council, July 30th, 1897), section 8 of the (Quebec Act is also referred to, to show the e.vtensive purport of the words 'property and civil rights'; and it is added: "Under the same words, in the Upper Canada Act, 33 Ceorge III. c. I, the whole law of England, except the criminal law (which was the subject of another enactment) was held to be introduced:" Ont. Sess. Pap., 1888, No. 37, at p. 17. See, also, sttpra pp. iS-20. •r Provincial Powers. 755 position 37, (and it is not necessary to repeat here ppop. 68 what is there set out), that the interpretation of the clause of section 92 under consideration, must be restricted sufficiently to allow scope for the full exercise of Dominion powers^; and it has also been pointed out that an Act may interfere with and affect the use of property, or civil rights, and yet not be legislation in relation to ' property and civil rights in the province ' within the meaning of No. 13 of section 92, these not being the primary matters dealt with.- Such, then, being the meaning of ' property ' Property ,..,.,,.-- ^ . . and civil and civil rights in No. 13 01 section 92, it rights in the 1 -I rr r 1 province.' remains to consider what is the effect of the limitation ' in the province ' in that clause. In the recent Liquor Prohibition Appeal 1895,^ the Privy Council say : — " A law which pro- hibits retail transactions and restricts the con- sumption of liquor within the ambit of the prov- ^See Proposition 37 and the notes thereto, and especially supra pp. 433-4; and as to 'property,' Proposition 54 and the notes thereto, supra p. 590 et seq. In the recent argument in the case of Fielding v. Thomas, [1896] A. C. 600, Lord Watson is reported as saying : — " This Board have had to consider in more than one case the overlapping of the classes. For instance, the province has got by the terms of section 92, exclusive power to deal with civil rights. If you are to read that enactment of the sub-section of section 92 in its strictest sense it would exclude the legislative Overlapping jurisdiction of the Dominion and accordingly we have held here powers, that there is a sort of neutral field, and if the province occupies that and regulates a civil right it may very well be that the parliament of the Dominion may legislate on bankruptcy or on libel in such a way as to over-ride the provincial legislation on the subject, and it may be that whilst the amendment of their own Constitution is conceded to the province they might as an unnecessary incident of amending their Con- stitution enact some things which might be abrogated by a Canadian law. It does not necessarily follow that they have no jurisdiction:" Manuscript transcript from Cock and Right's shorthand notes, pp. 29-30. As to Fielding f. Thomas, see further supra pp. 746-50. -See supra pp. 3967 ; and Proposition 36 and the notes thereto. See, too, as to laws against gambling, Fiegina v. Keefe, i N. W. i, (No. 2) 86, (1890) ; Regina v. Fleming, 15 C.L.T. 242, (1895). ^[1896] A.C. at p. 364. 75^ Legislative Power in Canada. Prop. 68 ince, and does not affect transactions in liquor between persons in the province, and persons in other provinces or in foreign countries, concerns property in the province, which would be the subject matter of the transactions, if they were not pro- hibited, and also the civil rights of persons in the province " ; and they imply that in their opinion such a law might well be authorized by No. 13 of section 92, as a law in relation to property and civil rights in the province. But it would seem to be by reason of the limitation contained in the words ' in the province,' that later on in the same judgment, when alluding to the provision in the Canada Temperance Act 1886, which permits wholesale What are dealers in liquors to sell for delivery anywhere property and . . civil rights bevond the district wherein they carry on business, ' in the ■' _ _ -^ _ -^ province'? uulcss such dcHvery is to be made in an adjoining district where the Act is in force, the}^ say : " If the adjoining district happened to be in a different province, it appears to their lordships to be doubt- ful whether, even in the absence of Dominion legis- lation, a restriction of that kmd could be enacted by a provincial legislature." It would seem, especi- ally in the light of the former passage, that their lordships mean that such a legislative restriction, affecting, as it would do, transactions in liquor between persons in the province, and persons in other provinces or in foreign countries, would be legislation in relation to property and civil rights out of the province, as well as in the province, and therefore would not be authorized by No. 13 of section 92.^ ' At the same time it seems a little hard to understand why a provincial legislature should not have power to enact with regard to any property locally situate in the province, that it shall not be taken out of the pro- province. In Cooley's Constitutional Limitations it is said : "The legis- lative authority of erery State must spend its forces within the territorial I Provincial Powers. 757 But what Proposition 68 is intended especially to Prop. 68 affirm is that under No 13 of section gz, provin- cial legislatures may make laws in relation to all such propert}' and civil rights, subject to the re- striction in the Proposition indicated, as can pro- perly be said to have a local position, or situs, within the province. It is important to direct attention to this point because there is some au- what are thority in the cases in the Ontario Courts for theciwrrighu view that the maxim mobilia personam seqiiuntur, or province ' ? in its quainter fovm, Dwbilia ossibiis inhcerent, in some way applies to this matter of legislative power; and that the provincial legislature may not have juris- diction under the clause in question over personal or moveable property or over civil rights, though situated within the province, if the owner of them be domiciled in another province, or abroad.^ limits of the Stale. The legislature of one State cannot make laws by which people outside the State must govern their actions, except as they may have occasion to resort to the remedies which the State provides, or to deal with property situated within the State" : 6th ed. p. 149. Section 121 of the British North America Act, which provides that Sect. 121, ' all articles of the growth, produce, and manufacture of any one of the B.N.A. Act. provinces shall from and after the Union, be admitted free into each of the other provinces', is obviously, as it would seem, alio intuitu, and aimed against inter-provincial tariffs. It may be here noted that in the course of the argument on the Liquor i'rohibi- tion Appeal, 1895, Lord Watson is reported as remarking : — "The provincial legislature can only deal with tha,t which is really a matter of civil right. They cannot propose, for instance, to ' Civil deal with bankruptcy" : Printed report, at p. 151. Provincial legisla- "ghts." latures cannot deal with bankruptcy because this is exclusively a Dominion subject, under No. 21 of section 91 ; but the above words would imply that, apart from this, bankruptcy legislation is not pro- perly speaking legislation in relation to civil rights. 1 Thus in the Goodhue case, 19 Gr. 366, i Cart. 560, (1873), already Queston of referred to supra p. 28 1, where a testator left property in Ontario in trust domicil. for such of his children and grandchildren as should be living at the death of his widow, and some of the grandchildren were domiciled in England, Strong, V. C., held that as the right of the children under the will was in no way different from any ordinary legal debt as regards the question of locality, and as the locality of a debt is at the domicil of the creditor, therefore, it war, ultra vires of the provincial legisla- ture to extinguish by statute the rights of these grandchildren in the trust fund created by the will, though under No. 13 of section 92, it had full power to pass private Acts of parliament affecting private property "in all cases where the property and rights sought to be 758 Legislative Power in Canada. Prop. 68 Now these maxims certainly can, in themselves, afford no explanation or reason why they should apply to restrict legislative power/ As Mr. Dicey very clearly puts it : " The maxim mobiliasequwitur personam, being merely a short form of stating the fact that moveables are for some purposes treated, whatever their actual situation, as subject to the law of their owner's domicil, cannot serve as an explan- ation of the reason why in any particular case they are so treated. The general statement of a fact cannot. Mobilia sequuntur personam. domicil. affected are in the province, to the same unlimited extent that the Impetial parliament have in the United Kingdom " : IQ Gr. at p. 452, I Cart, at pp. 573-4. He cites Tully i'. The Principal Officers of Her Majesty's Ordnance, 5 U.C. R. 6, (1847), referred to stipra p. 333, n. 5, q. V. Many of the other judges in the case do not refer at all to this point, holding as they did that on the proper construction of the statute it did not bind the interest of the grandchildren. Draper, C. J., held the Act ttitra vires, and that it bound the interest of the grandchildren, but does not refer specifically to this question of domicil ; while Question of Spragge, C, expresses general concurrence with Draper, C. J., but '' ■"■' says that he had come to a less decided opinion upon the question of domicil than upon any other question in the case, but was inclined to think that it was the domicil of the trustee which must govern. Again in Jones v. The Canada Central R. \V. Co., 46 U. C. K. 250, i Cart. 777, (1881), a case referred to supra pp. 461-2, q. v.. Osier, J., cer- tainly seems to countenance the idea that the domicil of the owner of a debenture might determine whether the provincial legislature had juris- diction in relation to it under No. 13 of .sect. 92. As to the situs of debts, however, see itifra pp. 759, n. i, 760, n. In Smiles t^. Belford, i O.A R. at p. 440, (1876-7), it appears from the Reasons against appeal, that the point was taken tliat the Imperial copyright of the respondent being " personalty situate in England could not be affected by colonial legis- lation either before or since Confederation " ; but the case went off on a different point, and this point so raised is not dealt with in any of the judgments in the case. See supra pp. 213-6. See also Clement's Law of the Canadian Constitution, at p. 463. ^ They are maxims of what is generally known as Private Inter- national Law, or what Professor Holland more accurately des- cribes as the law governing the " extra-territorial recognition of rights " : Jurisprudence, 7th ed., p. 370. Whatever names are given to this branch of the law, they "are nothing more than convenient marks by which to denote the rules maintained by the Courts of a given country, as to the selection of the system of law which is to be applied to the decision of cases that contain, or may contain, some foreign ele- ment, and also the rules maintained by the Courts of a given country, as to the limits of the jurisdiction to be exercised by its own Courts as a whole, or by foreign Courts" : Dicey on the Conflict of Laws, at p. 15. See, generally, zT'eV. pp. 12-15. See also, as to the application of the maxims in question to the law of England : Rattigan's Private Inter- national Law, pp. 80-4. Private Interna- tional law. Provin'cial Powers. 759 that is to say,explain part of the fact which it states." ^ ^^°^- ^^ And it is submitted with confidence that these maxims can in no way control or restrict the power of the provincial legislatures over an area and subject mat- ter, over which, apart from these maxims, they would have jurisdiction ; and that their power over property and civil rights in the province under No. 13 of section 02, (subiect to the restriction in the import Propenv -^ ■' and civil of those terms rendered necessary to allow scope for "guts 'in the _ _ _ province. , the other provisions of the British North America Act-), can have " no practical limit except the lack of executive power to enforce their enactments."^ In other words, if ' property and civil rights ' have such a local position in the province that the legis- lative arm can reach them, the provincial legislature has, subject as aforesaid, jurisdiction over them under the clause in question, no matter where the domicil of the owner of them may be.* 1 Conflict of Laws, p. 787. "These maxims," says Mr. Dicey \n Mobilia another place, referring to the two maxims we are discussing, '■^ 2i,%sequuntiir modified by statutory enactments, are based upon two considerations : ^'^'•*^'""*"'' the first is that property, so far as it consists of tangible things, must in general be held situate at the place where at a given moment it actually lies ; the second is, that property may in some instances, and espe- cially where it consists of debts and choses in action, be held to be situate at the place where it can be effectively dealt with. From these two considerations flows the following general maxim, viz., that whilst lands and generally, though not invariably, goods, must be held situate at the place where they at a given moment actually lie, debts, choses in action, and claims of any kind must be held situate where the debtor or other person against whom a claim exists resides ; or in other words debts or choses in action are generally to be looked upon as situate in the country where they are properly recoverable, or can be enforced " : ibid. pp. 318-9. - See supra pp. 754-5. * See supra pp. 245-6. ^ There is some analogy in this contention, and in the view thus Jurisdiction suggested of the power of the provincial legislatures, to the rule in ?/^ ^o""^ °f regard to the jurisdiction of Courts in England in respect to grants of '^° '^''^• probate and administration. "The fiction," says Mr. Dicey, "em- bodied in the often misleading maxim niobilia secjiiuntur personam, under which the moveables of a deceased person are for some purposes regarded as situate in the country where he has his domicil at the time of his death, has no application to the local situation of personal property as regards the jurisdiction of the Court to make a grant " : Conflict 760 Legislative Power in Canada. ,1 Prop. 68 And this view of the matter gains support from the judgment of the Privy Council in Dobie v. The Temporalities Board, ^ a case already referred to at y some length,- and the judgment in which, as has ^1 already been stated, has suggested the leading Prop- ^' n, 'Property of Lavvs, pp. 322-3. "The Court has jurisdiclion to make a grant in and civil respect of the personal property of a deceased person, if any personal pmv\nce ' P'^^l'^'^^y "'^ ^^^ deceased either is locally situate in England at the ,; time of his death, or has become locally situate in England at any time J since his death, and not otherwise. The locality of a deceased's per- %}^ sonal property under this rule is not affected by his domicil at the time j of his death": ibid. p. 316. And in determining the local situation of debts or choses in action for the purposes of No. 13 of section 92 of the British North America Act, the cases on the subject of where the Courts of probate have jurisdiction may prove of assistance. Cf. the passage cited from Dicey, supra p. 759, n. i ; and with what he there says, cf. his statement at p. 321 of the same work, that " a share in a partnership business is to be held situate, not where the surviving partners reside but where the business is carried on "; as to which see, also, per Burton, No. 13. J. A., in Nickle v. Douglas, 37 U.C. R. at pp. 61 2, (1875) ; per Patter- ^"n a' Act ^^'^' J* '^■' ^" ^-'•' ^^''^- ^^ P- 7'- "'^"'^ ^^ ^^ ^^^ situs of debts and choses ' of action, see Dicey ibid, at pp. 319-20, 533. Mr Munro, in his Con- stitution of Canada, (Cambridge University Press, 1889), at p. 248, erroneously relers to Nickle v. Douglas, 35 U. C R. 126, 37 U.C.R. 51, as though it was a decision upon the point of provincial legisla- tive power under No. 13 of section 92, over a debt belonging to a person domiciled out of the province. As a fact what it decided was that a person domiciled in Kingston, in Ontario, should not be assessed upon stock owned by him in the Merchants Bank, which had its head office in Montreal, inasmuch as such stock was not property in the province within the meanirrg of the Ontario A-ssessment Act. However the words of Wilson, J., in that case (35 U.C.R. at p. 145) maybe noted in Mobilia connection with the subject under discussion : "A general maxim such sequuntiir as mobilia seqmiuiur personam may be a good general guide ; but it is personam, certain it cannot be depended upon to its full extent when a statute says that personal property owned out of this province shall not be taxed." He also says : " The fact that it," {sc, the stock in question)," may be transferred at a branch office of the company if the directors so appoint, is a provision made for the convenience of th" shareholders, and does not change the locality of the stock itself." The principle of Nickle V. Dougla.> was followed in The Corporation of the City ol Brantford v. The Ontario Investment Company Co., 15 O. A. R. 605, (1888). ^ 7 App. Cas. 136, I Cart. 351, (1882). - Supra |".p. 3G5 S, q. 7'. In their recc;nt ju Igmeut in respect to the Liquor Prohibition Appeal, 1S05, [1896] A. C. at pp. 366-7, the Privy Council refer to the Dobie case and say : — " In that case the legisla- lature of Quebec had repealed a statute continued in force after the Union by section 129," {sc. of the British North America Act), "which had this peculiarity that its provisions applied both to Quebec and to Ontario, and were incapable of being severed so as to make them applicable to one of these provinces only. Their lordships held that ....it was beyond the authority of the legislature of Quebec to repeal statutory enactments which affected both Quebec and Ontario.' Provincial Powers. 761 position. There the validity of a Quebec Act, 38 Vict. Prop. 68 c. 64, was in question, which purported to alter and amend an Act of the old province of Canada, 22 Vict., c. 66, incorporating a Board for the manage- ment of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland ; and after making the remarks noted in the Dobiez'. The r iirr r i-iii- Temporali- nrst halt 01 p. 307 supra, q. v., their lordships sa}' : ties Board. " The Quebec Act of 1875 does not, as has already been pointed out, deal directly with property or contracts affecting property, but with the civil rights of a corporation, and of individuals, present or future, for whose benefit the corporation was created and exists. If these rights and interests were capable of division according to their local position in Ontario and Quebec respectively, the legislature of each province would have power to deal with them so far as situate within the limits of its authoritv.^ . . . The corporation and the corporate trust, the mat- Meaning of ters to which its," (sc. the Quebec Act's in ques- andcivii .- ^ ,, • ■ , , . , ■ ,...,, rights in the tion), provisions relate, are in reality not divisible /roOT«ce.' according to the limits of provincial authority. . The legislation of Quebec must necessarily affect the rights and status of the corporation as previously exist- ing in the province of Ontario, as well as the rights and interests of individual corporators in that pro- vince. In addition to that, the fund administered by the corporate Board, under the Act of 1858, is held in perpetuity for the benefit of the ministers and mem- bers of a Church having its local situation in both provinces, and the proportion of the fund and its rev- enues falling to either province is uncertain and fluc- tuating, so that it would be impossible for the legisla- 1 This seems to dispose of the sweeping assertion of Ramsay, J., in the Court below (3 L. N. at p. 251, i Cart, at pp. 383-4), that a provincial Act which disposes of the property of a corporation created by a federal law is unconstitutional. See, however, infra pp. 762-5. 762 Legislative Power in Canada. Prop. 68 ture of Quebec to appropriate a definite share of the corporate funds to their own province without trench- ing on the rights of the corporation in Ontario. These observations regarding Class 13 apply with equal force to the argument of the respondents No. 13, founded on Classes 7 and 11. Even assuming that b.n.a.'aci. the Temporalities Fund might be correctly described as a ' charity ' or as an ' eleemosynary institution,' it is not in any sense established, maintained or managed in or for the province of Quebec ; and if the Board incorporated by the Act of 1858, could be held to be a * company ' within the meaning of Class II, its objects are certainly not provincial."^ Assuming, then, that the maxim mobilia personam seqiLunUir has no application to this matter of legis- lative power, it is submitted, also, that if a person domiciled in Ontario owns property in Quebec, 'Property ttot Only Is his property, though it may be per- rights inthesonal aud moveable, to be deemed to be in Quebec province.' .... . rx- r • it- withm the meanmg or ao. 13 01 section 92, but his right to that property is also a ' civil right ' in Quebec within the meaning of that clause. But it must be admitted that if this be so, certain words of the Privy Council in Dobie i>. The Temporalities Board, - are puzzling. After referring to the contention raised that the legislature of Quebec had power 1 The result of this decision was the passage in 1S82 of a Dominion Act, 45 Vict. c. 124, to amend the Act of the province of Canada, 22 Vict. c. 66. See also 45 Vict. c. 123, and 125, and Bourinot's Parliamentary Procedure, 1st ed., p. 90. In the Court below in this case, 3 L. N. at p. 253, i Cart, at p. 385, McCord, J., says that the corporation in question, created by 22 Vict. c. 66, "being created for two provinces, and applicable to them both, it can only be altered by a parliament having power to legislate for these two pro- vinces .... The corporation is not a mere accessory of the property which it has to administer, and though the provincial legislature may control ' the property ' within its limits, and even the 'rights' of the corporation in connection with that property, yet it cannot alter the corporation itself." -7 App. Cas. at p. 151, i Cart, at p. 370, {1882). Provincial Powers. ' 763 to pass the Act there called in question, because the Prop. 68 domicil or principal office of the Temporalities Board was in Montreal, and its funds .were held and invested within the province of Quebec, they say : ^' The domicil of the corporation is merely forensic, and cannot alter its statutory constitution as a Board in and for the province of Upper and Lower Canada. Neither can the accident of its funds being invested Property of _^ . , , . , - , non-resident m Quebec give the legislature 01 that province au- owner, thority to change the constitution of a corporation with which it would otherwise have no right to inter- fere. When funds belonging to a corporation in Ontario are so situated or invested in the province of Quebec, the legislature of Quebec may impose •direct taxes upon them for provincial purposes, as authorized by sub-section 2 of section 92, or may impose conditions upon the transfer or realization of such funds ; but that the Quebec legislature shall have power also to confiscate these funds, or any part of them, for provincial purposes, is a proposi- tion for which no warrant is to be found in the Act of 1867." Now it certainly seems clear that either this shows No. 13, the view above taken to be incorrect, and that where B.N.A.'Act. the owner of property in one provmce is a resident of another province, the former province cannot legislate upon the property under No. 13 of section 92 of the British North America Act ; or that there is a distinction between the case of an individual and his property, and the case of a corporation belonging to one province and owning property in another ; or that the power over property and civil rights in the province would not authorize confisca- tion for provincial purposes, which one may venture to say with great confidence is not intended^; or, ^See Proposition 17 and the notes thereto. 764 Legislative Power in Canada. Prop. 68 lastl}', that the words must be read as having refer- ence to such legislation as was then before the Board, where, however, the Quebec legislature did Dobier'. The much morc than merely confiscate, — or rather Temporali- , . . ties Board, divert, — the funds m Quebec of the corporation there in question, since it assumed as their lordships point out^ to interfere directly with the constitution and privileges of the corporation, — to destroy the old corporation and create a new one, — although it ?jj| had been incorporated by an Act of the old province of Canada, and had its corporate existence and corporate rights in the province of Ontario as well as in the province of Quebec.- In the humble opinion of the writer the last e.xplanation of the Powers over passagc is the correct one, and as far as constitu- non-resident tlonal powcr goes, a provincial legislature could under No. 13 of section 92, confiscate any property, whether of a corporation or an individual, situate within the limits of the province, excepting indeed the public property of the Dominion, which by No. I of section 91 is placed under the exclusive juris- diction of the Dominion parliament,^ or property which belongs to a Dominion corporation with a Dominion object, and the control of which is No. 13, essential to prevent such Dominion object being sect. Q2 • * B.N.A.' Act. defeated, for example, the track of a Dommion railway. The case of an individual has already been dealt with, and it is submitted there is no distinc- tion to be drawn so far as the mere ownership of property is concerned, in the case of a corporation, ^ 7 App. Cas. at p. 149, i Cart, at p. 367. - See the words quoted from the judgment supra at p. 314. 3 See Proposition 54, and pp. 590-6. *See Proposition 37 and the notes thereto, and supra pp. 594-6, 622-3, 625-6. Provincial Powers. 765 for the property of a corporation might be con- prop. 68 fiscated without necessarily affecting its constitution or status as a corporation.^ In Cowan v. Wright,- Blake, V.C., held intra vires the Ontario Act 38 Vict. c. 75, which was passed for a like general purpose as the Quebec Act in ques- tion in the Dobie case, namely to effectuate the union of the four different Presbyterian Churches in Canada.^ Section i of the Act provided : " As soon as the union takes place, all property, real or Provincial . . r ^->> • 1 -'^-' making personal, withm the provmce or Ontario now be- property ot 1 • 111- r 1 r different longmg to or held in trust tor or to the use 01 anycmgrega- ° ° . . . . . -^ tionsthat of congregation in connection or communion with any the United ^ ° -^ Church. of the said Churches, shall thenceforth be held, used and administered for the benefit of the same congregation in connection or communion with the united body under the name of The Presbyterian Church in Canada " ; and treating the Act merely as one dealing with the property in Ontario of the various bodies " and the civil rights pertaining thereto," Blake, V.C., says*: "Four bodies of Christians in the Dominion desire to unite ; they enter into an agreement to that effect ; some of them possess property in the province of Ontario ; they express to the legislative body of the province the desire for union, and ask that the property belonging to them respectively in that province, may be held and administered for the benefit of the ^ See also the words of McCord, J. sttpra p. 762, n i. 2 23Gr. 416, (1876). 'However, no such question arose in Cowan z^. Wright, as arose in the subsequent case of Dobie v. the Temporalities Board, [supra pp. 366-8), of legislative power to amend a statutory charter of the old province of Canada. What was affected in Cowan v. Wright, was the beneficial ownership by certain congregations in Ontario of certain property in Ontario, * 23 Gr. at p. 625. None of the four bodies referred to were wholly domiciled in Ontario. 766 Legislative Power in Canada. Prop. 68 united body ; the legislature had the right to take from one body in Ontario the property belonging to it situate in that province, and to give it to another, and having that power it surely could say to those asking for such legislation, let the property at present belonging to these distinct Churches be in the future held b}- that which will then represent them, — a united body in place of divided Churches." At the same time the learned judge of course does not at all dissent from the contention that so far as the Act in question dealt, or professed to deal with Act valid as property outside Ontario, it was ultra vires; but he in province, says as to this, (at p. 626): "If the legislature of invalid as to . property Ontario has the power to pass the property in this province of the four bodies to the united body, and it passes an Act sufficient for that purpose, I do not think it is invalidated because it may include in such properties a piece of land situate without its jurisdiction, and with which it cannot effectually deal," However, the properties actually in question in Cowan 1'. Wright belonged, as the report shews, to particular congregations in Ontario, not to the Church bodies as corporate wholes, so that the case is not any authority on the subject of legislative power over property in one province of corporations belonging to another province. Returning to the general question of the true import of the words ' property and civil rights in the province,' in No. 13 of section 92, two cases remain to be referred to. The first is re Windsor and Annapolis R. W. Co.^ where the majority of the Court held that the property and civil rights of a railway, which though authorized to extend beyond the province, and connect with lands without the 1 4 R. & G. at pp. 322-3, 3 Cart, at p. 399, (1883). Provincial Powers. 767 province, yet had as a matter of fact not done so, Prop. 68 but operated wholly within the province, were within the jurisdiction of the provincial legislature, no declaration having been made under No. 10 of section 92 of the British North America Act that the railway was a work for the general advantage of Canada^ and this though all or nearly all the share- Meaning of holders and creditors were outside the province. and°ovn^ And the second case is Clarkson v. The Ontario province. Bank,'- where, referring to the Ontario Act respecting assignments for the benefit of creditors, which he held, erroneously as the Privy Council subsequently decided,-' to be ultra vires as relating to bankruptcy and insolvency, Osier, J., said : " This Act is a public Act of a general character. It purports to deal with the estates of all insolvent debtors in the province who make an assignment, in other words, who voluntarily place their estates in liquidation, and prescribes to whom and in what manner they shall make such assignment. It directly affects the Provincial . . . Act affecting rights of all their creditors whether in this or the foreign " ^ creditors. other provmces or elsewhere. So far, therefore, as it controls the rights of extra-provincial creditors, it is not confined to dealing with property and civil rights in the province, although that, as I held in Jones V. The Canada Central R, W. Co.,^ may not be an objection in the case of creditors under an Act of a purely private or local character." But, it is submitted, the Act referred to only controls the ^ As to such declarations, see supra p. 603, n. 2. -15 O. A. R. at p. 190, 4 Cart, at p. 527, a case decided with those of Edgar v. The Central Bank of Canada, Kennedy z*. Freeman, and Hunter v. Drummond, all raising the same constitutional question. * Attorney-General of Ontario v. Attorney-General of Canada, (1894) A. C. 189. ^46 U. C. R. 250, I Cart. 777, (18S1). As to this case see supra pp. 461-2. 768 Legislative Power in Canada. Prop. 68 rights of extra-provincial creditors so far as such creditors seek payment of their debts against the property of an insolvent person within the province ; and it seems quite consistent with principle that so far as outside creditors seek their remedy within the province, they are subject to the law^ of the pro- vince.^ , Provincial autonomy. In conclusion, reference may be made to the words of Dorion, C. J., in Bank of Toronto v. Lambe- : " Every provision of the British North America Act shews that the object of the promoters of the mea- sure was to place each province in a state of perfect independence as regards each other, to establish the utmost freedom of intercourse and commercial relations between them, to exclude from the legisla- Privy 1 cf. stipra pp. 328-9. The Privy Council in their judgment just iudement referred to, {supra p. 767), although the constitutional validity of the in Ontario provision whereby executions not completely satisfied by payment were Assignrnents postponed to an assignment for creditors under the Act was alone called forCreditors' \^ question, yet deal with the Act as whole, as they were urged to do upon the argument, sufficiently to show very clearly that it must be considered intra vires throughout. They do not discuss the point that the effect of it extends to extra-provincial creditors, but with reference to the above provision they say, [1894] A. C. at p. 19S: " Now there can be no doubt that the effect to be given to judgments, and executions, and the manner and extent to which they may be made available for the recovery of debts, are/r/w,? facie within the legislative powers of the provincial parliament. Executions are a part of the machinery by which debts are recovered, and are subject to regulation by that parliament." The Minister of Justice objected, as might be expected, to a provincial Act authorizing the sale, by the Attorney-General as administrator, of real estate situate outside the provinceof intestates dying without known relations in the province: Hodgins' Provincial Legislation, 2nd ed., pp. 151, 156-7. A case under No. 13 of section 92 of the Biitish North America Act which has not been noticed before in this work, and maybe mentioned here, is Gower jv. Joyner, 32 C.L.J. 492,(1896), 17 C.L.T. 298, where the Supreme Court of the North-West Territories decided that an ordinance enacting that for ill-usage, non-payment of wages, or improper dismissal of a servant by his master, a justice of the peace might order such master to pay the servant one month's wages in addition to arrears and costs, and in default imprisonment for a month, was intra vires of the Legislative Assembly under this clause and No. 14, the administration of justice, Rouleau, J., dissenting. 2 M. L. R. I Q. B. at p. 146, 4 Cart, at pp. 42-3, (1885), sub nom. The North British and Mercantile Fire and Life Insurance Co. v. Lambe. Provincial Powers. 769 tive authority of the provinces all rejjulations as to Prop. 68. trade and commerce, customs and excise, navigation and shipping, banks, bankruptcy and insolvency, — in fact every subject which might give occasion to an interference by one province directly or indirectly which would affect the interests of the other pro- Provincial '■ tax on vinces." However, the decision of the Privy Coan- f-^'P°f?tiors ■^ belonging to cil in the latter case^ shews him to be in error in =^"d whose stock IS held the conclusion he proceeds to draw, that the Quebec '"_.°^^^^''^^ Act in question in that case, taxing monetary mstitu- tions incorporated and domiciled in other provnices, and whose stock was held by people residing out of Quebec, was ultra vires ; and it also shews that he went too far in saying in The Attorne}-General of Quebec v. The Attorney-General of the Dominion- that : " the provincial legislatures exercise their au- thority over matters affecting the inhabitants of their respective provinces only.^ ^12 App. Cas. 575, 4 Cart. 7, (18S7). - 2 Q. L. R. at p. 237, 3 Cart, at p. 101. 3 In Bank of Toronto v. Lambe, J2 App. Cas. at pp. 584-5, 4 what is Cart, at pp. 19-20, the Privy Council say: "The next question is taxation whether the la.x is taxation wiihin the province. It is urged that the 'within the bank is a Toronto corporation, having iis doniicil there, and having its P^o^'ince . capital placed there ; that the tax is on the capital of the bank ; that it must therefore fall on a person or persons, or on a property, not within Quebec. The answer to this argument is that No. 2 of section 92 of tiie British North America Act, does not require that the persons to be taxed by (^)ueliec are to be domiciled or even resident in Quebec. Any persons found within the province may be legally taxed there if taxed directly. I his Imnk," (sc. the Bank of Toronto), " is found to be carry- ing on business there, and on that ground alone it is taxed. There is no attempt to tax the capital of the bank, any more than its profits. The bank itself is directly ordered to pay a .sum of money." And so in the Court below, Tessier, J., had said: "There are some shareholders residing out of the province in England, in the United States. That No. 2, matters nothing. There is only one moral and legal being in which ??'l^; \^'Act all the shareholders are united, no matter where they reside. For example, suppose the Federal parliament had imposed the same tax, which is here in question, on the banks, would these institutions be able to avoid paying these taxes by alleging that part of their shareholders live in England or elsewhere, and that part of their capital is employed in one of their offices established in England or in the United States? Evidently this objection would be rejected. Why should it not be 770 Legislative Power in Canada. Prop, 68. What is taxation ' within the province ' ? Taxing income derived from extra- provincial sources. when it is a question as to the same tax imposed by the legislature of Quebec? : " M. L. R. i Q. B. at p. i66, 4 Cart, at pp. 59 60. Cf. per Baby, J., S. C, M. L. R. i Q. B. at p. 196, 4 Cart, at p. 87-8 ; per Ramsay, T., S.C, M. L. R. i Q, B. at p. 179, 4 Cart, at pp. 71-2. Cross, J. ol)serves, (S.C, M. L. R. i Q. B. at p. 158, 4 Cart, at p. S3): -" The principle of Confederation necessarily implied that one provmce would not interfere with the taxable subjects or property of another province ; hence the qualifying words 'within the province' in sub-section 2 of section 92 include this limitation, v\hich would have been implied from the circumstances, had even this express qualification been omitted " ; but he erroneously held the tax in question to be on the paid up capital of the bank, '• whose situs is without the province," whereas, as we have seen the Privy Council hold it was not on the capital at all. Cf. also per Burton, J. A., in Nickle z'. Douglas, 37 O, A. R. at p. 62, (1S75). In respect to what may perhaps be called the converse case to that which came up in Bank of Toronto v. Lambe, namely that of taxing persons in a province in respect to income derived wholly or partially from without the province, Hagarty, C. J., in Leprohon ''. The City of Ottawa, 2 O. A. R. at p. 534, i Cart, at p. 605, (1878), with whom Patterson, J. A., would seem to agree, (S. C. 2 O. A. R. at p. 567, I Cart, at p. 643), intimates the view that 'direct taxation within the province ' in No. 2 of section 92 cannot be legitimately extended to authorize this. But just as Burton, ]. A. remarks in Nickle z). Douglas, 37 O. A. R. at p. 62, that it is " competent to the legislature having jurisdiction over the person to tax his personal property wherever situate," — so it is submitted, it is competent for it to tax his personal property whencesoever derived. And as to Leprohon V. The City of Ottawa, see supra pp. 671-6. APPENDICES I Appendices. 773 APPENDIX A. In the earlier pages of this book, which has had to be printed off in short sections as the notes to the various Propositions were completed, several references will be found to Appendix A. It was at that time in contemplation to treat separately in this Appendix the subject of leg- islative power in special reference to the trade in intoxicating liquors, which has given rise to so many questions in the Courts. As the work progressed, however, it was found more convenient to embody the whole of this matter in appropriate places in the text, and, under the circumstances, it will be sufficient to indicate the various passages where it is contained. As to provincial power under No. 9 of section 92 of the Legislative British North America Act, to legislate in relation to shop, power in 1 .. .• 111- respect to saloon, tavern, auctioneer and other licenses, see pages 27, the liquor n. I, and 723-6. trade. As to power to regulate and power to prohibit the sale, manufacture, or importation of intoxicating liquors, see pages 393-411, 653-7. As to the distinction between wholesale and retail dealing, see pages 726-30. [See also the General Index, siiti voc. ' Canada Temperance Act, 'Licenses,' 'Liquor Traffic and Legislation,' 'Prohibitory Legisla- tion,' and other appropriate headings, and an Article on Legislation and Liquor Dealers, in 32 C. L.J., 430.] 774 Legislative Power in Canada. APPENDIX B. Legislative Authority of Parlia- ment of Canada. Sections of the British North America Act, 1867, specially relating to the distribution of legislative powers. VI. — DISTRIBUTION OK LEGISLATIVE POWERS. Powe-tS of the Parliament. 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and Good Government of Canada, in relation tohment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings, other than such as are of the following Classes : a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province : b. Lines of Steam Ships between the Province and any British or Foreign Country : c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. Solemnization of Marriage in the Province. 13. Properly and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Con- stitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprison- ment tor enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of subjects enumerated in this Section. 16. Generally all matters of a merely local or private nature in the Province. 776 Legislative Power in Canada. Education. Legislation respecting Education. 93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions : — (i) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union : (2) All the Powers, Privileges, and Duties at the Union by Law con- ferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec : (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Sub- jects in relation to Education : (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execu- tion of the provisions of this Section is not made, or in case any Decision of the (Governor General in Council on any appeal under this Section is not duly executed by the proper Pro- vincial Authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section, and of any Decision of the Governor General in Council under this Section. l>ecislation for uniform- ity of laws in three Provinces. Concurrent powers of Legislation respecting Agriculture, etc. Uniformity of Lxws in Ontario, Nova Scotia, and New Brunswick. 94. Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that behalf the Power of the Parliament of Canada to make Laws in relation to anv matter comprised in any such Act shall, notwith- standing anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof. Agriculture and Immigration. 95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province ; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces ; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. TABLE OF CASES. A. Pages. Ackman v. Town of Moncton 340, 492, 666, 678 Adam, In re 323, 329 Aitcheson v. Mann 443 Allen V. Hanson 293, 298, 625, 62S, 631 Angers v. City of Montreal 555, 560 Angers v. Queen Insurance Co. See sub Attorney-General of Quebec v. Queen Insurance Co. Anglo-American Telegraph Co. v. The Diiect United States Co. See Addenda, p. xiii. , Apollo Candle Co. v. Powell 208, 224 Armstrong v. McCutchin 385, 448, 669 Ashbury v. Ellis 330, and Addenda Assignment for Creditors case. See sub Attorney-General of Ontario v. Attorney-General of Canada. Assignment and Preferences Act, In re 385 See S.C. in App. sub Attorney-General of Ontario v. At- torney-General of Canada (Assignment for Creditors case) Attorney-General v. Black 182 " " v. Goldsbrough 173, 194 " " w. Judah 79,182 Attorney-General ot British Columbia v. Attorney-General of Canada (Precious Metals case) 83, 591, 609, 610 Attorney-General of British Columbia v. City of Victoria • 247, 525, 682 Attorney-General of British Columbia v. Milne 693 Attorney-General of Canada v. Attorney-General of Ontario (Pardoning Power case). .39, 81, 100, ill, 113, 114, 116, 130-3, 180, 196, 208, 248, 272, 295, 3S0, 464, 711 Attorney-General of Canada v. Flint 515 " " " t'. P^oster 282,287,449 " " " V. Victoria 634 " " for the Dominion of Canada v. Attorney-Gen- eral for the Province of Ontario (Indian Claims case) 594,602,612, 616 Attorney-General of Ontario v. Attorney-General of Canada (As- signment for Creditors case) 63, 291, 349, 350, 352, 357, 380, 404, 412, 419, 426, 429, 431, 437, 505, 527. 535. S4S. 550,571,622.6489, 767 Attorney-General of Ontario v. Attorney-Cieneral lor the Domin- ion of Canada and the Distillers and Brewers Association of Ontario (Liquor Prohibition Appeal, 1895). .383, 393, 395, 398, 399, 401, 402, 405, 407, 411, 418, 426, 428, 430, 437, 479, 507, 527, 528, 530, 532, 535-7, 543, 547, 553, 554, 555, 556, 557, 559, 561, 573, 574, 580. 647, 650, 651, 652, 656, 681, 685, 686, 692, 707, 727, 729, 732, 736, 755, 757, 760 And see S.C. h^Xo^ stib Prohibitory Liquor Law-, /// le. Attorney-General of Ontario v. Mercer. . 53, 56, 68, 114, 313, 433, 447,478,545,609,610,611, 702 See, also, sub Mercer v. Attorney-General for Ontario. 778 Legislative Power in Canada. A — (Continued). PAGES. Attorney-General of Ontario v. Niagara Falls International Bridge Co . . 102 " " (^'■"^l''^'^ ^- Attorney-Cjeneral of Canada (Church zf. Blake) 6, 102. 106, 109, 110,342,492, 610 Attorney-General of Quebec v. Attorney-General of the Dominion 616 " " " z>. Queen Insurance Co. (Angers v. Queen Insurance Co.) .26, 29, 53, 186, 210, 262, 344, 361, • -373' 376, 388, 408, 417, 486, 492, 669, 713. 724, 732, 734, 736 Attorney-General of Quebec z'. Reed. .34, 106, 482, 714, 716, 730, 733. 735> 736, 737, 738, 740, 741 And see S.C. , befow suh Reed v. Mou?.seau. Aubry v. Genest 693 B. Bale des Chaleurs R. W. Co. v. Nantel . . 596, 597 Bank of Augusta v. Earle . . 637 Bank of Toronto v. Lnmbe. . 2, 10, 12, 20, 21, 25, 3^. 62, 95, 130, 185, 196, 253, 311, 312, 319, 339. 342. 355- 361, 386, 402, 432, 472, 480, 486, 490, 491, 492, 493, 554, 556, 561, 623, 625, 646, 650, 663, 665, 669, 671, 673, 675, 676, 677, 680, 710, 712, 716, 719, 720, 721, 731, 732, 733, 736, 737, 740, 768, 769, 770 Banks v. Orrell 263, 33 1 Barbeau v. The St. Cathaiines and Ningaia Central R.W. Co... 596 Barton v. Taylor 743 Bateman's Trust, In re 78, 81, 82 Baxter v. The Central Bank of Canada 502 Bayer v. Kaizer 587 Beard v. Steele 553, 560 Beausoleil v. Frigon 447 Becquet v. MacCarthy 332, 333 Belanger v. Caron 13, 260, 303, 348, 349, 522 Bell Telephone Co., In re 443, 682 Bell Telephone Co., In the matter of 465 Benard v. McKay 56a Bennett v. Pharmaceutical Association of the Province of Que- bec .■ 455, 560 Billington v. Provincial Insurance Co. 619 Blouin V. Corporation of the City (jf Quebec. .296, 353, 369, 398, 400, 532, 544 Bolland v. Dugas 660 Booth V. Mclntyre 5S4, 614 Boucher, In re 442 Bourgoin v. La Compagnie du Chemin du Fer de Montreal . . .300. 595. 597, 619 Bourgoin v. The Montreal, Ottawa and Occidental R.W. Co. 30^, 595. 597. 619 Brandon Bridge, Re 634 Brantford, Corporation of City of v. Ontario Inve.■^:ment Co.... 760 Brewers and Malsters Association of Ontario v. Attornev-General of Ontario 624, 679. 706, 715-6, 719, 722 6, 729 Brisbane Oyster Co. v. Emerson 327 Briton Medical Life Association, /vV 632 Brophy v. Attorney-General of Manitoba (Manitolm .School case) 250. 491, 649, 708 Brown v. Curate, etc., (^f Mfmtreal 27 Brown v. Reed 599 Table of Cases. 779 B — (Continued). Pagrs. Brown v. State of Maryland 6So Bruneau v. Mapsue 511 Buchanan v. Rucker 332 Burk j;. Tunstall 127. 3J>7 C. California Fig Syrup Company's Trade Mark, Jn re 255 Cameron v. Kyte in Campbell 7'. Hall 221 Canada Central R.W. Co. v. The Queen 614 Canada Southern R.W. Co. v. Jackson 596, an 4io, 4"ii, 414, 430, 432, 434, 447, 448, 453, 474, 478, 479, 4S0, 484, 488, 489, 490, 491, 497, 498, 499, 501, 502, 504, 527, 528, 533, 544, 548, 551. 553. 554. 555. 577. 618, 620, 623, 628, 631, 634, 645, 648, 649, 655, 669, 686, 701, 710, 752 City of Fredericton v. The Queen, See sub Fredericton, City of v. the Queen. Clark V. Union Fire Insurance Co. (No, 2), Re 631 Clarke v. Union Fire Insurance Co 93, 638 Clarkson v. Ontario Bank. . . .290, 349, 380, 385, 419, 427, 486, 573. 767 Clarkson v. Ryan 515 Clay, l7ire I 280 Clegg V. Grand Trunk Railway Co 596, 626 Clemens v. Bemer 315, 445 Cleveland, Municipality of 7,'. Municipality of Melbourne and Brompton Gore 283, 682 College de Medecins v. Bingham 721 780 Legislative Power in Canada. C — (Continued). Pages. Colonial Building and Investment Association v. Attorney-Cieneral of Quebec 253, 298, 374, 375, 504, 619, 620, 623, 637, 643 Compton, Township of v. Simoneau ■ 369, 521 Cooey V. Corporation of the County of Bronie. .54, 369, 402, 432, .....521, 649, 651, 692 Cooper V. Mclndoe . . ^ 620 Cote V. Chauveau 463 Cote z'. Watson 677 Cotte's case 66, 106, 452, 682, 711, 747, 750 And see sub Dansereau, Ex parte. County Courts of British Columbia, In 7e 386, 524, 525 Cowan V. Wright 299, 765 Crawford v. Dufifield 417 Credit Valley Railway Co. v. Great Western Railway Co. . . .399, 445 Crombie v. Jackson 41, 441, 442 Crothers and Rural Municipality of Louise, Li re 299 Crowe ''. McCurdy 458, 511, 525 CuvilliL-r V. Aylwin 183, 184 Cushing -^ Dupuy.. .181, 182, 426, 427, 430, 431, 453, 463, 648, 686 D. Danaher -'. Peters 3S0 Dansereau, Ex parte 64, 67, 69, 106, 319, 452, 655, 669, 670, ; 699,741.745.747 And see sub Cotte's case. De St. Auhyn v. Lafranc 402 Dear v. Western Assurance Co 619 Denton v. Daley 1 38 Deslauriers v. Larue 349 DeVeber, In re 436, 448 Dill V. Murphy 747 Dinner v. Humberstone 660 Di.xon, Ex parte 168 Dobbins v. The Commissioners of Erie County 676 Dobie V. The Temporalities Board. .206, 245, 280, 290, 297, 312, 313. 314. 317, 362, 366, 368, 371, 383. 491, 492. 594, 632, _•;••••_ 638, 646, 678, 685. 751. 752, 760 2, 765 Dominion License Acts, 1883-4, In re..^S, 28990, 354, 360, 362, 377, 383. 398, 403-6, 409, 427- 463, 474, 49^, 494, 498, 526, 527, 529, 543, 551, 552, 553, 554, 556, 581, 655, 706, ■■■ 711,728,729,730 Dominion Provident Benevolent and Endowment Associaiion, In re 127,388,457 Don V. Lippmann 333 Donaher, Ex parte 405, 408 Donegani v. Donegani 329 Dooley v. La Cour du Recorder 660 Dowz'. Black 26, 311, 479. 720, 722, 731, 736, 739 Doyle V. Bell 444, 450, 479 Doyle V. Falconer 742 5, 748 Dubuc z'. Vallee 349,441,754 Dulmage v. Douglas 482, 734, 737 Dumphy v. Kehoe 79, 616 Duncan, Ex parte 463, 465 Dupont V. La Cie de Moulin a Birdeau Chanfrene 55° I II I Table of Cases. 781 E. Pages. Edgar v. The Central Bank 261^ 268, 427, 430, 481, 767 Eliza Keith, The 642 Ellis, £x />a*:(e ■■■■■• ■ 415, 687 Esquimau and Nanaimo R. \V. Co. 7j. Bainbrid^e 611 European and North American R.W. Co. v. Thortas 391, 424 Evans v. Hudon 678 Exchange Bank of Canada v. The Queen 76, 85 Executive Power case. See Jz/f) Atlorney-Gencial of Canada z'. Attorney-General of Ontario (Pardoning Power case). Export Lumber Co. 7^. Lambe 581,703,711, 712 F. Fairbairn, £x parte 28 Farwell z'. The Queen 515, 572 Fenton v. Hampton 745 Fielding v. Thomas. .537, 575, 649, 699, 704, 743, 746, 748, 749, 755 Fillmore v. Colburn 666, 677 Fisher v. Lane 333 Flick V. Brisbin 443 Foley, Ex parte 402 Fong Yue Ting v. United States 250, 255 Forristal v. McDonald 15 1 5 Forsyth v. Bury 260, 635 Fortier v. Lambe , 679, 719, 720, 728 Eraser Institute v. Moie 426 Fredericton, City of, v. The Queen. . i, 11, 12, 18, 29, 36, 42, 48, 49, 208, 243, 245, 247, 261, 264, 266, 270, 271, 273, 276, 299, 305, 307. 308, 313. 336, 339, 342, 356, 361, 400. 402, 424, 428, 431, 436, 447, 457, 484, 489, 499, 500, 528, 533, 542, 543, 549, 550, 555, 587, 602, 607, 649, 668, 669, 682, 711 G. Ganong v. Bayley 69, 136, i6g, 205, 2 54 Gibson v. McI)onald 106, 262, 267, 308, 320, 386, 523 Gipps V. Malone 747 (jleich, In re. See Addenda, p. xiii. Goodhue, Re 189, 247, 2S1, 302, 315, 6S2, 757 (iordon v. Fuller 657 Gould V. Ryan 688 Gower v. Joyner 768 Grand Junction R. W. Co. v. Corporation of Peterborough .... 280 Grand Junction R. W. Co. v. County of Peterliorough, litre, 236, 349. 603, 605, en Grand Trunk R. W. Co., Credit Valley R. W. Co., and the Northern R. W. Co. , In re 321 (}rand Trunk R.W. Co. v. Hamilton Radial Electric K.W. Co, See Addenda, p. xv. Great Seal Case (Nova Scotia) 91, 114, 134, 208, 320 Griffith v. Rioux 527 Guay V. Blanchet 201, 349 782 Legislative Power in Canada. II. Pages. Halifax, City of v. Jones 625 " " v. Western A'isiiraiice Co 625, 6S2, 722, 726 Hamilton and North-WesK-rn R. W. Co., Re 125. 281 Hamilton Powder Co. v. Lainb^ 27, 28, 264, 268, 419, 628 Harris and Corporation of the Ciiy of Hamilton, Re 49, 54, 560 Harris v. Davies 224 Hart V. Corporation of The County of Missis quoi 369, 402, 521 Heneker v. Bank of Montreal. . . .669, 677) 7°') 'i'"' Addenda, p. xvi. Hibernian, The 642 Hill V. Bigge in Hdlmore v. Colbourne 677 Hodge V. The Queen, 8, 10, 29, 30, 33, 43, 51, 57, 61, 127, 128, 222, 224, 228, 245, 254, 261, 292, 297. 315, 340, 356, 358, 369, 382, 393. 394. 396, 397. 398, 399, 403, 404. 405. 406, ^10, 414, 447, 479, 4S4, 486, 543, 544, 548, 556, 559, 575-6, 648, 653, 654, 6S9, 693, 694, 695, 696, 698, 702-3 Holman v. Green 586, 599, 600 Holmes v. Temple 212 Howe Machine Co. v. Walker . 637 Hugh Glass, Inre 746 Hunter v. Druramond 767 Huntingdon, Village of 7>. Moir . . 402 Huson w. The Township of South Norwich, 348, 350, 351, 360, 369, 378, 382, 393, 400, 401, 479, 485, 527, 532, 556, 557, 579,703, 706 I. Indian Claims Case. See sub Attorney-General of the Dominion of Canada v, Attorney-General of the Province of Ontario International Bridge Co. v. Canadian Southern R. W. Co 695 Ira Gould, Ex parte 284 Iron Clay Brick Manufacturing Co., Re 458 J- JefTfery v. Boosey 321 Jesus, La Compagnie de v The Mail Printing Co 635 Johnson v. Harris 299 Johnson v. Poyntz 550 [onas V. Gilbert 28 Jonas V. Marshall 28 Jones V. The Canada Central R. W. Co 461, 758, 767 Junction R. W. Co. and the County of Peterborough, Re . . . .605, 626 K. Keefe v. McLennan 49, 299, 368, 380, 402, 456, 730 Keefer v. Todd 446, 542 Kelly 7^. SuHvan 15,285,343,472-3 Kennedy v. City of Toronto 606 Kennedy v. Freeman 7^7 Kennedy v. Purcell. See Addenda, p. xv. Kielley v. Carson 744 Killam, Lire 462, 464, 531, 688 King V. Gardner 463 King V. Inhabitants of Maulden 297 II Table of Cases. 783 K— (Continued). Packs. King V. Inhabitants of St. Nicholas 297 King V. Joe 304 Kinney v. Dudman 438 Kitchen v. Saville. See Addenda, p. xv. L. La Compagnie de Jesus v. 7 he Mail Printing Co 635 Lake \\'innipeg Transportation, Lumber and Trading Co., Ke.. 52, 563, 642 Lambe v. Canadian Bank of Commerce 490, 669 See, also, Bank of Toronto v. Lambe. Lambe v. Fortier 361 Lambe v. North British and Mercantile, etc., In.'^, C" 95, 665 And see, also. Bank of Toronto v. Lambe. Lamonde v. Lavergne 716, 717, 731, 732 Landers v. Woodsworth 68, 743, 745, 746, 747 Larsen v. Nelson and Fort Sheppard R. W. Cj 596, 597 Legislative Assembly of Victoria v. Glass 746 Lenoir f. Ritchie 87, 88, 104, 105, 106, 109, 136, 137, 176, 178, 180, 184, 191, 202, 204, 233, 238, 261, 302, 711 Leonard Watson's Case 323, 324, 325, 326, 332 Lepine v. Laurent 54, 402, 556, 728 Leprohon v. City of Ottawa 10, 11, 43, 190, 207, 253, 341, 342 357,386, 470, 544, 547, 563, 665, 666, 667, 671, 672, 673, 674 676, 677, 678, 679, 770. Leveille, Ex parte 22, 376, 456, 486, 555 Levesque v. New Brunswick R. W. Co 448 License Cases, The 378 License Commissioners of Frontenac v. The Commissioners of the County of Frontenac 539 License Commissioners of Prince Edward County v. County of Prince Edward 2S4, 539 Liquidators of the Maritime Bank of Canada v. The Receiver- General of New Brunswick .... 73, 84, 85. 89, 92, 93, 95, 101,103, 107, no, 115, 121, 137, 178,245,304,621,670, 702, 707 Liquor Prohibition Appeal, 1895. See suh Attorney-General lor Ontario v. Attorney-General for the Dominion of Canada and The Distillers and Brewers Association of Ontario. Lloyd , Ex partt 236 Local Option Act, In re 45, 46, 59, 353, 382, 398, 402, 407, 480, 484, 528, 730 Longueuil Navigation Co. v. The City of Montreal 562, 642, 660 Loranger v. Colonial Building and Investment Association 635 Lord Bishop of Natal, In re 132 Louis du Mile End, La Municipalite du Village v . La Cite de Montreal 660 Louis Marois, In re 181, 182, 183, 184, 325 Low V, Routledge 215, 325 Lundon and Whittaker Claims, hi re 594 L'Union St. Jacques de Montreal v. Belisle. .206, 237, 271, 280, 304, 350, 450, 479. 502, 529, 547, 548, 549, 568, 569, 603, 662, 683, 685, 686 Lynch v. Canada North West Land Co.. 247, 271, 297, 370, 389, 390. 421, 422, 460, 480, 506, 550, 692 784 Legislative Power in Canada. M. Pages. Mallette v. City of Montreal 555, 560 Manitoba School Case. See si4b " Brophy z'. The Attorney-General of Manitoba," 2iX\d sith "Certain Manitoba Statutes Relating to Edu- cation," In re. Mansfield, Ex parte 402 Marchant v. Marchant 291 Maritime Bank v. The Queen 72, 74, 76, S2 Maritime Bank of Canada v. Receive) -General of New Brunswick. See sub Liquidators of the Maritime Bank of Canada v. Re- ceiver-General of New Brunswick. Martin v. Hunter's Lessee 469 Matthieu v. Wentworth 54° Mercer z'. Attorney-General for Ontario.. 1,4, 11, 12, 51, 53, 68, 94, 99. loi, 106, 114, 178, 192, 235, 253, 339, 583, 707 Merchants Bank ot Halifa.x v. Gillespie 209, 629, 631, 632 Meriwether v. Garrett 692 Metherell 7 . Medical Council of British Columbia 221 Molson V. Chapleau 13) 95 Molson V. Lambe 27, 107, 375, 406, 407, 691, 719, 720, 728 Monk V. Ouimet 79, 102, 182 Monkhouse v. Grand Trunk R.W. Co 596 Montreal, City of v. Standard Lit;ht and Power Co 664 " z'. Walker ? 28 Montreal, La Cite de v. Riendeau 559 Morden v. South Dufferin 297, 3S9 Mowat V. Casgrain 594, and Addenda Mowat V. McFee 5^8 Munn V. McCannell .... 299, 370 Murdoch v. Windsor and Annapolis R.W. Co 380 Murphy, Ex parte, Regina v. Call 263, 322, 327, 331 Murray n. Hoboken Co 250 Musgrave v. Pulido 111,114 Musgrove v. Toy • ■ 1 1 Mac and Mc. Macdougall v. Union Navigation Co . • 641 Macleod v. Attorney General of New Souih Wale.s, 266, 322, 335, 336 McArthur v. Northern and Pacific junction R. W. Co 56, 447 McCaffrey v Ball '. 260 McCaffrey v. Hall 4I4, 641 McCarthy v. Brener. See Addenda, p. xiv. McClanaghan v. St. Ann's IMutual Building Society 449 McCulloch V. State ol Maryland 32, 262, 470, 672, 673, 674 McDiarniid v. Hughes 621 McDonald v. McGuish - 442 McDougall V. Campbell 4^9 McDowell V. Town of Palmerston 92, 245, 283 McGuire v. Birkett, Reg. ex rel 140 McKilligan v. Machar 293 McLaren z^, Caldwell 321, 5^5 McLeod V. McQuirk 439 McLeod V. Noble. See Addenda, p. xv. Table of Cases. 785 Mac and Mc— (Continued). Pages. McLeod V. Wright 439 McMillan v. Soiuhwest Boom Co 641 McQueen v. The (^ueen 614 N. Nash 7'. Newton 599, 600 Natal, Lord Bishop of, lit re 132 National Bank v. Commonwealth 674 New Brunswick School case. See Addenda, pp. 250-1. Niagara Election Case 128, 349, 428, 512, 664 Nickle V. Douglas 760, 770 Noel V. Corporation of County of Richmond 370 Normand v. St. Lawrence Navisration Co 607 North British and Mercantile Insurance Co. v. Lambe..io, 12, 20, 25, 62, 130, 253, 319, 342, 472, 490, 491, 492, 493, 650 And see sul> Bank of Toronto 7'. Lambe. North Perth, Re, Hessin v. Lloyd 519 Norton v. Crick 745, 747 Nova Scotia Great Seal Case. See sub Great Seal Case. O. O'Danaher v. Peters 730 O'Neil V. Tupper 463, 468 Ontario Lands Case. See sub St. Catharines Milling and Lumber Co. v. The Queen. O'Regan v. Peters .... 730 Oriental Bank Corporation Case 81 Osborn v. Bank of the United States 674, 675 Owen, Ex parte .... 10, 650, 667, 668, 672, 673, 678 Owens 7J. Cushing 341, 349 P. Paige V. Griffith 38 Papin, Ex parte 38 Pardoning Power case. See sub Attorney-General of Canada v. Attorney-General of Ontario. Parent v. Trudel 299, 412 Peek V. Shields 338, 380, 427, 439 Penley v. The Beacon Assurance Co 219 Perkins, Ex parte 514 Phair v. Venning 449, 584 Phillips V. Eyre 38, 247, 298, 333, 749 Picton, The 572 Piel-ke-ark-an v. Reginam 91, 513, 525 Pigeon V. Mainville 354, 534 Pigeon V. Recorders Court and City of Montreal 361, 5159 Pillow V. City of Montreal 53, 412, 422, 660 Pillow, Ex parte 413 Pineo V. Gavaza 442 Poitras v. Corporation of Quebec 30 Poole V. City of Victoria 491, 560 Pope T). Griffiths 463 , 466 Portage Extension of the Red River Valley R. W., In Re 4, 141, 342, 399, 445, 604, 605 786 Legislative Power in Canada. P — (Continued). Pages. Porter, Ex parte 514 Poulin V. Corporation of (Quebec 472, 557 Poulin V. Township of South Norwich 557 Powell V. Apollo Candle Co 245 Precious Metals Case. See sub Attorney-General cif British C.)lumbia v. Attorney- General of Canada. Prohibitory T^iquor Laws, In ;y. . . .243, 307, 309, 315, 316, 344, 348, 351. 355. 363. 369, 377, 378, 381, 382, 383. 394r 400, 402, 405, 407, 412, 431, 454, 484, 500, 522. 531, 532, 549, _ 552- 579. 615, 616, 650, 6S1, 711, 727, 729 For S. C. in App., see sitb Attorney-General (or Ontario v. Attorney-General for the Dominion of Canada and The Dis- tillers and Brewers Association of Ontario Provincial Fisheries, In re 562, 563, 582, 5S5, 5S6, 588, 589, 593, 600, 607, 615-6, 640, 650 Provincial Government of the-TVovince of New Brunswick v. The Liquidators of the Maritime Bank of Canada 73, 84, 86, 103 See, also, sub Liquidators of the Maritime Bank v. The Re- ceiver-General of New Brunswick. (). 313, 640, 650, 668 Queddy River Driving Boom Co. i'. Davidson. Queen v. See, also, Regina v. ^ " V. Bank of Nova Scotia. . .72, 76, 78, 82, 84, 85, 86, 106, 182 " 5^. Batchelor 323 " z'. Burah 698-9 " V. Chandler 207, 550, 649 " V. City of Predericton. See sub Queen v. Mayor, etc., of the City of Fredericton, and Fredericton, City of v. The Queen. V. DeCoste 538 " V. Delepine. See Addenda, p. xiii. " V. Edulgee Byranjee 184 " V. Farwell 609, 611 V. Fisher 607 " z/. Hodge 98 " 7'. Howe 491,556,559.682 " V. MacPherson 745 V. McDonald 549 " 7\ McDougall 361, 400, 405, 726, 727, 728, 729 " V. McKenzie 377, 400 " V. Mayor, etc., of the City of Fredericton.. 18, 49, 261, 299, 336, 339. 361, 424, 447. 457. 542, 543, 550, 555, 587 And see, also, Fredericton, City ol v. The Queen. " V. Moss 602, 607 " V. Mount 324 " z;. I'attee 123 " V. Keno 136, 139 " V. Robertson ... .24, 52. 53, 247, 279, 447, 448, 452, 474. 480, 490, 499, 500, 548, 549, 561, 584, 586, 588, 589, 590, 593. 615, 616, 650, 653, 654 " V. Robinson 297 V. Ronan 313, 400, 419, 422, 423, 463, 549 " V. S'. John Gas Light Co 599. 607 " V Wolfe 442 i Table of Cases. rby Q — (Continued). Pages. Queen's Counsel, //i re 754, also Addenda, pp. 87-8 Quirt z'. The Queen 386,427,431.568,569,571,572,573. 650 R. Railroad Co. v. Paniston 675 Ray v. McMackin 326, 333 Raynor v. Archibald 408 Redfield v. Corporation of Wickhani 596, 597 Reed V. Attorney-General of (Quebec. See sud Reed t: .Mousseau. Reed v. Mousseau 370, 380, 711, 713, 736 And see S.C. in App. sit/j Attorney-tiencJal of (,)uebec z\ Reed. Regina Z'. See, also, Queen v. V. Amer 1 06 V. Becker 464 V. Bennett 136, 139, 191, 206 V- Biitle 464, 467, 539 V. Board man. .35, 36, 466, 484 V. Boscowitz 561 V. Boucher 1 76 V. Bowell 672, 676 V. Brierley 209, 247, 325, 328, 329, 334, 336, 338, 370 Reg. ex rel. Brown v. Robert Simpson Co. See Addenda, p. xv. Regina v. Burah 17. 224, 496 -o. Bush 137, 139, 176, 177, 206, 237, 240 " V. Call, Ex parte Murphy 203, 322, 327, 331 " V. College of Physicians and Surgeons of Ontario 218 " V. Coote 123, 12S, 166, 167, 168 " z'. Corporation of Victoria 560 " ji. County of Wellington 382,429,568,571, 623 ^'- Kli 370,442, 538 V. Fleming 414, 755 V. Frawley 14, 29, 31, 43, 53, 377, 463, 464 ^'- Gdes 334 " V. Gold Commissioners of Victoria District 254 7A Halliday 361,405,679,727,729 z;. Harper 37,401,463,534,686 " V Hart 464 z;. Hodge 10.247,452,470,544 See, also, sub Hodge v. The Queen. Regina v. Holland 36 " V. Horner 123, 127, 166, 167, 168 " V. Howard 334, 402 " V. John Kerr 280 " V. Justices of the Peace of King's County 402, 71 1 7'. Keefe 44, 7S5 -"• Keyn 334 " V. Lake 369, 442, 53S z). Lawrence 36, 4°, 111), 37^, 378, 460, 549 " V. Levinger 465 " V. Matheson 466 " £x rel. McGuire v. Birkett 140 " V. McLeod 338 " zi. McMillan 299 V. Mee Wah , . .722, 726, 738 7SS Legislative Powlr in Canada. R— (Continued). Pages. Retina v. .Mohr ; 297, 456, 493, 549, 635 v. O'Rourke. . 465, 694 zi. Pearson 263 V. Plowman 336, 33^ 7J. Prevost 465. 694 7.: Prillie 3^9 V. Roddy 379, 467 " z'. Ro we 464 7'. Schram 256 7,'. Shaw 50 v. St. Catharines Milling and Lumber Co 93, 97, 129, 707 See, also, stid St. Catharines Milling and Lumber Co., 7: The Queen. 7/. Stone 354,414,419,420 v. Taylor 7, 23, 27, 28, 44, 188, 210, 213, 215, 216, 321, 352, 402, 408, 419, 471, 480, 482, 484, 485, 493, 654, 664, 724, 727, 741 7: Toland ..176, 339. 442, 465 7A Torrance 370,388 V. Wason..37, 50, 51, 261, 264. 354, 379, 380, 383, 413, 414, 416, 4i9> 420, 463, 549, 551, 556 " V. Wing Chong. . .254, 256, and Addenda, 461, 473, 528, 711 Renaud, £x parte 22, 209, 299, 693 Rhodes z>. Fairweather. See Addenda, pp. xii., xvi. Richardson v. Ranson 139 Richer v. Gervais. See Addenda, p. xiv. Riel V. The Queen 224, 246 Ringfret v. Pope 659 Robertson v. Steadman 52, 266, 447, 588, 649 Ross -'. Canada Agricultural Ins. Co 260, 521, 571 Ross V. Guilbault 260, 571 Ross V. Torrance 37°, 388 Routledge v. Low 215, 325 Royal, the 212 Royal Canadian Insurance Co. v. Montreal Warehousing Co. . 550 Ruddell 7'. Ceorgeson 615 Russell 7'. The Queen. .27, 37, 271, 311, 312, 315, 316, 351, 359 360, 363, 374, 377. 383. 384. 393, 395, 396, 397. 398, 399, 400, 401, 404, 406, 407, 416, 427, 435, 466, 478, 479, 483. 484, 487, 495, 497, 498, 500, 532. 536, 539, 541. 542, 543. S56, 565. 578, 579, 655, 660, 702, 710, 725 Pyan v. Devlin 349, 428, 513 S. Samuel Cambridge, In re 121 Sandall 7: Wilson 37° Sarazin 7'. La Banque de Saint Hyacinlhe 623 Sauer v. Walker 479, 556, 559, 560 Sauve V. Corporation of Argenteuil. See Addenda, p. xi\'. Schoolbred v. Clarke 627, 631 Schultz 7). City of W' innipeg 389. 460, 506 Severn 7/. The Queen 27,46,47,54, 187,239,261,265,319, 35;, 3^6, 361, 362, 376, 395, 408, 485, 669, 680, 705, 7c6, w"...: 711, 724. 726, 727. 730, 731 Table of Cases. 789 S— (Continued). Pages Shrewsbury, Earl of v. Scott 236 Simmons and Dalton, Ke • • • 5 '9 Sirdal Gurdyal Singii v. Rajah of Faridkote 332, 333 Slavin v. Village of Orillia. . .44, 46, 54, 342, 378, 471, 705, 706, 727 Smiles v. Belford 213, 231, 758 Smith, Ex parte 3^9 Smith V. Goldie 443 Smith V. Merchants Bank 447> 545> 553 Sproule V. Reginam 465' 694 Squier, Jure 128, 368 Stairs v. Allan. See Addenda, p. xiv. St, Catharines Milling and Lumber Co. v. The Queen. .5, 10, 16, 33, 42, 93. 97. 129, 237, 243. 3'5. 583. 59i. 593. 594. 599, 607, 678, 703, 731 St. Guillaume, Corporation of v. Corporation of Drummond. 156, 165 St. Louis du Mile End, Municipalite du Village v. La Cite de Montreal 660 Steadman ?'. Robertson 52, 434, 589, 649 Stephens v. McAtthur 26S, 291 Stevenson v. The Queen 747 Suite V. Corporation of Three Rivers 370, 377, 543, 650 T. Tai Sing v. Maguire , 216, 254, 256, 345, 423, 669, 680 Tarte v. Beique 3^7. 660, 693 Tennantz'. Union Bank of Canada. .427, 430, 431, 503, 505, 527, 589, 618, 622, 648 Theberge v. Laudry 93, 98, 301 Thomas v. Haliburton 28, 40, 51, 176, 373, 390, 748, 750 And see S.C. in ^Vpp., sub nom. Fieldmg v. Thomas. Thorpe v. Rutland and Burlington R.W. Co 249 Thrasher Case. ..7, 11, 16, 22, 108, 124, 126, 208, 317, 356, 440, 441, 471, 484, 487, 499, 510, 527, 549, 672, 698, 707, 711 Three Rivers, Corporation ot v. Major 555, 560 Three Rivers, Corporation oiv. Suite. .48, 53, 60, 190, 291, 368, 369, 370, 400, 402, 528, 533, 544 Toohey c'. Melville 74^ Toronto, City of and Lake Huron Railroad Co. v. Crookshank. . 288 Toronto, Hamilton and Buff^ilo R. W. Co. v. Kerner, Re 596 Toronto Harbour Commissioners, Re 677 Toronto, Municipal Corporation of the City of v. Virgo 558, 559 Toy z/. Musgrove 116,130,181,323 Tally V. The Principal Officers of H M. Ordnance 333, 75.8 and Addenda, p. xvi. Turcotte v. Whelan 387, 660, 693 U. Ulrich V. National Insurance Co 427, 308, 472, 619, 637 Union Navigation Co. v. Couillard 642 United States f. Rhodes 262 V. Valin V. Langlois. .90, 91,237, 239,241, 261, 266, 303, 311, 313, 318, 339, 341, 348, 349, 432, 434- 441, 443, 448, 469, 479, 4I10, 501, 511, 512, 514, 515, 518, 524, -:iZi, 543 Venning 7'. Steadman i , 287, 584 Victoria Steam Navigation Board, In re 263, 266, 329, 392 790 Legislative Power in Canada. \V. Pages. Walker z: Bairtl 257, and Addenda Wallace & Co. , Ex parte 282, 474 Wallace Huestis Grey Stone Co., In re 550 Ward 7'. Reed 444, 534 Ware v. Hylton 257 Washington v. (irancl Trunk R.W. Co. See Addenda, p>. xvi. Weigman, Ex pai-te 540 Weiler z\ Richards 55, 561 Weiser v. Heintzman 467 Whalen, Ex parte . 540 Willett V. De Grosbois 370 Williamson, Ex parte 90 Wilson, Ex parte 447, 616 Wilson V. Codyre 443, 444 Wilson V. Mcguire, lu rr 1 36, 140, 522, 523 Windsor and Annapolis R.W. Co., Re 20, 296, 447, 766 Windsor and Annapolis R.W. Co. v. Western Counties R.W^ C". 34.447,586,601,662, 766 Windsor, Town of v. Commercial Bank of Windsor 669 Wi Parata v. Bishop of Wellington 595 WooUey z'. Attorney-General of Victoria 611 Worms, Ex parte 218 Y. Yorkshire Guarantee and Securities Corporation, In re 721 GENERAL INDEX. GENERAL INDEX. Acts of State 117 Adderley, Under-Secretary of State On Dominion veto power 198, n. i Administration of Justice Incidental Dominion powers over administration of justice 440- 1 Making County Court judges official referees, etc .... 164 Prerogative of mercy, not part of. 122, n. i Provincial power over, see sub ' Provincial powers.' See, also, ' Courts,' ' Implied powers.' Admiralty Court, see sub ' Court.' Agriculture and Immigration, Power over (Props. 27 and 28) 347 Aliens Acts authorizing legal proceedings against 330-3 Power of colonial legislatures as to rights of 328-33 Alimony, legislative power over 489, n. Ambiguity cannot invalidate a statute 272 Amendment of Constitution, see .w/i 'Constitution'. Ancillaryprovisions in statutes, see 'Implied powers.' Ante-Confederation Constitutions and Powers Different in different provinces 53 ^^ ^^l- How far to be considered in construing B.N. A. Act (Prop 4) 2, 9 ^/ scq., 29, n., 38, 4 1 -61 Municipal powers 43-So, 5761 (bui see 398, n. i) Rights and privileges of legislatures 63-9 See, also, sub 'Confederation.' Anticosti company, 635, n. i Attorney-General Fiat for sci.fa. proceeding.s 123, n. i Provincial represents Crown in provincial Courts. . . . 102 Area of legislation Extension or limitation of does not give legislative power (Prop, 33) 381-6 Aspects of legislation (Prop. 35) 35. 352-5> 360, n. 2, 380, n. i, 383-5, 393-424 Assignments for creditors case, see Table of Cases. Argument before Privy Council specially referred to.. 404-5. n-. 411-2 (i) It maybe well to call special attention to the leading headings, 'Crown,' ' Dominion Powers,' ' Provincial Po^er.s.' 794 Legislative Power in Canada. Australian cases As to binding effect of local statutes in local Courts. . " " ••.-: 263, n. I, 327-8, 322, n " " origin of colonial legislative powers 11-2 privileges of legislature 745, n. 3 Royal prerogative 1 15-20 statutes authorizing expulsion or deportation of persons 326-8 Autonomy of provinces (Prop 64) 670, 701-4 Banishment, statutes authorizing 322-8 Bankruptcy Dominion powers over, see s!t/> ' Dominion powers.' Imperial bankruptcy Acts 230, n. I Provincial legislation as to, see .w^/' 'Provincial powers ' " tax on insolvent's effects 677-8 See, also, ' Winding-up Ac*s.' Banks and Banking Provincial taxation of banks 185-6, 663-6, 673-6, 716-8 " tax on Dominion notes held as bank reserve 669, n. 3 Bell Telephone Company 297 8, 635-6 Betting and Lotteries, x\cts as to 401, n. 3, 534, n. i Bigamy, Dominion Acts respecting 334-8 Bills of Lading, Provincial Acts as to — 352-3> 553> "• 2 Bills of Sale and Chattel Mortgages, Acts as to 436,11.3 Boards of Health 659-50 Boards of Trade 561, n. Bourinot, Mr. Article on Federal (government in Canada.. lo, n. i, i6, 223-5 His Parliamentary I'ractice and Procedure, specially referred to 389, n. 4 His view as to survival of ante-Confederation pro- vincial powers 10, n. I British Columbia Iler position under Confederation 7-S, 16-18 Legislation as to Chinese 254-9 British Constitution Canadian similar in principle to 40, 77-8, 270-1, 279-88, 339 41 Imperial veto power 202-3 No legislative power in people apart from Parliament 33^-4i Supremacy of Imperial parliament (Prop. 12) 20S-31 British North America Act. With reference to special sections see the Table of References pp. iv.-vii. See, also, .v«/; 'Dominion Powers,' and 'Provincial Powers.' Amendment by Canadian Act impossible (Prop. 16) 242 3, 250-1 General Index. 795 British North America Act — continued. Ante-Confederation state of things, how far to be re- garded (Prop. 4) 1, () et seq., 29, n.., 3, 841-61 Classes in section 91 only subordinate enumerations for greater certainty 494 Compromise between the several interests involved. . 3 Construed as a whole 22-3, 34-5, 453-4, 477-87 " in broad and liberal sense 2)y(>i i^-9 " by same rule as other statutes (Prop. 3) . .21 et seq. Controls all Canadian legislatures 250-1, 320-1, 370 DeV)ates in Imperial Houses 71 1, n., 732 Declaratory Canadian Acts of no validity 238-9 Despatches, view of in Imperial, important (Prop. 14) 236-41 Distributes legislative power by subject-matter not by area , 576-7 Distribution of powers under, general scheme of (Props. 24-8) 107, 125, n. I, 305-64 Distribution of property under 6 Dominion parliament, interpretation of by (Prop. 14) 236-41 English legislation may throw light on 61-3 Exclusiveness of legislative power under 490-3 E.xhausts whole range of legislative power m Canada (Prop. 26) 3. 3ii> 339-41. 386 Extinguishment of ante-Confederation powers 8, 43 General language used in 469 76 History, how far to be resorted to in construing .... 39, 42 Interpretation of by Dominion parliament and Pro- vincial legislatures (Prop. 14) 236-41 New point of departure . . . i , 4-20, 42-3 New provinces, admission of 708-9 Object not abridgment but distribution of powers. ... 39 Ontario candle, not to be read by alone 55 Over-lapping powers 353-5> 453. 499 Passed with knowledge of previous law a^\ el se 558, n. 2, 561, n., 565-7, 729-30. Canadian Constitution See sub ' British Constitution,' ' United Stales Constitution.' Canadian Pacific R. W. Company.. 294,446-7 Carnarvon, Lord Debate on B.N. A. Bill 3, 307, 318, 355, n. 3, 548-9 Despatch in reference to Lieutenant-Governors 94, n. i On right of colonial legislatures to transport criminals 327, n- I Certiorari Appeal in convictions under Dominion Acts 442, n. 2 Chattel Mortgages, Acts as to 436, n. 3 Cheese Factories Dominion Act respecting Frauds on. . . -354-5, 413-4, 419-21 Provincial " " " " ....354-5,413-4,419-21 Chinese Australian legislation with regard to 258 Legislation and treaties as to.. 254-9, 423-4, 560, n., 726, n. 2 Taxation of , . 423 Christian Brothers, The 375. "• 2, 381-2 Clement, Mr. Special references to his work on Canadian Constitu- tion 89, 12S, n. I, 210, n. 2, 370, n. 4 Coasting regulations 55^ Colonial Laws Validity Act 209-12,227-8, 2S4, n. 2, 298-9, 630-1, 747-9 Colonial Secretary Cannot modify B.N. A. Act (Prop. 13) 233-6 See, also, s///; ' Despatches. ' Colonies Governors of colonies, position of 92, n. 3 Legislative power of, formerly limited by natural justice 333, n. i Proprietary colonies 103 Royal instructions of governors of 1 1 5-20 'Subjects of 328, 329, n. 2, 334 Term ' colony' should not be applied to Dominion.. 82, n. 2 When included in Imperial Acts 219-21 Colourable legislation (Prop. 32) — 188, 372-81 715. n- I, 727, n. 2 Dominion charter obtained by fraud on Parliament.. 374-5 Fraud on the constitution 388 Prohiljilion under pretense of lici'iising 375-6 Provincial appointment of .Superior Court judges. 127-8, 14S-75 Stamp Act under guise of license Act 53, j7^, 417-8 General Index. 797 Commerce Chambers of 561,0. Inter provincial trade and commerce 757, n. Provincial Acts affecting trade 559, n. 3 Regulation of Trade and. .23-4, 258-9, 273-7, 378, 402, n., 407, 40S, n. 2, 411, 479, n. i, 480, 485, 550-62, 572, 67980, 686, n. Commissions Government commissions of inquiry into public matters 3S7. n. 2 Compan)^ Ante-Confederation charters 370, n. 4 Anticosti Company, incorporation of 635,0. I Baniis, provincial power to tax 663 6, 673-6, 716-8 Bell Telephone Company 297-8, 635-6 Boom companies 639-41 Chambers of Commerce and Boards of Trade.. 561, n. Dominion cannot incorporate for matter constitution- ally provincial 375- "■ 2 " charter obtained by fraud on Parliament.. 374-5 " companies confining operations to one province (Prop. 57) 374-5- 644 " powers in relation to companies generally (Props. 55-7) 617-44 " " " " " provincial companies 627, 633, n. 2, 634, n. " " of incorporating 5045, 561, n., 617-44 Enlargement of powers of provincial companies by Dominion 634, n. Incorporating Acts void in part only 290, 297-8 Incorporation by private Act 54S, n. i Insurance companies and provincial law 618-9, 7^6, n. 2 " Dominion Act as to deposit 632 Jesus, Society of 635, n. i Navigation companies (provincial) 641 -2, n. Power to deal with lands in another province. ... . 298 " over royal charter of incorporation 618, n. i Provincial companies transacting business outside " province 637-9 " licensing of Imperial, Dominion, and foreign corporations 505, 623-7, 726, n. 2 " powers as to companies of old province of Canada 366-8 " " of incorporation 236, 457-8, n., 632-43, 762 " " in respect to Dominion and foreign corporations (Props. 55, 56).. 505, 617-44, 623-7, 634, n., 726, n. 2 " " over rights of corporators 457-8, n. Story on the power to incorporate 627, n. 2 Winding-up Act (Dominion) in relation to foreign and provincial corporations 62832 " " " Joint -Stock Companies (Ontario). . . 458, n. Concurrent powers of legislation (Props. 27-2S) '. 347-64 Conditional legislation 443> "• 2, 495-6, 565-6 798 Legislativ]'. Power in Canada. Confederation Debates on, as to Dominion veto power 194-5 " " how far reference to admissible.. . . 17 S, 26-7, 54, n. 2 ' " specially referred to.. 194-5. 341-5. 488-9, 732, n. Fathers of, weight attaching to views of on meaning of B.N.A. Act 237-8 Inherent defects of Federal form of government. 3 15, n. 3, 3S3 Section 91 of the B.N. A. Act the keystone of 317-9 See, also, s!//> ' Ante-Confederation Constitutions, and Powers.' Constitution Dominion power of amendment of -699, n. i Provincial " " " " 100-2, 239, 242 3, 250- 1, 295-6, 698-700, 746 9, 755, n. I See, also, ' British Constitution,' ' United States Con- stitution.' Constitutional Act, 31 ^^eo. Iir., c. 31, referred to 10, 15, 64, 67, 323 Constitutional questions, Dominion Act re.specting references to Supreme Court 126, n. 2, 586, n. i Convictions Act respecting non-return of 444 5 Appeal in cases under Dominion Acts 442, n. 2 Cooley on Constitutional Limitations Specially referred to 299, n. i, 302-3 Copyright Legii^lation as to 213-9, 222-31 Opinion ' Law Ofificers of Crown.' Lieutenant-CJovernor as representative of (Prop. 7).. 90-122 And see si/^> ' Lieutenant-Governor." Lieutenant-Governor, how far vested with royal pre- rogatives 1 10-22 Minor prerogatives 79, 182, n. 2 Not bound by agreement controlling veto power. . . 173, n. i Prerogative as to forfeitures 78 9, 82, 616, n. i " " " treaty making 257, n. 2 " Australian cases on 115 20 " cannot be prejudiced by implication So " Crown cannot be divested of 181 " defined 734 " exclusion of aliens 115-20, 181, n. 3 " executive authority, all matters ol 112-3, 131 " extends to colonies 78-86,132 ." how far affected by B.N. A. Act (Prop. 6). 80. 83-6, 87-9, 92, n. 2, 107 " of in Canada (Props. 5 and 6) 7289 " " Hor.our (Prop. 6) 87-9 " " Justice 1824 " " Mercy 81, n. i., 122, n. i., 131. n- 2, iSo-4 " same in all provinces 74 6, 7980 " statutes dealing with (Prop. 9).. 114, n. i., 176-84 " theory as to vesting virttttc officii 1 1 1-22 Priority over other creditors 72-86, 94-5 Provincial Acts enacted in Queen's name 107-8 Public lands vested in 607 Queen's Counsel, appointment of. 87-9, and addenda, 133-6, 17^-9. 233-4. 754> n- 2 Stolen goods, as to. 616, n. i Trusts affecting Crown lands 614, n. i Veto power I73> "• i " non-exercise of some argument in favour of validity of Act 206 " not infringed by legislation by delegation 696-7 And see si(h ' Veto power of Domin- ion (jovernment,' ' Imperial veto power.' Customs and Excise Levy of customs duties by resolution 747, n. i Retroactive Act as to customs duties 282, 449, n. 2 Right to confiscated goods 616, n. i See, also, nili ' Dominion Powers,' ' Taxation.' Davey, Sir H. Opinion as to appointment of Queen's Counsel 133-4 General Index. 8oi Debates on Confederation, see sufi 'Confederation.' Debentures Provincial Acls affecting in hands of foreigners 461-3 Debt, Acts respecting imprisonment for 415 Declaration that public works are for advan- tage of Canada 602-5, 636, n. 1 Declaratory Act, 18 Geo. ill., c. 12, referred to 211, 230 Declaratory Acts as to b.n.a. Act (Prop. 14) 238-q Delegation Of judicial power 3S8, n. i Of legislative power (Props. 17 and 63). .33-4, 128-9, •■•■•• -. 245-6- 52 [-2, 689700 " " "no infringement on veto power of Crown 696-7 Deportation of persons Extradition Act, 1870 I Imperial ) 218 Statutes authorizing 322-8 Despatches Lieut. -Governor of Ontario on Hodge v. Queen 405, n. Lord Kimberley's as to Lieutenant-Governors 101-2 Lord Monck's transmitting Quebec Resolutions .... ; 549, n. I, 711, n. Secretary of State for Colonies acknowledging receipt of Quebec Resolutions 194 " " " " •" on appointment of Queen's Counsel. • • 135, 2334 •' " " " '• on Dominion Copy- right Act, 1872 227-8 •' '• •■ •' ■• on Dominion Copy- right Act, 1889 251, n. I " I' .' I- >• oj, Imperial Copy- right Act, 1842 223, n. 2 " " •' " " on legislation affecting Chinese . 25S " " " "' ■' on legislation affecting property of absent per- sons ... . 33 '.n- 2 " •< '• " -• on Letellier case 193, n. i " " " >• •• on New Brunswick School Act 22 1 -2 " ■' on power over Great Seals of provinces .... 134-5. 320, n. I See, also, sub ' Law officers of the Crown,' 'Ministers of Justice, Reports of." View of B. N.xA. Act in Imperial despatches carries weight (Prop. 14) 236 4 1 Dicey, A. V. His lectures on the Law of the Constitution referred to 22, 32, 203, 230, n. I, 248, 257, n. 2, 287-8 See, also, Introductory Chapter. ' Direct taxation,' what is 7'3-2i, 723-4 ' Discipline of the Empire ' 257, n. 3 8o2 Legisi.a'Iive Power in C-ANAnA. District Magistrates 127-8 Division Court judges, see su/> 'Courts.' Domicil Provincial powers as affected by 461-3, 757-64 Dominion Acts Appeal by certiorari in conviction under 442, n. 2 As to bigamy committed abroad 334 8. and Addenda " controverted elections 3489,450-1,512 " defendant's evidence on prosecutions under provincial Acts 464, n. i " electoral franchise 519-20 " frauds on cheese factories 354'5> 413-4' 419-21 " jurors in criminal cases 694 " liquor licenses (Acts of 1883-4) 289-90 " merchant shipping and seamen 212 " railways 320, 445-8 '' references of constitutional questions to Su- preme Court 126, n. 2. 586. n. i Imperial treaties, conflict with. ... 255-9 Retroactive Act as to customs duties 282, 449, n. 2 Witnesses in matters before foreign tribunals 319 See, also, ' Canada Temperance Acts,' ' Dominion Parliament,' ' Dominion Powers," ' Statutes.' Dominion Constitution See suh ' Briti.sh Constitution,' ' United States Con- stitution.' Dominion Courts, see stib 'Courts.' Dominion Government Construction of conveyance to 609, n. 2 Dominion Liquor License Acts, 1883-4, case. See Table of Cases. Argument before Privy Council specially referred to 403-4, 407-^ Dominion Parliament .Knd see sub ' Dominion Powers,' ' Legislative Power.' Argument from course of legislation by acquiescence of and declarations of (Props. 14-15) 176 Can legislate only within territorial limits of the Dominion 321-38 Cannot amend B.N. A. Act (Prop. 16) 242-3,250-1 " amend or repeal provincial Acts (Prop. 29) 366,530-1 " give itself power by continued assumption of it (Prop. 15) 241 " legislate in reference to proceedings under provincial Acts 53^-9 " repeal what it cannot re-enact 368 Conforming to provincial Act in e.Adem niaterid 56-7 Copyright legislation 213-16,222-31 Dominion, local or private Acts 567-8 1 Fraud on 374-5 General Dominion law may embrace within its scope subject matter of provincial law 349-5° General Index. 803 Dominion Parliament — continued. Interfering with private or local rights of property (Prop. 53) 582, 584-90 Interpretation of B.N.A. Act by, carries weight (Prop. 14) .. 236-41 Legislation by reference to enactments of another legislature 694-5 May in some cases legislate identically with provinces . 352-3 National scope of Dominion laws (Prop. 44) 502-9 Peace Preservation Acts 446-7 Power to define its privilege 64 n i, 749-50 ■■ Rule for determining validity of Acts (Rule 43) 497-501 Dominion Powers .See, also, suh 'Dominion Acts,' 'Dominion Pailia- ment,' ' Legislative Power,' ' Statutes,' and see Table of References, pp. iv.-v. Admiralty Courts, over 5157 Agriculture and Immigration (Props. 27 and 28) . .. 347 .\liens and naturalization 328-33, 459-60 Amending constitution of Canada ... .699, n. i Banks, banking, and paper money . .427-9, 562, n., 623, n. i Bankruptcy and insolvency 41 -2, 52-3, 385-6, 411-2, 425-7,429-30, 438-42, 449-5". 458.""., 486-7, 518, 531-2, 535, 550, n. 2, 568 71, 573-4. 62832 Chambers of Commerce and Boards of Trade 561, n. Companies, incorporation of 504"5. 561. n., 617-44 Concurrent with provincial, how far (Prop. 27 28), 348-64, 432-5 Copyright 213-6, 222-31, 328-30, 428 Criminal law and procedure, 49-51, 246-7, 334-8, 354-5. 379. 396-7. 407 8, 412-5, 418-23, 43940, 442, n. 2, 445, 447, n. I, 463-8, 518-9, 549, 683-5, 686, n. 1 , 687-8, 748, n. i Customs, excise, and inland revenue. .281-2, 402. n., 449, n. 2 Delegation, power of 245 6, 521-2, 689, 692, n. 4 Dominion property (Prop. 54) 5867, 590 i, 605-6, 764 t;iections 444, 450-1, 512, 519-20 Enumerated only for greater certainty 494 Exceptions to provincial powers over property and civil rights (Prop. 40) 486-7 Exclusive or concurrent, how far (Props. 27 and 28). . 34S-64 Executive power correlative to legislative (Prop. 8) 88, 123-76 P'ederal Courts 514-20, 572 Firearms, sale or carriage of 409 Fisheries 52, 447, n. i, 562, 584-6, 615-6 Forfeiture of felon's goods 616, n. i Forfeiture of goods, provincial power to impose 463, n. General character of Dominion subjects (Prop. 49) . . 547 64 Immigration . . 258 Imperial Acts, as to ante-confederation 223-31 " " as to power to affect in relation to Canada 230- 1 , 366, n. 2 Incidental right of intrusion on provincial area, (Prop. 37) 350-1, 357-8 Indians, and lands reserved for Indians 139, 591-4 Indirect attempts to exceed (Prop. 34) 386-92 Inland revenue, customs and excise 281-2, 402, n., 449, n. 2 Interest 297, 388-90, 421-2, 480-1, 506-7 8o4 Legislative Power in Canada. Dominion Powers — continued. Limited by subject matter not by area 382, 576-7 Limited to Dominion territory 321-38 Liquor license laws , 403 8 Local option and conditional legislation (Prop. 50), • ••■. 495-6. 565-6 Local or private legislation 567-81 Marriage and divorce 334-5< 362-4, 488-9 Militia, military and naval service and defence 685 Motive of exercise not material (Prop. 20).. .2738, 374, n. i -^IMunicipa] corporations 505-6, 521-2 Navigation and shipping.. . 212, 556. 562-3, 572, 640-3, 686 -' Pai amount authority and national scope of (Props. 37 and 44). . . .425-54, 502-9, 510-22, 515-7, 526-37. 647 51 Patents of invention 428, 443 4 Peace, order, and good government of Canada, see infra sub ' Residuary legislative power for, etc." I'lenary, not merely delegated (Props. 17 and 19), 228. ' 244-59, 270-2, 318-9, 328, n. 2 Presumption in favour of (Prop. 18) 260-9, 272, 342, n. Privileges of parliament 64, n. I, 749-50 Privy Council appeals 183-4 Procedure under provincial Acts outside 53^-9 Prohibiting importation 657 Prohibitory liquor laws 399-402 Property and civil rights and procedure, incidental power over (Prop. 37) 425-54 486-7, 502-5, 534, 544, 582, 584-90, 594-6, 678, n. I Provinces, legislating in pari materia with . . .352-3, 359-60 " may share broad general subject with. . . . 361 -4 Provincial Acts in eddem mater id, conforming to. . . . 56-7 " area, intrusion on (Prop. 37) 350-1, 357-8, 372-81, 425-54, 505, 534, 544 " companies, as to 633, n. 2 " Courts and officials 510-22 " executive authority 582-4 " legislation, interfering with (Prop. 48) . .355, 541-6 " powers, how far Dominion supreme over (Props. 17 and 37) 106-7, 253 4, 318, n. 2, 344, 425-54, 534 7 " property, incidental power over 582-4, 594-6, 678, n. I " subjects beyond reach of (Props. 32 and 33) 315, n- 2, 372-9I, 53^-9 Quarantine 560, n. , 659-60, 686 Railways and other works, and railway crossings. . . . .294. ri. 3, 399, n- i, 445-8, 503-6, 596, n. i, 602 6, 635-6 "-^ Residuary legislative power for peace, order and good government of Canada (Prop. 26) 37, 246-7, 31046, 359-60, 384-5, 396-7, 401, 409, 435-8, 462-3, 497-8, 507-9, 532-3, 572 81, 649 Royal prerogative 1 76-84 Rule for testing validity of Acts (Prop. 43) 497-501 Sanitary regulation 384-5, 508-9 Shipping and navigation. See supra stth ' Navigation and Shipping.' Taxation 361-2, 408, n. i , 449, n. 2, 489 General Index. 805 Dominion Powers — continued. Trade and commerce, regulation of 23-4, 2589, 273-7, 402. n.. 407, 408, n. 2, 411, 479, n. I, 480, 485, 55062, 572, 679-80. 686, n. Treason to the State, as to 246-7 Treaties, as to 256 7 [//tra vires Act a complete nullity (Prop. 23). . .204-5, 3oo-4 Unexercised leave provincial free 534 7 United States federal power compared 434, n. 3 Validity of Acts, rule for testing (Prop. 43) 497501 Vested rights and contracts (Prop. 21) 279 88 Veto power (Props. 10 and 1 1). ... 149-50, 157, 168, 185-207 Wholesale and retail, defining 729, n. And see su/i 'Wholesale and Retail.' Winding up companies 628-32 Elections Bribery at, Acts as to 444, 450 i Dominion Controverted Elections Acts. . . .348 9, 450-1, 512 " Electoral Franchise Act 519 20 Provincial Controverted Elections Acts 301-2 Election Judges, see sird ' Courts." Elizabeth, Statutes of, see ..///' 'imperial Parliament.' Embargo laws 556 Eminent Domain 285-6 English legislation As throwing light on PIN. A. Act 61-3 Escheats 5 '-2, 609-11 Estoppel against disputing validity of statutes 260, n . 1 , 303-4 Evidence Dominion Act as to defendant's evidence on prosecu- tions under provincial Acts 464, n. i " " as to witnesses in matters before foreign tribunals 319 Excise and Inland Revenue See su6 ' Dominion Powers. ' ' Exclusiveh' ' in sections gi and q2 of B.N. A. Act 210-2, 215-9, 2256 Executive Authority Correlative with legislative (i'rop. 8).. 88. 1 23-70 Dominion parliament cannot interfere with provincial executive authority 582-4 In Australian colony ot Victoria 1 15-20 Nature of in Canada 1 1 1 -22 .Should be kept separate from legislative 125. n. 1 Vested in the Queen 1 20 See, also, ' Executive Council of Provinces.' 8o6 Legislative- Power in Canada. Executive Council of Provinces Not suable for acts done in discharge of official duties 97 Ultra vires order in Council for sale of Crown lands 304, n, 2 Explosives, Acts respecting 40910 Expulsion, statutes authorizing^' 322-8 Extradition, see ' Deportation.' Extradition Act 1870 (Imperial) 218 Extra-territorial statutes 322 38 Federal Courts, see «<^ 'Courts.' Federal form of government Inherent defects of . . 31^^ n. 3, 3S3 Ferries and rights of ferriage 6601 Ferry boats, tax on 562-3, 642, n. Fines and penalties, right to 616, n. i Penal laws (provincial) see stih ' Provincial Powers.' Firearms, Acts as to sale or carriage of 409 Fire Marshals, provincial appointment of ..1234, 1667 Fisheries, Sea Coast and Inland Dominion power over 52, 447, n. i, 562, 584-6, 615-6 Fishery licenses and leases 5 ' ("lOvernor-General,' ' Lieutenant-Governor.' Gray, J . His work on Confederation referred to 345-6 Great Seal Nova Scotia Great Seal case 91-2, 1 14, n. i, 134, n. i, 208. n. 3, 320, n. I Power to change 115, n., 134, n. i, 320, n. i Greswell's History of ("anada referred to 341 Habeas Corpus Right of appeal 442, n. 2 Harbours As distinguished from franchise of ports 599 What are ' public harbours ' ?. . . . 598 601 Hawaiian Islands Constitution of referred to 291, n. 3 And see Addenda. Hearn's Government of England referred to. 225, n. i History How far reference to admissible in construing B.N. A. Act (Prop. 4) 42 Imperial Acts, see s///) ' Imperial parliament.'- Imperial Parliament Bankruptcy legislation 230, n. i Copyright legislation 213-6, 222-31 Declaratory Act, (18 Geo. IIL, c. 12) referred to.. .211. 2^0 Elizabeth, statutes of, amended by colonial legisla- tures for local purposes 230- 1 English legislation as throwing light on B.N. A. Act. 61-3 Medical practitioners, Act as to 218 Merchant shipping Acts 212, 230, n. i Omnipotence of as contrasted with American legis- latures 250 Statutory declarations of its supremacy 209, n. 2 Supremacy of (Props. 12-13) 208-31, and Addenda, • ; 233 6, 248-9 When Imperial Acts may be amended or repealed in respect to colonies by coloni.il legislatures 230-1, 366,- n. 2 " " " construed to extend to colonies.. 219 21 Implied Powers of legislation (Prop. 37) 65-9, 346, 350-1. 377, 425-68, 505, 534, 712-3, 741-50 Rule of necessity .... 448-54 Imprisonment for debt, Acts respecting 415 Incidental effect of law does not alter its char- acter (Prop. 36) 416-24 8o8 Legislative Power in Canada. Incidental powers, see sud 'Implied powers.' Incorporation of Companies, see .r«(6 'Companies.' Indemnity legislation 391, and Addenda Indian Claims case, see Table of Cases. Indians, Dominion power as to 139, 591-4 Indian legislature, reference to 17 Indian title 594, n. Provincial power to extinguish 98, 129, 678 9 Indirect attempts of legislatures to transcend powers (Prop. 34) 386 92 Indirect ta.xation, what is-? 417-8,713-21,723-41 Provincial power of 4823, 730-41 Inland revenue and excise, seesii/> ' Dominion Powers.' Insurance Companies, see w/; ' Companies.' Insurance Corporation Act (Ontario), 1892 — 457 8,n. Intercolonial railway, provincial ta.xation of employees of 677, n. Interest Dominion power over, see s/t/i ' Dominion Powers." ' Interest other than province in same ' Meaning of in section 109, B.N. A. Act 61 1-4 International law referred to 323. 328, 332, n. i, 335 Private International law 758, n. i Invalidity of statutes, see suh 'U.'tra aires' Jesuits Incorporation of Society of Jesus 635, n. fesuits Estates Act 223-4 fudges and other Judicial officers, see w*^ 'Courts.' Judgments Recognition of colonial in English ( 'ourts 332-3 Jurors Act (Dominion) 694 Justices of the Peace, see .w/; 'Courts." Kimberley, Lord Despatch as to Lieutenant-Governors 101-2 Langevin, Sir Hector On Dominion power over marriage and divorce 4S8-9, n. Law Officers of the Crown in England Opinion on colonial powers over copyright 231, n i " " Dominion and provincial powers in re- spect to marriage 489, n. " " Provincial Act respecting tenure of County Court judges 159 Sec, also, sub ' Despatches.' General Index. 809 Legislative Power Acts part valid, part invalid (Prop. 22) 289 99 Aspects of legislation (Prop. 35) 352-g, 360, n. 2, 380, n. I, 383-5, 393-415. 4i6a4 Carries all needed to make effectual (Prop. 37). . . 129, 425-68 Delegation of 33-4, 128-9, 245-6, 521-2, 689-700 Distribution of, see sttb 'British North America Act.' Domicil as affecting 757-64 Lex et coKsuetitdo parlianienti 744-5 Motives of legislature not material (Prop. 20). ; .••.•■•. 273-8, 374, n. I Not given by limitation or extension of area of Acts . (Prop. 33) 381-6 Object of law as determining constitutionality (Prop. 36) 416-24 Overlapping powers 353.5, 453, 491-3, 499, 755, n. i Reference, legislation by 694- 5 To be kept separate from executive and judicial power 125, n. i See, also, sub ' Dominion Acts,' ' Dominion Parlia- ment,' ' Dominion Powers,' ' Provincial Acts,' ' Provincial Legislatures,' ' Provincial Powers,' 'Statutes,' 'Ultra Fires,' and the Table of Refer- ences, pp. iv.-vii. Letellier case 193, n. i Lewis, Sir G. C. His Essay on Government of Dependencies referred ^o 135, 220-1, 230-1, 343.5 Lex et consuetudo parliamenti 66-7, 744-5 Libel, provincial Act making legislature judge of libels on members 176, n. i Licenses Brewer and other wholesale licenses. . 27-8, 44-6, .• •.•• ••.•375 6', 679-80, 719 20, 726-30 Conflict between provincial liquor license Acts and Dominion Acts 528 9 License tax on insurance policies 53 Prohibition under pretence of licensing 375-6 Provincial power over 26-8, 367, 44-6, 489, 187-8, 373, 375-7, 394-408, 417-8, 423-4, 435-6, 4846,528-9,541-3, 653-4,67980,705-6, 719-20, 723-30 Taxation by, not indirect 361, n. 2 See, also, sub ' Liquor Traffic and Legislation,' ' Other licenses.' Lieutenant-Governors of Provinces Appointment of 93 4 Commissions of 103, n. 1 Corporation sole by provincial Act 100, n. 2 Dicta and decisions (now over-ruled) that do not rep- resent Crown 106, n. I, 109-10 Link of Federal power 100, n. 2 National anthem, rights as to 101-2 Not viceroys Il4,n. i Oath of office 103, n. i 8io Legislative Power in Canada. Lieutenant-Governors of Provinces — continued. Office cannot be amended by provincial legislature IOO-2, 239, 295-6 Pardoning power of 39-40,130-3 Position in all provinces the Sf.nie 104, n. I Prerogative, as to vesting o{ virtnte officii III-22, 132-3 Provincial Acts as to pardoning and other powers of.. 295-6 Provincial power as to his office lOO, n. 2, 239, 295 6 Queen's Counsel — See sub ' Crown,' and ' Provincial Powers.' Represents Her Majesty for purposes of provincial government (Prop. 7) 90-122 Right to act in Queen's name recognized by B.N. A. Act 98-9 Royal instructions 115-20 Sir J. Thompson, on office of ioo,n. 2 Limitation of Actions Dominion limitation of action against railways 447-8 Liquor Prohibition Appeal, 1895, see Table of Cases. Argument before Privy Council specially referred to 405, n. ,418 Liquor Traffic and Legislation Delegation to commissioners of power to regulate. .. 689-91 Dominion Act as to defendant's evidence on prosecu- tions 464, n. I " Liquor License Acts 1883-4 case, see Table of Cases. " power over liquor licensing 403-8 " prohibitory power 396-402,418-9, 558, n. 2 Local option laws (Prop. 42). . .401, n. 2, 416-7, 495-6, 565-6 Prohibition under pretense of licensing 375"^ Provincial Act imposing penalties for violation of liquor license laws 45^ '* power over liquor licensing 394-408, 423.-4, 528-9. 653-4 See, also, sub ' Canada Temperance Acts,' ' Licenses,' 'Temperance Act 1864,' and Appendix A. LocarOption laws 401, n. 3, 416-7, 4956, 565-6 Local or Private Matters in the Province Provincial power as to, under No. 16, of sect. 92, B.N.A, Act (Prop. 59). .360, n. i, 384-5,395, 401, 406-7, 416-7, 507-9, 565-6, 578-9, 648, 655 61, 681-5, 735-40 Local Works and Undertakings Power over.. 294, n. 3, 391-2, 399, n. I, 445-8, 461-3, 503 6, 520, n. 2, 596, n. I, 602-6, 6356, 641, n. 2, 739, n. 4 Loranger, J. His Letters on the Interpretation of the Federal Con- stitution referred to 7,8-9, 15-16, 64, n. 3, 95, n. 3, 114, n. I, 208, n. 2, 305, n. I, 3167, 342-3 View as to survival of ante-Confederation provincial powers 7, 8-9 General Index. 8ii Loranger, J. — continued. View of Confederation as a surrender of powers by provinces to Dominion 8-9 Lotteries, Betting and Pool-selling, Acts as to 401, n. 3, 534, n. I Magna Charta referred to. .23, 284, n. 2, 608, n. i, 616, n. i Malum in se Suggested criterion of Dominion power in respect to ' criminal law ' 367 Manitoba School case, see Table of Cases. Maritime Court of Ontario 572 Maritime provinces Early constitution of 1 5. n. i Marriage and Divorce, see «//; 'Dominion Powers.' Mechanics Lien Act (Provmcial) As applied to Dominion railways 597, n. Medical practitioners Imperial Act as to 2l8 Merchant Shipping Acts 212, 230, n. i, 642, n. * Merely ' local or private nature in the province Significance of ' merely '. .360, n. i, 384-5, 578-9, 655-61, 681-2 Mill, J. S. His definition of ' direct' and 'indirect ' taxation 714-5, 717 20 Mines and Minerals, right to 610-11 Mining courts. Gold Commissioners of 127 Minister of Justice Value of" reports of, as legal opinions 141, n. Minister of Justice, Reports of As to authorizing bridges over navigable streams. . . . 634, n. On Copyright Act, 1889 222-3, 226-9 As to creation of corporate powers 621, n. " Dominion corporations and provincial law .... 622 On incorporation of Chambers of Commerce and Boards of Trade 561, n. " license Act not really for raising revenue 377, n. As to local judges under Ontario Judicature Act .... 524, n. On New Brunswick Act of 1889, as to stipendiary or police magistrates 240- 1 " office of Lieutenant-Governor 100, n. 2 " provincial companies transacting business outside province 638-9 " Quebec District Magistrates Act, 1888 140-75 Recommending procedure in reviewing provincial .A.cts 1724 On references by Governor-General to Supreme Court of legal questions 126, n. 2 8i2 Legislative Power in Canada. Minister of Justice, Reports of — continued. On right to escheats 6io, n. " the following provincial Acts : — Act affecting Manitoba public lands 597-8 " as to aliens 459-60 " allowing fee for costs taxed by County Court judges 164 " appointing Gold Commissioners as judges of Mining Courts 162, 165 " appointing judicial officers 141-76 " authorizing appointment of Superior Court judges 171 " " municipal by-laws forprevention of vice 466, n. " " sale of land in another province on intestacy 768, n. i " as to bills of lading 553, n. 2, 560, n. " conferring jurisdiction on stipendiary magistrates 170-1, 175 6 " consolidating Superior Courts 164 " constituting Railway Committee of Executive Council 520, n. 2 " as to constructing subway under a harbour 599, n. 3 " as to deportation of insane persons out of province 326 " enlarging powers of provincial companies 634, n. " fining judges for neglect of duty 160 " forfeiting office of County Court judge for mis- conduct J 65 " giving stipendiary judges jurisdiction of County Court judges 162-4 " imposing indirect taxation 732, n. " imposing license fees on transient traders 560, n. " to incorporate a company to erect dams in a navig- able river 639 40 " increasing jurisdiction of inferior Courts 163 " interfering with exclusive rights of a Dominion company 636, n. 2 " licensing Dominion and foreign corporations. . . . 623-7 " making County Court judges official referees and local masters 164, n. i " nominally respecting bills and notes, really re- specting evidence 422, n. 3 " as to percentage on arrears of taxes 390 " prescribing qualification of judges I50"l> i6o-l " preventing fraud in sale of fruit 415. n. " in reference to sanitary matters 560, n., 686 " regulating anchorage and lading and unlading of ships 643, n. " regulating vessels with view to public health . . . 686 " requiring Dominion and other corporations to take out licenses 5°5 " respecting bills and notes of companies 4579 " " County court judges' tenure of office. . 159 " " diseases of animals S^°' "■ •« " fences as applied to Dominion railways 597. "• " " fisheries 616, n. i " " freight, wharfage, and warehouse charges 642-3, n. " " game licenses in Manitoba 654, n. 4 " '• immigration and paupers 460, n. 2 ,i General Index. 813 Minister of Justice, Reports of — continued. Act respecting inspection of lumber and other mer- chandise 561, n. '■ " juries in criminal cases 694, n. 5 " " malicious injury to property 415, n. " " protection of game 561, n. 654, n. 4 " " railway crossings 446, n. 3 " " regulating pilotage 642, n. " " residence of judges 161-2 " " sale of tobacco to minors 465, n. " restricting immigration of Chinese 258-9 " supplementing judges' salaries 159-60 " taxing by law stamps 735, n. " taxing owner, occupier, and tenant of land jointly 721, n. 3 Minor prerogatives 79, 182, n. 2 Mobilia personam sequuntur 757-65 Mortgages, tax on 721 Mortmain Acts 619-22 Motives of legislature not material (Prop. 20) 273-8, 374, n. I, 424 Municipal Institutions and Powers Ante-Confederation 43 50, 57-6i *"- See, however, 398, n. i. — By-law making power 128-9, 386 — Connection with liquor traffic 45, n. I """ Powers under Dominion Acts 521-2 .-• Provincial power over. . ..41, n. i, 386, 398, n. i, 460, 521-2 Under Acts of old province of Canada 369-70 National Anthem. Right of Lieutenant-Governor as to 101-2 Natural justice. Colonial legislation formerly limited by 333, n. i Navigation and Shipping. Maritime Court of Ontario 572 Provincial navigation companies 641-2, n. Taxation of shipping 642, n. Three mile limit 608, n. i, and Addenda to 321, n. 5 See, also, sui') ' Dominion Powers,' ' Merchant Ship- ping Acts,' ' Waters.' Necessity, rule as to, limiting incidental powers 448-54 Non-residents, see si(/> ' Aliens.' Nova Scotia Mining Act, 1892 199-200 Nuisances, A.cts respecting 412 3, 422-3 Object of law as determining constitutionality (Prop. 36) 416-24 Official referees and local masters, see su/> 'Courts' 8i4 Legislativk Power in Canada. Onus in impugning validity of provincial Acts (Prop. 60) 662 ' Other licenses,' meaningof inNo.g.sect.ga.B.N.A.Act 26-8, 47, 54-5, 62-3, 725-6, 727, n. 3 See, also, sub ' License?.' Overlapping powers 353.5, 453, 491-3, 499, 755, n. i Pardoning power, 39-40, 180-4,391 and Addenda, 749,11., also Addenda to p. 8i, n. i Pardoning power case, see Table of Cases. Parish Courts, 70-1, 168-70, 205-6 Pawn-brokers Bill to prevent extortion by 50, n. 2 Legislation as to 549, n. 3 Peace, order, and good government of Canada Dominion power to make laws as to (Prop. 26), 37, 214, 246-7, 310-46, 359-60, 384-5, 396-7, 401, ; • • ••409, 435-8. 462-3, 497-8, 507-9. 532-3. 572-81, 649 Significance of word ' order ' 214, n. i, 310, n. 2 Peace Preservation Acts 4467 Penal laws, see sub 'Police regulation,' 'Provincial Powers.' Pharmacy Act restricting drug selling 455-6 Police magistrates, see sub 'Courts.' " power, see S7ib ' Police regulation.' " regulation Criticism of phrase ' police regulation ' 556, n. 2 Provincial power over, 35-6, 351, n. 3, 360, n. 2, 378, 395-6, 403-7. 408. n- 2, 410-3. 456, 556, n. 2, 653-4, 727, n. 3, 728, n. 5, 730, n. I Regulation of gambling houses 5^ Right to fines and penalties 616, n. I Powers, see stib ' Dominion Powers,' ' Provincial Powers.' Precautionary phrases in Acts. ... loi, n., 295-6, 380, n. i Precious Metals case, see Table of Cases. Prerogative, see sub ' Crown.' Presumption in favour of validity of statutes (Prop. iS), 260-9, 272, 337-8, 342, n. Prince Edward Island Land Purchase Act.... 2856 Private Bill legislation 548, n. i Private International law 758, n. i Private or Local Matters in the Province Meaning of in No. 16, sect. 92, B.N.A Act, see sub ' Provincial Powers,' and Table of References, p. vi. Privileges and immunities of legislatures Dominion parliament 64, n. I, 749-5° Inherent 65-9, 346, 452. "-. 712-3, 74i-50 Provincial power over 40, n., 64, n. i, 68-9, 176, n. i, 741-5° General Index. 815 Privy Council Appeals to 183-4, and Addenda lo pp. 51 1-2 Probate Analogy from jurisdiction of Courts to grant 759, n. 4 Prohibitory legislation As to articles of commerce generally 378, 455-6 " liquors, see sub ' Liquor Traffic and Legislation.' " trades generally . . 399 401, 55S, n. 2 Property and Civil Rights Distribution of public property under B.N. A. Act. . . 6 ' In the province,' provincial power over, see suly ' Provincial Powers,' and Table of References, p. vi. Not to be presumed that Dominion interference with intended 24-5 Vested rights may be disregarded by Canadian legis- latures ( Prop. 21) 27988 Vested rights protected by Dominion veto power. . . . 199-201 Provinces E.xisting provinces, how far new creations 42 3, 703-4 Terms of admission of new 708-9 'Provincial,' ambiguity in use of term 108-9 Provincial Acts Authorizing appointment of additional Superior Court judges 171 Bank shares, as to liability for taxes . .... Addenda to p. 623, n. I Bills of lading, as to 352-3, 553, n. 2 Controverted Election Acts 301-2 Debentures of provincial railways held abroad, as to. 461-3 Enactment of in Queen's name 107-8 Frauds on cheese factories 354"5, 4I3"4' 419-21 Insurance Corporation Act (Ontario) 1892 457-8, n. Joint Stock Companies Winding-up Act (Ontario).. . 458, n. Making legislature judge of libels on members 176, n. i Mechanics lien Acts as to Dominion railways 597, n. Mortmain Acts 619 22 Onus in impugning (Prop. 60) 662 Pharmacy Act 455-6 Precautionary phrases in loi, n. Prince Edward Island Land Purchase Act 285-6 Protection of railway emphjyees 596, n. i and Addenda Sequestration of Dominion railways, as to 597, n. Taxing banks 185-6, and Addenda to p. 623, n. r Variance with Imperial treaties 255-9 Workmen's Compensation of Injuries Acts . -596-7, n. and ^Vddenda See, also, sub ' Ministers of Justice, Reports of,' ' Provincial Legislatures,' ' Provincial Powers,' ' Statutes.' * Provincial Legislatures See, also, ' Provincial Acts,' ' Provincial Powers,' ' Legislative Power,' and Table of References, pp. v.-vi. Cannot «mend B.N. A. Act (Prop. 16) 242-3, 250-1 Si6 Legislative Power in Canada, Provincial Legislatures — contintced. Cannot amend or repeal Dominion Acts (Prop. 29). 226 " j^ive itself power by continued assumption of it (Prop. 15) 241 " legislate in reference to proceedings under Dominion Acts 538-9 " repeal what cannot re-enact (Prop. 30) 368 Cautionary phrases in Acts loi, n., 2956, 380, n. i Constituting themselves Courts to try libels on mem- bers, etc. 176, n. I, 748, n. i Enact in Queen's name 107-8 How far subordinate to Don)inion (Props. 44 6) 253-4, 318, n. 2, 355, 533-4, 670-1, 702-3 Interpretation of B.N. A. Act by carries weight (Prop. 14) 236 41 Jesuit Estates Act (Quebec) 223-4 May in some cases legislate in relation to same matter as Dominion 352-3, 359-6o Power to define their own privileges. 40, n., 64, n. i, 68-9, 176, n. I, 741-50 " to examine witnesses 65,741-2 '• to punish for contempt 68-9, 74' '9 Privileges and immunities of.. 40, n., 64, n. i, 176, n. i, 741-50 Rule for testing validity of Acts (Prop. 58). . .497-501, 645 6 Provincial Officers Power of appointment of 134, 179 80 Provincial Powers See, also, s///> ' Provincial Acts,' ' Provincial Legisla- ture,' 'Legislative Power,' ' Minister of Justice, Reports of,' 'Statutes,' and Table of References, pp. v. -vi. Abolition of Courts, power as to 148-9 Abuse, possibility of, no argument against 663 4, 682 Administration of Justice, Constitution of Courts, etc. 71, 87-8, 124, n. I, 125-6, 136 76, 293, Ad- denda to 330-1, 415, 435, 440-1, 447-8, 482, 486-7, 516-20, 5389, 733-4. 748, n. I, 768, n. And see si/d ' Courts.' Admiralty Courts, as to 5'^ Agriculture and Immigration (Props. 27 and 28) .... 347 Aiding Dominion laws 53S-40, 615-6 Aliens, as to 328 33, 459-60 Alimony, as to 489? "• Amendment of Constitution 100-2, 239, 242-3, 250-1, 295-6, 698 700, 746-9, 755, n. I, Ante-Confederation powers, how far to be considered (Prop. 4) 2, 4-20, 29, n., 38, 41-61 Appeals to Privy Council, as to 183-4 Appeals to Supreme Court, limiting 137,"' 3 As to altering or repealing statutes of province of Canada ( Prop. 30 i ) . .'". 366-71 Autonomy of provmces (Ptop. 64) 64, 68, 107, 670, 701-4 Bankrupts or insolvents, as to 385-6, 41 1-2, 6S3-5, 767-8 Banks, power to tax 663-6, 673-6, 716-8 Brewers and other wholesale licenses 27-8, n., 375'6, 67980, 719-20, 726-30 Charities, etc., in and for the province 762 General Index. 817 Provincial Powers — continued . Chinese, as to 4234 Co-equal and co-ordinate in all provinces(Prop. 65)54 6, 705-9 Colourable exercise of (Prop. 32) 372-81, 715, n. i Companies, incorporation of 236, 457-8, n., 632 43, 762 Concerned with only local or private matters 648 Concerted action by different provinces (Prop. 67). .314-6, 751 Concurrent with Dominion, how far (Props. 27 and 28) 348-64, 432-5 Confined to those expressly given (Prop. 66) 170 Conjoint action of legislatures 314-6 Constituting legislature Court to try libels on mem- bers, etc 176, n. I, 748, n. i Corporations, Dominion and foreign, in respect to (Props. 55 and 56). .505, 617-44, 623-7, 634, n., .... 674, 726, n. 2 ; also Addenda to p. 623, n. i . Corporations of old province of Canada, as to 366-S Corporators, as to rights of 457-8, n. County Court judges, as to 3S6 7, 522 5 Criminal matters, in relation to. ..51, 354-5, 379 80, 466, n., 506, n. 2, 686, n. i, 748, n. i Delegated, not merely (Prop. 17) 222, 244-59 Delegation of to municipal institutions, etc. ..33-4, 128 9, 2456, 521-2, 689-92 Direct taxes on banks 185-6 (And see ' Taxation ' infra-) Domicil as affecting 46 1 -3 Don)inion area, incidental encroachment on 454-68 " how far subordinate to (Props. 17, 46, 61) ••■•107, 253-4, 31S, n. 2, 355, 5334, 670-1, 702 3 " laws, supplementing 507-9, 538-40, 615-6 " legislating in pari inaterid with . . . 352-5, 35960 " legislation may be interfered with (Prop. 61) 355. 545-6, 663-82 " may share broad general sul>ject with 361-4- 453> 477, 483-94, 499 " officers, and salaries, as to 671 8 " powers, not limited by possible range of unexercised (Prop. 62) 3502, 683-8 " powers prevail where conflict direct (Prop. 46) 533-4 " revenue, affecting 402, n., 656, 680-2 " subjects beyond reach of (Prop. 33) 381-6, 380, n. I, 385-6, 538-9, 650-1 " tribunals and judges, in respect to. .465, n. , 522-5 Education, over 218-9, 250-1 Enumerated (Prop. 66) 170, 710-12 Exceptions out of Dominion powers (Prop. 40) . .477, 483-94 Exclusive, or concurrent, how far (Props. 27 8) 348-64 Executive authority 104, 115, n. i " Council not suable in respect to official duties 97 " power correlative with legislative (Prop. 8) 88, 123-76 Federal veto on, procedure as to (Prop. 10) 172-4 Fire-arms, as to sale of or carrying 409 Fisheries in provincial waters, as to 615-6 8i8 Legislative Power in Canada. Provincial Powers — contimied. Forfeiture of goods of felon, as to 6i6, n. i " " " provincial power to impose . . .. 463,11. (lame protection, as to 561 , n. , 654-5 Immigration, as to 258, 460, n. 2 Imperial Acts, as to power to affect in relation to province 230- 1, 366, n. 2 Imperial veto, none as to provincial Acts 202 Imprisonment for debt, as to 415, 687-8, 768, n. i Incorporation of companies 236, 4578, n., 632-43, 762 Indian title, as to 98, 129, 593, 678-9 Indirect attempts to exceed (Prop. 34) 386-92 " taxation, as to 482-3, 730-41 Inherent powers of provincial legislatures. .65-9, 346, 452, ■)•, 7123- 741-50 Interest, as to 388 90, 506-7 Jttiiciajiivant 314-6 [ustices of the Peace and other judicial t)fficers, ap- pointment of. .71, 90-1, 1234, 127-8, 136-76, 205-6, 240-1, 387-8 Lands, mines, minerals, and royalties, as to 6o6-l6 Licenses under No. 9, sect. 92, 26-8, 36-7, 187-8, 373, 375-7. 394-40S, 417-8, 423-4. 435-6, 484-6, 541-3, 705-6, 723-30 Lieutenant-Cjovernor, as to 100-2, 239, 295-6 Limited by subject matter 382, 576-7 Liquor trade licensing 394-408, 423-4, 528 9, 653-4 Local option legislation 495-6 Local or private matters, as to (Prop. 59), 360, n. i, 395, 401, 406-7, 416-7, 507-9, 565-6, 578-9, 648, 683-5. 735-40 " works and undertakings, as to.. 391-2, 461-3, 520, n. 2, 641, n. 2, 739, n. 4 Marriage and solemnization of dT,. 362-4, 488-9 Mortmain, as to 619-22 Motive of exercise not material (Prop. 20I . ..273-8. 374, n. i "Municipal institutions, as to.. ..41, n. i, 57 9, 386, ■■• ••- • 398, n. I, 460, 521-2 Navigation comjianies, incorporation of 641-2, n. Notes and bills of companies, elc 457-9 Onus in impugning provincial Acts (Prop. 60) 662 Pardoning powers, and indemnity Acts. .39-40, 180-4, 391, 749, n., and see Addenda. Penal laws, as to. .30-1, 38, 51, 354-5. 368-71, 379-So, 413-4,419-23,456,463-8, 487, 506, n. 2,686, n. i,748,n.l Pharmacy Acts, restricting drug selling 455-6 Plenary and sovereign within their own limits, (Props. 17 and 19).. 18, 128-30, 222, 244-59, 270-2, 670-1, 702-3, 740-I Police regulation .35-6. 378, 395 6, 403-7, 408, n. 2, 410-3, 456, 556, n. 2, 653-4. 727, n. 3, 728, n. 5, ••-;•••. : 730, n- I Presumption in favour of valid exercise of (Prop. 18) . 260-9, 272, 342, n. Privileges and immunities of legislatures 40, n., 64, n. I, 68 9, 176, n. i, 741-50 Piivy Council, as to appeals to 183-4 General Index. 819 Provincial Powers — continued. Procedure as to penal laws 463-8 " under Dominion Acts outside o( 538-9 Prohibition of importation 657, 6802 " of intoxicants 378, n. 4, 399-402 " of manufactures 401, n. i, 657, 680-2 Property and civil rights in the provinces (Prop, 6S) 18-20,279-88,313-6,396-7,400-1,411-5,427, n. I, 444. 447-9. 458, n., 459-60, 478-9, 482-3, 486-7, 500-1, 5037, 531-2, 544, 562-3. 571, 582, 584-90, 594 8, 606, n. I, 616, n. I, 618-27, ;• 678, n. I, 752-70 ' Property and civil rights,' meaning of 752-5 Property and civil rights ' in the province/ meaning of 755-68 Provincial officers, appointment of 134, 17980 Punishment by fine, etc 30-1, 38, 368-71, 456 Queen's Counsel, as to. . .87-9, and Addenda, 133-6, 1789, 233-4> 754, n- 2 Railways, as to 399, n. i, 520, n. 2, 596, n. i, 605, n., 722 3 Railway crossings, as to 399, n. i, 605, n. Rebate or percentage on taxes, as to. .297, 370, n. i, 388-90, 421-2, 480-1 Residuary power over local or private matter^ 342-3, 651-61, 712 Royal prerogative, power over 176-84 Rule for testing validity of Acts (Prop. 58).. . .497-501, 645-6 Sanitary regulation, as to. . .384-5, 455 6, 508 9, 65960, 693 Supplementing Dominion laws 5 'Commerce, Regulation of trade and.' Responsible Government In Canada 40 In Australia 118 ' Retail ' and ' Wholesale,' distinction between 726 30 Retroactive and ex post facto legislation 284 As to customs duties 282, 449, n. 2 'Rivers and Lake Improvements ' in Sched. 3,- B.N. A. Act 593, n. i Royal Instructions, see ,w/;' Crown.' Royal Prerogative, see si ' Crown.' Royalties 609 1 1 Russell V. The Oueen Special reference to the argument before the Privy Council 398, n . i Sanitary legislation 384-5 Boards of Health 659 60 Vaccination Act 660, n. 3 Secretary of State for the Colonies, see si^d ' Despatches,' and ' Colonial Secretary.' General Index. 821 Shipping and navigation, see sub ' Dominion Powers,' and ' Merchant Shipping Acts.' Situs of debts and choses in action 759, n. i, 760, n. * So far as this legislature has power so to enact ' Effect of such phrase in Acts loi , n. Solemnization of Marriage, see sub <■ Provincial Powers.' Stamp Acts Under guise of license Act . 53, 373, 417-8 Taxation by stamps 373, 417-8, 714-6, 733-4 Status As affected by colonial laws ... 329, n. 3 Statutes Ambiguity cannot invalidate 272 Ancillary provisions in (Prop. 37) 377, 425-68 Bills of lading, as to 553, n. 2 " of sale and chattel mortgages, as to 436, n. 3 Cautionary phrases in . . loi, n., 295-6, 380, n. i Chinese, as to 254-9, 423-4 Conditional legislation.- 443, n. 2, 495-6, 565-6 Declarations of legislative intent may be disregarded to support validity 264-7, 274-5 Embargo laws, and coasting regulations 556 Estoppel against disputing validity of 260, n. i, 303 4 Explosions, as to . . 409-10 Extra-territorial 322-38 Firearms, as to sale or carriage of 409 Fisheries, as to 52, 447, n. I Imprisonment for debt, as to 415 Incidental effect of law does not alter its character (Prop. 36) . . 416-24 Indemnity legislation 391, and Addenda Local option legislation 401, n. 3, 416-7, 495-6 Lotteries and betting, as to 401, n. 3, 534, n. i Motives of legislature not material (Prop. 20) . . . .273-8, 424 Non-return of convictions, as to 444-5 Nuisances, as to 412-3, 422-3 Pawnbrokers, as to 549, n. 3 Peace Preservation Acts 446-7 Preamble may be disregarded to support validity. . . . 264, 275, 277, 423 Presumption in favour of validity of (Prop. 18). .260-9, 337-8 Private bill legislation 548, n. i Recitals as to facts 288 " may be disregarded to support validity 274-5 Retroactive legislation 282, 284 Sanitary legislation 384-5, 659-60 Stamp Acts 53, 373, 417-8 Title may be disregarded to support validity 264, 275 Ultra vires, two kinds of 335-6 Union Act between England and Scotland 551-2 Warehouse receipts, as to 428 9, 553, n. 2 See also sub ' I^egislative Power,' ' Dominion Acts,' ' Provincial .Acts,' ' Ultra vires.'' 822 Legislative Power in Canada. Stipendiary Magistrates 170 i, 175-6 Stolen goods, right to 616, n. i Story on the Constitution of the United States, referred to 30, 267, 474-6, 627, n. 2 * Subjects ' of a colony 328, 329, n. 2, 334 Sunday observance, laws respecting 360,0.2 Superior Courts, see sit /> 'Courts.' Superior Court judges, see w/^ ' Courts.' Taxation Auctioneers, taxation of 562 Banks, provincial tax on ....... . 185 6, 663-6, 673 6, 716 8 Chinese, ta.xation of 254-5, 423 Debates before Confederation as to provincial powers of 732, n. Direct taxation 417-8, 680, 713 21, 723-4 Distinction between regulation and 561 , n. Ferry boats, tax on 562-3, 642, n. Indirect taxation, what is 417-8 Licenses, Dominion power to tax by 408, n. i " by, not indirect 36r, n. 2, 723-4 Mortgages, tax on 721 Need not be equally apportioned, uniform, or general ; 254-5, 720, n. I, 722-3 New Brunswick lumber dues 730 Powers of, divided between Dominion and provinces. • 361-2, 408, n. I Provincial licensing of Dominion and foreign corpora- tions 623-7 " power of, see sit/> ' Customs and Excise,' ' Provincial Powers,' 'Taxation, 'and Table of References, pp. v-vi., under Section 92, Nos. 2 and 9. " subsidies to Dominion railways 722 " taxation of Dominion corporations 674 " " " Dominion notes held as bank reserve 669, n. 3 " " " Dominion officers 671-7 " << »' employees of Intercolonial rail- way 677, n. " c. <. insolvents' effects 677-8 " " " wholesale dealers 679 80, 719-20, 726-30 Rebate or percentage on taxes in arrear, allowance of 421-2 Shipping, taxation of 642, n. Stamp duty on purchases and sales 715-6 Stamps, taxation by 373, 714-6, 733-4 Unpatented lands, taxation of 614, n. 3 Temperance Act, 1864 368-71 Three mile limit 608, n. i, and Addenda. Todd, Alpheus His view of Confederation as a surrender of powers by provinces to Dominion 9 I General Index. 823 Todd, Alpheus — continited. His work on Parliamentary Ciovernment in British Colonies specially referred to 255, 308-9, 454-5 Trade and Commerce, Regulation of See sub ' Commerce.' . Travis, Judge. His treatise on Constitutional Powers in Canada specially referred to 308, n. 1,31 1-6, 362-3 Treason, Dominion power over 246-7 Treaties Dominion and provincial Acts at variance with 2559 The especial care of Dominion 256 Imperial treaties in relation to Imperial Acts 255, n. 3 with China 256-7 Treaties and Congress 255, n. 3 ' Trusts existing in respect thereof Meaning of in section 109, B.N. A. Act 613-4 Ultra Vires Acts ultra vires in part only (Prop. 22) 289-99 Indirect trespasses of legislatures (Prop. 34) 386-92 Necessity for specially pleading 3°3'4 Onus in impugning provincial Acts (Prop. 60) 662 Predominance of Dominion powers 5'^2, 526-37 Presumption in favour of validity (Prop. 18)... .260 9, 337-8 Rule for determining validity of Dominion Acts (Prop. 43) 497-501 " " '« " " Provincial Acts (Prop. 58) 497-501,645-6 Two kinds of ultra vires statutes 335-^ Ultra vires Act a complete nullity (Prop. 23) . . . .204-5, 3°° 4 " Order in Council, liability for 304, n. 2 Vague comprehensiveness does not invalidate 295-6 See, also, sub ' Statutes.' Union Act, 1840 References to 15-16, 65, 67 Union Act between England and Scotland Referred to by Privy Council 55^ 2 United States Constitution Contrasted in respect to concurrent powers 356-7 " " " " eminent domain 285 " " " " federal power over civil rights and contracts . . . .434, n. 3 " " " " federal power over com- merce 551. n. 3. 558, n. " " " *' federal power over State Courts 512, n. 4 " " " " federal veto power 185-7, 195 " " " " general character of 32 " _ " " " police power 378 " " " " powers of ta.xation. . .254, 720, n. i " " " " residuum of power ... .339-41, 341-4 824 Legislative Power in Canada United States Constitution — continued. Contrasted in respect to State power to limit range of federal power 663 " " " *' State sovereignty " " " " supremacy of legislatures 247 5S, 2868 General character of powers of Congress 563 4 General principles of its interpretation 474-6 How far cases under, a guide to us 56 Legislatures under, contrasted with Imperial parlia- ment 250 Ownership of beds of water in United States 608, n. 2 Relation of treaties to Acts of Congress 255, n. 3 Rule of necessity in respect to incidental powers .... 452, n. Story on, specially referred to 267, 474 6, 627, n. 2 Supremacy of Acts of Congress 527, n. 5 See, also, Introductory Chapter. Vaccination Act 660, n. 3 Vattel References to 2S-9, 30- 1 , 32, 33 Vested rights of property Dominion protection of by veto power 199-201 May be disregarded by Canadian legislatures (Prop. 21) 279-88 Veto power of Imperial Government Does not extend to provincial Acts 202 Effect of on vetoed Act 203, n. 2 Exercised against extra-territorial Canadian Acts. . . .338,n. 5 Other reference to 253 Veto power of Dominion Government (Prop. 10) 185-203, 253, 665-6, 669-70, 709 Adderley, Under-Secretary of State, on 198, n. i As exercised on Nova Scotia Mining Act, 1892 199-200 As to provincial Acts contrary to Dominion policy . . 202, n. Cannot be confined to part of Act 197, 289, n. i " " exercised after one year 161, 196-7 " " exercised conditionally 197 Check on legislative injustice and interference with vested rights 189-90, 199-202 Dominion House of Commons should not interfere.. 197 Exercise of in early days of Confederation 150 Goldwin Smith on 195 How exercised in practice 198-201, 206 Minister of Justice on pioper procedure in reviewing provincial Acts 172-4 Non-exercise of cannot validate ultra vtres \.c\. (Prop. It) 204-7 " " no admission of validity of legisla- tion 14950, 157, 168 " " some argument in favour of validity 206 Referred to in Debates on Confederation 194-5 Supplies to some extent plnce of second Chamber. . . . 189-90 Vested in Governor-General in Council 191-3 When it takes effect 203 Warehouse receipts, Acts respecting 428 9, 553, n. 2 General Index. 82 D Waters Authorization of bridges over navigable waters 634, n. Companies for constructing booms in rivers 639-41 Dominion Act as to constructions irt navigable waters 563, n. 2 Harbours, see sub zwf. Merchant shipping legislation 212, 230, n. i, 642, n. Navigable waters, power over • 640-3 Ownership of beds of navigable waters in Canada 562,6o7-8,6i6,n. [ <« " " " " " in the United States. . .608, n. 2 Rivers and lake improvements in Sched. 3 of B.N. A. Act 593, n- i Rule of riparian ownership ad vtediian fiiuin 608, n. 2 Three mile limit 608, n., and Addenda to p. 321, n. 5 * Wholesale ' and * retail,' distinction between 726-30 Wholesale licenses, see .v///' ' Licenses.' Winding-up Acts Dominion 52-3, 209, 628-32 Ontario 4158, n. Witnesses Dominion Acts as to matters before foreign tribunals 319 Workmen's Compensation for Injuries Acts. . 596-7, n. Works, see snh ' Local works and Undertakings.' UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. IR '8 mzztm 211964 Form L9-17m-8/55(Bo33ys4)444 JL L52 1 AA 000 568 728