A SHORT TREATISE

ON

Canadian Constitutional Law

BY

A. H. F. LEFROY

AUTHOR OK “CANADA’S FEDERAL SYSTEM’ AND ‘LEGISLATIVE Po \VF.R
IN CANADA’

With an Historical Introduction
BY

W. P. M. KENNEDY

DEPARTMENT OF MODERN’ HISTORY, UNIVERSITY OF TORONTO

TORONTO:
THE CARSWELL COMPANY, LIMITED

LONDON:
SWEET It MAXWELL, LIMITED

1918

COPYRIGHT: CANADA,- 1918, BY THE CARSWELL Co., LIMITED.

TO THE MEMORY OF MY SON
FRAZER KEITH LEFROY

SECOND-LIEUTENANT, ROYAL FIELD ARTILLERY,
WHO WILLINGLY GAVE HIS LIFE
FOR CANADA AND THE EMPIRE,

AND FOR THE PRINCIPLES OF A CHRISTIAN CIVILIZATION,

ON THE WESTERN FRONT IN FRANCE,

ON APRIL 7th, 1917,

IN HIS 23rd YEAR,

I DEDICATE THIS BOOK.

383618

PREFACE

This Short Treatise upon Canadian Constitu-
tional Law, which I now offer to the profession and
the public, embodies the two-fold scheme, of pro-
viding a text concise and simple enough for the
purposes of University students and law students,
and, at the same time, supplying in the Notes all the
requirements of the practical lawyer called upon to
advise upon some question arising under the Brit-
ish North America Act, or otherwise in relation to
the Federal Constitution of the Dominion o Can-
ada. In the Notes my aim has been to cite prac-
tically every scrap of authority, direct or indirect,
which exists upon these matters. I have had the
ideal throughout of completing my task absolutely
regardless of the trouble involved. I do not think
that anyone who turns over the pages of the Notes,
or looks at the Table of Cases, every one of which
has been carefully studied, will harbour any doubt
as to the labour which I have put into this volume.

Will anyone ask whether my subject is worth
such an expenditure of time and trouble? From a
commercial point of view it may not be : but a man
must take very short views, and be possessed of
little imagination, who does not see the interest and
importance of those constitutional rules and ar-
rangements which lie at the basis of the national
life of this Dominion. The greatest pessimist, if
he possesses normal intelligence, cannot any longer
doubt the glorious future which lies before the Bri-
tish Empire when, with the favour of Heaven, the
allied nations have victoriously completed the

VI CANADIAN CONSTITUTIONAL LAW.

present titanic struggle against the diabolism and
grasping ambition of modern Germany, nor the
place which this Dominion is destined to hold within
it. But however glorious the future of Canada may
be it may well be worked out, so far as concerns
her internal affairs, upon the basis which the
Fathers of Confederation laid in the British North
America Act, 1867.

That Act, it may surely be said, is the most suc-
cessful piece of constitutional legislation which has
ever emanated from the Parliament at Westminster.
Much of the credit of that success must no doubt be
accorded to the men who have lived and worked un-
der the system created by it, that sturdy blend of
English, Irish, and Scotch, which forms the predo-
minating element in the British Canadian provinces,
whose staunchness and constancy is now winning
recognition on the battle fields of Europe. But
while making every allowance for this aspect of the
matter, the fact remains that the more thought and
labour one expends on the Constitution of Canada
under our Federation Act, the greater grows one’s
admiration for the wisdom and prescience of those
to whose constructive genius it is due. I have said
something on that subject in the concluding portion
of this Treatise, and there is no need to repeat it
here.

I have had the good fortune to enlist the ser-
vices of Professor W. P. M. Kennedy, of the Uni-
versity of Toronto, in contributing an Historical
Introduction which I feel sure will be found to add
very materially to the interest and value of the book.

A. H. F. LEFROY.
JULY IST, 1918.

TABLE OF CONTENTS

PAGE

Preface v-vi

Ta*ble of Cases Cited xi-xxx

Table of Statutes Referred to xxxi-xxxiii

Table of Abbreviations xxxv-xxxvil

Addenda xxxix

Leading General Propositions xli-xlviii

Historical Introduction 1-35

Sec. I. Formation of the Dominion of Canada Its Compon-
ent Parts Canadian Constitutional Acts 37-40

Sec. II. Synopsis of the Scheme of the Canadian Constitu-
tion as contained in the British North America
Act, 1867 Its general analogy to the Constitu-
tion of the United Kingdom 40-47

Sec. III. The Imperial Parliament Its paramount auth-
ority 47

Sec. IV. The Genesis of Confederation The Pre-Confedera-

tion Constitutions 47-49

Sec. V. English Law in Canada Systems of law in the

Different Provinces 30-59

Sec. VI. The Crown in Canada 59-66

A. The Crown one and indivisible 59-60

B. The prerogative of the Crown in Canada 60

C. The prerogative may be bound by Dominion or pro-

vincial statutes 60-61

D. The representatives of the Crown in Canada 61-62

E. The Federal disallowance power 62

F. Principles on which the Federal disallowance

power is exercised 63-66

Sec. VII. Certain Introductory Matters and General Prin-
ciples of Interpretation of the British North
America Act, 1867 66-80

A. Plenary powers of Canadian legislatures 66-67

B. Imperial Treaties 67-68

C. Power of Canadian legislatures to delegate their

Functions 68-69

D. Law Courts not concerned with the motives of the

legislature in legislating 69

E. Colourable legislation 69-70

F. Law Courts not concerned with justice of legisla-

tion . 70

Vlll CANADIAN CONSTITUTIONAL LAW.

PAGE
G. Some introductory remarks as to the distribution

of legislative power within Canada 70-72

H. The General Scheme of the distribution of legis-
lative power 72-74

I. The Dominion residuary legislative power 74-77

J. The distribution of legislative power between the

Dominion and the provinces exhaustive 77-79

K. Extra-territorial legislation, generally speaking,

invalid . . . 79-80

Sec. VIII. Concurrent legislative power of Parliament and

legislatures 80-82

Sec. IX. General principles of construction of the sections
of the Federation Act respecting the distribu-
tion of legislative power between Parliament
and legislatures 82-83

A. Federation Act to be construed as a whole 82-83

B. Overlapping legislation 83-84

C. Rules for testing constitutional validity of statutes. 84

Sec. X. Predominance of Dominion over provincial legisla-
tion 84-85

Seel XI. Exclusiveness of Dominion enumerated powers. . .85-86

Sec. XII. General character of the powers- of the Dominion

parliament . . . 86-87

Sec. XIII. The relation between the Dominion enumerated

powers and the provincial powers 87-88

Sec. XIV. Locally restricted Dominion laws 88-90

Sec. XV. Extension of Dominion power over all Canadian

subjects . . . 90-91

Sec. XVI. The general character of provincial law-making

powers 91-9.1

A. None except the enumerated ones 91

B. Inherent powers of legislatures apart from law-

making 91-93

C. Provincial powers co-equal and co-ordinate 93

Sec. XVII. Power to repeal or alter statutes of the old Pro-
vince of Canada 93

Sec. XVIII. Dominion intrusion on provincial area. Ancil-
lary legislation 93-95

A. Indirect interference 93-94

B. Direct intrusion Powers by implication 94

C. Rule of necessity as applied to such Dominion in-

terference 94-95

Sec. XIX. Provincial intrusion on Dominion area 95-96

Sec. XX. Provincial independence and autonomy 96-98

A. Incidental interference with Dominion legislation

does not invalidate provincial Acts 96-97

TABLE OF CONTENTS. IX

PAGE

B. Injustice does not invalidate Acts 97

C. Possibility of Dominion legislation superseding

them does not invalidate provincial Acts 97-98

Sec. XXI. Aspects of legislation 98

Sec. XXII. Some other considerations relevant to the ques-
tion of the constitutionality of statutes “..98-100

A. The object and scope of the legislation 98

B. Presumption in favour of the validity of Acts 99

C. Declarations of the Dominion parliament inter-

preting the Federation Act 99

D. Continued exercise of a legislative’ power does not

make it constitutional 99-100

Sec. XXIII. Statutes unconstitutional in part only. Nullity

of unconstitutional statutes 100

Sec. XXIV. Legislative power in relation to proprietary

rights 101

Sec. XXV. Specific legislative powers Dominion and pro-
vincial . . . . 101-144

A. Dominion enumerated powers in their order as

stated in sec. 91 of the Federation Act. (See
General Index, infra pp. 310-311) 101-124

B. Provincial enumerated powers in their order as

stated in sec. 92 of the Federation Act. (See
General Index, infra pp. 317-318) 124-143

Sec. XXVI. Powers in respect to making laws in relation to

Education . . . 143-149

A. Quebec, Ontario, Nova Scotia, New Brunswick,

Prince Edward Island and British Columbia, 144-147

B. Manitoba 147-148

C. Alberta and Saskatchewan 148-149

Sec. XXVII. Legislative power in relation to Agriculture

and Immigration 149

Sec. XXVIII. Dominion Courts and sec. 101 149-151

Sec. XXIX. Property provisions of the Federation Act dis-
tributing public property between the Domin-
ion and the provinces 151-153

A. Dominion property as set out in sec. 108 and sche-

dule 3 of the Federation Act 151

B. Provincial property as set out in sec. 109 of the

Federation Act . . . . 152-153

Sec. XXX. Controversies between the Dominion and the

provinces. The rule of law in Canada 154

Sec. XXXI. Some concluding remarks 154-156

TABLE OF CASES 1

Abbott v. City of St. John, 40 S. C. R. 597, 38 N. B. 421

nn. 123, 163

Adams, In re, 1 Mo. P. C. 460 n. 205

Ah Yin v. Christie, 4 C. L. R. 1428 n. 375

Aitchison v. Mann, 9 O. P. R. 253 nn. 115, 197

Alberta and Great Waterways R. W. Co., 20 Man. 697,

nn. 69, 82, 312

Alberta Railway Act, In re, 48 S. C. R. 9 nn. 233, 236

Algoma Central R. W. Co. v. The King, 7 Ex. C. R. 239.

nn. 158, 169

Allen v. Foskett, 14 N. S. W. 456 n. 58

Allen v. Hanson, 13 L. N. 129, 16 Q. L. R. 78, 18 S. C. R. 667. .n. 189

Alloway v. Rural Municipality of Morris, 18 Man. 361 n. 262

Angers v. Queen Ins. Co., 16 C. L. J. 204, 21 L. C. J. 77,

nn. 10, 78, 157a, 264, 276-
Anglo-Canadian Music Publishers Ass. v. Suckling, 17 O. R.

239 n. 198

Asbury v. Ellis, [1893] A. C. 339 n. 83

Ashbury Ry. Carriage and Iron Co. v. Riche, L. R. 7 H. L.

653 n. 288

A.-G. v. Flint, 16 S. C. R. App. 707 n. 169

” v. Mercer, 8 App. Cas. 767 n. 391

” v. Radloff, 10 Ex. 84 n. 337

” v. Stewart, 2 Mer. 143 p. 53

” for Alberta v. A.-G. for Canada, [1915] A. C. 363.

nn. 236, 376

” of British Columbia v. A.-G. of Canada (Precious Me-
tals Case), 14 App. Cas. 295.
nn. 2, 20, 71, 76, 122, 132,
164, 173, 302, 376, 386, 389, 391
y. Canadian Pacific R. W. Co.,
[1906] A. C. 204, 13 B. C.

289 nn. 140, 165, 233, 382

” ” ” v. Esquimau and Nanaimo R. W.

Co., 20 C. L. T. 268 n. 382

” ” ” v. Vancouver, etc., Ry. and Navi-
gation Co., 9 B. C. 338 n. 238

for Canada r. A.-G. for Alberta (Insurance Companies

case), [19161 A. C. 588.
nn. 68, 69, 70, 71, 132, 145,

149, 206, 243, 274, 288

1 A,-G.r=Attorney-General; n.=note; nn.=motes; p.^page.
When the reference is to a note, the relevant text should be
referred to.

Xll CANADIAN CONSTITUTIONAL LAW.

A.-G. for Canada v. A.-G. for Ontario, 20 0. R. 222, 19 O. A.

R. 31, 23 S. C. R. 458.

nn. 61, 251, 329, 335

v. Ontario, 28 S. C. R. 458 n. 37

r. ” ” the Provinces (Fisheries case),
[1898] A. C. 700, 26 S. C.

R. 444 nn. 62, 94, 121,

126a, 139, 140, 163, 172, 254,
267, 272, 276, 376, 380, 382,

383, 386, c/89

v. Cain, [1906] A. C. 542 nn. 36, 53,

80, 204, 205

v. Ewen, 2 B. C. 468 n. 383

v. Flint, 16 S. C. R. App. 707, 3 R. & G.

453 . nn. 102, 314

v. Giroux, 53 S. C. R. 172, 30 D. L. R.

123 201, 202, 387

v. Ritchie Contracting Co., 26 D. L. R.

51 nn. 65a, 233, 382

v. Sam Chak, 44 N. S’. 19 nn. 192, 314

Commonwealth v. Ah Sheung, 4 C. L*. R. 949.

nn. 82, 375
v. Colonial Sugar Refining Co.,

[1914] A. C. 237 p. 157

Dominion v. A.-G. for Ontario (Queen’s Counsel

case), [1898] A. C. 247. .n. 266
r. ” for Ontario, [1897] A. C. 199,

25 S. C. R. 434 n. 392

r. ” for Ontario, 22 0. R. 222… n. 43
r. ” of the Provinces, [1897] A. C.

199 n. 376

r. ” of the Provinces-, [1898] A. C.

700 n. 276

” Manitoba v. A.-G. for Canada, [1904] A. C. 799,

34 S. C. R. 287 n. 385

v. Manitoba License Holders Associa-
tion, [1902] A. C. 73 nn. 123,

126a, 154, 265, 339, 356
New South Wales v. Collector of Customs, 5 C. L.

R. 818 11. 37

Ontario v. A.-G. for Canada [1894] A.C. 189. .nn. 90,

188, 190, 196, 298, 327
v. ” (Supreme Court Re-

ferences case) [1912]
A. C. 571, 43 S. C. R.

536 nn. 65, 75, 76,

102, 314, 376

‘ ” ” ” (Companies Incorpora-
tion) [1916] A. C.

583, 598 nn. 288, 376

f. ” ” ” 39 S. C. R. 14, 10 Ex.

C. R. 293 n. 393

TABLE OF CASES. Xlll

A.-G. for Ontario v. A.-G. for the Dominion (Liquor Prohi-
bition Appeal, 1895) [1896] A.

C. 348 nn. 55, 68, 70, 71,

90, 91, 97, 113, 119, 126a, 127,

148, 268, 274, 303, 339, 355
v. ” for Quebec [1903] A. C. 38, 31 S.

C. R. 516 n. 932

v. Hamilton Street R. W. Co. [1903] A.

C. 524, 1 O. W. R. 6*12 pp. 116-7,

and nn. 85, 126a, 212, 214, 236, 281,

352, 376

” ” v. Mercer, 8 App. Gas. 767… nn. 86, 297, 390

” Prince Edward Island v. A.-G. for the Dominion,

[1905] A. C. 37 n. 6a

” Quebec v. A.-G. for the Dominion, 1 Q. L. R. 77,

2 Q. L. R. 236 n. 390

v. A.-G. for Ontario, [1910] A. C. 627, 42

S. C. R. 161 .n. 392

” ” ” v. Queen Insurance Co., 3 App. Gas. 1090.

nn. 60, 127, 273, 256
v. Reed, 10 App. Gas. 141, 8 S. C. R. 408,

26 L. C. J. 331, 3 Cart. 190. .nn. 255, 256

Aubry v. Genest, R. J. Q. 4 Q. B. 523 n. 331

Audette v. Daniel, 13 D. L. R. 240 n. 352

B.

Baie des Chaleurs R. W. Co. v. Nantel, R. J. Q. 9 S. C. 47,

5 Q. B. 65 nn. 196, 236, 327

Baldwin t;. Roddy, 3 U. C. R. (O.S.) 166 n. 27

Bank v. Tunstall, 2 B. C. (Hunter) 12 n. 308

Bank of Toronto v. Lambe, 12 App. Gas. 575. . .nn. 45, 79, 86,

89, 95, 106, 121, 123, 124, 142, 148, 152, 180, 254, 256,

259, 263, 264

Bartlett v. Scotten, 24 S. G. R. 367 n. 383

Barton v. Taylor, 11 App. Cas. 197 n. 108

Bateman’s Trusts, In re, L. R. 15 Eq. 385 n. 302

Baxter v. Commissioners of Taxation, 4 C. L. R. 1087 n. 263

Beard v. Steele, 34 U, C. R. 43 nn. 84, 95

Beardmore v. City of Toronto, 20 O. L. R. 165 n. 124

Beaulieu v. La Cite de Montreal, R. J. Q. 32 S. C. 97. .nn. 113, 218

Behari Lai, In re, 13 B. C. 415 n. 275

Belanger v. Caron, 5 Q. L. R. 19 nn. 138, 363

Bell Telephone, In re, 7 O. R. 603 nn. 197, 317, 379

Bennett v. Pharmaceutical Association of Quebec, 1 Dor. Q.

A. 336 n. 340

Berry v. Berry, 16 N. S. 66 n. 24

Black v. Imperial Book Co., 5 0. L. R. 184 n. 198

Blouin v. Corporation of Quebec, 7 Q. L. R. 18 n. 332

Bonanza Creek Gold Mining Co. v. The King, [19161 A. C.

566, 50 S. C. R. 534 p. 64; nn. 1, 42, 44, 87, lo’O, 201,

233, 286, 287, 379

XIV CANADIAN CONSTITUTIONAL LAW.

Booth v. Mclntyre, 31 C. P. 183 n. 392

Boucher, In re, 4 O. A. R. 191 n. 216

Bourgoin v. La Compagnie du Chemin de Fer de Montreal,

5 App. Gas. 381 nn. 138, 235

Bradburn v. Edinburgh Life Assurance Co., 5 0. L. R. 657.

nn. 115, 186

Brand v. Griffin, 1 Alta., 510 n. 31

Bread Sales Act, Re, 23 0. L. R. 238 nn. 182, 341

Bremner, Re, 6 Man. 73 n. 32

Brewers and Maltsters Association v. A.-G. of Ontario, [1897]

A. C. 231 nn. 123, 126a, 153, 240, 256, 265, 272-3-4

British Columbia Electric R. W. Co. v. Victoria, Vancouver

and Eastern R. W. Co., [1914] A. C. 1067, 48 S, C. R. 98,

13 D. L. R. 308 nn. 95, 115, 120, 234, 237, 283

Briton Medical Life Association, Re, 12 0. R. 441 n. 189

Brooks v. Moore, 13 B. C. 91 n. 375

Brophy v. A.-G. of Manitoba, [1895] A. C. 202 p.147;

nn. 358, 365, 366-7, 369, 370-2

Brown v. Reed, 2 Pugs. 206 n. 382

Bruneau v. Massue, 23 L. C. J. 60 n. 314

Burrard Power Co. v. The King, [1911] A. C. 87, 43 S. C. R.

27 . ..n. 391

C.

Caldwell v. Fraser (unreported) * nn. 164, 201, 388

Calgary and Edmonton Land Co. v. A.-G. of Alberta, 45 S.

C. R. 170, 2 Alta. 446 n. 262

Callender Sykes and Co. v. Colonial Secretary of Lagos,

[1891] A. C. 460 n. 10

Campbell v. Australian Mutual Provident Society, 77 L. J.

P. C. 117 nn. 243, 28S

Canada Atlantic R. W. Co. v. Montreal and Ottawa R. W.

Co.. 2 0. L. R. 336 n. 231

Canada Car and Mfg. Co. v. Harris, 24 C. P. 380 n. 291

Canada Southern R. W. Co. v. Jackson, 17 S. C. R. 316… n. 234
Canadian Northern R. W. Co. v. Pszcniczy, 54 S. C. R. 36,

nn. 88, 234

Canadian Pacific R. W. Co. v. Bonsecours, [1899] A. C. 367,

R. J. Q. 7 Q. B. 121.. p. 88;
nn. 79, 176, 229, 232, 235,

242, 246, 264
v. James Bay R. W. Co., 36 S.

C. R. 42 n. 132

v. Ottawa Fire Insurance Co., 39

S. C. R. 405 nn. 287, 291

v. Rural Municipality of Corn-
wallis, 19 S. C. R. 702,

7 Man. 1 n. 262

v. The King, 38 S. C. R. 476. .n. 236
and County and Tp. of York, Re,
27 0. R. 559, 25 0. A. R’. 65.

nn. 234, 270, 317, 379

TABLE OF CASES. XV

Canadian Prisoners’ case, 5 M. & W. 32 n. 205

Canadian Southern R. W. Co. v. Jackson, 17 S. C. R. 316.. n. 95

Carrie Bradbury, Re, 30 D. L. R. (N.S.) 756 n. 62

Central Vermont R. W. Co. v. Town of St. John, 14 S. C. R.

288 nn. 164, 383

Chandler v. Main, 16 Wise. 422 n. 220

Chantler, In re, 9 O. L, R. 529 n. 224

Charbonneau v. Pagot, 11 W. W. R. 1327 n. 15

Chia Gee v. Martin, 3 C. L. R. 649 n. 375

Choquette . Lavergne, R. J. Q. 5 S. C. 108, 3 Q. B. 303 n. 256

Church v. Fenton, 28 C. P. 384, 4 O. A. R. 159, 5 S. C. R. 239.

nn. 202, 389
Cie de C. F. de la Bale des Chaleurs v. Nantel, Q. O. R.

5 Q. B. 64 n. 181

Citizens Insurance Co. v. Parsons, 7 App. Gas. 96…. nn. 65,

86, 89, 106, 126a, 132, 143, 148, 157, 209, 232, 242, 246,

254, 287, 293, 301, 303

Clark v. Union Fire Ins. Co., 14 0. R. 618 n. 189

Clarke v. Jacques, R. J. Q. 9 Q. B. 238 n. 270

Clarkson v. Ontario Bank, 15 0. A. R. 166 nn. 175, 193, 303

Clemens v. Bemer, 7 C. L. J. 126 n. 219

Coal Mines Regulation Act, In re, 10 B, C. 408 n. 205

College de Medicins, etc. v. Brigham, 16 R. L. 283 n. 256

Colonial Building and Investment Ass. v. A.-G. of Quebec,

9 App. Gas. 157, 27 L. C. 295 nn. 60, 101, 137, 181,

232, 242, 246, 247, 292
Colonial Investment Co., Re, 23 Man. 871, 15 D. L. R. 634.

nn. 187, 196
Colonial Investment and Loan Co. v. Grady, 24 D. L. R. 176,

8 A. L. R. 496 n. 308

Columbia and Western R. W. Co. and The Railway Acts,

8 B. C. 415 n. 238

Commercial Cable Co. v. Government of Newfoundland,

[1916] A. C. 610 n. 42

Companies, In re, 48 S. C. R. 331 nn. 47, 61, 79, 147, 228,

232, 238, 242, 243, 245, 248, 273, 285

Companies Incorporation, Re, [1916] A. C. 598 n. 288

Compton, Tp. of v. Simoneau, 14 L. N. 347 n. 270

Cooey v. Municipality of Co. of Brome, 21 L. C. J. 182 n. 270

Cook v. Dodds, 6 O. L. R. 608 n. 95

Cooper v. Commissioners of Income Tax, 4 C. L. R. 1304. . .n. 249

Cooper v. Mclndoe, 32 L. C. J. 210 n. 242

Cooper v. Stuart, 58 L. J. P. C. 93 n. 17

Copeland-Chatterson, Ltd. v. Business Systems, Ltd., 16 O.

L. R. 481 nn. 222, 353

Cote” v. Watson, 3 Q. L. R. 157 n. 263

Cotton v. Rex, [1914] A. C. 176 nn. 256, 259, 260

Coulson v. O’Connell, 29 U. C. C. P. 341 n. 15

County Courts of British Columbia, In re, 21 S. C. R. 446.

nn. 105, 310

Couture r. Panos, R. J. Q. 17 K. B. 560 nn. 212, 234, 352

Cramp Steel Co., Ltd., Re, 16 O. L. R. 230 n. 196

XVI CANADIAN” CONSTITUTIONAL LAW.

Crawford v. Duffield, 5 Man. 121 n. 256

Crawford v. Tilden, 13 O. L. R. 169, 14 O. L. R. 572 n. 236

Criminal Code Sections relating to Bigamy, In re, 27 S. C.

R. 461 nn. 82, 83, 205, 207, 220

Crombie v. Jackson, 34 U. C. R. 575 nn. 104, 188, 318

Crowe v. MlcC’urdy, 18 N. S. 301 n. 270

Crown Grain Co. v. Day, [1908] A. C. 504 n. 378

Cunningham v. Tomey Homma, [1903] A. C. 151, 8 B. C. 76,

7 B. C. 368 nn. 60, 161, 203, 204, 205, 253, 270

Curran v. Grand Trunk R. W. Co., 25 0. A. R. 407 nn. 219, 234

Currie v. Harris Lith. Co., 41 0. L. R. 475, 40 0. L. R. 290. .n. 244

Cushing v. Dupuy, 5 App. Cas. 409 pp. 89-90; nn. 41, 190,

261, 298, 316
Cuvillier v. Aylwin, 2 Kn. P. C. 72 . .n. 41

D.

Dallaire v. La Cite of Quebec, R. J. Q. 32 S. C. 118. .nn. 131, 218

Dalmage v. Douglas, 4 Man. 495 n. 256

Danjou v. M’arquis, 3 S. C. R. 251 . .n. 378

Davidson v. Great West Saddlery Co.,. 27 Man. 576 n. 244

Deacon v. Chadwick, 1 0. L. R. 346 n. 326

De Varennes v. Le Procureur General, R. J. Q. 16 K. B. 571, n. 144

De Veber, in re, 21 N. B. 397 n. 194

Dewar v. Smith, [1900] S. A. L. R. 38 n. 174

Dion v. La Compagnie de la Baie d’Hudson, R. J. Q. 51 S. C.

413 n. 172

Dixon v. Snetsinger, 23 C. P. 235 n. 383

Dobie v. Temporalities Board, 7 App. Cas. 136, 3 L. N. 244.

nn. 53, 89, 107, 113, 135, 254, 289, 292, 301, 303

Doe, Re, 16 D. L. R. 746 nn. 259, 261

Doe d. Anderson v, Todd, 2 U. C. R. 82 nn. 17, 27

Doe d. Burk v. Cornier, 30 N. B. 142 n. 387

D~oe d. Hanington v. McFadden, 2 N. B. 260 nn. 24, 26

Doe d. Hazen v. Rector of St. James, 2 P. & B. 479 n. 27

Dominion of Canada v. Province of Ontario, [1910] A. C. 637,

42 S. C. R. 1, 10 Ex. C. R. 445 nn. 202, 387, 388, 39.2a

Dominion Insurance Act, 1910, In re, 48 S. C. R. 260 n. 136

Dominion License Acts, 1883-4, Re, Dom. Sess. Pap. 1885,

No. 85; Cas. Dig. S. C. 509; 4 Cart. 342, n. 2 nn. 126a,

135, 145, 254, 274
Dominion Marble Co. in Liquidation, Re, 35 D. L. R. 63

(Que.) nn. 143, 232, 242

Dominion Provident and Endowment Association, In re, 25

O. R. 619 nn. 196, 292, 323

Donegani v. Donegani, 3 Kn. 63 n. 205

Dow v. Black, L. R. 6 P. C. 272, 14 N. B. 300, 1 Pugs. 300.

nn. 228, 255, 257, 278

Doyle v. Bell, 11 O. A. R. 326 n. 120

Doyle v. Falconer, L. R. 1 P. C. 328 nn. 108-9, 249

Dulmage v. Douglas, 4 Man. 495 n. 87

Dumphy v. Kehoe, 21 R. L. 119 nn. 220, 302, 331

TABLE OF CASES. XV11

Duncan, Ex p., 16 L. C. J. 188 nn. 220, 353

Dupont v. La Cie de Moulin, 11 L. N. 224 nn. 95, 188

Dupuis v. Saint Jean, R. J. Q. 38 S. C. 204 n. 283

E.

Eastern Trust Co. v. MJcKenzle Mann & Co., [1915] A. C.

750 n. 36

Edgar v. Central Bank, 15 O. A. R. 193 n. 185

Eldorado Union Store Co., Re, 6 R. & G. 514 n. 189

Electrical Development Co. v. A.-G. for Ontario, 38 O. L. R.

383 nn. 42, 124

Eliza Keith, The, 3 Q. L. R. 143 n. 165

Ellis, Ex p.., 1 P. & B. 593 nn. 303, 327

Esquimau and Nanaimo R. W. Co. v. Bainbridge, [1896]

A. C. 561 n. 391

European and North American R. W. Co. v. Thomas, 1 Pugs.

42 n. 278

Evans v. Hudon, 22 L. C. J. 268 n. 263

Exchange Bank v. The Queen, 14 App. 157 n. 39

F.

Fader v. Smith, 18 N. S. 433 n. 382

Fallis v. Dalthaser, 4 D. L. R. 705 ! n. 352

Farewell, The, 7 Q. L. R. 380 nn. 122, 165, 169, 315

Farmers Bank, Re, Lindsay’s case, 35 O. L. R. 470 n. 189

Farmers Mutual v. Whittaker, 37 D. L. R. 705 n. 149

Farwell v. The Queen, 3 Ex. C. R. 171, 22 S. C. R. 553 n. 391

Felt Gas Compressing Co. v. Felt, 5 O. W. N. 821 n. 197

Fenton v. Hampton, 11 Mo. P. C. 347 n. 109

Fielding v. Thomas, [1896] A. C. 600 nn. 75, 110, 111,

220, 249, 252

Fillmore v. Colburn, 28 N. S. 292 n. 263

Fisher v. Village of Carmen, 16 Man. 560 n. 352

Fisheries case, see sub A.-G. for Canada r. A.-G. for the

Provinces, supra.

Flanaghan, Ex p., 34 N. B. 577 n. 314

Fletcher v. Fletcher (not yet reported) nn. 29, 31

Flick v. Brisbin, 26 0. R. 423 nn. 115, 197

Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 102

L. T. 375, 18 O. L. R. 275 nn. 62, 140, 303

Forsyth v. Bury, 15 S. C. R. 543 nn. 138, 246, 363

Fort George Lumber Co. v. Grand Trunk Pacific R. W. Co.,

24 D. L. R. 527 nn. 164, 165, 383

Fortier v. Lambe, 25 ‘S. C. R. 422 nn. “123, 265

Foster and Tp. of Raleigh, Re, 22 O. L. R. 26 n. 271

Fraser v. Kirkpatrick, 6 Terr. L. R. 402, 5 W. L. R. 287.

nn. 18, 31

Fredericton, City of v. The Queen, 3 S. C. R. 505 nn. 58,

Co, 89, 131, 138, 363

C.C.L. B

XV111 CAXADIAX COXSTITUTIOXAL LAW.

G.

Ganong v. Bayley, 1 P. & B. 324 nn. 308, 320

Gauthier v. The King, 56 S. C. R. 176 nn. 30, 36

Gavin Gibson & Co. v. Gibson, [1913] K. B. 379, 392. .nn. 82, 83

Gaynor v. Lafontaine, R. J. Q. 14 K. B. 99 n. 379

Geiger v. Grand Trunk R. W. Co., 10 0. L. R. 511 n. 16

Geller v. Loughrin, 24 O. L. R. 18 nn. 192, 225, 314, 322

Gentile v. British Columbia Electric R. W. Co., 18 B. C.

307 n. 15

Gibson v. Macdonald, 7 0. R. 401, 7 O. A. R. 701. .nn. 138, 310, 363

Ginsberg, Re, 40 0. L. R. 136 ‘ nn. 313, 317

Girard, In re, R. J. Q. 14 S. C. 237 n. 340

Gold Seal Co., Ltd., v. Dominion Express Co., 37 D. L. R.

769 ‘ n. 154

Goodspeed, In re, 36 N. B. 91 n. 226

Gordon v. Fuller, 5 U. C. (0. S.) 182 n. 10

Gower v. Joyner, 1 Terr. L. R. 387 n. 303

Graham v. Bell, 5 R. & G. 90 n. 27

Grand Junction R. W. Co. v. County of Peterborough, 45 U.

C. R. 302. 6 O. A. R. 339 n. 240

Grand Trunk R. W. Co. and City of Kingston, Re, 8 Ex. C. R.

349 nn. 102, 116

r. A.-G. of Canada, [1907] A. C. 65.

nn. 88, 234
v. City of Toronto, 22 0. R. 120.

nn. 234, 270
v. Hamilton -Radial Electric Co., 29

0. R. 143 nn. 234, 238

v. Therrien, 30 S. C.’ R. 485 n. 235

Grant v. Canadian Pacific R. W. Co., 36 N. B. 528 n. 236

Great North-Western Telegraph Co. v. Fortier, R. J. Q. 12

Q. B. 405 nn. 123, 264

Green, Ex parte, 35 N. B. 137 nn. 337, 352

H.

Halifax, City of v. McLaughlin Carriage Co., 39 S. C. R.

175 n. 378

v. Western Assurance Co., 18 N. S. 387. .n. 271
Hamilton, Grimsby & Beamsville R. W. Co. v. A.-G. for On-
tario, [1916] A. C. 583, 29 D. L. R. 521 nn. 228, 238, 239

Hamilton Powder Co. v. Lambe, M. L. R. (1 Q. B.) 460.

nn. 130, 275, 283

Harman v. A. Macdonald Co., Ltd., 30 D. L. R. 640 n. 244

Hart v. Corporation of County of Missisquoi, 3 Q. L. R. 170, n. 270
Henderson v. Canada Atlantic R. W. Co., 25 0. A. R. 437. .n. 16

Heneker . Bank of Montreal, R. J. Q. 7 S. C. 257 n. 180, 264

Henry Vancini, In re, 34 S. C. R. 621 nn. 102, 192

Henty v. The Queen, [1896] A. C. 567 n. 303

Hesketh v. Ward, 17 U. C. C. P. 667 n. 22

TABLE OF CASES. XIX

Hewson v. Ontario Power Co., 36 S. C. R. 596 p. 133;

nn. 228, 240, 278, 290

Hibernian, The, L. R. 4 P. C. 511 n. 165

Hill v. Bigge, 3 Mo. P. C. 465 n. 42

Hill v. Weldon, 3 Kerr (N. B.) 1 n. 110

Hodge v. The Queen, 9 App. Gas. 117 nn. 53, 55, 62,

86, 114. 126a, 145, 156, 190, 269, 298, 330, 332, 336, 339

Hodgins v. McNeil, 9 (Jr. 305 nn. 18, 27

Holman v. Green, 6 S. C. R. 707 n. 382

Holmes v. Temple, 8 Q. L. R. 351 n. 10

Horwitz v. Connor, 6 C. L. R. 39 n. 42

Hubbard v. City of Edmonton, 3 W. W. R. 732 n. 221

Hubert v. Mary, R. J. Q. 15 K. B. 381 n. 199

Hudson Bay Co. v. Heffernan, 39 D. L. R. 124 n. 154

Hull Electric Co. v. Ottawa Electric Co., [19021 A. C. 237.. n. 155

Huson v. Tp. of South Norwich, 24 S. C. R. 145 nn. 275, 339

Hydraulique de St. Francois, La Compagnie, v. Continental

Heat & Light Co., [1909] A. C. 194 nn. 101, 231, 245, 283

I.

Imperial Book Co. v. Black, 35 S. C. R. 488 n. 10

Initiative and Referendum Act, Re, 27 Man. 1. .nn. 53, 55, 76, 253
Insurance Act, In re, [1916] A. C. 588, 48 S. C. R. 200. .p. 70;

nn. 79, 114, 126a, 146, 186
International and Interprovincial Ferries, In re, 36 S. C. R.

206 nn. 174, 383, 391a

International Text Book v. Brown, 13 0. L. R. 644 n. 272

Iron Clay Brick Manufacturing Co., Re, 19 O. R. 113 n. 196

J.

Jacobs v. Beaver, 17 O. L. R. 496 n. 15

Johnson and Carey Co. v. Canadian Northern R. W. Co., 14

O. W. N. 159 n. 236

Johnson v. Poyntz, 2 R. & G. 193 n. 188

Johnson, In re, Roberts v. A.-G., [1903] 1 Ch. 821 n. 36

John Deere Plow Co. v. Wharton, [1915] A. C. 330 nn. 63,

65, 86-7, 123, 142-3, 150, 228, 242, 244, 248, 272, ?99, 376
Jones v. Canada Central R. W. Co., 46 U. C. R. 250. . .nn. 283, 303

k.

Kalibia, S. S. r. Wilson, 11 C. L. R. 689 HP. 136, 169

Kavanagh v. Phelon, 1 Kerr 472 n. 26

Keef e v. McLennan, 2 R. & C. 5 n. 275

Reefer v. Todd, 2 B. C. (Irving) 249 n. 234

Keewatin Power Co. v. Town of Kenora, 16 O. L. R. 184.

nn. 27, 165. 383
Kennelly v. Dominion Coal Co., 36 N. S. 495 n. 382

SX CANADIAN CONSTITUTIONAL LAW.

Kerley v. London and Lake Erie Transportation Co., 26 O.

L. R. 588, 28 O. L. R. 606 nn. 56, 115, 126a, 197, 212,

236, 280, 376

Killam, In re, 14 L. J. N. S. 242 nn. 196, 303

” King, The v.” see ” Rex v.”

King v. King, 37 N. S. 294 n. 308

King v. Martin, 36 N. B. 448 n. 169

Kitchen v. Saville, 17 C. L. T. 91 n. 342

Kittles v. Colonial Assurance Co., 28 Man. 47 n. 288

L.

Lafferty v. Lincoln, 38 S. C. R. 620 n. 113

Lake Simcoe Ice Co. v. McDonald, 29 O. R. 247, 26 O. A. R.

411, 31 S. C. R. 130 n. 164

Lake Winnipeg Transportation and Lumber Co., Re, 1 Man.

255 nn. 165, 172

Lambe v. Manual, [1903] A. C. 68 n. 258

Landers v. Woodworth, 2 S. C. R. 158 n. 108

Larsen v. Nelson and Fort Sheppard R. W. Co., 4 B. C. 151, n. 236
L’ Association Pharmaceutique v. Livernois, 30 S. C. R. 400.

n. 138
L’Association St. Jean Baptiste v. Brault, 30 S. C. R. 598.

nn. 215, 349, 376

Lawless v. Chamberlain, 18 0. R. 309 nn. 18, 27

Leamy v. The King, 15 Ex. C. R. 189 n. 165

Lee v. Bude and Torrington R. W. Co., L. R. 6 C. P. 576. .n. 60

Lee v. De Montigny, R. J. Q. 15 S. C. 607 n. 271

Legislation respecting Abstention from Labour on Sunday,

In re, 35 S. C. R. 581 nn. 212, 280

Lenoir v. Ritchie, 3 S, C. R. 575 nn. 133, 266

Leonard Watson’s case, 9 A. & E. 731 n. 205

Le Syndicat Lyonnais v. McGrade, 36 S. C. R. 251 n. 22

Levesque v. New Brunswick R. W. Co.; 29 N. B. 588 n. 234

Linde Canadian Refrigerator Co. r. Saskatchewan Creamery

Co., 24 D. L. R. 703 n. 243

Liquidators of Maritime Bank v. Receiver-General of New

Brunswick, [1892] A. C. 437 nn. 1, 39. 42, 53, 62,

112, 123, 227
Liquor Prohibition Appeal, [1896] A. C. 348, see sub A.-G.

for Ontario v. A.-G. for the Dominion, supra.

Local Option Act, In re, 18 O. A. R. 572 n. 276

London and Whitaker Claims Act, In re, 2 C. A. 41 n. 388

Longueuil Navigation Co. v. City of Montreal, 15 S. C. R.

566 n. 168

Lord’s Day Act of Ontario, In re, 1 O. W. R. 312 nn. 212, 236

Lovitt v. The Kin,?, 43 S. C. R. 106 nn. 258, 303

Low v. Routledge, L. R. 1 Ch. 42 n. 82

L’Union St. Jacques de Montreal v. Belisle, L. R. 6 P. C. 31.

p. 89; nn. 62, 91, 99, 125, 129, 138, 171, 188, 196, 357, 363
Lynch r. Canada North-West Land Co., 19 S. C. R. 204.

nn. 185, 186, 255

TABLE OF CASES.

XXI

M.

Macbeth v. Haldimand, 1 T. R. 170 n. 42

Macdonald v. Grand Trunk R. W. Co., 31 O .R. 663 n. 234

Macdonald v. Macdonald, 11 O. R. 187 n. 15

Macdonald v. Riordan, 30 S. C. R. 619 n. 234

Macdonald v. The King, 10 Ex. C. R. 394 n. 381

Macdougall v. Union Navigation Co., 21 L. C. J. 63 n. 166

Maclaren v. A.-G. for Quebec, [1914] A. C. 258 nn. 164, 383

Macleod v. A.-G. for New South Wales, [1891], A. C. 454.. n. 82
Madden v. Nelson and Fort Sheppard R. W. Co., [1899] A. C.

626 p. 175; n. 235

Maher v. Town of Portland, Wheel. Confed. Law 362-7, 2 Cart.

Gas. 486, n., 14 N. B. (1 Pugs.) 273 nn. 358-9

Malot v. Malot, 4 W. N. 1405 n. 211

Marriage Legislation in Canada, In re, [1912] A. C. 880, 46

S. C. R. 132 p. 116, and nn. 209, 294

Massey Manufacturing Co., Re, 11 O. R. 446 n. 42

Mathew v. Jenkins, 3 E. L. R. (P.E.I.) 577…’ nn. 122, 333

Matthew v. Wentforth, R. J. Q. 4 Q. B. 343 n. 328

May v. May, 22 O. L. R. 559 n. 211

McArthur v. Northern Pacific Junction R. W. Co., 15 0. R.

723, 17 O. A. R. 86 n. 234

McCaffery v. Ball, 34 L. C. J. 91 nn. 138, 363

McCaffrey . Hall, 35 L. C. J. 38 nn. 164, 351

McCarthy v. Brener, 2 Terr. L. R. 230 nn. 303, 326

McClanaghan v. St. Ann’s Mutual Building Society, 24 L. C.

J. 162 .. n. 196

McLaughlin v. Recorder’s Court, 4 Q. P. R. 304 n. 352

McCoubrey, Re, 9 D. L. R. 84 n. 344

McDonald v. British Columbia Electric R. W. Co., 16 B. C.

386 o n. 15

McDonald v. Elliott, 12 O. R. 98 n. 15

McDonald v. Lake Simcoe Ice & Cold Storage Co., 26 O. A.

R. 411 ‘. n. 382

McDonald v. McGuish, 5 R. & G. 1 n. 216

McGregor v. Esquimalt & Nanaimo R. W. Co., [1907] A. C.

462 n. 62

McKelvey v. Meagher, 4 C. L. R. 265 n. 205

McKilligan v. Machar, 3 M. R. 418 n. 418

McKinnon v. McDougall, 3 E. L. R. 573 n. 113

McLeod v. Municipality of King, 35 N. B. 163 n. 325

McLeod v. Noble, 28 O. R. 528, 24 O. A. R. 459 nn. 318, 328

McMillan v. South-west Boom Co., 1 P. & B. 715 n. 164

McMurrer v. Jenkins, 3 E. L. R. 149 n. 220

McNair v. Collins, 27 O. L. R. 44 n. 62

McNutt, In re, 47 S. C. R. 259 n. 353

Mercer v. A.-G. of the Dominion, 5 S. C. R. 538 nn. 102, 133

Merchants Bank of Halifax v. Gillespie, 10 S. C. R. 312.. n. 189

Merchants Bank v. Smith, 8 S. C. R. 512 n. 177

Miller v. Webber, 8 E. L. R. 460 n. 172

Monkhouse v. Grand Trunk R. W. Co., 8 O. A. R. 183 n. 234

XX11 – CANADIAN CONSTITUTIONAL LAW.

Montreal, City of v. Beauvais, 42 S. C. R. 193, R. J. Q. 7 K.

B. 420, 30 S. C. 427 nn. 126a, 144, 339, 344

Montreal, City of v. Gordon, Coutl. Cas. 343, R. J. Q. 24

S. C. 465 n. 160

Montreal, City of v. Montreal Street R. W. Co., [1912] A. C.

333, 43 S. C. R. 197 nn. 6S, 79, 88, 97, 142, 229, 234, 238

Montreal, City of v. Walker, M. L. R. 1 Q. B. 469 n. 275

Montreal Light Heat & Power Co. v. Archambault, R. J. Q.

16 K. B. 410, 41 S. C. R. 116 n. 389

Montreal & Ottawa R. W. Co. v. City of Ottawa, 4 0. L. R.

56 n. 231

Montreal Street R. W. Co. v. City of Montreal, [1912] A. C.

333, 43 S. C. R. 197 n. 117

Montreal Trading Stamp Co. v. City of Halifax, 20 C. L. T.

(Occ. N.) 355 n. 343

Moore v. Moore, 1 R. & G. 525 n. 27

Morden v. South Dufferin, 6 Man. 515 * . . .n. 185

Mousseau v. Bate, 27 L. C. J. 153 n. 197

Mowat v. Casgrain, R. J. Q. 6 Q. B’. 12 nn. 202, 392

Murne v. Morrison, 1 B. C. (pt. 2) 120 n. 185

Musgrave v. Chun Teong Toy, [1891] A. C. 272 n. 205

Musgrave v. Pulido, 5 App. Cas. 102 n. 42

N.

Nakane and Okazaka, In re . . .n. 54

Narain Singh, In re, 13 B. C. 477 nn. 234, 375

Nash v. Newton, 30 N. B. 610 n. 382

New B’runswick Penitentiary, In re, Coutlee’s Sup. C’t. Cas.

24 n. 226

New Zealand Loan and Mercantile Agency Co., [1898] A. C.

349 n. 10

Niagara Election case, 29 C. P. 261 n. 307

Niboyet v. Niboyet, 4 P. D. 20 n. 83

Nickle v. Douglas, 35 U. C. R. 126, 37 U. C. R. 51 nn. 258, 303

Norfolk, Rural Municipality of v. Warren, 8 Man. 481 n. 262

Normand v. St. Lawrence Navigation Co., 5 Q. L. R. 215.

nn. 164, 389
North Perth, In re, Hessin v. Lloyd, 21 0. R. 538 nn. 303, 318

0.

O’Connor v, Kennedy, 15 O. R. 22 n. 27

O’Danaher v. Peters, 17 S. C. R. 44 n. 275

O’Neill, Ex parte, R. J. Q. 28 S. C. 304 n. 113

O’Neil v. Tupper, R. J. Q. 4 Q. B. 315, 26 S. C. R. 122.

nn. 333, 353
Ontario Mining Co. v. Seybold, [1903] A. C. 73, 32 S. C. R. 1,

32 O. R. 301, 31 O. R. 386 n. 201

Ontario Power Co. v. Hewson, 6 O. L. R. 11, 8 O. L. R. 88,

36 S. C. 596 .n. 115

TABLE OF CASES. XXlli

Ontario, Province of v. Dominion of Canada, 42 S. C. R. 1. .n. 95
Ontario, Province of v. Dominion of Canada and Province

of Quebec, 25 S. C. R. 434 n. 380

Ontario, Provinces of, and Quebec v. Dominion of Canada,

28 S. C. R. 609 n. 392

Ottawa Separate Schools v. M’achell, [1917] A. C. 62. .nn. 360, 367
Ottawa Separate School Trustees v. Ottawa Corporation,

[1917] A. C. 76 n. 360

Ouimet v. Bazin, 46 S. C. R. 502, R. J. Q. 20 K. B. 416.

nn. 56, 212-4, 352

P.

Paige v. Griffith, 18 L. C. J. 119 n. 331

Paquet v. Lavoie, R. J. Q. 7 Q. B. 277 n. 220

Parent v. Trudel, 13 Q. L. R. 136 nn. 195, 303

Pearce v. Kerr, 9 W. L. R. 504 n. 113

Peek v. Shields, 8 S. C. R. 579 n. 316

Peil-ke-ark-an v. Reginam, 2 B. C. (Hunter) 52 n. 310

Peppiatt v. Peppiatt, 34 0. L. R. 121, 36 O. L. R. 427 n. 211

Perkins, Ex p., 24 N. B. 66 nn. 219, 314

Perry v. Clergue, 5 O. L. R. 357 nn. 174, 382-3, 391a

Phillips v. Eyre, L. R. 6 Q. B. 1 n. 53

Pickels v. The King, 14 Ex. C. R. 379, 7 D. L. R. 698 n. 382

Picton, The, 4 S. C. R. 648 nn. 99, 169, 379

Pigeon v. Mainville, 17 L. N. 68 nn. 219, 349

Pillow. Ex parte, 6 L. N. 209 n. 345

Pillow v. City of Montreal, M. L. R. 1 Q. B. 401 n. 345

Pineo v. Gavaza, 6 R. & G. 487 n. 318

Poison Iron Works v. Munns, 24 D. L. R. 18 nn. 308, 323

Portage Extension of the Red River Valley Ry., Cass. Sup.

Ct Dig. 487 n. 234

Porter, Ex parte, 28 N. B. 587 nn. 219, 314, 318

Patter v. Minahan, 7 C. L. R. 277 n. 375

Poulin v. Corporation of Quebec, 9 S. C. R. 185, 7 0. L. R.

337 > nn. 64, 352

Powell v. Apollo Candle Co., 10 App. Gas. 282 n. 53

Prince Edward Island v. A.-G. for the Dominion of Canada,

[1905] A. C. 37 n. 379

Prohibitory Liquor Laws, In re, 24 S. C. R. 170 nn. 95,

107, 164, 270, 275, 339

Provincial Fisheries, In re, 26 S. C. R. 444 nn. 382-3, 389, 392

(See, also, sub A.-G. of Canada v. A.-G. of the Provinces)
Public Utilities Act, Re, City of Winnipeg v. Winnipeg Elec-
tric R. W. Co., 26 Man. 584 n. 308

Q.

Quebec Bank v. Tozer, R. J. Q. 17 S. C. 303 n. 334

Quebec, City of v. The Queen, 24 S. C. R. 420 nn. 95, 379

Quebec Fisheries, In re, R. J. Q. 36 K. B. 289, 34 D. L. R. 1,

nn. 122, 173

XXIV CANADIAN CONSTITUTIONAL LAW.

Quebec, Province of v. Dominion of Canada, 30 S.C.R. 151, n. 932
Queddy River Driving Boom Co. v. Davidson, 10 S. C. R.

222 : n. 164

” Queen,” see sw& ” Reg.”

Queen’s Counsel case, [1898] A. C. 247 n. 41

Quirt v. The Queen, 19 S. C. R. 510 nn. 99, 101, 181, 189

Quong Wing v. The King, 49 S. C. R. 440, 1 B. C. (pt. 2)

150 nn. 205, 277, 338, 353

R.

Railway Act, In re, 36 S. C. R. 136 nn. 115, 120, 234, 235

Redfield v. Corporation of Wickham, 13 App. Cas. 467 n. 236

Reg. v. Bank of Nova Scotia, 11 S. C. R. 1 nn. 37, 39

” ” Becker, 20 O. R. 676 n. 353

” ” Bennett, 1 0. R. 445 n. 322

” ” Bittle, 21 O. R. 605 nn. 220, 317, 352

” ” Boscowitz, 4 B. C. 132 n. 347

” ” Bradshaw, 38 U. C. R. 564 n. 223

” ” Brierly, 14 O. R. 525 nn. 82, 83, 205

” ” Brinkley, 14 O. L. R. 435 n. 80

‘ ex rel Brown v. Simpson Co., 28 0. R. 231 n. 353

” r. Burah, 3 App. Cas. 889 nn. 53, 89

‘” ” Burdell, 5 N. S. 126 n. 24

” ” Bush, 15 0. R. 398 nn. 319, 322

” ” Chandler, 1 Hann. 548 n. 188

” ” City of Fredericton, 3 P. & B. (19 N. B.) 139. .p. 117;

nn. 95, 121, 183

” ” College of Physicians, 44 U. C. R. 564. nn. 10, 358

” ” Coote, L. R. 4 P. C. 599 n. 321

” ” County of Wellington, 17 O. R. 615, 17 0. A. R.421,

19 S. C. R. 510 nn. 99, 115, 181, 189

” ” Cox, 31 N. S. 311 n. 222

‘ De Coste, 21 N. S. 216 n. 328

” ” Delepine, Withers, N. F n. 122

” ” Dow, 1 Pugs. 300 nn. 228, 278

” ” Eli, 13 O. A. R. 526 nn. 216, 328

” ” Eyre, L. R. 3 Q. B. 487 n. 42

” Farwell, 14 S. C. R. 392 n. 386

(See, also, Farwell v. The Queen).

” ” Fisher, 2 Ex. C. R. 365 nn. 164, 389

” ” Fleming, 15 C. L. T. (N.W.T.) 247 n. 342

” ” Fox, 10 O. P. R. 343 nn. 220, 317

” ” Frawley, 7 0. A. R. 246 nn. 273, 332

” ” Halifax Electric Tramway Co., 30 N. S. 469.. nn. 216, 352

” ” Halliday, 21 O. A. R. 42 n. 274

” ” Harper, R. J. Q. 1 S. C. 327 nn. 330, 349

” ” Hart, 20 0. R. 611 n. 353

” ” Holland, 30 C. L. J. 428, 14 C. L. T. 294 n. 354

” ” Homer, 2 Steph. Dig. 450 n. 322

” ” Keefe, 1 Terr. L. R. 280 n 343

” ” Keyn, 2 Ex. D. 152 n. 173

TABLE OP CASES. XXV

Reg. v. Lake, 43 U. C. R. 515 nn. 216, 328

” ” Lawrence, 43 U. C. R. 164 n. 354

” ” Lesley, Bell C. C. 220 n. 80

” ” Levinger, 22 0. R. 690 n. 224

” ” Malloy, 4 Can. Cr. Gas. 116 n. 223

” ” McCormick, 18 U. C. R. 131 n. 19

” ” MteDougall, 22 N. S. 462 ‘. .nn. 162a, 274

” ex rel. McGuire v. Birkett, 21 0. R. 162 nn. 270, 323

” v. Mohr, [1905] A. C. 52, 7 Q. L. R. 183 nn. 137, 230

” ” Moss, 26 S. C. R. 322 nn. 141, 380, 389

” ” Mount, L. R. 6 C. P. 283 n. 10

” ” O’Bryan, 7 Ex. C. R. 19 n. 328

” ” O’Rourke, 32 C. P. 588, 1 0. R. 464 n. 221

” ” Pattee, 5 O. P. R. 292 n. 197

” ” Petersky. 4 B. C. 385 n. 352

” ” Porter, 20 N. S. 352 ‘ n. 24

” ” Prevost, M. L.” R. 1 Q. B. 477 n. 221

” ” Reno, 4 O. L. R. 281 n. 322

41 ” Riel, 10 App. Gas. 675 n. 74

” ” Robertson, 6 S. C. R. 52 .’ nn. 89, 172, 302

” ” ” 3 Man. 613 n. 346

” ” Roblin, 21 U. C. R. 352 nn. 18, 27

” ” Roddy, 41 U. C. R. 291 n. 353

” ” Row, 14 U. C. C. P. 307 n. 22

” ” Rowe, 12 C. L. T. 95 n. 353

” ” Shaw, 7 Man. 518 nn. 354, 359

” ” St. Johns Gas Light Co., 4 Ex. C. R. 326. .nn. 164, 382, 389

” ” Stone, 23 0. R. 46 nn. 85, 342

” ” Taylor, 36 U. C. R. 183 nn. 10, 84, 87, 303

” ” Toland, 22 O. R. 505 nn. 216, 224

” ” Wason, 17 0. A. R. 221 nn. 85, 121, 213, 217,

303 330 342 353

” ” Wing Chong, 2 B. C. (Irving) 150 ‘ nn. 64,255

” ” Wolfe, 7 R. & G. 24 n. 216

” ” Yule, 6 Ex. C. R. 103, 30 S. C. R. 24 n. 389

Regina Public School District v. Gratton Separate ‘School
District, 6 W. W. R. 1088, 7 W. W. R. 7, 6 W. W. R.

1088 n. 373

Renaud, Ex p., 14 N. B. (1 Pugs.) 273 n. 358, 360-1

Renfrew, Re, 29 0. R. 565 n. 261

Rex r. Barger, 6 C. L. R. 41 n. 115

” ” Basker, 1 D. L. R. 295 .n. 322

” ” Brinckley, 14 0. L. R. 435 nn. 76, 376

” ” Canadian Pacific R. W. Co., 1 W. L. R. 89 n. 236

” ” Carlisle, 6 0. L. R. 718 n. 311

” ” Commonwealth Court of Conciliation, 11 C. L. R. l.n. 135

” ” Cotton, [1914] A. C. 176, 45 S. C. R. 469, R. J. Q. 20

K. B. 162 p. 126; n. 261

” ” Davis, 40 0. L. R. 352 nn. 72. 85

” ” Durocher, 9 D. L. R. 627 n. 353

” ” Ferris, 15 W. L. R. 331 n. 354

” ” Francis, 34 T. L. R. 273 nn. 82, 83

XXYl CANADIAN CONSTITUTIONAL LAW.

Rex v. Gage, 36 O. L. R. 183 n. 353

” ” Gardner, 25 N. S. 48 n. 333

” ” Garvin, 13 B. C. 331 n. 354

” ” Governor of South Australia, 4 C. L. R. 1497 n. 42

” ” Graves, 21 0. L. R. 329 n. 353

” ” Hill, 15 0. L. R. 406 nn. 88, 203

” ” Horning, 8 O. L. R. 215 n. 375

” ” Joe, 8 Haw. 287 nn. 138, 363

” ” Kay, 39 N. B. 278 nn. 182, 341, 357

” ” Kennedy, 35 N. S. 266 n. 315

” ” Laity, 18 B. C. 443 n. 308

” ” Laughton, 22 Man. 520 n. 354

” ” Lee, 23 O. L. R. 490 n. 213

” ” Lincoln, 5 W. L. R. 301 n. 113

” ” Lovitt, [1912] A. C. 212, 43 S. C. R. 106, 37 N. B.

558 . . . . .’ n. 260

” ” Massey-Harris Co., 6 Terr. L. R. 1261 nn. 92. 242

” ” Meikleham, 11 0. L. R. 366 nn. 83, 122, 339

” ” Miller, 19 0. L. R. 288 n. 353

” ” Mousseau, 8 S.- C. R. 408 nn. 255-6

” ” Neiderstadt, 11 B. C. 347 nn. 256, 365

” ” Pierce, 9 O. L. R. 374 n. 348

” ” Priest, 10 B. C. 436 n. 205

” ” Riddell, 4 D. L. R. 662 n. 339

” ” Rithet, 54 C. L. J. 116 n. 385

” ” Royal Bank of Australia, 4 Alta., 249 n. 181

” ” Scott, 37 0. L. R. 453 nn. 88, 218, 339

” ” Ship “North,” The, 37 S. C. R. 385, 11 Ex. C. R. 141,

11 B. C. 473 n. 173

” ” Smith, Re, 37 0. L. R. 453 n. -30

” ” Sutton, 5 C. L. R. 789 n. 37

” ” Sweeney, 1 D. L. R. 476 n. 322

” ” Thorburn, 41 0. L. R. 39, 39 D. L. R. 300 n. 90

” ” Walsh, 5 0. L. R. 527 n. 311

” Walton, 12 O. L. R. 1 p. 118

” ” Wipper, 34 N. S. 202 n. 314

” ” King, 37 N. S. 294 n. 308

” ” Yaldon, 17 O. A. R. 179 n. 212

Rhodes v. Fairweather (Withers N. F.) nn. 122, 165

Richardson v, Ransom, 10 0. R. 387 n. 322

Richer V. Gervais, R. J. Q. 6 S.-C. 254 nn. 220, 317

Riel v. The Queen, 10 App. Cas. 675 nn. 62, 99

Robtelmes v. Brenan. 4 C. L. R. 395 n. 205

Rodrigue v. Parish of Ste. Prosper, 37 D. L. R. (Que.) 321,

40 D. L. R. 30 nn. 85, 212, 352

Roman Catholic Separate Schools, In re, 18 O. R. 606 n. 362

Roman Catholic Separate Schools v. Township of Arthur,

21 O. R. 60 n. 362

Ross v. Canada Agricultural Ins. Co., 5 L. N. 23 nn. 138,

323 363

Ross v. Guilbault, 4 L. N. 415 nn. 138,’ 363

Ross v. Torrance, 2 L. N. 186 n. 185

TABLE OF CASES. XXV11

Routledge v. Lowe, L. R. 3 H. L. 100 n. 10

Royal Bank of Canada v. The King, [1913] A. C. 283. .nn. 62,

283, 303

Royal Canadian Insurance Co. v. Montreal Warehousing Co.,

3 L. N. 155 n. 186

Ruddell v. Georgeson, 9 Man. 407 n. 262

Russell v. The Queen, 7 App. Cas. 829 pp. 77, 94; . ,

nn. 58-9, 69, 70-1-2, 74a., 89, 106, 114, 126a, 127, 148, 272, 275

Ryan v. Devlin, 20 L. C. J. 77 n. 314

S.

S. v. S., 1 B. C. (pt. 1) 25 nn. 21, 29

Sawyer-Massey Co. v. Dennis, 1 Alta. 125 n. 302

Schoolbred v. Clarke, 17 S. C. R. 265 nn. 189, 283

Schultz v. City of Winnipeg, 6 Man. 40 nn. 185, 186, 270

Scott v. Scott, 14 B. C. 316 n. 211

Separate School Trustees of Belleville v. Grainger, 25 Gr.

570 nn. 362, 365

Severn v. The Queen, 2 S. C. R. 70 nn. 157a, 188, 254.

272, 274-5-6

Shea v. Ohoat, 2 U. C. R. 211 nn. 17, 20

Sheppard v. Sheppard, 13 B. C. 486 n. 211

Shey v. Chisholm, 2 N. S. 52 n. 24

Ship “North” v. The King, 37 S. C. R. 385, 11 Ex. C. R. 141,

11 B. C. 473 n. 122

Sinclair v. Mulligan, 3 Man. 481, 5 Man. 17 nn. 24, 27, 32

Slavin and Village of Orillia, In re, 36 U. C. R. 159 n. 340

Small Debts Act, In re, 5 B. C. 246 nn. 308, 310

Small Debts Recovery Act, Re, 37 D. L. R. 170, 3 W. W. R.

698 “. n. 307

Smiles v. Belford. 23 Gr. 590, 1 O. A. R. 436 nn. 10, 198, 199

Smith v. City of London, 20 O. L. R. 133 ‘.’. .n. 124

Smith v. Goldie, 9 S. C. R. 46 n. 197

Smith v. Rural Municipality of Vermillion Hills, [1916] A. C.

569, 49 S. C. R. 563 nn. 260, 262

Smylie v. The Queen, 31 0. R. 202, 27 O. A. R. 172.. nn. 144, 267

Smyth U. McDonald, 5 N. S. 2J4 n. 24

Southern Alberta Land Co. v. Rural Municipality of McLean,

53 S. C. R. 151 n. 262

Speaker of Legislative Assembly of Victoria v. Glass, L. R.

3 P. C. 560 n. 108

Sproule v. Reginam, 2 B. C. (Irving), Pt. II., 219 n. 221

Squier, Re, 46 U. C. R. 474 n. 307

Stairs v. Allen, 28 N. S. 410 nn. 303, 326

Standard Trusts Co. v. Treasurer of Manitoba, 23 D. L. R.

811, 51 S. C. R. 428 nn. 260-1

Stark v. Shuster, 14 Man. 670 nn. 144, 344

St. Catharines Milling and Lumber Co. v. The Queen, 14 App.

Cas. 46, 13 S. C. R. 577, 13 0. A. R. 148 nn. 139,

201, 380, 386, 388
Steadman v. Robertson, 2 P. & B. 580 n. 301

XXV111 CANADIAN CONSTITUTIONAL LAW.

Steinberger, Re, 5 W. L. R. 93 n. 317

Stewart v. Le Page, 53 S. C. R. 337 n. 196

Stinson and College of Physicians, Re, 22 O. L. R. 627,

nn. 303, 327, 354
St. Eugene Milling Co. and The Land Registry Act, Re,

1 B. C. 288 n. 391

St. Francois Hydraulic Co. v. Continental Heat & Light Co.,

[1909] A. C. 194 nn. 101, 231, 245, 283

St. John Gas Light Co. v. The Queen, 4 Ex. C. R. 326 n. 382

St. Joseph, Corporation of v. Quebec Central R. W. Co., 11

Q. L. R. 193 n. 238

Sturmer v. Town of Beaverton, 24 0. L. R. 65 .XL 382

Supreme Court References case, [1912] A. C. 571, 43 S. C. R.

536 . . . nn. 62, 120, 376

Swifte v. A.-G. of Ireland, [1912] A. C. 276 nn. 210, 295

Syndicat Lyonnais v. McGrade, 36 S. C. R. 251 p. 166

T.

T. v. B., 15 O. L. R. 224 n. 211

Tai Sing v. Maguire, 1 B. C. (pt. 1) 107 nn. 10, 127

Tait, Re, 9 Man. 617 n. 32

Tarratt v. Sawyer, 1 Thomp. (2nd ed.) 46 n. 27

Tennant v. Union Bank of Canada, [1894] A. C. 31.. nn. 177,

231, 298

Theberge v. Landry, 2 App. Gas. 102 n. 138

Thomas v. Haliburton, 26 N. S. 55 n. Ill

Thomson v. Wishart, 19 Man. 340 nn. 32, 215

Thrasher case, The, 1 B. C. (Irving), 170 nn. 64, 77, 190, 313

Three Rivers, Corporation of v. Suite, 5 L. N. 332. .-. .nn. 47, 135
Tooke Bros., Limited v. Brock and Patterson, Limited, 3 E.

L. R. (N.B.) 270 n. 188

Toronto, City of v. Bell Telephone Co., [1905] A. C. 52, 6 O.

L. R. 335, 3 O. L. R. 465 nn. 115, 228, 230-1, 236, 238,

247, 278, 363
Toronto, City of v. Canadian Pacific R. W.- Co., [1908] A. C.

54 p. 95; nn. 102, 116, 120, 234, 270, 298

Toronto, City of v. Grand Trunk R. W. Co., 37 S. C. R. 232.

n. 234

Toronto, City of v. Morson, 40 O. L. R. 227 n. 123

Toronto Harbour Commissioners, Re, 28 Gr. 195 n. 263

Toronto and Niagara Power Co. v. Corporation of North

Toronto, [1912] A. C. 831 n. 230

Toronto Railway Co. v. Corporation of the City of Toronto,

53 S. C. R. 222 n. 234

Toronto Railway Co. v. The King, [1917] A. C. 630 nn. 8a,

217, 316, 345
Town of Windsor v. Commercial Bank of Windsor, 3 R. &

G. 420 n. 264

Treasurer of Ontario v. Canada Life Assurance Co., 22 D.

L. R. (Ont.) 428 n. 256

TABLE OF CASES. XXIX

Treasurer of Ontario v. Patten, 22 0. L. R. 184 n. 85

Tremblay v. Cit6 de Quebec, R. J. Q. 38 S. C. 82, 37 S. C. 375.

nn. 85. 352

Trimble v. Hill, 5 App. Cas. 342 n. 14

Trust & Guarantee Co. v. The King, 15 Ex. C. R. 403, 54 S.

C. R. 107 n. 390

Tully v. Principal Officers of H. M.’s Ordinance, 5 U. C. R. 7.

nn. 161, 263

Turcotte v. Whalen, M. L. R. 7 Q. B. 263 n. 336

U.

Uniacke v. Dickson, 1 James (N.S.) 287 n. 24

Union Colliery Co. v. A.-G. of British Columbia, 17 C. L. T.

391 n. 378

Union Colliery Co. v. Bryden, [1899] A. C. 580 nn. 53, 60,

102, 126, 126a, 204-5
Union Navigation Co. v. Couillard, 7 R. L. 215 n. 166

V.

Vancini, Ex p., 36 N. B. 456, 34 S. C. 621 nn. 225,jJ14, 322

Valin v. Langlois, 5 App. Cas. 115, 3 S. C. R. 1, 5 Q. L. R. 1.

nn. 79, 103-4, 113, 128, 133-4, 138, 183, 197, 301, 314, 316, 363

W.

Walker v. Walker, 39 D. L. R. 731 (Man.) nn. 29, 31> 211

Wallace Huestis Grey Stone Co., In re, Russ, Eq. 46 .n. 188

Ward v. Reed, 22 N. B. 279 nn. 219, 316

Washington v. Grand Trunk R. W. Co., 24 O. A. R. 183… n. 234
Waterous Engine Works Co. v. Okanagan Lumber Co., 14

B. C. 238 n. 242

Watts v. Watts, [1908] A. C. 573, 13 B. C. 281 nn. 29, 211

Webb v. Outrim, [1897] A. C. 81 nn. 123, 263

Weidman v. Spragge, 46 S. C. R. 1 nn. 151, 214

Weiler v. Richards, 26 C. L. J. N. S. 338 n. 254

Weiser v. Heintzman (No. 2), 15 O. P. R. 407 n. 353

Wellington Cooks and Stewards Union, In re, Award of,

26 N. Z. L. R. 394 n. 82

Wetherell v. Jones, Re, 4 0. R. 713 nn. 69, 82, 312

Whalen, Ex parte, 30 N. B. 586 n. 328

Whelan v. Ryan, 20 S. C. R. 65 n. 262

Whitby, Corporation of v. Liscombe, 23 Gr. 1 nn. 21, 26-7

Wilder v. La Cite de Montreal, R. J. Q. 14 K. B. 139 n. 343

Wile v. Bruce Mines R. W. Co., 11 O. L. R. 200 n. 236

Willett Martin Co. v. Full, 24 D. L. R. 672 n. 243

Williams v. Howarth, [1905] A. C. 551 n. 36

Wilson r. Codyre, 26 N. B. 516 nn. 115, 197

Wilson v. McGuire, In re, 2 0. R. 118 nn. 310, 319

XXX CANADIAN CONSTITUTIONAL LAW.

Wi Matua’s Will, [1908] A. C. 448 n. 41

Windsor and Annapolis R. W. Co. v. Western Counties R.

W. Co., Russ. Eq. 307, 3 R. & G. 377, 7 App. Cas. 178.

nn. 141, 240, 303, 380
Windsor, Town of v. Commercial Bank of Windsor, 3 R. &

G. 420 n. 180

Winnipeg, City of v. Barrett, [1892] A. C. 445. 19 S. C. R.

374, 7 Man. 273 nn. 358, 362-3, 366, 370

Winnipeg, City of v. Winnipeg Electric R. W. Co., 26 Man.

584 308

Wi Parata v. Bishop of Wellington, 3 J. R. N. S. S. C. 72. .n. 388

Wood v. Esson, 9 S. C. R. 239 ‘ n. 164

Woodruff v. A.-G. for Ontario, [1908] A. C. 508, 15 0. L. R.

416 nn. 99, 258, 260

Woolley v. A.-G. of Victoria, 2 App. Cas. 163 n. 391

Wright, Ex parte, 34 N. B. 127 n. 318

Wyatt v. A.-G. of Quebec, [1911] A. C. 489 n. 173

Y.

Yorkshire Guarantee and Securities Corporation, In re, 4

B. C. 258 n. ?56

Young v. Harnish, 37 N. S. 213 nn. 172, 382

TABLE OF STATUTES REFERRED TO 1

Magna Charta ………………………………….. p. 166

(Imp.) 18 Edw. I., c. 1 (Statute of Quid Emptores) …… n. 27

27 Hen. VIII., c. 10 (Statute of Uses) …….. nn. 27, 32

27 Hen. VIII., c. 16 (Statute of Enrolments) ____ n. 24

13 Eliz., c. 5 (Fraudulent Conveyances) …….. n. 27

27 Eliz., c. 4 (Voluntary Conveyances) ……… n. 27

21 Jas. I., c. 3 (Statute of Monopolies) ………. n. 27

31 Car. 2, c. 2 (Habeas Corpus Act) ………. nn. 27, 29

29 Car. II., c. 3 (Statute of Frauds) …………. n. 27

12-13 Wm. III., c. 2 (Act of Settlement) ……… n. 307

9 Geo. II., c. 36 (Mortmain Act) …………… n. 27

26 Geo. II., c. 33 …………………………. n. 27

6 Geo. III., c. 12 ………………………… n. 10

(P.E.I.) 13 Geo. III., c. 1 ……………………. ….. p. 52

(Imp.) 14 Geo. III., c. 83 (Quebec Act) …….. pp. 48, 54, 56-7

21 Geo. III., c. 49 (Lord’s Day Act) ………… n. 27

22 Geo. III., c. 27 ………………………… n. 307

(Que.) 25 Geo. III., c. 2 ………………………….. n. 34

(Imp.) 31 Geo. III., c. 31 (The Constitutional Act) …… p. 48

31 Geo. III., c. 31, s. 46 ………………….. n. 10

(U.C.) 32 Geo. III., c. 1 …………………….. p. 53; n. 27

(Imp.) 39-40 Geo. III., c. 98 (Thelusson Act) ……….. p. 165

(U.C.) 40 Geo. III., c. 1 …………………… . ……. p. 54

(Imp.) 4 Geo. IV., c. 76 (Marriage Act) ……………. n. 294

3-4 Wm. IV., c. 41 (Lord Brougham’s Act) . .nn. 41, 376
3-4 Wm. IV., c. 105 (Dower Act, 1833) ………… p. 166

(P.E.I.) 5 Wm. IV., c. 10 ………………………… n. 211

(Imp.) 3-4 Viet. c. 35 (Union Act) ………….. ……… p. 48

5-6 Viet. c. 45 (Copyright Act) ……………… n. 10

7-8 Viet. c. 69 (Judicial Committee Act, 1844),

nn. 316, 376
” 9-10 Viet. c. 94 (British Possessions Act) …….. n. 147

(Can.) 19-20 Viet. c. 140 (making Legislative Council elec-
tive) …………………………. . ………. pp. 48-9

(Imp.) 20-21 Viet. c. 85 (Matrimonial Causes Act, 1857)

nn. 29, 211
C. S. U. C. (1859), c., 15 ………………………… n. 307

(Imp.) 28-29 Viet. c. 14 (Colonial Naval Defence Act, 1865)

n. 161
28-29 Viet. c. 63 (Colonial Laws Validity Act)

nn. 10, 44, 75. 108, 249

30 Viet. c. 3 (British North America Act, 1867).
See passim; also, pp. 37, 40-47, 70-2.
” s . 4 ……………………….. n. 379

” s. 12 . . . ‘. …………………… p. 131

” s. 18 …………………….. PP. 92-3

” s. 56 ………………………. p. 62

” s. 65 ………………………. P. 131

.=note; nn.=notes; p.=page.

CANADIAN CONSTITUTIONAL LAW.

(Imp.) 30 Viet. c. 3, s. 90 p. 62

” s. 91 pp. 70-1, 73-7, 80-2, 101-124

” ” ” non-obstante clause of sec. 91 p. 84

” s. 92 pp. 70-1, 74-6, 124-143

” s. 93 pp. 143-9

” s. 94 p. 136

” s. 95 p. 79

” s. 96 pp. 137-9; nn. 307-8

” s. 100 n. 308

” s. 101 (Dominion Courts), pp. 149-151;

nn. 90, 104, 183, 305, 376, 379

” s. 102 p. 134; n. 297

” s. 108 p. 151; n. 380

” s. 109 …. pp. 152-3; nn. 174, 388-9, 391-2

” s. Ill n. 392

” s. 112 n. 392

” s. 121 n. 256

” s. 122 n. 256

” s. 124 n. 255

” s. 125 pp. 126-7; n. 380

” s. 132 p. 68; nn. 54, 379

” s. 134 m. 266

” s. 142 n. 392

(N.B.) 30 Viet. c. 10 n. 307

(Dom.) 33 Viet. c. 3 (Manitoba Act) pp. 38, 143, 147-8

33 Viet. c. 14 (Oaths Bill) pp. 11, 44

(Imp.) 34 Viet. c. 28 p. 38

” 38-39 Viet. c. 38 (Parliament of Canada Act, 1875)

pp. 39, 92-3; n. Ill
” 41-42 Viet. c. 73 (Territorial Waters Jurisdiction

Act, 1878) n. 173

(Dom.) 43 Viet. c. 1 n. 189

48-49 Viet. c. 53, s. 1 n. 335

49 Viet. c. 25 (The North-West Territories Act) . .$. 55

(Imp.) 49-50 Viet. c. 35 pp. 38-9

(Dom.) R. S. C. 1887, c. 95 (Fisheries Act) n. 172

c. 106 (Canada Temperance Act) . .n. 148

51 Viet. c. 33 p. 56

(Imp.) 52-53 Viet. c. 28 p. 39

(B.C.) 53 Viet. c. 33 (Coal Mines Regulation Act, as

amended in 1890) n. 205

(Imp.) 53-54 Viet. c. 27 (Colonial Court of Admiralty Act,

1890) n. 379

56 Viet. c. 14 p. 39

(Dom.) 57-58 Viet. c. 28, s. 6 n. 20

(Imp.) 57-58 Viet. c. 30 (Finance Act, 1894) n. 259

” 57-58 Viet. c. 60 (Merchant Shipping Act, 1894),

nn. 165, 169

59 Viet c. 3 P. 39

R. S. O. 1897, c. 205 n. 186

” c. 246 (Lord’s Day Act) nn. 85, 212

(Imp.) 63-64 Viet. c. 12 n. 78

(Dom.) 3 Edw. VII., c. 11 (Animal Contagious Diseases

Act, 1903) n. 375

TABLE OF STATUTES REFERRED TO. XXX11JL

C. S. N. B. 1903, c. 110, s. 1 n. 393

(Dom.) 4-5 Edw. VII., c. 3 (Alberta Act) pp. 56, 144,

148-9; n. 390

4-5 Edw. VII., c. 30 p. 38

4-5 Edw. VII., c. 42 (Saskatchewan Act) pp. 38,

56, 145, 148-9

R. S. C. 1906, c. 6 (Dominion Elections Act) p. 43

” c. 55, s. 5 n. 385

c. 62, s. 12 (North-West Territories

Act) p. 55

c. 63 (Yukon Territory Act) p. 56

c. 96 (Conciliation and Labour Act)

. . . .,p. 104

” c. 99 p. 56; n. 307

^ c. 99, s. 3 n. 385

‘ c. 100 p. 166

c. 119 (Bills of Exchange Act) . . .n. 183

11 c. 138 (Judges Act) n. 307

” c. 138, s. 33 n. 312

c. 139 (Supreme Court Act), p. 46;

nn. 8a, 353, 377
c. 140 (Exchequer Court Act) . . .n. 379

” c. 140, s. 32 p. 154

c. 141 n. 379

c. 146 (Criminal Code) nn. 220, 353

” c. 146, ss. 1013-1024 p. 150

” c. 146, s. 1025 nn. 8a, 376

(Que.) 6 Edw. VII., c. 11 (Succession Duty Act, 1906) n. 256

(Imp.) 7 Edw. VII., c. 7 n. 13

R. S. 0. 1897, Vol. Ill nn. 13, 27

(Imp. 7-8 Edw. VII., c. 64 nn. 148, 165

(Ont.) 9 Edw. VII., c. 47 (Execution Act) n. 197

(Dom.) 8-9 Edw. VII., c. 9 p. 150

9-10 Edw. VII., c. 32 (Insurance Act, 1910) n. 68

(Ont.) 10 Edw. VII., c. 29 (Extra- Judicial Services Act,

1910) n. 310

(Man.) 1 Geo. V., c. 60 (Succession Duties Act), n. 261

(Imp.) 1 Geo. V., c. 46 (Copyright Act, 1911) n. 10

1-2 Geo. V., c. 13 (Parliament Act, 1911) pp. 43, 46

(N. S.) 2 Geo. V., c. 13 (Succession Duties Act, 1913) n. 261

R. S. M. 1913, c. 38, s. 7 n. 393

” ” c. 46 (King’s Bench in Manitoba) p. 56

” c. 54 p. 166

R. S. O. 1914, c. 54 n. 376

” c. 55 n. 393

” c. 101, s. 2 (English law in Ontario) p. 54

“‘ c. 130 …. ‘ n. 383

(Imp.) 4-5 Geo. V., c. 17 (British Nationality and Status of

Aliens Act, 1914) n. 204

(Dom.) 4-5 Geo. V., c. 44 (Naturalization Act, 1914) n. 204

5 Geo. V., c. 7 (amending last Act) n. 204

(Imp.) 5-6 Geo. V., c. 45 (British North America Act, 1915)

pp. 39, 41
C.C.L. o

TABLE OF ABBREVIATIONS

1

A. L. R Alberta Law Reports : Toronto.

Alta Alberta Law Reports.

B. C. British Columbia Law Reports: Victoria,

B.C.

C. A New Zealand Court of Appeal Reports.

Cass. Dig. S. C A digest of cases decided by the Supreme

Court of Canada, by Robert Cassels,
Q.C.: Carswell & Co., Toronto, 1893.

Clement’s L. of L. C.. . Clement’s Law of Canadian Constitution:
Toronto, 1916.

C. L. J The Canada Law Journal: Toronto.

C. L. R Commonwealth (Australia) Law Re-
ports: Melbourne.

C. L. T Canadian Law Times : Toronto.

Con. Stat. N. B Consolidated Statutes of New Brunswick.

D. L. R Dominion Law Reports : Toronto.

Dor. Q. A. or Q. B Decisions of the Court of Appeal

(Queen’s Bench) Reports: Quebec, by
L. C. W. Dorion, IVBontreal.

Ex. C. R Reports of the Exchequer Court of Can-
ada: Ottawa.

Gr Reports of cases in the Court of Chan-
cery of Upper Canada, and afterwards
of Ontario, by Alexander Grant: To-
ronto.

Hannay Reports of cases in the Supreme Court of

New Brunswick, by James Hannay,
1870-5: Fredericton and St. John, N.B.

F?w. Rep Hawaian Reports: Honolulu.

Hodg. Prov. Legisl. . . . Correspondence, reports of the Ministers
qf Justice, and Orders in Council, upon
the subject of Dominion and Provin-
cial Legislation, 1867-1895, by W. E.
Hodgins, M.A., Ottawa, 1896.

Imp. Un. and Brit. Dom. imperial Unity and The Dominions, “by
A. Berriedale Keith: Oxford: Claren-
don Press: 1916.

Jl. Comp. Leg. Journal of Comparative Legislation, New

Series: London.

J. R. N. S. S. C New Zealand Jurist Reports, New Series,

Supreme Court.

Knox (N. S. W.) Cases in the Supreme Court of New

South Wales, by George Knox, Sydney.

1( The abbreviated methods of citing the English Law Reports,
and some few other abbreviations, are omitted from this table as
being too well known to need explanation.

XXXVi CANADIAN CONSTITUTIONAL LAW.

Li. C. J The Lower Canada Jurist, being a collec-
tion of decisions of Lower Canada:
Montreal.

L. C. R Lower Canada Reports

L. N Legal News: Montreal.

L. T Law Times Reports: London.

Man Manitoba Law Reports.

M. L. R. (S. C.) Montreal Law Reports, Superior Court:

Montreal.

M. L. R. (Q. B.) Montreal Law Reports, Queen’s Bench:

Montreal.

MR Manitoba Law Reports.

N. B New Brunswick Law Reports.

Nfd. Dec Newfoundland Decisions: St. John’s, Nfd.

N. S Nova Scotia Law 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 Appeal Reports: Toronto.

0. L. R Ontario Law Reports (Superior Courts,

and Ontario Court of Appeal): Toronto

0. P. R Ontario Practice Reports:. Toronto.

O. R Reports of decisions in the High Court of

Justice for Ontario: Toronto.

0. W. N Ontario Weekly Notes: Toronto.

0. W. R Ontario Weekly Reporter: Toronto.

P. & B Reports of cases in the Supreme Court of

New Brunswick, by Wm. Pugsley and
G. W. Burbidge: Saint John, N.B.

P. E. I Prince Edward Island Reports; Char-

lottetown, P.E.I.

Pugs New Brunswick Reports, by Wm. Pugs-
ley.

Q. L. R Quebec Law Reports.

Q. P. R Quebec Practice Reports.

R. & C Russell and Chesley’s Nova Scotia Re-
ports: Halifax, N.S.

R. & G Russell and Goldert’s Nova Scotia Re-
ports: Halifax, N.S.

R. G. in D A. Berriedale Keith’s Responsible Gov-
ernment in the Dominions (3 vols), by
A Berriedale Keith: Clarendon Press,
1912.

R. J. Q. (S. C.) Les Rapports Judiciaires de Quebec:

Cour Superieur: Montreal.

R. J. Q., Q. B. or K. B. . Reports in the Quebec Court of Queen’s
Bench, or King’s Bench, in same series
as last.

R. L La Revue Legale: Montreal.

Russ. Eq Russell’s Nova Scotia Equity Decisions:

Halifax, N.S.

S. A. L. R South African Law Reports.

TABLE OF ABBREVIATIONS.

XXXV11

Sask Saskatchewan Law Reports: Toronto.

S. C. R Supreme Court of Canada Reports: Ot-
tawa.

Steph. Dig Stephen’s Quebec Law Digest: Montreal.

Stuart . , Stuart’s Lower Canada Reports: Quebec,

1 Vol., 1834.

T. L. R Times Law Reports: London.

Todd’s Parl. Gov. in

Brit. Col Parliamentary Government in the British

Colonies, by Alpheus Todd, LL.D., C.
M.G., 2nd ed.: Longman, Green & Co.,
London, 1884.

U. C. C. P Upper Canada Common Pleas Reports:

Toronto.

U. C. R Upper Canada Queen’s Bench Reposts:

Toronto.

U. C. R. (0. S.) Same: Old Series: Toronto.

V. L. R Victoria (Australia) Law Reports: Mel-
bourne.

Wither’s N. F Wither’s Newfoundland Reports: St.

John’s, Nfld.

W. L. T Western Law Times Reports: Winnipeg.

W. W. and A’B Wyatt, Webb, and A’Beckett’s Victorian

(Australian) Reports.

Yale L. R Yale Law Review: New Haven, Conn.

ADDENDA

P. 56. The letter H. should precede the word Quebec in
the 24th line.

Pp. 63-64. As to the recent .Federal disallowance of a Bri-
tish Columbia Act on the report of Mr. Doherty, Min-
ister of Justice, of May 21st, ^918, on the ground of
interference with proprietary rights, see Canadian Law
Times, Vol. 38, pp. 445-9, 584.

P. 69. As to law Courts not being concerned with the mo-
tives of the legislature in legislating, see now per Mere-
dith, C.J.O., in Currie v. Harris Lithographing Co.,
Ltd. (1917), 41 0. L. R. 475, 490-1.

P. 143. Note Re An Application by the Hudson Bay Co.
and Heffernan (1917), 3 W. W. R. 167, where the Sas-
katchewan Full Court held that a provincial legislature
has not the, power to prohibit the keeping of liquor with-
in the province for export to other provinces or foreign
countries.

Also Rex v. Shaw (1917), 28 Man. 325, where the
Manitoba Court of Appeal (Haggart, J.A., dissenting),
held intra vires, as a matter of a merely local or private
nature in the province, an enactment of the provincial
legislature prohibiting residents of the province from
taking orders from any person within the province for
‘purchasing or supplying of liquor for beverage pur-
poses 4 within the province. . / Fullerton, J.A.,
inclined to think it justifiable also as an Act relating
to civil rights within the province.

P. 152. As to bona vacantia in Quebec, see The King v.
Rithet, 40 D. L. R. 670.

P. 158. Among the works dealing with the Constitution of
Canada should undoubtedly have been mentioned A.
Berriedale Keith’s Responsible Government in the Do-
minions (3 Vols.), often referred to in the ‘Notes; and
also his Imperial Unity and the Dominions: 1916:
Clarendon Press.

P. 232, n. 244. Currie v. Harris Lithographing Co. in ap-
peal is now reported 41 0. L. R. 475.

P. 260-1, nn. 360, 367. See, also, Ottawa Separate School
Trustees v. Quebec Bank (1918), 41 0. L. R. 594.

LEADING GENERAL PROPOSITIONS

1. Although the British North America Act,
1867, or as it may be called for shortness sake, the
Federation Act, is the sole charter by which the
rights claimed by the Dominion and the provinces
respectively can be determined, those legal decisions
which embody the common law Constitution of
Great Britain are equally authoritative in Canada;
and we may say of both the Dominion and provin-
cial governments that that great body of unwritten
conventions, usages, and understandings which
have in the course of time grown up in the practical
working of the British Constitution form as import-
ant a part of the political system of Canada as the
fundamental law itself which governs the federa-
tion . . . . p. 40

2. The powers of legislation conferred upon the
Dominion parliament and the provincial legislatures
respectively by the Federation Act are conferred
subject to the sovereign authority of the Imperial
parliament , p. 47

3. The Crown is to be considered as one and in-
divisible throughout the Empire, and cannot be
severed into ‘as many distinct kingships as there are
Dominions and self-governing colonies; and the
prerogative of the Crown runs in Canada to the
same extent as in England, where not expressly
limited by statute pp. 59-60

1 Although almost the whole of the text of this Treatise may
be said to consist of general propositions, which are illustrated
and amplified in the notes, it is hoped and believed that the
student will be assisted by the selection here made.

xlii CANADIAN CONSTITUTIONAL LAW.

4. The Crown is a party to, and may be bound,
by express mention or necessary intendment, by
Dominion and provincial statutes so far as such
statutes are intra vires pp. 60-61

5. The Crown is represented in Dominion affairs
by the Governor-General, and in provincial affairs
by the Lieutenant-Governors of the provinces; and
the latter are as much the representatives of His
Majesty for all purposes of provincial government
as the former is for all purposes of Dominion gov-
ernment p. 61

6. The Governor- General in Council has power
to disallow any provincial Act within one year after
the receipt thereof by him pp. 62-66

7. Neither the Dominion parliament nor the pro-
vincial legislatures are to be considered as in any
sense delegates of or acting under any mandate
from the Imperial parliament, and they have the
same powers as the Imperial parliament would
have, under the like circumstances, to delegate to a
municipal institution or body of their own creation
authority to make by-laws or regulations as to sub-
jects specified in their enactments, with the object
of carrying such enactments into operation and
effect; or to legislate conditionally, as, for example,
subject to local option pp. 66-69

8. If it be once determined, by competent judi-
cial authority that the Dominion parliament or a
provincial legislature has passed an Act upon any
subject within its area of power, its jurisdiction as
to the terms of such legislation is as absolute as
that of the Imperial parliament would be if legis-
lating over a like subject; and Courts of law have

LEADING GENERAL PROPOSITIONS. xliii

no right whatever to enquire whether such juris-
diction has been exercised wisely or not ; or to pro-
nounce the Act invalid because it may affect injuri-
ously private rights, or destroy vested rights, or
be otherwise unjust, or contrary to sound princi-
ples of legislation pp. 67-70

9. The object and design of an Act may be one
of the things to be determined in order to ascertain
the class of subject to which it really belongs, but
assuming such Act falls within the powers conferred
by the Federation Act upon the legislature passing
it, the motive which induced such legislature to ex-
ercise its power is no concern of the Courts, .p. 69

10. The Dominion parliament cannot under col-
our of general legislation deal with what are provin-
cial matters only; and, conversely, provincial legis-
latures cannot, under the mere pretence of legis-
lating upon one of the enumerated matters con-
fided to them by the Federation Act, really legislate
upon a matter assigned to the jurisdiction of the
Dominion parliament pp. 69-70

11. The language of the sections of the Federa-
tion Act conferring legislative powers upon the Do-
minion parliament and provincial legislatures re-
spectively, and of the various heads which they con-
tain, obviously cannot be construed as having been
intended to embody the exact disjunctions of a per-
fectly logical scheme. The way in which provisions
in terms overlapping each other have been placed
side by side in these sections shows that those who
passed the Act intended to leave the working out
and interpretation of these provisions to practice
and to judicial decision pp. 70-72

Xliv CANADIAN CONSTITUTIONAL LAW.

12. The ‘scheme of the Federation Act comprises
a fourfold classification of legislative powers:
firstly, over those subjects which :are assigned 😮
the exclusive power of the Dominion parliament;
secondly, over those assigned to the exclusive power
of the provincial legislatures; thirdly, over two
subjects, and two subjects only, agriculture and im-
migration, which are assigned concurrently to the
Dominion parliament and the provincial legisla-
tures, Dominion legislation, however, having the
predominance ; and, fourthly, over a particular sub-
ject, namely, education, which, for special reasons,
is dealt with exceptionally, and made the subject of
special provisions pp. 72-74

13. With the exception of agriculture and immi-
gration, which are dealt with specially, there is no
subject-matter over which there can (strictly speak-
ing) be said to exist concurrent powers of legisla-
tion in the Dominion parliament and -the provincial
legislatures. The powers of the Dominion parlia-
ment and of the provincial legislatures to deal
directly and in their entirety, and as matters of
separate and detached legislation (as distinguished
from subjects merely ancillary to the main subject
of legislation, as to which see Proposition 19) with
the various classes of subjects enumerated in sec-
tions 91 and 92 of the Federation Act are in each
case special and exclusive pp. 80-82

14. A general undefined and unrestricted resi-
duary power is given to the Dominion parliament
by the Federation Act to make laws for the peace,
order and good government of Canada in relation
to all matters not . coming within the subjects as-
signed to the provincial legislatures; but such Do-
minion legislation should be strictly confined to such

LEADING GENERAL PROPOSITIONS. xlv

matters as are unquestionably of Canadian interest
and importance. The Dominion jparliament cannot
legislate under this residuary power in relation to
matters which in each province are substantially of
local or private interest upon the assumption that
these matters also concern the peace, order, and good
government of the Dominion. But some matters in
their origin local or provincial (not being subjects
specifically mentioned in the Federation Act as pro-
vincial subjects), may attain such dimensions as to
affect the body politic of the Dominion, and justify
the Dominion parliament in passing laws for their
regulation or abolition in the interests of the Do-
minion. This, however, will not prevent provincial
legislatures still dealing with such matters in their
local or provincial aspect, but, in case of conflict,
Dominion legislation will prevail pp. 74-77

15. The sections of the Federation Act relating
to the distribution of legislative power exhaust the
whole range of such power so far as the internal
affairs of Canada are concerned, and whatever is
nOit thereby given to the provincial legislatures in
relation to such internal affairs, rests with the
Dominion parliament pp. 77-79

16. The Federation Act has to be construed as
a whole, and when some specific matter is mentioned
as within the exclusive power of the Dominion par-
liament or provincial legislature, as the case may
be, which, but for that reference, would fall within
the more general description of a subject-matter
expressed to be confided to the other, the statute
must be read as excepting it from that general
description pp. 82-3

XM CANADIAN CONSTITUTIONAL LAW.

17. Where in respect to matters with which pro-
vincial legislatures have power to deal, provincial
legislation directly conflicts with the enactments of
the Dominion parliament, whether the latter imme-
diately relate to the enumerated classes of Domin-
ion subjects, or are only ancillary to legislation
upon such 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 enumerated Dominion subjects, the
provincial legislation must yield to that of the Do-
minion parliament. For as to Dominion laws we
have a quasi-legislative union. They are the local
laws of the whole Dominion, and of each and every
province thereof pp. 84-85

18. The legislative authority of the Dominion
parliament over the enumerated Dominion subjects
is exclusive. Whenever, therefore, a matter is with-
in one of these specified classes of subjects, legisla-
tion in relation to it by a provincial legislature is
incompetent. Thus a provincial legislature cannot
enact a bankruptcy law or a copyright law for the
province, even though the Dominion parliament
may not have itself legislated upon those subjects.

pp. 85-86

19. The due exercise of the enumerated power
conferred upon the Dominion parliament by the
Federation Act may occasionally and incidentally
involve legislation upon matters which are prima
facie committed exclusively to the provincial legis-
latures. The Dominion parliament may deal with
such local or private provincial matters where such
legislation is necessarily incidental to the exercise

LEADING GENERAL PROPOSITIONS.

of its own enumerated powers; or to the extent of
such ancillary provisions as may be requ’red to pre-
vent the scheme of one of its own laws from being
defeated pp. 87-88, 93-94

20. There is no restriction upon the Dominion
parliament when legislating upon one of its enu-
merated classes of subjects, to prevent it passing a
law affecting one part of the Dominion and not
another, if in its wisdom it thinks the legislation
desirable in one and not in the other pp. 88-90

21. The Dominion parliament can, in matters
within its sphere, impose duties upon any subjects
of the Dominion, whether they be officials of provin-
cial Courts, other officials, or private citizens

pp. 90-91

22. The provincial legislatures have no powers
to make laws save upon the sixteen enumerated
subject-matters confided to them, except the powers
given to them to make laws in relation to educa-
tion, and in relation to agriculture in the province,
and immigration into the province. They cannot
legislate beyond the areas of the prescribed subject-
matters p. 91

23. Co-equal and “co-ordinate legislative powers
in every particular were conferred by the Federa-
tion Act on the provinces. The Constitutions of all
provinces within the Dominion are on the same level.

p. 93

24. Whatever powers provincial legislatures
have as included within the enumerated subject-
matters committed to them, when properly under-
stood, those powers they may exercise, although in

CANADIAN CONSTITUTIONAL LAW.

so doing .they may incidentally touch or affect some-
thing which might otherwise be held to come within
the exclusive jurisdiction of the Dominion parlia-
ment under some of the enumerated Dominion sub-
ject-matters pp. 95-97

25. A provincial legislature is not incapacitated
from enacting a law otherwise within its proper
competency merely because the Dominion parlia-
ment might, under its own powers, if it saw fit so
to do, pass a general law which would embrace with-
in its scope the subject-matter of the provincial Act,

pp. 97-98

26. (Subjects which in one aspect and for one
purpose fall within the enumerated provincial legis-
lative powers, may, in another aspect and for an-
other purpose, fall within the Dominion legislative
powers, and so be proper for Dominion legislation,
by ” aspect” being meant the aspect or point of
view of the legislator in legislating, the object, pur-
pose, and scope of the legislation. Any merely in-
cidental effect a law may have over other matters
does not alter its own character p. 98

27. Although part of an Act, either of the Do-
minion parliament or of a provincial 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 osperation 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 exe-
cution p, 100

Historical Introduction.

The British North America Act, 1867, which con-
federated the British colonies of Canada, Nova
Scotia, New Brunswick and potentially the rest of
British North America, stands at the close of a cen-
tury of constitutional experiment. Goldwin Smith ‘s
aphorism that ” deadlock was the father of Cana-
dian Confederation ‘ ‘ is only a half-truth, for Cana-
dian Confederation is, from many points of view, the
logical outcome of antecedent attempts at govern-
ment, none of which in reality failed and each of
which brought with it its own quota of development.
Kesponsible federal government in Canada is an
evolution through a hundred years of anxious ques-
tionings, .of difficult and complicated situations, of
wisdom and folly, of insight and blindness, of de-
spair and faith. It is true, as will appear in the
course of this Introduction, that deadlock accele-
rated the development, and it is well to realize
clearly in connexion with the British North America
Act that there is very little of the dramatic and
brilliant faith which launched the Union of South
Africa. Almost every step towards Canadian Con-
federation was taken in the light of past experi-
ence in constitution making in Canada. On every
side along the difficult and treacherous road there
were finger-posts marked “danger.” The Fath-
ers of Canadian Confederation had behind them
a history which not only pointed out the solution to
Canadian difficulties, but also emphasized the pit-
falls which it was necessary to avoid. There hung

C.C.L. 1

2 HISTORICAL INTRODUCTIOX.

round the Quebec Conference an historical atmos-
phere of hope and fear, and in such an atmosphere
Canadian Confederation was born the child of ex-
perience, remote and immediate.

An historical background is, as a consequence,
emphatically necessary for a Treatise on Canadian
Constitutional law. This Treatise traces in detail
the interpretation of the Constitution during the
last fifty years. We shall see that the British North
America Act was almost necessarily an outline, in
which, however, as Edward Blake said in The On-
tario Lands’ Case, “a single line imported into the
system that mighty and complex and somewhat inde-
finite aggregate called the British Constitution.”
Thus, there was wide scope for amplification, for
discussion, for differences of opinion, for legal deci-
sions, whidh, indeed, have occupied no inconsiderable
place in legal and historical circles. With this aspect
of the Canadian Constitution I have, in this Intro-
duction, no concern. My object is to trace the his-
torical evolution to which reference has already
been made. There are, of course, obvious limita-
tions. It would be impossible to elaborate the
history, to enter fully into the pros and cons of
constitutional problems, complicated as they are
with political and social considerations, to examine
judicially many theories which lend colour to pre-
sent day controversies. My work is in some respects
more difficult. It is not a mere retelling of a story.
It is an attempt to interpret a development. It is
not a mere summary of facts. It is an attempt to
find in facts the complex characters and diverse con-
ditions out of which they grew. It is an attempt
to animate documents and manuscripts petitions,
letters, ordinances, despatches, Acts of Parliament
with something of the vital energy which once

THE PEACE OF PARIS. 3

called them into being ; to see the history with con-
temporary eyes ; to reconstruct contemporary stand-
ards and ideals ; to judge objectively the storm and
stress of the human will, and in all the difficult pro-
cess to give a true and adequate, but above all a,
living setting to Canadian Confederation.

The Peace of Paris in 1763 left England with
practically a free hand to do with a conquered
people almost as she wished. We are not here con-
cerned with the various pictures of Canadians and
Canadian life which General Murray vividly drew in
his earliest reports to the British government: the
“litigious disposition ” of the whole community;
the vanity, the contempt for trade, the petty tyranny
of the seigniors; the French dignitaries of the
Church; the rank and file of Canadian clergy;
shrewd and hardy traders and hunters; ” strong,
healthy, virtuous and temperate ‘ ‘ peasants ; a resi-
duum ‘ ‘ allured and debauched ‘ ‘ by the Indian
trade. It is a strange and suggestive picture stand-
ing as it does in violent social contrast with the
southern Colonies. The contrast, however, gbes fur-
ther and affords for our immediate purpose an in-
teresting and important point of view. The govern-
ment where it extended at least; was fixed and
rigid in State and Church, being only rescued from
monotony through the doubtful varieties provided
by the unreliability of despotism and corruption.
If the letter was paternalism, the spirit was auto-
cratic conservatism. England ‘took over a peo-
ple, from prelate and seignior down to habitant
and hunter, who had not only no training in political
thought, but were as far removed as it is possible to
conceive from contemporary British and colonial
conceptions of free citizenship. On the surface the
situation did not seem very complicated. It looked

4 HISTORICAL INTRODUCTION”.

a simple enough thing to become rulers over a people
so undeveloped and inexperienced in government.
More careful examination shows that the problem
was pregnant with difficulties.

In the first place, Britain never before had ac-
quired half a continent, so to speak, in which another
white race had made colonizing experiments. The
problem was then a problem of inexperience how
to govern a conquered white race! The problem
was rendered all the more difficult, when it was
mixed up with the question of ruling them in
relation to adjoining British colonies, alien in race
and religion, and highly advanced for the age in
political thought. Would the southern Colonies wel-
come their conquered neighbours as fellow citizens ?
Would the southern Colonies prove aggressive,
either socially or economically? Many questions
pressed forward for an answer. Were this survey of
the situation complete, it would have presented an
ambiguous enough outlook. There was, however, the
Indian question, and more difficult still there was
the presence of British settlers already in Canada
a complication to which we shall return.

British statesmen approached their task by
selecting General Murray as first ‘ ‘ Captain-General
said Governor-in-chief . ” When he began his new
work in August, 1764, he had two documents on
which he could fall back for guidance his own Com-
mission of the previous November and the Eoyal
Proclamation of the previous October. The latter
outlined possibilities in a broad spirit of wisdom,
but throughout there was a tactful ambiguity. Can-
ada was to be given, as far as possible and expedient,
those customs and institutions which the British
valued. It would appear that the intention was an
immediate introduction of English law, and the

GOVERNOR HURRAYS COMMISSION. 5

establishment of courts of justice in which civil and
criminal cases should be tried ” as near as may be
agreeable to the laws of England ‘ an important
clause. In addition, representative institutions
were promised, but only as soon as circumstances
would permit: a proviso reinforced, and its im-
portance emphasized in Murray’s Commission as
Governor. This Commission set up a form of govern-
ment something akin -to what we know to-day as
thait of a ” Crown Colony.” Until the opportune
moment came for calling a popular “General As-
sembly of the freeholders,” the Governor was em-
powered to make Ordinances on the advice of a
nominated Council. In other words, executive and
legislative government were exercised by the Gov-
ernor on the advice of the Council the creation of
the Crown. In due course, a system of Courts was
established, in which English law, broadly speaking,
was to be administered, and trial-by-jury introduced
without any religious tests.

Such was the scheme under which some 70,000
French-Canadians began their new life. To them it
must have appeared by no means hard and tyranni-
cal when they remembered that as a conquered
people they had every reason to expect the applica-
tion of contemporary standards. To the British
Government it must have appeared generous and
equitable. What more could ” the new subjects ‘
want than the hopes of colonial self-government,
English law, English law-courts and English jus-
tice? The citizen of the twentieth century may see
the humour of the question; but to the eighteenth
century Englishman there was a pleasing con-
descension in promising to the Canadians all that
he most valued, and round which the sacrosanct at-
mosphere of unreasoned awe and reverence had

6 HISTORICAL INTRODUCTION.

gradually gathered. If in the issue he did not find
pronounced graJtitude for his gift, it was because of
difficulties which Murray and his successor, Sir Guy
Carleton, understood.

Eeference has already been made to the fact that
there were British settlers in Canada. The earliest
difficulties in the Canadian situation were largely
caused by the extreme claims which were put for-
ward by these few hundred settlers alien to the
Canadians in race, speech, and religion. We must
allow for the irritation which their assumed superi-
ority caused Murray ; for his description of some of
them as ‘ ‘ the most immoral collection of men I ever
knew”; for his extreme condemnation of their ar-
rogance, which sought to place the entire govern-
ment of the country in their own hands. On the
other hand, Murray was a high-minded man of
upright principles, who could not fail to see that
the spirit displayed by this small section of the
community was highly detrimental. His opinion
cannot be idly overlooked. It is confirmed
many times over by his ‘Successor, a man of
equally high principles and character. Nor was the
situation rendered any more easy by the type of
official sent out from England men who called
forth the almost impassioned condemnation of both
these Governors. Indeed, the evident good-will of
England to give to the Canadians in the future in-
stitutions which she thought must be instinctively
valued by everyone was in itself a source of weak-
ness. As we have seen, the Canadians could not in
the least understand the type of government with
its many unedifying disputes, under which the Eng-
lish colonists to their south lived. With their roots
in the immemorial past of paternalism, they were
immeasurably removed from the appreciation of

EARLY PROBLEMS IN QUEBEC. 7

any form of self-government, and they were cer-
tainly not likely to be enamoured of it, when their
fellow citizens of alien speech, race and religion
loudly demanded it for Canada. So, too, English
systems of law and justice were inexplicable. Be-
fore long, chaos reigned.

It will be well, however, to point out that an
historical judgment on the state of affairs is not
forced to rest on the reports of Governors alone,
self-evident though their honesty may be. Many
documents from the minority itself help us. For
example, the Grand Jury at Quebec claimed that
they were “the only body that represented the col-
ony, . . . that they, as British subjects, have
a right to be consulted, before any Ordinance, that
may affect the body that they represent, be passed
into law.” The document might be left to the judg-
ment of history, were it not necessary to point out
that the six French Canadians who signed it along
with fourteen British, could not , understand it.
Murray described the authors as ‘ l licentious fan-
atics” who wished to expel the Canadians. Nor
does the Grand Jury’s presentment stand alone.
Some of the minority almost immediately petitioned
for Murray’s recall on the grounds of anti-Protest-
ant and anti-British rule, and incidentally because
he did not go to church on Sunday. They asked
for a House of Assembly composed exclusively of
Protestants, for whom, however, the Canadians
might be permitted to vote ! These documents taken
with Murray’s reports, show how far a sense of
superiority curtails a sense of humour.

Murray’s successor, Carleton, went through a
somewhat similar experience. Things reached an
absurd position when he was somewhat officiously
called to task by the minority for his method in

8 HISTORICAL, INTRODUCTION.

asking advice. His reply was stinging in its high
sense of dignity and in its well merited snub. But
nothing could disturb the smug self-satisfaction of
the minority, who, had they had their way with a
popular Assembly, would have made it almost cer-
tain that Canada would have become a fourteenth
State -of the Union.

While the body politic was thus disturbed, in the
legal world all was confusion. The Proclamation
of 1763 was never fully enforced, and it would have
been an utter impossibility at any given moment to
have stated in anything like clear terms what the
law of Canada really was. The State-papers of the
period abound in reports on the Canadian judicial
and legal system, and in suggestions drawn up on
the advice of the home government for the better-
ment and simplification of the confusion. It is true
that Carleton managed to make some necessary
improvements in the law and procedure relating to
the recovery of ‘debt, that he pruned the wings of
the inefficient justices of the peace. This necessary
Ordinance was a mere detail however in the chaotic
state of affairs. Of course, English criminal law
largely prevailed from the beginning of Murray’s
administration, but in civil law anarchy was su-
preme. Canadian lawyers, utterly ignorant of Eng-
lish law, pleaded in French before English-speak-
ing judges w^ho knew nothing of French law. In
fact, nobody really knew what civil law was in force,
and as a result all the evils of corruption, exces-
sive fees, and worst of all of real injustice, pre-
vailed while high above the whirl of confusion
rose the voice of the minority demanding the im-
mediate and complete introduction of English civil
law and procedure.

THE QUEBEC ACT OF 1774. 9

It at last became evident that the new colony
could no longer be carried on on a system, which, if
at times highly humourous, tended to reduce respect
for law. Carleton, the most enlightened man in
Canadian affairs, saw that the situation was little
likely to enhance British rule in the eyes of the new
subjects, and certainly was most detrimental to
their political development. Amid the mass of sug-
gested changes, his stands out in interest. He wished
the retention of the entire French civil code, .subject
to a few sensible and necessary amendments, with the
English code, as before, for criminal proceedings.
There was no small amount of intelligent and fair-
minded inquiry, and when Carleton went to England
in 1770, it was an open secret that an Act of Parlia-
ment would be brought forward to deal with the
Canadian situation. Carleton remained in England
four years, and to England we must now turn to
follow the course of Canada’s fortunes or misfor-
tunes as the point of view may be, for Carleton did
not return until the Quebec Act of 1774 had, for
good or ill, become law.

From the constitutional point of view, two in-
fluences seem to have been at work which gave the
Quebec Act its final form. One was the unmistak-
able attitude taken up by Carleton; the other was
the growing breach between England and the
American Colonies. Carleton was convinced that
an injustice would be done were the government of
the Canadians handed over to a small British min-
ority by providing a House of Assembly to which
the latter alone should send representatives. This
equitable opinion was emphasized doubtless by the
fact that, if Canada was not to go the way which the
Thirteen Colonies were evidently going, it would
be necessary to save the Canadians from a Govern-

10 HISTORICAL INTRODUCTION.

merit which would have been more or less inclined
to accept for them the preferred hand of southern
friendship. With what greater insinuation would
that offer have been made had there been no Que-
bec Act, when the Act itself was made the occasion
for asking the Canadians to desert Britain! As a
consequence, the Quebec Act did not contain any
provision for the immediate summoning of an As-
sembly the time was considered “inexpedient”
and the government remained much the same as
before that of a ” Crown Colony. ‘ > English crimi-
nal law was continued in the Province, while the
civil law of France was to govern “all matters of
controversy relative to property and civil rights.”
The religious question was dealt with along lines
laid down by previous experience. Freedom was
granted to the Roman Catholic Church, oath of allegiance was provided, and the clergy were
confirmed in their rights to their “accustomed
dues” from their parishioners.

The Bill may be summed up as a confession of
failure and a confession of strength. Canadian
civil law was restored, and the proposal for a popu-
lar Assembly postponed sine die. Thus any severe
construction of the Proclamation of 1763 was ruled
out of Court indeed the Proclamation was by name
repealed by the fourth section. On the other hand,
trial by jury in criminal suits, toleration in religion,
and a Council to which men of any creed might be
called were guaranteed. There can be seen in every
section the guiding hand of Carleton, who kept his
balance at -a moment when chaotic failure, bitter
recrimination and inability to understand the Can-
adian situation were only too widespread. Per-
haps, too, we -may see in it the tracings of the finger
already writing “Mene” on the wall of British
colonial experiment.

DEBATES ON THE QUEBEC ACT. 11

“We are not concerned here with the wisdom or
unwisdom of the Act, but no student of Canadian
Constitutional history ought to overlook the de-
bates 1 on the measure as it passed through the
British parliament. These debates must be read as
a whole, and extracts from them would only dis-
count their illustrative value. They not only throw
light on the failings of great men North, Burke,
Fox, Chatham who had passed through years of
embittered parliamentary struggle, but they pro-
vide the best contemporary comment on Canadian
affairs of which I know, as they contain the evi-
dence of Governor Carleton, the judicial fair-
minded gentleman; of Chief Justice Hey, no less
honourable and sincere ; and of Maseres, whose hon-
esty shines out iall the more clearly on account of
the limitations which his Huguenot ancestry im-
posed on him of approaching the Canadian situa-
tion in a spirit entirely unprejudiced. The inter-
ested reader will find enough in the course of his
study to convince him that the Quebec Act was no
sudden, subtle, and well arranged attack on their
freedom, as the citizens of the Thirteen Colonies
claimed. He will see how it comes logically out of
the difficulties inherent in Canadian government,
and, while the ” colonial troubles” doubtless col-
oured the Act, they had little or nothing to do with
the broad framework.

These “colonial troubles, ” however, affected the
Quebec Act in another way, which the student o’f
constitutional history, anxious to study experiments
in their workings, may be inclined to deplore. The
breaking out of hostilities between Britain and her

i See Cavendish, Debates on the Canada Bill in lll.’i (Lon-
don, 1839).

12 HISTORICAL INTRODUCTION.

Colonies almost rendered the Act still-born. In
the general lining up of all the forces which she
could command in the greatest struggle in her his-
tory, there was little time or opportunity for seeing
in full how the experiment of giving parliamentary
recognition to a French colony within the Empire
would work. The isolated demands for a new Con-
stitution were drowned in the noise of battle. If
they require an answer from the constitutional his-
torian, it can best be found in Haldimand’s despatch
of October 25th, 1780, to Lord George Germain:
“It requires but little penetration to discover that,
had the system of government solicited by the old
subjects been adopted in Canada, this colony would
in 1775 have become one of the United States of
America.” But these isolated demands soon be-
came reinforced by those of the colonial citizens
known to history as the United Empire Loya-
lists, many of whom took up new homes in Can-
ada – – mostly in those districts which compose
the modern province of Ontario during and after
the Revolutionary War. When a petition for “a
free constitution, ” signed by the British of Quebec,
Montreal and Three Rivers, was presented to the
King almost immediately after the conclusion of
peace, it was no longer a mere repetition of the
twenty-year old demand, but a finger-post pointing
to a new experiment. The arrival of the ex-sol-
diers and the new citizens practically made a change
necessary, and we must now turn to consider the
events which led up to another mile-stone on the
road of Canadian constitutional development.

The problem at once caused anxious question-
ings and poignant debates both in England and in
Canada. When Carleton, now Lord Dorchester,
returned for the second time as Governor in Octo-

THE UNITED EMPIRE LOYALISTS. 13

ber, 1786, it was clear that there lay before him a
more difficult task than that which confronted him
previous to the passing of the Quebec Act. The
“ancient subjects ” were as persistent as ever, their
demands ,now including not merely a House of As-
sembly, but the right of taxation and some control
over the executive. The last point is worthy of more
than passing notice. It is a long time until we
again hear of it in either express or implied terms in
Canadian history ; but doubtless the emphasis on it
during the American Kevolution and the too fla-
grant abuses connected with British official appoint-
ments in Canada might have lent it such weight at
this time as to have hastened the solution of Can-
adiaft problems, had not the “ancient .subjects”
been forced, as we shall see, to defend another posi-
tion. The United Empire Loyalists, while they
had stood out ‘solidly for the monarchical position,
yielded nothing to the Fathers of American Con-
federation in their claims to representative institu-
tions. They were, indeed, more developed in politi-
cal thought than contemporary Englishmen, and it
soon became apparent, as Dorchester informed the
home Government, that those who had sacrificed
their homes and fortunes and political rights to be-
gin life again in the Avilds of Canada would not sit
down calmly under the constitutional system erected
by the Quebec Act. Then there were the French-
Canadians, still children in political experience, to
whom representative institutions and all their ap-
pendages were meaningless and undesirable. Heirs
to the apathy born of absolutism, they knew noth-
ing of and cared less for all the constitutional safe-
guards which the United Empire Loyalists and
“ancient subjects” claimed as their most valued
political possessions. To them a House of Assembly

14 HISTORICAL, INTRODUCTION.

was but “une machine anglaise pour nous taxer.”
Out of such opposed forces would it be possible to
present any adequate and just solution to a problem
which was pressing itself forward with insistent
demand ?

The first on the scene were the “ancient sub-
jects” fortified by petitions from their supporters
in England, who claimed for them ‘ l the blessings of
British law and British government.” For some
months petitions, counter-petitions, and a volumin-
ous correspondence occupied the attention of the
Government, but it was only on the motion of a pri-
vate member that Canadian affairs came before the
House of Commons in April, 1786, when a bill was
introduced to amend the Quebec Act in such a way
as to meet the new situation, and to overturn “the
complete despotism and slavery” of the existing
system. Once again, Fox stands forth with all the
phrases of the new political philosophy on his lips.
Pitt, however, took matters in hand. His practical
mind realized that doctrinaire theories must be
tested by a careful analysis of Canadian affairs,
and by a close scrutiny of them on the part of
those most competent for the work. On his advice
the debate was postponed until Dorchester had once
again applied himself to the complicated subject and
sent in further reports.

For some months Dorchester was at work on
the Canadian problem with a judicial minded en-
ergy to which many despatches bear witness. A new
impetus was given in 1788 by the arrival of Adam
Lymburner in London as the representative of the
British minority in French Canada. His arrival
forced the hands of the Government, who had
already decided, with Dorchester in agreement,
that there was no plan easily available, which could

GEXESIS OF CONSTITUTIONAL ACT, 1791. 15

be justly offered to take the place of the existing
Constitution. Lymburner at the bar of the House
dwelt largely on the legal intricacies and the
inadequate constitutional condition of Canadian
government. In the ensuing debate, in which great
names once more figure, the pioint of view is
rather one of melancholy insularity. Fox reached
the old heights of academic eloquence. Burke piled
sentence on sentence with the command of words
which had now become fatal. Pitt’s good sense
rescued the scene from hollowness and unreality,
and he promised a full dress debate next session.

As a consequence of this promise the Govern-
ment in the autumn of the same year seems to have
decided on the presentation of a bill for the division
of the province at any rate this project was re-
ferred to Dorchester in September, and did not
receive his full approval. He was prepared, how-
ever, to help if the home Government insisted. De-
lays caused by discussions over land-tenure occu-
pied a year. In October, 1789, the draft of the new
Constitution was sent to Dorchester containing pro-
visions for popular institutions in each new pro-
vince. Grenville’s covering despatch is interest-
ing, containing as it does the now famous descrip-
tion of the Act, which in a short time was to appear
in General Simcoe’s speech in closing the first Par-
liament of Upper Canada ‘ ‘ an image and trans-
cript of the British Constitution. ” In addition we
find in the same despatch an elaborate explanation
of the proposal to found a kind of Canadian House
of Lords as a bulwark against the dreaded demo-
cracy of the new Republic. The proposal was
quashed by Dorchester, although it was inserted as
a permissive clause in the bill, and later on General
Simcoe played with it in a highly characteristic and
amusing manner.

16 HISTORICAL INTRODUCTION.

Of more interest, perhaps, to the student is the
opinion obtained about this time by Dorchester
from William Smith, Chief Justice of Canada an
opinion ‘to which Dorchester himself lent support.
The proposal was in reality one for a federation of
British North America. It is true that neither
Smith nor Dorchester foreshadowed Canadian self-
government as we know it to-day, but both of them
displayed remarkable insight in seeing how some
kind of federation would tend to eliminate the
meticulous pettiness of. small and jealous provinces.
If Franklin’s proposal of 1754 aimed at the federa-
tion of the Thirteen Colonies against an external
foe, the proposal made by Dorchester and Smith
aimed at saving provinces from foes of their own
household. However, the times were not ripe for
such a scheme, and in March 1791, Pitt introduced
the Constitutional Act.

The passage of the Act through the British Par-
liament cannot (be dealt with at length, but certain
points deserve at least a passing notice. Lymburner
once more appeared on behalf of his friends, who
were now to be hoist on their own petard an As-
sembly but on terms of equality with their old
neighbours, the French- Canadians. He opposed the
division of the Province, as he and his did not relish
in such company an isolation from the United Em-
pire Loyalists of the western districts. It never
seems to have occurred to the section of the Cana-
dian public which he represented that there was
any possibility of the French-Canadians being any-
thing more than passive citizens, to be ruled and
used by the superior British. Lymburner ‘s evi-
dence well repays reading, were it only to provide
a lesson on the fatuous folly of l ‘ the liberty of pro-
phesying.” The debate itself is, alas, too often only

THE CONSTITUTIONAL ACT, 1791. 17

recalled from the fact that the breach of friendship
between Burke and Fox occurred during it; but,
however pregnant with heart-searching the future
proved to be, the debate will convince the student
that the Government of the day did not lightly dole
out of its treasures a new Constitution for Canada.
Doubtless, it did not satisfy the abstract theorists,
but it was based on facts studied and grasped as
far as possible, and the honesty of the Government
cannot be questioned because they happened to lack
political omniscience and the wisdom which we pos-
sess ! I think we shall see that the weakness of the
Act lay in what it did not give, more than in what ,
it gave. Grenville’s letters, too, at this time mark –
the beginnings of England’s new colonial policy.
He wrote of the graciousness of immediate conces-
sions, which, if delayed, might be extorted without
discretion. Pitt also turned his back on the past
when in introducing the bill he repudiated Eng- *
land’s right to impose taxes except for the regula-
tion of trade and commerce, and, ‘ ‘ in order to
guard against the abuse of these powers, such taxes
were to be levied and disposed by the Legislature
of each division. ”

It is necessary to note somewhat carefully the
provisions made for Canadian government by the
Constitutional Act of 1791. In each province was
set up a Legislative Council appointed by the Kingf
for life, which with the House of Assembly in each
province, had power to make laws. Permissive
power was given to the King to annex to hereditary
titles the right of being summoned to the Legisla-
tive Council. The appointment of the Speaker of
the Council lay in the hands of the Governor. The
right to vote for members of the House was vested,

C.C.L. 2

18 HISTORICAL INTRODUCTION.

in the counties and towns, in those who had a small
property qualification. Legislative Councillors and
clergymen could not hold seats in the Assembly.
The Governor and all public officials were to be ap-
pointed by the Crown. Freedom for the Eoman
Catholic religion was granted, and a proportion of
uncleared Crown lands was set aside for the sup-
port of .the Protestant clergy. The entire executive
authority was left in the hands of the Crown, and
the possession of vast lands made it possible for
the Government to be independent of parliamentary
taxation. The administration of justice was prac-
tically passed over, the Governor or Lieutenant-
Governor and the Executive Council in either
province being constituted a Court of appeal in
civil cases. There was no definition of the
relationship of the Legislative Councils to the
Houses of Assembly, but Grenville informed Dor-
chester in a covering despatch that, as far as the
latter made claims for granting money, the claims
were ‘ ‘ so consistent with the spirit of our Constitu-
tion that they ought not to be resisted. ” Nor was
any attempt made to define the legislative relation-
ship of the provincial parliaments to the British
parliament.

With such a system, which lasted almost half a
century, Canada started her new constitutional life.
These years are perhaps the most complicated in
Canadian history and any detailed survey of them
must naturally lie outside the scope of my work
here. However, it is well to point out a danger into
which the student of Canadian history is liable to
fall. Overwhelmed in documents, dumbfounded by
the minutice of endless quarrels, wearied by petition
and counter-petition, he may turn aside from the
task of careful study of these years, convinced

CANADA UNDER CONSTITUTIONAL ACT 1791. 19

that they are too largely filled with valueless
detail’. The years are, however, the most vital
in Canadian history if a proper historical per-
spective is to be. obtained and the present judicially
estimated. It is true that the mass of historical
material is almost colossal, but it will repay all the
work spent on it, for out of it will, I think, emerge
valuable considerations in constitutional experiment
and illustrations of constitutional growth, without a
knowledge of which the present cannot be properly
and fairly understood. On the surface the life of
the period is petty, dull, and common-place, but
beneath can be traced streams of development
which later came to light and met in the full river
of responsible government. Difficult then though
the history may be, it is possible to consider it under
several generalizations and to sum up the half cen-
tury’s contribution to the growth of the Canadian
Constitution.

The first problem to which I would draw atten-
tion is connected with supply. The Governor had
at his disposal crown-revenues, and he could always
draw on the military chest which was replenished
by the home Government, while the Assembly had
control only over monies raised by. provincial legis-
lation. Thus the Governor that is the Crown in
Canada could at any time work the machinery of
government as he wished. The history of the period
is. full of painful illustrations of the Crown’s inde-
pendence of grants and of its carrying out the ad-
ministration of the country without monies voted
by the legislature. As long as the Crown was able
to control effectively the government, there was a
certain farcical element in representative institu-
tions. This was one of the broad issues. It is true
that the protagonists of the Assembly in this con-

20 HISTORICAL INTRODUCTION.

nexion were too frequently factious and recalcitrant
demagogues, but behind the wearisome reiteration
of their claims there lies the great constitutional
truth thait there can be no safe element in self-
. government unless the elected Assembly has control
over appropriation.

Secondly, since there was in the Act no defini-
tion of the legislative sphere peculiar to the British
and provincial Parliaments, issues in themselves
strictly affecting the provinces and yet of vital im-
portance to the entire scheme, were reserved for
consideration to the British Parliament. Among
these was the power to amend the provincial Con-
stitutions. To any one only superficially acquainted
with such
a man as Lord John Russell should have fallen
the lot of being the official recipient of Lord Dur-
ham’s Report, and that under his guidance the
Act of Union wajs passed, embodying as far as pos-
sible, as he informed Lord Durham, the general
principles of his survey. – It was still more fortun-
ate that the government chose Poulett Thomson,
afterwards Lord Sydenham, to carry out the actual

1 Lucas, op. cit., p. 278.

2 Ibid., p. 327.

UNION” ACT 1840. 25

reconstruction. ” It is rare, ‘ ‘ said Joseph Howe of
him, ” that a statesman so firm, so sagacious, and
indefatigable follows in the wake of a projector so
bold.”- It is true that at the passing of the Act,
Lord John Russell was not prepared to accept in
toto Lord Durham’s theory of responsible govern-
ment, but he at least set up a jumping-off place, if I
may be ‘allowed the expression, in his advice to
Thomson, who explained in answer to an address
from the Upper Canadian House of Assembly, that
he had ” received her Majesty’s commands to ad-
minister the government of these provinces in ac-
cordance with the well understood wishes and
interests of the people, and to pay to their feelings,
as expressed through their representatives, the
deference that is justly due to them.” 1 The des-
patches authorizing this statement were, in 1841,
submitted to the legislature of the united province.
In them Lord John Russell instructed the Governor-
General ” to call to his councils and to employ in
the public service those persons, who, by their posi-
tion and character, have obtained the general confi-
dence and esteem of the inhabitants of the pro-
vince. ‘ ‘ This was at least (the recognition of a new
principle. If Thomson preferred to be his own
first minister, to choose the best men independent
of numerical support in the Assembly, and did not
feel anxious to drive responsible government to its
logical conclusion cabinet government, yet his
method tided Canada over a trying period in her
history, with the rebellions in the near past, with
the French-Canadians full of suspicion and ominous
apprehension lest Lord Durham’s suggestions for
their ‘absorption might be present in some subtle

i Journals of the House of Commons of Canada, 1841. Ap-
pendix, BB.

26 HISTORICAL INTRODUCTION.

way in the mind of the new Governor. Indeed, with
no provision in the Act itself for responsible gov-
ernment, Thomson worked wonders.

It is hardly necessary to analyse the Act in de-
tail. The general scheme of government was little
changed. There was erected one Legislative Coun-
cil, members of which held office for life on good
behaviour, and one House of Assembly, the members
of which were to consist of an equal number from
each old province, and must possess property worth
at least 500. The Speaker of the Council was to
be nominated by the Governor, and of the Assembly
to be elected by its members. The status of the
Eoman Catholic Church, of the Church of England,
of waste lands and of religious toleration was
clearly defined and protected. Arrangements were
made for a consolidated fund out of which the ex-
penses of the judiciary, Government, and pensions
might be paid. The rest of the revenue was at the
disposal of the United Legislature which assumed
the debts of the two provinces. Appropriation and
taxation originated with the Governor-General and
were then open to discussion in the House of As-
sembly.

Sydenham’s success was a personal one, and
even he could not bring together the best men of
the opposing races, nor even of the British race.
He succeeded in stamping on the Government, into
which he called no extremists, his own strong per-
sonality. I always think of him as a man whose
great and constructive energy was relieved by an
inner spirit of subtle humour, for I can never
imagine him responsible to any one but to himself
and Lord John Eussell, however much he may have
hinted at responsible government. His death antici-
pated his resignation which he had already sent in,

RESPONSIBLE GOVERNMENT. 27

but it may not be a reflexion on his fine and courage-
ous character to say that it was perhaps fortunate,
as, had he remained to govern Canada, his very
success might have proved his undoing. His succes-
sor, Sir Charles Bagot, determined to continue his
policy. Bagot, however, had not Sydenham’s
strength and his very impartiality led him to accept
a reform ministry the reforming parties in both
sections of the province having joined hands under
Baldwin and Laf ontaine a thing, I imagine, Syden-
ham would not have done. Bagot ‘s successor, Sir
Charles Metcalfe, had little belief in responsible
government, and under him the thorny question
arose of the relation of the Governor to the Execu-
tive Council. Was it that of the Sovereign to his
responsible and constitutional ministers’? The
question widened out. Was the Governor in the
final analysis the servant of the Colonial office with
his Council in Canada merely advisory? On both
questions Metcalfe had clear-cut and definite opin-
ions: “With reference to your views of responsible
government, ‘ ‘ he said, ‘ i I cannot tell you how far I
concur in them without knowing your meaning,
which is not distinctly stated. If you mean that
the Governor is to have no exercise of his own judg-
ment in the administration of the government and
is to be a mere tool in the hands of his Council, then
I totally disagree with you. That is a condition to
which I never can submit, and which her Majesty’s
Government, in my opinion, can never sanction. . .
If you mean that the Governor is an irresponsible
officer, who can, without responsibility, adopt the
advice of his Council, then you are, I conceive, en-
tirely in error. ”

It was fortunate for Canada that Lord John
Russell came into power on the fall of Sir Eobert

28 HISTORICAL IXTBODUCT10X.

Peel’s ministry, with Earl Grey as Secretary of
State for the Colonial Department. Almost imme-
diately it was decided to give the colonies full
responsible government and the principle was laid
down by Earl Grey himself : ‘ ‘ This country has no
interest whatever in exercising any greater influence
in the internal affairs of the colonies, than is indis-
pensable either for the purpose of preventing any
one colony from adopting measures injurious to
another, or to the Empire at large. ‘ ‘ l The prin-
ciple of course meant party government.

Space has prevented me from tracing the growth
of representative institutions in the Maritime Pro-
vinces, where Joseph Howe, in four magnificent
letters 2 to Lord John Buss-ell, outlined the necessity
and justice of responsible government. They hold
a place in the literature of British constitutional
development, perhaps unrivalled for insight, logical
power, and skilled discussion. Nova Scotia and New
Brunswick passed into their promised land some-
what more easily and more quickly than Canada.
The transition was never at any time as complicated
and the passage was practically uneventful. In
Canada, however, for eight years all the difficulties
of establishing Cabinet Government, which England
had gone through in the eighteenth century, were
re-enacted. It remained for Lord Elgin to get the
system into full working order. Elgin did not allow
himself to be affected much by theories of gov-
ernment. He faced immediate issues and left ‘any
possible difficulties about the status of the Governor
to take care of themselves as they arose. With him
responsible government triumphed. His rule is

1 Earl Grey, The Colonial Policy of Lord John RusselVs
Administration, Vol. I. p. 17. (London, second edition, 1853).

2 J. H. Chisholm, The Speeches and Public Letters of Joseph
Howe, Vol. I. pp. 221 ff. (Halifax, 1909).

LORD ELGIN IN CANADA. 29

summed up by Earl Grey : ” In conformity with the
principle laid down, it was his object in assuming
the government of the province to withdraw from
the position of depending for support on one party
into which Lord Metcalfe had, by unfortunate cir-
cumstances, been’ brought. He was to act generally
on the advice of his Executive Council, and to re-
ceive as members of that body those persons who
might be pointed out to him as entitled to be so by
their possessing ithe confidence of the Assembly.
But he was careful to avoid identifying himself with
the party from the ranks of which the actual Council
was drawn, and to make it generally understood that
if public opinion required it, he was equally ready
to accept their opponents as his advisers uninflu-
enced by ‘any personal preferences or objections. 7 ‘
Once more, however, another advance in Canadian
constitutional development was handicapped by a
set of new difficulties, a consideration of which will
lead up to Confederation.

Cabinet government, if it is to be successful,
postulates strong party government. As a rule two
strong parties make it most effective. The difficulty
in Canada arose from the fact that there were many
parties Upper Canadian Reformers, Upper Cana-
dian Conservatives ; later on French-Canadian Con-
servatives and French-Canadian Radicals, with a
small group that carried on the traditions of ” the
family compact.” Even supposing it had been
possible to combine the Conservatives or Radicals
from each section, there was no clearly defined foun-
dation of a common Conservatism or a common
Radicalism between them. Similarity of party names
did not in the least mean similarity of party plat-
forms. As a consequence of the many parties the
Government was always a coalition. As a consequence

i Earl Grey, op. cit. p. 213.

30 HISTORICAL INTRODUCTION”.

of no common political principles among parties of
the same name, there was added to the limitations
inherent in coalition government a further serious
limitation the Government in power was never
secure in its measures. In addition, there was the
religious difficulty which was emphasized under the
stress of parliamentary and political oratory. It
was a human impossibility for Upper Canadian and
Lower Canadian to act together on questions which
crossed the thin line of theological controversy. Nor
were the issues at stake frequently of more than a
local nature in which French-Canadian and Upper
Canadian had no common interest.

During this period the consequences of these
difficulties complicated the government of the
United Province. Thus we find two premiers, one
French, one British. Before long we find a kind
of unwritten constitutional convention at work,
which demanded that a Ministry must have a
‘ distinct majority from French-speaking Canada
and from English-speaking Canada. The actual
workings out of government further illustrated the
anomalous position. Each division, for example,
demanded an equal expenditure of public funds. A
Ministry risked its existence if this demand were
unsatisfied. Thus the whole system degenerated
into a life-in-death condition, and for years there
dragged on government as unreal as government
well could be. Ministries quickly if olio wed one an-
other to defeat.

Other difficulties soon appeared. As Upper Can-
ada developed and exceeded Lower Canada in popu-
lation there arose a party which, gathering strength
with the years and drawing into its ranks both Con-
servatives and Radicals, demanded representation
by population. Such a programme could not com-

REPRESENTATION BY POPULATION. 31

mand adherence in Lower Canada, strong in its legal
guarantees for an equal number of seats. Once
again it became clearer and clearer that new de-
velopments were at hand. In 1858 the Canadian
Government fell back on the untried suggestion -of
Lord Durham and advocated a federation of British
North America Alexander Gait, who lived to bene-
fit the final scheme by his financial abilities, coming
into the Ministry on that understanding. For the
moment Britain was not prepared to re-open the
Canadian question, but the fact that in the following
year an attempt was made to unify the opposition in
the Canadian parliament by a proposal to govern the
two sections of the Province on a kind of federal
basis proves that the federal idea was gaining
ground in Canada. It is here that we touch hands
with Goldwin Smith’s saying. Party deadlock was
the immediate cause of Confederation.

In addition, the American Civil War and the
“Trent affair” of 1861 emphasized in Canada the
consciousness of constitutional weakness ; while the
anticipated revocation by the United States of the
Eeciprocity Treaty, which had been arranged by
Lord Elgin, turned the eyes of Canadian ‘Statesmen
to economic problems with which a Canadian federa-
tion could best deal. Indeed John A. Macdonald laid
weight on these considerations in words of measured
firmness during the Confederation debates in the
Canadian parliament: “If we are not blind to our
present position, we must see the hazardous situa-
tion in which all the great interests of Canada stand
in respect to the United States. I -am no alarmist.
I do not believe in the prospect of immediate war.
I believe that the common sense of the two nations
will prevent a war; still we cannot trust to proba-
bilities. The Government and Legislature would
be wanting in their duty to the people if they ran

32 HISTORICAL INTRODUCTION.

any risk. We know that the United States at this
moment are engaged in a war of enormous dimen-
sions that the occasion of a war with Great Bri-
tain has again and again arisen, and may at any time
in the future again arise. We cannot foresee what
may be the result ; we cannot say but that the two
nations may drift into a war as other nations have
done before. It would then be too late when war
had commenced to think of measures for strength-
ening ourselves, or to begin negotiations for a union
with the sister provinces. At this moment, in con-
sequence of the ill-feeling which has arisen between
England and the United States a feeling of which
Canada was not the cause in consequence of the
irritation which now exists, owing to the unhappy
state of affairs on this continent, the Reciprocity
Treaty, it seems probable, is about to be brought
to an end our trade is hampered by the passport
system, and at any moment we may be deprived of
permission to carry our goods through United
States channels the bonded goods system may be
done aw r ay with, and the winter trade through the
United States put an end to. Our merchants may
be obliged to return to the old system of bringing in
during the summer months the supplies for the
whole year. Ourselves already threatened, our
trade interrupted, our intercourse, political and
commercial, destroyed, if we do not take warning
now when we have the opportunity, and, while one
avenue is threatened to be closed, open another by
taking advantage of the present arrangement and
the desire of the Lower Provinces to draw closer
the alliance between us, we may suffer commercial
and political disadvantages it may take long for us
to overcome. J>1

i Parliamentary Debates on the subject of the Confedera-
tion of the British North American provinces, p. 32: (Quebec,
1865).

CANADIAN CONFEDERATION. 33

Other forces, more subtle, were at work. The
forces of history which had brought responsible
government drove- men to larger visions. There
began to dawn before >some of the greatest Cana-
dians of the day outlines of a larger Canada from
Atlantic to Pacific linked up by bonds of steel.
Joseph Howe and Greorge Brown saw the vision,
and even the stalwart Conservative champion had
his Pisgah moment when he realized that the United
States might claim lands as yet constitutionally un-
linked to either Canada or the United States. As
the vision broadened out it lent weight to the situa-
tion created by party deadlock, and it seemed no
impossible thing to extend to British North America
a federal system based on the constitutional experi-
ence of the previous century. The” issue was almost
rendered secure by the singular coincidence that
delegates from the Maritime Provinces assembled
at Charlottetown in. 1864 to discuss a federation of
those Provinces. To this Convention delegates
from Canada were permitted to go, and in due
course the Conference adjourned to Quebec to con-
sider the wider union. In eighteen days, October
10th to 29th, 1864, seventy-two resolutions were
passed which became substantially the British
North America Act. This was the assembly of the
greatest Canadians in public life Tache, the aged
French-Canadian premier; Cartier, who bore the
olive branch of union to his countrymen; Macdonald
and Brown, the Upper Canadian foemen, who shed
party for the higher vision; Gait, whose genius
saved the proposal from wreck on the dangerous
shoals of financial difficulties; Tupper and Tilley
and others of less note, but of no less necessity at
the moment. It may be fanciful, but I cannot look
at the picture of the Fathers of Canadian Confed-

C.O.L. 3

34 HISTORICAL, INTRODUCTION.

eration without something akin to emotion. I al-
ways connect it with the great ventures of faith in
history and it is faith which raises politics into
the realms of constructive statesmanship. A fed-
eral scheme was outlined in which a general govern-
ment should be given control over the wider inter-
ests, while local governments for each of the Can-
adas and for the Maritime Provinces should control
local affairs. At the same time, provision was
made for admitting British Columbia, Vancouver,
and the North-West Territory.

George Brown left for England, where he laid
the scheme before the British Government, who re-
ceived it with ‘ i prodigious satisfaction. ‘ ‘ In Febru-
ary, 1865, the Quebec Eesolutions were debated by
the Canadian Parliament, being presented for ac-
ceptance or rejection as a whole, and as solemn
agreements between equal contracting parties. In
spite of able opposition, they passed by substantial
majorities in the House of Assembly and the Legis-
lative Council. Their progress led to speeches
which are vital to a clear understanding of the
actual state of affairs. With the debates on the
Quebec Act, Lord Durham’s Report, John Howe’s
letters, and Lord Elgin’s despatches, they are
among the most valuable commentaries that we
possess on Canadian constitutional development.

The later history is too well known to detain us.
In due course the British North America Act be-
came law, and out of the gropings of the years
emerged a new Canada to develop side by side with
the first great experiment in federal government.
Few of those alive in England or in federated Can-
ada realized the richness of the future, and perhaps
not a few anticipated that there was near enough at
hand an independent Canada as the next step in her

THE BRITISH NORTH AMERICA ACT. 35

constitutional history. The student, at any rate,
can hardly find a century richer in constitutional
experiment. The British North America Act was
almost necessarily a skeleton, and there has gath-
ered round it in the course of its workings many
legal decisions which are dealt with in the following
Treatise. Kound it, too, has grown up a sentiment
which has made it Canadian in the widest sense of
the word, and has carried the principles for which
free institutions and responsible government stand
from the local life of every province of the Can-
adian Confederation into the world Federation
struggling in a death grapple with ancient auto-
cracy and arbitrary government.

[NOTE. I have used the documents published by the Cana-
dian Archivists, by Professors Egerton and Grant, by Mr. W.
Houston; The British Parliamentary Papers relating to Can-
ada; The Parliamentary Journals of the various Canadian
Provinces.]

A SHORT TREATISE

ON

Canadian Constitutional Law

SEC. I. FORMATION OF THE DOMINION OF CANADA
!TS COMPONENT PARTS CANADIAN CONSTITUTIONAL
ACTS. The Dominion of Canada was first established
by the union or confederation 1 in 1867 by the Im-
perial British North America Act (sometimes re-
ferred to in these pages, for shortness sake, as
“the Federation Act”)> which was passed on
March 29th, 1867, and came into force on July 1st
of the same year, of the British North American
provinces of Nova Scotia, New Brunswick, and
Canada, the last of which had been formed in 1840
by a union of the provinces of Upper Canada and
Lower Canada, and was now in 1867 re-divided
under the names of Ontario and Quebec, as two
separate provinces of the new Dominion. British
Columbia was admitted as a province of the Do-
minion by Order-in-Council of May 16th, 1871, and
Prince Edward Island by Order-in-Council of June
26th, 1873. 2

The North-West Territories, which comprise all
the area of the Dominion not included from time to
time within the limits of any province, and now con-
sist only of the territory north of the 60th parallel
of latitude and east of the Yukon, were ceded to the
Dominion by Imperial Order-in-Council of June
24th, 1870, pursuant to power conferred by section
146 of the British North America Act, 1867, and full
authority was conferred upon the Parliament of

38 CANADIAN CONSTITUTIONAL LAW.

Canada to legislate for the future welfare and good
government of the said territories. In 1870 the
province of Manitoba was carved out of these North-
West Territories by Dominion Act, 33 Viet. c. 3,
confirmed by Imperial Act, 34 Viet. c. 28, and
made one of the provinces of the Dominion. The
province of Alberta was constituted out of these
territories in 1905 by Dominion Act, 4-5 Edw. VII.,
c. 30, and the province of Saskatchewan, also in 1905,
by Dominion Act, 4-5 Edw. VII., c. 42, both under
the authority of Imp. 34 Viet. c. 27, known as the
British North America Act, 1871. The above
Orders-in-Council admitting new provinces, as also
the Dominion Acts establishing the provinces of
Manitoba, Alberta, and Saskatchewan, 3 all provide
that the provisions of the British North America
Act, 1867, shall, with some minor variations in each
case not affecting, the main features of the Con-
stitution, be applicable to each of the said provinces
‘ in the same manner and to the like extent as they
apply to the several provinces of Canada, and as if
(each of the said provinces) had been one of the
provinces originally united by the said Act/ The
Imperial Act, 49-50 Viet. c. 35, passed in 1886,
known as the British North America Act, 1886, gave
the Parliament of Canada power to provide repre-
sentation in the Senate and House of Commons for
any territories which for the time being form part
of the Dominion of Canada, but are not included in
any province thereof. 4

This treatise, then, will be mainly concerned with
the provisions and interpretation of the British
North America Act, 1867, especially with those por-
tions of it which distribute legislative power over
the internal affairs of the Dominion between the
Federal or Dominion Parliament, on the one hand,

THE BRITISH NORTH AMERICA ACTS. 39

and the various provincial legislatures on the other.
The written portion of the Constitution of the Do-
minion, in the sense in which that phrase is gener-
ally used, is to be found in it, supplemented or
amended by the British North America Act, 1871,
Imp. 34 Viet. c. 28, as to the power of the Dominion
Parliament to establish new provinces in any terri-
tories of the Dominion and provide for their con-
stitution and administration, and also to alter the
limits of existing provinces and to legislate for ter-
ritories not included in any province the Parlia-
ment of Canada Act, 1875, Imp. 38-39 Viet. c. 38,
substituting a new section for section 18 of the
British North America Act, 1867, as to the privi-
leges, immunities, and powers of the Dominion Sen-
ate and House of Commons and of the members
thereof respectively – – the British North America
Act, 1886, Imp. 49-50 Viet. c. 35, as to the representa-
tion in the Parliament of Canada of territories which
for the time being form part of the Dominion, but
are not included in any province – – the British
North America Act, 1907, making further provision
with respect to the sums to be paid by Canada to the
several provinces of the Dominion; 5 the British
North America Act, 1915, Imp. 5-6 Geo. V., c. 45,
making certain changes in the composition of the
Dominion Senate while preserving its quasi-federal
character. To these may be added the Canada
(Ontario Boundary) Act, 1887, Imp. 52-53 Viet,
c. 28 ; the Statute Law Eevision Act, 1893, Imp. 56
Viet. c. 14, repealing certain sections of the British
North America Act, 1867, which had by lapse of time
become unnecessary, and the Canadian Speaker
(Appointment of Deputy) Act, 1895, Imp. 59 Viet. c.
3. In these statutes is to be found the written
portion of the federal Constitution of Canada.

40 CANADIAN CONSTITUTIONAL LAW.

But it must always be remembered that those great
constitutional documents which comprise almost the
whole of the written portion of the Constitution of
Great Britain Magna Charta, the Petition of Right,
the Bill of Eights, and the Act of Settlement are
equally included in Canada’s constitution, while as
to the unwritten part of the Constitution, those
legal decisions which embody the common law
Constitution of Great Britain are equally authorita-
tive in Canada, and we may say of both the Do-
minion and provincial governments that ‘ that great
body of unwritten conventions, usages, and under-
standings which have in the course of time grown up
in the practical working of the English Constitution,
and which are so admirably dealt with in Dicey ‘s
“Law of the Constitution/’ form as important a
part of the political system of Canada as the funda-
mental law itself which governs the federation.’ 6

SEC. II. SYNOPSIS OF THE SCHEME OF THE CAN-
ADIAN CONSTITUTION AS CONTAINED IN THE BRITISH
NORTH AMERICA ACT, 1867 ITS GENERAL ANALOGY
TO THE CONSTITUTION or THE UNITED KINGDOM.
A royal proclamation, issued on May 22nd, 1867, to
take effect on July 1st, 1867, established the Do-
minion of Canada under the provisions of the Bri-
tish North America Act, 1867, which recites that the
provinces of Canada, Nova Scotia and New Bruns-
wick had expressed their desire to be federally
united 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. It seems proper to first give a
short account of the general features of the scheme
thus provided, for the better understanding of
what is to follow. Under the provisions of this

BRITISH NORTH AMERICA ACT, IS’67. 41

fundamental Act the executive government and auth-
ority of and over Canada continue and are vested in
” the Queen,” a term which is expressed (section 2)
to ‘ extend also to the heirs and successors of Her
Majesty, Kings and Queens of the United Kingdom
of Great Britain and Ireland.’ The Sovereign, act-
ing, of course, by and with the advice of responsible
Ministers, appoints a Governor-General as chief
executive officer to carry on the government of Can-
ada on his behalf and in his name. This he has to do
by and with the advice of “the Queen’s Privy Council
for Canada, ” whose members are nominally chosen
and removed by himself, and who in accordance with
the system of responsible cabinet government exist-
ing in Canada comprise the Ministry of the day so
far as active functions are concerned, though ex-
Ministers retain after retirement the titular rank of
Privy Councillors. There is one Parliament for
Canada, consisting of the Sovereign, an Upper House
styled the Senate, and the House of Commons, which
is required to hold a session once at least in every
year. The Senate, under the (Imp.) British North
America Act, 1915, is to consist of ninety-six mem-
bers, appointed by the Governor-General, from
time to time, in the name of the Sovereign, twenty-
four from the province of Ontario, twenty-four
from the province of Quebec, twenty-four from
the Maritime provinces and Prince Edward Island
(being ten from New Brunswick, ten from Nova
Scotia, and four from Prince Edward Island), and
twenty-four from the western provinces (being six
from Manitoba, six from British Columbia, six from
Saskatchewan and six from Alberta). Thus this
Act preserves, or rather restores, the Senate’s origi-
nal quasi-federal aspect which had become impaired,
the original idea of the composition of the Senate

42 CANADIAN CONSTITUTIONAL LAW.

having been that of affording protection to the
smaller provinces which they might not always en-
joy in a House when the representation was based
on numbers only. Senators hold their office for
life ; and -to be a senator a man must be thirty years
of age, a natural born or naturalized subject of the
King, a resident of the province for which he is
appointed, and possessed of a property qualification
of $4,000 over all liabilities. It cannot be said that
the Senate holds either a strong, or a popular, posi-
tion in Canada, although it may be said to have been
in its favour that the one departure was made from
the principle of following, wherever possible, the
analogy of the British Constitution. For it is ex-
pressly provided in the Federation Act that at no
time shall more than six additional senators be
appointed over and above the number prescribed in
that Act ; or, we .must now add, in the subsequent
Acts or Orders-in-Council adding other provinces to
the Union. The British unlimited prerogative power
to add new members to the Upper House does not,
therefore, exist in Canada. The Governor-General
appoints from among the senators ia Speaker of
the Senate, and may remove him and appoint
ano’ther. As to the Dominion House of Com-
mons, it is summoned to meet from time to
time by the Governor-General, who may also
dissolve it. Unless sooner dissolved it continues
for five years. Its numbers may be from time to
time increased by the Dominion Parliament, but
Quebec is always to have a fixed number of sixty-
five members, and each of the other provinces a cor-
responding number of members in proportion to
population, as ascertained at each decennial census.
At present it consists of 221 members. 6 * Except in
the case of Saskatchewan, Alberta, and the Yukon

DOMINION HOUSE OF COMMONS. 43

Territory, the provincial voters lists determine the
federal electorate, as well as the provincial, by
virtue of express Dominion enactment. In all the
provinces the franchise is a very low one. In nearly
all an adult male British subject, not being an In-
dian, has a vote if he has resided in the province for
one year, and in the electoral district for three
months. Manitoba, Alberta, and Saskatchewan
have, within the last year or two, given women the
vote for their provincial elections, which will in the
case of Manitoba, apparently, though not in the case
of Saskatchewan and Alberta (see Dominion Elec-
tions Act, R. S. C. 1906, c. 6, ss. 10, 32), secure them
also the federal vote. The Dominion Parliament has
power over the qualification of members of the
House of Commons, over the right to vote for .such
members, the proceedings at elections, the trial of
controverted elections, etc., which last is, as in Eng-
land, delegated to the Courts. The House of Com-
mons elects its own Speaker. The relations between
the House of Commons and the Senate in respect to
money bills, and otherwise, are analogous to those
which existed between the House of Lords and the
House of Commons in England prior to the English
Parliament Act, 1911.

When a bill has passed both Houses it is pre-
sented to the Governor-General for the King’s as-
sent, who then declares either that he assents there-
.to in the King’s name, or that he withholds the
King’s assent, or that he reserves the bill for the
signification of the King’s pleasure. When he
assents to a bill in the King’s name, a copy of it is
sent to the Imperial Government in England, and
may be disallowed within two years after receipt
thereof. As a matter of fact since Confederation
only one Act of the Dominion Parliament appears to

44 CANADIAN CONSTITUTIONAL LAW.

have suffered this fate, viz., 33 Viet. c. 14, commonly
known as the Oaths Bill, which was disallowed in
1873 as being ultra vires of the Parliament of Can-
ada. 7 Of course this power of disallowance, as also the
like power possessed by the Governor-General over
provincial Acts, is exercised subject to usage and
convention with which we are not at the present
moment concerned, but which is briefly dealt with
infra pp. 60-66.

For each province of the Confederation the
Constitution provides a Lieutenant-Governor, ap-
pointed by the Governor-General in Council,
who holds office during the pleasure of the latter,
but may not be removed within five years except
for cause assigned. When appointed, however,
he represents the King, not the Governor-General,
as we shall presently see. He is, in each case,
assisted in the discharge of his duties by an
Executive Council, appointed by himself, comprising
the provincial Ministry, and discharging in regard
to the province functions similar to those discharged
by the Dominion Privy Council in regard to the Do-
minion. Each province has also a legislature of its
own, consisting, in the case of Ontario, New Bruns-
wick, Manitoba, British Columbia and Prince Eel-
ward Island, of a single house styled the Legislative
Assembly, but in the case of Quebec and Nova
Scotia, of a Legislative Council and a Legislative
Assembly, the members of the former being ap-
pointed by the Lieutenant-Governors, and holding
office for life. The Prince Edward Island legisla-
ture is, however, an amalgamation of the old Legis-
lative Council (the members of which were, and
their present representatives still are, elected by
voters possessed of a small property qualification),
and the House of Assembly. The Lieutenant-Gov-

THE JUDICIARY. 45

ernors are a part of their respective provincial
legislatures, as the Governor-General is of the Do-
minion Parliament, and have analogous functions in
regard to bills which have passed the House or
Houses, either assenting to them, or withholding
assent, or reserving them for the consideration of
the Governor-General ; and any provincial Act may
be disallowed by the Governor-General within one
year after he has received a copy of it. It must of
course be remembered that in all such cases Gover-
nor-Generals and Lieutenant-Governors alike act
under the advice of their respective Ministers. To
the Dominion Parliament on the one hand, and the
provincial legislatures on the other, the British
North America Act, 1867, assigns certain legislative
powers, for the most part exclusive, over specific
subject-matters, and in addition confers upon the
Dominion Parliament 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. These legislative powers will be
referred to hereafter in detail. The Governor-Gen-
eral appoints the judges of the Superior, District
and County Courts in each province, and the pro-
vincial Courts have cognizance of all matters of liti-
gation, whether relating to the federal Constitution,
or arising under Dominion statutes or not, except
proceedings against the Crown (Dominion) 8 and
petition of right in Dominion cases, which are
within the exclusive jurisdiction of the Exchequer
Court of Canada. There is no such system of
federal Courts in Canada as exists in the
United States. The only federal Courts are the
Supreme Court of Canada, and the Exchequer
Court of Canada. The latter deals with the matters

46 CANADIAN CONSTITUTIONAL LAW.

just mentioned, and has also concurrent original
jurisdiction with the ordinary provincial Courts in
revenue cases, and in all cases of conflicting applica-
tions for any patent of invention, or for the regis-
tration of any copyright, trade mark, or industrial
design, or in which it is sought to impeach or
annul the same, or in which a remedy is sought
respecting the infringement of any patent of
invention, trade mark, or industrial design, and
in certain other matters. See Audette’s “Prac-
tice of the Exchequer Court of Canada” (Ottawa,
1909). The Supreme Court of Canada deals with
appeals^ from the Exchequer Court and from the
various provincial Courts, generally of last resort,
as provided in the Supreme Court Act, B. S. C.
1906, c. 139, and the amendments thereto. 8 *

Eeverting again to the recital in the British North
America Act, 1867, already referred to, the analogy
of the above to the Constitution of the United King-
dom is very apparent. The Sovereign of Great Bri-
tain occupies the same relation to the Canadian legis-
latures as to the Parliament of Great Britain, acting,
however, through his appointed representatives,
and on the advice of different sets of ministers.
The relation between the House of Lords and the
popular House in Great Britain, as it was before
The Parliament Act, 1911, is reproduced, as far
as may be, in those between the Dominion Senate and
provincial Legislative Councils, where such exist,
on the one hand, and the Dominion and provincial
popular Houses on the other. The absence of any
provision prohibiting members of the Dominion
Cabinet or the provincial Executive Councils from
being members of the legislature during their con-
tinuance in office, together with the power of disso-
lution of the popular Houses possessed by the Gov-

THE GENESIS OF CONFEDERATION. 47

ernor-General and the provincial Lieutenant-Gover-
nors, preserves in Canada the British system of
parliamentary cabinet government. And other and
less obvious features might also be cited, such as
the plenary character of legislative power in Can-
ada, which illustrate the way in which the framers
of the scheme of Canadian confederation sought to
follow, so far as was possible under federal condi-
tions, the British model. 9

SEC. III. THE IMPERIAL PARLIAMENT ITS PARA-
MOUNT AUTHORITY. The powers of legislation con-
ferred upon the Dominion Parliament and the pro-
vincial legislatures respectively by the British
North America Act, 1867, are conferred subject to
the sovereign authority of the Imperial Parlia-
ment. 10

SEC. IV. THE GENESIS OF CONFEDERATION THE
PRE-CONFEDERATION CONSTITUTIONS. These are sub-
jects upon which it seems right to say a few further
words before passing to a detailed consideration of
the present Constitution of Canada.

The Constitutions of Nova Scotia, New Bruns-
wick, and Prince Edward Island, as they existed at
the time these provinces respectively became in-
cluded in the Canadian Confederation, did not rest
upon any formal charter, but were derived from the
terms of the royal commissions to the Governors
and Lieutenant-Governors, and from the instruc-
tions which accompanied the same, moulded from
time to time by despatches from Secretaries of
State conveying the will of the Sovereign, and by
Acts of the local legislature assented to by the
Crown ; and the whole to some extent interpreted by

48 CAXADIAX CONSTITUTIONAL LAW.

uniform usage and custom in the colony. In each
there was an Executive Council to advise and assist
the Governor, a Legislative Council as to the office
of Lieutenant-Governor ; and as to the Dominion
parliament there is the very wide 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 provincial legislatures. See infra, pp. 74-7.”

D. Law Courts are not concerned with the
motives of the legislature in legislating. This is
an obvious corollary to the plenary nature of legis-
lative power in Canada. Of course, the object and
design of an Act may, as we shall presently see
(infra, p. 98), be one of the things to be determined
in order to ascertain the class of subject to which
it really belongs its true aspect but assuming it
falls within one of the powers conferred by the
Federation Act upon the legislature passing it the
motive which induced the legislature to exercise its
power is no concern of the Courts. 58

E. Colourable legislation. The parliament of
Canada cannot, under colour of general legislation,
deal with what are provincial matters only, 59 and
conversely, provincial legislatures cannot, under

70 CANADIAN CONSTITUTIONAL LAW.

the mere pretence of legislating upon one of
the matters enumerated in section 92, really legis-
late upon a matter assigned to the jurisdiction of
the parliament of Canada. 60 And if the Dominion
parliament or the provincial legislatures have no
power to legislate directly upon a given subject-
matter, neither may they do so indirectly. 61

F. Law Courts not concerned with justice of
legislation. Again it is not competent for any
Court to pronounce either a Dominion or a provin-
cial Act invalid merely because it may affect in-
juriously private rights, or destroy vested rights, or
be otherwise unjust, or contrary to sound principles
of legislation, 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. 62

There are no provisions in the Canadian Con-
stitution similar to those in that of the United
States, that ‘no State shall . . pass any Bill of
attainder, ex post facto law, or law impairing the
obligation of contracts ‘ ; and, as to Congress itself,
that ‘ no bill of attainder or ex post facto law shall
be passed. ‘ All of which forcibly brings out the
difference between the sovereign power of Canadian
legislatures when legislating on the subjects com-
mitted to their jurisdiction, and the limited powers
of legislatures in the United States.

G. Some introductory remarks as to the distri-
bution of legislative power within Canada.

1. Generality of language used in the British
North America Act, 1867. The language of sections
91 and 92 of the Act conferring legislative powers
upon the Dominion parliament and provincial legis-
latures respectively, and of the various heads which

GENERALITY OF LANGUAGE OF B. N. A. ACT. 71

they contain, obviously cannot be construed as
having been intended to embody the exact disjunc-
tions of a perfectly logical scheme. The draughts-
man had to work on the terms of a political agree-
ment, terms which were mainly to be sought for in
the resolutions passed at Quebec in October, 1864.
Of these resolutions, and the sections founded on
them, it may be said that if there is at points ob-
scurity in language, this may be taken to be due,
not to the uncertainty about general principle, but
to that difficulty in obtaining ready agreement about
phrases which attends the drafting of legislative
measures by large assemblages. For these reasons
it is impracticable to attempt with safety definitions
marking out logical disjunctions between the var-
ious powers conferred by the 91st and 92nd sections,
and between their various subheads inter se. Lines
of demarkation have to be drawn in construing the
sections in their application to actual concrete cases,
as to each of which individually the Courts have
to determine on which side of a particular line
the facts place them. 63 It may be added that
the way in which provisions in terms over-
lapping each other have been placed side by side
in these sections shows that those who passed the
Federation Act intended to leave the working out
and interpretation of these provisions to practice
and to judicial decision. The framers of that Act,
purposing, as they state in the preamble, to give
to Canada ‘ a Constitution similar in principle to
that of the United Kingdom/ restrained their
hands, and in the distribution of legislative powers,
as in devising the other features of the Constitu-
tion, they used general language, and allowed as
free scope as in the nature of the case was possible,
for that process of organic growth of the Consti-
tution coincidently with the development of the

72 CANADIAN CONSTITUTIONAL LAW.

national life generally which is one great virtue
of the Constitution of Great Britain. The general
terms employed show that the wish was to give a
general elasticity in the Constitution. It would,
indeed, have been impossible to make a complete
enumeration of all the powers to be vested in the
Dominion parliament and the provincial legisla-
tures. 64 With this structure of sections 91 and 92,
and the degree to which the connotations of the
expressions overlap, and the use of general terms,
there comes the risk of some confusion whenever
a case arises in which it can be said that the power
claimed falls within the description of what the
Dominion,- on the one hand, or the provinces, on
the other, are to have ; while it becomes unwise for
the Courts to attempt exhaustive definitions of the
meaning and scope of the expressions used. Such
definitions must almost certainly miscarry. It is
in many cases only by confining decisions to con-
crete questions which have actually arisen in cir-
cumstances the whole of which are before the tri-
bunal that injustice to future suitors can be
avoided. 65

H. The general scheme of the distribution of
legislative power. The scheme of the Federation
Act comprises a fourfold classification of legislative
powers; firstly, over those subjects which are
assigned to the exclusive power of the Dominion
parliament; secondly, over those assigned to the
exclusive power of the provincial legislatures;
thirdly, over two subjects, and two subjects only,
agriculture and immigration, which are assigned
concurrently to the Dominion parliament and the
provincial legislatures by section 95, but with the
proviso that ‘ any law of the legislature of a province,
relative to agriculture or to immigration, shall have

DISTRIBUTION OF LEGISLATIVE POWER. 73

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 ‘ ; and, fourthly, over a particular subject,
namely, education, which, for special reasons, is
dealt with exceptionally, and made the subject of
special legislation: see infra, pp. 143-9. 65a

As to the first class, the subjects assigned to the
exclusive power of the Dominion parliament com-
prise generally the power i 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. ‘ But inasmuch as the unequivocal
intention was to place within the power of the
Dominion parliament all matters which, although
they might appear to come within the description
of ” provincial,” or ” municipal,” or ” local or
private,” were deemed to possess an interest in
which the inhabitants of the whole Dominion might
be considered to be alike concerned, therefore
section 91 expressly enacts that ( notwithstanding
anything in this Act (this is known as ” the non
obstante clause “) * the exclusive legislative au-
thority of the Parliament of Canada extends to all
matters coming within the classes of subjects next
hereinafter enumerated/ being twenty-nine enu-
merated classes of subjects presently to be con-
sidered seriatim (see infra, pp. 101-124), but that
this enumeration is not to be construed as restricting
the generality of the preceding power to make laws
for the peace, order and good government of
Canada in relation to non-provincial subjects; and,
further, that ‘ any matter coming within any of the
classes of subjects enumerated 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 assigned exclusively to the

74 CANADIAN CONSTITUTIONAL LAW.

legislatures of the provinces/ which the Privy
Council have interpreted to mean ” shall not be
deemed to come within any of the classes of matters
assigned to the provincial legislatures. ” See infra
p. 87.

As to the legislative powers assigned to the
provincial legislatures all of these are by section 92
expressed to be assigned to them ‘ exclusively ‘ : and
the section, instead of indicating them in general
terms as all matters of a purely local or private
nature in the province, enumerates, under items 1
to 15 inclusive, presently to be considered seriatim
(see infra, pp. 124-143), certain particular subjects of
a purely provincial, local, or private character, and
then winds up with item 16 ‘ generally all matters
of a merely local or private nature in the province ‘
(see infra, p. 143) to prevent the particular enumera-
tion of the local and private matters included in
items 1 to 15, being construed to operate as an ex-
clusion of any other matter, if any there might be,
of a merely local or private nature. 66

I. The Dominion residuary legislative power.
The great importance of that feature of the Federa-
tion Act (sec. 91) whereby a general undefined and
unrestricted power to make laws for the ‘ peace,
order and good government of Canada ‘ in relation
to all matters not coming within the classes of sub-
jects assigned exclusively to the legislatures of the
provinces by section 92 is given to the Dominion
parliament, is obvious. Yet it may mislead to
speak, as is often done, of the residue of legislative
power under the Canadian Constitution belonging
to the Dominion parliament, because the provincial
legislatures under section 92 also have a residuary
power to make laws in relation to ‘ generally all
matters of a merely local or private nature in the

DOMINION RESIDUARY LEGISLATIVE POWER. 75

province ‘ (see infra p. 143 ). 87 The exercise of legis-
lative power by the Dominion parliament in regard
to all matters not enumerated in section 91 ought,
therefore, to be strictly confined to such matters as
are unquestionably of Canadian interest and im-
portance. It derives no jurisdiction from section 91,
when legislating on any subject not included within
the classes of subjects enumerated in that section,
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. When so legislating
it has no authority to trench or encroach upon any
class of subjects which is exclusively assigned to
provincial legislatures by section 92. It cannot
legislate in relation to matters which in each pro-
vince are substantially of local or private interest
upon the assumption that these matters also concern
the peace, order, and good government of the
Dominion. 68 There is only one case, outside the
heads enumerated in section 91, in which the
Dominion parliament can legislate effectively as
regards a province, and that is where the subject
matter lies outside all of the subject matters
enumeratively entrusted to the province under sec-
tion 92. 69 But it must be remembered that some
matters in their origin local or provincial may
attain such dimensions as to affect the body politic
of the Dominion, and justify the Canadian parlia-
ment in passing laws for their regulation or aboli-
tion in the interests of the Dominion; though this
will not prevent provincial legislatures still dealing
with the matter in its local or provincial aspect ; but
in case of conflict Dominion legislation will prevail
(infra, pp. 84-5). Great caution must be observed
in distinguishing between that which is local and
provincial, and, therefore, within the jurisdiction of
the provincial legislatures, and that which has

76 CANADIAN CONSTITUTIONAL LAW.

ceased to be merely local or provincial, and has be-
come a matter of national concern, in such sense as
to bring it within the jurisdiction of the parliament
of Canada. 70 It must also be borne in mind that to
say that the Dominion parliament when legislating
under its residuary power may not trench or en-
croach upon provincial subjects of legislative power,
is not to say that when so legislating it may not
incidentally affect such subjects. Few, if any, laws
could be made by Parliament for the peace, order,
and good government of Canada, which did not in
some incidental way affect property and civil
rights; and it could not have been intended to
exclude the Parliament from the exercise of this
general power whenever such incidental interference
may result from it. 71 Perhaps the matter cannot
be illustrated better than it was by Mr Upjohn on
the argument before the Privy Council in the Insur-
ance Companies case, 12 who gave as an example
legislation in the form of a Sanitary Act in the case
of an epidemic of disease, and said : i ‘ Then the
fact that a person in a province is affected either
in his property, if he is the owner of infected pro-
perty, or in his person if he himself is infected and
subject to the disease, does not show that the
Dominion parliament has interfered with the ex-
clusive jurisdiction of the provincial parliament
over ‘ property and civil rights. ‘ ‘ ‘

Under this residuary power the Dominion
Parliament can primd facie pass any kind of
laws provided it does not trench or encroach
upon the subject-matters placed under the ex-
clusive powers of the provincial legislatures by
section 92, which, however, it would do if it
legislated upon a matter of a merely local or pri-
vate nature in the provinces. The legislation, as

DOMINION RESIDUARY LEGISLATIVE POWER. 77

we have seen, muist be confined to such matters
as are unquestionably of Canadian interest and im-
portance. As Lord Haldane expressed it on the
argument in the Insurance Companies case “it
must be something done pr the Dominion in the
interests of the Dominion. ”

In the Riel case, their lordships say that the
words in which this residuary power is given in
section 91, are apt to authorize the utmost dis-
cretion of enactment for the attainment of the
objects pointed to quite irrespective of the English
common law or legislation. In Russell v. The Queen, 7 **
they held that they fully authorised the Canada
Temperance Act, which abolished all retail trans-
actions between traders in liquor and their cus-
tomers within every provincial area in which its
enactments had been adopted by the majority of the
local electors as in the Act provided. Would they
authorise the Dominion parliament even changing
the federal Constitution of Canada, without, of
course, affecting the Constitutions of the provinces?
On one of the arguments before the Judicial Com-
mittee Lord Davey suggested that they might even
do that. The balance of opinion seems, at present,
to be against that view. 75 There seems a certain
special significance in the word ‘ order/ in the
phrase i peace, order, and good government of
Canada/ in section 91. In the previous Canadian
Constitutional Acts the phrase used in respect of
law-making powers had been l peace, welfare, and
good government. ‘ The substitution of ‘ ‘ order ‘ ‘ for
“welfare” appears clearly to place in the hands of
the federal power of the Dominion the right and
responsibility of maintaining public order through-
out the whole country.

J. The distribution of legislative poiver be-
tween fhe Dominion and the provinces is exliaus-

78 CANADIAN CONSTITUTIONAL LAW.

tive. It is clear from the sections of the Federation
Act relating to the distribution of legislative power
to which we have been referring, that they exhaust
the whole range of legislative power, so far as the
internal affairs of Canada are concerned, and that
whatever is not thereby given to the provincial
legislatures rests with the Dominion parliament.
1 1 The powers distributed between the Dominion on
the one hand, and the provinces on the other hand,
cover the whole area of self-government within the
whole area of Canada. ” 76 It has been well said by
a British Columbia judge that in these sections of
the Federation Act we have that distribution of
legislative power which “may one day, though in
the perhaps distant future, expand into national
life.” 77 We have here two important points of
contrast between the Constitution of Canada and
that of the United States. Under the latter there
is a residuum of powers neither granted to the
Union nor continued to the States, but reserved to
the people, who, however, can put them in force
only by the difficult process of amending the Con-
stitution. The scheme of the Canadian Federation
Act was to have no such reserved powers ; but that
there should be in Canada the same kind of supreme
legislative power as there is in the British parlia-
ment, so far as consistent with the federation of
the provinces, and the position of Canada as a
Dominion within the Empire, in accordance with the
promise in the preamble of the Act, that the pro-
vinces were to be federally united ‘ with a Consti-
tution similar in principle to that of the United
Kingdom.’ Again, under the Canadian Constitution
all powers of legislation not expressly assigned to
the provincial legislatures, are vested in the Do-
minion parliament (see supra, pp. 74-7), whereas in
the United States, as expressed in the 10th amend-

DOMINION AND PROVINCIAL POWERS. 79

ment : * 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.’ The intention of the framers
of the Canadian Constitution was that ” the general
legislature should be stronger, far stronger than
the federal legislature of the United States in
relation to the States Governments. ” 78 In Canada,
then, 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 parliament ;
while on the other hand, if the subject matter of an
Act, other than agriculture and immigration (see
sec. 95 of Federation Act, .and infra, p. 149) is
within the jurisdiction of the Dominion parliament,
it is not (in its entirety) within the jurisdiction of
the provincial legislatures, whether acting severally
or in concert with each other, although some of the
provisions of such Act, ancillary to the main subject
of legislation, may, as we shall see, be within such
provincial jurisdiction, 79

K. Extra-territorial legislation is, generally
speaking, invalid. It is no doubt true, as a general
statement, that the Dominion parliament cannot
legislate except for Dominion territory, nor a pro-
vincial legislature except for provincial territory. 80
But this, of course, does not affect the power of the
Imperial parliament to give the legislatures of self-
governing Dominions within the Empire, the power
to pass statutes, which shall operate outside their
borders, though within the Empire itself. 81 More-
over, bearing in mind the plenary character of the
powers of Canadian legislatures, see supra, pp. 66-7,
and the expressed intention to confer upon the
Dominion a Constitution similar in principle to that

80 CANADIAN CONSTITUTIONAL LAW.

of the United Kingdom, it may well, be that they
have the same power to bind their own subjects
everywhere as the Imperial parliament has to bind
British subjects everywhere. For the expression
” subject of a colony ” has high judicial authority,
and perhaps, may be taken to mean British subjects
domiciled in the colony. 82 It is, furthermore,
still a moot question whether colonial statutes,
purporting to have an extra-territorial operation,
are, nevertheless, not valid and binding within the
territory and upon the Courts of the lawmaker,
unless repugnant to some Act of the Imperial parlia-
ment; but it is quite a different question whether
foreign courts will recognise them, and judgments
obtained in legal proceedings initiated under them. 83

SEC. VIII. CONCURRENT LEGISLATIVE POWER. We
have seen that to effect some legislative ob-
jects, a concurrent exercise of their respective legis-
lative powers by the Dominion parliament and the
provincial legislatures, or by the provincial legisla-
tures inter se, may be necessary (supra, p. 79), but
this is quite a different thing to concurrent legislative
power existing in both federal and provincial legis-
latures. With the exception of agriculture and immi-
gration (see .sec. 95 of the Federation Act, and infra
p. 149), there is no subject-matter over which there
can (speaking strictly) be said to exist such concur-
rent powers of legislation. But this must not be
understood as meaning that, if a given Act is intra
vires of the Dominion Act, a precisely similar Act
could under no circumstances be intra vires of a
provincial legislature. For, as we shall see (infra,
p. 98) subjects, which in one aspect and for one
purpose fall within the provincial powers of section
92 of the Federation Act, may, in another aspect
and for another purpose, fall within sec. 91; and

CONCURRENT POWERS OF LEGISLATION. 81

when the Federal parliament is legislating upon one
of the subjects enumerated in sec. 91, there is no
restriction upon its passing an Act which shall
affect one part of the Dominion only ; consequently
it seems quite possible that a particular Act, re-
garded from one aspect, might be intra vires of a
provincial legislature, and yet, regarded from an-
other aspect, might be also intra vires of the
Dominion parliament. In other words what is
properly to be called the subject-matter of an Act
may depend upon what is the true aspect of the
Act. 84 At any rate it certainly must not be sup-
posed that the Federal parliament and the pro-
vincial legislatures can, for no purpose whatever, or
under no circumstances whatever, legislate in rela-
tion to the same matter. Thus the fact that the
former can declare a thing a crime, will not, it would
seem, exclude the powers of a province to deal with
the same thing in its civil aspect, and impose sanc-
tions for the observance of the law, as, e.g., in the
matter of providing against frauds in the supplying
of milk to cheese factories. 85 And where federal
legislation is under the residuary Dominion power,
and not under any of the enumerated Dominion
powers, it by no means follows that a provincial
legislature cannot make a local law of a similar
character, as is well illustrated by the various cases
upon temperance legislation (see notes 127, 356-7).
And certainly legislation by the latter is not neces-
sarily ultra vires because it may interfere with or
even render nugatory perfectly constitutional legis-
lation by the Dominion. As we shall see, in certain
cases, provincial legislation may by indirect means
render inoperative such federal legislation, and vice
versa (infra, pp. 96-7). And legislation by the Fed-
eral parliament on the enumerated Dominion sub-

C.C.L. 6

82 CANADIAN CONSTITUTIONAL LAW.

jects may comprise ancillary provisions touching
and trenching upon provincial law and jurisdiction,
and pro tanto placing it in abeyance (infra, p. 94).
Moreover, legislative power as to certain broad
general subjects of legislation (e.g., notably pro
perty and civil rights) is rested partly in the
Federal and partly in the provincial legislatures
(infra, pp. 134-7). Thus the most that can be said
with accuracy is that the powers of these legisla-
tures respectively to deal directly and in their en-
tirety, and as matter of separate and detached
legislation (as distinguished from legislative pro-
visions merely ancillary to the main subject of
legislation) with the various classes of subjects
expressly enumerated in sections 91 and 92 of the
Federation Act are, in each case, special and ex-
clusive.

SEC. IX. GENERAL PRINCIPLES OF CONSTRUCTION
OF THE SECTIONS OF THE FEDERATION ACT RESPECTING
THE DISTRIBUTION OF LEGISLATIVE POWER.

A. Federation Act to be construed as a whole.
It will be found that the subject-matters of legis-
lation enumerated in sections 91 and 92 of the
Federation Act, and confided to the Dominion par-
liament and provincial legislatures in certain cases
” overlap, ” or, as it has also been called, ” interlace
with” each other. In such cases the principle
applied is that the British North America Act, 1867,
has to be construed as a whole, and when some
specific matter is mentioned as within the exclusive
power of the Dominion parliament or provincial
legislature, as the case may be, which, but for that
reference, would fall within the more general des-
cription of a subject-matter expressed to be con-
fided to the other, the statute must be read as ex-
cepting it from that general description. Thus it

OVERLAPPING POWERS OF LEGISLATION. 83

comes about that legislative power may reside in
the provincial legislatures over certain matters,
notwithstanding that these matters fall within the
general description of some one of the classes of
subjects enumerated in sec. 91, and there confided
to the exclusive jurisdiction of the Federal parlia-
ment, and vice versa. 8 * Moreover, in construing a
particular class of subject enumerated in section 91,
or section 92, it may be necessary to consider the
other subjects enumerated in the same section, al-
though confided to the same legislature. In other
words, if the two sections are taken separately, in
some instances, the subjects enumerated in the same
section overlap each other. Thus the expression
‘ civil rights in the province ‘ ” is a very wide one,
extending if interpreted literally, to much of the
field of the other heads of section 92, and also to
much of the field of section 91. But the expression
cannot be so interpreted, and it must be regarded
as excluding cases expressly dealt with elsewhere
in the two sections, notwithstanding the generality
of the words. ” 87

B. Overlapping legislation. As, then, the
classes of subjects enumerated in sections 91 and 92
of the Federation Act, in many cases, ” overlap, ”
so may Dominion and provincial legislation upon
certain matters included in them. In such case
neither legislation will be ultra vires if the field is
clear ; but if the field is not clear, and in such domain
the two legislations meet, then, the Dominion legis-
lation must prevail. Thus, for example, in the case
of the law of master and servant, the servants may
be workmen employed on a Dominion railway, and
the Dominion may deal with the subject so far as
they are concerned as ancillary to its railway legis-
lation, in a different way to that in which provincial

84 CANADIAN CONSTITUTIONAL EAW.

legislatures deal with it as concerns workmen gener-
ally. 88

C. Rules for testing validity of Acts in
Canada. 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 sec. 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. In like manner 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 ex-
clusively 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 a provincial legislature primd facie falls
within 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
fall within one of the enumerated classes of subjects
in section 91, and whether the power of the pro-
vincial legislature is, or is not, thereby overborne.
For, notivifhstanding any tiling in the Federation
Act, the exclusive authority of the parliament of
Canada extends to all matters coming within the
classes of subjects enumerated in section 91. 89

SEC. X. PREDOMINANCE or DOMINION LEGISLA-
TION. Where in respect to matters with which pro-

PREDOMINANCE OF DOMINION POWERS. 85

vincial legislatures have power to deal, provincial
legislation directly conflicts with the enactments of
the Dominion parliament, whether the latter im-
mediately relate to the enumerated classes of sub-
jects in sec. 91 of the British North America Act,
or are only ancillary to legislation on such 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 ex-
clusively to the provincial legislatures, nor within
the enumerated classes of section 91, the provincial
legislation must yield to that of the Dominion par-
liament. For before the laws enacted by the federal
authority within the scope of its powers, the pro-
vincial lines disappear. As to these laws we have a
quasi-legislative union. They are the local laws
of the whole Dominion, and of each and every pro-
vince thereof. 90 Nor does it make any difference
whether the provincial enactments be prior in date
to the conflicting Dominion enactments, or subse-
quent. 91 But, of course, provincial legislation which
is merely supplemental to Dominion legislation may
be perfectly good, at any rate when the latter is
not within one of the enumerated Dominion sub-
jects. 92 And the Privy Council have certainly not
received with favour the contention which has been
raised in certain cases, that provincial powers of
legislation are restricted or placed in abeyance by
the very inaction of the Dominion parliament, or
by reason of the fact that the latter has legislated
in pari materia, though conditionally only upon the
exercise of local option, which latter has not been
exercised in favour of the operation of the Act. 98

SEC. XI. EXCLUSIVENESS OF DOMINION ENUMER-
ATED POWERS. As is expressly stated in the Federa-
tion Act, notwithstanding anything in that Act, the

86 CANADIAN CONSTITUTIONAL LAW.

exclusive legislative authority of the Dominion
parliament extends to all matters coming within
the classes of subjects enumerated under the various
items of section 91. Whenever, therefore, a matter
is within one of these specified classes, legislation
in relation to it by a provincial legislature is in-
competent. Thus a provincial legislature cannot
enact a bankruptcy law or a copyright law for the
province, even although the Dominion parliament
may not have itself legislated upon those subjects.
Nior can a provincial legislature enact fishery regula-
tions and restrictions for the province. That is not
saying that provincial legislation is necessarily ultra
vires because it may have some relation to fisheries.
It is only that subject-matter which is within the
proper meaning and interpretation of one of the
enumerated classes of section 91 that is for the ex-
clusive legislative jurisdiction of the Dominion par-
liament; and we must not take too narrow and
literal a view of the words by which these classes
are described. The important thing to notice is that
under the Federation Act, legislative power is dis-
tributed by subjects and not by area, and this will
be further illustrated by what we shall have to say
as to locally restricted Dominion laws (infra
pp. 88-90). 94

SEC. XII. GENERAL CHARACTER or THE POWERS
OF THE DOMINION PARLIAMENT. 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
subjects of a local or private nature in the pro-
vince. 95 All the great questions which affect the
general interests of the Confederacy as a whole,
are confided to the Federal parliament, while the

DOMINION AND PROVINCIAL POWERS. 87

local interests and local laws of each section are
preserved intact, and entrusted to the care of the
provincial legislatures. The Dominion powers
relate to matters necessarily and naturally proper
for federal administration. For example, the Domin-
ion power to make laws in relation to the regulation
of trade and commerce, like that relating to bills
of exchange, or interest, or weights and measures,
or legal tender, or bankruptcy and insolvency, was
a necessary incident to the Union to secure a homo-
geneous whole. 96

SEC. XIII. THE KELATION BETWEEN THE DO-
MINION ENUMERATED POWERS AND THE PROVINCIAL
POWERS. It was apparently contemplated by the
framers of the Federation Act that the due exercise
of the enumerated powers conferred upon the
Dominion parliament by section 91 might occasion-
ally and incidentally involve legislation upon matters
which are primd facie committed exclusively to
the provincial legislatures by section 92. In order to
provide against that contingency the concluding
part of section 91 enacts that ‘ 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 classes of subjects by the Act as-
signed exclusively to the legislatures of the pro-
vinces.’ This language was meant to include, and
correctly describes, all the matters enumerated in
the sixteen heads of section 92 which comprise the
provincial legislative power, as being, from a pro*
vincial point of view, of a local or private nature.
But the exception thus expressed was not meant to
derogate from the legislative authority given to
provincial legislatures by those sixteen sub-sections

88 CANADIAN CONSTITUTIONAL LAW.

save 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 enumerated heads of section 91. It
has no application to matters which are not speci-
fied among the enumerated subjects of legislation,
and in legislating with regard to them, the Dominion
parliament has no authority to encroach upon any
class of subjects which is exclusively assigned to
the provincial legislatures by section 92. 97 It has,
however, the further significance although per-
haps unnecessary in view of the fact that the Do-
minion enumerated powers had been previously
expressed to be exclusive l notwithstanding any-
thing in the Act ‘ that provincial legislatures can-
not legislate on any of those enumerated Dominion
subjects, under the pretence or contention that the
legislation is of a provincial or local character, as
for example, incorporate a bank for the province.

SEC. XIV. LOCALLY KESTKICTED DOMINION LAWS.
Although in the course of the argument before the
Judicial Committee of the Privy Council in
Canadian Pacific R. W. Co. v. Bonsecours, 98 Lord
Watson apparently suggested that the Dominion
parliament has under section 91 no power given it to
legislate in relation even to the enumerated classes
of subjects in that section (as to its residuary power
see supra, pp. 74-7), unless it can be predicated
of such legislation that it is legislation for the peace,
order, and good government of Canada it would
seem that, when legislating upon one of these enu-
merated subjects, 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 desirable- in one

LOCALLY RESTRICTED DOMINION LAWS. 89

and not in the other.” And although in L’TJnion
St. Jacques de Montreal v. Belisle, 3 – Lord Sel-
borne, delivering the judgment, says: ” Their
lordships observe that the scheme of enumer-
ation in that section is to mention various
categories of general subjects which may be dealt
with by legislation ‘ ‘ ; and that l i there is no indi-
cation in any instance of anything . being contem-
plated except what may be properly described as
general legislation ‘ ‘ ; and although in Gushing v.
Dupuy 100 the Privy Council say that ” It is a neces-
sary implication, that the Imperial statute in assign-
ing 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 those subjects might
affect them ” special or private bill legislation by
the Federal parliament is of yearly occurrence and
has never been seriously questioned. 101 And it is
well to point out that section 91 says that the gift
of exclusive legislative authority over the enumer-
ated classes of subjects, is to be read ‘ not so as to
restrict the generality of the foregoing terms of this
section. ‘ It is not said that they are not to be read
so as to ‘ enlarge ‘ the apparent restriction in the
foregoing terms of the section of Dominion legis-
lative power to legislation for the peace, order and
good government of Canada.

As to whether the Dominion parliament has a
like power of enacting statutes to operate in certain
provinces, or a certain province only, when legis-
lating under its general residuary power to pass
laws for the peace, order and good government of
Canada upon non^provincial subjects, it must be
admitted that direct authority on the point is not

90 CANADIAN CONSTITUTIONAL LAW.

to be found in the reported decisions. It is sub-
mitted, however, that they certainly have the power,
for as we have seen, the distribution of legislative
power under the Act is exhaustive, and such legis-
lation, though confined to two or three provinces
only, might be called for in the general interests of
the Dominion : supra, pp. 77-9. 102 It may be, however,
contended that all matters not admitting or calling
for legislation applying to the Dominion as a whole,
and not within the enumerated Dominion subjects,
must be considered matters of ‘ a merely local and
private nature, ‘ in the provinces concerned, and left
to be dealt with by the legislatures of the provinces
concerned.

SEC. XV. DOMINION POWEK OVER ALL CANADIAN
SUBJECTS. The Dominion parliament can, in mat-
ters within its sphere, impose duties upon any
subjects of the Dominion, whether they be officials
of provincial Courts, other officials, or private citi-
zens. 103 But although the Dominion parliament can
impose jurisdiction on provincial Courts in
Dominion matters, it is not so clear that it can
divest the provincial Courts of concurrent jurisdic-
tion, although, of course, it can establish additional
Courts of its own for the better administration of
the laws of Canada, and then, perhaps, it can give
such Dominion Courts sole jurisdiction on Dominion
subjects. 104 It would appear that in matters within
their sphere, provincial legislatures can impose
duties upon Dominion officials in certain cases, for
the Supreme Court of British Columbia has held
that they can under No. 14 of sec. 92 of the Federa-
tion Act, which gives them exclusive power to make
laws in relation to ‘ the administration of justice in
the province, including the constitution, mainten-
ance, and organization of provincial Courts, both of

GENERAL CHARACTER OF PROVINCIAL POWERS. 91

civil and criminal jurisdiction, ‘ enact that a County
Court judge appointed for one district might, under
certain circumstances, act as judge of another dis-
trict, and that, until a County Court judge of
Kootenay had been appointed, the judge of the
County Court of Yale should act as such. 105

SEC. XVI. THE GENERAL CHARACTER or PROVIN-
CIAL LAW-MAKING POWERS.

A. None except the enumerated ones. The pro-
vincial legislatures have no powers to make laws
save upon the subject-matters enumerated in section
92 of the Federation Act, except the power given
them to make laws in relation to education by sec. 93
(see infra, pp. 143-9), and in relation to agriculture
in the province, and immigration into the province,
given them by sec. 95 (see infra, p. 149). They can-
not legislate beyond the areas of the prescribed
subject-matters. 106 But, it must, of course, be
always remembered that No. 16 of sec. 92 gives them
a general residuary power to make laws in relation
to ‘all matters of a merely local or private nature
in the province/ supra, p. 143. It is scarcely neces-
sary to add that, although uniformity of legisla-
tion on provincial subjects can, of course, be pro-
duced in different provinces by their respective
legislatures enacting similar laws, the sphere of
law-making power of each legislature remains iden-
tically the same as before. 107

B. Inherent powers of legislatures, apart from
law-making. Apart, however, from law-making,
provincial legislatures have by virtue of be-
ing legislative bodies at all, such powers and
privileges as are necessarily inherent in and inci-
dent to such bodies; and, having them, may regu-
late their exercise by statute or by standing rules,

92 CANADIAN CONSTITUTIONAL LAW.

if they see fit to do so ; as, e.g., the power to remove
any obstruction offered to the deliberations or
proper action of the legislative body during its
sittings ; some power of suspending members guilty
of obstructing, and disorderly conduct, but not ex-
tending to unconditional suspension for an indefi-
nite time, or for a ‘definite time depending only on
the irresponsible discretion of the Assembly itself;
and whatever, in a reasonable sense, is necessary
to the existence of such a body, and the proper
exercise of the functions which it is intended to
execute. 108 Such powers, however, are protective
and self -defensive only, not punitive, and cannot be
measured by powers of the parliament of Great
Britain under the ancient lex et consuetudo parlia-
menti, which is a law peculiar to and inherent in
the two Houses of Parliament of the United King-
dom. 109 However, the practical importance of this
subject does not appear to be very great, seeing
that No. 1 of sec. 92 of the Federation Act whereby
provincial legislatures may amend the Constitution
of the province, except as regards the office of
Lieutenant-Governor, confers the power l to pass
Acts for defining the powers and privileges of the
provincial legislature. ‘ 110 As to the power of the
Dominion parliament in respect to these matters,
sec. 18 of the Federation Act as amended by Imp. 38-
39 Viet. c. 38, expressly provides that : i 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 any
Act of the parliament of Canada, defining such
privileges, immunities and powers, shall not confer
any privileges, immunities or powers, exceeding
those at the passing of such Act, held, enjoyed, and

STATUTES OF OLD PROVINCE OF CANADA. 93

exercised by the Commons House of Parliament
of the United Kingdom of Great Britain and Ire-
land and by the members thereof. ‘ 1J1

C. Provincial powers co-equal and co-ordinate.
Co-equal and co-ordinate legislative powers in every
particular were conferred by the Federation Act
on the provinces. The Constitutions of all provinces
within the Dominion are on the same level. 112

SEC. XVII. POWER TO REPEAL OK ALTER STAT-
UTES or THE OLD PROVINCE OF CANADA. Powers are
conferred by sec. 129 of the Federation Act upon
the provincial legislatures of Ontario and Quebec,
to repeal and alter the statutes of the old parliament
of the province of Canada, which powers 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 measured by its capacity to
reconstruct what it has destroyed. And in no case
can an Act of the old province of Canada applic-
able to the two provinces of Ontario and Quebec,
be validly repealed by one of them, unless the nature
of the Act is such that it still remains in full vigour
in the other. 113

SEC. XVIII. DOMINION INTRUSION ON PROVINCIAL
AREA. ANCILLARY LEGISLATION.

A. Indirect interference. An Act of the Domin-
ion parliament is not affected in respect to its valid-
ity by the fact that it interferes prejudicially 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 jurisdiction
of the provincial legislature. Thus Dominion legis-

94 CANADIAN CONSTITUTIONAL LAW.

lation imposing conditions of a prohibitory character
on the liquor traffic throughout the Dominion may
be none the less valid because it destroys a profit-
able source of income to the provinces derived from
licenses granted to taverns for the sale of intoxicat-
ing liquors. 114

B. Direct intrusion. Powers by implication. In
Russell v. The Queen,* the legislation was under the
general residuary power of the Dominion parliament,
in which case, although that parliament may indi-
rectly interfere with the operation of provincial Acts,
it cannot directly encroach upon the provincial area :
see supra, pp. 75-7. But when it is legislating upon
the enumerated Dominion subject-matters of sec. 91
of the Federation Act, it is held that the Imperial
parliament, by necessary implication, intended to
confer on it legislative power to interfere with, deal
with, and encroach upon, matters otherwise assigned
to the provincial legislatures under sec. 92, so far as
a general law relating to those subjects 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 a law from being defeated. The
Privy Council has established and illustrated this
in many decisions. 115

C. Rule of necessity as applied to such Domin-
ion interference. When it is sought to find some
rule regulating the power of the Federal parliament
thus incidentally to deal with matters which are
under the jurisdiction of the provinces, it does not
appear that any has been, or it may be, can be
formulated beyond this, that such power does not
extend any further than is reasonable to enable it
to legislate on the general subjects committed to its
jurisdiction by the Federation Act. 116 It would

DOMINION INTRUSION ON PROVINCIAL AREA. 95

appear, in words of Anglin, J., to be sufficient if the
intrusive legislation is ” eminently germane, if not
absolutely necessary/’ to the main legislation. 117
At the same time in the very case last cited, on ap-
peal to the Privy Council, their lordships say that
“it must be shown that it is necessarily incidental to
the exercise ” of the Dominion power, that it should
trespass in the way it has done on the provincial
area ; and they use this expression 1 1 necessarily in-
cidental ” not less than three times. 118 And they
used the same expression ” necessarily incidental,”
in the same connection in their previous judgment
in the Liquor Prohibition Appeal, 1895. 1 Still
their judgment in City of Toronto v. Cana-
dian Pacific Railway Co., 116 seems to show that
the words “necessarily incidental” must not be
read so strictly as to mean that without the pro-
vision which encroaches on the provincial area ” it
would be impossible to carry into effect the intention
of the (Dominion) legislature, or that probably no
other provision would be adequate. On the contrary
it seems 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. ‘ ‘ 12

SEC. XIX. PROVINCIAL INTRUSION ON DOMINION
AREA. There seems to be no authority to support
the view that provincial legislatures can at all legis-
late upon any of the Dominion subject-matters
enumerated in sec. 91 of the Federation Act by way
of provisions ancillary to their own Acts. What
judicial authority there is does not seem to carry
the matter further than this, that whatever powers
the provincial legislatures have as included within
the enumerated subject-matters of sec. 92, when

96 CANADIAN CONSTITUTIONAL LAW.

properly understood, those powers they may exer-
cise, although in so doing they may incidentally
touch or affect something which might otherwise be
held to come within the exclusive jurisdiction of the
Dominion parliament under some subject-matter
enumerated in sec. 91. 121 The Dominion residuary
area (see supra, pp. 74-7) is a different matter. The
provincial legislatures may well have power inci-
dentally to invade this area, without having any
power to invade the area of the enumerated Do-
minion subjects.

SEC. XX. PROVINCIAL, INDEPENDENCE AND Au-

TONOMY. 122

A. Incidental interference with Dominion legis-
lation does not invalidate provincial Acts. Although
when provincial legislation and Dominion legis-
lation directly conflict with each other, the latter
must prevail (supra, pp. 84-5), and although the con-
struction of the enumerated powers conferred upon
the Dominion parliament may be said to over-ride
the construction of sec. 92 of the Federation Act
conferring the provincial powers, yet the Canadian
provinces have not, as the several States of the
Union have, a general power of legislation subject
only to certain specified powers conferred by them-
selves upon the Federal body, but they as well as
the Dominion parliament, have received from one
and the same source, namely, the Imperial parlia-
ment, certain express powers of legislation upon
specified subjects, which are theirs exclusively; and,
therefore, their power to legislate upon these sub-
jects cannot be denied, as is the case with the
American States, merely because in doing so they
may interfere with, or restrict the range of, Federal
legislation. 123 But, on the other hand, the Dominion
Government possesses what the United States

PROVINCIAL AUTONOMY. 97

Government does not possess, namely, a veto power
over all provincial legislation (see supra pp. 62-6).

B. Injustice does not invalidate Acts. In so
far as they possess legislative jurisdiction, the
discretion committed to the legislatures of the
Dominion or of the provinces is unfettered. It is
the proper function of a Court of law to determine
what are the limits of the jurisdiction com-
mitted to them; but when that point has been
settled Courts of law have no right whatever
to enquire whether their jurisdiction has been
exercised wisely or not. The supreme legislative
power in relation to any subject-matter is always
capable of abuse. If it is abused, the only remedy
is an appeal to those by whom the legislature is
elected. 124

C. Possibility of Dominion legislation super-
seding them does not invalidate Provincial Acts.
A provincial legislature is not incapacitated from
enacting a law otherwise within its proper com-
petency merely because the Dominion parliament
might, under sec. 91 of the Federation Act, if it saw
fit so to do, pass a general law which would embrace
within its scope the subject matter of the provincial
Act. Thus the fact that under No. 7 of section 91,
the Dominion parliament legislating in respect to
military and naval defence, might take any of the
land of a province for the purpose of such defence,
but has not actually done so, does not deprive the
provincial legislature of legislative jurisdiction over
the lands of the province in the meanwhile. 125 On
the other hand the abstinence of the Dominion
parliament from legislating to the full limit of its
powers cannot have the effect of transferring to any

C C.L. 7

98 CANADIAN CONSTITUTIONAL LAW.

provincial legislature any part of the legislative
power assigned to the Dominion by sec. 91. 126

SEC. XXI. ASPECTS OF LEGISLATION. Subjects
which in one aspect and for one purpose fall within
sec. 92 of the Federation Act and so are proper for
provincial legislation may, in another aspect and
for another purpose, fall within sec. 91, and so be
proper for Dominion legislation. And as the cases
which illustrate this principle show, by ” aspect n
here must be understood the aspect or point of view
of the legislator in legislating, the object, purpose,
and scope of the legislation. The word is used sub-
jectively of the legislator, rather than objectively
of the matter legislated upon. 126a

SEC. XXII. SOME OTHER CONSIDERATIONS RELE-
VANT TO THE QUESTION OF THE CONSTITUTIONALITY OF
STATUTES.

A. The object and scope of the legislation. It
follows as a necessary corollary of the principle just
discussed regarding different aspects of statutes,
that ” the true nature and character of the legisla-
tion in the particular instance under discussion-
its grounds and design, 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. ‘ ‘ 127 But, of course, as has
already been stated, supra, p. 69, when once it is
clear to what class any particular Act belongs, and,
therefore, whether it is within the jurisdiction of
parliament, or within that of the provincial legis-
lature, the motive which induced Parliament, or a
local legislature, to exercise its power in passing it
cannot affect its validity.

SOME GENERAL PRINCIPLES. 99

B. Presumption in favour of the validity of
Acts. It is not to ‘be presumed that the Dominion
parliament has exceeded its powers, unless upon
grounds really of a serious character. 128 And as
regards provincial Acts, where the validity of such
an Act is in question, and it clearly appears to fall
within one of the classes of subjects enumerated in
sec. 92 of the Federation Act, the onus is on the
persons attacking its validity to show that it also
comes within one or more of the classes of subjects
specially enumerated in sec 91. 129 But it is not so
clear, although some Canadian Courts have so laid
it down, 130 that there is any general presumption in
favour of provincial Acts, inasmuch as the pro-
vinces have only specially enumerated powers of
legislation, and what is not given to them is given
to the Dominion parliament. 181

C. Declarations of the Dominion parliament
upon the interpretation of the British North
America Act are not, of course, conclusive, but when
the proper construction of the language used in that
Act to define the distribution of legislative power
is doubtful, the interpretation put upon it by the
Dominion parliament, in its actual legislation, may
properly be considered ; and, no doubt, this applies
a fortiori, when the provincial legislatures have, by
their legislation, shown agreement in the views of
the Dominion parliament as to their respective
powers. 132 So, too, views acted upon by the great
public departments, as expressed in Imperial des-
patches, or otherwise, carry weight in the absence
of judicial decision. 133

D. Continued exercise of a legislative power
does not make it constitutional. If the Dominion
parliament does not possess a legislative power,

100 CANADIAN CONSTITUTIONAL LAW.

neither the exercise, nor the continued exercise,
of a power belonging to it can confer it, or make
its legislation binding. And the same is, of course,
true of legislation by provincial legislatures. 134

SEC. XXIII. STATUTES UNCONSTITUTIONAL IN
PAKT ONLY. NULLITY or UNCONSTITUTIONAL STAT-
UTES. Although part of an Act, either of the
Dominion parliament or of a provincial 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 exe-
cution. 135 And, in the same way, an Act may some-
times be intra vires in some of its applications, while
ultra vires in others. 136 Nor must it be supposed
that Acts incorporating companies must necessarily
be invalid altogether because ultra vires in respect
to part of the powers conferred upon the company. 137
It is scarcely necessary to say that 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 tcr or affect those persons. 138

SEC. XXIV. LEGISLATIVE POWER AND PROPRIETARY
EIGHTS. The fact that legislative jurisdiction in
respect of a particular subject-matter is conferred
on the Dominion parliament or provincial legisla-
tures affords no evidence or presumption that any
proprietary rights with respect to it were trans-
ferred by the Act to the Dominion or provinces

LEGISLATIVE POWER AND PROPRIETARY RIGHT. 101

respectively. 139 Accordingly the Dominion parlia-
ment and provincial legislatures have no power by
virtue of their legislative jurisdictions under sections
91 and 92 respectively to confer upon others proprie-
tary rights where they possess none themselves,
unless under such of the enumerated items in those
sections as necessarily imply the power so to deal
with property, although not vested in the Crown as
represented by the Dominion or provincial Govern-
ments. 140 And although the Dominion parliament
and provincial legislatures have unquestionably the
right to legislate as to, and to dispose of any pro-
perty belonging to the Dominion or the provinces,
respectively, they have been thought to have only
the right to dispose of the interest they have in such
property. 141

SEC. XXV. SPECIFIC LEGISLATIVE POWERS DO-
MINION AND PROVINCIAL. Having now set forth the
sections of the British North America Act, 1867,
which construct the framework of the Constitution
of the Dominion of Canada, and having discussed
the place and functions therein of the Crown, in
which is vested the executive power, and having
stated and explained such general propositions and
principles bearing upon its general scheme and
operation as the discussion of it in the Courts and
elsewhere, since Confederation, have discovered, we
have next to explain the various specific and enu-
merated legislative powers in sections 91 and 92 so
far as the authorities have thrown light upon them,
and then to treat of the property provisions of the
Act.

A. Dominion powers.

1. l T~he public debt and property.’ The sub-
ject of Dominion and provincial property under the
Federation Act is treated infra, pp. 151-3.

102 CANADIAN CONSTITUTIONAL LAW.

2. ‘The regulation of Trade and Commerce/
It is absolutely necessary that the literal meaning
of these words should be restricted in order to afford
scope for powers which are given exclusively to the
provincial legislatures. They must, like the ex-
pression l property and civil rights in the province, ‘
in sec. 92 (see infra, pp. 134-7) receive a limited in-
terpretation. 142 They “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,^ch. 11), Article 6 of which enacted that all
parts of the United Kingdom, from and after the
Union, should be under the same ‘ prohibitions, re-
strictions, and regulations of. trade. ‘ Parliament
has at various times since the Union passed laws
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. ‘ m3 In the same way there have been very
numerous decisions in Canadian Courts holding
provincial legislation of a local, sanitary, or police
character, valid notwithstanding any effect it might
have on particular trades, 144 while, on the other
hand, the Dominion authority to legislate for the
regulation of trade and commerce does not extend
to the regulation by a licensing system of a particu-
lar trade in which Canadians would otherwise be
free to engage in the provinces. 145 Nor does the im-
portance of the particular trade or business affect
the matter. Many highly important and extensive
forms of business in Canada are freely transacted
under provincial authority. When the British North
America Act has taken such forms of business out
of provincial jurisdiction, as in the case of banking,
it has done so by express words. 146 It may be well
to note that the words of the Act are ‘ regulation
of trade and commerce,’ not l regulation of trades

REGULATION OF TRADE AND COMMERCE. 103

and commerce/ It may be that regulation of the
customs tariff was principally in the mind of the
legislature. 147 Eegulation of trade and commerce
includes ‘ l 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 regulations of trade
affecting the whole Dominion, but it does not com-
prehend the. power to regulate by legislation the
contracts of a particular business or trade, such as
the business of insurance, in a single province. ” 148
Under this power over i the regulation of trade and
commerce ‘ in combination with that (No. 25) over
‘ naturalization and aliens/ the Dominion parlia-
ment has jurisdiction to require a foreign company
to take out a license from the Dominion minister,
even in a case where the company desires to carry
on its business only within the limits of a single
province. 149 So, too, this power ” enables the par-
liament of Canada to prescribe to what extent the
powers of companies the objects of which extend
to the entire Dominion should be exerciseable, and
what limitations should be placed on such powers. ”
But this does not mean in the case of companies
incorporated by the Dominion not under one of its
enumerated powers (see infra, pp. 122-4), but
under its residuary power, that because the
status given to it by the Dominion parliament
enables it to trade in a province, and thereby con-
fers on it civil rights to some extent, ” the power
to regulate trade and commerce can be exercised
in such a way as to trench in the case of such com-
panies on the exclusive jurisdiction of the provin-
cial legislature over civil rights in general ” (see
infra, pp. 134-7) ; but, on the other hand, “the pro-
vince cannot legislate so as to deprive a Dominion
company of its status and powers . . . The

104: CANADIAN CONSTITUTIONAL LAW.

status and powers of a Dominion company as such
cannot be destroyed by provincial legislation,” as,
for example, by compelling the Dominion company
to obtain a provincial license or to be registered in
the province as a condition of exercising its powers
and of suing in the Courts. A province cannot
* i interfere with the status and capacity of a
Dominion company in so far as that status and
capacity carries with it powers conferred by the
parliament of Canada to carry on business in every
part of the Dominion. ‘ ‘ 15 So much, then, as to what
we call the positive aspects of this Dominion power
so far as the same have been up to the present time
defined by the authorities. We may add, however,
that it is no doubt in reliance on this power that the
Dominion has passed such legislation as the Con-
ciliation and Labour Act, R. S. C. 1906, c. 96. 151 And
now as to the negative aspects of this Dominion
power, it does not prevent provincial taxation of the
persons or companies regulated. 152 Nor does it pre-
vent a provincial legislature requiring every brewer,
distiller, or other persons, 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. 153 Nor does
it prevent a provincial liquor Act including divers
prohibitions and restrictions affecting the importa-
tion, exportation, manufacture, keeping, sale, pur-
chase and use of intoxicating liquors, which may
interfere with licensed trades in the province, and
indirectly with business operations beyond the
limits of the province. 154 Nor does it prevent a
provincial Act validating a municipal by-law grant-
ing certain persons an exclusive right of establish-
ing a system of electric lighting for a certain term
of years in the city, notwithstanding that electric

THE RAISING OF MONEY BY TAXATION. 105

light is a commercial commodity. 155 Nor does it pre-
vent a provincial Act making police or municipal
regulations of a merely local character for the good
government of taverns licensed for the sale of liquor
by retail. 156 And, as we have already stated, there
are very numerous decisions in Canadian Courts
holding provincial legislation of a local, sanitary
or police character valid, notwithstanding any effect
it may have on particular trades : supra, p. 102.

3. ‘The raising of money by any mode or
system of taxation.’ This Dominion power is
obviously not intended to over-ride the provincial
power under No. 2 of sec. 92, in respect to ‘ direct
taxation within the province, in order to the raising
of a revenue for provincial purposes/ 157 All other
power to impose direct taxation, however, is ex-
clusively in the Dominion under this subsection. On
the other hand, notwithstanding the exclusive pro-
vincial power under No. 9 of sec. 92 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,’ the
Dominion parliament also can tax by means of
licenses. 1571 Under this power the Dominion parlia-
ment can impose a customs duty upon a foreign-
built ship to be paid upon application by her in
Canada for registration as a British ship, there
being no repugnancy between this and any Imperial
enactment extending to Canada. 158 In conclusion we
may notice that, in entire accordance with the plen-
ary powers within their sphere of Canadian legis-
latures (supra, pp. 66-7), which is one of the points
in which, in the words of the preamble of the Feder-
ation Act, the Dominion has l a Constitution similar
in principle to that of the United Kingdom/ there
is no such necessity for uniformity and equality of

106 CANADIAN CONSTITUTIONAL tAW.

taxation as exists in the United States (Art. 1, sec. 3 ;
Art. 1, sec. 8).

4. ‘ The borrowing of money on the public
credit.’

5. ‘Postal Service.’

6. ‘ The Census and Statistics.’ 159

7. ‘ Militia, Military and Naval Service and De-
fence.’ It has been held that the Dominion parlia-
ment has no right tinder this power to impose in
the Militia Act civil obligations upon any provincial
municipality for the payment of the troops. 160 It
would be absurd to contend that under it, the
Dominion parliament has authority to confer the
provincial franchise upon the militia. 161

8. i The fixing of and providing for the salaries
and allowances of Civil and other officers of the Gov-
ernment of Canada. ‘ 162

9. ‘ Beacons, Buoys, Lighthouses, and Sable
Island.’

10. f Navigation and Shipping.’ This power
entitles the Dominion parliament to declare what
shall be deemed an interference with navigation. 163
Nevertheless it does not appear to include the right
to authorize the erection of booms for securing
lumber in the rivers of the province. Rather ‘ Navi-
gation and Shipping ‘ would seem to mean the right
to prescribe rules and regulations for vessels
navigating the waters of the Dominion. 164 It would
seem to relate to 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. 165 And although exclu-
sive legislative authority is thus given to the

‘NAVIGATION AND SHIPPING/ 107

Dominion with regard to shipping, there is, never-
theless, under item 10 of sec. 92 (infra, pp. 128-9) a
power relating to shipping of a certain class re-
served to the provincial legislatures, viz. : i Local
works and undertakings other than . . . lines
of steamships between the province and any British
or foreign country. ‘ Thus this Dominion power
does not prevent the valid incorporation of provin-
cial navigation companies, the operations of which
are limited to the province. 166 But such a provincial
corporation may find that, in order to the effectual
execution of its corporate purposes, it may have to
have recourse to the Dominion parliament or au-
thorities, as, e.g., to obtain leave to construct and
maintain a bridge across a harbour, or to construct
works upon a harbour bed, or in or over navigable
waters. 167 Again a provincial legislature may have
power to regulate, with a view of preventing the
spread of infectious diseases, the entry or depar-
ture of boats or vessels at the different ports in the
province, in relation to transport from one of such
ports to another, subject, of course, to any regula-
tion on the subject of quarantine by the federal
authority ; but it would, probably, not be competent
for it to legislate as to the arrival of vessels, vehicles,
passengers, or cargoes from places outside the pro-
vince. 168 Lastly, it was under this Dominion power
in conjunction with the power over the ‘ regulation
of trade and commerce ‘ (supra, pp. 102-4) and with
that under sec. 101 to establish additional Courts for
the better administration of the laws of Canada
(infra, pp. 149-151), that the Supreme Court af-
firmed the validity of the Dominion Act constituting
the Maritime Court of Ontario. 169

11. ‘ Quarantine and the establishment and
maintenance of Marine Hospitals.’ 17

108 CANADIAN CONSTITUTIONAL LAW.

12. ‘Sea Coast and Inland Fisheries.’ 171 This
Dominion power is confined to the enactment of
fishery regulations and restrictions, and does not
extend to direct interference with proprietary rights
in fisheries, as by authorizing the giving by lease,
license, or otherwise, the right of fishing in navigable
or non-navigable lakes, rivers, streams, and waters,
the beds of which had been granted to private pro-
prietors before Confederation, or not having been
so granted are assigned to the provinces under the
Federation Act. Nevertheless Dominion legislation
under it may affect proprietary rights, as, e.g., by
prescribing the times of the year during which fish-
ing is to be allowed, or the instruments which may
be employed for the purpose. The enactment of
such fishery regulations and restrictions is within
the competence of the Dominion exclusively, nor can
the provincial legislatures deal with the subject even
in the absence of Dominion legislation. Not that
provincial legislation is necessarily incompetent
merely because it may have some relation to
fisheries. For example, prescribing the mode in
which a private fishery is to be conveyed or other-
wise disposed of, or the rights of succession in
respect to it, or the terms and conditions upon which
the provincial fisheries may be granted, leased or
otherwise disposed of, would be within provincial
powers over ‘ property and civil rights in the pro-
vince/ (infra, pp. 134-7), or the management and
sale of public lands belonging to the province (infra,
p. 127 ). 172 And this decision of the Privy Council
must not be interpreted as meaning that the Domin-
ion parliament has not power to absolutely prohibit
foreign nations from fishing within the three-mile
limit of the coast of Canada; or that the federal
Government has no police jurisdiction. 173

DOMINION ENUMERATED POWERS. 109

13. l Ferries between a province and any Brit-
ish or foreign country, or between two provinces.’
Under this power the Dominion parliament has
authority to, or to authorize the Grovernor-General
in Council to, establish or create ferries between a
province and any British or foreign country, or
between two provinces. 174

14. { Currency and Coinage.’*

15. ‘ Banking, incorporation of Banks, and the
issue of paper money.’ “The obvious reason why
the incorporation of banks was assigned to the
Dominion and not left with the provinces was that
the whole subject of banking and its adjuncts was
being assigned to the Dominion, and if the provinces
were allowed to incorporate provincial banks with
the rights properly and necessarily belonging to a
bank, the whole subject of banking would have been
left in inextricable confusion. And so far from
having a national banking system to-day of which
we are justly proud, we would have a series of.
systems, some conservative and others more in ac-
cordance with what western ideas are popularly
supposed to advocate. ” 176 ‘Banking’ is an expres-
sion wide enough to include everything coming
within the legitimate business of a banker, and the
Dominion powers of legislation under this, as under
the other enumerated items of sec. 91 of the Feder-
ation Act, are exclusive, and necessarily imply the
right to affect the property and civil rights of indi-
viduals in the province so far as is necessary in
order to their exercise. Thus the Dominion parlia-
ment can legislate in respect to warehouse receipts
taken by a bank in the course of its business, though
it thereby modifies civil rights in the province, and
may conflict with provincial statutes relating to

110 CANADIAN CONSTITUTIONAL LAW.

warehouse receipts and other negotiable documents
which pass the property of goods without delivery. 177
Provincial legislatures have no right to license
private banks. At any rate the Dominion Govern-
ment has always objected to their so doing. 178
Neither can the provincial legislatures confer bank-
ing powers upon provincial corporations, as, for
example, upon trust companies. 179 But provincial
legislatures may impose direct taxes on banks doing
business in the province, 180 or make laws which will
control real estate owned by a bank in the province
for the purpose of its business, or establish the
procedure under which it may be seized and sold
upon an unsatisfied judgment against the bank, or
for non-payment of taxes. 181

16. ‘ Savings Banks/

17. l Weights and Measures.’ This power ap-
pears to relate merely to the fixing of standard
weights and measures. 182

18. ‘ Bills of Exchange and Promissory Notes/
The mere fact that provincial legislation may inci-
dentally touch such negotiable instruments does not
necessarily make it ultra vires. Thus the Dominion
power is not incompatible with the right of the
provincial legislature to confer authority on a pro-
vincial corporation to become a party to instruments
of this nature as a matter incidental to such corpora-
tion. 18 . 3

19. ‘ Interest. We must await a Privy Council
decision for a finally authoritative interpretation of
this Dominion power. 184 So far as the authorities
go at present it would seem to refer to preventing
individuals under certain circumstances from con-
tracting for more than a certain rate of interest,

DOMINION ENUMERATED POWERS. Ill

and fixing a certain rate when interest was payable
by law without a rate having been named, and to
regulations as to the rate of interest in mercantile
transactions, and other dealings and contracts be-
tween individuals, and not to taxation under muni-
cipal institutions and matters incident thereto. 185
Thus the Dominion Act (R. S. C. 1886, c. 127, s. 7),
regulating interest recoverable under mortgages of
real estate, was held intra vires under it. 186

20. ‘ Legal Tender.’

21. ‘ Bankruptcy and Insolvency.’ It would
seem that the only exclusive power which the
Dominion parliament possesses under this subsec-
tion in respect to such legislation as is usually re-
sorted to in order to secure a rateable distribution
of the assets of a person financially insolvent, is the
power of providing for a compulsory process
whereby this end may be attained, authorizing, in
other words, proceedings in invitum against the in-
solvent. But provided they base themselves upon
a voluntary assignment to a trustee for the general
benefit of his creditors previously executed by the
insolvent, provincial legislatures have full power,
under their jurisdiction over property and civil
rights in the province, and procedure in civil
matters in the province, to give to such an assign-
ment, once executed, precedence over judgments and
executions, and over such subsidiary processes as
garnishee orders, attachments, or interpleaders.
While, on the other hand, such latter provisions
being properly ancillary to bankruptcy and insol-
vency legislation, strictly so called, there is nothing
to prevent the Dominion parliament including them
in a law relating to bankruptcy and insolvency, in

112 CANADIAN CONSTITUTIONAL LAW.

which case, of course, the provisions of the
Dominion Act would place in abeyance those of the
provincial legislation (supra, p. 85 ). 188 As a fact
there has been no Dominion bankruptcy or in-
solvency Act since 1880, save as to corporations. 189
In assigning this power to the Dominion parliament,
the Imperial Act, by necessary implication, intended
to confer on it legislative power to interfere with
property, civil rights, and procedure within the pro-
vinces, so far as a general law relating to these sub-
jects might affect them. 190 And notwithstanding
the provincial power under No. 14 of sec. 92 (see
infrapp. 137-140) over the administration of justice,
including the constitution of Courts in the province,
there can be no doubt of the power of the Dominion
to institute an Insolvency Court, and regulate its
procedure. 191 Nor is there any doubt that the
Dominion parliament can impose new jurisdiction
in bankruptcy and insolvency upon provincial
Courts. 192 The circumstance that the Dominion par-
liament may not, in fact, have exercised its power
of legislating in relation to bankruptcy and insol-
vency, does not give provincial legislatures the right
to legislate thereon. 193 But this does not prevent
the latter dealing incidentally in their legislation
with assignees in insolvency; 194 or with insolvent
debtors, as, e.g., by defining the conditions under
which a writ of capias can be obtained, though, in
some cases, applicable only to insolvent traders ; 195
or, as we have seen (supra p. Ill) making all such
provisions in the case of voluntary assignments for
the benefit of creditors as are necessary to secure
a rateable distribution of the assets of an insolvent
among his creditors. Finally, as we have also seen
just above, Dominion legislation in relation to
bankruptcy and insolvency may contain, as ancillary
provisions, enactments dealing with such matters,

DOMINION ENUMERATED POWERS. 113

and then provincial legislatures would be precluded
from interfering, and any existing provincial enact-
ments which did conflict would be superseded by the
Dominion legislation. 196

22. ‘Patents of Invention and Discovery.’

23. ‘ Copyrights.’ The intendment of this sub-
section is ” to place the right of dealing with colonial
copyright within the Dominion under the exclusive
control of the parliament of Canada, as dis-
tinguished from provincial legislatures. ” 198 But it
in no way interferes with the power of the Imperial
parliament to legislate for the whole Empire in
respect to copyright by statutory provisions made
expressly applicable to every part of the British
Dominions; nor did it exempt Canada from the
binding force of such Imperial legislation un-
repealed at the time of Confederation. 199

24. ‘ Indians and Lands Reserved for the
Indians.’ 2 li The fact that the power of legislat-
ing for Indians, and for lands which are reserved
to their use, has been entrusted to the parliament of
the Dominions is not in the least degree inconsistent
with the right of the provinces to the beneficial in-
terest in these lands, available to them as a source of
revenue whenever the estate of the Crown is dis-
membered of the Indian title. ” 201 The general sub-
ject of Indian lands will be found discussed infra
pp. 152-3, where property under the Federation Act
is dealt with. Lands surrendered 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
this subs. 24 of sec. 91 as ‘ lands reserved for
Indians ‘ ; but, on such surrender, become ordinary

C.C.L. 8

114 CANADIAN CONSTITUTIONAL I^AW.

unpatented lands, and upon being sold to private
purchasers are liable to assessment under provincial
Acts, even before patent granted. 202 There is, of
course, nothing in this Dominion power over Indians
to debar provincial legislatures enacting that
Indians shall not exercise the provincial franchise. 205

25. ‘Naturalization and Aliens.’ This subsec-
tion of section 91 of the Federation Act ‘ ‘ does not
purport to deal with the consequences of either
alienage or naturalization. It undoubtedly reserves
these subjects for .the exclusive jurisdiction of the
Dominion that is to say, it is for the Dominion
to determine what shall constitute either the one or
the other ; but the question as to what consequences
shall follow from either is not touched. The right
of protection and the obligations of allegiance are
necessarily involved in the nationality conferred by
naturalization; but the privileges attached to it,
where these depend upon residence, are quite in-
dependent of nationality. 204 As to aliens the net
result of the authorities in reference to this
Dominion power seems to be that provincial legis-
latures cannot legislate against aliens, whether be-
fore or after naturalization, merely as such aliens,
so as to deprive them of the ordinary rights of the
inhabitants of the province, although they may so
legislate against them as possessing this or that
personal characteristic or habit, which disqualifies
them from being permitted to engage in certain oc-
cupations, or enjoy certain rights generally enjoyed
by other people in the province. The Dominion
parliament alone can legislate in relation to them
merely as aliens. But it is a different matter when
rights and privileges which have to be specially con-
ferred are in question, such as the right to exercise
the franchise. It is within the power of provincial

DOMINION ENUMERATED POWERS. 115

legislatures to refuse to confer such rights upon
.aliens or any other class of people in the province;
and especially is this clear in the case of the legis-
lative franchise, for the qualifications for the exer-
cise of that are an integral part of the Constitution
of the province, which by No. 1 of section 92 of the
Federation Act is expressly assigned exclusively to
the provincial legislature. 205 It appears that under
this Dominion power the Federal parliament can, by
properly framed legislation, require a foreign com-
pany to take out a Dominion license, even where the
company desires to carry on its business only
within the limits of a single province. 206 It is not,
of course, to be supposed that provincial legislation
may never even incidentally relate to aliens, as e.g.,
by providing that aliens may be shareholders in
provincial companies, and entitled to vote on their
shares, and be eligible as directors. 207

26. ‘Marriage and Divorce.’ 2 In a recent
decision the Privy Council have, in defining the sgope
of the provincial power over the ‘ solemnization of
marriage in the province’ under No. 12 of sec. 92 of
the Federation Act (infra pp. 133-4, where the case
will be further considered), determined that this
Dominion power does not cover the whole field of
validity of marriage, but that provincial legislatures
may enact conditions as to solemnization which may
affect the validity of the contract. 209 Consequently,
and as the effect of this decision, the Dominion par-
liament could not enact, as was proposed by the so-
called l Lancaster Bill,’ that any marriage per-
formed by any person authorized to perform any
ceremony of marriage by the laws of the place
where it is performed, and duly performed accord-
ing to such laws, shall everywhere within Canada
be deemed to be a valid marriage, notwithstanding

116 CANADIAN CONSTITUTIONAL LAW.

any difference in the religions of the persons so
married, and without regard to the person perform-
ing the ceremony; because a province has power
to enact that no marriage solemnized within its
borders shall be valid where the parties of one of
them is of a particular religion, unless solemnized
before some special class of persons authorized in
that province to solemnize marriages, e.g., a Eoman
Catholic priest. 210 As to divorce, in 1907, the On-
tario legislature assumed to enact that the High
Court of Justice in Ontario should have jurisdiction,
subject to certain conditions and qualifications, to
declare and adjudge a ceremony of marriage gone
through between two persons either of whom is
under eighteen years of age, without consent of
father, mother, or guardian, not to constitute a valid
marriage. There are conflicting decisions as to the
validity of this enactment, which must still be con-
sidered undecided. It is submitted in the light of
the Privy Council judgment in In re Marriage
Legislation in Canada [1912] A. C. 880, that it is
valid. 211

27. ‘ The Criminal Law, except the Constitu-
tion of Courts of Criminal Jurisdiction, but includ-
ing the Procedure in Criminal Matters.’ This sub-
section reserves for the exclusive legislative au-
thority of the parliament of Canada ” the criminal
law in its widest sense. ” 212 This suffices to dispose
of the suggestion made in several provincial cases,
that to come within the meaning of ‘ criminal law ‘
in this subsection 91 of the Federation Act, and so
to fall under the exclusive jurisdiction of the
Dominion parliament, an offence must be of that
kind which is esteemed to be malum in se, quite apart
from it also being malum prohibitum. 2 The above
Privy Council decision in Attorney-General for

CRIMINAL LAW AND CRIMINAL PROCEDURE. 117

Ontario v. Hamilton Street R. W. Co. also seems to
displace the view of Wetmore, J., in Queen v. City of
Fredericton, supra, that “to ascertain the jurisdic-
tion 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 passed;
although there are cases where, in construing that
Act, it is pertinent to consider the condition of
things before Confederation (supra p. 93). And
the question whether before Confederation certain
offences have been embraced within the criminal
law, may, perhaps, determine the power of provin-
cial legislatures to deal with such offences after
Confederation. 214 Two things, however, create
difficulty in the construction of No. 27 of sec. 91 of
the Federation Act, namely, that whereas ‘ criminal
law ‘ is thus assigned to the Dominion parliament,
‘ the imposition of punishment by fine, penalty, or
imprisonment for enforcing any law of the province
made in relation to any matter coming within any
of the classes of subjects enumerated in this section,’
is by No. 15 of sec. 92, assigned to the provincial
legislatures ; and that whereas ‘procedure in criminal
matters ‘ is assigned to the Dominion parliament,
i the constitution, maintenance, and organization of
provincial Courts, both *of civil and criminal juris-
diction/ is, by No. 14 of sec. 92 assigned to the
provincial legislatures. As to the first of these
points we must, in accordance with the principle of
construction already noticed, read No. 15 of sec. 92
as excepted out of criminal law assigned to the
Dominion by No. 27 of sec. 91. We shall deal more
particularly with it hereafter (infra pp. 140-3), but
may observe here that ” a provincial legislature
has, of course, no power to authorize any Act which
has been constituted an offence by parliament. ” 215
Neither can provincial legislatures alter or amend

118 CANADIAN CONSTITUTIONAL LAW.

the criminal law, using that term in the sense in
which it is used in No. 27 of sec. 91. 216 On the other
hand, although it cannot be denied that parliament
may draw into the domain of criminal law acts
which have hitherto been punishable only under a
provincial statute, 217 it does not follow that provin-
cial legislatures may not still have the right to pass
laws in regard to such acts in another aspect. 218 The
Dominion parliament, moreover, can give jurisdic-
tion to provincial Courts in criminal matters, in
spite of any provincial statutes relating to such
Courts, 219 but, of course, cannot regulate the pro-
cedure under a provincial penal statute. Provincial
legislatures alone have power to regulate the pro-
cedure under the penal laws which they have au-
thority to enact under No. 15 of sec. 92 of the Feder-
ation Act. 220 As to the second point of difficulty
above mentioned, namely, to distinguish i procedure
in criminal matters ‘ in No. 27 of sec. 91, from < the
constitution . . of provincial Courts . . of
criminal jurisdiction ‘ in No. 14 of sec. 92, it was
held by the Ontario Court of Appeal in King v.
Walton 221 that a provincial legislature has power to
determine the number of grand jurors to serve at
Courts of oyer and terminer, and general sessions,
this being a matter relating to the constitution of
the Courts; but that the selection and summoning
of jurors, including talesmen, and fixing the number
of grand jurors by whom a bill may be found, relate
to procedure in criminal matters in respect of which
the Dominion parliament alone has power to legis-
late. 222 In another ca,se it has been held that a
Dominion Act authorizing the Court of General or
Quarter Sessions of the Peace to try an appeal
from a summary conviction without a jury where
no jury is demanded by either party, is intra vires

DOMINION ENUMERATED POWERS. 119

of the Dominion parliament. 223 In another it has
been held that it is not within the power of a pro-
vincial legislature to regulate or control the inspec-
tion of the jurors ‘ book or jury panel so far as it
relates to criminal causes or matters. 224 In yet an-
other it has been held that a provincial Act, creating
stipendiary and police magistrates a Court with all
the powers and jurisdiction which any. Act of the
parliament of Canada had conferred or might con-
fer, is intra vires. 225

28. ‘ The establishment, maintenance, and man-
agement of penitentiaries.’ 22G

29. i Such classes of subjects as are expressly
excepted in the enumeration of the classes of sub-
jects by the British North America Act assigned
exclusively to the legislatures of the provinces.’
The classes of subjects expressly excepted from
those assigned exclusively to the legislatures of the
provinces are: (1) the office of LieutenamtXrovernor,
which, by No. 1 of section 92 of the Federation Act
is expressly excepted out the provincial power over
the ‘ amendment from time to time, notwithstanding
anything in this Act, of the Constitution of the pro-
vince . . . .,’ 227 section 92, whereby a general power subject to such
express exceptions is given to provincial legisla-
tures to make laws in relation to ‘ Local Works and
Undertakings.’ These exceptions are : (a) i 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

120 CANADIAN CONSTITUTIONAL LAW.

as, although wholly situate within the Province, are
before or after their execution declared by the Par-
liament of Canada to be for the general Advantage
of Canada or for the advantage of two or more of
the Provinces.’ 22S The effect of this sub-section 10
of section 92 is to transfer the excepted works men-
tioned in sub-heads (a), (b) and (c) of it into
section 91, and thus to place them under the ex-
clusive jurisdiction and control of the Dominion par-
liament. These two sections must then be read and
construed as if these transferred subjects were
specially enumerated in section 91, and local rail-
ways as distinct from federal railways were speci-
fically enumerated in section 92. 229 And the first
point to notice is that when acting under it the
Dominion parliament can confer upon a corporation
all powers necessary to effectuate its corporate pur-
poses. Thus parliament may entrust an electric
power company whose work or undertaking extends
beyond the limits of one province, or the works of
which have been expressly declared to be for the
general advantage of Canada, and so brought under
Dominion jurisdiction, with freedom to interfere
with municipal and private rights. 230 In the same
way a Dominion corporation for carrying on such
an undertaking as comes within the exceptions to
item 10 of section 92 is not subject, in carrying on
its business as authorized by its charter, to the pro-
vincial laws of the province where it does so. 231 It
is otherwise when the Dominion is incorporating
not under one of its exclusive enumerated powers,
but under its general residuary power, as, e.g., in-
corporating an insurance company, or a building
and investing company. In such cases it can grant
no more than the power of acting as a corporation
throughout the Dominion, but subject in each pro-

. DOMINION RAILWAY COMPANIES. 121

vince, as is any other person, to the laws of that
province. 232 The Privy Council have, also, decided
that, for the purposes of a Dominion railway com-
pany, the Dominion parliament has power to dis-
pose ‘of provincial Crown lands, and therefore, of
a provincial foreshore to a harbour. 233 And what
we have been stating about Dominion railway com-
panies is only an example of the general principle
that the Dominion parliament has all necessary in-
cidental powers when legislating upon the subject-
matters comprised in its enumerated powers in sec-
tion 91 of the Federation Act. But the powers as-
sumed under this principle must in fact be neces-
sarily incidental to the exercise by the Dominion
parliament of its exclusive control over such subject-
matters. 234 And the fact that legislative control of
Dominion railways, qua railways, belongs to the
Dominion parliament, does not make such railways
cease to be part of the provinces in which they are
situated, or exempt them in other respects from
the jurisdiction of the provincial legislatures. Thus
provincial legislatures can impose direct taxation
upon such portions of a Dominion railway as are
within the province, in order to the raising of a
revenue for provincial purposes. So, again, pro-
vincial legislation requiring a ditch belonging to a
Dominion railway company, and running along the
side of the railway track on the lands of the com-
pany for the purpose of their railway, to be kept in
good order and free from obstruction which would
impede the water-flow, but not regulating the struc-
ture of the ditch, would not be ultra vires. 235 On the
other hand provincial legislation would be ultra
vires which purported to enable a railway company
authorized under it to take possession of lands be-
longing to a Dominion railway company, ‘ and to

122 CANADIAN CONSTITUTIONAL LAW.

use and enjoy any portion of the right of way,
tracks, terminals, stations, or station grounds, of
such railway company . . in so far as the tak-
ing of such lands doeis not unreasonably interfere
with the construction and operation of the railway
whose lands were taken/ for this is legislation as
to the physical tracks and works of the Dominion
railway. 236

As to declarations by the Dominion parlia-
ment, under subs, (c) of section 92, as embraced
in No. 29 of .section 91 (supra pp. 119-120), that
works wholly situate in one province, are ‘ for the
general advantage of Canada, or for the advantage
of two or more of the provinces.’ 237 When such a
declaration is made, the railway to which it refers
is withdrawn from the jurisdiction of the provincial
legislature and passes under the exclusive jurisdic-
tion and control of the parliament of Canada, how-
ever rsmall and provincial it may be. 238 But the
Dominion parliament can revoke any such declara-
tion or repeal the Act containing it, and the railway
or railways to which such declaration refers will
then cease to foe under Dominion jurisdiction, and
come again under provincial jurisdiction. 230 The
question still remains whether such declaration by
the Dominion parliament must be express or whether
it can be implied. On the whole the balance of au-
thority at present seems in favour of the view that
it need not be & declaration in express words. 240

Dominion corporations generally. 2 * 1 The power
of the Dominion parliament to incorporate com-
panies is not based exclusively on No. 29 of section
91 of the Federation Act or on any other of its
enumerated powers. It can incorporate companies
by virtue of its general residuary power to make
laws for the peace, order, and good government of

DOMINION CORPORATIONS GENERALLY. 123

Canada; but as this residuary power, by express
provision of section 91, can only be exercised in re-
lation to matters not coming within the classes of
subjects by that Act assigned exclusively to the
provincial legislatures, no Dominion incorporation
under it can give the company incorporated exemp-
tion or immunity from the general provincial law. 242

Nevertheless it is , within the scope of the
Dominion exclusive legislative power in respect to
‘ the regulation of trade and commerce ‘ to au-
thorize all companies incorporated by it under its
residuary powers, and, a fortiori, all companies
incorporated under its enumerated powers, to
carry on their business throughout Canada, and
to give such companies power to sue and be
sued, and to contract by their corporate name,
and to acquire and hold personal property for the
purposes for which they were created, and to exempt
individual members of the corporation from per-
sonal liability for its debts, obligations, or acts, if
they do not violate the provisions of the Act in-
corporating them; and the status and powers of
such a Dominion company cannot be destroyed by
provincial legislation, although, as already stated,
when incorporated, not under any of the enumerated
Dominion powers, but solely under the residuary
Dominion power, such a company cannot exercise
its powers in contravention of the laws of the pro-
vince restricting the rights of the public in the
province generally. But provincial legislation must
not strike at capacities which are the natural and
logical consequences of the incorporation by the
Dominion Government of companies with other
than provincial objects. 243 Thus the Privy Council
have vindicated the objection which Ministers of
Justice at Ottawa have constantly taken to provin-

124 CANADIAN CONSTITUTIONAL LAW.

cial Acts imposing the necessity upon companies
incorporated by Dominion charter, even though
under the residuary power only, of taking out a
provincial license before doing business in the pro-
vince. Such provincial legislation they hold to be
ultra vires although they quite admit that provin-
cial taxation may be by way of license. 244 In the
same way power conferred by a provincial legisla-
ture on an industrial company in its incorporating
Act to carry on its corporate enterprise to the ex-
clusion of every other company in a designated
territory will be without effect against a company
constituted for similar ends by a previous Dominion
statute, with power to carry on business throughout
Canada. 245 It is .scarcely necessary to add that the
Dominion parliament can alone incorporate com-
panies with chartered powers to carry on business
throughout the Dominion, seeing that provincial
powers of incorporation are by No. 11 of section 92
of the Federation Act expressly confined to l com-
panies with provincial objects/ as to which see infra
pp. 130-3 ; 246 but there seems nothing to prevent a
Dominion corporation confining its operation to one
or more provinces, subject of course to the require-
ments of its charter. 247

B. Provincial powers. 2 * 8

1. ‘ The amendment from time to time, notwith-
standing anything in this Act, of the Constitution
of the province, except as regards the office of
Lieut enant-Governor.’ 249 The non obstante clause in
this subsection must be read subject to the non
obstante clause of section 91 (see supra pp. 73-4),
otherwise, as Kamsay, J., says in Ex parte
Dansereau, No. 1 of section 92, in its widest
sense, would amount to a power to upset the Feder-

PROVINCIAL LEGISLATIVE POWERS. 125

ation Act. The saving clause as to the office of
Lieutenant-Governor is manifestly intended to keep
intact the headship of provincial government, form-
ing, as it does, the link of federal power. It does
not, however, apparently inhibit a statutory increase
of duties germane to the office. 251 The Privy Council
have held that under this subsection provincial
legislatures have power to pass Acts for defining
their own powers, immunities, and privileges as re-
gards their independence from outside interference,
their protection, and the protection of their members
from insult while in discharge of their duties. 252
They can also under this head of power exclude
aliens/ whether naturalized or not, from exercising
the provincial franchise, notwithstanding the
Dominion exclusive power to legislate in relation to
‘ naturalization and aliens ‘ (supra pp. 114-5). 253

2. l Direct taxation within the Province in
order to the raising of a revenue for provincial
purposes.’ It is obvious that it could not have been
intended that the general Dominion power under
No. 3 of section 91 to make laws in relation to ‘ the
raising of money by any mode or system of taxation ‘
(supra pp. 105-6) should override this particular
provincial power in respect to taxation. 254 We may
further observe, by way of preliminary, that no
Canadian legislature, Dominion or provincial, is
subject in matters of taxation to that restriction
which exists under the United States Constitution,
and requires ‘ all public taxation to be fair and equal
in proportion to the value of property, so that no
class of individuals, and no species of property, may
be unequally or unduly assessed.’ 255 Proceeding
now to interpret the terms of this provincial power
the question what is to be understood by ” direct
taxation ‘ ‘ has been before the Privy Council in five

126 CANADIAN CONSTITUTIONAL LAW.

cases, with the result of establishing that it is to
be interpreted in accordance with John Stuart
Mills ‘s definition of a direct tax as ‘ one which is
demanded from the very persons who it is intended
or desired should pay it,’ as distinguished from in-
direct taxes, which are ‘ those which are demanded
from one person in the expectation and intention
that he shall indemnify himself at the expense of
another. ‘ 256 And although the power to tax is ex-
pressed to be ‘ in order to the raising of a revenue
for provincial purposes,’ this is not to be understood
as meaning that the provincial legislature may not,
whenever it shall see fit, impose direct taxation for
a local purpose upon a particular locality within the
province; 257 but a province can only tax property
within it. 258 The person to be taxed, however, need
not be domiciled or even resident within it. Any per-
son found within the province may be legally taxed
there if taxed directly. 259 And a provincial legis-
lature can place a tax upon property locally situate
inside the province to which a person succeeds under
a will or on intestacy, notwithstanding that the de-
ceased owner was domiciled outside the province at
the time of his death, provided it excludes by the
use of apt and clear words the application of the
maxim mobilia sequuntur personam. 260 The question
remains : Can a provincial legislature indirectly place
a succession duty tax on property locally situate
outside the province by placing the tax, not directly
on the property, but on the transmission of the pro-
perty by succession to a person in the province? In
King v. Cotton, 261 the majority of the Supreme
Court of Canada held that it can. It must not be sup-
posed, moreover, that provincial legislatures can
tax all property whatever if it be within the pro-
vince. Section 125 of the Federation Act enacts

PROVINCIAL, LEGISLATIVE POWERS. 127

that, ‘no lands or property belonging to Canada or
any province, shall be liable to taxation.’ 262 But
the provinces can tax Dominion officials notwith-
standing that No. 8 of section 91 gives the Dominion
parliament exclusive authority over ‘ the fixing of,
and providing for, the salaries and allowances of
civil and other offices of the Government of
Canada ; ‘ 263 and Dominion corporations, as, for
example, banks ; 264 and Dominion licensees. 265

3. ‘ The borrowing of money on the sole credit
of the province.’

4. ‘ Provincial Offices and Officers.’ 2

5. ‘ The management and sale of the public
lands belonging to the province, and of the timber
and wood thereon.’ 2 * 7

6. ‘ The establishment, maintenance, and man-
agement of public and reformatory prisons in and
for the province.’

7. i The establishment, maintenance, and man-
agement of hospitals, asylums, charities and eleemo-
synary institutions in and for the province, other
than marine hospitals.’

8. i Municipal Institutions in the province.’
This ” simply gives provincial legislatures the right
to create a legal body for the management of muni-
cipal affairs,” to which they can then give any
powers which come within the subject-matters with
which they are entitled to deal. ‘ 26S Having created
such municipal bodies they can delegate to them any
powers they themselves possess; 269 and have all
incidental powers necessary to carry on and work
such municipal institutions. 270

128 CANADIAN CONSTITUTIONAL LAW.

9. l Shop, saloon, tavern, auctioneer, and other
licenses, in order to the raising of a revenue for
provincial, local, or municipal purposes.’ Many
judges in Canadian Courts, though not all, have felt
themselves constrained to interpret “other licenses”
by the rule of ejusdem generis, 2 ‘but the Privy
Council judgments can scarcely be said to encourage
any stress being laid upon this. 272 Taxation by
license under this subsection is direct taxation. 273
Such, licenses, moreover, as it authorizes may be
imposed on wholesale just as much as on retail
business. 274 The object of all such licenses, however,
must be i in order to the raising of a revenue. ‘ 275
The Dominion parliament, also, can, of course, both
tax and regulate in matters within their jurisdiction,
by means of licenses. 276

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 ivith any other or others of
the provinces, or extending beyond the limits of the
provinces :

(b) Lines of steamships between the province
and any British or foreign country :

(c) Such works as, although ivholly situate
ivithin the province, are before or after their execu-
tion 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.’ 211

It must be pronounced to be still an unsettled point
whether under this subsection of section 92 of the
Federation Act provincial legislatures can authorize

PKOVINCIAL WORKS AND UNDERTAKINGS. 129

the construction, or operation of such works and
undertakings as railways, or electric light and
power transmission lines or telephone lines, extend-
ing to the provincial boundaries, where they may,
and probably will, connect with similar works and
undertakings in other provinces, or in the United
States; and it seems to have become a sort of tra-
dition in the Department of Justice at Ottawa to
object to provincial Acts authorizing the construc-
tion of railways to the boundary line of the pro-
vince. 278 It is submitted, nevertheless, with all
proper deference, that such legislation is intra vires.
The plenary powers of provincial legislatures
(supra, pp. 66-9), are not to be restricted by con-
struction save so far as is necessary to allow for the
enumerated Dominion powers under section 91, and
what are placed under Dominion jurisdiction by the
subsection we are considering, are such lines of
steam or other ships, railways, canals, telegraphs,
and other works and undertakings as themselves
connect, under their own charter powers, the pro-
vince with any other or other of the provinces, or
extend beyond the limits of the province. 279

A provincial legislature may, it would seem, when
incorporating a local undertaking restrict its powers
of operation to six days a week, thereby securing
Sunday observance, 280 although legislation directly
requiring observance of the Lord’s Day might be
ultra vires as matter of criminal law. 281 The
Minister of Justice at Ottawa, however, has pro-
nounced ultra vires and disallowed British Columbia
legislation incorporating railway companies with a
provision ‘that no Chinese, Japanese, or other alien,
shall be employed thereon. 282 Provincial corpora-
tions are, of course, just as subject to Dominion
laws, validly enacted, as individuals are. 283

C.C.L. 9

130 CANADIAN CONSTITUTIONAL LAW.

11. ‘The incorporation of companies with provincial objects.’ This subsection of section 92 of the Federation Act is concerned with the incorporation of private companies with objects outside the exclusively Dominion matters. As to other kinds of corporations, the creation of municipal corporations would fall under No. 8 of section 92; of charitable and other similar corporations under no. 7 (supra, p. 127); of what may, perhaps, be called Governmental corporations, such as the Hydro-Electric Power Commission of Ontario, under No. 1, No. 4 or No. 14 (supra, pp. 124-7; infra, p. 1370: and of educational under section 93 (infra, pp. 143-9). “Incorporation” includes “the constitution of the company, the designation of its corporate capacities, the relation of the members of the company to the company itself, the powers of the governing body. How much more it would include may be left to be determined in each concrete case in which the point arises”; but “you cannot by any permissible process infer from the language of No. 11 any limitation upon the jurisdiction of the provinces in relation to companies not within No. 11 in regard to matters which do not fall within the strictly limited subject of ‘incorporation.’” The contentions which have arisen over this clause have centred round the words ‘with provincial objects,’ contentions which appear to have been finally set at rest by the Privy Council in the recent case of Bonanza Creek Gold Mining Co. v. The King. The majority of the judges of the Supreme Court of Canada had adopted the view that the introduction of the words “with provincial objects” imposed “a territorial limit on legislation conferring the power of incorporation so completely that by or under provincial legislation no company could be

[Page 131]

incorporated with an existence in law that extended beyond the boundaries of the province. Neither directly by the language of a special Act, nor indirectly by bestowal through executive power, did they think that capacity could be given to operate outside the province, or to accept from an outside authority the power of so operating.”  The Privy Council, however, hold that, by virtue of section 65 of the Federation Act, which in conjunction with section 12 makes a distribution of executive power between the Dominion and the provinces corresponding to the distribution which it makes of legislative power, there was in the Lieutenant-Governor, that is, in the provincial executive, a power to incorporate companies with provincial objects, but with an ambit of vitality wider than that of the geographical limits of the province. The powers of incorporation which the Governor-General or Lieutenant-Governor possessed before the Union must be taken to have passed, by virtue of section 65, to the Lieutenant-Governors so far as concerns companies with this class of objects; and there can be no doubt that prior to 1867 the Governor-General was for many purposes entrusted with the exercise of the prerogative power of the Sovereign to incorporate companies throughout Canada. Under sections 12 and 65 the continuance of the powers thus delegated to the Governor is made by implication to depend on the appropriate legislature not interfering; and in the case of Ontario (under whose Companies Act the Bonanza Creek Mining Company had been incorporated, and which Act expressly recognizes as supporting the charters granted under it, any powers with which the Lieutenant-Governor might be vested in respect to granting charters of incorporation apart from its

[Page 132]

provisions), such powers had not been interfered with. Section 92 of the Federation Act, and especially the words “with provincial objects, ” their
lordships held, ” confine the character of the actual
powers and rights which the provincial Government
can bestow, either by legislation or through the
Executive, to powers and rights exercisable within
the province. But actual powers and rights are one
thing and capacity to accept extra-provincial pow-
ers and rights is quite another. . . The words
‘ legislation in relation to the incorporation of com-
panies with provincial objects ‘ do not preclude the
province from keeping alive the power of the
Executive to incorporate by charter in a fashion
which confers a general capacity analogous to that
of a natural person; nor do they appear to pre-
clude the province from legislating so as to create,
by or by virtue of statute, a corporation with this
general capacity. What the words really do is to
preclude the grant to such a corporation, whether
by legislation or by executive act according with the
distribution of legislative authority, of powers and
rights in respect of objects outside the province,
while leaving untouched the ability of the corpora-
tion, if otherwise adequately called into existence, to
accept such powers and rights if granted ab extra.
It is, in their lordships’ opinion, in this narrower
sense alone that the restriction to provincial objects
is to be interpreted. It follows as the Ontario
legislature has not thought fit to restrict the exercise
by the Lieutenant-Governor of the prerogative power
to incorporate by letters patent with the result of
conferring a capacity analogous to that of a natural
person, that the appellant company could accept
powers and rights conferred on it by outside au-
thorities.” 288 There can.be, it is submitted, no

PROVINCIAL COMPANIES. 133

doubt that a provincial corporation existing in one
province may be incorporated with similar rights
and powers in another province by the legislature
of the latter. 289 It is likewise impossible now to
acquiesce in the dicta of Davies, J., in Hewson v.
Ontario Power Co. 2 as to a provincial legislature
not being able to give an electric light and power
company of its creation, the right to connect its
wires with those of a local company in another pro-
vince, or with those of a company in the United
States. Provincial companies, as we have seen
(supra, p. 107), may need Dominion assistance in
order to the effectual execution of their corporate
purposes; but the Dominion parliament, of course,
cannot enlarge the charter powers of a provincial
company, although it might incorporate the mem-
bers of the provincial company as a Dominion com-
pany. 291 Nor y fine,
penalty, or imprisonment for enforcing any laiv of
the province made in relation to any matter coming
within any of the classes of subjects enumerated in
section 92 of the Federation Act.’

(a) Construction of this subsection. Before
considering the general subject of provincial penal
laws there are certain decisions bearing on the
above subsection requiring notice. Thus it has been
decided that it applies to No. 16 which comes after
it (infra, p. 143), as much as to the fourteen heads
of provincial legislative power which come before
it ; 33 that notwithstanding the use of the disjunctive
” or ” provincial legislatures can authorize punish-
ment by both fine and imprisonment ; 331 that ‘ the
imposition of punishment by fine, penalty, or im-
prisonment ‘ includes the power to impose im-
prisonment with hard labour; 332 that forfeiture of
goods may be imposed as punishment; 333 that a
provision empowering the Court to sentence a
debtor, who, having been arrested on a capias, has
been enlarged on bail, to an imprisonment for an
indeterminate period, if the capias be afterwards

PROVINCIAL PENAL LEGISLATION. 141

sustained, is intra vires, though this cannot be said,
properly speaking, to be imposing a penalty or
punishment, but simply replacing the defendant in
the same position as he was in before he was let
out on bail; 334 that the provinces may vest the par-
doning power in the case of offences against pro-
vincial Acts in the Lieutenant-Governor; 335 and,
lastly, that the provinces may delegate their powers
under this subsection, as in other cases. 336

(b) Provincial penal laws. 537 The general re-
lation of this provincial power to the Dominion
power over criminal law and procedure in criminal
matters has already been discussed (supra, pp. 117-
9). As there pointed out, it does not follow that
when the Dominion parliament has drawn an Act
into the domain of criminal law, the right of the pro-
vincial legislatures to pass laws in regard to such an
Act necessarily ceases. They may still, in many in-
stances, legislate against the same Act in another
aspect. 333 Thus it is by virtue of No. 15 of sec. 92
in connection especially with No. 13 (property and
civil rights, supra, pp. 134-7) and No. 16 (matters of
a merely local or private nature in the province,
infra, p. 143), that we get those provincial penal
Acts which have sometimes been spoken of incor-
rectly as ” provincial criminal law ” and very often
as ” police regulation,’ 7 as e.g., regulating of the
liquor traffic, and the closing of the taverns. 339 Thus,
too, the Courts have upheld provincial penal laws
regulating the selling of drugs ; 34 and the assize of
bread; 341 providing against frauds in the supplying
of milk to cheese and butter manufactories, 342 pro-
hibiting the selling of trading stamps ; 343 regulating
and controlling the time of opening and closing shops
within the municipality ; 344 prohibiting the use of f ac-

142 CANADIAN CONSTITUTIONAL LAW.

tory chimneys sending forth smoke in such quantities
as to be a nuisance, for the offence aimed at, though
designated a nuisance, fell short of the criminal
misdemeanour of common nuisance, and the Act
concerned police regulation incidental to municipal
institutions ; 345 regulating the killing and possession
of game at certain seasons of the year, 346 and even
prohibiting export as incidental to, and carrying
out the general scheme of game protection in the
province ; 347 prohibiting contracts by unregistered
companies. 348 On the other hand it seems clear that
provincial legislatures cannot permit the operation
of lotteries forbidden by the criminal statutes of
Canada. 349 There seems, also, to be some doubt as
to whether provincial legislatures can deal with
gambling houses, keeping a common gaming house
being a criminal offence at common law; 35 as, also,
whether they can penalize, even incidentally to other
valid legislation, the malicious injury of property. 351
As to the power of provincial legislatures in respect
to the matter of Sunday observance, the authorities
are not in a very satisfactory state. 352

Provincial Penal Procedure. Provincial legis-
latures alone have power to regulate the pro-
cedure under provincial penal laws. For as
an offence under such provincial Acts is not a
” crime ” within the proper meaning of No. 27 of
Section 91 of the Federation Act (supra, pp. 116-9),
so neither is the procedure applicable to the prose-
cution of such offences ‘ ‘ criminal procedure ‘ ‘ within
the meaning of that clause. 353

Predominance of Dominion Parliament. We
have already referred to cases illustrating the
dominance of Dominion criminal legislation over
provincial laws when the two are really in

LOCAL AXD PRIVATE MATTERS IN 1 PROVINCE. 143

eadem materia and directly conflicting: see supra,
pp. 117-8. 354

16. ‘ Generally all matters of a merely local or
private nature in the province.’ This subsection
” appears to have the same office which the general
enactment with respect to legislation for the peace,
order and good government of Canada, so far as
supplementary to the enumerated subjects (of
Dominion power) fulfils in section 91 (of the Feder-
ation Act). It assigns to the provincial legislature
all matters in a provincial sense local or private
which have been omitted from the preceding enu-
meration, and although its terms are wide enough to
cover, they were obviously not meant to include
provincial legislation in relation to subjects already
enumerated. ” 355 ” Local ‘ ‘ does not mean here local
in a spot in a province, but local in the sense of
confined within the boundaries of the province,
although, of course, whether an Act is intra vires,
or not, must depend upon whether, notwithstanding
its subject matter is “local,” it does or does not
fall within one of the enumerated classes of subjects
in section 91. 858 As to the significance of the word
“merely” in this subsection, it has been discussed in
various arguments before the Judicial Committee of
the Privy Council, and the outcome seems to be that
it means “not touching by its immediate and direct
operation those outside .the province.” 357

SEC. XXVI. POWERS IN RESPECT TO MAKING LAWS
IN RELATION TO EDUCATION. Section 93 of the
Federation Act contains certain provisions in this
matter which govern it so far as Quebec, Ontario,
Nova Scotia, New Brunswick, Prince Edward Island
and British Columbia are concerned. In the case of
Manitoba the matter is somewhat differently ordered
by section 22 of the (Dominion) Manitoba Act, 1870;

144 CANADIAN CONSTITUTIONAL LAW.

as it is also in the case of Alberta and Saskatchewan
by sections 17 of the (Dominion) Alberta and Sas-
katchewan Acts, respectively (1905), 4-5 Edw. VII.
ch. 3, and ch. 42.

A. Quebec, Ontario, Nova Scotia, New Bruns-
ivick, Prince Edward Island and British Columbia.
Section 93 of the Federation Act provides as fol-
lows :

‘ 93. In and for each Province the Legislature
may exclusively make laws in relation to Education,
subject and according to the following provisions :

1 (1) Nothing in any such law shall prejudicially
affect any Eight or Privilege with respect to De-
nominational 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 conferred and imposed in Upper
Canada on the Separate Schools and School Trus-
tees of the (King’s) Eoman Catholic subjects shall
be and the same are hereby extended to the Dis-
sentient Schools of the Queen’s Protestant and
Koman Catholic subjects in Quebec.

i (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 Eight or Privi-
lege of the Protestant or Eoman Catholic Minority
of the Queen’s subjects 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 execution of the provisions of
this section is not made, or in case any decision of
the Governor-General in Council or any Appeal
under this section is not duly executed by the proper

LEGISLATION AS TO EDUCATION. 145

provincial Authority in that Behalf, then and in
every such case, and as far only as the circumstances
of such 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. 7358

As to subsection 1 of this section, by ” denomi-
national schools ” is meant schools which were
permanently, and by law, denominational, not
schools which were merely de facto denominational
for a time, because the whole inhabitants of a dis-
trict or a great majority of them, happened to be-
long to that denomination. 359 As to the import of
the words l ‘ prejudicially affect any right or privi-
lege ” in the above section, see infra, pp. 147-8. As
to the meaning of the words “any class of person, ”
the Judicial Committee of the Privy Council have
recently decided that ‘ ‘ the class of persons to whom
the right or privilege is reserved must, in their
lordships 7 opinion, be a class of persons determined
according to religious belief, and not according to
race or language ‘ ‘ ; and that ‘ ‘ In relation to de-
nominational teaching, Roman Catholics together
form within the meaning of the section a class of
persons, and that class cannot be subdivided into
other classes by considerations of the language of
the people by whom that faith is held;” and that
” persons joined together by the union of language,
and not by the ties of faith, do not form a class of
persons within the meaning of the Act.” 36 It will
be noticed that the ” right or privilege with respect
to denominational schools ” must be such as any
class of persons “have ~by law in the province at
the Union.” It is not sufficient that the concurrence
of certain exceptional and accidental circumstances

C.C.L. 10

146 CANADIAN CONSTITUTIONAL LAW.

enabled certain schools to be denominational by
reason of the teacher instructing the children ex-
clusively in doctrines of a particular denomination,
or using the prayers, or books, or daily teaching
the catechism peculiar to such denomination. This
could not confer any legal right or privilege within
the meaning of the section. 361 Note also that subs. 1
of the above sec. 93 does not prohibit all legislation
respecting denominational schools, but only legis-
lation which affects such rights and privileges with
regard thereto. 362 It has moreover been held that
mere acquiescence will be no bar to proceedings
under this section, as e.g., the applicant having
acquiesced for many years in a system of schools
by which he, with other members of his religious
denomination, was taxed for schools common to all
Protestants. 363

As to subsections 3 and 4 of the above section
93, note that the system of separate or dissentient
schools must have existed by law at the Union. 364
As to the words 1 1 provincial authority ‘ ‘ the legis-
lature of the province must be considered included. 365
And it must not be supposed that these subsections
oust the jurisdiction of the ordinary tribunals to
act under subsection I. 366 Nor are they to be con-
strued as merely giving parties aggrieved an appeal
to the Governor in Council concurrently with the
right to resort to the Courts in case the provisions
of subs. 1 are contravened. They are not confined
to rights and privileges existing at the Union, and
they give an appeal only where the right or privilege
affected is that of the “Protestant or Koman
Catholic minority, ” and not “with respect to de-
nominational schools, ” but “in relation to educa-
tion. ” They constitute a substantive enactment,

AS TO EDUCATION. 147

and are not designed merely as a means of enforc-
ing the provisions of subs. I. 367

Manitoba. Section 22 of the Dominion Act
establishing the province of Manitoba, 33 Viet.
(1870), c. 3, is as follows:

i 22. In and for the province, the said (pro-
vincial) legislature may exclusively make laws in
relation to education, subject and according to the
following provisions :

1 (1) Nothing in any law shall prejudicially affect
any right or privilege with respect to denomina-
tional schools, which any class of persons have by
law or practice in the province at the Union. 368

‘ (2) An appeal shall lie to the Governor-General
in Council from any act or decision of the legisla-
ture of the province, or of any provincial authority,
affecting any right or privilege of the Protestant
or Eoman Catholic minority in relation to education.

1 (3) (Is identical with subs. 4 of section 93 of the
Federation Act, as to which see supra, p. 146) *. 369
As to the words ” or practice ” which are added
to the words ” by law ” in subs. 1 of the above sec-
tion, but are not found in sec. 93 of the Federation
Act (supra, pp. 144-5), the word ” practice ” must
not be read as meaning ” custom having the force of
law.” The intention was to preserve every legal
right or privilege, and every benefit or advantage
in the nature of a right or privilege, with respect
to denominational schools, which any class of per-
sons practically enjoyed at the time of the Union. 370
It is in view of the distinctions which exist between
subs. 2 of sec. 22 of the Manitoba Act and subs. 3
of sec. 93 of the Federation! Act, with which it is
in other respects identical, that their lordships con-
clude in Bropliy v. Attorney -General of Manitoba,
that one is intended to be a substitute for the

148 CANADIAN CONSTITUTIONAL LAW.

other, and they explain the reason for the dif-
ferences. 371 It extends in terms to ‘ ‘ any ‘ ‘ right or
privilege of the minority affected by an Act passed
by the legislature, and therefore embraces all rights
and privileges existing at the time when such Act
was passed. 372

Alberta, Saskatchewan. In these provinces the
subject of education is dealt with by a special sec-
tion, in the Alberta Act (1905), 4-5 Edw. VII. (D.)
c. 3, and in the Saskatchewan Act, 4-5 Edw. VII (D)
c. 42, which is in each Act identical, and in each
Act sec. 17. It runs as follows:

4 17. Section 93 of the British North America
Act, 1867, shall apply to the said province, with the
substitution for paragraph (1) of the said section
93, of the following paragraph:

1 (1) Nothing in any such law shall prejudicially
affect any right or privilege with respect to Separate
Schools which any class of persons have at the date
of the passing of this Act, under the terms of
chapters 29 and 30 of the Ordinances of the North-
West Territories passed in the year 1901 or with
respect to religious instruction in any Public or
Separate School as provided for in the said
ordinances.

1 (2) In the appropriation by the legislature or
distribution by the Government of the province of
any moneys for the support of schools organized
and carried on in accordance with the said chapter
29, or any Act passed in amendment thereof, or in
substitution therefor, there shall be no discrimin-
ation against schools of any class 1 described in the
said chapter 29.

‘(3) Where the expression ‘by law’ is employed
in paragraph 3 of the said section 93 it shall mean
the law as set out in the said chapters 29 and 30,

AGRICULTURE AND IMMIGRATION. 149

and where the expression * at the Union ‘ is em-
ployed in the said paragraph 3, it shall be held to
mean the date at which this Act comes into force/
Both Acts came into force on September 1st, 1905,
(see sec. 25 of both Acts). 373

SEC. XXVII. AGRICULTURE AND IMMIGRATION.
There is the following special provision in the Fed-
eration Act as to these matters :

‘ 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 agricul-
ture in all or any of the provinces, and to immigra-
tion into all or any of the provinces, and any law
of the legislature of a province relative to agricul-
ture 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/

As Mr. Joseph Chamberlain said in a despatch
to the Governor-General of January 22nd, 1901 : 374

‘ Though the power to legislate for promotion
and encouragement of immigration into the pro-
vinces may have been properly given to the provin-
cial legislatures, the right oft entry into Canada of
persons voluntarily seeking such entry is obviously
a purely national matter, affecting as it does the
relation of the Empire with foreign states.’ 375

SEC. XXVIII. DOMINION COURTS. By section 101
of the Federation Act it is enacted :

‘ 101. The parliament of Canada may, notwith-
standing anything in this Act, from time to time
provide for the constitution, maintenance, and
organization of a General Court of Appeal for
Canada, and for the establishment of any additional

150 CANADIAN CONSTITUTIONAL LAW.

Courts for the better administration of the laws of
Canada.’

It was under this section that in 1875 there was
established, and still exists a Supreme Court of
Canada, consisting of a Chief Justice and five
puisne judges, who are appointed by the Governor-
General in Council. They hold office during good
behaviour, but are removable by the Governor-
General on address of the Senate and House of
Commons of Canada. This Court possesses an
appellate civil and criminal jurisdiction within and
throughout Canada. There is, indeed, no such
thing in Canada as a Court of Criminal Appeal
such as now exists in England, but any questions
of law arising in the course of a trial for a criminal
offence, may be reserved and brought before the
provincial Court of Appeal on a stated case; and
if the provincial Court of Appeal be not unanimous,
the person convicted may then appeal to the Su-
preme Court of Canada: R. S. C. 1906, c. 146, sees.
1013-1024, as amended Dom. Stats. 1909, c. 9. As
to civil cases, speaking generally, an appeal lies to
the Supreme^ Court of Canada from all final judg-
ments of the highest Court of final resort, subject
to certain limitations, depending, e.g., on the amount
involved, or whether the title to land is called in
question, which differ in the case of different pro-
vinces, and are set out in the Supreme Court Act,
E. S. C. 1906, c. 146, or in amendments thereto. 378

It is, however, quite competent for the Dominion
parliament to allow an appeal to the Supreme Court
from judgments of provincial Courts, even though
such judgments b e not final, nor such Courts Courts
of final resort, 377 nor can provincial legislation take
away, or impair, the jurisdiction conferred upon the
Supreme Court by Dominion Act. 378 As to the con-

DOMINION AND PROVINCIAL, PROPERTY. 151

eluding words of the above section 101, which give
the parliament of Canada power to provide ‘ for
the establishment of any additional Courts for the
better administration of the laws of Canada,’ it is
still an undecided point whether the expression
‘ laws of Canada ‘ means Dominion, i.e., federal
laws only, or whether it also embraces the laws of
the various provinces. 379

SEC. XXIX. DOMINION AND PKOVINCIAL PROPERTY

UNDER THE BRITISH NORTH AMERICA ACT.

A. Dominion Property. Section 108 of the
Federation Act enacts as follows:

108. l The public works and property of each
province, enumerated in the third schedule to this
Act, shall be the property of Canada.’ 380

The third schedule referred to is as follows:

‘ Third Schedule Provincial Public Works and
Property to be the Property of Canada.

‘ 1. Canals with lands and water power con-
nected therewith. 381

1 2. Public Harbours. 382

* 3. Lighthouses and piers and Sable Island.

‘ 4. Steamboats, dredge^, and public vessels.

1 5. Eivers and lake improvements. 383

‘ 6. Railways and railway stocks, mortgages,
and other debts due by railway companies.

‘ 7. Military roads.

‘ 8. Custom houses, post offices, and all other
public buildings, except such as the Government of
Canada appropriate for the use of the provincial
legislatures and governments. 384

1 9. Property transferred by the Imperial Gov-
ernment, and known as Ordnance property.

‘ 10. Armouries, drill sheds, military clothing,
and munitions of war, and lands set apart for
general public purposes.

152 CANADIAN CONSTITUTIONAL LAW.

B. Provincial property.

Section 109 of the Federation Act is as fol-
lows :

i 109. All lands, mines, minerals, and royalties
belonging to the several provinces of Canada, Nova
Scotia, and New Brunswick at the Union, and all
sums then due or 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 or arise
subject to any trusts existing in respect thereof,
and to any interest other than that of the province
in the same. 385

Of course when public land with its incidents is
described as “the property of” or as “belonging
to” the Dominion or a province, these expressions
merely import that the right to its beneficial user, or
to its proceeds, has been appropriated to the Domin-
ion, or the province, as the case may be, and is sub-
ject to the control of its legislature, the land itself
being vested in the Crown. 386

1. Indian lands. As to Indian lands, and as to
lands iri Ontario surrendered by the Indians by
treaty belonging in full beneficial interest to the
Crown as representing the province, or more pro-
perly as represented by the provincial Government,
subject only to any privileges of the Indians re-
served by the treaty, see supra, p. 113. 387

On the whole the cases are against the view that
the provincial authorities have any power to ex-
tinguish Indian title. 388

2. l All lands, mines, minerals, and roy allies.’
Whatever proprietary rights were at the time of the
British North America Act possessed by the pro-

‘LANDS, MINES, MINERALS, AND ROYALTIES/ 153

vinces remained vested in them, except such as are
by any of its express enactments transferred to the
Dominion of Canada. 389

As to Indian lands, see supra, p. 113 ; and as to
Fisheries, see supra, p. 108. Whether the word
” royalties ” extends to royal rights besides those
connected with lands, mines, and minerals, or not,
it certainly includes royalties in respect to lands,
such as escheats, and ought not to be restrained
to rights connected with mines and minerals only.
Lands escheated for defect of heirs belong, there-
fore, to the province. 390

‘The word ” royalties ” also includes prerogative
rights to gold and silver mines. 391 It does not,
apparently, include the right to establish or create
ferries between a province and any British or
foreign country, or between two provinces. 39121

3. ‘ Subject to any trusts existing in respect
thereof and to any interest oilier than tliat of the
province in the same. 1 Without supposing that the
word ” trust ” in the first part of the above clause
of sec. 109 of the Federation Act was meant to be
strictly limited to such proper trusts as a Court
of Equity would undertake to administer, it must,
at least, have been intended to signify the existence
of a contractual or legal duty incumbent upon the
holder of the beneficial estate, or its proceeds, to
make payment, out of one or other of these, of the
debt due to the creditor to whom that duty ought
to be fulfilled. On the other hand ‘ an interest other
than that of the province in the same ‘ appears to
denote some right or interest in a third party, in-
dependent of, and capable of being vindicated in
competition with, the beneficial interest of the old
province. 392

154 CANADIAN CONSTITUTIONAL LAW.

SEC. XXX. CONTROVERSIES BETWEEN THE Do-

MINION AND THE PROVINCES THE KULE OF LAW IN

CANADA. By section 32 of the Exchequer Court Act,
E. S. C. 1906, c. 140, it is enacted that

i 32. When the legislature of any province of
Canada has passed an Act agreeing that the Ex-
chequer Court shall have jurisdiction in cases of
controversies :

(a) Between the Dominion of Canada and each
province ;

(b) Between such province, and any other pro-
vince or provinces, which have passed a like Act ;
the Exchequer Court shall have jurisdiction to de-
termine such controversies.

2. An appeal shall lie in such cases from the
Exchequer Court to the Supreme Court.’

It is scarcely necessary to add that in such a case
a further appeal may be taken to the Judicial Com-
mittee of the Privy Council by special leave there
obtained. 3924

When a dispute between the Dominion and a
province of Canada, or between two provinces, comes
before the Exchequer Court under the above pro-
visions, it must be dealt with on recognized legal
principles, and not merely on what the judge of
the Court considers fair and just between the
parties. 393

SEC. XXXI. SOME CONCLUDING REMARKS. The Bri-
tish North America Act, 1867, may be claimed as a
great triumph of British constructive statesmanship.
It not only successfully combined responsible parlia-
mentary self-government in Canada with a federal
system, but it did so without disturbing or en-
dangering, rather, indeed, as experience has
shown, greatly strengthening, its organic connec-
tion with the Empire as a whole. Furthermore, it

SOME CONCLUDING REMARKS. 155

has endowed the Dominion with a Constitution pos-
sessing such potentialities of growth and adapta-
tion, that it seems unnecessary that it should ever
be fundamentally disturbed. At the same time it
leaves it to the future to settle such modifications
as circumstances may dictate in the form of the re-
lations of Canada to the Motherland and the Empire
at large. There are fundamental differences be-
tween the Constitution of Canada and that of the
United States, resulting from and embodying the
expressed intention of its framers to adhere to the
principles of the. British Constitution as then devel-
oped; many have been mentioned in the text and
notes, and some it may be well to recall here. Thus it
retains parliamentary responsible government alike
in the federal ajid in the provincial systems, in place
of a separation of governmental powers. Again there
are no such restrictions upon legislative action by
provisions of the fundamental law as exist in the
United States ; all legislative powers whatever over
the internal affairs of the Dominion are distributed
between the federal parliament on the one hand
and the provincial legislatures on the other. More-
over there is no residuary sovereignty left to the
provinces, except over ‘ matters of a merely local
or private nature in the province/ For the rest the
provinces have only certain defined and enumerated
powers of legislation assigned to them, in all cases
exclusively, while a general residuary legislative
power over matters of Dominion interest in relation
to all matters not thus assigned to the provincial
legislatures, is conferred upon the Dominion parlia-
ment. Both federal and provincial legislatures
have, not merely power to do certain things, but a
wide power to make laws in relation to the various
broad subject matters of legislation committed to

156 CANADIAN CONSTITUTIONAL LAW.

their jurisdiction. All express powers of legisla-
tion thus conferred are conferred exclusively on the
one or the other, and there are only two subjects
of legislation over which concurrent power exists,
namely, agriculture and immigration; and there
too, as in all other cases, if there is irreconcilable
conflict, Dominion legislation prevails over provin-
cial. Then, again, Canadian legislatures are not to
be considered as mere delegates or agents of the
Imperial parliament from which they derive their
power, but within their respective spheres of juris-
diction they exercise authority as plenary and as
ample as the Imperial parliament in the plenitude
of its power, possessed or could bestow; and can
delegate their authority just as freely. No reserve
of power is recognized either in the people of the
Dominion at large or in the people of the provinces
in particular, any more than in Great Britain,
though it is in the United States. And in indicating
the classes of subjects in relation to which Dominion
or province respectively might legislate, the f ramers
of the British North America Act not only abstained
from imposing fundamental legislative restrictions
of their own, but used vague general language and
overlapping descriptions, thus allowing as free
scope as in the nature of the case was possible, for
that process of organic growth of the national insti-
tutions, in harmony with national needs and cir-
cumstances, which is one great virtue of the Con-
stitution of the United Kingdom; and no attempt
is made to crystallize by statutory enactment the
flexible system of precedents and conventions which
make up the customary law of England. In a word
the Fathers of Confederation did their best to se-
cure to Canadians as a heritage for ever the pre-
cious forms of British liberty. 894

NOTES

i Is CANADA REALLY A FEDERATION? It has been recently
pointed out by the Judicial Committee .of the Privy Council,
speaking through the mouth of Viscount Haldane, that Canada
is not a federation in the strict sense in which the United
States and the Commonwealth of Australia, are federations:
that the natural and literal interpretation of the word ” fed-
eration ” confines its application to cases in which self-con-
tained States, while agreeing on a measure of delegation, yet
in the main continue to preserve their original Constitution:
that in the preamble of the B. N. A. Act 1867, which recites
that the then provinces had expressed their desire to be ” fed-
erally ” united into one Dominion with a Constitution similar
in principle to that of the United Kingdom, the word ” fed-
erally ” is used in a loose sense: that in fact the principle
actually adopted by that Act was not that of federation in the
strict sens.e, but one under which the Constitution of the pro-
vinces had been surrendered to the Imperial parliament for
the purpose of being refashioned, with the result of establish-
ing wholly new Dominion and provincial governments with
defined powers and duties, both derived from the statute which
was their legal source, the residual powers and duties being
taken away from the old provinces and given to the Dominion,
a distribution between the Dominion and the provinces which
extends not only to legislative but to executive authority:
Attorney-General for the Commomvealth of Australia v. Co-
lonial Sugar Refining Co. Ltd. [1914] A. C. 237, 252-4; Bon-
anza Creek Gold Mining Co. v. Rex [1916] A. C. 566, 579. Pro-
fessor Jethro Brown (‘The Nature of a Federal Common-
wealth,’ L. Q. R. July, 1914) contends that this reveals an
entirely erroneous view of the nature of a federation, and
confuses federate with confederate unions: and Judge Clement
(Law of Canadian Constitution, 3rd ed., p. 337) says, ‘The true
federal idea is clearly manifest, to recognize national unity
with the right of local self-government; the very same idea
that is stamped on the written Constitution of the United
States/ And in a famous passage in the judgment of the
Privy Council in Liquidators of the Maritime Bank of Canada
v. Receiver-General of New Brunsivick [1892] A. C. 437, 441-2,
Lord Watson, delivering judgment, says: “The object of the
Act was neither to weld the provinces into one nor to subor-
dinate provincial governments to a central authority, but t
create a federal government in which they should all be

158 CANADIAN CONSTITUTIONAL

represented.” See, also, as to federation properly so called,
Bryce’s Studies in History and Jurisprudence (ed. 1901), pp. 392-
3 ; 408-9.

2 These Orders-in-Council are set out verbatim in the Ap-
pendix ‘to Lefroy’s “Canada’s Federal System,” and Cle-
ment’s ” Law of the Canadian Constitution.” In their judg-
ment in Attorney-General for British Columbia v. Attorney-
General -for Canada [1914] A. C. 153, 163, the Privy Council
state the history of the Constitution of British Columbia.

s These Orders-in-Council and statutes will be found cet
out in extenso in the Appendices to Canada’s Federal System,
and Clement’s Law of the Canadian Constitution. The Yukon
Territory was constituted a separate Territory by the Act of
1898, 61 Viet. c. 6, D., amended by the Act of 1901, 1 Edw. VII.
c. 42, D. See, also, Constitutional Status of N.-W. Territories,
4 C. L. T. 1, 49.

* Clement has a useful chapter on the constitutional history
of the North-West Territories, op. cit., pp. 847-862. Munro’B
Constitution of Canada (Cambridge, 1889) in ch. 2 contains a
short and useful statement of the constitutional history of the
Canadian provinces.

Other works dealing unth the Constitution of Canada are:
” Canada’s Federal System, being a Treatise on Canadian Con-
stitutional Law under the British North America Act,” A. H. F.
Lefroy, Carswell Co. Ltd., Toronto, 1913 ; ” Leading Cases in
Canadian Constitutional Law/’ A. H. F. Lefroy, Carswell Co.
Ltd., Toronto, 1914; ” The Canadian Constitution,” E. R. Cam-
eron, Butterworth & Co., 1915; “Legislative Power in Canada,”
A. H. F. Lefroy, The Bryant Press, Toronto, 1898 (out of print) ;
” Parliamentary Procedure and Government in Canada,” J. G.
Bourinot, 2nd ed., Montreal, 1892; “Documents Illustrative of
the Canadian Constitution,” William Houston, Toronto, 1891;
” Confederation Law of Canada,” G. J. Wheeler, London, 1897 ;
” Documents of the Canadian Constitution,” W. P. M. Ken-
nedy, Oxford University Press, 1918.

B All these British North America Acts are printed in
extenso in the appendix to “Canada’s Federal System.”

6 Maple Leaves, at p. 37, being a paper on Responsible Gov-
ernment in Canada, by J. G. Bourinot, 1890-1.

ea B. N. A. Act, 1867, sec. 51. As to th.e words “aggregate
population of Canada” in this section, see Attorney-General of
Prince Edward Island v. Attorney-General for the Dominion,
[1905] A. C. 37. By 51 (a) added by Imp. B. N. A. Act, 1915,
s. 2, a province is always to be entitled to a number of members
in the House of Commons not less than the number of senators
representing such province.

NOTES. 159

7 Pop.e’s article on Federal Government in ” Canada and its
Provinces,” p. 297. See, also, p. 60, and n. 40, infra. As to the
Dominion Senate, see Pope, Hid. p. 281. See as to Oaths Bill,
Keith’s R. G. in D. p. 1131.

8 1 owe this convenient expression “Crown (Dominion)”
to signify the Crown as represented by the Dominion Govern-
ment, as distinguished from the “Crown (Imperial)” and “the
Crown (provincial)” to Judge Clement.

sa The Supreme Court Act provides: “The judgment of
the Court shall, in all cases, be final and conclusive, and no
appeal shall be brought from any judgment or order of the
Court to any Court of Appeal established by the Parliament of
Great Britain and Ireland, by which appeals or petitions to His
Majesty in Council may be ordered to be heard, saving any
right ivhich His Majesty may ~be graciously pleased to exercise
by virtue o/ his royal prerogative. 1 As to criminal cases, sec.
1025 of the Dominion Criminal Code, R. S. C. 1906, c. 146, pur-
ports to forbid appeals to the Privy Council. The Judicial Com-
mittee has not, apparently, passed upon the effect of this sec-
tion to bind the Royal Prerogative. See Toronto Railway Com-
pany v. The King, [1917] A. C. 630; and c/. Keith’s Imperial
Unity, pp. 367-9.

They will be found discussed at some length in the intro-
ductory chapter to the present writer’s work on Legislative
Power in Canada.

10 PARAMOUNT AUTHORITY OF THE IMPERIAL PARLIAMENT.
Thus in Smiles v. Belford, 23 Grant, (U. C.) 590, 1 O. A. R.
436, it was held that Imp. 5-6 Viet. c. 45, as to copyright, which
by section 29 was extended to every part of the British Do-
minions, applied to Canada notwithstanding No. 23 of eecflon
91, B. N. A. Act, 1867, which assigns power over copyright to the
Dominion parliament, and an injunction was granted to the
holder of an English copyright under the Imperial Act to restrain
a Canadian reprint. And see Routledge v. Low, L. R. 3 H. L.
100, also a case of copyright.

The Canadian power over copyright in view of Imperial
Acts and treaties has been the subject of much discussion and
negotiation between the Dominion and Imperial Governments.
Its course may be followed in Dom. Sess. Pap. 1875, No. 28;
1890, No. 35; 1892, No. 81; 1894, No. 50; 1895, No. 81; 1896, No.
8, b.; Lefroy’s Legislative Power in Canada, pp. 225-31; Keith’s
Responsible Government in the Dominions, Vol. Ill, pp. 1216-
1237. The new Imperial Copyright Act, 1911, is expressed not
to extend to a self-governing Dominion unless declared by the
legislature of that Dominion to be in force therein. It has not
yet been accepted in Canada.

So, again, in Reg. v. College of Physicians, etc., 44 U. C. R.
564, it was held that the Imperial Medical Act of 1868 applied

160 CANADIAN CONSTITUTIONAL LAW.

to Canada, and overrode the provincial Act of 1874 as to the
examination of applicants for registration as medical prac-
titioners in Ontario.

It is, however, unnecessary to cite the numerous cases
wherein the supremacy of the Imperial parliament is recog-
nized. The matter is beyond dispute, and the (Imp.) Colonial
Laws Validity Act, 1865, is a clear statutory recognition of it.
As to the origin of this Act, see Poley’s Federal Systems, pp. 209-
210. Reference, may, however, be made on the subject to Todd’s
Parl. Gov. in Brit. Col. (2nd ed.) c. 7; Lewis’ Essay on Gov-
ernment of Dependencies, .ed. 1891, at pp. 91-2, 155-6 ; Pro-
fessor A. V. Dicey in L. Q. R., Vol. XIV, p. 198; Imp. 6 Geo.
Ill, c. 12; 31 Geo. III. c. 31, s. 46. See also Cullender Sykes &
Co. v. Colonial Secretary of Lagos [1891] A. C. 460, 466-7; New
Zealand Loan and Mercantile Agency Co. [1898] A. C. 349, at
pp. 357-8. The repeal or amendment by the British parliament
of an Imperial Act extending to a colony may, if proper con-
struction so requires, be operative therein: Reg. v. Mount
(1875) L. R. 6 C. P. 283.

For an appeal since Confederation by a provincial Govern-
ment to the supreme jurisdiction of the Imperial parliament,
see Dom. Sess. Pap. 1877, No. 86.

Thus the view expressed by a few judges that ” exclus-
ively ” in sections 91 and 92 B. N. A. Act 1867, means exclus-
ively of the Imperial Parliament, is entirely overruled by au-
thority. See for such view Reg. v. Taylor, 36 U. C. R. 183;
Holmes v. Temple, 8 Q. L. R. 351. It is expressly referred to
and disapproved of in Angers v. Queen Ins. Co., 16 Can. L. J.
204; Smiles v. Belford, 1 O. A. R. 442, 447, 448; Tai Sing V.
Maguire, 1 B. C. (pt. 1) 107.

A contention was advanced on behalf of the Dominion Gov-
ernment by Sir J. Thompson in the course of negotiations with
the Imperial Government as to copyright, that it is in the power
of the Dominion parliament and provincial legislatures respec-
tively to repeal Imperial statutes passed prior to Confederation
and dealing with any of the subjects within the legislative pow-
ers granted to them by the B. N. A. Act: Dom. Sess. Pap. 1890,
No.’ 35. But the Imperial Government has expressly dissented
from it, pending a decision on the point by the Judicial Com-
mittee of the Privy Council, Dom. Sess. Pap. 1892, No. 12 ; and
it is opposed to the decision of the Ontario Court of Appeal In
Smiles v. Belford, 23 Grant 590, 1 O. A. R. 436. See, however,
Imperial Book Co. v. Black (1905), 35 S. C. R. 488. See -further
as to it some articles on Federal Government in Canada, 9
Can. L. T. 193, 198; Todd’s Parl. Gov. in Brit. Col. (2nd ed.) p.
502; and Gordon v. Fuller, 5 U. C. (O.S.) 182, 187, 192, 193, The
intention of an Imperial Act to apply to self-governing colonies
must be clearly expressed or implied; and in practice the para-
mount power of legislation by the Imperial Parliament is

NOTES. 161

only exercised by Acts conferring constitutional powers, or deal-
ing with a limited class of subjects of special Imperial or inter-
national concern, such as merchant shipping. Cf. despatch of
Lord Carnarvon of Oct. 18th, 1875: Hodg. Dom. and Prov.
Legisl. 67; and Dom. Sess. Pap. 1890, No. 35, p. 8. And see as
to the whole subject of this note Lefroy’s Legislative Power in
Canada, pp. 208-31; and Canada’s Federal System, pp. 51-58.
Keith (op. cit. Vol. 2, pp. 1003-1031) has a chapter upon the
general subject of ‘ Imperial control over Dominion adminis-
tration and legislation.’ Imperial control over Canadian (Do-
minion) legislation may be exercised in two ways, either by
Bills being reserved for the Royal assent, or, which is equiva-
lent thereto, containing a suspending clause until called into
force by Order in Council, or by disallowance within the two
years allowed. As to Imperial control over the internal affairs
of the Dominions, Mr. Keith deals with that: op. cit. Vol. II.
pp. 1032-1053, and shows that there has been a practically com-
plete abnegation of Imperial control since the grant of parlia-
mentary responsible government. See reports and Imperial
despatch.es relating to Imperial supervision over Dominion legis-
lation collected, Hodg. Prov. Legisl. 1867-1895, pp. 6-60, and
infra, n. 13. As to Imperial interference to protect rights of
foreigners, see infra, n. 13, and, also, infra, n. 40.

11 For more detailed information as to the pre-confederation
Constitutions and constitutional history of the several Cana-
dian provinces, see the return to an address of the Dominion
House of Commons for copies of the charters or Constitutions
granted by the Crown or the Imperial Parliament to the cev-
eral colonies: Dom. Sess. Pap. 1883, No. 70, printed also in an
appendix to Vol. 3 of Cartwright’s Cases ; Munro’s Constitu-
tion of Canada, pp. 13-39, 313-24 ; Clement’s Canadian Consti-
tution, 3rd ed. pp. 316-334. See, also, Professor Kennedy’s
Historical Introduction, supra.

12 Supra, p. 47.

is Mr. A. B. Keith, in his Responsible Government in the
Dominions, has a chapter (Vol. Ill, Pt. V, c. XII) on ‘ Imperial
Legislation for the Dominions’ in which these statutes are
mentioned, and their purport briefly stated. He there says:
‘the general rule regarding Imperial legislation is that it will
not be passed save where it is necessary for the satisfactory
carrying out of foreign policy and treaty obligations or other
matters of Imperial interest, in which either uniformity, or
extra-territorial application is required.’ Several of such Acts
provide for Imperial co-operation in judicial matters. One very
important function of the Imperial parliament, Mr. Keith points
out, is the validating of laws- invalidly passed by Colonial leg-
islatures. In 1907 a final ex post facto validation was given by
7 Ed\v. VII, c. 7 (Imp.) to every Act passed by a colonial or

C.C.L. 11

162 CANADIAN CONSTITUTIONAL LAW.

state parliament if assented to by the Governor and not dis-
allowed, or reserved and assented to by the Crown, whether or
not the proper forms had in .each case been adopted. See, also,
R. S. 0. 1897, Vol. Ill, Appendix Pt. IV, where is to be found
a Table of ‘Imperial Statutes (other than those relating to
criminal law introduced by the Quebec Act, 1774) appearing
to’ be in force in Canada ex proprio vigore at the end of 1901.’
It is stated in a note that this table is not to be considered as
exhaustive, or exclusive, but that it is intended for convenience
of reference, See, further, as to this, n. 27 infra.

u Trimble v. Hill (1879) 5 App. Cas. 342.

^Macdonald v. Macdonald (1886) 11 O. R. 187; Jacobs \.
Beaver (1908) 17 O. L. R. 496, 498-9,, 501; McDonald v. Elliott
(1886) 12 0. R. 98; Gentile v. British Columbia Electric R. W.
Co. (1913) 18 B. C. 307; McDonald v. British Columbia Elec-
tric R. W. Co. (1911) 16 B. C. 386. C/., also, Charbonneau v.
Pagot (1917) 11 W. W. R. 1327, a Saskatchewan case. In Coul-
son v. O’Connell (1878) 29 U. C. C. P. 341, a Canadian decision
being upon a point of practice, was adhered to by the full
Court though placing a construction on an Ontario statute dif-
ferent from that put upon substantially similar language in an
English Act by the English Courts.

^Geiger v. Grand Trunk R. W. Co. (1905) 10 0. L. R.
511, 514; Henderson v. Canada Atlantic R. W. Co. (1898) 25 0.
A. R. 437, 444-5.

17 Doe d. Anderson v. Todd (1845) 2 U. C. R. 82, 83 seq.,
90 seq.; Shea v. Choat (1836) 2 U. C. R. 211, 221; Blacks. 1
Comm. 107; Cooper v. Stuart (1889) 58 L. J. P. C. 93, 96, where
Lord “Watson says, after citing the above passage in Black-
stone: “If the learned author had written at a later date he
would probably have added that as the population, wealth and
commerce of the colony increase, many rules and principles
of English law which were unsuitable to its infancy will gradu-
ally be attracted to it; and that the power of remodelling its
law belongs also to the colonial legislature.”

^Regina v. Roblin (1862) 21 U. C. R. 352, 356; Lawless v.
Chamberlain (1889) 18 O. R. 309; Eraser v. Kirkpatrick
(1907) 6 Terr. L. R. 403, 407; Hodgins v. McNeil (1902) 9 Gr.
305, 309.

^Reg. v. McCormick (1859) 18 U. C. R. 131, where it was
held that the Nullum Tempus Act, 9 Geo. III. c. 16, was in
force in Ontario, but did not apply to the waste lands of the
Crown.

20 Shea v. Choat (1836) 2 U. C. R. 211, 221.

a* S. v. 8. (1877) 1 B. C. (pt. 1) 25; Corporation of Whitby
v. Liscombe (1876) 23 Gr. 1.

NOTES. 163

v. Row (1864) 14 U. C. C. P. 307; Le Syndicat
Lyonnais v. McOrade (1905) 36 S. C. R. 251; Hesketh v. Ward
(1867) 17 U. C. C. P. 667.

23 Judge Clement, in his Canadian Constitution (p. 1060
seq.), has made a useful collection of cases in the various pro-
vincial Courts holding English statutes from Magna Charta
onwards in force, or not in force, in their respective provinces.

24 Uniacke v. Dickson (1848) James 287, 291. Haliburton,
C.J., there lays down that “Every year should render the
Courts more cautious in the adoption of laws that had never
previously been introduced into the colony”; and that “we
must hold it to be quite clear that an English statute is ap-
plicable and necessary for us before we decide that it is in
force here.” The principles thus laid down in this case were
quoted and acted upon in Smyth v. McDonald (1863) 5 N. S.
274, 278, and The Queen v. Porter (1888), 20 N. S. 352, 357; also
in Reg. v. Burden <1861), 5 N. S. (1 Oldr.) 126. The Statute of
Uses, for example, has been held in force in Nova Scotia: Shey
v. Chisholm (1853) 2 N. S. 52, as it has also been in New Bruns-
wick: (1836) Doe d. Hanington v. McFadden, 2 N. B. 260,
and in Manitoba: Sinclair v. Mulligan (1886) 3 Man. 481, 5
Man. 17. It has always been accepted in Ontario as in force
without question. But the Statute of Enrolments, 27 Hen. VIII,
c. 16, has been held not in force in Nova Scotia: Berry v. Berry
(1882) 16 N. S. 66, 76; nor in Manitoba: Sinclair v. Mulligan
(1886) 3 Man. 481, 490-1, 5 Man. 17; but, has been held to be in
force in New Brunswick: Doe d. Hanington v. McFadden,
supra. Cf. Clement’s Canadian Const. 3rd ed. pp. 280-1.

25 (1817) 2 Mer. 143.

26 Thus this principle was applied in Doe d. Hanington v.
McFadden (1836) 2 N. B. 260; and in Kavanagh v. Phelon
(1842) 1 Kerr. 472. Several English statutes regulative of the
practice in the Courts at Westminster have been accepted in
New Brunswick as operative within the province in relation
to the Superior Courts there: Clement op. cit. p. 282. So in
Ontario: Whitby v. Liscombe (1876) 23 Gr. 1, 14.

27 in Doe d. Anderson v. Todd (1845) 2 U. C. R. 82, 86 Rob-
inson, C.J., said: “Looking in the first place at the words of
this statute” (U. C. 32 Geo. III. c. 1), “it is my opinion that
they do not place the introduction of the English law on a
footing materially different as regards the extent of the intro-
duction from what would have been, or rather from what was,
the effect of the proclamation of October 7th, 1763, in those
territories to which it extended, or from the footing on which
the laws of England stand in those colonies in which they are
merely assumed to be in force on the principles of the common
law by reason of such colonies having been first inhabited and

164 CANADIAN CONSTITUTIONAL LAW.

planted by British subjects.” He further says (p. 87): “These
words” (sc. the words of the section) “it must be remarked,
are not such as expressly introduce the whole civil law of
England; they seem rather intended to be more prudently
limited to the purpose of giving the principles of English law,
modified, of course, as they may have been by statutes, as the
rule of decision for settling questions as they might arise rela-
tive to property and civil rights.” See also per McLean, J., S.C.,
at p. 90. In this case the Mortmain Act (Imp.), 9 Geo. II. c.
36, was held to be in force in Ontario, but only on the ground
of its implied recognition by the colonial legislature. It has been
held not in force in New Brunswick: Doe d. Hazen v. Rector of
St. James (1879) 2 P. & B. 479. Cf. also as to 32 Geo. III. c. 1,
Baldwin v.Roddy (1833) 3 U. C. R. (O.S.) 166, 169; Corporation
of Whitby v. Liscomle (1876), 23 Gr. 1, 37. In the recent case of
Keewatin Power Co. v. Kenora (1908) 16 0. L. R. 184, 189,
Moss, C.J., with, apparently, the concurrence of the rest of the
Court, expressed great difficulty in acceding to the above dicta
of Robinson, C.J., and said that he could ” not but think that,
under a statute framed as ours, a much larger body of the law,
especially of the broad and well understood doctrines and prin-
ciples of the common law with regard to property and civil
rights, is introduced than is to be deemed to be carried with
them by the settlers or colonists of a new uninhabited country.”
And he adds: “To what extent such an enactment introduces
local Acts of parliament, or local customs or usages not forming
part of the common law, or how far they are to be deemed
modified by circumstances is another question.” This judgment
held that the English common law rule that a grant of iand
bordering upon a non-tidal stream or body of water carries with
it the grantor’s title to the middle thread of the stream unless
there be clear words of exclusion, and that there is no public
right of navigation over such non-tidal waters, applies in On-
tario. S-ee as to this case Clement’s Canadian Constitution,
3rd ed. ipp. 291-2. The Statute of Frauds has always been held
in force in Ontario. It is not in force in Manitoba because not
enacted till seven years after the date of the Hudson Bay Com-
pany’s Charter: Sinclair v. Milligan (1886) 3 Man. 481, 491, see
infra, n. 32. The Act of U. C., 32 Geo. III. c. 1, introduced the
laws of marriage as existing in England at that date (except
some clauses of 26 Geo. II. c. 33), and so much of the canon
law as had been adopted by the law of England: Hodgins v.
McNeil (1862) 9 Gr. 307; Regina v. RoWin (1862) 21 U. C. R.
355; O’Connor v. Kennedy (1888), 15 0. R. 22; Lawless v.
Chamberlain (1889) 18 O. R. 309. The Statutes of Elizabeth,
13 Eliz. c. 5, and 27 Eliz. c. 4, as to fraudulent and voluntary
conveyances, have always been held in force in Ontario; also
in Nova Scotia: Tarratt v. Sawyer (1835), 1 Thomps. (2nd ed.)

NOTES. . 165

46; Moore v. Moore (1880) 1 R. & G. 525; Graham v. Bell (1884)
5 R. & G. 90. , Cf. Clement op. cit. pp. 288-292. In 1902, the
Ontario legislature by 2 Edw VII., c 13, revised, classified, con-
solidated and published as Vol. Ill of R. S. O. 1897, all such
Imperial statutory enactments as had by the Act of 1792, or by
later provincial Acts, been incorporated into the statute law of
the province, enacting that such consolidation ‘ shall be
deemed to include and comprise all provisions contained in any
Imperial statute relating to property and civil rights which
have heretofore been incorporated into the statute law of this
province,’ and which remain in force, except those referred to
in Schedule C. This last schedule names eight statutes, not
repealed, revised, or consolidated but left standing as they
were, amongst them being the Habeas Corpus Act, 31 Car. 2,
c. 2, the Lord’s Day Act, 21 Geo. III. c. 49, and two statutes
relating to British subjects born abroad; and in addition all
Acts or parts of Acts in force relating to marriage, and to ec-
clesiastical property. This then is a legislative declaration of
what Imperial enactments are now incorporated in the statute
law of Ontario (other than those in force proprio vigore, see
supra, p. 50), although s. 12 provides that the consolidation of
an Imperial enactment in this Vol. Ill of the R. S. O. 1897, is
not to be construed as a declaration that it was in force im-
mediately before the coming into force of the said Revised
Statutes. When the Ontario statutes were again revised in
1914, the statutory provisions contained in this volume of the
R. S. O., so far as not in the meanwhile repealed, were distri-
buted as provisions in other Ontario statutes in eadem materia,
excepting certain which are set out in an appendix, and com-
prise inter alia, the provisions of the Statute of Monopolies (21
Jac. 1, c. 3), the Statute of Quia Emptores (18 Edw. I., c. 1), and
the Statute of Uses, 27 Hen. VIII, c. 10.

28 There is no provision in the Code abrogating local enact-
ments of criminal law existing at Confederation in the differ-
ent provinces not repealed or altered since Confederation, nor
inconsistent with the provisions of the Code.

29 See proclamation of Governor Douglas of Nov. 19th,
1858, and B. C. Act No. 70 of 34 Viet. (1871). The English
Matrimonial Causes Act of 1857 was held to have been thus
introduced: 8. v. 8. (1877) 1 B. C. (pt. 1) 25, and governs the
proceedings for the British Columbia Divorce Court: Watts v.
Watts, [1908] A. C. 573. See Clement op. cit. pp. 296, 544-5.
So, also, in Manitoba: Walker v. Walker (1918), 39 D. L. R.
731; and in Saskatchewan, Fletcher v. Fletcher (1918). The
law of England as to the right of the public to fish in tidal
waters is the law of the province, subject only to regulation by
the Dominion parliament: Attorney-General for British Colum-

166 CANADIAN CONSTITUTIONAL LAW.

Ma v. Attorney-General for Canada [1914] A. C. 153. A great
many old English statutes are printed with R. S. B. C. 1911,
e.g., Magna Charta, the Habeas Corpus Acts, The Thellusson
Act, the Dower Act of 1833. It is a curious fact that Ontario,
New Brunswick, Nova Scotia, and Prince Edward Island have
never adopted the provision of the English Dow.er Act, 1833, as
to no widow being entitled to dower out of any land which has
been absolutely disposed of by her husband in his life time or
by will. The Imp. Dower Act, 1833, is not in force in Manitoba,
Alberta, Saskatchewan, the Yukon Territory, or the Northwest
Territories; but a widow is to have the same right in her de-
ceased husband’s land as if it were personal property: 57-58
Viet. c. 28, s. 6, D. (R. S. C. 1906, c. 100, s. 12) ; R. S. M. 1913,
c. 54, s. 19 ; and see Manitoba Dower Act, 1918, Alberta Dower
Act, 1917. For the Order in Council admitting British Co-
lumbia into the Dominion, see Dom. Stats. 1872′, pp. Ixxxii-
Ixxxv; Canada’s Federal System, p. 844.

30 Dominion statutes 1872, pp. Ixiii-lxvii; Canada’s Federal
System, p. 838. As to laws in force in N.-W. Territories, see
4 C. L. T. at pp. 12-15.

31 This enactment has been uniformly treated as introduc-
ing into Manitoba the law of England as it stood at the date
mentioned: Clement’s Canadian Constitution, p. 295. As to the
reception of English law into the Northwest Territories, see
Fraser v. Kir upatrick (1907) 6 Terr. L. R. 402, 5 W. L. R. 287;
Syndicat Lyonnais v. McGrade (1905) 36 S. C. R. 251; Brand
v. Griffin (1908), 1 Alta. 510. As to the above section of the
North-West Territories Act having introduced the (Imp.) Di-
vorce and Matrimonial Causes Act, 1857, into the Northwest on
the same construction as applied to similar words by the Privy
Council in Watts v. Watts, [1908] A. C. 573, in the case of Brit-
ish Columbia, and that, therefore, the Supreme Courts of
Manitoba, Saskatchewan, and Alberta are free to exercise the
Divorce jurisdiction given by that Act, see Article by Mr. Bram
Thompson, 37 C. L. T. 687. tSee, also, i&., pp. 679-680; 807-9.
Contra, see 53 C. L. J. 362. The Manitoba Courts have now so
held: Walker v. Walker (1918), 39 D. L. R. 731, and likewise
the Saskatchewan: Fletcher v. Fletcher (1918), not yet reported.

32 Sinclair v. Mulligan (1888) 3 Man. 481, 5 Man. 17, con-
tains interesting judgments as to what was the law in what
is now the province of Manitoba at different times. The
Statute of Uses was held to bp in force, but not the Statute
of Enrolments (26 Hen. VIII, c. 10), because inapplicable. Other
cases dealing with English law in force in Manitoba are Re
Bremner (1889) 6 Man. 73; Re Tait (1890) 9 Man. 617;
Thomson v. Wishart (1910) 19 Man. 340, in which last case
it was held that the criminal law of maintenance and cham-

NOTES. 167

perty was not in force, as these had become obsolete as crimes
in England in 1870.

ss Tlie Scope and Interpretation of the Civil Code of Lower
Canada, by P. P. Walton (Montreal, 1907), p. 34.

34 Wai ton op. eit. p. 130, seq. The Quebec Civil Code (ed.
1898) s. 1206 provides, in an .enactment originating in the
Quebec Act 25 Geo. Ill, c. 2, s. 10: ‘When no provision is
found in this code for the proof of facts concerning commer-
cial matters recourse must be had to the rules of evidence
laid down by the laws of England.’

35 Walton op. cit. pp. 108-9; Article by P. B. Mignault on
UAutorite Judiciaire, in La Revue Legale, vol. 6, p. 145: Article
on The Legal System of Quebec, by F. P. Walton, in 13 Co-
lumbia Law Rev. p. 213.

ss S-ee In re Johnson, Roberts v. Attorney-General [1903]
1 Ch. 821, per Parwell, J., at p. 389; Attorney-General of Canada
v. Cain [1906] A. C. 542, at pp. 545-6, as to which, see n. 203,
infra. For a striking illustration of this unity of the Crown,
see Williams v. Howarth, [1905] A. C. 551. See also In re Sam-
uel [1913 [ A. C. 514; Keith, R. G. in D., Vol. III. p. 1456. On
the general subject of petitions of right, see Keith op. cit. p.
1626. As to the general relation of the Crown to the Courts,
see the very important case of The Eastern Trust Co. v. McKen-
zie, Mann & Co. [1915] A. C. 750, and Clement (L. of C. C. 3rd
ed. pp. 589-595). As to province being unable to bind Crown
(Dom.), see Gauthier v. The King (1918), 56 S. C. R. 176. And
see Note to S. C. in 40 D. L. R. 353.

37 The Queen v. Bank of Nova Scotia (1885), 11 S. C. R. 1,
at p. 17. See, also, Attorney-General of Canada v. Attorney-
General of Ontario (1894), 28 S. C. .R. 458, at p. 469; and the
two Australian cases. The King v. Sutton (1908), 5 C, L. R. 789,
and Attorney-General of New South Wales v. Collector of Cus-
toms (1908) ibid. 818. For the distinction between majora
and minora regalia, see Blacks. Comjn. (ed. 1770 in Osgoode
Hall library), I. 241; and infra n. 41 ad ex.

ss THE PREROGATIVE OF HONOUR is not one of those the exer-
cise of which is delegated to the Governor-General: Todd’s
Parl. Gov. in Brit. Col. 2nd ed. p. 313. It is essentially one
for the direct exercise of the Crown (Imperial). As to the
practice at the present time in regard to conferring Imperial
honours upon Canadians, see Canada’s Federal System, p. 22,
n. 2 b. In Canada the provincial governments do not recom-
mend names for Imperial honours, though in Australia the
State governments do: Keith’s R. G. in D., Vol. 2, p. 808;
Article in Jl. of Soc. of Comp. Legisl. N.S., 1903, p. 125. Upon
the subject of ” Honours ” generally, including precedence, see
Keith op. cit. Vol. Ill, pp. 1299-1315. As to precedence the law
officers of the Crown definitely advised on April 30th, 1859,

168 CANADIAN CONSTITUTIONAL LAW.

that it is proper for a colonial governor to regulate precedence
(in default of special instructions) according to local condi-
tions; precedence by birth or title in the United Kingdom
does not automatically convey similar precedence in a colony:
Keith op. Git. Vol. Ill, p. 1624. Judge Clement (L. of C. C. 3rd
ed., pp. 116-164) devotes a long chapter to the royal preroga-
tives in relation to the colonial dominions.

THE PREROGATIVE OF MERCY. This is specially delegated to trie
Governor-General in his instructions, but not since 1905 as to of-
fences against provincial laws: Keith op. cit. Vol. 1, pp. 1565-6.
And on whole subject, see ibid. Vol. 3, pp. 1386-1422. It would
seem that, with regard to the exercise of the power of pardon by
the Governor-General of Canada, though the advice of his
ministers is necessary in capital cases, the Governor-General
is not bound to follow that advice: Framework of Union (Cape
Town, 1908), citing from a despatch by the Colonial Secretary
to Lord Dufferin when Governor-General of Canada, in which
it is said ‘ Advice having thus been given to th.e Governor,
he has to decide for himself how he will act.’ The following
references in connection with this prerogative may also be of
use: Can. Sess. Pap. 1869, No. 16; ibid. 1875, No. 11; ibid. 1877,
No. 13; Ont. Sess. Pap. 1888, No. 37; Imp. Hans. April 16th,
1875 (3rd Ser. Vol. 223, p. 1065 seq.) ; Imp. Parl. N. Am. 1879,
No. 99. As to the Shortis case, where the Governor-General of
Canada pardoned, the Council abstaining from advising one way
or the other, see 32 C. L. J. 53.

PREROGATIVE OF JUSTICE. As to the general subject of
the prerogative of the Crown to hear appeals from the
Courts of the Dominion, see Keith op. cit. Vol. Ill, p. 1357,
seq.; Keith’s Imperial Unity, pp. 367-388; and infra, p. 169,
n. 41.

39 Liquidators of the Maritime Bank of Canada v. Re-
ceiver-General of New Brunswick [1892] A. C. 437. See, also,
Queen v. Bank of Nova Scotia (1885), 11 S. C. R. 1; Exchange
Bank v. The Queen (1886), 11 App. Gas. 157; Legislative Power
in Canada, pp. 72-86.

40 B. N. A. Act 1867, s. 56. Mr. Keith discusses Imperial con-
trol over Dominion legislation in R. G. in D., Vol 2, pp. 1007-1021,
1031, 1219-1222. He says that the exercise of the power was
threatened in one case of a private Bill unless the promoters al-
lowed adequate opportunity for the consideration of objections
by the government department concerned, and adds that ‘ the use
of the refusal of the royal assent on the advice of ministers seems
clearly proper in a suitable case like that.’ There is now no Im-
perial veto power over the Acts of Canadian provincial legisla-
tures. As to reservation of Bills for the pleasure of the Crown
(Imperial) and refusal of assent by it, see Keith’s Imperial
Unity and the Dominions, pp. 143-9.

NOTES. 169

41 Queen’s Counsel Case, [1898] A. C. 247, 23 O. A. R. 792.
See also n. 42. A colonial Act assented to by the Crown through
its authorized representative can regulate and interfere with the
exercise of the prerogative of the Crown as the fountain of justice,
so far as the rights of those under its jurisdiction are concerned,
as by restricting the right of appeal to the King in Council:
Cuvillier v. Aylurin (1882), 2 Kn. P. C. 72; In re Wi Matua’s
Will, [1908] A. C. 448; CusUng v. Dupuy (1880), 5 App. Cas.
409. But in addition to cases which are brought before the
Judicial Committee of the Privy Council on appeal, it is pro-
vided by sec. 4 of Imp. 3-4 Wm. IV. c. 41, that His Majesty
may refer to the Judicial Committee any such matters what-
soever other than appeals as His Majesty shall think fit, and
the Committee shall thereupon hear and consider the same,
and shall advise His Majesty thereon, as in the case of regular
appeals. See as to this Keith op. cit. Vol. II T , p. 1382, seq.
Mr. Keith seems to think that the effect of this is that an
appeal to the Privy Council cannot be absolutely barred ex-
cept by an Imperial Act: Ibid. Vol. Ill, p. 1357 seq. Se.e, also,
Clement L. of C. C., 3rd ed., pp. 157-164, who considers the
question whether a colonial legislature has power to Legislate
in derogation of the Crown’s prerogative in connection with
Colonial appeals not yet definitely decided, but inclines to the
view that they have such power. As to the constitution of
the Judicial Committee of the Privy Council, see Keith op.
cit. Vol. Ill, pp. 1373-1383. And see IMd. p. 1526 seq. for a
concise account of the discussion at the Imperial Conference
of 1911 of a new Imperial Court of Appeal. As to the distinc-
tion between majora and minora regalia, and the mistaken
idea that only the minora regalia can be regulated by local
colonial law, see Keith op. cit. Vol i. pp. 362-3; Legislative
Power in Canada, pp. 79, 182, n. 2; Chitty on the Prerogative
p. 25; Chalmer’s Opinions, pp. 50, 373. C/., also, Keith’s Imp.
Un. Ch. XIV.

42 Liquidators of the Maritime Bank of Canada v. Receiver
General of New Brunswick [1892] A. C. 437. For the authori-
ties generally see Legislative Power in Canada, pp. 90-122. It
would seem that the Lieutenant-Governor of the North West
Territories has only power to approve or reserve measures,
but none to withhold assent: Hodgins’ Prov. Legisl. 1867-1895,
p. 1279. As to when he should do so, see Ibid, pp. 1276-7. The
B. N. A. Act, 1867, sees. 12, 65, has made a distribution between
the Dominion and the provinces of executive authority which
in substance follows that of legislative powers, subject to cer-
tain express provisions in that Act and to the supreme au-
thority of the Sovereign, who delegates to the Governor-
General and through his instrumentality to the Lieutenant-
Governors the exercise of the prerogative in terms defined in
their commissions: Bonanza Creek Gold Mining Co. v. Rex

170 CANADIAN CONSTITUTIONAL LAW.

[1916] A. C. 566, 579. For acts done in their private capacity,
or done qua governor, but beyond their powers as such,
colonial governors are liable to be prosecuted criminally, or
sued civilly, in the Courts of their colony, or in England; but
for acts done qua governor and within their authority as such,
they incur no liability, either ex contractu or in tort: Hill v.
Bigge (1841), 3 Mo. P. C. 465; Musgrave v. Pulido (1880), L. R.
5 App. Cas. 102; Macbeth v. Haldimand (1786) 1 T. R. 172;
Reg. v. Eyre (1868) L. R. 3 Q. B. 487. And see, generally,
Clement’s L. of C. C., 3rd ed. pp. 131-133; and Anson’s Law
and Custom of the Constitution. In the Australian cases of
King v. Governor of the State of South Australia (1907) 4 C.
L. R. 1497, and Horwitz v. Connor (1908) 6 C. L. R. 39 (and
see Electric Development Co. v. Attorney-General for Ontario
(1917) 38 O. L. R. 383, 389) the High Court of the Common-
wealth held that no mandamus lay to the Governor of a State,
or to the Governor in Council, even while performing an act
enjoined upon him by a Commonwealth statute. But for a
mandamus to the Provincial Secretary requiring him to per-
form a purely ministerial duty, see Re The Massey Manufac-
turing Co. (1886) 11 0. R. 446. See, also, 38 C. L. T. See, also,
on the general subject of the representatives of the Crown in Can-
ada, Canada’s Federal System, pp. 25-29. Clement (L. of C. C. 3rd
ed. pp. 589-895) discusses the general subject of the Crown in the
Courts. As to a colonial governor being bound in the exercise
of prerogative power by the constitutional practice of the
colony, see Commercial Cable Co. v. Government of Newfound-
land [1916] A. C. 610.

43 This does not inhibit a statutory increase of powers and
duties germane to the office being imposed on the Lieutenant-
Governor, as, e.g., the power of commuting and remitting of-
fences against the law of the province: Attorney-General of
Canada v. Attorney -General of Ontario (1890) 20 O. R. 222,
247. As to this restriction on the provincial power of amend-
ing the Constitution of the province, see Re Initiative and
Referendum Act (1916), 27 Man. 1.

44 Since 1875, it has been the practice of the Imperial Gov-
ernment to appoint Colonial governors by an instrument em-
bodied in three documents: the Letters Patent, the Commis-
sion, and the Instructions. The Letters Patent define the
duties of the office ; the Commission refers to the terms of the
Letters Patent and contains the formal act of appointment;
whilst the Instructions detail more fully the powers and func-
tions of the office, especially with regard to the appointment
of and dealing with the Executive Council, the rules for as-
senting to, dissenting from, or reserving for the Queen’s pleas-
ure proposed Colonial legislation, and the right to pardon and

NOTES.

171

reprieve offenders: Framework of Union, pp. 82-91, q.v. gener-
ally as to the Governor-General of Canada. See Can. Sess.
Pap. 1906, No. 18, for a Return setting out the Instructions
of Canadian Governors from 1791 to 1867. As to how, in def-
erence to the wishes of the Canadian Minister of Justice in
1876, the Instructions to the Governor-General of Canada were
remodelled so as to omit any mention of the reservation of
special classes of Bills, ‘ but it was clearly intimated that
reservation was not being given up, but merely that reservation
as a fixed rule was abandoned,’ and a case of its use occurred
in 1886, see Keith’s R. G. in D., Vol. II, p. 1010. In 1915, the
Lieutenant-Governor of British Columbia reserved a provincial
Act for the pleasure of the Governor^General on the ground
that it affected aliens in the province: Report of Minister of
Justice of Jan 25th, 1916. The Colonial Laws Validity Act, 1865,
Imp. 28-29 Viet. c. 63, s. 4, expressly provides that a colonial
Act duly assented to by the Governor shall not be affected by
any instructions with reference to such law theretofore given
to such Governor, even though such instructions may be referred
to in the Letters Patent or Instrument authorizing such gov-
ernor to concur in passing or to assent to laws for the peace,
order, and good government of the colony. The theory which
has been sometimes advanced that the Governor-General of
Canada and the provincial Lieutenant-Governors respectively
are entitled mrtute officii, and without express statutory enact-
ment or delegation from the Crown, to exercise the royal pre-
rogatives in such a fashion as to cover the whole of the fields,
both federal and provincial, to which the self-government of
Canada .extends, and which would make viceroys of them in the
full sense, does not appear to be sound. For the measure of their
powers the words of their Commissions, and of the -Federation
Act itself must be looked at. It is quite consistent with this to
hold that executive power is in many situations which arise un-
der the statutory Constitution of Canada conferred by implication
in the grant of legislative power, so that where such situa-
tions arise the two kinds of authority are correlative. See, on
this subject, Bonanza Creek Gold Mining Co. v. The King
[1916] A. C. 566, at pp. 585-7; Canada’s Federal System, pp.
28-29; Keith’s R. G. in D., Vol. II, pp. 564-664; lUd. Vol. I. pp.
105-146; Clement’s L. of C. C., 3rd ed., pp. 360-4. A colonial
Governor should not act on a mere personal discretion against
the views of a responsible Government ; if necessary he should
ask the Imperial Secretary of State for instructions: Keith
op. cit., Vol. II, 1015 n., and the despatch of the S-ecretary of
State for the Colonies to the Governor of Newfoundland quoted
by him at pp. 1042-7. In the case of a Governor of a colony, as
in the case of the King, a dissolution of the legislature without
the advice of ministers is an impossibility: Keith op. cit. Vol.

172 CANADIAN CONSTITUTIONAL LAW.

Ill, p. 1627. On the other hand, no such practice prevails in
the Dominions, as in the United Kingdom, that ministers shall
receive a dissolution whenever they ask for it; Ibid, p. 1460;
also ibid. Vol. I, pp. 182-190. As to dismissal of Ministers by
colonial Governors in Canada and elsewhere, see Keith op. cit.
Vol. I, p. 223 seq., and 237-245. As to Governors exercising the
prerogative power of incorporating companies, see Bonanza
Creek Gold Mining Co. v. The King [1916] A. C. 566, at p. 580.
But see infra n. 287. In an appendix to Vol. Ill of his R. G. in D.,
at pp. 1561-1613, Mr. Keith gives in extenso the forms of letters
patent, instructions, and commissions now issued to governors in
Canada, Australia, South Africa, New Zealand, the Australian
States and Newfoundland.

45 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, at p.
587. As to the Dominion veto power generally, see Canada’s
Federal System, pp. 30-44 ; Legislative Power in Canada, pp.
185-203. Provincial Acts cannot be disallowed in part only;
if an Act is disallowed, it must be disallowed altogether: Hodg.
Prov. Legisl. Vol. I, at pp. 674-5. Partial disallowance is not
unknown in Crown colonies: Keith op. cit. Vol. II, p. 1019. Such
disallowance must be absolute; it cannot be conditional: Hodg.
Prov. Legisl., 1867-1895, p. 1146. The Dominion House of Com-
mons cannot constitutionally interfere by resolution: ibid. pp.
701-2.

46 For examples, see Canada’s Federal System, pp. 33-4 ; and
infra, p. 174, n. 54.

47 See Canada’s Federal System, pp. 34-44; The Corporation
of Three Rivers v. Suite (1882) 5 L. N. 332, at pp. 334-5;
Debates (Canadian) House of Commons, March 1st, 1909.
Vol. 89, pp. 1750-1758; Prov. Legisl., 1899-1900, pp. 5-9, 17-19,
24-36, 44-45, 1901-3, pp. 4, 46; ibid. 1899-1900, p. 52 seq. ; ibid.
1904-5, pp. 91-99, 148-9; Opinion of Mr. A. V. Dicey in reference
to the Disallowance of Provincial Acts as unjust and confis-
catory (1909), 45 C. L. J. 457; In re Companies (1913), 48 S.
C. R. 331, per Idington, J., at p. 381, who says: “When the
legislation proposed would manifestly improperly affect people
elsewhere, or corporations created outside the province such as
Dominion corporations resting upon the residual power of Par-
liament, or those of other provinces, and thus affect the people
of the whole Dominion, surely the .exercise of the power in that
regard ought to be, and to be held, practicable.” The forebod-
ings of Mr. A. A. Dorion, in the Debates before Confederation,
that the federal veto power would be exercised in the interest
of the party in power at Ottawa, do not seem to have been
realized: Egerton and Grant’s Constitutional Documents, pp
451-2.

48 provincial Legislation, 1904-1906, pp. 148-149; Canada’s
Federal System, pp. 40-42.

NOTES. 173

*9 Printed in the ” Times ” of January 23rd, 1899. See ex-
tracts from it in Canada’s Federal System, pp. 45-48. Refer-
ence may be made to an Article on Treaty-making Powers of the
Dominions by Sir C. Hibbert Tupper in Jl. of Society of Compar.
Legisl. (N.S.), Vol. 17, p. 5.

BO Canada’s Federal System, pp. 33-4; 45-48; Keith’s R. G.
in D. Vol. II, pp. 1026-1031; Report of Committee of (Dominion)
Privy Council, April 27th, 1909; Reports o-f Minister of Justice
as to proposed Ontario legislation of October 18th, 1909, and
March 23rd, 1911.

si Cf. Keith, R. G. in D., Vol. II, pp. 739-741, 972; House of
Common Debates, 1910-11, pp. 2769, seq.

52 Canada’s Federal System, pp. 48-49. ^he whole subject
of the immigration of coloured races into the Dominions is
elaborately treated by Keith, R. G. in D., Vol. II, pp. 1075-1100,
who remarks that ‘ No question at present exceeds in difficulty
the question of the relations of the Imperial Government and the
Dominion Governments with regard to the immigration of
coloured persons into the Dominions and their treatment while
there.’ At p. 1081 he quotes from Mr Joseph Chamberlain’s
statesmanlike speech on the subject at the Colonial Conference
of 1897. At p. 1087-1091, Mr. Keith deals especially with legis-
lation in Canada which has caused ‘ serious trouble both as
regards Indians and Japanese,’ and adds ‘ British Columbia
as usual is the cause of the disturbance of peace.’

53 Hodge v. The Queen (1883) 9 App. Cas. 117; Liquidators
of the Maritime Bank of Canada v. Receiver-General of New
Brunswick [1892] A. C. 437; Attorney-General of Canada v.
Cain [1906] A. C. 542, which shows that the same principle
applies as to executive powers: The Queen v. Burah (1878) 3
App. Cas. 889; Powell v. Apollo Candle Co. (1885) 10 App. Cas.
282, at p. 290; Dobie v. Temporalities Board (1882) 7 App. Cas.
136, 146; Union Colliery Co. v. Bryd-en [1899] A. C. 580, 584-5;
Canada’s Federal System, pp. 64-67. Contrast the former infer-
ior status of colonial legislatures fettered in their activities by
irresponsible Executives, and by Legislative Councils the mem-
bers of which were appointed by the Crown, and which had no
complete control over the public revenues, or the civil list, or
the regulation of trade and commerce: Bourinot’s Manual of the
Constitutional History of Canada, ed. 1901, pp. 1-37. In 1870,
speaking of the Jamaica Assembly, the judges of the Exchequer
Chamber say: “We are satisfied that a confirmed Act of the
local legislature lawfully constituted, whether in a settled or a
conquered colony, has as to matters within its competence, and
the limits of its jurisdiction, the operation and force of sov-
ereign legislation, though subject to be controlled by the Im-
perial parliament”: Phillips v. Eyre (1870) L. R. 6 Q. B. 1, 20,

174 CANADIAN CONSTITUTIONAL LAW.

cited Clement’s L. of C. C. 3rd ed. p. 93. In connection with
this subject, it is necessary to cite the recent decision of the
Manitoba Court of Appeal in Re Initiative and Referendum
Act (1916) 27 Man. 1, holding the Manitoba Initiative and Ref-
erendum Act ultra vires on the ground that only provincial
” legislatures ” have powers given them by s. 92 of the B. N. A.
Act, and ” legislature ” connotes, at any rate, a representative
House; and on the ground that the power of amending the pro-
vincial Constitution given by No. 1 o-f section 92, does not
extend to an absolute departure from the principle of the Act in
regard to the provincial Constitutions, by giving the power to
make laws to the body of voters in a referendum, who are not
a ” legislature.” But this case will doubtless be carried to th.e
Privy Council, and see Canadian Law Times for May, 1917, Vol.
37, pp. 334-6.

54 In In re Nakane and Okazaka (1908) 13 B. C. 370, a pro-
vincial Act was held inoperative as against provisions of an
Imperial treaty which had been sanctioned by a Dominion Act
pursuant to its powers under s. 132. Nothing is said in this
section ‘ as to the nature and extent of these obligations in the
event of the Canadian parliament and Government taking no
steps to recognize and meet them. And manifestly no treaty-
making power is conferred by th.e section’: Clement, L. of C. C.,
3rd ed., pp. 134-5. The Canadian Government has accepted the
position that they are bound in respect of any treaties which
were binding on the colonies before federation, so far as regards
such colonies as were bound: Keith, R. G. in D. Vol. II, pp.
992-3. Mr. A. B. Keith (op. cit. Vol. Ill, p. 1122) further says
that s. 132 appears to be interpreted to mean, and must appar-
ently have meant, at least as regards treaties concluded before
1867, that the existence of a treaty, whatever the subject
matter, confers full powers upon the Dominion parliament:
that under constitutional practice the Canadian Government
does not adhere to new treaties where the matter concerned
is one which is within the exclusive legislative competence of
the provincial legislature unless the provincial Governments
consent to such adherence: that adherence must be declared
for the Dominion as a whole, and is constitutionally de-
clared at the (request of the Dominion Government alone.
The whole subject of treaty relations in connection with the
self-governing Dominions is dealt with by Keith, op. cit. Vol.
Ill, pp. 1101-1157. As he there says, there is no real doubt
that treaties made by the Crown are binding on the colonies
whether or not the colonial Governments consent to such trea-
ties; but it is an essential part of the Constitution of the
Empire that so far as is practicable no treaty obligations
shall be imposed without their concurrence on the self-govern-
ing Dominions. At pp. 1126-1130, Keith deals specially

NOTES. 175

with the ratifications of treaties: and at pp. 1114-1122 with com-
mercial negotiations with regard to the Dominions. See, also,
Keith op. cit. Vol. II, pp. 796 et seq.; Legislative Power in Can-
ada, pp. 256-9; Clement, L. of C. C M 3rd ed., pp. 135-6, who cites
Todd’s Parl. Gov. in Brit. Col., .ed. 1880, p. 196.

55 Hodge v. The Queen (1883) 9 App. Cas. 117, 132. Of
course they can delegate no powers which they have not them-
selves got: Liquor Prohibition Appeal, 1895 [1896] A. C. 348, 364.
And see as to Re Initiative and Referendum Act (1916) 27 Man.
1, supra, p. 174, n. 53. See, also, Rex v. Weldon (1914), 18 D. L.
R. (B.C.) 109, 114, where McPhillips, J.A., expresses the opinion
that the Dominion parliament could not confer on a provincial
legislature the power to enact legislation of the nature of
criminal law. Sed qucere.

so Cf., Kerley v. London and Lake Erie Transportation Co.
(1912) 26 O. L. R. 588; Ouimet v. Bazin (1912), 46 S. C. R. 502,
514; Canada’s Federal System, pp. 71-73; Legislative Power in
Canada, pp. 694-5.

8 * See, also, Canada’s Federal System, pp. 74-5.

$*City of Fredericton v. The Queen (1880) 3 S. C. R. 505,
532-3; Russell v. The Queen (1882) 7 App. Cas. 829, 838-40;
Canada’s Federal System, pp. 210-213. But as to its being
proper to construe Acts of parliament giving the Crown power
to invade private rights strictly, see Allen v. Foskett (1876)
14 N. S. W. 456.

59 Russell v. The Queen (1882) 7 App. Cas. 829, 841-2.

GO E.g., a pretended license Act which was in substance a
Stamp Act and indirect taxation: Attorney-General for Quebec
v. Queen Insurance Co. (1878) 3 App. Cas. 1090, as to which
case, see In re Companies (1913) 48 S. C. R. 331, 418; Colonial
Building and Investment Association v. Attorney-General of
Quebec (1883) 9 App. Cas. 157, 165; Union Colliery Co. v. Bry-
den [1889] A. C. 587, in connection with Cunningham v. Tomey
Homma [1903] A. C. 151, 157. See, also, Canada’s Federal Sys-
tem, pp. 76-82. The judges will not entertain allegations that
a private Act was obtained by fraud or improper practices:
Lee v. Bude and Torrington R. W. Co. (1871) L. R. 6 C. P. 576,
582. At pp. 80-81 of Canada’s Federal System, the question is
discussed whether provincial legislation may be ultra vires
because it is attempting to produce piecemeal an aggregate
result which is ultra vires. Cf., Hagarty, C.J.O., in Clarkson v.
Ontario Bank (1888) 15 O. A. R. 166, 181.

ei Madden v. Nelson and Fort Sheppard R. W. Co. [1899]
A. C. 626, 627-8; In re Companies (1913) 48 S. C. R. 331, 341;
Attorney-General of Canada v. Attorney-General of Ontario

176 CANADIAN CONSTITUTIONAL LAW.

(1890) 20 O. R. 222, 246, 19 O. A. R. 31, 38; Legislative Power
in Canada, pp. 386-392.

wL’Union St. Jacques v. Belisle (1874) L. R. 6 P. C. 31;
Hodge v. The Queen (1883) 9 App. Cas. 117, 131-2; Liquidators
of Maritime Bank v. Receiver-General of New Brunswick
[1892] A. C. 437, 441-2; McGregor v. Esquimau and Nanaimo
R. W. Co. [1907] A. C. 462. ‘Cf., Florence Mining Co. v. Cobalt
Lake Mining Co. [1909] 18 O. L. R. 275, aff. by the Privy Coun-
cil, 102 L. T. 375; Royal Bank v. The King [1913] A. C. 283;
Supreme Court Reference Case [1912] A. C. 571. See, too,
McNair v. Collins (1912) 27 0. L. R. 44, and Law of Legislative
Power in Canada, pp. 279-288, and especially the dicta of the
Privy Council in the Fisheries case [1898] A. C. 700. So in the
United States, Bryce’s American Comm., ed. 1914, Vol. 1. p.
447. Canadian legislatures, moreover, are not restricted by
such limitations as restrict “the right of eminent domain”
under the United States Constitution: Kent’s Comm., 12th ed.,
Vol. 2, at p. 340. See, also, Riel v. The Queen (1885) 10J App.
Cas. 675, 678; Re Carrie Bradbury (1916) 30 D. L. R. (N.S)
756.

SB John Deere Plow Co. v. Wharton [1915] A. C. 330, 338
seq. As Judge Clement observes (L. of C. C., 3rd ed., p. 345),
there is a division of ” powers ” rather than a division of
“power” in the Canadian Constitution.

64 Canada’s Federal System, pp. 86-89; The Thrasher Case
(1882) 1 B. C. (Irving) 170, 209, 211; Reg. v. Wing Chong
(1886) .2 B. C. (Irving) 150, 156; Poulin v. Corporation of Que-
bec (1881) 7 Q. L. R. 337, 339, in app. 9 S. C- R. 185.

esJohn Deere Plow Co. v. Wharton [1915] A. C. 330, 338
seq.; Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96,
109; Attorney-General of Ontario v. Attorney-General of Can-
ada [1912] A. C. 571, 581, 583.

65a As to whether the B. N. A. Act, 1867, should be construed
in respect to the distribution of legislative powers, and of public
property, as always speaking, or as having spoken once for all
on July 1st, 1867, when it was brought into force, see the Anno-
tation to Attorney-General of Canada v. Ritchie Contracting Co.
(1915) 26 D. L. R. 51, 69, the conclusion reached being that it can-
not be so construed as to the latter, but that, in the case of the
former, the phrases used must acquire a more extended connota-
tion as the inventions of science and developments of the
national life extend their significance beyond what they com-
prehended when the Constitution was originally framed.

66 Cf. City of Fredericton v. The Queen (1880) 3 S. C. R.
505, 562, 566, et seq.

67 Cf. Clement, L. of C. C., 3rd ed., pp. 450-3.’

NOTES. 177

es Liquor Prohibition Appeal [1896] A. C. 348, 360-1; City
of Montreal v. Montreal Street Railway [1912] A. C. 333, 343-4;
Attorney-General for Canada v. Attorney-General for Alberta
[1916] A. C. 588. And so in this last case, the Privy Council
held ultra vires sec. 4 of the Dominion Insurance Act, 1910,
which purported to prohibit private persons or provincial in-
surance companies from carrying on the business of insurance
within Canada, unless holding a license from the Dominion
Minister under the Act, to the prejudice of their civil
rights, although insurance was not included in any of the
enumerated Dominion powers. The mere magnitude and im-
portance of insurance business did not bring it under the Do-
minion residuary power: S. C.

69 Attorney-General for Canada v. Attorney-General for Al-
berta [1916] A. C. 588, 595. Russell v. The Queen (1882) 7 App.
Cas. 829, is an instance of such a case. There the Court considered
that the particular subject-matter in question lay outside the
provincial powers. Another example of intra vires legislation
by the Dominion under its residuary power is to be found in
Re Wetherell & Jones (1883) 4 O. R. 713, being an Act providing
for taking evidence in the province for use out of the province.
But see a similar provincial Act held intra vires in Re Al<berta
and Great Waterways R. W. Co. (1911) 20 Man. 697.

70 Liquor Prohibition Appeal [1896] A. C. 348, 360-1. And see
argument in the Insurance Companies Case [1916] A. C. 588,
Martin, Meredith & Co.’s Transcript, 2nd day, p. 68 ; and
Canada’s Federal System, pp. 202-209. Dominion legislation
will then no longer trench upon the provincial field: but
whether such a condition of things in fact exists must, it
would seem, if the occasion ever arises, be for the Courts to
determine, whatever the awkwardness, inconvenience, and diffi-
culty of such an enquiry: per Anglin, J., in In re Insurance
Act (1910), 48 S. C. R. 200, at pp. 310-311. In Russell v. The
Queen (1882) 7 App. Cas. 829, 840, their lordships say: “There
is no ground or pretence for saying . . . that parliament, under
colour of general Legislation, 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.”
But, of course, it is not open to a Court to substitute its own
opinion as to whether any particular enactment is calculated,
as a matter of fact and good policy, to secure peace, order, and
good government for the decision of the legislature: Keith,
R. G. in D., Vol. I, p. 419.

71 Russell v. The Queen (1882) 7 App. Cas. 829, 840. This
decision must be accepted as an authority to the extent to which
it goes: Liquor Prohibition Appeal [1896] A. C. 348, 362;

C.C.L. 12

178 CANADIAN CONSTITUTIONAL LAW.

The Insurance Companies Case (Attorney-General for Canada
v. Attorney-General for Alberta [1916] A. C. 588, at pp. 595-6),
where what must be considered the final explanation of Rus-
sell v. The Queen was given. Russell v. The Queen was much
discussed and criticized during the argument of that case: see
verbatim notes .of argument (Martin, Meredith & Co.’s tran-
script) 1st day, pp. 32-33; 2nd day, p. 93; 3rd day, pp. 81-2, 86,
89; 4th day, p. 18. On the argument in Attorney-General for
British Columbia v. Attorney-General for Canada [1914] A. C.
153 (verbatim report, p. 176), Haldane, L. Ch., referring to
Russell v. The Queen, says: “It became the custom never to
cite that case. We cannot overrule it, but we never cite it.”

72 See last note. Mr. Upjohn’s illustration, however, is
suggested by the passage in their judgment in Russell v. The
Queen (1882) 7 App. Gas. ‘829, 838-9, where the Privy Council
say: “Laws which make it a criminal offence for a man wil-
fully to set fire to his own house on the ground that such act
endangers the public safety, or to overwork his horse on the
ground of cruelty to the animal, though affecting in some sense
property and the right of a man to do as he pleases with his
own, cannot properly be regarded as legislation in relation to
property and civil rights. Nor could a law which prohibited
or restricted the sale or exposure of cattle having a contagious
disease be so regarded.” Cf. Rex v. Davis (1917), 40 O. L. R.
352, 354.

73 [1916] A. C. 588, 3rd day, p. 31. See note 71.

74 (1885) 10 App. Cas. 675. In this case, the Privy Council
say, at p. ,678, that they are ” of opinion that there is not the
least colour of contention ” that ” if a Court of law should
come to the conclusion that a particular enactment was not
calculated as matter of fact and policy to secure peace, order,
and good government, that they would be entitled to regard any
statute directed to those 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.”

74a (1882) 7 App. Cas. 829.

75 Lord Davey’s expression of opinion was in the course of
the argument in Fielding v. Thomas [1896] A. C. 600: MS.
transcript from Cock and Right’s notes, p. 23. See Legislative
Power in Canada, p. 699, n. 1. And as to the power of every
colonial representative legislature to make laws respecting the
constitution, power, and procedure of such legislature, see
Colonial Laws Validity Act, 1865, s. 5, and Keith, R. G. in D.,
Vol. 1, p. 425. On the argument before the Privy Council on
the Supreme Court References case [1912] A. C. 571, Lord Lore-
burn, L.C., said: “It is not, I suppose, contended that the
words ‘ peace, order and good government ‘ involve the fac-
ulty of re-writing the whole Constitution;” and Lord Atkinson

NOTES. 179

said: “Surely you cannot say that the legislature under this
power can practically tear up sections of the B. N. A. Act.” And
in the judgment itself, their lordships say: “All depends upon
whether such a power ” (sc. a power to place upon the Supreme
Court the duty of answering questions of law or fact when put
by the Governor in Council) ” is repugnant to the B. N. A. Act.”
So, also, as against any such power, except on certain minor
points in which pow-er of alteration is expressly given by the
Act, see Keith, R. G. in D. Vol. II, p. 99; Clement, L. of C. C.,
3rd ed., pp. 40 seq. 49; Keith, Imp. Unity and the Dominions,
pp. 391-2.

76 Attorney-General for Ontario v. Attorney-General for
Canada (Supreme Court References case) [1912] A. C. 571, at
p. 581. As Lord Chancellor Haldane is reported as having said
on the argument in Attorney-General for British Columbia v.
Attorney-General for Canada [1914] A, C. 153 (verbatim re-
port, pp. 90-91) referring to these words: ” It is not an ex-
pression which you must ride to death because in the case of
the Constitution of Canada, enormous though the powers are,
thero are some things that are not delegated with regard to
succession to the Crown and matters of that kind. They be-
long to the Sovereign parliament, they are not delegated. . . ”
And it must be admitted that the proposition is not literally
true if the decision of the Manitoba Court of Appeal in Re
Initiative and Referendum Act (1916) 27 Man. 1, holding that
Act ultra vires is good law. See, however, the comments on
this decision in 37 C. L. T. at pp. 334-7. See, also, per Meredith,
J.A., in The King v. Brinckley (1907) 14 O. L. R. 435, 454.

77 The Thrasher Case (1882) 1 B. C., (Irving) 170, at p. 195.

TS Torrance, J., in Angers v. Queen’s Insurance Co. (1877)
21 L. C. J. 77, 80. The Australian Commonwealth has mod-
elled its Constitution largely on that of the United States.
There the Commonwealth has, as a rule, only a definite sphere
of legislative activity, the residual legislative power belonging
to the States: Imp. 63-64 Viet. c. 12, s. 107; Keith’s R. G. in D.,
Vol. 1, p. 867, Vol. 2, p. 973. For a detailed comparison be-
tween the Constitution of Canada and that of the United States,
see the introductory chapter to Legislative Power in Canada.
See also, supra, pp. 66-7, 70, 78-9, 105-6, 125.

wValin v. Langlois (1879) 5 App. Gas. 115, 119; Bank of
Toronto v. Lambe (1887) 12 App. Cas. 587, 588. But, of course,
this does not mean that there must be found vested in one
single authority, the power to legislate wholly with regard to a
given subject, e.g., through traffic passing first over a provincial
railway and then over a federal railway with which the pro-
vincial railway connects. Concurrent legislation by the pro-
vincial legislatures, or even by the federal and the provincial
legislatures, may be necessary: Canadian Pacific R. W. Co. v.

180 CANADIAN CONSTITUTIONAL LAW.

Ottawa Fire Insurance Co. (1907) 39 S. C. R. 443, 465 ; City of
Montreal v. Montreal Street Railway [1912] A. C. 333, 346;
In re Insurance Act (1913) 48 S. C. R. 29*0, 298; In re Com-
panies (1913) 48 S: C. R. 331, 431; Clement’s L. ofiC. C., 3rd ed.,
pp. 394-7.

so Many of the cases are discussed in Legislative Power in
Canada, pp. 322-338. See, also, Clement, L. of C. C 1 ., 3rd ed., pp.
65-115. This limitation, however, must not be insisted upon
In such a manner as to render the grant of legislative power
ineffectual: Attorney-General of Canada v. Cain and Gilhula
[1906] A. C. 542; Keith, R. G. in D., Vol. I, 393 seq., who dis-
cusses, in connection with this Privy Council decision, Reg. v.
Lesley (1860) Bell, C. C. 220, 29 L. J. M. C. 97. See, also,
Keith, op. cit. Vol. Ill, p. 1454. In Reg. v. Brinkley (1907) 14
O. L. R. 435, 454, Meredith, J.A., points out that it is altogether
too narrow a proposition to say that the legislative pow.er of a
Canadian legislature is strictly limited to matters wholly within
the territorial limits, and he instances the Extradition Act, the
Deportation Act, the enactment against bringing stolen property
into Canada, and the legislation respecting officers in England
and other countries maintained by Canada for political and
commercial purposes: cited Clement, op. cit. at p. 112. See
Keith,. R. G. in D., Vol. I, p. 372, seq., and Imp. Unity, ppJ. 313-4,
on the territorial limitation of Dominion legislation. See, also,
on the subject generally, Canada’s Federal System, pp. 101-106.
As to the doctrine that there are certain subjects of so Imperial
a character that they cannot be regarded as falling within the
purview of any colonial legislature whatever, e.g., that no
colonial legislature could enact that the governor should exer-
cise his prerogative of pardon only in accordance with the
voice of a plebiscite, or alter the relations between the gov-
ernor and the legislature, or establish a legislative coun-
cil which the Crown could not dissolve see Keith, R. G. in D.,
Vol. 1, pp. 361-2, who refers also to Jenkins’ British Rule and
Jurisdiction Beyond the Seas, pp. 69 seq.; Professor Harrison
Moore in Jl. Soc. Comp. Legisl. Vol. II, p. 289 seq.; and supra n.
76. As to Canadian Acts at variance with Imperial Treaties, see
supra, p. 65. As to political as distinguished from commercial
treaties, see Keith’s Imp. Unity, pp. 281-300. See, also, Poley’s
Federal Systems of the United States and British Empire, p.
337; Parl. Pap. 1902, Cd. 1587.

si Thus the Commonwealth of Australia Constitution Act,
1900, gives the Australian Federal parliament (s. 51), the power
to make laws for the peace, order, and good government of the
Commonwealth with respect to ‘ fisheries in Australian waters
beyond territorial limits,’ ‘ external affairs,’ and ‘ the relations
of the Commonwealth with the islands of the Pacific.’ See
Keith, R. G. in D., Vol. 1, pp. 399-401, as to the extra-territorial

NOTES. 181

character of these Australian powers: also ibid. Vol. Ill, pp.
1124-6 as to the power over ‘ external affairs.’ Also see ibid.,
Vol. Ill, pp. 1197-1215.

82 Per Turner, L.J., in Low v. Routledge (1865) L. R. 1
Ch. 42, 46-7, where, however, the point actually decided was that
a colonial legislature cannot affect an alien’s rights under an
Imperial Act expressed to extend to the colonies. In favour of
the Legislatures having such a power to bind ” their own sub-
jects ” everywhere, see In re Criminal Code Sections relating
to Bigamy (1897) 27 S. C. R. 461; Regina v. Brierly (1887) 14
O. R. 525, 533. In the opinion of the law officers of the Crown
with reference to British Guiana in 1855 (referred to in Keith,
R. G. in D., Vol. I, pp. 372-3, 394) there was a suggestion that
the laws of a colony might be applied outside its limits to per-
sons domiciled in the colony. See, also, In re Award of Wel-
lington Cooks and Stewards Union, (1906) 26 N. Z. L. R. 394; also
Keith, op. cit. Vol. I, p. 145 seq., and Clement, L. of C. C., 3rd
ed., pp. 91-115. See, also, Macleod v. Attorney-General New
South Wales [1891] A. C. 454, as specially discussed in Legis-
lative Power in Canada, pp. 336-8; Keith, R. G. in Vol. I, pp.
375, 397-8; Clement, L. of C. C., 3rd ed., pp. 104, 114-5; and
especially an article on The Limitations of Colonial Legislatures,
33 L. Q. R. 117 (1917) by John W. Salmond, who favours a cer-
tain power of extra-territorial legislation by colonial Legisla-
tures, and cites the above New Zealand case. For the
contrary view \that the legislatures have no such power, see
Keith, ad loc. cit., and Vol. I, p. 376 ; Despatch of Secretary of
State for the Colonies of Dec. 17th, 1869; Hodg. Prov. Legisl.
1867-1895, p. 7; Attorney-General of the Commonwealth v. Ah
Sheung (1906) 4 Comm. L. R. 949, cited Clement, op. cit. p. 165,
n.; Article on Extraterritorial Criminal Legislation of Canada,
19 C. L. T. pp. 1, 38. See, also, Gavin Gibson and Co. v.
Gibson [1913] 3 K. B. 379, 392, where Atkin, J., declined to
recognize a person born in a British colony as a subject of that
colony. But see as to a person naturalized in a colony: Rex v.
Francis (1918). 34 T. L. R. 273 (Divl. Court). As to statutes
authorizing the initiation of legal proceedings against defend-
ants out of the jurisdiction and the cases relating thereto, see
Canada’s Federal System, p. 104, n. 23. See, also, Re Alberta
and Great Waterways R. W. Co. (1910), 20 Man, 697; WetJierell
v. Jones (1884) 4 0. R. 713; Keith’s Imp. Unity, pp. 311-314.

83 See Asbury v. Ellis [1893] A. C. 339; Rex v. Meikleham
(1905) 11 0. L. R. 366; Regina v. Brierly (1887) 14 O. R. 525,
531; In re Criminal Code Sections relating to Bigamy (1897)
27 S. C. R. 461, 482; Niboyet v. Niboyet (1879) L. R. 4 P. D.
20; Gavin Gibson and Co. v. Gibson, supra; Clement, L. of C. C.,
3rd ed., pp. 87-91; Rex v. Francis (1918) 34 T. L. R. 273-

182 CANADIAN CONSTITUTIONAL LAW.

**E.g., an Act respecting bills of lading might be passed
by a provincial legislature as a matter relating to property and
civil rights while the Dominion parliament might pass a similar
Act as a necessary or convenient matter to be dealt with in the
regulation of trade and ‘commerce: Beard v. Steele (1873) 34
U. C. R. 43; Reg. v. Taylor (1875) 36 U. C. R. 191, 206. See
generally as to concurrent powers of legislation, Canada’s Fed-
eral System, pp. 107-111.

B5R gina v. Stone (1892) 23 O. R. 46. Cf., Regina v. Wa-
son (1890) 17 O. A. R. 221. And so, although the Ontario Lord’s
Day Act, treated as a whole, has been held to be ultra vires by
the Privy Council as legislation upon criminal law, an ex-
clusively Federal subject, in Attorney-General -for Ontario v.
Hamilton Street R. W. Co. [19-03] A. C. 524, this does not mean
that provincial legislatures cannot pass Sunday Observance
laws, closing places of amusement, and prohibiting trading or
industrial work on Sunday, as police regulations for the locality
(see supra, pp. 141-2) ; Tremblay v. Cite de Quebec (1910) R. J.
Q. 38 S. C. 82, 37, S. C. 375. See, however, now Rodrigue v. Parish
of Ste. Prosper (1917) 37 D. L. R. (Que.) 321; 40 D. L. R. 30;
and infra, n. 351; Rex v. Davis (1917) 40 0. L. R. 352, 354.

se Thus the extent of the provincial power of legislation
over ‘.property and civil rights in the province’ cannot be as-
certained without also ascertaining the powers and rights con-
ferred upon the Dominion parliament: Attorney-General for
Ontario v. Mercer (1883) 8 App. Cas. 767, 776; ‘solemnization
of marriage ‘ given to the provincial legislatures by section 92
must be considered as excepted out of the general subject of
‘ marriage and divorce,’ given to the Dominion parliament by
section 91, and ‘ direct taxation within the province in order
to the raising of a revenue for provincial purposes ‘ as excepted
out of the * raising of money by any mode or system of taxa-
tion,’ the former being given to the provincial legislatures, the
latter to the Federal parliament: Citizens Insurance Co. v. Par-
sons (1881) 7 App. Cas. 96, 108; Bank of Toronto v. Lambe
(1887) 12 App. Cas. 575, 581. And so Hodge v. The Queen
(1882) 7 O. A. R. 246, 274. See, generally, Canada’s Federal
System, pp. 112-122. It is because of the way in which the
connotation of the expressions used in sees. 91 and 92 overlap,
that it is a wise course for Courts not to attempt exhaustive
definitions of their meaning and scop.e, but to decide each case
which arises without entering . more largely upon an interpre-
tation of the statute than is necessary for the decision of the
particular question in hand: Citizens Insurance Co. v. Parsons
(1881) 9 App. Cas. 96, 109; John Deere Plow Co. v. Wharton
[1915] A. C. 330, 338 seq.

NOTES. 183

B7John Deere Plow Co. v. Wharton [1915] A. C. 330, 339,
340. So on the argument in this case (Notes of Proceedings,
p. 150), Haldane, L.C., is reported as saying: “Without express-
ing a final opinion about it, I should say ‘ civil rights ‘ was a
residuary expression. It was intended to bring in a variety of
things not comprised in the other heads, including what was
not touched by section 91 in the specifically enumerated heads
there.” See, also, Bonanza Creek Gold Mining Co. v. The King

(1915) 50 S. C. R. 534, 563, 573; Dulmage v. Douglas (1887) ‘4
Man. 495; Reg. v. Taylor (1875) 36 U. C. R. 183, 201.

ss Grand Trunk R. W. Co. v. Attorney-General of Canada
[1907] A. C. 65, 67-9; City of Montreal v. Montreal Street R. W.
Co. [1912] A. C. 333, 343; Rex v. Hill (1907) 15 O. L. R. 406;
Canadian Northern Ry. Co. v. Pszeniczy (1916) 54 S. C. R. 36, 25
Man. 655. But it is only so far as the provisions come into col-
lision that one Act is affected by the other: Re Rex v. Scott

(1916) 37 0. L. R. 453, 455.

89 Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96,
109; Russell v. The Queen (1882) 7 App. Cas. 829, 836; Dolie v.
Temporalities Board (1882) 7 App. Cas. 136, 149; Bank of To-
ronto v. Lambe (1887) 12 App. Cas. 575, 581. The Privy Coun-
cil thus corrects the rule as laid down by Gwynne, J., in City
of Fredericton v. The Queen (1880) 3 S. C. R. 505, 564-5; and
Queen v. Robertson (1882) 6 S. C. R. 52, 64, in so far as he pre-
dicates of every valid provincial Act that it ” does not involve
any interference with any of the subjects enumerated in sec.
91″: see supra, pp. 95-6; also Clement, L. of C. C., 3rd ed., pp.
412-3; Legislative Power in Canada, pp. 499-500. “If what has
been done is legislation within the general scope of the affirma-
tive words which give the power, and if it violates no express
condition or restriction by which that power is limited (in which
category would, of course, be included any Act of the Imperial
parliament at variance with it), it is not for any Court of Justice
to enquire further or to enlarge constructively those conditions
or restrictions”: Queen v. Burah (1878) 3 App. Cas. 889, 903-5.
At pp. 483-4 of his L. of C. C., 3rd ed., Judge Clement seems to
take the view that, though legislation be within the first 15
enumerated classes of sec. 92, it may fall to b.e dealt with by
the Dominion under its residuary clauses, ‘ as a matter which
is of, or which has attained, such dimensions, as to affect the
body politic of the Dominion.’ In this, it is respectfully sub-
mitted, he is wrong. These provincial powers are exclusive,
and cannot in any event be exercised by the Federal parlia-
ment: supra, p. 96. No. 16 pf sec. 92 is in a different posi-
tion. It places in the exclusive power of the provincial legis-
latures ‘generally all matters of a merely local or private na-
ture in the province.’ If a matter has assumed such a general
importance to the whole Dominion that it has ceased to be a

184 CANADIAN CONSTITUTIONAL LAW.

matter ‘ of a merely local or private nature in the province,’
then the Dominion may legislate on it: supra, p. 143.

so Attorney-General of Ontario v. Attorney-General of Canada
[1894J A. C. 189 (Dominion ancillary legislation); Liquor Prohi-
bition Appeal [1896] A. C. 348 (Dominion residuary legislation) ;
La Compagnie Hydraulique de St. Francois v. Continental Heat
and Light Co. [1909] A. C. 194 (Dominion legislation under an
enumerated power: see per Duff, J., In re Companies (1913) 48
S. C. R. 331, 437, 440) ; Tennant v. Union Bank of Canada
[1894] A. C. 31 (Dominion enumerated power) ; Grand Trunk
R. W. Co. v. Attorney-General of Canada [1907] A. C. 65, 68
(Dominion ancillary legislation); Crown Grain Co. v. Day
[1908] A. C. 504, 507 (Dominion legislation as to the Supreme
Court of Canada under sec. 101 of the Federation Act). With
deference, it is submitted that Davies, J., is mistaken, when in
In re Companies (1913) 48 S. C. R. 331, 345, he suggests that, while
Dominion legislation under this residuary Dominion power is
not paramount unless when exercised with reference to a sub-
ject matter which has attained national importance (indeed as
we have seen, supra, p. 75, such Dominion legislation ” ought
to be strictly confined to such matters as are unquestionably
of Canadian interest and importance”), when so legislating
upon matters of unquestionably national interest and im-
portance, the Dominion can “trench upon” the enumer-
ated powers of the provincial legislatures, under sec. 92; al-
though Judge Clement (L. of C. C. 3rd ed. pp. 469-470), seems to
express a similar view. But their lordships’ words in the
Liquor Prohibition Appeal [1896] A. C. 348, 360 are explicit
that ” the exercise of legislative power by the parliament of
Canada in regard to all matters not enumerated in sec. 91,
ought to be strictly confined to such matters as are unquestion-
ably of Canadian interest and importance, and ought not to
trench upon provincial legislation with respect to any of the
classes of subjects enumerated in sec. 92.” See supra, pp. 74-7.
Provincial legislation is only affected by Dominion, so far as
the two enactments come into collision: Re Rex v. Smith (1916)
37 0. L. R. 453, 455. And see Rex v. Thorburn (1917) 41 O. L.
R. 39, 39 D. L. R. 300.

91 L’ Union St. Jacques de Montreal v. Belisle (1874) L. R.
6 P. C. 31, 36-7; Liquor Prohibition Appeal [1896] A. C.. 348,
366-7, 369; Legislative Power in Canada, at pp. 529-530.

2 Rex v. Massey-Harris Co. (1905) 6 Terr. L. R. 126, 131,

3 Legislative Power in Canada, pp. 534-537.

4 Attorney-General of Canada v. Attorney-General of the
Provinces (Fisheries case) [1898] A.. C. 70’0, 715-716.

95 A curious question may be raised as to what law governs
Dominion subjects in Canada, when and so far as the Dominion

NOTES. IS’5

parliament has not legislated on them. There seems no doubt
that, in the absence of Dominion legislation relating to them,
such Dominion subjects will be subject to any general pro-
vincial legislation relating to property and civil rights in each
province: Clement, L. of C. C., 3rd ed., pp. 466-7, citing Cana-
dian Southern R. W. Co. v. Jackson (1890) 17 S. C. R. 316, and
Beard v. Steete (1873) 34 U. C. R. 43. And so Cook y< Dodds
(1903) 6 O. L. R. 608, as to the law of negotiable instruments.
But, apart from statute law, the circumstance that the private
law of one province, that of Quebec, is derived from a different
source to that of the oth.er provinces, seems to make it im-
possible to say that there is any law underlying Dominion sub-
jects generally prevalent throughout the Dominion: City of
Quebec v. The Queen (1894) 24 S. C. R. 420, 426-430. This
would suggest that behind the Dominion legislative powers in
Quebec, there is the French law, and in the others the common
law. If, on the other hand, there is to be considered to be any
on.e body of law upon Dominion subjects behind Dominion leg-
islation, it seems clear it must be the English common law.
See Canada’s Federal System, p. 127, n. 7; Province of Ontario
v. Dominion of Canada (1909) 42 S. C. R. 1, 102, [1910] A. C.
637, 645. Cf., Keith, R. G. in D., Vol. 2, p. 793, as to whether there
can be said to be a common law of the Commonwealth of Aus-
tralia. He thinks not, save so far as the prerogatives of the
Crown are concerned. Whether there is a common law of the
United States a federal common law is a disputed question:
Article on The Legal and Political Unity of the Empire, by J.
H. Morgan, 30 L. Q. R. at p. 397. Cf., also, per Duff, J., in
British Columbia Electric R. W. Co. v. Victoria, Vancouver, and
Eastern R. W. Co. (1913) 48 S, C. R. 98, 122, 13 D. L. R. 308, 322-

se in re Prohibitory Liquor Laws (1895) 24 S. C. R. 170,
232-4; Queen v. Mayor, etc. of Fredericton (1879) 3 Pugs. & B.
(19 N. B.) 139, 168-9; Dupont v. La Cie de Moulin (1888) 11
L. N. 224; Bank of Toronto v. Lambe (1885) M. L. R. 1 Q. B.
123, 146. It is noticeable to how great an extent the framers
of the Federation Act, as compared with the Constitution of
the United States, in fixing the .exclusive legislative powers of
the Dominion parliament, minimized the disadvantages in the
economic and industrial sphere which are inseparable from
federal government and divided jurisdictions: Article by Pro-
fessor Leacock of McGill, published among the Proceedings of
the American Political Science Association, 1909. As to whether
all Dominion legislation must be of a general character, see
supra, pp. 88-90.

97 Liquor Prohibition Appeal [1896] A. C. 348, 359-360;
City of Montreal v. Montreal Street Railway [1912] A. C. 333,
343-4.

186 CANADIAN CONSTITUTIONAL LAW.

8 [1899] A. C. 367, verbatim re.port of argum<-‘,, pp. 9-10. See same extracted in Canada’s Federal System, pp. 136-138. 89 Quirt v. The Queen (1891) 19 S. C. R. 510, 517, 521-2; S. C. (sub nom. Reg. v. County of Wellington) 17 0. A. R. 421, 443, 17 0. R. 615, 618; L’Union St. Jacques de Montreal v. Bel- isle (1874) L. R. 6 P. C. 31, 36; The Picton (1879) 4 S. C. R. 648. It must be admitted, however, that although there is an indi- cation in favour of this view in the passage above referred to in L’Union St. Jacques de Montreal v. Belisle, and although it seems clearly sound by reason of the exclusive character of these Dominion powers and the non obstante clause, there is not as yet any direct decision of the Privy Council on the point. Moreover, the words of the judgment in Riel v. The Queen (1885) 10 App. Cas. 675, 678, cited supra, p. 77, must not be forgotten. In Jl. of Society of Comp. Legisl. Vol. 16, p. 90, A. B. K. (doubtless Mr. Berriedale Keith) says: ” the statement based on Quirt v. The Queen, that the division of legislative power between the provinces and the Dominion does not refer to area, but to subject-matter, requires some qualification in view of the express terms of s. 92 of the B. N. A. Act and Woodruff v. Attorney-Gen- eral for Ontario, [1908] A. C. 508.” sa (1874) L. R. 6 P. C. 31-36. 100 (1880) 5 App.. Cas. 409. 101 Clement, L. of C. C. 3rd ed. pp. 414-5; Colonial Building and Investment Association v. Attorney-General of Quebec (1883) 9 App. Cas. 157; La Compagnie Hydraulique de St. Fran- cois v. Continental Heat and Light Co. [1909] A. C. 194; Quirt v. The Queen (1891) 19 S. C. R. 510. 102 The matter has been considerably discussed in various arguments before the Judicial Committee in a manner tending to confirm this view. See Legislative Power in Canada, pp. 574-581; Canada’s Federal System, pp. 145-147. At the same time, on the argument in Union Colliery Co. v. Bryden (Mar- tin Meredith and Henderson’s Transcript, pp. 34-35), Lord Wat- son is reported to have said that he thought that, where the question had been discussed at the Bar in some of the cases, the consensus of opinion had been that the Dominion parlia- ment would not have such a power: see the passage quoted, Canada’s Federal System, p. 147. 103 Jn re Henry Vancini (1904) 34 S. C. R. 621. As, e.g., by imposing upon the Supreme Court of Canada the duty of an- swering questions of law or fact when put by the Governor- G.eneral in Council: Attorney-General for Ontario v. Attorney- General for Canada [1912] A. C. 571, 584, 587; or conferring upon provincial Courts jurisdiction with respect to controverted elections to the Dominion House of Commons: Valin v. Lang- lois (1879) 5 App. Cas. 115; or conferring a new jurisdiction NOTES. 187 upon a British Vice^Admiralty Court in Canada, though an Imperial Court: Attorney-General of Canada v. Flint (1884) 16 S. C. R. 707, 3 R. & G. 453; or imposing upon a municipality the duty of contributing to the cost of protecting by gates or otherwise, level crossings of railways subject to Dominion jur- isdiction: City of Toronto v. Canadian Pacific R. W. Co. [1908] A. C, 54. Cf., Re Grand Trunk R. W. Co. and City of Kingston (1903) 8 Ex. C. R. 349. See, for other cases, Legislative Power in Canada, pp. 512, 517. There is a point of distinction here between our Constitution and that of the United States, where Congress cannot vest jurisdiction in State Courts, nor State legislatures give jurisdiction to the Federal Courts. As, how- ever, Ritchie, C.J., pointed out in Mercer v. Attorney-General of the Dominion (1881) 5 S. C. R. 538, 638, there is not to be found one word in section 91 of the Federation Act, expressing or implying a right in the Dominion parliament to interfere with provincial executive authority, when acting, of course, under valid provincial Acts, and in connection with matters proper to exclusive provincial jurisdiction. 104 Judge Clement (L. of C. C. 3rd ed. pp. 535-7) inclines to the view that, apart from s. 101, the Dominion parliament can so divest the provincial Courts of jurisdiction over Dominion subject-matters, preferring the dictum of Taschereau, J., in Valin v. Langlois (1879) 3 S. C. R. 1, 76, to the contrary opinion expressed by Wilson, C.J., in CromMe v. Jackson (1874) 34 U. C. R. 575, 579-580, But see supra, pp. 138-9 ; infra, n. 318. los/Ti re County Courts of British Columbia (1872) 21 S. C. R. 446. ice Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96, 109; Russell v. The Queen (1882) 7 App. Cas. 829, 836; Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, 587-8. 107 But Ramsay, J., in DoUe v. Temporalities Board (1880) 3 L. N. 244, 250, says that ” there is a sort of floating notion that by conjoint action of different legislatures the incapacity of a local legislature to pass an Act may be in some sort ex- tended.” See, too, In re Prohibitory Liquor Laws (1895) 24 S. C. R. 170, 241. 108 Doyle v. Falconer (1866) L. R. 1 P. C. 328; Barton v. Taylor (1886) 11 App. Cas. 197. See, also, Landers v. Wood- worth (1878) 2 S. C. R. 158. The actual case of a Canadian legislature exercising such inherent powers does not seem yet to have come before the Board. The (Imp.) Colonial Laws Validity Act, 1865, s. 5, enacts that every representative colonial legislature ‘ shall, in respect to the colony under its jurisdic- tion have, and be deemed at all times to have had, full power to make laws respecting the constitution, power, and procedure of such legislature, provided that such laws shall have been 188 CANADIAN CONSTITUTIONAL LAW. passed in such manner and form as may from time to time be required by any Act of parliament, Letters patent, order in coun- cil, or colonial law for the time being in force in the colony.’ Where a colonial legislative assembly, as by statute, has power to commit by a general warrant for contempt and breach of privilege of the assembly, there is incident to these powers and privileges vested in the assembly the right of judging for itself what constitutes a contempt, and of ordering the commitment to prison of persons adjudged by the House to have been guilty of contempt and breach of privilege by a general warrant, with- out setting forth the specific grounds of such commitment, and in that case the Courts have no power to discharge him out of custody: Speaker of Legislative Assembly of Victoria v. Glass (1871) L. R. 3 P. C. 560. As to the privileges of colonial legis- latures generally, see Keith’s R. G., in D., Vol. 1, pp. 446-457. 109 Doyle v. Falconer, ubi sup., at p. 339. As to the lex et consuetudo parliaments not applying to colonial legislatures, see further per Pollock, C.B., in Fenton v. Hampton (1858) 11 Moo. P. C. 347, 397. So American legislative bodies, which, like colonial, are not clothed with judicial functions, as the parlia- ment of the United Kingdom is, are held not to possess the general power to punish for contempt: Cooley’s Constitutional Limitations, 6th ed, pp. 159-160. no Fielding v. Thomas [1896] A. C. 600, at pp. 610-611. For the earlier history of this case, see 21 C. L. T. 503. See Legis- lative Power in Canada, at pp. 741-750, for Canadian and Aus- tralian decisions. In Fielding v. Thomas, the Privy Council state that they “are disposed to think that the House of As- sembly (of Nova Scotia) could not constitute itself a Court of Record for the trial of criminal offences ” ; but that it had power to provide, as it had done by the Act in question in the case before them, that members of the House should be relieved from civil liability for acts done and words spoken in the House, whether it could or could not so relieve them from liability to a criminal prosecution. Cf. Hill v. Weldon (1845) 3 Kerr (N. B.) 1. In the case of the “Ian McLean” letter in 1914 the N. S. legislature acted as the authority of Fielding v. Thomas. in As to this section, and its explanation, see Fielding v. Thomas [1896] A. C. 600, 610, sub nom. Thomas v. Haliburton, 26 N. S. 55, 59; and an Article by Professor Harrison Moore, 16 L. Q. R. at p. 43. See, also, Memorandum by the late Sir John Bourinot: Hodgins’ Prov. Legisl. 1867-1895, App. B., at pp. 1316-7. As to the occasion of the passing of Imp. 38-39 Viet. c. 38, above cited, see Clement, L. of C. C. 3rd ed. p. 44, n. 1. 112 Liquidators of the Maritime Bank of Canada v. Receiver- General of New Brunswick [1892] A. C. 437, 442. See Legisla- tive Power in Canada, pp. 705-9. It may be mentioned in this connection that a principle appears .established with regard to NOTES. 189 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: Hodgins’ Prov. Legisl. 1867- 1895, at pp. 244a-244b, 817. However, the allowance of pro- vincial legislation by the Dominion Government is not a bind- ing admission of the validity of such legislation, having the effect of depriving the Federal authority of the right or power of disallowing statutes similar to those which have been per- mitted to go into operation: Hodgins, op. cit. p. 537. As to the Federal power of disallowance in Canada, see supra, pp. 62-6. us DoMe v. The Temporalities Board (1882) 7 App. C’as. 136, 147, 150. See this case referred to in the Liquor Prohi- bition, Appeal [1896] A. C. 348, 366-7. As the Minister of Jus- tice points out in his report to the Governor-General of No- vember 22nd, 1900 (Hodg. Prov. Legisl. 1899-1900, p. 16), there can be no doubt since the Dobie case that the legislature of Ontario or of Quebec has no power to modify or repeal the pro- visions of the charter of a corporation created by the legisla- ture of the late province of Canada for the purpose of doing business in Upper and Lower Canada. It has been held, in- deed, in Quebec, in Ex parte O’Neill (1905) R. J. Q. 28 S. C. 304, 309-310, that a provincial legislature cannot repeal any statute of the old province of Canada applicable equally to Upper and Lower Canada, even though it be provided that such repeal is only to take effect in so far as that province is con- cerned. Sed qucere, if it be not a case of interfering with a corporation incorporated to do business in both provinces, or controlling a fund administrate in both provinces, but one of repealing provisions of an Act of the old province of Canada which had no application except to local and private matters in the province repealing it. See, also, as illustrating this sec. 129, Lafferty v. Lincoln (1907) 38 S. C. R. 620, over-ruling Rex v. Lincoln (1907) 5 W. L. R. 301; Pearce v. Kerr (1908) 9 W. L. R. 504; Beauli.eu v. La Cite de Montreal (1907) R. J. Q. 32 S. C. 97; McKinnon v. McDouoall (1907) 3 E. L. R. 573; Reg. v. Peters, Stev. N. Br. Dig. 3rd ed. p. 138; Valin v. Lang- lois (1879) 3 S. C. R. 1, 20-2; Leg. Power in C., pp. 368-371. As to repeal of Dom. Stats, affecting pre-Confed. Stats, see 38 C. L. T. 163. 114 Russell v. The Queen (1882) 7 App. Cas. 829, 837; a judgment explained and approved in Hodge v. The Queen (1883) 9 App. Cas, 117, 129-130, and again interpreted in the Insurance Companies case (Attorney-General for Canada v. Attorney-General for Alberta) [1916] A. C. 588, 595-6. For numerous Canadian cases illustrating the subject generally of ancillary powers and powers by implication, see Legislative Power in Canada, pp. 425-468. 190 CANADIAN CONSTITUTIONAL LAW. City of Toronto v. Bell Telephone Co. [1905] A. C. 52, which decides that the Dominion parliament have exclusive jurisdiction, not only to incorporate a work or undertaking falling within the exceptions in No. 10 of sec. 92 of the Federa- tion Act, but also to grant the powers required for the con- struction and establishment of the proposed work, even if, in granting such powers, there be involved an apparent invasion of matters otherwise within exclusive provincial jurisdiction: Toronto and Niagara Power Co. v. Corporation of the Town of North Toronto [1912] A. C. 834. See supra, pp. 119-122. See, also, Ontario Power Co. v. Hew son (1903) 6 O. L. R. 11, 15; aff. 8 O. L. R. 88, 36 S. C. R. 596; Regina v. County of Wellington (1890) 17 O. A. R. 421, 440; Bradburn v. Edinburgh Life As- surance Co. (1903) 5 O. L. R. 657; In re Railway Act (1905) 36 S. C. R. 136,143; and dissenting judgment of Duff, J., in Brit- ish Columbia Electric Ry. Co. v. Vancouver, Victoria and Eastern Ry. Co. .(1913) 48 S. C. R. 98, 121-2, 13 D. L. R. 321-2: in app. [1914] A. C. 1067. Judge Clement .(L. of C. C. 3rd ed. p. 506) suggests that ‘ the various cases in which so called ancillary legislation has been upheld are cases in which the enactment in controversy dealt with an aspect of the subject upon which provincial Legislation would have been incompetent; in other words, the subject in the aspect dealt with fell strictly within one of the enumerated classes of s. 91 ‘ of the Federation Act. At all events the Privy Council cannot, perhaps, be said to have encouraged us to go as far as the two dissenting judges in the Australian case of The King v. Barger (1908) 6 C. L. R. 41, and to say that even the enumerated powers of the federal parliament are to be construed in as full a manner as if the federal parliament were that of a unitary State. In Australia the Courts have, it would appear, on the other hand, estab- lished a doctrine of an implied prohibition of interference by the Commonwealth parliament in matters reserved to the State parliaments: Article on the Legal Interpretation of the Commonwealth Constitution by A. B. Keith in J. C. Comp. Legisl. N.S. Vol. XII, pp. 105-127. As to Congress in the United States being entitled to use all proper and suitable means for carrying the powers conferred by the Constitution into effect, see Bryce’s Amer. Comm. ed. 1914, Vol. 1, p. 381, n. 2. In con- ferring 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 otherwise: Aitcheson v. Mann (1882-3) 9 0. P. R. 253, 473; Wilson v. Codyre (1886) 26 N. B. 516; Flick v. Brisbin (1895) 26 0. R. 423. For a like principle applied to provincial legislatures, see Kerley v. Lon- don and Lake Erie Transportation Co. (1912) 26 O. L. R. 588, reversed on appeal, but not on this point: 28 O. L. R. 606. NOTES. 191 us city of Toronto v. Canadian Pacific R. W. Co. [1908] A. C. 54, 58. Cf. Re Grand Trunk R. W. Co. and City of Kings- ton (1903) 8 Ex. C. R. 349. 117 Montreal Street R. W. Co. v. City of Montreal (1910) 43 S. C. R. 197, 248. us [1912] A. C. 333, 344-5. us [1896] A. C. 348, 359-360. 120 per Rose, J., in Doyle v. Bell (1884) 11 O. A. R. 326, 335. See Canada’s Federal System, pp. 169-179. A similar construction seems to have been placed on that provision of the Constitution of the United States (Art. 1, sec. 8 (18), which gives power to Congress ‘ to make all laws which shall be neces- sary and proper for carrying into execution the foregoing pow- ers, and all other, powers vested by this Constitution in the Government of the United States, or in any department or officer thereof ‘ : Story’s Constitution of the United States, 5th ed. Vol. 2, at p. 143. ” It cannot be too strongly put that with the wisdom or expediency, or policy of an Act, lawfully passed, no Court has a word to say ” : Supreme Court References Case [1912] A. C. 571, 583. And in estimating the proper relation of Dominion legislation to provincial powers, the actual condi- tions of Canada should be borne in mind: City of Toronto v. Canadian Pacific R. W. Co. [1908] A. C. 54, 58 ; In re Railway Act (1905) 36 S. C. R. 136, 146-6. See the general subject of Dominion intrusion on the provincial area, and the functions of the Court in that matter discussed per Duff, J., in British Columbia Electric R. W. Co. v. Vancouver, Victoria and East- ern R. W. Co. (1913) 48 S. C. R. 98, 115-116, 120, 13 D. L. R. 308, 318, 321. The actual decision in that case was overruled by the Privy Council: [1914] A. C. 1067. i2ia?ifc of Toronto v. Lambe (1887) 12 App. Cas. 575, 586; The Fisheries Case [1898] A. C. 700, 715-716; Queen v. City of Fredericton (1879) 3 P. & B. (19 N. B.) 139, 187; Regina v. Wason (1890) 17 O. A. R. 221, 232; Canada’s Federal System, pp. 180-183. 122 Speaking generally, prov. stats, can operate only in pro- vincial territory (see supra, 79-80), which, where bounded by the ocean, appears to extend to but not beyond the three-mile limit. Cf., the two Newfoundland decisions, reported J. W. Withers, Queen’s Printer, St. John’s, N.F., 1897, Rhodes v. Fair- weather (1888) at p. 321, and Queen v. Delepine (1889) at p. 378; The Ship “North” v. The King (1906) 37 S. C. R. 385, 11 Ex. C. R. 141, 11 B. C. 473 ; , The Ship ” Frederick Gerring Jr.” v. The Queen (1897) 27 S. C. R. 271′; The Farewell (1881) 7 Q. L. R. 380. As to the Great Lakes, see Rex v. Meikleham (1905) 11 O. L. R. 366. As to a local option by-law covering a 192 CANADIAN CONSTITUTIONAL LAW. public harbour, see Mathews v. Jenkins (1907) 3 E. L. R. (P.E.I.) 577. The Privy Council, however, declined to deal with the question of the ownership of the land subjacent to the three- mile limit, and remarked upon the obscurity of the whole topic, in the recent case regarding the British Columbia Fish- eries, Attorney-General of British Columbia v. Attorney-General for Canada [1914] A. C. 153, 174-5. But in In re Quebec Fisheries (1917), R. J. Q. 36 K. B. 289, 35 D. L. R. 1, four out of six judges of the Quebec Court of K. B. held that the province owns the solum of the three mile limit, or, at any rate, the fisheries therein; and that there was no public right of fishing in tidal waters in Quebec, the same, if it ever existed, having been taken away by legislation in that pro- vince before Confederation. See the Annotation by the present writer at 35 D, L. R. p. 28. 123 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, 586-7, where a comparison is drawn with the United States Constitution; followed in Great North-Western Telegraph Co. v. Fortier (1903) R. J. Q. 12 Q. B. 405; Liquidators of The Mari- time Bank of Canada v. Receiver-General of New Brunswick [1892] A. C. 437, 441-3. Thus the provinces may tax salaries of Dom. officials: Abbott v. City of St. John (1908) 40 S. C. R. 597; Webb v. Outrim [1897] A. C. 81; Toronto v. Morson (1917) 40 O. L. R. 227; or they may require brewers, though holding Domin- ion licenses, to also take out provincial licenses: Brewers and Maltsters’ Association of Ontario v. Attorney-General of Ontario [1897] A. C. 231. Cf, Fortier v. Lambe (1895) 25 S. C. R. 422. But, qucere, if the Dominion licenses embodied Federal statu- tory authority to carry on business all over Canada: John Deere Plow Co. v. Wharton [1915] A. C. 330. See n. 243 infra. Or, again, provincial legislatures may pass local liquor legislation, although of such character that, in its practical working, it must interfere with Dominion revenue, and, indirectly, at least, with business operations outside the province: Attorney-General of Manitoba v. Manitoba License Holders Association [1902] A. C. 73. 124 Bank of Toronto v. Lambe, ubi sup.; Union Colliery Co. v. Bryden [1899] A. C. 580, 585; The Fisheries Case [1898] A. C. 700, 713. Cf. despatch of Mr. Joseph Chamberlain to the Governor of Newfoundland of Dec. 5th, 1898, quoted at length, Keith, R. G. in D., Vol. II, pp. 1042-7. See, also, Smith v. City of London (1909) 20 O. L. R. 133; Beardmore v. City of To- ronto (1909-10), 20 0. L. R. 165, 21 0. L. R. 515; Electric De- velopment Co. v. Attorney-General for Ontario (1917) 38 O. L. R. 383. 125 L’ Union St. Jacques de Montreal v. Belisle (1874) L. R. 6 P. C. 31, which itself affords another illustration of the same XOTES. 193 constitutional principle. See Canada’s Federal System, pp. 193-198. 126 Union Colliery Co. v. Bryden [1899] A. C. 580, 588. i2oa Hodge v. The Queen (1883) 9 App. Gas. 117,130; Attorney- General of the Dominion v. Attorney-General of the Pro- vinces [1898] A. C. 700, 716; Union Colliery Co. v. Bryden [1899] A. C. 580, 587. Thus as the Privy Council themselves explain in The Insurance Companies Case [1916] A. C. 588, 595-6, although the Canada Temperance Act contemplated in certain events, the use of different licensing boards and regu- lations in different districts, and to this extent legislated in relation to local institutions, yet in Russell v. The Queen (1882) 7 App. Cas. 829, their lordships thought that this purpose was subordinate to a still wider and legitimate purpose of establish- ing a uniform system of legislation for prohibiting the liquor traffic throughout Canada excepting under restrictive conditions. The decisions, in fact, which have arisen in connection with laws prohibiting or regulating the liquor traffic matters which are not to be found specifically mentioned either in sec. 91 or in sec. 92 illustrate in a remarkable way the principle under discussion, a principle, however, which as their lordships say in The Insurance Companies case, supra, ” ought to be applied only with great caution.” See, in addition to Hodge v. The Queen, and Russell v. The Queen, above cited, the Liquor Prohibition Appeal 1895 [1896] A. C. 348; Brewers and Maltsters Association v. Attorney-General for Ontario [1897] A. C. 231; The Dominion Liquor License Acts, 1883-4- (the Mc- Carthy Act case): Cass. Dig. S. C. 509; Attorney-General of Manitoba v. Manitoba License Holders’ Association [1902] A. C. 73, 78; Rex v. Thorburn (1917) 41 O. L. R. 39, 39 D. L. R. 300. See, also, Canada’s Federal System, pp. 200-209. WHOLESALE AND RETAIL. Th.e Privy Council finds that noth- ing turns, so far as legislative power is concerned, upon the fact that those affected by the statutory provisions deal in wholesale, and not in retail quantities. In the matter of the Dominion License Acts, 1883-4, supra, the Privy Council so held; referring to which in the Queen v. McDougall (1889) 22 N. S. 462, 491, Townshend, J., says: “The distinction between wholesale and retail so far as making it a test of the respective powers of the two legislatures under the British North America Act, has been abandoned.” See, further, as to this point, Legis- lative Power in Canada, pp. 726-730; Canada’s Federal System, pp. 436-438. For further illustrations of different aspects of legislation, see Legislative Power in Canada, pp. 411-415, in connection especially with municipal police regulation as con- trasted with criminal law. See, also, City of Montreal v. Beau- C.C.L. 13 194 CANADIAN CONSTITUTIONAL LAW. vais (1909) 42 S. C. R. 211; Attorney-General of Ontario v. Hamilton Street R. W. Co. [1903] A. C. 524; Kerley v. London and Lake Erie Transportation Co. (1912) 26 0. L. R. 588; Pomeroy on Constitutional Law, 1st ed. p. 218, cited by Four- nier, J., in Citizens Insurance Co. v. Parsons (1880) 4 S. C. R. 215, 260; Clement’s L. of C. C. 3rd ed. pp. 572-582. 127 Russell v. The Queen (1882) 7 App. Gas. 829, 838, 840. In this case the Privy Council held that, although the Domin- ion of Canada Temperance Act, the constitutionality of which they upheld, was to be brought into force in those localities only which adopted it by local option exercised in the pre- scribed manner, yet ” the objects and scope of the legislation are still general, namely, to promote temperance by means of a uniform law throughout the Dominion.” So in Attorney- General of Quebec v. Queen Insurance Co. (1878) 3 App. Cas. 1090, their lordships held that a Quebec Act which purported to impose a license on persons carrying on the business of as- surance in the province, was virtually a Stamp Act, and, im- posing taxation which was not “direct” (see supra, pp. 125-6), was, therefore, ultra vires. They say: “It is not in substance a License Act at all; it is nothing more nor less than a simple Stamp Act on the policies.” And so Lord Watson said on the argument on the Liquor Prohibition Appeal, 1895 [1896] A. C. 348 : ” We are always inclined to stand on what is the main substance of the Act in determining under which of these pro- visions it really falls. That must be determined secundum sub- jectam materiam, according to the purpose of the statute as that can be collected from its leading enactments”: Canada’s Federal System, p. 212; Tai Sing v. Maguire (1878) 1 B. C. (Irving), 101, 104. v. Langlois (1879) 5 App. Cas. 115, 118. St. Jacques de Montreal v. Belisle (1874) L. R. 6 P. C. 31. iso Hamilton Powder Co. v. Lambe (1885) M. L. R. 1 Q. B. 460, 466; Legislative Power in Canada, pp. 261-269. isi And so Dallaire v. La Cite of Quebec (1907) R. J. Q. 32 S. C. 118, 12’Q. And cf. City of Fredericton v. The Queen (1880) 3 S. C. R. 505, 545. And so in the United States, where it is Congress whose powers are enumerated, Chief Justice Marshall laid it down that every power alleged to be vested in the na- tional government, or any organ thereof, must be affirmatively shown to have been granted: Bryce, Amer. Comm. ed., 1914, Vol. 1, p. 379. But this doctrine is based on the position of Congress as an agent authorized by the people to exercise enumerated powers, whereas our provincial Legislatures, though they have received their powers from the Imperial parliament, do not exercise them as its agents: supra, pp. 66-9. NOTES. 195 132 Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96, 116; S. C. 4 S. C. R. 215, 279-280. Cf. Canadian Pacific R. W. Co. v. James Bay R. W. Co. (1905) 36 S. C. R. 42, 89-90; Legislative Power in Canada, pp. 237-238. But in the Insurance Companies Case (Attorney-General -for Canada v. Attorney-General for Alberta [1916] A. C. 588) when counsel strove to uphold section 4 of the Dominion Insurance Act 1910, on the ground that since 1867 both the Dominion and provincial authorities have treated insurance as a matter within the legis- lative authority of the Dominion, the following took place: Lord Haldane: ” Crutches are very helpful to a man who cannot walk without them, but they are not any use to those who can.” Lord Parker of Waddington : ” All you mean is this : if there is a doubtful question on the true construction of sees. 91 and 92, it is permissible to refer to what has been done as showing the interpretation which throughout has been put upon the Act of Parliament.” The Lord Chancellor: “You must first look at sees. 91 and 92 and see if there is a doubt.” And on a similar line of argument in Attorney -General of British Columbia v. Attorney-General of Canada [1914] A. C. 153 (verbatim report p. 195) Lord Haldane, L.C., said: “It shows the view which the Dominion took, but it does not cast much light on the question.” 133 per Taschereau, J., in Mercer v. Attorney-General for Ontario (1881) 5 S. C. R. 538, 673. But, of course, it is futile for the Dominion parliament, or provincial legislatures, or Imperial officials, to assume to declare authoritatively the pro- per interpretation of the British North America Act: Lenoir v. Ritchie (1879) 3 S. C. R. 575, 639-640; Valin v. Langlois (1879) 3 S. C. R. 1, 73-74. MiValin v. Langlois (1879) 3 S. C. R. 1, 26; Provincial Legislation, 1895, p. 753. 135 Report of the Judicial Committee in the matter of the Dominion Liquor License Acts, 1883-4 : Cass. Dig. S. C. 509; 4 Cart. 342, n. 2; Dom. Sess. Pap. 1885, No. 85; Corporation of Three River v. Suite (1882) 5 L. N. 330, 332; Dobie v. The Tempor- alities Board (1880) 3 L. N. 244, 251; King v. Commonwealth Court of Conciliation (1910) 11 C. L. R. 1, 22; Keith, R. G. in D., Vol. 2, pp. 861, 871. iss Legislative Power in Canada, pp. 293-299 : In re Domin- ion Insurance Act, 1910 (1913) 48 S. C. R. 260, 285. But in the Australian case of the S-S. Kalibia and Wilson (1910) 11 C. L. R. 689, the High Court of Australia held that when the legislature assumed jurisdiction over a whole class of ships over some of which it had and over others it had not jurisdiction in point of law, and plainly asserted its intention to place them 196 CANADIAN CONSTITUTIONAL LAW. on the same footing, the Court would be making a new law if it gave effect to the statute as a law intended to apply to part only of the class; and, therefore, it held that the whole Act was invalid: cited Keith, op. cit. Vol. 2, p. 871. 137 Colonial Building and Investment Association v. The Attorney-General of Quebec (1882) 27 L. C. J. 295, 304; Regina v. Mohr (1881) 7 Q. L. R. 183, 190. In both these cases the Privy Council on appeal held the Acts intra vires in all respects: (1883) 9 App. Cas. 157 ; [1905] A. C. 52. i3s Bourgoin v. La Compagnie du Chemin de Fer de Mont- real (1880) 5 App. Cas. 381, 406; Theberge v. Laudry (1876) 2 App. Cas. 102. Cf. Cooley’s Constitutional Limitations, 6th ed. p. 222. ESTOPPEL FROM SETTING UP UNCONSTITUTIONALITY OF ,\ STATUTE. There is some authority for saying that one may, under certain circumstances, be estopped from setting up the unconstitutionality of a statute: Ross v. Guilbault (1881) 4 L.N. 415; Ross v. Canada Agricultural Ins. Co. (1882), 5 L. N. 23; Forsyth v. Bury (1888) 15 S. C. R. 543; McCaffery v. Ball (1889) 34 L. C. J. 91; Belanger V. Caron (1879) 5 Q. L. R. 19, 25. See, contra, however: Valin v. Langlois (1879) 5 Q. L. R. 1, 15; L’Union St. Jacques de Montreal v. Belisle (1872) 20 L. C. 29, 39; Clement, L. of C. C. 3rd ed. p. 377. Cf., also, City of Toronto v. Bell Telephone Co., 6 O. L. R. 335, 344, 349-50; L’ Association Pharmaceutique v. Livernois (1900) 30 S. C. R. 400 ; City of Fredericton v. The Queen (1880) 3 S. C. R. 505, 545; Gibson v. Macdonald (1885) 7 0. R. 401, 416. See, also, King v. Joe (1891) 8 Haw. Rep. 287. 139 Attorney-General for the Dominion v. Attorney-General for the Provinces (The Fisheries case) [1898] A. C. 700, 709- 711; St. Catharines Milling and Lumber Co. v. The Queen (1888) 14 App. Cas. 46. As to the general subject of Dominion and provincial property under the British North America Act, see supra, pp. 151-3. 1*0 The Fisheries Case (supra, n. 139). Their lordships must not be understood as meaning, for example, that under its power to legislate in relation to Dominion railways, the Do- minion parliament cannot provide for the expropriation of lands, for this legislative power necessarily implies such a right to interfere with private property, and .even with pro- vincial Crown lands: Attorney-General of British Columbia v. Canadian Pacific R. W. Co. [1906] A. C. 204, 11 B. C. 289. Neither must they be understood as impugning the power of provincial legislatures to deal freely with vested rights and private property in the province, other than Dominion Crown property: The Florence Mining Co. v. Cobalt Lake Mining Co. (1910) 102 L. T. 374. NOTES. 197 141 Windsor and Annapolis R. W. Co. v. Western Counties R. W. Co. (1878) Russ. Eq. 307; in appeal (1882) 7 App. Cas. 178; Queen v. Moss (1896) 26 S. C. R. 322. But see Canada’s Federal System, pp. 228-229. 142 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, 581; City of Montreal v. Montreal Street Railway [1912] A. C. 333, 344; John Deere Plow Co. v. Wharton [1915] A. C. 330, 340. The numbers of the various Dominion powers which follow correspond to the ajctual numbers of the various items or sub- sections of sec. 91 *of the Federation Act by which they are conferred. It is to be remembered that the section states that all these Dominion powers ‘notwithstanding anything in this Act ‘ are ‘ exclusive.’ 143 Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96, 112, in which case they held that a provincial Act intended to regulate the business of fire insurance companies in the pro- vince with a view to securing uniform conditions in their poli- cies fell within No. 13 of sec. 92 (‘property and civil rights In the province’) and not within No. 2 of sec. 91 now under con- sideration. Cf. Re Dominion Marble Co. in Liquidation (1917′) 35 D. L. R. 63, 66 (Que.). On the argument in the John Deere Plow Co. case, supra (Notes of Proceedings, p. 154), the following is re- ported as taking place as to this reference to the Union between England and Scotland: Haldane, L.C. : ” I should be very sorry to pursue this reference. I think it is misleading.” Lord Moulton: “It is very misleading.” Haldane, L.C.: “Why it was introduced in Sir Montague Smith’s judgment I do not know. I can conceive nothing more dangerous.” Sir Robert Finlay: “He only meant to give an illustra- tion of the words ‘regulation of trade’ which shows it did not apply to regulating a particular trade locally. That is the point that Sir Montague Smith was on, and he develops it in the fol- io-wing paragraph.” Lord Moulton: “I think all he wanted to say was, making certain prescriptions as to the form of contract in a particular trade is not within the trade and commerce. I do not think it went further.” i-*4 Smylie v. The Queen (1900) 27 O. A. R. 172; Stark v. Shuster (1904) 14 Man. 670; De Varennes v. Le Procureur General (1907) R. J. Q. 16 K. B. 571, 31 S. C. R. 444; City of Montreal v. Beauvais (1909) 44 S. C. R. 211; and numerous other Canadian decisions collected, Canada’s Federal System, p. 326, n. 18; Legislative Power in Canada, pp. 455-6, 559, n. 3. Cf- as to the power of Congress to ‘ regulate commerce with for- eign nations, and among the several States, and with the Indian tribes’: Story on the Constitution, 5th ed. Vol. 2, p. 14, which 198 CANADIAN CONSTITUTIONAL LAW. power has been construed to include legislation regarding every kind of transportation of goods and passengers, whether from abroad or from one State to another, regarding naviga- tion, maritime and internal pilotage, maritime contracts, etc., together with the control of all navigable waters not situate wholly within the limits of one State, the construction of all public works helpful to commerce between States or with for- eign countries, the power to regulate or prohibit immigra- tion, and finally power to establish a railway commission and control of all inter-State traffic: Bryce, Amer. Comm. (ed. 1914) Vol. 1, p. 383. 145 At torney&eneral for Canada v. Attorney-General for Alberta (the Insurance Companies case) [1916] A. C. 588; Hodge v. The Queen (1883) 9 App. Gas. 117; Dominion License Acts case, Cass. Dig. S. C. 509, 4 Cart. 342, n. 2; Dom. Sess. Pap. 1885, No. 85: And see supra, n. 143. 146 The Insurance Companies case [1916] A. C. 588. And so, per Idington, J., in the Court below, 48 S. C. R. 277. 147 Cf. per Idington, J., In re Companies (1913) 48 S. C. R. 331; 376. Until The British Possessions Act, Imp. 9-10 Viet. c. 94, the colonies in America were prohibited from imposing duties on British goods beyond the rates which the Colonial Office deemed necessary for revenue purposes, and were compelled by the terms of the Navigation Acts (repealed in 1849) to ship their produce in British ships. In return until 1852, when all preferential duties were abolished, much colonial produce enjoyed a valuable prefer- ence in British markets: so Keith, R. G. in D., Vol. Ill, pp. 1156- 1187, which comprise a long chapter on ‘ Trade Relations and Currency’ in the Dominions. 148 Citizens Insurance Co. v. Parsons (1881) 7 App. Gas. 96, 112; Bank of Toronto v. Lambe (1887) 12 App. Cas. 575, 586; Liquor Prohibition Appeal, 1S95 [1896] A. C. 348, 373. The prohibitive enactments of the Canada Temperance Act cannot be regarded as regulations of trade and commerce: Liquor Pro- hibition Appeal, 1895 [1896] A. C. 348. On the argument before the Privy Council in Russell v. The Queen in 1882 (transcript, from the shorthand notes, 2nd day, p. 18), counsel suggested that any such matters as embargo laws, intercourse between different provinces, or coasting regulations, would come within the power. Imp. 7-8 Edw. VII. c. 64, permitted the Governor in Council to reciprocate by admitting foreign vessels to the coasting trade of Canada when British ships were admitted to their coasts. 149 Attorney-General for Canada v. Attorney-General for Alberta (the Insurance Companies case) [1916] A. C. 588, 597. And so Farmers’ 1 Mutual v. Whittaker (1917) 37 D. L. R. 705 (Alta.) NOTES. 199 Deere Plow Co. v. Wharton [1915] A. C. 330, 340- 341. See this judgment discussed at length by th.e present writer in 35 C. L. T. 148 seq. This case shows that under the power we are discussing, the Dominion parliament can author- ise all companies incorporated by it to carry on their business throughout Canada, and can give such companies power to sue and be sued, and to contract by their corporate name, and to acquire and hold personal property for the purposes for which they w-ere created, and to exempt individual members of the corporation from personal liability for its debts, obliga- tions, or acts, if they do not violate the provisions of the Act incorporating them (these being things enacted in the sections of th.e Dominion Companies Act and the Interpretation Act suc- cessfully relied on by the John Deere Plow Co. in that case), subject, however, in the case of Dominion companies not in- corporated under one of the exclusive enumerated powers, to the general law of the province to the extent above mentioned. But it is to be observed that th.e Privy Council, in this case, do not pass upon the contention raised that under this power to ‘ regulate trade and commerce,’ the Dominion can incor- porate companies. It would be a serious thing if this conten- tion were sustained, because incorporations under an enumer- ated Dominion power can exercise the pow-ers conferred upon them in independence of provincial legislation: supra, p. 120. The question presents itself on this John Deere Plow case: Can then the Dominion under this power prescribe to what extent individuals may exercise the pow.er of trading through- out the Dominion, and what limitation should be placed on such powers? If so, being the exercise of an exclusive Domin- ion power, it will take effect in spite of any provincial legisla- tion. The incorporation of companies under th.e residuary power is a different matter, for this residuary power only ex- tends to ‘ matters not coming within the classes of subjects assigned .exclusively to the legislatures of the province.’ Supra pp. 120-1. See, also, infra, p. 231, n. 244. isi As to such legislation by the Dominion, see an Article by F. A. Acland, Deputy-Minister of Labour, entitled ‘ Canadian Legislation concerning Industrial Disputes,’ 36 C. L. T. 207. In Weidman v. Spragge (1912) 46 S. C. R. 1, the Supreme Court of Canada apparently regard the restraint of trade clauses in the Criminal Code as based on the Dominion jurisdiction over trade and commerce. i52#fmfc of Toronto v. Lambe (1887) 12 App. Gas. 575, 586. 153 Brewers and Maltsters Association of Ontario v. Attor- ney-General of Ontario [1897] A. C. 231. 154 Attorney-General of Manitoba v. Manitoba License Hold- ers’ Association [1902] A. C. 73. See, however, Gold Seal Ltd. v. 200 CANADIAN CONSTITUTIONAL LAW. Dominion Express Co. (1917) 37 D. L. R. 769; Hudson Bay Co. v. Heffernan (1917), 39 D. L. R. 124. iss Hull Electric Co. v. Ottawa Electric Co. [1902] A. C. 237. 156 Hodge v. The Queen (1883) 9 App. Cas. 117. See supra pp. 141-2, as to such provincial power. 157 Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96, 108. As to what is ” direct ‘ taxation, see supra, pp. 125-6. isTa Attorney-General of Canada v. Attorney-General of the Provinces [1898] A. C. 700, 713-4; Angers v. Queen Insurance Co. (1887) 16 C. L. J. N. S. 198, 204-5; Severn v. The Queen (1878) 2 S. C. R. 70, 101. 158 Algoma Central R. W. Co. v. The King (1901) ‘7 Ex. C. R. 239. Sec. 122 of the Federation Act expressly places cus- toms and excise laws under the Dominion jurisdiction. Sec. 121 enacts that ‘ All articles of the growth, produce, or manu- facture, of any one of the provinces shall, from and after the Union, be admitted free into each of the other provinces.’ Cf. 18 Yale L. R. 17-20. iss As Judge Clement says (L. of C. C. 3rd ed. p. 774), any construction of this .exclusive Dominion power other than ‘ census, and statistics in relation thereto,’ would land one in difficulties. ‘ So construed, it has reference to the census re- quired to be taken every ten years by sec. 8 of the Act, and to the compilation of statistics in reference to nationality and creed, the increase or decrease of population and kindred mat- ters.’ There seems to be no reported expression of judicial opinion as to the scope of this item. Yet it is well to have a Dominion power to provide for the collection and collation of statistics from the various provinces, and for the dissemination of information even on matters of provincial jurisdiction, as e.g., education. leo city of Montreal v. Gordon (1905) Coutlee’s Cases, 343, reversing the Court below, R. J. Q. 24 S. C. 465. lei Cunningham v. Tomey Horn ma [1903] A. C. 151. As to taxing soldiers and sailors, see Tully v. Principal Officers of Her Majesty’s Ordnance (1847) 5 U. C. R. 7, 14; as to which case, c-/., Keith R. G. in D., Vol. 1, p. 361, n. 2, See, also, an Article on ‘ the Law applicable to the Militia of Canada,’ by W. E. Hodgins (1901) 21 C. L. T. 169; and another on the same subject, 37 C. L. J. 214. Keith, op. cit. Vol. Ill, pp. 1248-1298, has a long chapter on the subject of military and naval defence in connection with the Dominions; and Clement (L. of C. C. 3rd ed. pp. 201-210) has also a useful chapter entitled ‘ The Army and Navy.’ He prints in an Appendix (p. 1053) the (Imp.) Colonial Naval Defence Act, ./#>, 28-29 Viet, c. 14, which
empowers colonial legislatures with the approval of His Majesty

NOTES. 201

in Council to provide, at the expense of the colony, for a
colonial organized naval force.

162 AS to the provincial power to tax the salaries of Do-
minion officials, see supra, p. 127, and infra, n. 263.

IBS The Fisheries case [1898] A. C. 700, 717, affirming 26
S. C. R. 444. Cf., a similar power in Congress -by virtue of its
right to regulate commerce with foreign nations and among
the several States: Story on the Constitution, 5th ed. Vol. 2,
pp. 16-17, n. (a).

164 McMillan v. Southwest Boom Co. (1878) 1 P. & B. 715.
A provincial Act whereby certain persons were authorized to
erect piers and booms in a river, provided there was no interfer-
ence with navigation, was held intra vires in McCaffrey v. Hall
(1891) 35 L. C. J. 38. If such a provincial Act p-ermits inter-
ference with navigation it will be ultra vires: Queddy River
Driving Boom Co. v. Davidson (1883) 10 S. C. R. 222. Cf.,
report of Minister of Justice of February 23rd, 1910, in refer-
ence to a New Brunswick Act authorizing the City of St. John
to build a bridge across the harbour of St. John: Canada’s
Federal System, pp. 243-4; also Legislative Power in Canada,
p. 641, n. 2. So the provincial grant of a water-lot extending
into navigable waters cannot authorize the grantee to erect a
wharf interfering with navigation: Wood v. Esson (1884) 9
S. C. R. 239. Cf. Reg. v. Fisher (1891) 2 Ex. R. 365; Central
Vermont R. W. Co. v. Town of St. Johns (1886) 14 S. C. R. 288;
Queen v. 8t. Johns Gas Light Co. (1895) 4 Ex. C. R. 326, 346;
In re .Provincial Fisheries (1896) 26 S. C. R. 444, 575; Normand
v. St. Lawrence Navigation Co. (1879) 5 Q. ,L. R. 215; Lake
Simcoe Ice Co. v. McDonald (1900) 29 0. R. 247, 26 0. A. R.
411, 31 S. C. R. 130. There is a valuable discussion of Caldwell
v. McLaren (1884) 9 App. Gas. 392, and the law generally as
to the right of navigation of streams in Canada to be found in
the verbatim report of the argument before the Privy Council
in Attorney-General for British Columbia v. Attorney-General
for Canada [1914] A. C. 153, (King’s Printer, Victoria, B. C.)
p. 140 seq. As to a river down which only loose logs could be
floated, not being a ” navigable and floatable ” river within
Art. 400 of the Civil Code of Lower Canada, see Maclaren v.
Attorney-General for Quebec [19141 A. C. 258. As to a public
right to navigate non-tidal navigable rivers in Canada, see Fort
George Lumber Co. v. Grand Trunk Pacific R. W. Co. (1915)
24 D. L. R. 527, 528.

les Re Lake Winnipeg Transportation, Lumber and Trading
Co. (1891) 7 M. R. 255, 259. As to the validity of the Domin-
ion Act respecting navigation of Canadian waters, and the ap-
plicability of its provisions to collisions occurring therein, see
The Eliza Keith (1877) 3 Q. L. R. 143; The Hibernian, L. R.
4 P. C. 511, 516-7. Cf. also The Farewell (1881) 7 Q. L. R.

202 CANADIAN CONSTITUTIONAL LAW.

380; Legislative Power in Canada, p. 641, n. 2. It is appar-
ently not material at what port a British vessel is registered,
whether, e.g., she is registered in the Dominion, or in Great
Britain: Rhodes v. Fairweather (1888) Nfd. Decisions, p. 337.
As to the coasting trade of Canada, see (Imp.) Merchant Ship-
ping Act, 1894, sec. 736; and (Dom.) 7-8 Edw. VII. c. 64, brought
into force by Proclamation of Oct 17th, 1908: Can. Gaz. 1908,
p. 1100. As to th.ere being a public right of navigation in Can-
adian non-tidal waters, see Fort George Lumber Co. v. Grand
Trunk Pacific Ry. (1915) 32 W. L. R. 309; and per Anglin, J., in
Keewatin Power Co. v. Town of Kenora (1906) 13 O. L. R. 237,
249-263; and Leamy v. The King (1915) 15 Ex. C. R. 189. In
the Fort George Lumber Co. case, supra, Clement, J., expresses
the opinion that the Dominion parliament cannot create a public
right of navigation over provincial Crown lands covered by
water when no public .right of navigation now exists. Bed quazre,
see Attorney-General of British Columbia v. Canadian Pacific R.
W. Co. [1906] A. C. 204 and supra, pp. 121 and 224, n. 233.

*Macdougall v. Union Navigation Co. (1887) 21 L. C. L. 63.
See, also, Union Navigation Co. v. Couillard (1875) 7 R. L. 215.

167 Report of Minister of Justice of February 23rd, 1910:
Canada’s Federal System, pp. 243-4. It is competent for the
Dominion parliament to incorporate under Dominion charter
the members of such a provincial company, and so enlarge the
scope of their powers and operations: se.e Legislative Power
in Canada, p. 633, n. 2; Canada’s Federal System, pp. 480-483;
and supra, p. 133.

les Report of Minister of Justice of January 28th, 1889:
Hodg. Prov. Legisl. 1867-1895, p. 582. Cf. ibid, at pp. 946-7. In
Longueuil Navigation Co. v. City of Montreal (1888) 15 S. C. R.
566, a Quebec Act authorizing the levy of a tax upon ferryboats,
including steamboats carrying passengers and goods between
Montreal and places not distant more than nine miles, was
held intra vires.

i69Tfte Picton (1879) 4 S. C. R. 648. Cf. Attorney-General
v, Flint (1884) 16 S, C. R. App. 707. The Dominion parliament
may confer jurisdiction on a Vice-Admiralty Court on any matter
of shipping and navigation within the territorial limits of the
Dominion: The Farewell (1881) 7 Q. L. R. 380. For a gen-
eral discussion of the Dominion power in respect to shipping,
see Algoma Central R. W. Co. v. The King (1901) 7 Ex. C. R.
239. In the King v. Martin (1904) 36 N. B. 448, the Supreme
Court of New Brunswick held intra vires a Dominion enact-
ment forbidding, under penalty of imprisonment, enticing sea-
men to desert from their ship or harbouring such deserters.
Judge Clement (L. of C. C. 3rd ed. pp. 211-247) has a useful
chapter on merchant shipping, in which he discusses the lead-
ing provisions of the Imperial Merchant Shipping Act, 1894, and

NOTES. 203

tho Imperial and Canadian legislation subsidiary thereto. See,
also, supra, n. 165t The power of the Commonwealth parlia-
ment in Australia to make laws with respect to navigation and
shipping, covers only navigation between States: 8.8. Kalibia
and Wilson (1910) 11 C. L. R. 689. Until the Constitution is
amended it will, seemingly, be impossible for the Commonwealth
parliament to pass any really .effective merchant-shipping legisla-
tion: Keith, R. G. in D., Vol. II, 868 seq.

170 How far precisely this Dominion exclusive power ov.er
Quarantine extends has not yet been authoritatively deter-
mined. The preservation of public health in a province may,
as Mr. Poley says (Federal Systems, p. 329), appear to be a
matter of local concern, but one can easily understand how in
the case of infectious diseases and epidemics it may assume a
Dominion importance. Mr. Poley (ad loc. cit.) states that in
1869 a Vaccination Bill was introduced into the Dominion par-
liament, but not proceeded with on account of its doubtful
constitutional validity.

171 Clement (L. of C. C. 3rd ed. p. 714, n. 5) calls attention
to the curious error into which Lord Chancellor Selborne fell
in L’Union St. Jacques v. Belisle (1874) L. R. 6 P. C. 31, 37,
in not treating ” sea coast ” as an adjectiv.e, and speaking of
the whole sea coast as put within the exclusive cognizance of
the Dominion Legislature. In the argument before the Privy
Council in Attorney-General of British Columbia v. Attorney-
General of Canada [1914] A. C. 153, “sea coast” is treated
throughout as meaning ” sea-coast fisheries,” not ” sea fish-
eries,” “coast fisheries.” Thus (verbatim report: William H.
Cullin, King’s Printer, Victoria, B.C. p. 94) Sir Robt. Finlay
speaks of the jurisdiction of the Dominion parliament over
“sea coast fisheries,” and says: “Sea coast” is used as an
adjective there.” So, again, ibid. p. 45.

172 Attorney-General of the Dominion v. Attorney-General
of the Provinces (The Fisheries case) [1898] A. C. 700, affirm-
ing S. C. 26 S. C. R. 444; Queen v. Robertson (1882) 6 S. C. R.
52. Clement (L. of C. C. 3rd ed. p. 714) expresses the view
that laws as to the improvement and increase of the fisheries
belonging to a province are no doubt within provincial com-
petence, so long as they do not conflict with federal regula-
tions. It may also be, as Gwynne, J., says (26 S. C. R. at p.
545), that provincial legislation in aid of legislation of the
Dominion parliament for the protection of fisheries would be
intra vires. A provincial Act incorporating a company with
power to catch and cure fish was held intra vires in Re Lake
Winnipeg Transportation and Lumber Co. (1891) 7 Man. 255.
In Young v. Harnish (1904) 37 N. S. 213, the Supreme Court of
Nova Scotia held that the Dominion Fisheries Act was ultra

204 CANADIAN CONSTITUTIONAL LAW.

vires in so far as it empowered the grant of exclusive fishing
rights .even over a public harbour, and that fisheries do not
necessarily constitute a part of such a harbour. As to public
harbours generally, see infra, p. 266, n. 382. On the other hand
in Miller v. Webber (1910) 8 E. L. R. 460, Graham, E.J., held a
Dominion enactment that ‘ No one shall use a bag-net, trap-net,
or fish-pound, except under a special license, granted for cap-
turing deep-sea fish other than salmon,’ intra vires ev.en as
applied to a net set in waters (not being a public harbour)
within three miles of the shore; and says (p. 464) that a dis-
tinction may be drawn, and, perhaps, should have been drawn
in Young v. Harnish, supra, between leases and licenses. As
regards inland waters, the above Privy Council decision settled
the matter, and since 1898 the provinces of Quebec and Ontario
issue all fishery licenses in non-tidal waters, the making and
enforcing the regulations governing the times and methods of
fishing remaining with the Dominion. Cf. Dion v. La Compagnie
de la Bale d’ Hudson (1917) R. J. Q. 51 S. C. 413, holding a Que-
bec loi de peche intra vires. Nevertheless in a communi-
cation of May 14th, 1901, to the Dominion Government
(Prov. Legisl. 1899-1900, at p. 47), the premier of Ontario ex-
presses dissatisfaction with the position in which it leaves the
provinces in respect to the protection of their property in the
provincial fisheries, and suggests securing an amendment of the
Federation Act in that direction. See Canada’s Federal Sys-
tem, pp. 257-259.

wThe King v. The Ship ” North ” (1906) 37 S. C. R. 385,
11 Ex. C. R. 141, 148-150, 11 B. C. 473. As to its being legal
to prevent foreigners from fishing within three miles of the
coast, ‘such being the distance to which, according to the mar-
ine interpretation and usage of nations, a cannon shot is sup-
posed to reach’ (see Opinion of Queen’s Advocate in 1854 in
reference to the Falkland Islands, cited Keith, R. G. in D., Vol.
1, P. 373). See also Reg. v. Keyn (1876) 2 Ex. D. 152, and the
(Imp.) Territorial Waters Jurisdiction Act, 1818, 41-42 Viet,
c. 73, as referred to Clement, L. of C. C. 3rd .ed. p. 109; also see
supra, pp. 79-80, and Canada’s Federal System, p. 259, n. 55 a;
and generally as to Canadian territorial waters and the three-
mile limit: Clement’s L. of C. C. 3rd ed. pp. 242-6. As to fishing
in tidal waters being a public right subject only to regulation by
the Dominion parliament, and that in respect to that nothing
is included within the domain of the provincial legislatures:
see Attorney-General of British Columbia v. Attorney-General -for
Canada [1914] A. C. 153, 172-3. The object and effect of sec.
91 of the Federation Act was to place the management and
protection of the cognate public rights of navigation and fishing
in the sea and tidal waters exclusively in the Dominion parlia*
ment: ibid. That since Magna Charta, no new exclusive fish-

NOTES. 205

ery can be created by Royal grant in tidal waters: see S. C.
p. 170. As to the rights of fishing in non-tidal waters, belong-
ing to the proprietor of the soil, see S. C. p. 171 ; the question
whether such non-tidal waters are navigable or not has no bear-
ing on the question: S. C. p. 173. As to the public having a
right to fish in tidal waters, whether on the foreshore, or in
creeks, estuaries, and tidal rivers, which since Magna Charta
cannot be restricted by prerogative by royal grant or other-
wise, and as to provincial legislatures having no right to alter
these public rights, see S. C. 171, 173. As to the right of fish-
ing in the sea being a right of the public in general which does
not depend on any proprietary title, and that the Dominion has
the exclusive right of legislating with regard to it, see S. C. p.
173 seq. As to foreshore fisheries, and that a grant of the fore-
shore does not carry with it the incorporeal hereditament of
fishing, see the verbatim report of the argument in this Privy
Council appeal, which contains a most valuable discussion of
all the above points, p. 82 seq. It is published, as already in-
timated, by William H. Cullin, King’s Printer, Victoria, B.C.
In their judgment [1914] A. C. 153, 174-5, their lordships de-
clined to deal with the alleged proprietary title in the province
to the shore around its coast within a marine league. So
below, in the Supreme Court, Duff, J. (47 S. C. R. 493, 502),
held it unnecessary to deal with it. For the views of the Su-
preme Court judges in the case generally, see Canada’s Federal
System, pp. 254-7. Six out of fourteen judges in Reg. v. Keyn
(1876) 2 Ex. D. 63, held the sea within three miles of the
coast part of the territory of England. The others did not
pass on the point. As to Quebec Fisheries, however, see In re
Quebec Fisheries in Tidal Waters (1917) 34 D. L. R. 1, in which
four out of five judges of the Quebec K. B. decide that any public
right of fishing in tidal waters in Quebec was abolished by local
Act before Confederation, and that the provincial legislature can
authorize the provincial Government to grant exclusive rights
of fishing therein. The three-mile limit and the ownership of
the fisheries therein is also discussed in that case. See the An-
notation, il), at p. 28. As to fishery rights generally in the
Railway Belt in British Columbia, see the judgment [1914] A. C.
at p. 171 seq. As to the right of fishing in navigable and float-
able rivers in Quebec being exclusively in the Crown, see Wyatt
v. Attorney-General of Quebec [1911] A. C. 489. Under their gen-
eral taxing-power (supra, p. 105) the Dominion parliament can
impose a tax by way of license as a condition of the right to
fish: S. C. [1914] A. C. 153, 713-4.

174 i n re International and Inter provincial Ferries (1905)
36 S. C. R. 206; over-ruling the decision in Perry v. Clergue
(1905) 5 O. L. R. 357, that the right to grant a ferry was a pre-

206 CANADIAN CONSTITUTIONAL LAW.

rogative of the Crown, and a ‘ royalty ‘ within the meaning of
s. 109 of the Federation Act (supra, pp. 153-3), and that it, there-
fore, belonged to the province. ‘ In any case, it is clear that
the prerogative is not a living one at the present day ‘ : Keith,
R. G. in D., Vol. 2, p. 682, citing Dewar v. Smith [1900] S. A.
L. R. 38.

ITS AS to the intervention of the Crown (Imperial) in cur-
rency matters in the Dominions, see Keith, R. G. in D., Vol.
Ill, pp. 1183-1187. ‘ Not only has the Crown a paramount
power as to coinage throughout the Empire, which has never
yet been abridged by any Act, but the power is one which has
been and still is regularly used in respect of the self-governing
Dominions when required’: Ibid. p. 1186.

ITS Canadian Pacific R. W. Co. v. Ottawa Fire Insurance Co.
(1907) 39 S. C. R. 405, 425.

ITT Tennant v. Union Bank of Canada [1894] A. C. 31.
Cf. Merchants Bank v. Smith (1884) 8 S. C. R. 512. ‘Paper
money,’ the Privy Council held in the above case, 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. In his report of May 23rd,
1911, the Minister of Justice says that in his opinion, the ex-
pression ” banking ” is intended to describe not only such pow-
ers as are inherently banking powers, but, also, those which
were, under the laws of the provinces at the time of the Union,
exercised by the banks in the carrying on of their business:
Canada’s Federal System, p. 268.

ITS Prov. Legisl. 1904-1906, p. 25. So Hodgins’s Prov. Legisl.
1867-1895, p. 1268. Cf., also, Prov. Legisl. ‘1899-1900, p. 86.

179 Prov. Legisl. 1904-1906, p. 38. See, too, report of the
Minister of Justice of January 7th, 1910, and January 12th,
1911, and May 23rd, 1911, upon Quebec Acts of 1909 and 1911,
incorporating a company by the name of ‘ The General Trust,’
and conferring upon it the powers of carrying on the business
of money-lending, receiving deposits at interest, purchasing bills
of -exchange, and generally doing an exchange business with
other countries: Canada’s Federal System, pp. 267-269.

iso Bank of Toronto v. Lambe (1887) 12 App. Gas. 575;
Town of Windsor v. Commercial Bank of Windsor (1882) 3 R.

6 S. 420, 427. 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 (1895) R. J. Q.

7 S. C. 257.

isi Cie de C. F. de la Baie des Chalpurs v. Nantel (1896)
Q. O. R. 5 Q. B. 64, 71. Cf., also per Maclennan, J.A., in Regina
V. County of Wellington (1890) 17 O. A. R. 421, 449-451; Bouri-

NOTES. 20?

not’s Parliamentary Procedure and Practice, 2nd ed., at pp. 130,
674 ; per Dorion, C.J., in Colonial Building and Investment As-
sociation v. Attorney-General of the Province of Quebec (1882)
27 L. C. J. 295, 303. In Reg. v. County of Wellington (1890)
17 0. A. R 421, 428, Hagarty, C.J.O., and in S. C. in the Supreme
Court (sub nom. Quirt v. The Queen) 19 S. C. R. 510, 514,
Ritchie, C.J., considered that the Dominion Act there in ques-
tion, which, reciting the insolvency of the Bank of Upper Can-
ada, provided for its winding-up, was valid under this Dominion
power over banking and the incorporation of banks. See, as to
this case, supra, pp. 88-9, n. 99. Provincial legislation is not
” banking legislation ” merely because it may relate to money
deposited in a bank: King v. Royal Bank of Alberta (1912) 4
Alta. 249, in app. [1913] A. C. 283; Canada’s Federal System,
pp. 270-272.

is2 in Re Bread Sales Act (1911) 23 O. L. R. 238, 245, Mere-
dith, J., expresses an opinion, obiter, that an Ontario enactment
that, except as therein excepted, ‘ no person shall make bread for
sale or sell or offer for sale bread except in loaves weighing 24
ounces or 48 pounds avoirdupois ‘ might be supported under this
power. Sed qucere. Cf., however, Rex v. Kay (1909) 39 N. B.
278.

iss Hodgins’ Prov. Legisl, 1867-1895, pp. 212-4. Cf. ibid, at
p. 196; and per Allen, C.J., In The Queen v. City of Fredericton
(1879) 3 P. & B. (19 N. B.) 139. As to the opinion expressed
by Taschereau, J., in Valin v. Langlois (1879) 3 S. C. R. 1, 74,
that by virtue of this power and of s. 101 of the Federation
Act empowering the Dominion parliament to establish ‘ any ad-
ditional Courts for the better administration of the laws of
Canada,’ parliament could require all judicial proceedings
on promissory notes and bills of exchange to be taken before a
Federal Court, see supra, p. 139, and infra, p. 252. n. 318. Cle-
ment (L. of C. C. 3rd ed. p. 801), says ‘no question has been
raised as to the scope of this class’ (sc- of Dominion power) ‘or
as to the validity of any of the provisions of the Federal Bills
of Exchange Act’: (R. S. C. 1906, c. 119).

is* Canada’s Federal System, pp. 274-279.

iss Lynch v. Canada North-West Land Company (1881) 19
S. C. R. 204, 212, where it was held that it does not prevent a
provincial legislature imposing the addition of a percentage upon
all municipal taxes unpaid by a certain date: thus over-ruling
Morden v. South Dufferin (1890) 6 Man. 515; Ross v. Torrance
(1879) 2 L. N. 186; Schultz v. City of Winnipeg (1884) 6 Man.
40; Murne v. Morrison (1882) 1 B. C. (pt. 2) 120. See, also,
per Patterson, J., S. C., at p. 225; per Burton, J.A., in Edgar v. The
Central Bank (1888) 15 O. A. R. 193, 202.

wBradburn v. Edinburgh Assurance Co. (1903) 5 O. L. R.
657. A precisely similar enactment is contained in the Ontario

208 CANADIAN CONSTITUTIONAL LAW.

statute, R. S. 0. 1897, c. 205, s. 25. It was argued in the above
case that the Dominion pow^r was to legislate as to rate, as to
usury, leaving details and matters affecting contracts to the
provinces. The learned judge, however, (Britton, J.,) says: ” It
is one thing to legislate when the contract has sole reference to
security for money lent at interest, and quite a different thing
to legislate in reference to other contracts when interest is only
an incident”: pp. 664-6. See, further, as to the constitutionality
of such legislation: Can. Hans. 1886, p. 440; Bourinot’s Parlia-
mentary Procedure and Practice, 2nd ed. p. 671; Legislative
Power in Canada, p. 389, n. 1. It is no infringement of the
Dominion power for a provincial Act to authorize municipalities
to issu.e debentures bearing interest not exceeding seven per
cent, or any other rate: Schultz v. City of Winnipeg (1884) 6
Man. 35, 45. Cf. per Gwynne, J., in Lynch v. Canada North-
West Land Co. (1891) 19 S. C. R. 204, 223; ana Royal Canadian
Insurance v. Montreal Warehousing Co. (1880) 3 L. N. 155, 157.
On the argument before the Privy Council in the recent Insur-
ance Companies case [1916] A. C. 588, the following is reported
to have taken place (verbatim report, 3rd day, p. 27 seq.) :

Lord Parker of Waddington: ” . . Take enumeration No.
19 of sec. 91, which is ‘ interest.’ Do you say it would be im-
possible to pass something like the Money Lenders Act in this
country under that.”.

Sir Robert Finlay ” . . I very much doubt whether
tho business of a money-lender would be within the scope of
the enactment.”

The Lord Chan.: ” The question is whether the power to
regulate interest under sec. 91 is confined to th.e regulation of
interest in all transactions in which money lending is involved,
or whether it can be applied to a particular trad.e, the trade
of money lending. Is it general?

Sir Robt. Finlay: ” I think the power as to interest would
need to be general.”

The Lord Chan. : ” They must regulate the interest on the
loan whoever lends the money.”

IST An historical distinction exists between bankruptcy and
insolvency laws. The former were passed for the protection of
creditors against insolvent and fraudulent traders; the latter
for the protection of ordinary private debtors, poor and dis-
tressed, but honest: Poley’s Federal Systems, p. 97. As to its
being proper to assign the widest meaning to- th.e words ‘ bank-
ruptcy and insolvency ‘ in this subsection, so as to include the
right to declare certain things acts of insolvency, or evidence
of insolvency, though not previously regarded as such, see Re
Colonial Investment Co. (1913) 23 Man. 871, 15 D. L. R. 634.

iss Attorney-General for Ontario v. Attorney-General for
Canada [1894] A. C. 189. Cf. Tooke Bros. Limited v. Brock and

NOTES. 209

Patterson, Limited (1907) 3 E. L. R. (N.B.) 270, 272. Their
lordships had previously said in UUnion St. Jacques v. Beiisle
(1874) L. R. 6 P. C. 31, 36-37: “Bankruptcy and insolvency are
well-known legal terms expressing systems of legislation with
which the subjects of this country and probably of most other
civilized communities are perfectly familiar. The words describe
in their known sense provisions made by law for the administra-
tion of the estates of persons who may become bankrupt or
insolvent, according to rules and definitions prescribed by law,
including of course the conditions in which that law is to be
brought into operation, the manner in which it is to be
brought into operation and the effect of its operation.” Cle-
ment (L. of C. C. 3rd ed. p. 804), italicizes the words “accord-
ing to rules and definitions prescribed by law,” and says ‘ the
phrase in italics indicates that bankruptcy and insolvency
for the terms are really synonymous is a purely legal concept
which the Dominion parliament alone can create.’ A provin-
cial Act providing for the relief of debtors imprisoned on pro-
cess out of the County Courts does not infringe the Dominion
exclusive power: Johnson v. Poyntz (1881) 2 R. & G. 193; nor
do.es one to wind up a company on the ground that it is heavily
embarrassed and cannot extricate itself without having recourse
to the double liability of the shareholders: In re Wallace Huestis
Grey Stone Co. (1881) Russ. Eq. 461. Queen v. Chandler (1869)
1 Hann. 548, seems wrongly decid.ed in holding ultra vires a pro-
vincial Act providing for the discharge of insolvent debtors,
after examination, where their inability to pay was shewn, and
they had made no fraudulent transfer or undue preference. The
Dominion can legislate under this power for the distribution of
the estate of the debtor either with or without a discharge of
his liabilities: Dupont v. La Cie de Moulin a Bardeau Char-
frent (1888) 11 L. N. 255. But ante-Confederation legislation
on bankruptcy and insolvency is an unreliable guide to the scope
of this Dominion power. Cf. Crombie v. Jackson (1874) 34 U.
C. R. 575, 580; per Maclennan, J.A., in Regina v. County of
Wellington, 17 0. A. R. 421, 452-3. Certainly the British North
America Act ” must not be read by the light of an Ontario
candle alone,” without reference to what the law was in oth.er
parts of the Dominion: per Ritchie, C.J., in Severn v. The Queen
(1878) 2 S. C. R. 70, 99.

iso See 43 Viet. c. 1, D., respecting the existing legislation.
The Dominion Winding-up Acts are insolvency legislation, and
are properly made applicable to companies, though incorpor-
ated under provincial legislation: Re Eldorado Union Store
Co. (1886) 6 R. & G. 514; Schoolbred v. Clarke (1890) 17 S. C.

C.C.L. 14

210 CANADIAN CONSTITUTIONAL LAW.

R. 265; Re Clark v. Union Fire Ins. Co. (1887) 14 0. R. 618,

16 O. A. R, 161; Re Farmers Bank, Lindsay’s case (1916) 35
O. L. R. 470, q. v. as to the Dominion parliament having power
to determine the machinery by which such corporations shall be
wound up, as by referring and delegating to any officer of the
Court any of the powers conferred upon the Court by the
Act; and in Allen v. Hanson (1890) 13 L. N. 129, 16 Q. L. R.
78, a provision in the Dominion Winding-up Act mak-
ing that statute applicable to incorporated trading companies
‘ doing business in Canada, no matter where incorporated,’ was
held intra vires, all the Act seeking to do in the case of foreign
corporations being to protect and regulate >th.e property in Can-
ada, and to protect the rights of creditors of such corpora-
tions upon their property in Canada. But this must not be
understood as meaning that the Dominion Act can au-
thorize the making of an original winding-up order of a
company incorporated under the Imperial Joint Stock Com-
panies Act and never incorporated in Canada: S. C. at p.
674; Merchants Bank of Halifax v. Gillespie (1885) 10 S.
C. R. 312. Cf. per Henry, J., S.C., p. 334; Lindley’s Law of Com-
panies, 6th ed. pp. 840, 1225. See, also per Strong, J., in Allen
v. Hanson (1890) 18 S. C. R. 667. But in Re Briton Medical
Life Association (1886) 12 O. R. 441, 447-8, Dominion enact-
ments requiring foreign insurance companies doing business in
Canada to make a certain deposit with the Minister of Finance
were held intra vires, and an order made, on petition, for the
distribution of the deposit made by an English company among
the Canadian policy holders, notwithstanding that proceedings
to wind up the company were pending before the English Courts.
By virtue of its exclusive power over bankruptcy and insol-
vency, the Dominion parliament can provide for the winding-
up in insolvency, of a single institution: Quirt v. The Queen
(1891) 19 S. C. R. 510, affirming the decisions of the Courts
below reported sub nom. Regina v. County of Wellington, 17
O. R. 615, 17 O. A. R. 421. Maclennan, J.A., however, dissented:

17 O. A. R. at pp. 452-3. Cf. Legislative Power in Canada, pp.
568-571.

io Gushing v. Dupuy (1880) 5 App. Cas. 409. Cf. Attorney-
General of Ontario v. Attorney-General of Canada [1894] A. C. 189;
Thrasher Case (1882) 1 B. C. (Irving) 170, 208. For Canadian
decisions and dicta illustrating the same point, see Legislative
Power in Canada, at pp. 439-442.

191 Hodge v. The Queen (1882) 7 O. A. R. 246, 274.

192 Attorney-General of Canada v. Sam Chak (1909) 44 N.
S. 19; In re Henry Vancini (1904) 34 S. C. R. 621; Geller v.
Loughrin (1911) 24 O. L. R. 18, 25, 33; Canada’s Federal Sys-
tem, pp. 148-151; Legislative Power in Canada, pp. 511-517.

NOTES. 211

193 Supra, pp. 97-8. And so per Osier, J.A., in Clarkson v.
Ontario Bank (1888) 15 O. A. R. 166, 191.

194 in re De Veber (1882) 21 N. B. 397, 398-9, 425.

195 Parent v. Trudel (1887) 13 Q. L. R. 136, 139.

ise Attorney-General of Ontario v. Attorney-General of Can-
ada [1894] A. C. 189; In re Killam (1878) 14 L. J. N. S. at pp.
242-3. In Baie ties Clialeurs R. W. Co. v- Nantel (1896) R. J.
Q. 9 S. C. 47, 5 Q. B. 65, the Quebec Courfc of Queen’s Bench
held that a provincial statute which provided for the seques-
tration of the property of a railway company subsidized by the
province, when such company was insolvent, and that the
sequestrator should take possession, complete and work the
railway, and that, if he had not the means at his disposal for
that, the Court might order the sheriff to seize and sell the
road and its rolling stock, applied to, and was intra vires as
applying to, a Dominion railway company. Sed qucere. See
Re Iron Clay Brick Manufacturing Co. (1889) 19 O. R. 113,
119-120; Reports of Minister of Justice of Nov. llth, 1899, and
January 8th, 1904: Prov. Legisl. 1899-1900, at p. 49, and 1901-3,
at p. 27; Legislative Power in Canada, p. 457, n. 2, where In re
Dominion Provident Benevolent and Endowment Association
(1894) 25 0. R. 619, is discussed. There would seem, however,
no objection to provincial legislation providing for the liquida-
tion of the affairs of companies, under special circumstances,
and irrespective of whether they be insolvent or not: McClan-
aghan v. St. Ann’s Mutual Building. Society (1880) 24 L. C. J.
162. Cf. UTJnion St. Jacques de Montreal v. Belisle (1874)
L. R. 6 P. C. 31. On the other hand, as to the Dominion
Winding-up Act only applying where there is insolvency, since
otherwise it would be ultra vires, see Re Cramp Steel Co. Lim-
ited (1908) 16 0. L. R. 230. But see Re Colonial Investment
Co. (1913) 23 Man. 871. The correctness of the view taken in
this last case is doubted: Clement, L. of C. C. 3rd ed. p. 810. As to
Dominion bankruptcy legislation, though free to deal with civil
rights in the province as regards creditors or contributories or
assets of the company, it is not free to deal with the rights of
third parties not creditors or contributories of the company, e.g.,
parties asserting merely a legal or equitable right to property
which they claim, and which the company holds in trust for
them: per Davies, J., in Stewart v. Le Page (1916) 53 S. C. R.
337, 342-3. The judgments of the other judges, however, can-
not be said to support this view.

197 in In re Bell Telephone Co. (1884) 7 O. R. 605, 612, Osier,
J.A., held intra vires sec. 28 of the Dominion Patent Act, 1872,
which, after specifying certain cases in which patents are to
be null and void, provided that in case dispute should arise

212 CANADIAN CONSTITUTIONAL LAW.

under that section, it should be settled by the Minister of Agri-
culture, whose decision should be final. Cf. per Henry, J., in
Smith v. Goldie (1882) 9 S. C. R. 46, 68, 69; per Ritchie, C.J.,
in Valin v. Langlois (1879) 3 S. C- R. 1, 23-24; and supra, pp.
138-9. The decision also may be justified upon the principle
illustrated and acted upon in Aitcheson v. Mann (1882-3) 9
P. R. 253, 472; Wilson v. Codyre (1886) 26 N. B. 516; and
Flick v. BrisUn (1895) 26 O. R. 423, namely, that, in conferring
some benefit or creating some right, the Dominion parliament
may impose as a condition upon those who avail themselves of
that benefit or right, something which it would be ultra vires
for it to enact otherwise. For the lapplication of a like prin-
ciple to provincial legislatures, see Kerley v. London and Lake
Erie Transportation Co. (1912) 26 0. L. R. 588; reversed, on
app., but not on this point, 28 0. L. R. 606. As to whether
the Attorney-General for the province or for Canada, is the
proper person to institute proceedings in the nature of a
scire facias to set aside a patent of invention, see Reg. v. Pattee
(1871) 5 O. P. R. 292; Mousseau v. Bate (1883) 27 L. C. J. 153.
Clement (L. of C. C. 3rd ed. pp. 589-595), discusses generally
the subject of the Crown in the Courts. By the Ontario Execu-
tion Act (9 Edw. VII, c. 47, s. 16), all rights und.er letters
patent of invention and any equitable or other right, property,
interest, or equity of redemption therein may be seized and
sold under execution by the sheriff: notice of the seizure is
to be given to the patent office, and the interest of the
debtor ‘ shall be bound from th.e time when the notice is re-
ceived there.’ In Felt Gas Compressing Co. v. Felt (1914) 5
O. W. N. 821, Falconbridge, C.J., held the section intra vires,
treating it as legislation in regard to ‘ property and civil rights
in the province.’

108 Smiles v. Belford (1873) 23 Gr. 590, 1 0. A. R. 436. See
per Burton, J.A., 1 O. A. R. at p. 443; per Moss, J.A., Hid. at
pp. 447-8. See, also, Anglo-Canadian Music Publishers Associa-
tion v. Suckling (1889) 17 O. R. 239; Black v. Imperial Book
Co. (1903) 5 0. L. R. 184.

199 Hubert v. Mary (1906) R. J. Q. 15 K. B. 381; Smiles v.
Belford, supra; Imperial Copyright Act 1911, and the speech
of Mr. Sydney Buxton in introducing the Bill into the House
of Commons, on July 26th, 1910; Legislative Power in Canada,
pp. 222-231; Canada’s Federal System, pp. 51-53, 56, 295; Dom.
Sess. Pap. 1894, No. 50, p. 7; Articles on Canadian Copyright,
in 49 Amer. L. R. 675, and 24 C. L. J. 307, 347 (1904).

200 The Dominion Constitution leaves the Indians in tbe
same position as any other persons with regard to the fran-
chise, but therp are certain restrictions in some of the pro-

NOTES. 213

vinces with regard to the Indians being enrolled as electors,
though these restrictions are only partial: see, generally,
Keith, R. G. in D., Vol. II, pp. 1055-7, who deals in the same
chapter with the general subject of the treatment and posi-
tion of the native races in all the Dominions..

201 St. Catherines Minting and Lumber Co. v. The Queen
(1888) 14 App. Cas. 46, 59. And see per Patterson, J.A., S. C.
13 O. A. R. 148, 170. See, also, Ontario Mining Co. \. Seybold
[1903] A. C. 73; reported below 32 S. C. R. 1, 32 O. R. 301,
31 0. R. 386. See, too, Caldwell v. Fraser (1898) unreported,
apparently, except in McPherson and Clark’s Law of Mines, pp.
15-24, but referred to at some length in Canada’s Federal Sys-
tem, pp. 299-301; approved of by Boyd, C., in Ontario Mining
Co. v. SeyboTd (1899) 31 0. R. at p. 400. On the argument
before the Privy Council in The Bonanza Creek Gold Mining
Co. case [1916] A. C. 566 (7th day, p. 72, Martin Meredith and
Co.’s transcript), Mr. Newcombe referring to the St. Cath-
erines Milling and Lumber Co. case, says: “It will be the
other way about, I submit, when the surrender is in one of the
new provinces. They are exempted under sec. 91, under
‘ Public debt and property.’ The local authority has no legis-
lative jurisdiction over the public property of Canada.”

Viscount Haldane: ” No, they have legislative jurisdic-
tion over the whole territory, and they have some power to
mak.e laws there, but they cannot legislate with regard to the
title.”

As to when lands are ‘ lands reserved for Indians ‘ within
this item, see Attorney-General for Canada v. Giroux (1916) 53
S. C. R. 172, 30 D. L. R. 123. Idington, J., held in this case
(30 D. L. R. at p. 132) that for this Dominion legislative^
power to apply, the alleged reserve must have been duly con-
stituted on or before July 1st, 1867.

202 Church v. Fenton (1880) 28 C. P. 384, 4 0. A. R. 159,
5 S. C. R. 239. But Indians may possess an interest in lands
‘ other than that of the Province in the same ‘ within the mean-
ing of sec. 109 of the Federation Act (supra, pp. 152-3) as e.g.
the constituted rents of a seigniory in the province of Quebec, in
which case it will be for the Dominion Government (it having
the administration of the affairs and property of Indians in
Canada, as an implication from its legislative power) to sue
for and collect the arrears of such rents: Mowat v. Casgrain
(1896) R. J. Q. 6 Q. B. 12. Whether the legislative power of
the provinces over lands when divested of the Indian title is
controlled and limited by the provisions of any treaties made
with the Indians at the time of their surrender does not ap-
pear to have come up for decision: but, in any case, the Do-
minion Government would, no doubt, always protect the rights

214 CANADIAN CONSTITUTIONAL LAW.

of the Indians under such treaties by its power of disallow-
ance. Cf. Hodgins’ Prov. Legisl. 1867-1895, pp. 1024-8, q.v. on
the general subject of the Indian title. As to any right of
indemnity of 2 This exemption is for the protection of the interest of
the Crown only, and does not debar th.e province from taxing
any interest in Crown lands, Dominion or provincial, legal or
equitable, which the Crown has conferred on a subject: Rud-
dell v. Georgeson (1893) 9 Man. 407; Calgary and Edmonton
Land Co. v. Attorney-General of Alberta (1911) 45 S. C. R.
170, 2 Alta. 446 ; Canadian Pacific R. W. Co. v. Rural Munici-
pality of Cornwallis (1891) 7 Man. 1, 24, in app. 19 S. C. R.
702, 710; Smith v. Rural Municipality of Vermilion (1914) 49
S. C. R. 563, 572, 576, aff. [1916] A. C. 569. Cf. Southern Al-
berta Land Co. v. Rural Municipality of McLean (1916) 53 S.
C. R. 151; Whelan v. Ryan (1891) 20 S. C. R. 65, 73; Rural
Municipality of Norfolk v. Warren (1892) 8 Man. 481; Alloway
v. Rural Municipaltiy of Morris (1908) 18 Man. 361.

* Abbott v. City of St. John (1908) 40 S. C. R. 597, 606,
616, 619; followed Toronto v. Nor son (1917) 40 0. L. R. 227.
This overruled a number of previous Canadian decisions: Can-
ada’s Federal System, p. 417, n. 72. And so under the Australian
Constitution: Webb v. Outrim [1907] A. C. 81; Keith R. G. in D.
Vol. Ill, pp. 1368-1372, where a contrast is drawn between the
position of the States of the Australian Commonwealth and those
of the American Union which applies equally to the provinces of
Canada, notwithstanding the latter have only certain specific enu-
merated powers. Cf. Bank of Toronto v. Lambe (1887) 12 App.
Cas. 575, 587; Baxter v. Commissioners of Taxation (1907) 4
C. L. R. 1087; Article on Constitution of United States and
Canada (1912) 32 C. L. J. 849. CoU v. Watson (1877) 3 Q. L.
R. 157, would no longer be sustainable in holding ultra vires
a provincial Act imposing a tax on the sum realized from the
sale of an insolvent’s effects when made under the Dominion
Insolvent Act. See, also, Legislative Power in Canada, pp.
671-8. Cf. Fillmore v. Colburn (1896) 28 N. S. 292. It may
still be good law, however, that a provincial legislature has no
power to declare liable to seizure the salaries of employees of
the Federal Government: Evans v. Hudon (1877) 22 L. C. J.
268; Prov. Legisl. 1904-1906, p. 12. As to taxing soldiers and
sailors, cf. per Robinson, C.J. in Tully v. Principal Officers of
Her Majesty’s Ordnance (1847) 4 U. C. R. 7, 14. As to the right
of a province to compensate Dominion officials, when the Dom-
inion has not done so: Re Toronto Harbour Commissioners
(1881) 28 Gr. 195.

264 Bank of Toronto v. Lambe (1887) 12 App. Cas. 575,
586-7; Great North Western Telegraph Co. v. Fortier (1903) R. J.

NOTES. 239

Q. 12 K. B. 405; Town of Windsor v. Commercial Bank of Wind-
sor (1882) 3 R. & G. 420, 427; Canadian Pacific R. W. Co. v.
Corporation of Bonsecours [1889] A. C. 367, 372-3. Cf. Angers
v. Queen Insurance Co. (1877) 21 L. C. J. 77, 81; Heneker v-
Bank of Montreal (1895) R. J. Q. 7 S. C. 257, 262.

265 Brewers and Maltsters Association of Ontario v. Attorney-
General of Ontario [1897] A. C. 231, followed Rex v. Neider-
stadt [1905] 11 B. C. 347; Fortier v. Lambe [1895] 25 S. C. R.
422. The distinction between wholesale trading and retail
trading seems to mark no line of cleavage in Canadian consti-
tutional law: Canada’s Federal System, pp. 204, n. 14, 436-8. Cf.
Attorney-General of Manitoba v. Manitoba License Holders
Association [1902] A. C. 73.

266 The appointment of Queen’s Counsel is an appointment
to an office within this sub-section: Attorney-General for the
Dominion v. Attorney-General for Ontario (Queen’s Connsel
case) [1898] A. C. 247; Lenoir v. Ritchie (1879) 3 S. C. R. 575;
Legislative Power in Canada, pp. 88-9, 133-5. Under section 134
of the Federation Act, providing for the appointment of executive
officers for Ontario and Quebec, until the provincial legislatures
otherwise provide, the Lieutenant-Governors of those provinces
can create Queen’s Counsel for the purposes of the provincial
Courts: Canada’s Federal System, p. 424, where the opinion of
the law officers of the Crown in 1887 to this effect is referred
to.

267 Thus, though the regulation of fisheries is an exclusively
Dominion subject, the terms and condition upon which provin-
cial fisheries may be granted, leased, or otherwise disposed of
appear proper subjects of provincial legislation under this
clause: Attorney-General of the Dominion v. Attorney-General
of the Provinces [1898] A. C. 700, 715-6; and so does a restric-
tion that all pine timber cut under provincial licenses shall
be manufactured into sawn lumber in Canada: Smylie v. The
Queen (1900) 31 O. R. 202, 27 0. A. R. 172. As to Indian lands,
see supra, p. 152, and notes-

aes Attorney-General of Ontario v. Attorney-General of the
Dominion (Liquor Prohibition Appeal, 1895) [1896] A. C. 348,
363-4. Premonitions of this view had been given in the course
of the arguments before the Privy Council in Hodge v. The
Queen (Dom. Sess. Pap. 1884, Vol. 17, No. 30 at p. 67), and In re
Dominion License Acts 1883 and 1884: see extracts given
Canada’s Federal System, pp. 427-429. The matter does not
depend, as was at one time supposed by some judges, upon the
municipal institutions which existed, or the powers which were
exercised by municipal corporations in this, that, or the other
province, before Confederation. See for cases illustrating this
superseded view: Legislative Power in Canada, pp. 45-46, 59-61,
706 n 1.

240 CANADIAN CONSTITUTIONAL LAW.

269 Hodge v. The Queen (1883) 9 App. Cas. 117, 132.

270 Schultz v. City of Winnipeg (1889) 6 Man. 40, 57; Reg.
ex rel. McGuire v. Birkett (1891) 21 0. R. 162, where it was
held they had power to invest the Master in Chambers at Toronto
with authority to try controverted municipal election cases. Cf.
Crowe v. McCnrdy (1885) 18 N. S. 301; Clarke v. Jacques (1900)
R. J. Q. 9 Q. B. 238. Provincial legislation enacting that no
Chinaman, Japanese, or Indian shall be entitled to vote at
municipal elections would seem to be intra vires’, Prov. Legisl.
1899-1900, p. 139 (see, however, ibid, p. 144); Cunningham v.
Tomey Homma [1903] A. C. 151. It would seem that the Do-
minion parliament can confer upon municipal corporations,
powers and functions in respect to matters not of provincial
competence: Hart v. Corporation of County of Missisquoi, (1876)
3 Q. L. R. 170 ; Cooey v. Municipality of the County of Brome
(1872) 21 L. C. J. 182, 186; Township of Compton v. Simoneau
(1891) 14 L. N. 347; In re Prohibitory Liquor Laws (1885)
24 S. C. R. 170, 247. Clement (L. of C. C. 3rd ed. p. 796) refers
to the Canada Temperance Act as a notable example of powers
conferred and duties imposed upon municipalities by federal
legislation. But it would not seem that the Dominion parlia-
ment can give new corporate powers to municipal corporations,
or confer on them capacities not conferred by the provincial
legislation such as to acquire and make new streets across
Dominion railways: Grand Trunk R. W. Co. v. City of Toronto
(1900) 32 0. R. 120′, 125. As to the Dominion power to compel
municipalities to contribute to the cost of protecting railway
crossings over federal railways, see City of Toronto v. Canadian
Pacific R. W. Co. [1908] A. C. 54 ; In re Canadian Pacific R. W.
Co. and County and Township of York (1896) 27 O. R. 559, 569.
See supra, n. 233.

271 Thest cases are collected in Legislative Power in Canada,
pp. 27, n. 1, 726, n. 2. See, also, City of Halifax v. Western
Assurance Co. (1885) 18 N. S. 387. Lee v. De Montigny (1889)
R. J. Q. 15 S. C. 607, a provincial Act authorizing the City of
Montreal to require laundries to take out a license, was held
to be intra vires, on the strength, however, of No. 8, ‘municipal
institutions,’ which seems clearly an error (supra, p. 127). In
Re Foster and Township of Raleigh (1910) 22 O. L. R. 26, 342,
a provincial Act exacting an annual license fee for keeping
billiard tables for hire, was held valid.

272 Thus in Russell v. The Queen (1882) 9 App. Cas. 829,
their lordships speak of ” licenses granted under the authority
of subs. 9 by the provincial legislature for the sale or carrying
of arms”; in the Fisheries case [1898] A. C. 700, they speak
of provincial legislatures being able to impose licenses as a
condition of the right to fish; in the Brewers and Maltsters 1

NOTES. 241

Association case [1898] A. C. 700, they hold that at any rate
the genus will include brewers’ and distillers’ licenses, thus
destroying the authority of Severn v. The Queen (1878), 2 S.C.R.
70. In John Deere Plow Co. v. Wharton, [1915] A. C. 330. 348,
they say that: ” a ‘ Dominion company . . cannot
escape the payment of taxes, even though they may assume the
form of requiring, as the method of raising a revenue, a license
to trade which affects a Dominion company in common with
other companies.” Cf. also International Text Book v. Brown
(1907), 13 O. L. R. 644.

273 Brewers and Maltsters Association of Ontario v.
Attorney-General for Ontario [1897] A. C. 231. Some Canadian
Judges, however, had held that taxation by means of licenses
under this subsection was indirect taxation: see Legislative
Power in Canada, p. 361, n. 2. The fact that there might be
doubt as to this may be the explanation of the subsection: so
per Spragge, C.J., in Regina v. Frawley (1882) 7 0. A. R. 246.
Provincial legislatures must not under colour of licenses tax
indirectly: Attorney-General of Quebec v. Queen Insurance Co.
(1878) 3 App. Gas. 1090; Brewers and Maltsters Association
case, supra, p. 357. But if taxation under this subsection can
be indirect, it will nevertheless be valid: In re Companies (1913)
48 S. C. R. 331, 418.

2-4 Brewers and Maltsters Association of Ontario v.
Attorney-General for Ontario [1897] A. C. 231; Queen v. Mc-
Dougall (1889) 22 N. S. 462, 491; In re Dominion License Acts,
1883-4, Gas. Dig. S. C. 509; Regina v. Halliday (1893) 21 0. A. R.
42, 44; Liquor Prohibition Appeal, 1895 [1896] A. C. 348, 367-8;
Canada’s Federal System, pp. 436-8. It had been thought other-
wise in Canadian Courts, and that wholesale trade had a quasi-
national, rather than municipal character, and comprised the
trade and commerce of the country in some fuller sense than
the retail trade: Severn v. The Queen (1878) 2 S. C. R. 70;
Legislative Power in Canada, p. 727, n. 3. See, further,
as to In re Dominion License Acts, 1883-4, Legislative
Power in Canada, pp. 403-6, 727-9. It was discussed on
the argument before the Privy Council on the recent Insur-
ance Companies case (Attorney-General for Canada v. Attorney-
General for Alberta [1916] A. C. 588); see e.g. Martin, Meredith,
& Co.’s Transcript, 3rd day, p. 86.

275 Severn v. The Queen (1878) 2 S. C. R. 70, 108-9; Russell
The Queen (1882) 7 App. Cas. 829, 837. But quite apart from
this subsection 9, there seems nothing to prevent provincial
legislatures imposing the necessity of obtaining licenses as a
method of police regulation (as to which see supra, pp. 141-2) :
O’Danaher v. Peters (1889) 17 S. C. R. 44; Hamilton Powder Co.

C.C.L. 16

24:2 CANADIAN CONSTITUTIONAL LAW.

v. Lam&e (1885) M. L. R. 1 Q. B. 460. See, also, City of Montreal
v. Walker (1885), M. L. R. 1 Q. B. 469. See also as to the power
of police regulation extending to wholesale trade, Keefe v. Mc-
Lennan (1876) 2 R. & C. 5, 12: contra Severn v. The Queen
(1878) 2 S. C. R. 70, 100-2, 105-6, 115. Cf. per Strong, J. in
In re Prohibitory Liquor Laws (1895) 24 S. C. R. 170, 204. It
must not, apparently, be supposed, though some Canadian
judges have been of that opinion (see cases collected Legislative
Power in Canada, at pp. 44-49; Canada’s Federal System, p. 441,
n. 152) that in taxing by means of licenses under No. 9 of
section 92 provincial legislatures are confined to licenses of the
same kind as those in existence in the provinces before Con-
federation: per Strong, J. in Severn v. the Queen (1878) 2 S. C.
R. 70, 109, who says: “I think everything indicates that co-
equal and co-ordinate legislative powers in every particular
were conferred by the (Federation) Act on the provinces” (see
supra, p. 93). See, however, per Strong, J., in Huson v. Town-
ship of South .Norwich (1895) 24 S. C. R. 145, 150-1. As to
whether provincial legislatures may discriminate against aliens
in the granting of licenses, see Prov. Legisl. 1899-1900, at
pp. 134-138.

276 Attorney-General for the Dominion v. Attorney-General
for the Provinces [1898] A. C. 700, 713-4; Severn v. The Queen

(1878) 2 S. C. R. 70, 101; Angers v. Queen Insurance Co. (1877)
16 C. L. J. N. S. 198, 204-5; In re Local Option Act (1891) 18 O.
A. R. 572, 580; Canada’s Federal System, pp. 443-4.

277 Sub-divisions (a) (b) and (c) have been dealt with in
connection with Dominion powers, supra, pp. 119-122. As to the
Dominion power to withdraw local works and undertakings
from provincial jurisdiction, see supra, pp. 119-124. As to the
Dominion power to control crossings by provincial railways of
Dominion railways, see nn. 236, 279. In Quong Wing v. The
King (1914) 49 S. C. R. 440, 461, there is the, perhaps, somewhat
surprising dictum of Duff, J. that a provincial enactment for-
bidding the employment of white women in Chinese restaurants,
laundries, etc., might ” plausibly be contended ” to be legisla-
tion in relation to ‘ local works and undertakings ‘ under the
above sub-section of section 92.

278 pro: European and North American R. W. Co. v. Thomas
(1871) 1 Pugs. 42; contra: Hewson v. Ontario Power Co. (1905)
36 S. C. R. 596, 608, per Davies, J. who, however, speaks as though
this sub-section contained the expression ” undertakings of a
local and private nature” which it does not: see Canada’s
Federal System, pp. 447-449; Dow v. Black (1873) 14 N. B. 300,
sul) nom. The Queen v. Dow; City of Toronto v. Bell Telephone
Co., 6 O. L. R. 335, 343; Prov. Legisl. 1899-1900, p. 138; 1901-
1903, p. 58. See, also, Canada’s Federal System, p. 452, n. 176.

NOTES. 243

270 AS to provincial legislatures, quite apart from any ques-
tion of the Dominion veto power, not being able to authorize
a provincial railway company to expropriate and cross Dominion
Crown lands, see Hodg. Prov. Legisl. 1867-1895, at pp. 855-6;
Canada’s Federal System, p. 453.

280 Kerley v. London and Lake Erie Transportation Co.

(1912) 26 O. L. R. 588, refusing to follow In re Legislation Re-
specting Abstention from Labour on Sunday (1905) 35 S. C. R.
581. ” If the company accept a charter with such a limitation
wherein is the Constitutional Act offended against?”: per Boyd,
C. 26 O. L. R. at p. 598. See supra, n. 212. On appeal in the
Kerley case (28 0. L. R. 606) the constitutional point was not
dealt with.

281 Attorney-General for Ontario v. Hamilton Street R. W.
Co. [1903] A. C. 524.

282 prov. Legisl. 1901-1903, pp. 58, 64. – Cf. Prov. Legisl. 1899- ‘
1900, pp. 104, 112, 122-3; Canada’s Federal System, pp. 457-460.

283 Schoolbred v. Clarke (1890) 17 S. C. R. 265, 274. And
see 8t. Francois Hydraulic Co. v. Continental Heat and Light
Co. [1909] A. C. 194. As Duff, J. says in British Columbia
Electric R. W. Co. v. Vancouver, Victoria, and Eastern R. W. Co.

(1913) 48 S. C. R. 98, 116, 13 D. L. R. 308, 318, a provincial
railway is subject to provincial legislative jurisdiction in re-
spect to matters properly comprehended within railway legis-
lation, but not in respect to matters which fall under some other
head of sec. 91 of the B. N. A. Act. Cf. as to a corporation
created by Act of the old province of Canada being bound by
provincial legislation passed after Confederation: Hamilton
Powder Co. v. Lambe (1885) M. L. R. 1 Q. B. 460. As to a
provincial legislature when carrying out by statute a scheme
for the financial re-organization of a local work or undertaking
having power to legislate respecting debenture bonds held out
of the jurisdiction, see Jones v. Canada Central R. W. Co. (1881)
46 U. C. R. 250, 260. Cf. per Savary, Co.J. In In re Killam
(1878) 14 C. L. J. N. S. 242. See, also, now Royal Bank of
Canada v. The King [1913] A. C. 283 (infra, n. 303) ; and
Canada’s Federal System, pp. 454-5.

284 Probably it was intended by this sub-section ” to pre-
clude the contention that if the power of incorporation should
be regarded as a substantive and distinct head of legislative
jurisdiction, it was wholly vested in the Dominion parliament
as part of the residuum under the ‘ peace, order, and good gov-
ernment ‘ provision of section 91 because not expressly men-
tioned In the enumeration of provincial powers”: per Anglin,
J. in In re Companies (1913) 48 S. C. R. 331, 450.

286 p er Duff, J., in In re Companies (1913) 48 S. C. R. 331,
at p. 411, 446.

244 CANADIAN CONSTITUTIONAL LAW.

286 [1916] A. C. 566,

287 The words are from the judgment of the Privy Council
in Bonanza Creek Gold Mining Co. v. The King [1916] A. C. 566,
577. For confirmation see per Davies, J. in Canadian Pacific
R. W. Co. v. Ottawa Fire Insurance Co. (1907) 39 S. C. R. 405,
412-3; per Fitzpatrick, C. J. in Bonanza Creek Gold Mining Co.
v. The King (1915) 50 S. C. R. 534, 539; per Davies, J. S. C. at
p. 542; per Duff, J. S. C. p. 574. The point actually decided by
the majority of the Supreme Court in Canadian Pacific R. W. Co.
v. Ottawa Fire Insurance Co., supra, was that a company in-
corporated under the authority of a provincial legislature to
carry on the business of fire insurance is not inherently in-
capable of entering outside the boundaries of its province of
origin into a valid contract of insurance of property also out-
side its limits. As to this case and for previous provincial
decisions to the same effect, see Canada’s Federal System, pp.
466-475. In the Bonanza Creek Gold Mining Co. case, supra, the
Supreme Court held that a mining company incorporated under
the law of the province of Ontario has no power or capacity
to carry on its business in the Yukon territory, and that an
assignment to it of mining leases and agreements for leases
there is void. Ministers of Justice had always taken strong
ground that companies with power to transact business beyond
the limits of the province are not companies ‘with provincial
objects ‘ within the clause of the Federation Act under considera-
tion: Canada’s Federal System, pp. 476-479. The contention
that by ” provincial objects ” was meant ” public provincial
objects ” was long ago discouraged by the Privy Council in
Citizens Insurance Co. v. Parsons (1881) 7 App. Cas. 96, 116,

and does not seem to have ^been ever again reviv.ed. And so
per Idington, J. in Bonanza Creek Gold iMning Co. v. The King,
(1915) 50 S. C. R. 534, 552, See, also, Keith, R. G. in D., Vol. 1,
p. 119.

288 Their lordships discuss in this judgment Ashbury Rail-
way Carriage and Iron Co. v. Riche, L. R. 7 H. L. 653, and hold
(p. 582) that its doctrine “does not apply where a company pur-
ports to derive its existence from the act of the Sovereign, and
not merely from the words of the regulating statute.” See as
to the Bonanza Creek Gold Mining Company case, Attorney-
General for Canada v. Attorney-General for Alberta (the Insur-
ance Companies’ Case) [1916] A. C. 588, 597. See, also, Re
Companies Incorporation (Attorneys-General of Ontario and other
provinces v. Attorney-General for the Dominion) [1916] A. C.
598. In 1908 it was held by the Privy Council as a proposition too
plain for serious discussion that a Colonial Act incorporating a
company may validly empower it to carry on its business ” in
or out of” the Colony: Campbell v. Australian Mutual Provident
Society (1908) 77 L. J. P. C. 117, cited Clement L. of C. C., 3rd ed.,

NOTES. 245

p. 107. See these cases discussed by Victor E. Mitchell, K.C-, in a
pamphlet entitled Canadian Companies Incorporation (Financial
Times Press, Montreal, 1917), where he contends that the capacity
to accept powers and rights ab extra does not mean that the com-
pany can be authorized al) extra to carry on a business with
purposes and objects different from those it is authorized to carry
on by its charter. See, also, his Treatise on the Law Relating
to Canadian Commercial Corporations (Montreal: Southam
Press, Ltd., 1916.) Mr. Keith (R. G. in D. Vol. 1, p. 119) takes
the view that Governors have never had authority delegated
to them to incorporate companies, but adds that they have done
so in the past, as e.g. in New Brunswick, referring to 1 Hann.
Hist. N. Br. 151. So in the 1st ed. of R. G. in D. in one Vol., he
says (p. 254) ‘the prerogative of granting charters of incorpora-
tion is never delegated.’ See, also, Kittles v. Colonial Assurance
Co. (1917) 28 Man. 47. Several provinces, as e.g. Man., 7 Geo. V.,
c. 12, Ont. 6 Geo. V., c. 35, have now specially enacted that every
corporation or company heretofore or hereafter created shall, un-
less otherwise expressly declared in the Act creating it, ‘ have/ as
the Manitoba Act puts it, ‘ and be deemed to have had from its
creation, the capacity of a natural person to exercise its powers
beyond the boundaries of the province’; and, as the Ontario Act
puts it, ‘ have and be deemed from its creation to have had, the
general capacity which the common law ordinarily attaches to
corporations created by charter. ”

289 per Dorion, C.J., Dobie v. Temporalities Board (1880),
cited Doutre on Constitution of Canada, p. 260. Some Ministers
of Justice, however, have taken up a different position: Prov.
Legisl. 1904-1906, pp. 175-7; Canada’s Federal System/ pp. 481-
482.

290 (1905) 36 S. C. R. 596, 608-9.

291 per Fitzpatrick, C.J., in Canadian Pacific Railway Co.
v. Ottawa Fire Insurance Co. (1907) 39 S. C. R. 405, 415. Per
Davies, J., S. C. at pp. 433-4. Cf. Hodg. Prov. Legisl. 1904-6.
p. 60. As to there being objects of so necessarily a provincial
character that only a provincial legislature could incorporate
a company for them, see Canada’s Federal System, p. 382, n.
As to a statute enlarging powers and extending the business
of a company being binding on all the shareholders whether
assenting or not to the application for it, see Canada Car
and Manufacturing Co. v. Harris (1875) 24 C. P. 380.

292 Colonial. Building and Investment Association v. Attorney-
General of Quebec (1883) 9 App. Gas. 157, 165; per Dorion, C. J.
in Dolie v. Temporalities Board (1880) cited Doutre on The
Constitution of Canada at p. 260. See supra, pp. 69-70. as to
colourable legislation. As to provincial legislatures when incor-
porating having power to say what are the rights of the parties
under the incorporation see In re Dominion Provident and

246 CANADIAN CONSTITUTIONAL LAW.

Endowment Association (1894) 25 0. R. 619, 620, as commented
on Canada’s Federal System, pp. 486-7. See, also, Legislative
Power in Canada, p. 458, n.

293 Citizens Insurance Co. v. Parsons (1881) 7 App. Gas. 96,
108. See Legislative Power in Canada, p. 488, n. 3.

294 In re Marriage Legislation in Canada [1912] A. C. 880:
reported below, 46 S. C. R. 132. Under this sub-section, also,
the provincial legislatures have the power of legislating upon
the subject of the publication of banns, and the issue of mar-
riage licenses: Opinion of the Law Officers of the Crown in
England (1869-1870), Dom. Sess. Pap. 1877, No. 89, p. 340, who
observe that the phrase ‘ the laws respecting the solemnization
of marriage in England ‘ occurs in the preamble of the Marriage
Act (Imp. 4 Geo. IV, c. 76).

295 Canada’s Federal System, pp. 316-318. Cf. Article by
Hon. E. M. Cullen, ex-Chief Justice of the Court of Appeals,
New York State, in Case and Comment (Vol. 22, p. 819), where
speaking of legislation in the States of the Union forbidding
marriage without the certificate of a physician to the physical
well-being of the parties, he says that such legislation is easily
avoided ‘by going to another State to perform the marriage
ceremony/ Cf. also Swifte v. Attorney-General of Ireland [1912]
A. C. 276. As to divorce in N.-W. provinces, see Jl. Comp. Leg.,
Vol. 18, p. 169.

296 AS to the power of provincial legislatures to interfere
with vested rights or pass ex post facto laws, or laws impairing
the obligation of contracts, see supra, p. 70. As to how far
Dominion corporations are subject to provincial laws in rela-
tion to property and civil rights, see supra, pp. 123-4.

297 Attorney-General of Ontario v. Mercer (1883) 8 App. Cas.
767, 776. Sec. 102 creates a consolidated revenue fund for Can-
ada out of the duties and revenues over which provincial legis-
latures before and at the Union had power of appropriation.

298 Cf. Hodge v. The Queen (1882) 7 O. A. R. 246, 274;
Gushing v. Dupuy (1880) 5 App. Cas. 409, 415-6; Attorney-
General of Ontario v. Attorney-General of Canada [1894] A. C.
189, 200-1; Tennant v. Union Bank of Canada [1894] A. C. 31,
45 ; City of Toronto v. Canadian Pacific R. W. Co. [1908] A. C.
54-59.

299 John Deere Plow Co. v. Wharton [1915] A. C. 330, 339-
340. In the course of the argument in this case (Notes of Pro-
ceedings, p. 150) Haldane, L.C., is reported as saying: ” Without
expressing a final opinion about it, I should say ‘ civil rights ‘
was a residuary expression. It was intended to bring in a
variety of things not comprised in the other heads, including
what was not touched by section 91 in the specifically enumer-
ated heads there.”

NOTES. 247

300 Supra, pp. 93-4; Russell v. The Queen (1882) 7 App. Cas.
829, 839.

301 Supra, pp. 94-5 ; Valin v. Langlois (1879) 3 S. C. R. 1, 15.
Cf. Citizens’ Insurance Co. v. Parsons (1880), 4 S. C. R. 215, 242,
308; Steadman v. Robertson (1879) 2 P. & B. 580, 595-6;
Canada’s Federal System, pp. 495-6. The words ‘property and
civil rights ‘ in the sub-section under consideration are to be
understood in their largest sense: Citizens Insurance Cp. v.
Parsons (1881) 7 App. Cas. 96, 111. But they must not be un-
derstood as applying to such property as is necessary to the
existence of a Dominion object: Dobie v. Temporalities Board
(1880) 3 L. N. 244, 248. This does not mean, however, that a
provincial Act can under no circumstances deal with the pro-
perty and civil rights of a Dominion corporation: S. C. (1882)
7 App. Cas. 136, 152; Canada’s Federal System, pp. 495-497.

302 Queen v. Robertson (1882) 6 S. C. R. 52, 65-6; Attorney-
General of British Columbia v. Attorney-General of Canada

(1889) 14 App. Cas. 29’5, 302; and see infra, n. 391. In Sawyer-
Massey Co. v. Dennis (1907) 1 Alta. 125, Beck, J. held that the
provincial legislation was competent to say that a mortgage or
an agreement to give a mortgage upon land prior to recom-
mendation for patent is void. As to the Dominion parliament
having control over the disposition of fines, forfeitures, and
penalties imposed under Dominion laws, see Hodg. Prov. Legisl.
1896-8, pp. 118-9. See, however, DumpJiy v. Kehoe (1891) 21 R. L.
119. Cf. In re Bateman’s Trusts (1873) L. R. 15 Eq. 355.

303 Dobie v. Temporalities Board (1882) 7 App. Cas. 136,
150-1; Attorney-General of Ontario v. Attorney-General for
Canada (Liquor Prohibition Appeal, 1895) [1896] A. C. 348, 364;
Royal Bank of Canada v. The King [1913] A. C. 283, in which
last case referring to parties in England who had advanced
monies which the provincial Act in question had assumed to
confiscate, their lordships say: “Their right was a civil right
outside the province, and the legislature of the province could
not legislate validly in derogation of that right . . a civil
right, which had arisen and remained enforceable outside of
the province.” Provincial legislatures evidently cannot direct
their own Courts to refuse to recognize such a right in an
action brought in them, notwithstanding their exclusive power
over the ‘ administration of justice in the province,’ which fol-
lows the one under discussion: pp. 137-140. See, as to this
case, Canada’s Federal System, pp. 504-509 ; Jl. of Society of
Comp. Legisl. Vol. 16, pp. 90-91. Review of Historical Pub-
lications Relating to Canada, vol. 18, p. 224; Article by J. S.
Ewart, K.C. in 33 C. L. T. 269 seq., and letter from him in 50
C. L. J. 56. He defends the Alberta Act in question as intra
vires under No. 10 of section 92 as relating to a ” Local Work

248 CANADIAN CONSTITUTIONAL LAW.

and Undertaking.” C/., also, 9 D. L. R. at pp. 346-363. Such
maxims as ‘ MoMlia personam sequuntur,’ or ‘ mobilia ossibus
inhaerent ‘ can in no way restrict the provincial legislative
power: Canada’s Federal System, pp. 509-511; Legislative Power
in Canada, pp. 757-759. As to the situs of the obligation of a
bank under a deposit receipt issued by one of its branches, and
of other debts and choses in action, see Lovitt v. The King [1912]
A. C. 22; per Duff, J.S.C., 43 S. C. R. 106, 131, 133-142; Henty
v. The Queen [1896] A. C. 567; Nickle v. Douglas (1875) 37 U.
C. R. 51, 61-62, 71; S. C. 35 U. C. R. 126, 145. As to cases
where the owner is in one province, and the property in another,
and the power of the provincial legislature in the latter, see
Canada’s Federal System, pp. 511-513. As to the property and
civil rights of a railway which, though authorized to extend
beyond the province, has not done so, see In re Windsor and
Annapolis R. W. Co. (1883) 4 R. & G. 312, 322-3. As to pro-
vincial legislation under this power affecting the rights of
extra-provincial creditors, see Clarkson v. Ontario Bank (1888)
15 O t A. R. 166, 190; Jones v. Canada Central R. W. Co. (1881)
46 U. C. R. 250; Canada’s Federal System, pp. 513-515. For
provincial Acts which have been held or suggested by the
Courts as possibly valid under the power under discussion, see
Attorney-General for Ontario v. Attorney-General for the Do-
minion [1896] A. C. 348; Citizens Insurance Co. v. Parsons
(1881) 7 App. Cas. 96; Gower v. Joyner (1896) 2 Terr. L. R. 387;
Stairs v. Allen (1896) 28 N. S. 410, 418-9; McCarthy v. Brener
(1896) 2 Terr. L. R. 230; Ex parte Ellis (1878) 1 P. and B. 593;
Re Stinson v. College of Physicians (1911) 22 O. L. R. 627,
634; Regina v. Wason (1889) 17 O. R. 58, 17 0. A. R. 221, 240-1,
251. Cf. Florence Mining Co. v. Cobalt Lake Mining Co. (1909)
18 O. L. R. 275, where the Ontario Court of App-eal say that:
“the right to bring an action is a civil right.” But the right
of voting is not a ” civil right ” within the meaning of the
clause in question: In re North Perth, Hessin v. Lloyd (1891)
21 0. R. 538. Provincial legislatures, in legislating under this
power over ‘ property and civil rights in the province ‘ may
in some incidental way regulate trade and commerce: Regina v.
Taylor (1875) 36 U. C. R. 183, 206; just as it may in some in-
cidental way touch the subject of bankruptcy and insolvency:
In re Killam (1878) 14 C. L. J. N. S. 242-3; Parent v. Trudel
(1887) 13 O. L. R. 136, 139. See, however, Prov. Legisl. 1899-
1900, p. 49.

304 Nothing effective has yet been done in the matter of
this provision. See Canada’s Federal System, pp. 521-525. The
Canadian Bar Association has for one of its principal objects
uniformity of law in the different provinces. See, also, Articles
on Uniformity of Provincial Laws by R. B. Henderson in 19

NOTES. 249

C. L. T. 209; on Uniform Legislation by W. Seton Gordon in
20 C. L. T. 187; on Uniformitty in Registration of Title Law,
37 C. L. T. 374; and a Plea for a Uniform Contract of Fire In-
surance in Canada (1899) 19 C. L. T. 112. Also see 46 C. L. J.
41; 35 C. L. T. 396; 36 C. L. T. 298; 37 C. L. T. 818.

so5 AS to the distinction between ” the constitution of pro-
vincial Courts of criminal jurisdiction,” and ” procedure in
criminal matters,” see supra, pp. 118-9. As to the power to ap-
point King’s Counsel, see supra, p. 61, n. 41. As to the .power of
the Dominion parliament to create new Courts to exercise juris-
diction in federal matters, and to deprive the provincial Courts
of such jurisdiction, see supra, p. 90, and sec. 101 of the
Federation Act, supra, pp. 149-150. As to the predominance of
Dominion criminal legislation over provincial penal laws, see.
pp. 117-118. As to Dominion power over provincial Courts, see
supra, p. 90 and pp. 138-9. Judge Clement (L. of C. C. 3rd ed.,
pp. 508-597) has a long chapter upon the administration of
justice in Canada and its provinces, and the subjects which arise
for discussion under this provincial power. As to appeals to
the Supreme Court of Canada, and the Judicial Committee of
the Privy Council, see supra, p. 149, and n. 376.

see For this report of Sir John Thompson, see Hodg. Prov.
Legisl. 1867-1895, p. 358. It is, also, set out at length in Legis-
lative Power in Canada, pp. 140-174.

307 The power to appoint County and District Court judges
in section 96, appears to carry with it the power to remove,
although section 99 of the Federation Act applies only to Su-
perior Court judges: Re Squier (1882) 46 U. C. R. 474. See Re
Small Delts Recovery Act, (1917) 37 D. L. R. 170, 3 W. W.
R. 698, and the annotation by the present writer, at p. 183 seq.
endeavouring to place an exact interpretation on the power of
appointment of ” District ” and ” County Court ” judges in sec.
96 of the B. N. A. Act, 1867, and finding the standard of juris-
diction in that of County Court and District Court judges in
Upper Canada at Confederation under C. S. U. C. (1859) c. 15,
and, possibly, in that exercised by County Court judges in New
Brunswick under 30 Viet. c. 10 (N.Br.) . See also Niagara Election
case (1878) 29 C.P. 261, 280. See also an Article on the Constitution
of Canada, 11 C. L. T. 145 seq.; Todd’s Parl. Gov. in Brit. Col.
2nd ed. pp. 46-7, 827 seq. who treats, inter alia, of powers of re-
moval still existing under Imp. 22 Geo. Ill, c. 75; and an Article
on the Right to remove County Court Judges, 17 C. L. T. 445.
R. S. C. 1906, c. 138, provides for the removal of County Court
Judges by order of the Governor-General in Council in certain
cases. The independence of the Superior Court judges appointed
under sec. 96 is secured by sec. 99, which, following cl. 3, art. 7,
of the Act of Settlement (Imp.) 12-13 Wm. Ill, c. 2, provides

250 CANADIAN CONSTITUTIONAL LAW.

that they shall hold office during good ^behaviour, but be re-
movable by the Governor-General on address of the Senate and
House of Commons.

SOB see In re Small} Belts Act (1896) 5 B. C. 246, and Bank
v. TunstaU (1890) 2 B. C. (Hunter) 12, where the Court says
that the provincial legislature cannot by merely constituting
a Court by special name avoid section 96. See, also, Ganong
v. Bayley (1877) 1 P. & B. 324. Upon the general subject of
provincial attempts to evade the section, see the report of Sir
John Thompson upon the Quebec District Magistrates Act re-
ferred to in the text; also Prov. Legisl. 1901-3, p. 33; and King
v. King (1904) 37 N. S. 294. And cf. Re Public Utilities Act,
City of Winnipeg v. Winnipeg Electric R. W. Co. (1916) 26 Man.
584, where two judges of the Manitoba Court of Appeal hold a
provincial Act ultra vires in so far as it purported to confer
powers transcending those of a Superior Court judge upon an
officer called a commissioner, appointed by the Lieutenant-
Governor in Council and paid by the province, contrary to sees.
96 and 100 of the Federation Act, and Colonial Investment and
Loan Co. v. Orady (1915) 24 D. L. R. 176, 8 A. L. R. 496, hold-
ing intra vires, on similar grounds, a provincial Act purporting
to confer upon a Master in Chambers extraordinary powers in
mortgage actions, Und actions on contracts for the sale of lands.
And so Rex v. Laity (1913) 18 B. C. 443. See, also, Poison Iron
Works v. Munns (1915) 24 D. L. R. 18, and the annotation thereto,
ibid, at pp. 22-5.

309Hodg. Prov. Legisl. 1867-1895, at p. 358; Prov. Legisl.
1896-8, pp. 12-14; 1904-6, pp. 128, 135, 155, 157.

310 E.g. that the Lieutenant-Governor may remove County
Court judges for inability, incapacity, or misbehaviour: Hodg.
Prov. 1867-1895, p. 361, Ibid. pp. 84, 853-4. Ministers of Justice
have at times taken exception to provincial Acts supplementing
the salaries of Dominion judges: Hodg. Prov. Legisl. 1867-1895,
pp. 93-4, 853-4, But the Ontario Extra- Judicial Services Act,
1910, was allowed to go into force: ibid. pp. 1202-3. As to pro-
vincial attempts otherwise to regulate Dominion judges as by
enacting that judges of one County or District shall have juris-
diction to try cases in another County or District, see In re
County Courts of British Columbia (1892) 21 S. C. R. 446, 453,
upholding the provincial Act and overruling Peil-7ce-ark-an v.
Reginam (1891) 2 B. C. (Hunter) 52, and Gibson v. McDonald
(1885) 7 0. R. 401; In re Wilson v. McGuire (1883) 2 0. R. 118.
See other Canadian cases referred to Canada’s Federal System,
p. 536, n. Cf. also, Prov. Legisl. 1867-1895, at pp. 1032-1034, 1037-
1038.

an Rex v. Carlisle (1903) 6 0. L. R. 718. See also, Rex v.
Walsh- (1903), 5 O. L. R. 527.

NOTES. 251

312 Hodg. Prov. Legisl. 1867-1895, pp. 186, 244 b., 528-9. Ibid.
1896-8, pp. 35-6. As to a Dominion Act empowering judges in
a province to take evidence required in cases being litigated
before foreign Courts under commissions or orders issued by
such foreign Courts being intra vires, see Wetherell v. Jones
(1883) 4 O. R. 713. As to a provincial Act of the same kind
being also intra vires, see Re Alberta and Great Waterways R.
W. Co. (1911) 20 Man. 697. As to the propriety, constitutionality
and otherwise, of provincial Governments appointing Superior
Court judges to act as Commissioners on Royal Commissions of
Enquiry, see an able Article by Mr. J. B. Coyne, K.C., in 37 Q.
L. T. 416, who concludes that ‘ there can be no question as
to the power of the province to have a judge as a Royal Com-
missioner even though the Dominion attempted in express terms
to prohibit it.’ He discusses the construction and constitution-
ality in that connection of s. 33 of the Dominion Judges Act,
R. S. C., 1906, c. 138.

sisThe Thrasher case (1882) 1 B. C. (Irving) 170, 174;
Cass. Dig. Sup. Ct. 480; Re Ginsberg (1917) 40 O. L. R. 136,
where held that in a civil proceeding within provincial legis-
lative jurisdiction, the question whether a witness should be
entitled to the privilege of refusing to answer on the ground
that such answer would tend to incriminate him, is a question
of civil right, and within the control of the provincial legislature.
See this case referred to in Todd’s Parl. Gov. in Brit. Col. 2nd
ed. p. 566 seq.; also a number of letters and Articles upon it.
in 18 C. L. J. esp. 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.

3i4YaZm v. Langlois (1879) 5 App. Cas. 115; S. C. below
3 S. C. R. 1, 20-22, 69; Attorney-General for Ontario v. Attorney-
General for the Dominion [1912] A. C. 571; Ex parte Vancini
(1904) 36 N. B. 456, 462-3, in app. 34 S. C. R. 621; Geller v.
Loughrin (1911) 24 0. L. R. 18, 25, 33; Attorney-General of
Canada v. Sun Chak (1909) 44 N. S. 19; King v. Wipper (1901)
34 N. S. 202; Attorney-General of Canada v. Flint (1884) 16 S.
C. R. App. 707; Ex parte Porter (1889) 28 N. B. 587; Ex parte
Perkins (1884) 24 N. B. 70; Ryan v. Devlin (1875) 20 L. C. J.
77, 83-4; Bruneau v. Massue (1878) 23 L. C. J. 60. Ex parte
Flanagan (1899) 34 N. B. 577, must be considered over-ruled.
As to what are provincial Courts, see letter of Mr. Alpheus
Todd, 18 C. L. J. at p. 181. See some remarks in 11 L. N. at
pp. 349-350 on the question of the expediency of vesting
Dominion or Federal judicial powers in provincial Courts.

sis Attorney-General of Canada v. Flint (1884) 16 S. C. R.
App. 707, reported below (1882) 3 R. & G. 453, from which it
appears that the judge of the Vice-Admiralty Court at Halifax

252 CANADIAN CONSTITUTIONAL LAW.

said, in his judgment: “If a Dominion Act were to attempt
to give this Court a jurisdiction analogous 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 to
holding that such an Act was ultra vires” But see contra per
Weatherbe, J. 3 R. & G. at p. 461. Followed in The King v.
Kennedy (1902), 35 N. S. 266. Cf. The Farewell (1881) 7 Q. L. R.
380. As to admiralty jurisdiction in the Dominions, see Keith,
R. G. in D., Vol. Ill, pp. 1348-1356; also Clement’s L. of C. C.,
3rd ed. pp. 232-241.

sis Gushing v. Dupuy (1880) 5 App. Cas. 409. Cf. Peek v.
Shields (1883) 8 S. C. R. 579, where Ritchie, C.J., reiterates his
language in Valin v. Langlois (1879) 3 S. C. R. 1, 15, q. v., Cf.
S. C. at p. 64. Cf., also, Ward v. Reed (1882) 22 N. B. 279.
On the general subject of colonial attempts to limit the
prerogative of the Crown as to judicial appeals, see Keith,
R. G. in D., Vol. Ill, pp. 1365-1373, who holds the view that in
face of the (Imp.) Judicial Committee Act, 1844, this cannot
be done except by Imperial legislation. See Toronto Railway
Co. v. The King [1917] A. C. 630, where a certain doubt as to
the power of the Dominion parliament to take away the right
of appeal to the Privy Council seems hinted at. And see on the
general subject of the Dominion power to interfere with civil
procedure in Dominion subjects: Legislative Power in Canada,
p. 427, and Re Steinberger (1906) 5 W. L. R. 93.

317 See per Crease, J., in the Thrasher case (1882) 1 B. C.
(Irving) 126. Provincial Courts cannot interfere with the de-
cisions of a Dominion tribunal, such as that of the Minister of
Agriculture in the case of patents: In re The Bell Telephone Co.
(1885) 9 0. R. 339, at p. 346. As to the Courts not enforcing an
ultra vires order of such a tribunal, see Re Canadian Pacific
Railway Co. and County and Township of York (1896) 27 0. R.
559, 570. A Dominion Act declaring a non-juridical day must
be interpreted as relating only to Dominion matters: Richer
v. Gervais (1894) R. J. Q. 6 S. C. 254. Of course the Dominion
parliament cannot prescribe procedure in provincial matters:
McKilligan v. Machar (1886) 3 M. R. 418; Weiser v. Heintzman
(No. 2) (1893) 15 O. P. R. 407; Re Ginsberg (1917) 40 0. L.
R. 136. Cf. Regina v. Bittle (1892) 21 0. R. 605; ‘Regina v. Fox
(1899) 18 0. P. R. 343. See also, supra, p. 94.

sis For the negative view that the Dominion cannot divest
the provincial Courts of jurisdiction, see Ex parte Porter (1889)
28 N. B. 587; Crombie v. Jackson (1874) 34 U. C. R. 575, 579-
580; Ex parte Wright (1896) 34 N. B. 127. Cf. also per Thomp-
son, J. in Pineo v. Gavaza (1885) 6 R. & G. 487, 489, commented
on 22 C. L. J. N.’S. at pp. 70-72; and Clement op. cit. pp. 535-7.
But see Re North Perth, Hessin v. Lloyd (1891) 21 O. R. 538;
McLeod v. Nolle (1897) 28 O. R. 528, 24 O. A. R. 459.

NOTES. 253

319 in re Wilson v. McGuire (1883) 2 0. R. 118; Regina v.
BusJi (1888) 15 0. R. 398. Cf. Articles in 2 C. L. T. 416, 521,
561; and In re Small Debts Act (1896) 5 B. C. 246; Canada’s
Federal System, pp. 556-7.

320 Ganong v. Bayley (1877) 1 P. & B. 324, where the Court
agreed in interpreting section 96 by a reference to Courts ex-
isting before Confederation. See this case referred to Prov.
Legisl. 1867-1895, p. 365, 1901-1903, p. 32; Legislative Power in
Canada, at pp. 169-170.

321 Regina v. Coote (1873) L. R. 4 P. C. 599.

322 Regina v. Homer (1876) 2 Steph, Dig. 450; Regina v.
Bennett (1882) 1 0. R. 445; Queen v. Reno (1868) 4 O. L. R. 281;
Regina v. Bush (1888) 15 O. R. 398; Richardson v. Ransom
(1886) 10 0. R. 387; The King v. Sweeney (1912) 1 D. L. R.
476; The King v. Basker (1912) 1 Dom. L. R. 295; Ex parte
Vancini (1904) 36 N. B. 456; Oeller v. Loughrin (1911) 24 O. L.
R. 18, 23, 33; Canada’s Federal System, pp. 559-564.

323 Regina ex rel. McGuire v. Birkett (1891) 21 O. R. 162.
Cf. In re Dominion Provident Benevolent and Endowment Asso-
ciation (1894) 25 0. R. 619; Ross v. Canada Agricultural Ins. Co.
(1882) 5 L. N. 22; Poison Iron Works v. Munns (1915) 24 D. L.
R. 18, and annotation thereto, pp. 22-5; Canada’s Federal System,
pp. 564-6.

324 Cf. Report of Minister of Justice on a Quebec Act ap-
pointing a Railway Committee of the Executive Council:
Hodgins’ Prov. Legisl. 1867-1895, p. 439.

325 McLeod v. Municipality of King (1900) 35 N. B. 163.

326 McCarthy v. Brener (1896) 2 Terr, L. R. 230. See, also,
Stairs v. Allan (1896) 28 N.S. 410, 418-9. Cf. however, Deacon v.
CJiadwick (1901) 1 O. L. R. 346.

327 Attorney-General of Ontario v. Attorney-General of Canada
[1894] A. C. 189, 198; Ex parte Ellis (1878) 1 P. & B. 593, as
to which cf. Re Stinson and College of Physicians (1911) 22
O. L. R. 627. See, too, Baie des Chaleurs R. W. Co. v. Nantel
(1896) R. J. Q. 9 S. C. 47, 5 Q. B. 65.

328 Queen v. De Coste (1888) 21 N. S. 216; Regina v. Eli
(1886) 13 O. A. R. 526, 533. Cf. Regina v. Lake (1878) 43 U. C.
R. 515; McLeod v. Nolle (1897) 28 R. 528; The Queen v.
‘Bryan (1900) 7 Ex. C. R. 19. As to provincial legislation in
aid and furtherance of Dominion Acts being unobjectionable,
see Ex parte Whalen (1891) 30 N. B. 586; Matthew v. Went-
worth (1895) R. J. Q. 4 Q. B. 343; Hodgins’ Prov. Legisl. 1867-
1895, pp. 582, 947.

329 Despatch of Lord Granville: Dom. Sess. Pap. 1869, No. 16.
As to provincial legislatures, however, being able to vest the
Lieutenant-Governor with power of remitting sentences for

254 CANADIAN CONSTITUTIONAL LAW.

offences against provincial penal statutes, see Attorney-General
of Canada v. Attorney-General of Ontario (1892) 19 0. A. R. 31.

330 Hodge v. The Queen (1883) 9 App. Gas. 117; Canada’s
Federal System, pp. 574-5. As to the same power existing for
other laws within provincial jurisdiction under other parts of
the Constitution, cf. Regina v. Harper (1892) R. J. Q. 1 S. C.
327, 333. See, also, per Osier, J.A., in Regina v. Wason (1890)
17 O. A. R. 221, 243.

sal Paige v. Griffith (1873) 18 L. C. J. 119, 122; Aubry v.
Genest (1895) R. J. Q. 4 Q. B. 523. Cf. as to the provincial right
of disposal of fines, forfeitures, and penalties imposed under this
subsection, Dumphy v. Kehoe (1891) 21 R. L. 119; and Prov.
Legisl. 1896-8, pp. 118-9.

332 Hodge v. The Queen (1883) 9 App. Gas. 117, 133;
Regina v. Frawley (1882) 7 O. A. R. 246. See, also, Blouin v.
Corporation of Quebec (1880) 7 Q. L. R. 18.

sMKing v. Gardner (1892) 25 N. S. 48, 52-4; Matthews v.
Jenkins (1907) 3 E. L. R. 577 (P. E. I.). As to Dominion power
to impose forfeiture as punishment, see O’Neil v. Tupper (1896)
R. J. Q. 4 Q. B. 315, 26 S. C. R. 122, 132.

as* Quebec Bank v. Tozer (1899) R. J. Q. 17 S. C. 303. As to
provincial statutes authorizing offenders against Dominion
criminal law being sent to industrial schools being ultra vires,
see report of Minister of Justice of Dec. 13th, 1910, referred
to Canada’s Federal System, p. 578.

335 Attorney ‘-General of Canada v. Attorney-General of Ontario
(1890-4) 20 0. R. 322, 19 O. A. R. 31, 23 S. C. R. 458. See this
case referred to 10 C. L. T. at p. 233; 26 C. L. J. at p. 459.

336 Hodge v. The Queen (1883) 9 App. Gas. 117; Turcotte v.
Whalen, M. L. R. 7 Q. B. 263; Canada’s Federal System, p. 580.
See supra, pp. 68-9.

337 AS to there being a vast number of acts punishable on
summary conviction which nevertheless are in no sense crimes,
see Attorney-General v. Radloff (1854) 10 Ex. 84, 96, cited Ex
parte Green (1900) 35 N. B. 137, 148. As to ” penal actions ”
for acts injurious to the community which nevertheless are not
crimes, see Kenny’s Criminal Law, at pp. 7-8. As to the diffi-
culty of drawing the line between what is within No. 15 of
sec. 92 of the Federation Act, and what within No. 27 of sec. 91,
see Hodgins’ Provincial Legisl. 1867-1895, at p. 762. Cf. Canada’s
Federal System, pp. 580-2, n. 23.

sss Cf. Clement, L. of C. C., 3rd ed., pp. 586-7; Regina v.
Boardman (1871) 30 U. C. R. 553, 556; Quong Wing v. The King
(1914) 49 S. C. R. 440, 462.

330 Huson v. Township of South Norwich (1895) 24 S. C. R.
145, 160; Hodge v. The Queen (1883) 9 App. Cas. 117; Attorney-

NOTES. 255

General for Ontario v. Attorney-General for the Dominion [1896]
A. C. 348, 371; Attorney-General of Manitoba v. Manitoba License
Holders Association [1902] A. C. 73; Rex v. Riddell (1912)
4 D. L. R. 662. As 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 it,” see
per Sedgewick, J., in In re Prohibitory Liquor Laws (1895)
24 S. C. R. 170, 248. For criticisms by members of the Judicial
Committee of the term ” police regulation ” see Canada’s Federal
System, ,pp. 583-4, n. 29. Cf. Rex v. Meikleham (1905) 11 O. L. R.
366, as to the power of the Ontario Legislature to prohibit the
sale of liquor on vessels on the Great Lakes. Cf. also City of
Montreal v. Beauvais (1909) 42 S. C. R. 211, upholding early
shop-closing legislation by the Province; and Re Rex v. Scott
(1916) 37 0. L. R. 453, in which last cas a provincial Act de-
claring that a person found drunk in a public place in a muni-
cipality in which a local option by-law is in force, or in which
no tavern or shop license has been issued, is guilty of an offence,
was held intra vires.

340 Bennett v. Pharmaceutical Association of the Province
of Quebec (1881) 1 Dor. Q. A. 336; In re Girard (1898) R. J. Q.
14 S. C. 237; In re Slavin and Village of Orillia (1875) 36 U. C.
R. 159, per Richards, C.J., at p. 173.

341 The King v. Kay (1909) 39 N. B. 278. Cf. also Re Bread
Sales Act (1911) 23 O. L. R. 238.

w Regina v. Wason (1890) 17 O. A. R. 221, 239-240, 248,
with which contrast Regina v. Stone (1892) 23 0. R. 46, where
a Dominion Act, superficially similar, but really a public crimi-
nal law, was, also, held to be intra vires. Cf., also, Regina v.
Keefe (1890) 1 Terr. L. R. 280; Kitchen v. Saville (1897) 17
C. L. T. 91; Regina v. Fleming (1895) 15 C. L. T. (N.W.T.) 247.

343 Montreal Trading Stamp Co. v. City of Halifax (1900)
20 C. L. T. (Occ. N.) 355. The Ontario Court of Appeal held
the same of like Ontario legislation in answer to questions
submitted, infra. Aliter, however, Wilder v. La Cite de Montreal
(1905) R. J. Q. 14 K. B. 139, holding that a provincial legisla-
ture has no power to prohibit any kind of commerce not in
itself contrary either to good morals or to public order Sed
qucere, see supra, pp. 66-7. The answers of the Ontario Court
of App.eal in the above trading stamp case are set out in the
report of this last case in the Court below (R. J. Q. 25 S. C.
at p. 137), but do not appear to be elsewhere reported.

^State v. Schuster (1904) 14 Man. 672; City of Montreal
v. Beauvais (1909) 42 S. C. R. 211, R. J. Q. 7 K.~B. 420, 30 S, C.
427, in which case the Privy Council refused leave to appeal: 42
S. C. R. p. VII. See, also, Re McCoubrey (1913) 9 D. L. R. 84.

256 CANADIAN CONSTITUTIONAL LAW.

345 Pillow v. City of Montreal (1885) M. L. R. 1 Q. B. 401.
Cf. per Torrance, J. in Ex parte Pillow (1883) 6 L. N. 209;
Toronto Railway Co. v. The King [1917] A. C. 630.

346 Queen v. Robertson (1886) 3 Man. 613.

347 Regina v. Boscowitz (1895) 4 B. C. 132. But see Prov.
Legisl. 1867-1895, at pp. 929-930, 1121; Hid. 1899-1900, p. 85.

3 Rex v. Pierce (1904) 9 0. L. R. 374.

349 ^Association St. Jean Baptiste v. Brault (19’00) 30 S.

C. R. 598. Cf. Regina v. Harper (1892) R. J. Q. 1 S. C. 333;
Pigeon v. Mainville (1893) 17 L. N. 68, 72.

sso Regina v. Shaw (1891) 7 Man. 518.

351 Prov. Legisl. 1867-1895, pp. 643, 994. But see McCaf-
frey v. Hall (1891) 35 L. C. J. 38; Canada’s Federal System, p.
615.

352 Provincial statutes prohibiting sales of various kinds
of goods, or the doing of certain kinds of labour on Sunday
were held good in: Regina v. PetersJcy (1895) 4 B. C. 385;
Ex parte Green (1900) 35 N. B. 137; Couture v. Panos (1908)
R. J. Q. 17 K. B. (Crown side) 560, 564; Fallis v. Dalthaser

(1912) 4 D. L. R. 705. Cf. also Poulin v. Corporation of Que-
bec (1883) 9 S. C. R. 185, 7 Q. L. R. 337; and Queen v. Halifax
Electric Tramway Co. (1898) 30 N. S. 469. So, also, a munici-
pal by-law passed under the provisions of a provincial Munici-
pal Act closing billiard rooms on Sunday was held valid in
Re Fisher v. Village of Carmen (1905) 16 Man. 560. And cf.

Tremblay v. Cite de Quebec (1910) R. J. Q. 37 S. C. 375, 38
S. C. 82. On the other hand, a provincial Act covering such
prohibitions was held ultra vires, because ” treated as a whole ”
it was legislation upon criminal law: Attorney-General for On-
tario v. Hamilton Street Railway Company [1902] A. C. 524,
basing themselves upon which decision the majority of the
judges in Ouimet v. Bazin (1912) 46 S. C. R. 502, held ultra
vires as criminal law Quebec legislation prohibiting under
penalties the giving of theatrical performances on Sunday. They
seem to hold that the question whether Sunday legislation is
exclusively for the Dominion parliament or not depends on the
point of view of the legislator in legislating. If he is legislat-
ing from a Christian point of view in order to prevent religi-
ous desecration of the Lord’s Day, the legislation is for the
Dominion and not for the province. Cf., also, Audette v. Daniel

(1913) 13 D. L. R. 240; McLaughlin v. Recorder’s Court
(1902) 4 Q. P. R. 304; Rodrigue v. Parish- Ste. Prosper (1917) 37

D. L. R. 321, 40 D. L. R. 30, and for a general discussion of the
subject, Canada’s Federal System, pp. 594-612.

353 Regina v. Bittle (1892) 21 0. R. 605; Ex parte Duncan
(1872) 16 L. C. J. 188, 191; Regina v. Wason (1890) 17 0. A. R.

NOTES. 257

221, 232; and other cases collected, Canada’s Federal System,
pp. 618-623. Regina v. Roddy (1877) 41 U. C. R. 291, 296, 302,
must, it would seem, be considered overruled. And so in Wei-
ser v. Heintzman (No. 2) (1893) 15 0. P. R. 407. But c/. Re-
gina v. Hart (1891) 20 0. R. 611, 612-14. See, also, Regina v.
Becker (1891) 20 O. R. 676; Regina v. Rowe (1892) 12 C. L. T.
95. And see, also, O’Neil v. Tupper (1896) R. J. Q. 4 Q. B.~315,
26 S. C. R. 122, 132; and In re McNutt (1912) 47 S. C. R. 259,
where three judges held that a trial and conviction for keeping
intoxicating liquor for sale contrary to the provisions of a pro-
vincial Act are proceedings on a criminal charge within the
meaning of section 39 (c) of the Supreme Court Act, R. S. C.
1906, c. 139, whereby an appeal is given from the judgment in
any case of habeas corpus ‘ not arising on a criminal charge.’
As to this last case, see Quong Wing v. The King (1914) 49
S. C. R. 440, 459, where, as a matter of fact, the Supreme Court
entertained the appeal, although it was an appeal from a .con-
viction under a provincial penal enactment. See, also, Clement,
L. of C. C. (3rd ed. p. 546 seq.) who dissents from the view
of the three judges in the McNutt case. And in Rex v. Miller
(1909) 19 O. L. R. 288, the Court held that the procedure ap-
plicable to a motion for a writ of habeas corpus when there
has been a committal for the infraction of a provincial Act is
such as may be prescribed by the provincial legislature. See,
also, Rex v. Graves (1910) 21 O. L. R. 329 ; Rex v. Gage (1916)
36 O. L. R. 183. In Regina ex rel. Brown v. Simpson Co. (1896)
28 O. R. 231, it was held that a magistrate has no power to
state a case under sec. 900 of the Dominion Criminal Code for
an alleged offence against an Ontario Statute. But see Rex
v. Durocher (1913) 9 D. L. R. 627. In Copeland & Chatter son
Co. v. Business Systems Ltd. (1908) 16 0. L. R. 481, the On-
tario Court of Appeal held an order of sequestration for dis-
obedience of an injunction, not to be under the circumstances,
an order in a ‘criminal matter,’ within the Ontario Judicature
Act.

354 To the cases there cited, we may add a reference to
Regina v. Lawrence (1878) 43 U. C. R. 164, as to provincial
legislation as to offences which are criminal offences at com-
mon law, such as tampering with witnesses and subornation
of perjury: Rex v. Garvin (1908) 13 B. C. 331; Regina v. Hol-
land (1894) 30 C. L. J. 428, 14 C. L. T. 294; Rex v. Ferris
(1910) 15 W. L. R. 331; Regina v. Shaw (1891) 7 Man. 518;
Rex v. Laughton (1912) 22 Man. 520; Re Stinson and College
of Physicians (1911) 22 O. L. R. 627; Prov. Eegisl. 1867-1895,
at pp. 484, 581; Clement’s L. of C. C. 3rd ed. pp. 583-4. At
p. 569, Judge Clement remarks that there is no reported case in

C.C.L. 17

258 CANADIAN CONSTITUTIONAL LAW.

which a federal penal law has been held invalid as an un-
authorized encroachment upon the provincial field.

355 Attorney-General for Ontario v. Attorney-General -for
the Dominion [1896] A. C. 348, 365.

ase Attorney-General of Manitoba v. Manitoba License Hold-
ers* Association [1902] A. C. 73, where the Privy Council held
a Manitoba Act intra vires under this sub-section, although it
purported to prohibit all use in Manitoba of spirituous fer-
mented malt and all intoxicating liquors as beverages or ‘Other-
wise, subject to certain exceptions; and although such legisla-
tion might or must have an .effect outside the limits of the
province, and might or must interfere with the sources of
Dominion revenue, and the industrial pursuits of persons
licensed under Dominion statutes to carry on particular trades.

357 gee as to these arguments: Legislative Power in Can-
ada, pp. 655-661. Lord Herschell incidentally observed in the
course of one of these arguments, that there is scarcely any-
thing which may be desirable and beneficial for a province
to deal with locally, which may not become, some time or other,
a matter of Dominion concern, and, therefore, one on which it
might be necessary for the Dominion parliament to legislate
for the whole Dominion, which would oust the power of the
provincial legislature. Several examples of provincial Acts held
valid under this sub-section have been noticed supra, pp. 141-2
and notes, when considering sub-section 15. The important Privy
Council decision in UUnion St. Jacques v. Belisle (1874) L. R.
6 P. C. 31, and The King v. Kay (1909) 39 N. B. 378, may be
added. As to provincial legislatures not being able to legislate
on the enumerated subjects of section 91 of the Federation Act
under the pretence or contention that the legislation is of a
provincial or local character, see supra, p. 86; as to a pro-
vincial legislature not being incapacitated from enacting a law
otherwise within its proper competency merely because the
Dominion parliament might, under section 91, if it saw fit so
to do, pass a general law which would embrace within its
scope the subject matter of the provincial Act, see supra,
pp. 97-8; as to whether the provinces have any power or indirect
taxation under sub-section 16, see supra, n. 255; and as to
matters once local and provincial ceasing to be so, and becom-
ing of national concern so as to fall under Dominion jurisdic-
tion, see supra, p. 75. See, also, Clement’s L. of C. C., pp. 829-836.

358 The decisions under this section, and under section 22
of the Manitoba Act above referred to, have largely turned upon
questions of fact, namely, whether the New Brunswick Com-
mon Schools Act, 1871, prejudicially affected rights or privi-
leges of the Roman Catholics in the province with resp-ect to
denominational schools which they had by law at the Union:

NOTES. 259

Maher v. Town of Portland, before the Privy Council, July 17th,
1874, reported fully only, apparently, in Wheeler’s Con-
federation Law, pp. 362-7, briefly noted 2 Cart. Gas. at
p. 486, n; whether the Manitoba Public Schools Act of
1890 prejudicially affected any right or privilege which
the Roman Catholics, by law or practice, had in that province
at the Union: City of Winnipeg v. Barrett [1892] A. C. 445,
19 S. C. R. 374, 7 Man. 273; whether any rights or privileges
of the Roman Catholic minority in Manitoba which accrued to
them after the Union under statutes of that province, had been
interfered with by the above Act of 1890, and another pro-
vincial statute of that year: Brophy v. Attorney-General of
Manitoba [1895] A. C. 202, 223, 22 S. C. R. 577. Cf. Keith’s
Responsible Government in the Dominions, Vol. 2, pp. 689-696.
On the general subject of the Church in the Dominions, see
Keith op. cit. p. 1423 seq. As to why sec. 93 was enacted, see
Brophy v. Attorney-General [1895] A. C. 202, at pp. 213-4;
Maher v. Town of Portland, sub nom. Ex parte Renaud, 14 N.
B. (1 Pugs.) 273, 293. For a thoughtful little Article on Federal
v. Provincial Control of Education see Mail and Empire for May
19th, 1917. Of course it does not exclude the paramount
power of the Imperial parliament to legislate: Regina v.
College of Physicians and Surgeons (1879) 44 U. C. R. 564,
576, as to which see supra, pp. 47, 50. There is nothing in it to
debar a province from establishing a national system of unsec-
tarian education: City of Winnipeg v. Barrett [1892] A. C. 445,
454.

359 Maher v. Town of Portland, supra. And see extracts
from the argument before the Privy Council, and from the
judgment of Fisher, J. in the Court below (14 N. B. 273) in
Canada’s Federal System, pp. 636-639. And as to the reference
in the sub-section being to rights and privileges in respect to
denominational schools only, and not to any rights and privi-
leges with respect to religious teaching in schools generally,
see Ex parte Renaud (1873) 14 N. B. 273, 298. As to collegiate
institutions, not being within the contemplation of section 93,
see per Ritchie, C.J., S. C. at p. 277. For an application under
it in reference to an alleged discrimination in a Quebec Act
against the Protestant universities and schools of Quebec, in
regard to the admission of students to the study of law, see
Hodg. Prov. Legisl. 1867-1895, pp. 337-38. As to there having
been at the time of the Union no schools clearly denominational,
whether Roman Catholic or Protestant, in any of the four
provinces which were sup-ported by rates on all the Queen’s
subjects without reference to their religion, see per Duff, K.C.,
arguendo in Maher v. Town of Portland, Wheeler’s Confed.
Law, at p. 366; and as to there being nothing in the above

260 CANADIAN CONSTITUTIONAL LAW.

sub-s. 1 to prevent the legislature of Upper Canada repealing
the peculiar laws by which the Roman Catholic schools in
Upper Canada were established, see per Mellish, L.J. ibid.
Needless to say, the constitutionality of a provincial Act relat-
ing to education cannot be affected by any regulation made
under it, there being nothing unconstitutional in the Act itself;
if regulations have been made which ought not to have been
made, or not mad.e, which ought to have been made, that may
be a case for an appeal under sub-s. 3: Ex parte Renaud (1873)
14 N. B. (1 Pugs.) 273, 289.

seo Ottawa Separate Schools v. Machell [1917] A. C. 62.
For a careful statement as to the points decided in this judg-
ment in reference to the Roman Catholic Separate Schools in
Ontario, in special connection with the bilingual controversy, see
36 C. L. T. pp. 968-970; as also in the other appeal decided by
their lordships at the same time, of Ottawa Separate School
Trustees v. Ottawa Corporation [1917] A. C. 76. The intention
of the sub-section is that every class of persons having any
right or privilege with respect to denominational schools,
whether such class should be one of the numerous denomina-
tions of Protestants, or Roman Catholics, should be protected
in such rights: Ex parte Renaud (1873) 14 N. B. (1 Pugs.)
273, 287. See, also, Re Ottawa Separate Schools, 13 O. W. N.
261, 369.

361 ## parte Renaud (1873) 14 N. B. (1 Pugs.) 273, 277,
292, 294.

362 city of Winnipeg v. Barrett (1891) 19 S. C. R. 374, 425 ;
Separate School Trustees of Belleville v. Grainger (1878) 25
Gr. 570, 579. Cf. In re Roman Catholic Separate Schools
(1889) 18 O. R. 606; Roman Catholic Separate Schools v. Town-
ship of Arthur (1891) 21 O. R. 60. Nor does the section in any
way affect or lessen the power of the provincial legislatures to
pass laws respecting the general educational system of the pro-
vince: Hodg. Prov. Legisl. 1867-1895, p. 662. Of. per Taylor,
C.J., in City of Winnipeg v. Barrett (1891) 7 Man. 273, 298-9,
329, 375. See, also, G. M. Weir’s Separate School Law in the
Prairie Provinces: (Queen’s Univ., Ont., 1918.)

ses Logan v. City of Winnipeg (1891) 8 Man. 3, 15, heard in
appeal with City of Winnipeg v. Barrett [1892] A. C. 445, where
the appeal being decided on other grounds, the point is not
dealt with. As to whether one may under certain circum-
stances be estopped from setting up the unconstitutionality
of a statute, as e.g. by the Act being a private one, passed on
one’s own application; or because one has not pleaded the un-
constitutionality, see pro: City of Toronto v. Bell Telephone
Co. (1903) 6 0. L. R. 335, a49-350, 352; Ross v. GuiWault (1881)
4 L. N. 415; Ross v. Canada Agricultural Insurance Co. (1882)

NOTES. 261

5 L. N. 23; Forsyth v. Bury (1888) 15 S. C. R. 543; McCaffery
v. Ball (1889) 34 L. C. J. 91; Belanger v. Car on (1879) 5 O. L.
R. 19, 25; contra: City of Toronto v. Bell Telephone Co., supra,
at p. 344; Valin v. Langlois (1879) 5 Q. L. R. 1, 16; L’Union
St. Jacques de Montreal v. Belisle (1872) 20 L. C. J. 29, 39:
Prov. Legisl. 1867-1895, at p. 216; Clement, L. of C. C. 3rd ed.
p. 377. As to the duty generally to uphold the Constitution,
see City of Fredericton v. The Queen (1880) 3 S. C. R. 505,
545; Gibson v. Macdonald (1885) 7 O. R. 401, 416. See, also,
King v. Joe (1891) 8 Haw. Rep. 287; Cooley on Const. Limit.
5th ed. pp. 196-7.

364 prov. Legisl. 1867-1895, at pp. 1189-1197; Wheeler op. dt.
at p. 338.

wsBrophy v. Attorney-General of Manitoba [1895] A. C.
202, 221. Cf. Separate School Trustees of Belleville v. Grainger
(1878) 25 Or. 570, 581.

see City of Winnipeg v. Barrett [1892] A. C. 445, 452. What
is there stated is spoken of sub-ss. 2 and 3 of sec. 22 of the
Manitoba Act (supra, pp. 147-8), but these, so far as the present
point is concerned, may be said to be identical with the sub-
section we are now considering. Cf. Brophy v. Attorney-Gen-
eral of Manitoba [1895] A. C. 202, 213-6.

367 Brop?iy v. Attorney-General of Manitoba [1895] A. C.
202, 217. The parliament of Canada has no jurisdiction in
relation to education, except under the conditions in sub-s. 4:
Ottawa Separate Schools v. Mackell [1917] A. C. 62. See further
as to this case, Re Ottawa Separate Schools (1917) 13 O. W.
N. 261, 369.

sea AS to ” denominational schools,” and ” any class of per-
sons,” see the construction placed upon the similar words in
sec. 93 of the Federation Act, supra, pp. 145-6.

369 AS to this section 22 generally, and its origin, see
Brophy v. Attorney-General of Manitoba [1895] A. C. 202, 213,
215, 219, 228. As to sub-ss. 2 and 3 not ousting the jurisdiction
of the ordinary tribunals, and as to the fact that they are not
to be construed as merely giving a concurrent remedy where
sub-s. 1 is infringed, see supra, p. 146- As to sub-s. 4, in
Brophy’s case, supra, at p. 228 their lordships say: ” Their
lordships have decided that the Governor-General in Council
has jurisdiction, and that the appeal is well founded, but the
particular course to be pursued must be determined by the
authorities to whom it has been committed by the statute. It
is not for this tribunal to intimate the precise steps to be
taken.” See, also, Canada’s Federal System, pp. 665-6.

370 city of Winnipeg v. Barrett [1892] A. C. 445, 452-3, 454,
357-8. In this case, their lordships decided that the Roman
Catholics of Manitoba, as a matter of fact, had no right or privi-

262 CANADIAN CONSTITUTIONAL LAW.

lege with respect to denominational schools by law or practice
at the Union; and that the establishment of a national system
of .education upon an unsectarian basis is not so inconsistent
with the right to set up and maintain denominational schools
that the two things cannot exist together, or that the existence
of the one necessarily implies or involves immunity from taxa-
tion for the purpose of the other. See th.eir judgment in this
case referred to in the subsequent one of Brophy v. Attorney-
General of Manitoba [1895] A. C. 202.

87i See S. C. [1895] A. C. 202, 221.

372 Brophy v. Attorney-General of Manitoba [1895] A. C. 202,
219, 221. Their lordships here decided that rights 6r privileges
of the Roman Catholic minority in relation to education, which
accrued to them after th.e Union under statutes of the province,
had been affected by the Manitoba Public Schools Act, 1890.

STB Clement, L. of C. C. 3rd ed. pp. 954-959, gives extracts
from the Ordinances of the North-West Territories above re-
ferred to touching Separate Schools. See, also, ibid, pp. 784-788.
Reference may also be made to the speech of Sir W. Laurier as
to Separate Schools in these provinces of February 21st, 1905:
House of Commons Debates, Vol. 69, p. 1442. See, also, Regina
Public School District v. Gratton Separate School District
(1915) 50 S. C. R. 589 (reversing 7 W. W. R. 7, 6 W. W. R.
1088), wherein two judges of the Supreme Court hold intra
vires and one ultra vires a Saskatchewan statute authorizing
Separate School Boards to give notice to companies requiring
their taxes to be apportioned in a way prescribed between the
Separate School and the Public School Boards.

374p rov . Legisl. 1899-1910, p. 139. Cf. Keith’s Imp. Unity,
p. 443.

375 The predominance of Dominion legislation is illustrated
by In re Narain Singh (1908) 13 B. C. 477. A provincial Act
to prevent the fraudulent entry of horses at exhibitions under
false or assumed names or pedigrees or in a wrong class vas
held intra vires under ” agriculture ” in this section in Rex
v. Horning (1904) 8 O. L. R. 215; so was the Dominion Animal
Contagious Diseases Act, 1903, in Brooks v. Moore, (1907) 13
B. C. 91. For provincial Acts relating to immigration disal-
lowed on the ground that the Dominion parliament had legisla-
ted, see Prov. Legisl. 1867-1895, pp. 634-5; ibid. 1899-1900, pp.
134-9; ibid. 1901-1903, pp. 64, 74-75; Canada’s Federal System, 669-
671. As to the meaning of the term ” immigration,” see tne
Australian cases: Attorney-General for the Commonwealth v.
Ah Sheung (1906) 4 C. L. R. 949; Chia Gee v. Martin (1905)
3 C. L. R. 649 ; Ah Yin v. Christie (1907) 4 C. L. R. 1428; Potter
v. Minahan (190<8) 7 C. L. R. 277; and an Article on the Legal Interpretation of the Constitution of the Commonwealth, by NOTES. 263 A. B. Keith, Jl. of Compar. Legisl., N.S., Vol. 11, pp. 239-212. See, also, In re Behari Lai (190>8) 13 B. C. 415.

878 NO appeal lies of right from the Supreme Court of Can-
ada to His Majesty in Council, but an appeal lies by special
leave in every case save as regards criminal appeals, in which
a Dominion enactment purports to limit the prerogative: R. S.
C. 1906, c. 146, s. 1025, ‘though it is a good deal more than
possible that that Act might be held to be inconsistent with Imp.
7-8 Viet. c. 69, s. 1, and, therefore, ultra vires of the Dominion
parliament’: Keith’s R. G. in D., Vol. II, pp. 981, 1023. As
to the power to refer special matters to the Judicial Committee
under 3-4 Wm. IV, c. 41, s. 4 (Lord Brougham’s Act) see Keith
op. cit. Vol. Ill, p. 1382 seq. See, also, Clement. L. of C. C. 3rd
ed. pp. 157-164. Provincial statutes, however, (permit litigants,
in certain ca&es, to appeal direct to the Privy Council from the
provincial Court of Appeal, without first going to the Supreme
Court of Canada. Thus, e.g., in Ontario, such appeal is per-
mitted ‘ where the matter in controversy in any case exceeds
the sum or value of $4,000, as well as in any case where the
matter in question relates to the taking of any annual or other
rent, customary or other duty, or fee, or any like demand of
a general and public nature affecting future rights, of what
value or amount soever the same may be ‘: R. S. O. 1914, c. 54,
s. 2. See as to the other provisions, Bentinck’s Privy Council
Practice (London, 1912), p.p. 50-64. There is nothing repugnant
to sec. 101 of the Federation Act in the provisions of the Do-
minion Supreme Court Act authorizing the Governor-General
in Council to obtain by direct request answers from the
Supreme Court of Canada on any questions of law or fact;
such provisions are intra vires: Attorney-General of Ontario
v. Attorney-General of Canada [1912] A. C. 571. As to the
different position of the Supreme Court of the United States
to that of the Supreme Court of Canada, see Attorney-General
for British Columbia v. Attorney-General for Canada [1914]
A. C. 153, 162; and Canada’s Federal System, p. 677,
n. 10. As to similar legislation in Australia regarding
the reference of questions by the Governor-General to the High
Court, see Keith op. cit. Vol. II, p. 886. The opinions of judges
in response to such references are not, however, binding on the
Governor-General in Council or on the judges of the Supreme
Court themselves in any concrete case which may arise, nor on
the judge of any of the provincial Courts: In re Supreme Court
References (1910) 43 S. C. R. 536, 550, 561, 588, 592. Cf.
Kerley v. London and Lake Erie Transportation Co. (1912) 26
0. L. R. 588; The King v. Brinkley (1907) 14 0. L. R. 434, 448-
452; Prov. Legisl. 1867-1895, pp. 423-4. As to counsel not being
permitted to vary the questions submitted by hypothetical

264 , CANADIAN CONSTITUTIONAL LAW.

limitations not to be found in legislative provisions or in the
questions which relate to them, see Attorney-General of Alberta
v. Attorney-General for Canada [1915] A. C. 363. As to any
power in the Supreme Court .to avoid answering such questions,
see Attorney-General for Ontario v. Attorney-General for the
Dominion [1912] A. C. 571, 589. As to such Canadian legisla-
tion for the answering of questions not binding the Judicial
Committee, and as to the objectionable points in such proce-
dure for ” obtaining speculative opinions on hypothetical ques-
tions,” and instances where the Judicial Committee have re-
fused to answer such questions, see Attorney-General of British
Columbia v. Attorney-General for Canada, supra, at p. 162;
John Deere Plow Co. v. Wharton [1915] A. C. 330; Attorney-
General for Ontario v. Attorney-General for Canada [1916] A. C.
588, 601; Attorney-General for Ontario v. Hamilton Street R. W.
Co. [1913] A. C. 524, 529; Attorney-General for the Dominion of
Canada v. Attorneys-General for the Provinces [1898] A. C.
700, 717. See, also, Attorney-General for the Dominion of Can-
ada v. Attorneys-General of the Provinces [1897] A. C. 199, 208.
As to similar legislation in the United States, see Bryce, Amer.
Comm., ed. 1914, Vol. I, /pp. 448-9 ; and as to the whole matter
generally, see Canada’s Federal System, pp. 672-683.

377 L’ Association St. Jean Baptiste v. Brault (1901) 31 S.
C. R. 172. And cf. Supreme Court Act, R. S. C. 1906, c. 139,
sees. 38, 40.

378 Crown Grain Co. v. Day [1908] A. C. 504, 507, 39 S. C.
R. 258; Danjou v. Marquis (1879) 3 S. C. R. 251, 264, 268-9.
City of Halifax v. McLaughlin Carriage Co. (1907) 39 S. C. R.
175. Nor have provincial legislatures any power to grant an
appeal to the Supreme Court: Union Colliery Co. v. Attorney-
General of British Columbia (1897) 17 C. L. T. 391; Prov.
Legisl. 1896-8, p. 4.

379 On the argument in Attorney-General for Ontario v.
Attorney-General for Canada [1912] A. C. 571, Sir Robert Fin-
lay contended that the words included only the laws of the
Dominion as distinguished from the laws of the provinces; but
Lord Macnaghten is reported as observing: ” Is that so very
clear? I am not quite sure about that. I should have thought
the ‘laws of Canada’ might embrace the laws of the several
provinces too”: Verbatim argument (Wm. Briggs, Toronto,
1912), p. 11; Canada’s Federal System, pp. 674-6, 685-6. The
view of the Court below in that case seems to have harmonized
with that of Lord Macnaghten: 43 S. C. R. 536. See, however,
per Davies, J. and Idington, J., pp. 552, 569, 571, 575. Cf. also
sec. 4 of the Federation Act, and Prince Edward Island v. At-
torney-General for the Dominion of Canada [1905] A. C. 37. See,

NOTES. 265

also, in favour of the broader construction, Article in 11 C. L.
T. 147, upon the Constitution of Canada; and per Strong, J. in
City of Quebec v. The Queen (1894) 24 S. C. R. 420, 430. And
cf. per Duff, J. in Bonanza Creek Gold Mining Co. v. The King
(1915) 50 S. C. R. 534, 571-2, and in app. S. C. [1916] A. C.
566, 576, as to a provincial charter being included in the term
” a Canadian charter,” in certain Government regulations.
Judge Clement, however, takes the view that Dominion or Fed-
eral laws only are meant, but that it includes the law on all
subjects within federal jurisdiction, whether there has been.
post-Confederation legislation by the Dominion parliament or
not: L. of C. C. 3rd ed. pp. 511, 528-9. See, generally, Can-
ada’s Federal System, pp. 685-687. Such Courts for the better
administration of the laws of Canada, are the Exchequer Court
of Canada (with original jurisdiction, inter alia, in matters of
suit against the Crown (Dominion), and between subject and
subject in patent, copyright, and trade-mark cases, and also
as a Court of Admiralty: see R. S. C. 1906, chaps. 140, 141);
and the Railway Committee of the (Dominion) Privy Council.
See Clement op. cit. p. 552. There is an appeal as of right to
the Judicial Committee of the Privy Council under the Imperial
Colonial Court of Admiralty Act 1890,. in respect to its exercise
of Admiralty jurisdiction: Clement op. cit. pp. 241, 986. It
was by virtue of sees. 101 and 132 of the Federation Act that
the Dominion had the constitutional power to establish a Court
presided over by a Commissioner named for that purpose to
apply the laws relating to extradition: Gaynor v. Lafontaine
(1904) R. J. Q. 14 K. B. 99. The jurisdiction of a Dominion
Court may be limited to a single province: The Picton (1879)
4 S. C. R. 648. As to whether provincial Courts created by
local legislation can, as such, interfere with the decisions of a
Dominion tribunal such as the Minister of Agriculture in the
case of patents, see In re Bell Telephone Co. (1885) 9 O. R.
339, 346, where Cameron, C.J. leans the other way, without
finding it necessary to decide the point. As to the Courts not
enforcing an ultra vires order of such a tribunal, see Re Can-
adian Pacific R. W. Co. and Township of York (1896) 27 0. R.
559, 570.

38o As to whether in respect to the property clauses of the
British North America Act, it can be construed as always speak-
ing, so as, for example, to signify that harbours which were
not public harbours at the time of the Union, but afterwards
became such, must be held as thereupon passing to the Dom-
inion, see the annotation to Attorney-General for Canada v.
Ritchie Contracting Co. (1915) 26 D. L. R. (B.C.) 51, the con-
clusion reached being that it cannot be so construed.

The subjects comprised in the Third Schedule ” are for
the most part works or constructions which have resulted from

266 CANADIAN CONSTITUTIONAL LAW.

the expenditure of public money, though there are exceptions”:
The Fisheries case [1898] A. C. 700, 710-1. They consist ” of
public undertakings which might be fairly considered to exist
for the benefit of all the provinces federally united, of lands
and buildings necessary for carrying on the customs or postal
service of the Dominion, or required for the purpose of national
defence, and ‘lands set apart for general public purposes'”:
St. Catherines Milling and Lumber Co. v. The Queen (1888)
14 App. Cas. 46, 56. It seems correct to say that while, as to
legislative powers, it is the residuum which is left to the Do-
minion, as to proprietary rights, the residuum goes to the pro-
vinces. See, however, per Strong, J. in St. Catherines Milling
& Lumber Co. v. The Queen (1887) 13 S. C. R. 5tf7, 605. By sec.
125 of the Federation Act, ‘ No lands or property belonging to
Canada or any province shall be liable to taxation.’ As to
Dominion Crown lands becoming subject to provincial taxation
even before patent issued, see supra, p. 238, n. 262. In all cases
it must be taken that the Dominion became the owner of the soil
on which the works mentioned are situate: The Fisheries case
(1896) 20 S. C. R. 444, 564. Sec. 108 only transfers to the
Dominion the interest which the provinces had at Confedera-
tion: Windsor and Annapolis R. W. Co. v. Western Counties
R. W. Co. (1882) 7 App. Cas. 178. Cf. Province of Ontario v.
Dominion of Canada and Province of Quebec (1895) 25 S. C. R.
434, 532. And see Queen v. Moss (1896) 26 S. C. R. 322. As
to whether the Dominion parliament could override an interest
outstanding at Confederation in respect to the things enumer-
ated in the Third Schedule, it is submitted that it could wh.ere
to do so was incidental to the exercise of its exclusive
power under section 91 of th.e Federation Act: Canada’s Federal
System, pp. 166-9, 343, 706-7. But see the above Windsor and
Annapolis R. W. Co. case in the court below: Russ. Eq. 287,
307.

381 This did not give the Dominion any proiprietary rights
in the River St. Lawrence from which the water is taken for
the Cornwall Canal, beyond the right to take the water, nor
make the river itself a public work of Canada: Macdonald v.
The King (1906) 10 Ex. C. R. 394.

382 Whatever is properly comprised in the term ” public
harbour” became vested in the Dominion, not merely those
parts on which public works had been executed: The Fisheries
case [1898] A. C. 700; Holman v. Green (1881) 6 S. C. R. 707.
Nor does ” public harbours ” mean those harbours only which
have been declared to be such by some public .executive act,
some act of the jus regium as to harbours. See Chitty on the
Crown, pp. 174-5; Brown v. Reed (1874) 2 Pugs. 206; Nash v.
Newton (1891) 30 N. B. 610, 618-620. ‘ So early as the reign of

NOTES. 267

King John we find ships seized by the King’s officers for putting
in at a place that was not a legal port’: Black’s Comm. (ed. 1770,
Osgoode Hall Library, I. 264). The coal and other minerals
under the waters and beds of Nanaimo harbour thus be-
came the property of the Dominion: Attorney-General of Brit-
ish Columbia v. Esquimau and Nanaimo R. W. Co. (1900) 20

C. L. T. 268. As to the harbour of St. John, New Brunswick, not
passing to the Dominion, being vested in the city under charter
of 1785, ratified by local Act 1786, see St. John Gas Light Co. v.
The Queen (1895) 4 Ex. C. R. 326. In the Fisheries case (1896)
26 S. C. R. 444, 538-9, Taschereau, J. asks the question whether
there are any private harbours? It must depend to some ex-
tent, at all events, upon the circumstances of each particular
harbour what forms a part of that harbour. It does not follow
that because a foreshore on the margin of a harbour is Crown
property, it necessarily forms part of the harbour; if it has
actually been used for harbour purposes it would no doubt do
so: The Fisheries case [1898] A. C. 700, 711-712; Attorney-
General of British Columbia v. Canadian Pacific R. W. Co.
[1906] A. C. 204, 209, see per Hunter, C.J., S. C. 11 B. C. 289,
296, who says, “the (Dominion) jurisdiction in my opinion
is latent, and attaches to any inlet or harbour as soon as it
becomes a public harbour, and is not confined to such public
harbours as existed at the time of the Union”; c/., the dictum
of Allen, C.J. in Nash v. Newton (1891) 30 N. B. 610, 618: but
see contra per Davies, Duff, and Anglin, JJ. in Attorney-General
for Canada v. Ritchie Contracting and Supply Co. (1915) 26

D. L. R. 51, 17 D. L. R. 778 ; and the annotation at 26 D. L. R.
69 seq.: these seem to be the only judicial dicta reported on
this last important point. See further as to the foreshore
of harbours: Kennelly v. Dominion Coal Co. (1904) 36 N. S.
495, 500 ; and the argument of counsel in Attorney-General for
British Columbia v. Canadian Pacific R. W. Co. [1906] A. C. 204, as
reported by Martin, Meredith, Henderson & White, pp. 97-100,
and given in Canada’s Federal System, pp. 695-6. As to the
law of the foreshore with special reference to Canadian
cases, se.e Article by Mr. Silas Alward, K.C., in 34 C. L. T.
at p. 501 seq. It was held in Fader v. Smith (1885) 18 N. S. 433,
that the provincial Government could confer no title to
one of the small inlets on the shores of St Margaret’s Bay,
N. S., which had been used on several occasions by small
vessels for loading timber, although it had neither the
name nor character of a public harbour. Sed qucere.
It is questionable whether a provincial Act can incorporate a
company to construct a subway beneath a public harbour: Prov.
Legisl. 1867-1895, at p. 748. But see The Queen v. St. John Gas
Light Co. (1895) 4 Ex. C. R. 326, 338. Opening and improving
a channel through a sea wall separating a small body of water

268 CANADIAN CONSTITUTIONAL LAW.

from a public harbour, may cause the former to become a pub-
lic harbour: Nash v. Newton (1831) 30 N. B. 610. But a small
body of water where there was a wharf but no mooring ground,
and little shelter, was held not to be a “public harbour”:
McDonald v. Lake Simcoe Ice and Cold Storage Co. (1899) 26
O. A. R. 411. And so cf. Perry v. Clergue (1903) 5 O. L. R.
357, where the fact that there were wharves in an open river
front was held not to constitute it a public harbour. See fur-
ther-as to what is a “public harbour:” Attorney-Genera^ -for
Canada v. Ritchie Contracting Co. (1915), 26 D. L. R. 51, 17
D. L. R. 778; PicTcels v. The King (1912) 14 Ex. C. R. 379, 7
D. L. R. 698. Fisheries therein do not necessarily constitute
part of a harbour so as to .enable the Dominion parlia-
ment to authorize the grant to anyone of an exclusive right of
fishing therein: Young v. Harnish (1904) 37 N. S. 213, 220-221.
It is no objection to a local option by-law that it Includes a
public harbour: Re Sturmer and Town of Beaverton (1911) 24
O. L. R. 65, 72. See contra, however, per Girouard, J. in In re
Provincial Fisheries (1896) 26 S. C. R. 444, 564. As to the
power of the Dominion parliament under its legislative power
over ‘navigation and shipping ‘ (supra, pp. 106-7), to expropriate
a provincial harbour, see Attorney-General for Canada v. Ritchie
Contracting and Supply Co. (1915) 26 D. L. R. 51, per Davies,
J. at p. 56, per Duff, J. at p. 66.

sss This means ” river Improvements ” and ” lake improve-
ments.” It does not mean that rivers or beds of rivers, not
granted before Confederation, were to become the property of
the Dominion: Attorney-General for the Dominion v. Attorney-
Generals for the Provinces [1898] A. C. 700, 710-711. ” Rivers ”
is probably a clerical error: In re Provincial Fisheries (1896)
26 S. C. R. 444, 542-4. The other view was at one time advanced
by the Dominion Government: Prov. Legisl. 1867-1895, at pp.
764, 1122, 1147. The ownership of river improvements does
not give the Dominion Government any right to grant a ferry
across the river which did not exist apart from it: Perry v.
Clergue (1903) 5 O. L. R. 357, 364-5. But as to boundary rivers,
it appears that the Dominion parliament alone has jurisdiction
over the establishment or creation of ferries between a province
and British or foreign country, or between two provinces: In re
International and Interprovincial Ferries (1905) 36 S. C. R. 206.
However see Memorandum of Attorney-General of Ontario read
in Dominion House of Commons on May 7th, 1909, to the effect
that a stream being an international stream does not deprive a
province of its share of jurisdiction over it: Toronto Globe
for May 8th, 1909 ; Canada’s Federal System, p. 703, n. 30. See,
further, as to beds of navigable rivers in Quebec, even above tide-
water, being in the Crown, and not in the riparian proprietors:

NOTES. 269

Dixson v. Snetsinger (1873) 23 C. P. 235. Aliter in Manitoba
Keewatin Power Co. v. Town of Kenora (1908) 16 O. L. R. 184,
13 O. L. R. 237. But see Bartlett v. Scotten (1895) 24 S. C. R.
367. As to the ownership of beds of rivers in Ontario, see
R. S. O. 1914, c. 130. As to provincial Attorneys-General being
competent to take proceedings to restrain pollution of navigable
rivers, as well as the Dominion Attorney-General, see Attorney-
General of Canada v. Eiven (1895) 2 B. C. 468. As to pro-
vincial legislatures having the right to make a municipality
extend to the middle of a navigable river, see Central Vermont
R. W. Co. v. Town of St. Johns (1886) 14 S. C. R. 288. As to
the right to cut ice in rivers 1 in Quebec, see Dupuis v. Saint
Jean (1910) R. J. Q. 38 S. C. 204. As to a river down which
only loose logs could be floated not being a “navigable and
floatable river” within Art. 400 of the Civil Code of Lower
Canada, see Maclaren v. Attorney-General for Quebec [1914]
A. C. 258. As to a public right to navigate non-tidal navigable
rivers in Canada, see Fort George Lumber Co. v. Grand Trunk
Pacific R. W. Co. (1915) 24 D. L. R. 527, 528.

384 AS to what amounts to an appropriation under the above
clause, see Prov. Legisl. 1865-1895, pp. 757-8.

ass This section applies mut. mut. to the other provinces
admitted into the Union since Confederation other than Mani-
toba, Alberta and Saskatchewan, where the public lands are
still retained by the Dominion, save that by 48-49 Viet. c. 53,
s. 1, (now R. S. C. 1906, c. 99, s. 3; see, also R. S. C. 1906, c.
55, s. 5), it is provided that all Crown lands which may be
shewn to the satisfaction of the Dominion Government to be
swamp lands, shall be transferred to the province of Manitoba,
and enure wholly to its benefits and uses. See Attorney-General
for Manitoba v. Attorney-General for Canada [1904] A. C. 799,
34 S. C. R. 287, as to the effect of this statement. Asi to the
surrender by the Imperial Government of the Crown lands in
the province of Canada, the maritime provinces, and Prince
Edward Island, to those colonies, see Keith, R. G. in D., Vol.
II, pp. 1047-1053. Cf. also ibid. Vol. Ill, p. 1621. As to the
practice of the United States in this respect when new States
are organized out of the Territories, see Bryce’s Amer. Comm.
(ed. 1914) Vol. I, p. 354, n. 1. As to royalties, see King v.
Rithet (1918) 54 C. L. J. 116.

sse St. Catherines Milling and Lumber Co. v. The Queen

(1888) 14 App. C’as. 46, 56; Attorney-General -for the Dominion
of Canada v. Attorney-Generals for the Provinces [1898] A. C.
700, 709-711. As to grants to the Dominion Government such as
that of the Railway Belt in British Columbia, and their effect,
see The Queen v. Farwell (1887) 14 S. C. R. 392, 425; Attorney-
General of British Columbia v. Attorney-General of Canada

(1889) 14 App. Cas. 295, 301-2. As to Deadman’s Island near

270 CANADIAN CONSTITUTIONAL LAW.

the entrance to Burrard’s Inlet in the harbour of Vancouver
see Attorney-General of British Columbia v> Attorney-General of
Canada [19061 A. C. 552.

3×7 For a case in which, before the title of the provinces
to Indian lands had been thus decided, the Dominion Government,
acting in the interests of the Dominion as a whole, had obtained
the surrender of Indian lands on certain terms, and then
vainly endeavoured to establish a principle of law or equity
upon which they could recover indemnity from the province to
whose benefit the surrender had ultimately accrued, see Do-
minion of Canada v. Province of Ontario [1910] A. C. 637, 42 S.
C. R. 1, 10 Ex. C. R. 445. For a case where Indians surrendered
their beneficial owership in trust under a special instrument,
without destroying it, see per Duff, J., Attorney-General for Can-
ada v. Giroux (1916) 30 D. L. R. 123, 140. As to Indian lands in
British Columbia: see Canada’s Federal System, pp. 711-714 ;
Prov. Legisl. 1867-1895, pp. 1025-8. As to Indian lands in
New Brunswick, see Doe d. Burk v. Cornier (1890) 30 N. B.
142, 147-150.

388 In favour of the provinces having such power, see per
Burton, J.A. in St. Catherines Milling and Lumber Co. v. The
Queen (1886) 13 O. A. R. 148, 167; contra, per Rose, J. in Cald-
well v. Eraser, unreported except in McPherson and Clark’s
Law of Mines, pp. 15-24; Dominion of Canada v. Province of
Ontario (19*09) 42 S. C. R. 1, 93. Also an Article in 12 C. L. T.
163. The enumeration in sched. 3 of the Federation Act of
provincial public works and property does not include Crown
lands which are reserved for Indian use: St. Catherines Mill-
ing & Lumber Co. v. The Queen (1888) 14 App. Cas. 46, 56. Such
Indian lands are before surrender vested in the Crown subject
to an interest other than that of the province in the same,
within the meaning of sec. 109 of the Federation Act: S. C.
The Dominion cannot dispose, by permits or otherwise, of
the beneficial interest in the timber, which passes to the pro-
vince: S. C. at p. 60. As to native title in New Zealand, see
In re London and Whitaker Claims Act (1872) 2 C. A. 41, 49,
50; Wi Parata v. Bishop of Wellington, 3 J. R. N.S. S. C. 72;
Keith’s R. G. in D., Vol. II, p. 1059 seq.; and as to Indian title
generally, see Canada’s Federal System, pp. 710-721.

3S9 Attorney-General of Canada v. Attorney-General of the
Provinces (Fisheries case) [1898] A. C. 700, 709. For the dis-
tinction between majora and minora regalia, see Black.’s Comm.
(ed. 1770, Osgoode Hall library) I. 241. In the last case
the Supreme Court decided that under the word ” lands ”
in the above section 109 of the Federation Act is comprised the
beds of all lakes, rivers, and other waters (.except public har-
bours, as to which see supra, n. 382) within the territorial

NOTES. 271

limits of the several provinces which had not been granted by
the Crown before Confederation of every description: S. C.
(1896) 26 S. C. R. 444. And see Queen v. Moss (1896) 26 S. C.
R. 322. This, of course, will not prevent the Dominion parlia-
ment exercising such jurisdiction over them as is properly in-
cidental to its exercise of its exclusive enumerated powers under
section 91 of the Federation Act: per Gwynne, J., S. C. 26 S. C.
R. 444, 541. See, however, his words at pp. 544-5. See, also,
supra, p. 121. As to the rule of riparian ownership a$ medium
filum not applying to the great lakes of Canada, or to rivers
de facto navigable: see per Strong, C.J., S. C. 26 S. C. R. at p.
530 seq.’, and per Girouard, J. at p. 548 seq. As to the owner-
ship of the land covered by sea within the three-mile limit, see
Attorney-General of British Columbia v. Attorney-General for
Canada [1914] A. C. 153, 174-5. Their lordships, however, for
reasons stated declined to pronounce upon it, and point out
that the question is not one which belongs to the domain of
municipal law alone. As to narrow arms of the sea, bays,
inlets, etc., see Clement’s L. of C. C. 3rd ed. p. 246. See, further,
as to the three-mile limit, the argument in the last mentioned
case (printed verbatim by W. H. Cullin, Victoria, B.C.) pp. 62-4,
81 seq. 173; also supra, n. 173. As to a bridge constructed
by an individual over the Richelieu River before Confederation
reverting to the Crown in right of the province after Confed-
eration, see Montreal Light, Heat and Power Co. v. Archam-
bault (1907-8) R. J. Q. 16 K. B. 410, aff. 41 S. C. R. 116. See,
also, Queen v. Yule (1899) 6 Ex. C. R. 103, 30 S. C. R. 24. As
to a Crown grant derogating from a public right of navigation,
see Queen v. Fisher (1891) 2 Ex. C. R. 365; Queen v. St. John
Gas Light Co. (1895) 4 Ex C. R. 326, 346; In re Provincial
Fisheries, 26 S. C. R. 444, 575. But see Normand v. St. Law-
rence Navigation Co. (1879) 5 Q. L. R. 215.

soo Attorney-General of Ontario v. Mercer (1883) 8 ^pp.
Cas. 767, which thus affirmed Attorney-General of Quebec v.
Attorney-General of Dominion of Canada (Church v. Fenton)
(1876) 1 Q. L. R. 77, 2 Q. L. R. 236. As to this case not decid-
ing anything in respect of personal estate which escheats for
want of next of kin; and as to its not applying to escheats of
land in Manitoba, and, on the same principle, in Saskatchewan
and Alberta, see Prov. Legisl. 1867-1895, at pp. 838-9, 853, 856;
an Article on Escheat and Bona Vacantia in Alberta and else-
where, by W. S. Scott, 37 C. L. T. 764; and Trust and Guar-
antee Co. v. The King (1916) 54 S. C. R. 107, 15 Ex. C. R. 403,
where the Supreme Court (Idington and Brodeur, JJ., dissenting)
held that escheats of land in Alberta were a royalty re-
served to the Dominion of Canada by sec. 21 of the Alberta
Act, 4-5 Edw. VII, c. 3, D., and the right of the Dominion there-

272 CANADIAN CONSTITUTIONAL LAW.

to could not be affected by provincial legislation. See supra,
n. 385, as to Manitoba, lands.

39i Attorney-General of British Columbia v. Attorney-Gen-
eral of Canada (the Precious Metals case) (1889) 14 App. Gas.
295; Attorney-General v. Mercer (1883) 8 App. C’as. 767. In
these cases their lordships expressly refrain from considering
whether * royalties ‘ in section 109, includes jura regalia other
than those connected with lands, mines, and minerals. In the
first they held that notwithstanding the statutory grant of the
Railway . Belt by British Columbia to the Dominion, pursuant
to their Articles of Union, the expression ” land ” though it
carried with it the baser metals, they being paries soli, inci-
dents of land, did not carry the precious metals, which remained
vested in the Crown, subject to the control and disposal of the
provincial government. Their lordships refer to this case in their
subsequent judgment in Attorney-General for British Columbia
v. Attorney -General for Canada [1914] A. C. 153,165; cf. Woolley
v. Attorney-General of Victoria (1877) 2 App. Gas. 163; Esqui-
mau and Nanaimo R. W. Co. v. Bainbridge [1896] A. C. 561.
A conveyance of land from one private individual to another
when once the precious metals have passed out of the Crown,
will pass them although not specially mentioned: Re St. Eu-
gene Mining Co. and the Land Registry Act (1900) 7 B. C.
288. Lands in the railway belt can only pass from the Crown
by Dominion grant: Queen v. Farwell (1893-4) 22 S. C. R.
553, 561, 3 Ex. C. R. 171, 289; Burrard Power Co. v. The King
[1911] A. C. 87, 43 S. C. R. 27. Water rights incidental to the
lands granted passed to the Dominion: S. C. The province
retained no power of legislation as to them: S. C. Once granted
to settlers by the Dominion, these lands revert to the same
position as if settled by the provincial Government in the or-
dinary course of its- administration: Precious Metals Case
supra. Cf. McGregor v. Esquimau and Nanaimo R. W. Co.
[1907] A. C. 462.

39i a /n re International and Interprovincial Ferries (1905)
36 S. C. R. 206, overruling Perry v. Clergue (1903) 5 O. L. R.
357. See, also, No. 13 of sec. 91, supra p. 109.

302 Attorney-General for the Dominion v. Attorney-General
of Ontario [1897] A. C. 199, 25 S. C. R. 434. See, also, in con-
nection with the same proceedings out of which this app-eal
arose: Province of Quebec v. Dominion of Canada (1898) 30
S. C. R. 151; Attorney-General for Ontario v. Attorney-General
for Quebec [1903] A. C. 38, 31 S. C. R. 516; Attorney-General
for Quebec v. Attorney-General for Ontario [1910] A. C. 627,
42 S. C. R. 161. These proceedings arose upon those sections
of the Federation Act, namely, sections 109, 111, 112, and 142,
which relate to the incidence after the Union of the debts and

XOTES. 273

liabilities of the old province of Canada. See further as to
them, and, also, as to Crown lands being bound by a trust,
Canada’s Federal System, p. 736, n., and cases there referred
to. Such a ” trust ” or ” interest ” as referred to in sec. 109,
was the right possessed by the Canada Central Railway Com-
pany under its charter to pass over any portion of the country
between limits mentioned therein, and to carry the railway
through the Crown lands lying between the same: Booth v.
Mclntyre (1880) 31 C. P. 183, 193-4. So was the interest in
the public lands created by an ante-Confederation statute direct-
ing them to be set apart to be sold and the proceeds applied
to the creation of a common school fund: Provinces of Ontario
and Quebec v. Dominion of Canada (1898) 28 . C. R. 609. The
contention that Magna Charta creates a ” trust ” or ” interest ”
in favour of the public in land covered. by tidal waters cannot
be sustained: In re Provincial FisJieries (1896) 26 S. C. R.
444, 509. But as to the right of Indians to enjoy the constituted
rents of a certain seigniory in Quebec being such ” an interest
other than that of the province in the same,” see Mowat v.
Casgrain (1896) R. J. Q. 6 Q. B. 12.

392a in this connection it may be pardonable to quote the
words of Mr. Bernard Holland in his ” Imperium et Libertas,”
at pp. 10-11: ‘Not long ago the Judicial Committee of the
Privy Council decided questions arising in Canada and in-
volving large interests as between different States within the
Dominion as to rights in the Great Lakes and other waters.
Had Canada been divided like the same area in Europe into
several quite independent states, this is precisely the kind of
question which might have led to war the worst and
most barbarous of remedies, with all its cost in life, and
wealth, and happiness, with all its legacy of bitter memories,
and ending, perhaps, in a decision in favour of the strongest,
but contrary to true justice, since m,ight is not always identical
with right. But because the Canadian provinces all formed
part of one Empire, the questions at issue could be settled
by four or five wise elderly gentlemen seated round a table
at Whitehall, after hearing the tranquil arguments of Mr. Blake,
Q.C., and Mr. Haldane, Q.C. This is civilization on a higher
level arbitration in lieu of war.’ And see the whole ques-
tion of Imperial unity and Imperial co-operation discussed in
his usual thorough way by Mr. Berriedale Keith in R. G. in
D., in Vol. Ill, pp. 1453-1558, where at pp. 1463 seq. he con-
cisely summarises the proceedings and discussions in the suc-
cessive Colonial Conferences from 1887 to 1911.

C.C.L. 18

274 CANADIAN CONSTITUTIONAL LAW.

393 Dominion of Canada v. Province of Ontario [1910] A. C.
637, 42 S. C. R. 1, 10 Ex. C. R. 445. The Judicial Committee
there say (p. 645): “It may be that, in questions between a
Dominion comprising various provinces of which the laws are
not in all respects identical, on the one hand, and a particular
province with laws of its own, on the other hand, difficulty will
arise as to the legal principle which is to be applied. Such
conflicts may always arise in the case of States and provinces
within a union. But the conflict is between one set of legal
principles and another. In the present case, it does not appear
to their lordships that the claim of the Dominion can be sus-
tained on any principle of law that can be invoked as applic-
able.” See, also, Attorney-General of Ontario v. Attorney-Gen-
eral of Canada (1907) 39 S. C. R. 14, 10 Ex. C. R. 293. Ontario
has passed an Act submitting to the jurisdiction of the Supreme
Court of Canada and the Exchequer Court in cases of contro-
versies between the Dominion of Canada and itself, and also
1 controversies between any other province of the Dominion
which may have passed an Act similar to this Act and On-
tario:’ R. S. 0. 1914, c. 55, s. 2. For similar Acts, see R. S.
M. 1913, c. 38, s. 7; C. S. N. B. 1903, c. 110, s. 1.

394 See this whole matter of comparison between the United
States Constitution and that of Canada gone into in more detail
in the introductory chapter to the Law of Legislative Power
in Canada, and the concluding chapter of Canada’s Federal
System. There, too, special attention is called to the ways in
which the express legislative powers conferred upon the Dom-
inion parliament and the provincial legislatures respectively
in Canada differ from those of Congress and the States in the
United States. Special reference may also be made in this
connection to an Article on Judicial Review of Legislation in
Canada by Charles G. Haines, 28 Harv. L. R. 565.

APPENDIX

THE BRITISH NORTH AMERICA ACT, 1867, BEING (IMP.)
30 VICTORIA, CHAPTER 3.i

An Act for the Union of Canada, Nova Scotia, and’ New\ Bruns-
wick, and the Government thereof: and for Purposes con-
nected therewith.*-

[March 29th, 1861.]

WHEREAS the Provinces of Canada, Nova Scotia, and
New Brunswick, have expressed their desire to be
federally united into one Dominion under the Crown of the
United Kingdom of Great Britain and Ireland, with a Consti-
tution similar in principle to that of the United Kingdom:

And whereas such a Union would conduce to the welfare of
the Provinces and promote the interests of the British Empire:

And whereas on the establishment of the Union by author-
ity of Parliament it is expedient, not only that the Constitu-
tion of the Legislative Authority in the Dominion be provided
for, but also that the nature of the Executive Government
therein be declared:

And whereas it is expedient that provision be made for the
eventual admission into the Union of other parts of British
North America:

Be it therefore ^ enacted and declared by the Queen’s most
Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows :

I. PRELIMINARY.

1. This Act may be cited as The British North America Short tlt ie.
Act, 1867.

2. The provisions of this Act referring to Her Majesty the Application of
Queen extend also to the heirs and successors of Her Majesty, *

the Queen.

1 Brought into force, pursuant to sec. 3, by Royal Proclamation,
on July 1st, 1867. See sub. Imp. 30 Viet. c. 3, in “Table of Stat-
utes Referred to,” supra.

276

CANADIAN CONSTITUTIONAL LAW.

Kings and Queens of the United Kingdom of Great Britain
and Ireland.

II. UNION.

Declaration by

& r uikm a o? n
Canada, Nova

one Dominion
Canada.*”*

Commenoement

provision”?
Act.

Meaningof
Canadainsuch

3. It shall be lawful for the Queen, by and with the advice
of Her Majesty’s Mos t Honourable Privy Council, to declare
by Proclamation that on and after a day herein appointed,
not bein S more than six months after the passing of this Act,
the Provinces of Canada, Nova Scotia, and New Brunswick
sna11 form and be one Dominion under the name of Canada;
and on and after that day those three Provinces shall form
and be one Dominion under that name accordingly.

4. The subsequent provisions of this Act shall, unless it is
otherwise expressed or implied, commence and have effect on
and after the Union, that is to say, on and after the day ap-
pointed for the Union taking effect in the Queen’s Proclama-
tion; and in the same provisions, unless it is otherwise ex-
pressed or implied, the name Canada shall be taken to mean
Canada as constituted under this Act.

Four Provinces. 5. Canada shall be divided into four Provinces, named
Ontario, Quebec, Nova Scotia, and New Brunswick.

Provinces of
Quebec. and

[Canada now also includes the Provinces of Manitoba, Bri-
tish Columbia, Prince Edward Island, Alberta and Saskatche-
wan, and the Yukon Territory and the North-West Territories.]

6. The parts of the Province of Canada (as it exists at the
Passing of this Act) which formerly constituted respectively
the Provinces of Upper Canada and Lower Canada shall be
deemed to be severed, and shall form two separate Provinces.
The part which formerly constituted the Province of Upper
Canada shall constitute the Province of Ontario and the part
which formerly constituted the Province of Lower Canada shall
constitute the Province of Quebec.

Provinces of 7. The Provinces of Nova Scotia and New Brunswick shall

New a Br I uns a w a c n k d have the same li m *ts as at the passing of this Act.

Population of

in decennial
censu3 –

8- In the general census of the population of Canada which
* s ^ erebv required to be taken in the year one thousand eight
hundred and seventy-one, and in every tenth year thereafter,
the respective populations of the four Provinces shall be dis-
tinguished.

III. EXECUTIVE POWER.

Executive 9. The Executive Government and authority of and over

SnuevesteTm Canada is hereby declared to continue and be vested in the

the Queen. Queen.

BRITISH NORTH AMERICA ACT, 1867. 277

10. The provisions of this Act referring to the Governor- Application of
General extend and apply to the Governor-General for the time KfSSto
being of Canada, or other the Chief Executive Officer or Governor
Administrator, for the time being carrying on the Government General

of Canada on behalf and in the name of the Queen, by what-
ever title he is designated.

11. There shall be a Council to aid and advise in the Gov- Constitution of
ernment of Canada, to be styled the Queen’s Privy Council

for Canada; and the persons who are to be members of that
Council shall be from time to time chosen and summoned by
the Governor-General and sworn in as Privy Councillors, and
members thereof may be from time to time removed by the
Governor-General.

12. All powers, authorities, and functions, which under any All powers
Act of the Parliament of Great Britain, or of the Parliament be^erdsl
of the United Kingdom of Great Britain and Ireland, or of i>y Governor
the Legislature of Upper Canada, Lower Canada, Canada,

Nova Scotia, or New Brunswick, are at the Union vested in or Q rl a v 1 y m Counci1 ‘

exercisable by the respective Governors or Lieutenant-Gover- or

nors of those Provinces, with the advice, or with the advice

and consent, of the respective Executive Councils thereof, or

in conjunction with those Councils, or with any number of

members thereof, or by those Governors or Lieutenant-Gover-

nors individually, shall, as far as the same continue in exist-

ence and capable of being exercised after the Union in relation

to the Government of Canada, be vested in and exercisable by

the Governor-General, with the advice or with the advice and

consent of or in connection with the Queen’s Privy Council

for Canada, or any members thereof, or by the Governor-

General individually, as the case requires, subject neverthe-

less (except with respect to such as exist under Acts of the

Parliament of Great Britain or of the Parliament of the United

Kingdom of Great Britain and Ireland) to be abolished or

altered by the Parliament of Canada.

13. The provisions of this Act referring to the Governor- Application of
General in Council shall be construed as referring to the

Governor-General acting by and with the advice of the Queen’s Governor

General in

Privy Council for Canada. Council.

14. It shall be lawful for the Queen, if Her Majesty thinks Power to Her
fit, to authorize the Governor-General from time to time to authorize
appoint any person or any persons jointly or severally to be his ^ overno r
Deputy or Deputies within any part or parts of Canada, and appoint
in that capacity to exercise during the pleasure of the Governor- Deputies.
General such of the powers, authorities, and functions of the
Governor-General as the Governor-General deems it necessary

278

CANADIAN CONSTITUTIONAL LAW.

Command of
armed forces
to continue to
be vested in
the Queen;

Seat of
Government
of Canada.

or expedient to assign to him or them, subject to any limita-
tions or directions expressed or given by the Queen; but the
appointment of such a Deputy or Deputies shall not affect the
exercise by the Governor-General himself of any power, author-
ity or function.

15. The Command-in-Chief of the Land and Naval Militia,
and of all Naval and Military Forces, of and in Canada, is
hereby declared to continue and be vested in the Queen.

16. Until the Queen otherwise directs the seat of Govern-
ment of Canada shall be Ottawa.

IV. LEGISLATIVE POWER.

Parliament of ! 17t Tnere sha11 be one Parliament for Canada, consisting

Canada. of the Queen, an Upper House, styled the Senate, and the House

of Commons.

Privileges, etc.,
of Houses.

of Canada.

of Canada.

[Section 18 was repealed by Imperial Act 38 and 39 Viet,
c. 38, and the following section substituted therefor.

18. The privileges, 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 Parlia-
ment of Canada, but so that any Act of the Parliament of
Canada defining such privileges, immunities and powers shall
not confer any privileges, immunities or powers exceeding those
at the passing of such Act held, enjoyed, and exercised by the
Commons House of Parliament of the United Kingdom of Great
Britain and Ireland and by the members thereof.]

19. The Parliament of Canada shall be called together not
later than six months after the Union.

20. There shall be a Session of the Parliament of Canada
once at least in every year, so that twelve months shall not
intervene between the last sitting of the Parliament in one
Session and its first sitting in the next Session.

Number of
Senators.

The Senate.

21. The Senate shall, subject to the provisions of this Act,
consist of seventy-two members, who shall be styled Senators.

[The Senate now includes representatives of the Provinces
of Manitoba, British Columbia, Prince Edward Island, Alberta
and Saskatchewan and comprises ninety-six members.]^

2 See supra, p. 41.

BRITISH NORTH AMERICA ACT, 1867. 279

22. In relation to the constitution of the Senate, Canada Representation
shall be deemed to consist of three divisions senate! 1 69 ln

1. Ontario;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Bruns-
wick; which three divisions shall (subject to the provisions
of this Act) be equally represented in the Senate as follows:
Ontario by twenty-four Senators; Quebec by twenty-four Sena-
tors; and the Maritime Provinces by twenty-four Senators,
twelve thereof representing Nova Scotia, and twelve thereof
representing New Brunswick.

In the case of Quebec each of the twenty-four Senators
representing that Province shall be appointed for one of the
twenty-four Electoral Divisions of Lower Canada specified in
Schedule A. to chapter one of the Consolidated Statutes of
Canada.sa

23. The qualifications of a Senator shall be as follows: Qualifications

of Senator.

1. He shall be of the full age of thirty years:

2. He shall be either a natural-born subject of the Queen,

or a subject of the Queen naturalized by an Act of
the Parliament of Great Britain, or of the Parlia-
ment of the United Kingdom of Great Britain and
Ireland, or of the Legislature of one of the Provinces
of Upper Canada, Lower Canada, Canada, Nova Scotia,
or New Brunswick, before the Union, or of the Par-
liament of Canada after the Union.

3. He shall be legally or equitably seised as of freehold

for his own use and benefit of lands or tenements
held in free and common socage, or seised or pos-
sessed for his own use and benefit of lands or tene-
ments held in franc-aleu or in roture, within the
Province for which he is appointed, of the value of
$4,000, over and above all rents, dues, debts, charges,
mortgages and incumbrances due or payable out of
or charged on or affecting the same;

4. His real and personal property shall be together worth

$4,000 over and above his debts and liabilities ;

5. He shall be resident in the Province for which he is

appointed ;

6. In the case of’ Quebec he shall have his real property

qualification in the Electoral Division for which he
is appointed, or shall be resident in that Division.

2a See xupra, p. 41.

280

CANADIAN CONSTITUTIONAL LAW.

Summoning of
Senators.

24. The Governor-General shall from time to time, in the
Queen’s name, by instrument under the Great Seal of Canada,
summon qualified persons to the Senate; and, subject to the
provisions of this Act, every person so summoned shall become
and be a member of the Senate and a Senator.

Summons of
first bodj r of
Senators.

25. Such persons shall be first summoned to the Senate as
the Queen by warrant under Her Majesty’s Royal Sign Manual
thinks fit to approve, and their names shall be inserted in the
Queen’s Proclamation of Union.

Additions of
Senators in
certain cases.

26. If at any time on the recommendation of the Governor-
General the Queen thinks fit to direct that three or six members
be added to the Senate, the Governor-General may by summons
to three or six qualified persons (as the case may be), repre-
senting equally the three divisions of Canada, add to the Senate
accordingly.

Reduction of 27. In case of such addition being at any time made the

normal lumber. Governor-General shall not summon any person to the Senate,

except on a further like direction by the Queen on the like

recommendation, until each of the three divisions of Canada

is represented by twenty-four Senators and no more.

Maximum
number of
Senators.

28. The number of Senators shall not at any time exceed
seventy-eight.

[See note appended to s. 21.]

hfsenate f Place 29 ‘ A Senator sliall > subject to the provisions of this Act,

hold his place in the Senate for life.

Resignation
of place in
Senate.

30. A Senator may by writing under his hand addressed to
the Governor-General resign his place in the Senate, and there-
upon the same shall be vacant.

Disqualification 31, Th e place of a Senator shall become vacant in any of

of Senators. ., ,, .

the following cases:

1. If for two consecutive Sessions of the Parliament he

fails to give his attendance in the Senate;

2. If he takes an oath or makes a declaration or acknow-

ledgment of allegiance, obedience, or adherence to a
foreign power, or does an act whereby he becomes a
subject or citizen, or entitled to the rights or privi-
leges of a subject or citizen, of a foreign power;

3. If he is adjudged bankrupt or insolvent, or applies for

the benefit of any law relating to insolvent debtors,
or becomes a public defaulter;

BRITISH NORTH AMERICA ACT, 1867. 281

4. If he is attainted of treason or convicted of felony or

of any infamous crime;

5. If he ceases to be qualified in respect of property or

of residence; provided, that a Senator shall not be
deemed to have ceased to be qualified in respect of
residence by reason only of his residing at the seat
of the Government of Canada while holding an office
under that Government requiring his presence there.

32. When a vacancy happens in the Senate by resignation, Summons on
death, or otherwise, the Governor-General shall by summons to ggnate y m

a fit and qualified person fill the vacancy.

33. If any question arises respecting the qualification of a Questions as to
Senator or a vacancy in the Senate, the same shall be heard

and determined by the Senate. in Senate.

34. The Governor-General may from time to time, by Appointment
instrument under the Great Seal of Canada, appoint a Senator sl5te! ker f
to be Speaker of the Senate, and may remove him and appoint
another in his stead.

35. Until the Parliament of Canada otherwise provides, Quorum of
the presence of at least fifteen Senators, including the Speaker,

shall be necessary to constitute a meeting of the Senate for the
exercise of its powers.

36. Questions arising in the Senate shall be decided by a Voting in
majority of voices, and the Speaker shall in all cases have a Senate –
vote, and when the voices are equal the decision shall be
deemed to be in the negative.

The House of Commons.

37. The House of Commons shall, subject to the provisions constitution
of this Act, consist of one hundred and eighty-one members, of c’oSnwns^n
whom eighty-two shall be elected for Ontario, sixty-five for Canada.
Quebec, nineteen for Nova Scotia, and fifteen for New Bruns-

wick.s

38. The Governor-General shall from time to time, In the Summoning
Queen’s name, by instrument under the Great Seal of Canada,
summon and call together the House of Commons.

39. A Senator shall not be capable of being elected or
sitting or voting as a member of the House of Commons.

3 See R. S. C. 1906, c. 5, and amendments, for the present com-
position of the House of Commons, and supra, p. 42.

282 CANADIAN CONSTITUTIONAL LAW.

dts of the 4O * Until the Parliament of Canada otherwise provides,

fou/provinces. Ontario, Quebec, Nova Scotia, and New Brunswick shall, for
the purposes of the election of members to serve in the House
of Commons, be divided into Electoral Districts as follows:

1. ONTARIO.

Ontario shall be divided into the Counties, Ridings of Coun-
ties, Cities, parts of Cities-, and Towns enumerated in the first
Schedule to this Act, each whereof shall be an Electoral Dis-
trict, each such District as numbered in that Schedule being
entitled to return one member.

2. QUEBEC.

Quebec shall be divided into sixty-five Electoral Districts,
composed of the sixty-five Electoral Divisions into which
Lower Canada is at the passing of this Act divided under
chapter two of the Consolidated Statutes of Canada, chapter
seventy-five of the Consolidated Statutes of Lower Canada, and
the Act of the Province of Canada of the twenty-third year of
the Queen, chapter one, or any other Act amending the same
in force at the Union, so that each such Electoral Division shall
be for the purposes of this Act an Electoral District entitled to
return one member.

3. NOVA SCOTIA.

Each of the eighteen Counties of Nova Scotia shall be an
Electoral District. The County of Halifax shall be entitled to
return two members, and each of the other Counties one
member.

4. NEW BRUNSWICK.

Each of the fourteen Counties into which New Brunswick
is divided, including the City and County of St. John, shall
be an Electoral District; the City of St. John shall also be
a separate Electoral District. Each of those fifteen Electoral
Districts shall be entitled to return one member.*

ing electin 41 * Until the Parliament of Canada otherwise provides, all
laws until laws in force in the several Provinces at the Union relative

to the followin S matters or any of them, namely, the quali-
otherwise fications and disqualifications of persons to be elected or to

provides. s j t or vote ag mem k ers O f the House of Assembly or Legis-

lative Assembly in the several Provinces, the voters at elections
of such members, the oaths to be taken by voters, the Return-

*See R. S. C. 1906, c. 5, and amendments for the present pro-
visions for the representations of the foregoing provinces and of those
admitted subsequently to the B. N. A. Act, 1867.

BRITISH NORTH AMERICA ACT, 1867. 283

ing Officers, their powers and duties, the proceedings at elec-
tions, the periods during which elections may be continued, the
trial of controverted elections, and proceedings incident thereto,
the vacating of seats of members, and the execution of new
writs in case of seats vacated otherwise than by dissolution,
shall respectively apply to elections of members to serve in the
House of Commons for the same several Provinces.

Provided that, until the Parliament of Canada otherwise
provides, at any election for a Member of the House of Com-
mons for the District of Algoma, in addition to persons quali-
fied by the law of the Province of Canada to vote, every male
British subject aged twenty-one years or upwards, being a
householder, shall have a vote.s

42. For the first election of members to serve in the House writs for first
of Commons the Governor-General shall cause writs to be issued electlon –

by such person, in such form, and addressed to such Returning
Officers as he thinks fit.

The person issuing writs under this section shall have the
like powers as are possessed at the Union by the officers
charged with the issuing of writs for the election of members
to serve in the respective House of Assembly or Legislative
Assembly of the Province of Canada, Nova Scotia, or New
Brunswick; and the Returning Officers to whom writs are
directed under this section shall have the like powers as are
possessed at the Union by the officers charged with the return-
ing of writs for the election of members to serve in the same
respective House of Assembly or Legislative Assembly.

43. In case a vacancy in the representation in the House AS to vacancies
of Commons of any Electoral District happens before the meet- of f pariiTmenT g
ing of the Parliament, or after the meeting of the Parliament or^or^ro-^
before provision is made by the Parliament in this behalf, the by Parifament
provisions of the last foregoing section of this Act shall extend *” * hi s behalf.
and apply to the issuing and returning of a writ in respect of

such vacant District.

44. The House of Commons on its first assembling after a AS to election
general election shall proceed with all practicable speed to elect il^To** (
one of its members to be. Speaker. Commons.

45. In case of a vacancy happening in the office of Speaker AS *
by death, resignation or otherwise, the House of Commons ^office of y
shall with all practicable speed proceed to elect another of its Speaker.
members to be Speaker.

5 See R.S.C. 1906, caps. 6, 7, 8, and 9, and amendments thereto.

284

CANADIAN CONSTITUTIONAL LAW.

Speaker to
preside.

Provision in
case of absence
of Speaker.

46. The Speaker shall preside at all meetings of the House
of Commons.

47. Until the Parliament of Canada otherwise provides, in
case of the absence for any reason of the Speaker from the
chair of the House of Commons for a period of forty-eight
consecutive hours, the House may elect another of its mem-
bers to act as Speaker, and the member so elected shall dur-
ing the continuance of such absence of the Speaker have and
execute all the powers, privileges, and duties of Speaker.

Housef f
Commons.

48 ‘ Tne P resence of at least twenty members of the House
of Commons shall be necessary to constitute a meeting of the
House for the exercise of its powers, and for that purpose the
Speaker shall be reckoned as a member.

ofCo m mo” 8 U8e 49> Questions arising in the House of Commons shall be
decided by a majority of voices other than that of the Speaker
and when the voices fire equal, but not otherwise, the Speaker
shall have a vote.

Duration of 50. Every House of Commons shall continue for five years

Commons. from the day of the return of the writs for choosing the House

(subject to be sooner dissolved by the Governor-General), and

no longer.

Decennial

51. On the completion of the census in the year one thou-
sand eight hundred and seventy-one, and of each subsequent
decennial census, the representation of the four Provinces shall
be re-adjusted by such authority, in such manner and from such
time as the Parliament of Canada from time to time provides,
subject and according to the following rules:

1. Quebec shall have the fixed number of sixty-five

members.

2. There shall be assigned to each of the other Provinces

such a number of members as will bear -the same
proportion to the number of its population (ascer-
tained at such census) as the number sixty-five bears
to the number of the population of Quebec (so
ascertained).

3. In the computation of the number of members for a

Province a fractional part not exceeding one-half of
the whole number requisite for entitling the Pro-
vince to a member shall be disregarded; but a frac-
tional part exceeding one-half of that number shall
be equivalent to the whole number.

BRITISH NORTH AMERICA ACT, 1867. 285

4. On any such re-adjustment the number of members
for a Province shall not be reduced unless the pro-
portion which the number of the population of the
Province bore to the number of the aggregate popu-
lation of Canada at the then last preceding re-adjust-
inent of the number of members for the Province is
ascertained at the then latest census to be diminished
by one-twentieth part or upwards.

6. Such re-adjustment shall not take effect until the ter-
mination of the then existing Parliament^

52. The number of members of the House of Commons may increase of
be from time to time increased by the Parliament of Canada, b e er o j f
provided the proportionate representation of the Provinces commons.

prescribed by this Act is not thereby disturbed.

*

Money Votes; Royal Assent.

53. Bills for appropriating any part of the public revenue, Appropriation
or for imposing any tax or impost, shall originate in the House and tax bills –
of Commons.

54. It shall not be lawful for the House of Commons to Keoommenda-
adopt or pass any vote, resolution, address, or bill for the ^ g of mone >”
appropriation of any part of the public revenue, or of any

tax or impost, to any purpose that has not been first recom-
mended to that House by message of the Governor-Oeneral
in the Session in which such vote, resolution, address, or bill
is proposed.

55. Where a bill passed by the Houses of the Parliament Royal assent
is presented to the Governor-General for the Queen’s assent, to bi ” 8 ‘ etc –
he shall declare according to his discretion, but subject to the
provisions of this Act and to Her Majesty’s instructions, either

that he assents thereto in the Queen’s name, or that he with-
holds the Queen’s assent, or that he reserves the bill for the
signification of the Queen’s pleasure.

56. Where the Governor-General assents to a bill in the Disallowance
Queen’s name, he shall by the first convenient opportunity send cliwiiotAct
an authentic copy of the Act to one of her Majesty’s Prin- assented to by
cipal Secretaries of State ; and if the Queen in Council within

two years after the receipt thereof by the Secretary of State
thinks fit to disallow the Act, such disallowance (with a cer-
tificate of the Secretary of State of the day on which the Act
was received by him) being signified by the Governor-General
by speech or message to each of the Houses of the Parliament,

See R. S. C. 1906, c. 5.

286

CANADIAN CONSTITUTIONAL LAW.

Signification
of Queen’s
pleasure on
bill reserved.

of by proclamation, shall annul the Act from and after the day
of such signification.

57. A bill reserved for the signification of the Queen’s
pleasure shall not have any force unless and until within
two years from the day on which it was presented to the
Governor-General for the Queen’s assent, the Governor-General
signifies, by speech or message to each of the Houses of the
Parliament or by proclamation, that it has received the assent
of the Queen in Council.

An entry of every such speech, message, or proclamation
shall be made in the Journal of each House, and a duplicate
thereof duly attested shall be delivered to the proper officer to
be kept among the Records of Canada.

V. PROVINCIAL CONSTITUTIONS.
Executive Power.

Appointment of 58. For each Province there shall be an officer, styled the
Ldeutenant-Governor, < appointed’ by the Governor-General In Council by instrument under the Great Seal of Canada. Provinces. Tenure of office of Lieutenant Governor Salaries of Lieutenant Governors. 59. A Lieutenant-Governor shall hold office during the pleasure of the Governor-General; but any Lieutenant-Governor appointed after the commencement of the first Session of the Parliament of Canada shall not be removable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then within one week after the commencement of the next Session of the Parliament. 60. The salaries of the Lieutenant-Governors shall be fixed and provided by the Parliament of Canada. f 61 * Every Lieutenant-Governor shall, before assuming the Governor. duties of his office, make and subscribe before the Governor- General or some person authorized by him, oaths of allegiance and office similar to those taken by the Governor-General. Application of provisions referring to Lieutenaut Governor. 62. The provisions of this Act referring to the Lieutenant- Governor extend and apply to the Lieutenant-Governor for the time being of each Province or other the chief executive officer or administrator for the time being carrying on the government of the Province, by whatever title he is designated. BRITISH NORTH AMERICA ACT, 1867. 287 63. The Executive Council of Ontario and of Quebec shall be composed of such persons as the Lieutenant-Governor from officers for time to time thinks fit, and in the first instance of the follow- ftnd ing officers, namely: The Attorney-General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in Quebec, the Speaker of the Legislative Council and the Solicitor-General. 7 64. The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, Novscota and subject to the provisions of this Act, continue as it exists at New Brunswick. the Union until altered under the authority of this Act. 65. All powers, authorities, and functions which under any AH powers Act of the Parliament of Great Britain, or of the Parliament ?obTexercised Of the United Kingdom of Great Britain and Ireland, or of byLfeutenjnt the Legislature of Upper Canada, Lower Canada, or Canada, ontarioor were or are before or at the Union vested in or exercisable by Quebec with the respective Governors or Lieutenant-Governors of those Executive Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunc- tion .with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors in- dividually, shall, as far as the same are capable of being exer- cised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exer- cised by the Lieutenant-Governor of Ontario and Quebec re- spectively, with the advice or with the advice and consent of or in conjunction with the respective Executive Councils, or any members thereof, or by the Lieutenant-Governor individu- ally, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respec- tive Legislatures of Ontario and Quebec. 66. The provisions of this Act referring to the Lieutenant- Applcation of Governor in Council shall be construed as referring to the Lieutenant-Governor of the Province acting by and with advice of the Executive Council thereof. Council 67. The Governor-General in Council may from time to time appoint an administrator to execute the office and functions of Lieutenant of Lieutenant-Govenor during his absence, illness, or other Governor. inability. 7 See now as to Ontario, R. S. O. 1914, c. 13 : am. 8 Geo. V. c. 20, s. 6. 288 CANADIAN CONSTITUTIONAL LAW. Seats of 68. Unless and until the Executive Government of any Governments. Province otherwise directs with respect to that Province, the seats of Government of the Provinces shall be as follows, namely, of Ontario, the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax; and of New Brunswick, the City of Fredericton. Legislative Power. 1. ONTARIO. Legislature 69. There shall be a Legislature for Ontario consisting of the Lieutenant-Governor and of one House, styled the Legisla- tive Assembly of Ontario. Electoral districts. 7O. The Legislative Assembly of Ontario shall be composed of eighty-two members to be elected to represent the eighty-two Electoral Districts set forth in the first Schedule to this Act* Legislature for Quebec. Constitution of Legislative Council. 2. QUEBEC. 71. There shall be a Legislature for Quebec consisting of the Lieutenant-Governor and of two Houses, styled the Legisla- tive Council of Quebec and the Legislative Assembly of Quebec. 72. The Legislative Council of Quebec shall be composed of twenty-four members, to be appointed by the Lieutenant- Governor in the Queen’s name, by instrument under the Great Seal of Quebec, one being appointed to represent each of the twenty-four electoral divisions of Lower Canada in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otherwise provides under the provisions of this Act. Counclors 73 ‘ The Qualifications of the Legislative Councillors of Quebec shall be the same as those of the Senators for Quebec. Resignation, 74. The place of a Legislative Councillor of Quebec shall tio 8 n, U e a tc. ca become vacant in the cases mutatis mutandis, in which the place of Senator becomes vacant. Vacancies. 75. When a vacancy happens in the Legislative Council of Quebec, by resignation, death, or otherwise, the Lieutenant- Governor, in the Queen’s name by instrument under the Great Seal of Quebec, shall appoint a fit and qualified person to fill the vacancy. 76. If any question arises respecting the qualification of a Legislative Councilor of Quebec, or a vacancy in the Legisla- 8 The number of members is now 106. See R. S. O. 1914, c. 5, s. 3; am. 5 Geo. V, c. 2. BRITISH NORTH AMERICA ACT, 1867. 28U live Council of Quebec, the same shall be heard and determined by the Legislative Council. 77. The Lieutenant-Governor may from time to time, by Speaker of instrument under the Great Seal of Quebec, appoint a member council! of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his stead. 78. Until the Legislature of Quebec otherwise provides, the Quorum of presence of at least ten members of the Legislative Council, couS.* including the Speaker, shall be necessary to constitute a meet- ing for the exercise of its powers. 79. Questions arising in the Legislative Council of Quebec Voting in shall be decided by a majority of voices, and the Speaker shall coundL^ 6 in all cases have a vote, and when the voices are equal the deci- sion shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be composed Constitution of sixty-five members, to be elected to represent the sixty-five AsJeTbiy^ 6 electoral divisions or districts of Lower Canada in this Act Quebec. referred to, subject to alteration thereof by the Legislature of Quebec: Provided that it shall not be lawful to present to the Lieutenant-Governor of Quebec for assent any bill for alter- ing the limits of any of the Electoral Divisions or Districts mentioned in the second Schedule to this Act, unless the second and third readings of such bill have been passed in the Legislative Assembly with the concurrence of the majority of the members representing all those Electoral Divisions or Districts, and the assent shall not be given to such bills unless an address has been presented by the Legislative Assembly to the Lieutenant-Governor stating that it has been so passed. 3. ONTARIO AND QUEBEC. 81. The Legislatures of Ontario and Quebec respectively First Session of shall be called together not later than six months after the Legislatures. ^ Union. 82. The Lieutenant-Governor of ‘ Ontario and of Quebec summoning of shall from time to time, in the Queen’s name, by instrument under the Great Seal of the Province summon and call together the Legislative Assembly of the Province. 83. Until the Legislature of Ontario or of Quebec otherwise Restriction on provides, a person accepting or holding in Ontario or in Que- beo any office, commission, or employment permanent or tern- office. porary, at the nomination of the Lieutenant-Governor, to which C.C.L. 19 290 CANADIAN CONSTITUTIONAL LAW. Continuance of existing election laws. Duration of Legislative Assemblies. an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the Province is attached, shall not be eligible as a member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such ; but nothing in this section shall make ineligible any person being a member of the Executive Council of the respective Province, or holding any of the following offices, that is to say, the offices of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works, and, in Quebec, Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while hold- ing such officer 84. Until the Legislatures of Ontario and Quebec respec- tively otherwise provide, all laws which at the Union are in force in those Provinces respectively, relative to the following matters, or any of them, namely, the qualifications and dis- qualifications of persons to be elected or to sit or vote as mem- bers of the Assembly of Canada, the qualifications or disquali- fications of voters, the oaths to be taken by voters, the Return- ing Officers, their powers and duties, the proceedings at elec- tions, the periods during which such elections may be continued, and the trial of controverted elections and the proceedings in- cident thereto, the vacating of the seats of members and the issuing and execution of new writs in case of seats vacated otherwise than by dissolution, shall respectively apply to elec- tions of members to serve in the respective Legislative Assem- blies of Ontario and Quebec.io Provided that until the Legislature of Ontario otherwise provides, at any election for a member of the Legislative Assembly of Ontario for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British Subject, aged twenty-one years or upwards, being a householder, shall have a vote.n 85. Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for four years from the day of the return of the writs for choosing the same (subject nevertheless to .either the Legislative Assembly of Ontario or the Legislative Assembly of Quebec being sooner dissolved by the Lieutenant-Governor of the Province), and no longer.12 ‘Acts have since been passed with the view of further securing the independence of the Legislative Assembly of Ontario. See R. S. O. 1914, c. 11, sees. 7-16. 10 See now as to Ontario. R. S. O. 1914, caps 8 and 10, and amendments. 11 See now R. S. O. 1914, c. 8, s. 19. 12 See now R. S. O. 1914, c. 11, s. 4. BRITISH NORTH AMERICA ACT, 1867. 291 86. There shall be a session of the Legislature of Ontario Yearly Sessions and of that of Quebec once at least in every year, so that of Le & i8lature – twelve months shall not intervene between the last sitting of the Legislature in each Province in one session and its first sitting in the next session.^ 87. The following provisions of this Act respecting the Speaker, House of Comm>ons of Canada, shall extend and apply to the Quorum> eto *
Legislative Assemblies of Ontario and Quebec, that is to say,

the provisions relating to the election of a Speaker originally
and on vacancies, the duties of the Speaker, the absence of the
Speaker, the quorum, and the mode of voting, as if those pro-
visions were here re-enacted and made applicable in terms to
each such Legislative Assembly.**

4. NOVA SCOTIA AND NEW BRUNSWICK

88. The constitution of the Legislature of each of the Pro- Constitutions of
vinces of Nova Scotia and New Brunswick shall, subject to Nova’scotu and
the provisions of this Act, continue as it exists at the Union New Brunswick.
until altered under the authority of this Act; and the House

of Assembly of New Brunswick existing at the passing of this
Act shall, unless sooner dissolved, continue for the period for
which it was elected.

5. ONTARIO, QUEBEC, AND NOVA SCOTIA.

89. Each of the Lieutenant-Governors of Ontario, Quebec, First elections.
and Nova Scotia shall cause writs to be issued for the first

election of members of the Legislative Assembly thereof in
such form and by such person as he thinks fit, and at such
time and addressed to such Returning Officer as the Governor-
General directs, and so that the first election of members of
Assembly for any Electoral District or any subdivision thereof
shall be held at the same time and at the same places as the
election for a member to serve in the House of Commons of
Canada for that Electoral District.

6. THE FOUR PROVINCES.

90. The following provisions of this Act respecting the Application to
Parliament of Canada, namely, the provisions relating to J^jJ’^ 1 ‘
appropriation and tax bills, the recommendation of money respecting

votes, the assent to bills, the disallowance of Acts, and the
signification of pleasure on bills reserved. shall extend and
apply to the Legislatures of the several Provinces as if those

13 See (R. S. O. 1914, c. 11, s. 5.

“See sees. 44, 45, 46, 47, 48, and 49 of this Act, and R. S. O.
1914, c. 11, sees. 35, 36, 38, 62 and 63.

292 CANADIAN CONSTITUTIONAL LAW.

provisions were here re-enacted and made applicable in terms
to the respective Provinces and the Legislatures thereof, with
the substitution of the Lieutenant-Governor of the Province
.for the Governor-General, of the Governor-General for the Queen
and for a Secretary of State, of one year for two years, and of
the Province for Canada.

Legislative
authority of
Parliament of
Canada.

VI. DISTRIBUTION OF LEGISLATIVE POWERS.
Powers 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 to all matters not coming within the classes of sub-
jects by this Act assigned exclusively to the Legislatures of the
Provinces; and for greater certainty, but not so as to restrict
the generality of the foregoing terms of this section, it is hereby
declared that (notwithstanding anything in this Act) the ex-
clusive legislative authority of the Parliament of Canada ex-
tends to all matters coming within the classes of subjects next
hereinafter enumerated; that is to say:

1. The Public Debt and Property.

2. The regulation of Trade and Commerce.

3. The raising of money by any mode or system of Taxation.

4. The borrowing of money on the public credit.

5. Postal service.

6. The Census and Statistics.

7. Militia, Military and Naval Service and Defence.

8. The fixing of and providing for the salaries and allow-

ances of civil and other officers of the Government of
Canada.

9. Beacons, Buoys, Lighthouses, and Sable Island.

10. Navigation and Shipping.

11. Quarantine and the establishment and maintenance of

Marine Hospitals.

12. Sea Coast and inland Fisheries.

BRITISH NORTH AMERICA ACT, 1867. 293

13. Ferries between a Province and any British or Foreign

country or between two Provinces.

14. Currency and Coinage.

15. Banking, incorporation of banks, and the issue of paper

money.

16. Savings Banks.

17. Weights and Measures.

18. Bills of Exchange and Promissory Notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and Insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians, and lands reserved for the Indians.

25. Naturalization and Aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts of

Criminal Jurisdiction, but including the Procedure In
Criminal Matters.

28. The Establishment, Maintenance, and Management of

Penitentiaries.

29. Such classes of subjects as are expressly excepted in

the enumeration of the classes of subjects by this Act
assigned exclusively to the Legislatures of the Pro-
vinces.

And 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
exclusively to the Legislatures of the Provinces.

Exclusive Powers of Provincial Legislatures.

92. In each Province the Legislature may exclusively make subjects of
laws in relation to matters coming within the classes of sub- p^Scii
jects next hereinafter enumerated, that is to say, Legislation.

294 CANADIAN CONSTITUTIONAL LAW.

1. The Amendment from time to time, notwithstanding

anything in this Act, of the Constitution of the Pro-
vince, except as regards the office of Lieutenant-
Governor.

2. Direct Taxation within the Province in order to the

raising of a Revenue for Provincial purposes.

3. The borrowing of money on the sole credit of the Pro-

vince.

4. The establishment and tenure of Provincial offices and

the appointment and payment of Provincial officers.

6. The management and sale of the Public Lands belonging
to the Province and of the timber and wood thereon.

6. The establishment, maintenance, and management of

public and reformatory prisons in and for the Province.

7. The establishment, maintenance, and management of hos-

pitals, 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 ;

Z>. 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 de-
clared by the Parliament of Canada to be for the
general advantage of Canada or for the advan-
tage of two or more of the Provinces.

11. The incorporation of companies with Provincial objects.

12. The solemnization of marriage in the Province.

BRITISH NORTH AMERICA ACT, 1867. 295

13. Property and civil rights in the Province.

14. The administration of justice in the Province, including

the constitution, maintenance, and organization of Pro-
vincial Courts, both of civil and of criminal jurisdic-
tion, and including procedure in civil matters in those
Courts.

15. The imposition of punishment by fine, penalty, or im-

prisonment for 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.

Education.

93. In and for each Province the Legislature may exclu- Legislation
sively make laws in relation to education, subject and according S
to the following provisions:

1. 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 uuion by

law conferred 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 dissen-

tient schools exists by law at the Union or is thereafter
established by the Legislature of the Province, an ap-
peal shall lie to the Governor-General in Council from
any Act or decision of any Provincial authority affect-
ing any right or privilege of the Protestant or Roman
Catholic minority of the Queen’s subjects 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 execution 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 Provincial authority

296 CANADIAN CONSTITUTIONAL LAW.

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.

Uniformity of Laws in Ontario, Nova Scotia and
New Brunswick.

Legislation for 94. Notwithstanding anything in this Act, the Praliament

uws^the ‘ of Canada may make provision for the uniformity of all or

three Provinces any o f j^e j aws relative to property and civil rights in On-

and civii?fg r hts tario, Nova Scotia and New Brunswick, and of the procedure

of d rocedu?e ity of a11 or any of tlle Courts in those three Provinces; and from

?n courts. ” and after the passing of any Act in that behalf the power of the

Parliament of Canada to make laws in relation to any matter

comprised in any such Act shall, notwithstanding 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.

Concurrent 95. j n eac h Province the Legislature may make laws in

Legislation relation to Agriculture in the Province, and to Immigration
a- 8 rStu?eand lnto the Province; and it is hereby declared that the Parlia-
immigration. ment of Canada may from time to time make laws in relation
to Agriculture in all or any of the Provinces, and to Immigra-
tion into all or any of the Provinces; and any law of the Legis-
lature 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.

VII. JUDICATURE.

Appointment of 96. 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 Bruns-
wick.

Selection of 97. Until the laws relative to property and civil rights in

Ontar?o!etc. Ontario, Nova Scotia, and New Brunswick, and the procedure
of the Courts of 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.

BRITISH NORTH AMERICA ACT, 1867. 297

98. The Judges of the Courts of Quebec shall be selected Selection of
from the Bar of that Province. Quebec. 1 ”

99. The Judges of the Superior Courts shall hold office Tenure of office
during good behaviour, but shall be removable by the Gover- suierior S Courts
nor-General on address of the Senate and House of Commons.

100. The salaries, allowances and pensions of the Judges Salaries, etc.,
of the Superior, District, and County Courts (except the Courts of Judges>
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.

101. The Parliament of Canada may, notwithstanding any- General Court
thing in this Act, from time to time, provide for the constitu- of A PP eal etc –
tion, maintenance, and organization of a general Court of

Appeal for Canada, and for the establishment of any additional
Courts for the better administration of the Laws of Canada.

VIII. REVENUES; DEBTS; ASSETS; TAXATION.

102. All duties and revenues over which the respective creation of
Legislatures of Canada, Nova Scotia, and New Brunswick

before and at the Union had and have power of appropriation,
except such portions thereof as are by this Act reserved to the
respective Legislatures of the Provinces, or are raised by them
in accordance with the special powers conferred on them by
this Act, shall form one Consolidated Revenue Fund, to be
appropriated for the public service of Canada in the manner
and subject to the charges in this Act provided.

103. The Consolidated Revenue Fund of Canada shall be Expenses of
permanently charged with the costs, charges, and expenses i nc i. collection, etc.
dent to the collection, management, and receipt thereof, and

the same shall form the first charge thereon, subject to be
reviewed and audited in such manner as shall be ordered by
the Governor-General in Council until the Parliament otherwise
provides.

104. The annual interest of the public debts of the several interest of
Provinces of Canada, Nova Scotia and New Brunswick at the

Union shall form the second charge on the Consolidated Rev-
enue Fund of Canada.

105. Unless altered by the Parliament of Canada, the salary Salary of
of the Governor-General shall be ten thousand pounds sterling
money of the United Kingdom of Great Britain and Ireland,
payable out of the Consolidated Revenue Fund of Canada, and

the same shall form the third charge thereon.

298

CANADIAN CONSTITUTIONAL LAW.

Appropriation
to charges.

1O6. Subject to the several payments by this Act charged
on the Consolidated Revenue Fund of Canada, the same shall
be appropriated by the Parliament of Canada for the public
service.

Transfer to
Canada of
stocks, etc.,
belonging to
two Provinces.

107. All stocks, cash, banker’s balances, and securities for
money belonging to each Province at the time of the Union,
except as in this Act mentioned, shall be the property of Can-
ada, and shall be (taken in reduction of the amount of the respec-
tive debts of the Province at the Union.

Transfer of
property in
schedule.

108. The public works and property of each Province,
enumerated in the third schedule to this Act, shall be the pro-
perty of Canada.

1O9 ‘ A11 lands ‘ mines minerals, and royalties belonging to
to Provinces to the several Provinces of Canada, Nova Scotia and New Bruns-

ilong to them. wick at the Union> and al j sums then due Q] , paya bl e 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 or arise, subject to any trusts
existing in respect thereof, and to any interest other than of
the Province in the same.

Asseter , 11O. All assets connected with such portions of the public

connected

with Provincial debt of each Province as are assumed by that Province shall
debts – belong to that Province.

HabTe d f a or be IIIf Canada sha11 be liable for the deMs and liabilities of

Provincial debts, each Province existing at the Union.

Liability of
Ontario and
Quebec to
Canada.

112. Ontario and Quebec conjointly shall be liable to Can-
ada for the amount (if any) by which the debt of the Province
of Canada exceeds at the Union $62,500,000, and shall be charged
with interest at the rate of five per centum per annum thereon.

Assets of
Ontario and
Quebec.

Liability of
Nova Scotia
to Canada.

113. The assets enumerated in the fourth Schedule to this
Act belonging at the Union to the Province of Canada shall be
the property of Ontario and Quebec conjointly.

114. Nova Scotia shall be liable to Canada for the amount
(if any) by which its public debt exceeds at the Union $8,000,-
000, and shall be charged with interest at the rate of five per
centum per annum thereon.

115. New Brunswick shall be liable to Canada for the

Liability of

to e canada. 8W1 * amount (if any) by which its public debt exceeds at the Union
$7,000,000, and shall be charged with interest at the rate of five
per centum per annum thereon.

BRITISH NORTH AMERICA ACT, 1867. 299

116. In case the public debts of Nova Scotia and New Payment of
Brunswick do not at the Union amount to $8,000,000 and $7,000,- NovL e |cotia and
000 respectively, they shall repectively receive by half-yearly New Brunswick
payments in advance from the Government of Canada interest

at five per centum per annum on the difference between the th n the stipu-
actual amounts of their respective debts and such stipulated
amounts.

117. The several Provinces shall retain all their respective Provincial
public property not otherwise disposed of in this Act, subject public P r P ert y-
to the right of Canada to assume any lands or public property

required for fortifications or for the defence of the country.

118. The following sums shall be paid yearly by Canada Grants to
to the several Provinces for the support of their Governments Provllices –
and Legislatures:

Dollars
Ontario ……………………. Eighty thousand.

Quebec …….. . …………….. Seventy thousand.

Nova Scotia …………………. Sixty thousand.

New Brunswick ……….. . ….. Fifty thousand.

Two hundred and sixty thousand.

And an annual grant in aid of each Province shall be made,
equal to eighty cents per head of the population as ascer-
tained by the Census of 1861, and in case of Nova Scotia and
New Brunswick, by each subsequent decennial census until
the population of each of those two Provinces amounts to four
hundred thousand souls, at which rate such grant shall there-
after remain. Such grants shall be in full settlement of all
future demands on Canada, and shall be paid half-yearly in
advance to each Province; but the Government of Canada shall
deduct from such grants, as against any Province, all sums
chargeable as interest on the Public Debt of that Province in
excess of the several amounts stipulated in this Act.

119. New Brunswick shall receive by half-yearly payments Further grant to
in advance from Canada, for the period of ten years from the

Union an additional allowance of $63,000 per annum; but as
long as the Public Debt of that Province remains under $7,000,-
000, a deduction equal to the interest at five per centum per
annum on such deficiency shall be made from that allowance
of $63,000.

120. All payments to be made under this Act, or in dis- Form of
charge of liabilities created under any Act of the Provinces of P ft y ment8 –
Canada, Nova Scotia and New Brunswick respectively, and

300 CANADIAN CONSTITUTIONAL

assumed by Canada, shall, until the Parliament of Canada
otherwise directs, be made in such form and manner as may
from time to time be ordered by the Governor-General in
Council.

Manufactures, 121. All articles of the growth, produce, or manufacture

Province”? be of ^y one of tne Provinces shall, from and after the Union, be

admitted free admitted free into each of the other Provinces.

into the others.

Continuance of 122. The Customs and Excise Laws of each Province shall,

ExXse^aws subject to the provisions of this Act, continue in force until
altered by the Parliament of Canada.

hn P oSafio2 and 123t Where Customs duties are, at the Union, leviable on
as between any goods, wares, or merchandises in any two Provinces, those
two Provinces. go0( j S) ware s and merchandises may, from and after the Union,
be imported from one of those Provinces into the other of
them on proof of payment of the Customs duty leviable there-
on in the Province of exportation, and on payment of such
further amount (if any) of Customs duty as is leviable, thereon
in the Province of importation.

Lumber dues in 124. Nothing in this Act shall affect the right of New

New Brunswick. grung^^ to levy the lumber dues provided in chapter fifteen,
of title three, of the Revised Statutes of New Brunswick, or in
any Act amending that Act before or after the Union, and not
increasing the amount of such dues; but the lumber of any of
the Provinces other than New Brunswick shall not be subjected
to such dues.

Exemption of 125. NO lands or property belonging to Canada or any

et u c jTrom Province shall be liable to taxation.

taxation.

Provincial 126. Such portions of the duties .and revenues over which

Revenue a Fu d nds the res P ective Legislatures of Canada, Nova Scotia and New
Brunswick had before the Union power of appropriation as tire
by this Act reserved to the respective Governments or Legis-
latures of the Provinces, and all duties and revenues raised by
them in accordance with the special powers conferred upon
them by this Act, shall in each Province form one Consolidated
Revenue Fund to be appropriated for the public service of the
Province.

IX. MISCELLANEOUS PROVISIONS.
General.

127. If any person being at the passing of this Act a
Provinces Member of the Legislative Council of Canada, Nova -Scotia,

Senators? or New Brunswick, to whom a place in the Senate is offered,

BRITISH NORTH AMERICA ACT, 1867. 301

does not within thirty days thereafter, by writing under his
hand, addressed to the Governor-General of the Province of
Canada, or to the Lieutenant-Governor of Nova Scotia or New
Brunswick (as the case may be), accept the same, he shall be
deemed to have declined the same; and any person who, being
at the passing of this Act a member of the Legislative Council
of Nova Scotia or New Brunswick, accepts a place in the Senate,
shall thereby vacate his seat in such Legislative Council.

128. Every member of the Senate or House of Commons Oath of

of Canada shall before taking his seat therein, take and sub- alle e iance > etC:
scribe before the Governor-General or some person authorized
by him, and every member of a Legislative Council or Legisla-
Live Assembly of any Province shall before taking his seat
therein, take and subscribe before the Lieutenant-Governor of
the Province or some person authorized by him, the oath of
allegiance contained in the fifth Schedule to this Act ; and
every member of the Senate of Canada and every member of
the Legislative Council of Quebec shall also, before taking his
seat therein, take and subscribe before the Governor-General
or some person authorized by him, the declaration of qualifica-
tion contained in the same Schedule.

129. Except as otherwise provided by this Act, all laws in Conttnuanc*
force in Canada, Nova Scotia or New Brunswick at the Union, ^^0^,
and all Courts of civil and military jurisdiction, and all legal officers, etc.’
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;
subject nevertheless (except with respect to such as are
enacted by or exist under Acts of the Parliament of Great
Britain or of the Parliament of the United Kingdom of Great
Britain and Ireland,) to be repealed, abolished or altered by
the Parliament of Canada, or by the Legislature of the respec-
tive Province, according to the authority of the Parliament or
of that Legislature under this Act.

130. Until the Parliament of Canada otherwise provides, Transfer of
all officers of the several Provinces having duties to discharge cana5a!
in relation to matters other than those coming within the
classes of subjects by this Act assigned exclusively to the
Legislatures of the Provinces shall be officers of Canada, and

shall continue to discharge the duties of their respective offices
under the same liabilities, responsibilities and penalties as if
the Union had not been made.

131. Until the Parliament of Canada otherwise provides, Appointment
the Governor-General in Council may from time to time appoint of new officer> –

302

CANADIAN CONSTITUTIONAL LAW.

Canadaas 8 b ?t
f a Briti3h 8 P ‘ ‘
Empire.

“nd Fmich i8h
languages.

such officers as the Governor-General in Council deems neces-
sary or proper for the effectual execution of this Act.

Power for 132. The Parliament and Government of Canada shall

have all powers necessary or proper for performing the obli-
gations of ‘ c ‘ anada or of an y Province thereof, as part of the
British Empire, towards foreign countries, arising under trea-
ties between the Empire and such foreign countries.

133t EiUier the English or the French language may be
used by any person in the debates of the Houses of the Parlia-
ment of Canada and of the Houses of the Legislature of
Quebec; and both those languages shall be used in the respec-
tive records and journals of those Houses ; and either of those
languages may be used by any person or in any pleading or
process in or issuing from any Court of Canada established
under this Act, and in or from all or any of the Courts of
Quebec.

The Acts of the Parliament of Canada and of the Legis-
lature of Quebec shall be printed and published in both those
languages.

Ontario and Quebec.

134. Until the Legislature of Ontario or of Quebec other-
wise provid.es, the Lieutenant-Governors of Ontario and
Quebec may each appoint under the Great Seal of the Pro-
vince the following officers, to hold office during pleasure, that
is to say: the Attorney-General, the Secretary and Registrar
of the Province, the Treasurer of the Province, the Commis-
sioner of Crown Lands, and the Commissioner of Agriculture
and Public Works, and in the case of Quebec the Solicitor-
General; and may, by order of the Lieutenant-Governor in
Council, from time to time prescribe the duties of those
officers and of the several departments over which they shall
preside or to which they shall belong, and of the officers and
clerks thereof ; and may also appoint other and additional
officers to hold office during pleasure, and may from time to
time prescribe the duties of those officers, and of the several
departments over which they shall preside or to which they
shall belong, and of the officers and clerks thereof.

135 ‘ Until the Le S islature of Ontario or Quebec otherwise
officers. provides, all rights, powers, duties, functions, responsibilities

or authorities at the passing of this Act vested in or imposed
on the Attorney-General, Solicitor-General, Secretary and
Registrar of the Province of Canada, Minister of Finance, Com-

ppointment
Ve

A

officersor
Ontario and
Quebec.

BRITISH NORTH AMERICA ACT, 1867. 303

missioner of Crown Lands, Commissioner of Public Works,
and Minister of Agriculture and Receiver-General, by any law,
statute or ordinance of Upper Canada, Lower Canada, or Can-
ada, and not repugnant to this Act, shall be vested in or
imposed on any officer to be appointed by the Lieutenant-
Governor for the discharge of the same or any of them; and
the Commissioner of Agriculture and Public Works shall per-
form the duties and functions of the office of Minister of Agricul-
ture at the passing of this Act imposed by the law of the
Province of Canada, as well as those of the Commissioner of
Public Works.

136. Until altered by the Lieutenant-Governor in Council, Great Seal –
the Great Seals of Ontario and of Quebec respectively shall be

the same, or of the same design, as those used in the Provinces
of Upper Canada and Lower Canada respectively before their
Union as the Province of Canada.

137. The words “and from thence to the end of the then
next ensuing Session of the Legislature,” or words to the
same effect, used in any temporary Act of the Province of
Canada not expired before the Union, shall be construed to
extend and apply to the next Session of the Parliament of
Canada, if the subject matter of the Act is within the powers
of the same, as denned by this Act, or tp the next Sessions of
the Legislatures of Ontario and Quebec respectively, if the
subject matter of the Act is within the powers of the same
as denned by this Act.

138. From and after the Union, the use of the words A8 fc o errors in
” Upper Canada” instead of “Ontario,” or ” Lower Canada” na
instead of “Quebec,” in any deed, writ, process, pleading,
document, matter or thing, shall not invalidate the same.

139. Any Proclamation under the Great Seal of the Pro- AS to issue of
vince of Canada issued before the Union to take effect at *JJj5j^$?
time which is subsequent to the Union, whether relating to to commence
that Province, or to Upper Canada, or to Lower Canada, and a(ter Union –
the several matters and things therein proclaimed, shall be and
continue of like force and effect as if the Union had not been

made.

140. Any Proclamation which is authorized by any Act of AS to issue of
the Legislature of the Province of Canada to be issued under 1***
the Great Seal of the Province of Canada, whether relating to under authoritj
that Province, or to Upper Canada, or to Lower Canada, and$nfon!
which is not issued before the Union, may be issued by the
Lieutenant-Governor of Ontario or of Quebec, as its subject

304

CANADIAN CONSTITUTIONAL LAW.

Penitentiary.

Arbitration
respecting
debts, eto.

Division of
records. ,

Constitution
of townships
in Quebec.

matter requires, under the Great Seal thereof; and from and
after the issue of such Proclamation the same and the several
matters and things therein proclaimed shall be and continue
of the like force and effect in Ontario or Quebec as if the
Union had not been made.

141. The Penitentiary of the Province of Canada shall,
until the Parliament of Canada otherwise provides, be and
continue the Penitentiary of Ontario and of Quebec.

142. The division and adjustment of the debts, credits,
liabilities, properties and assets of Upper Canada and Lower
Canada shall be referred to the arbitrament of three arbitra-
tors, one chosen by the Government of Ontario, one by the
Government of Quebec and one by the Government of Canada;
and the selection of the arbitrators shall not be made until
the Parliament of Canada and the Legislatures of Ontario
and Quebec have met; and the arbitrator chosen by the Gov-
ernment of Canada shall not be a resident either in Ontario
or in Quebec.

143. The Governor-General in Council may from time to
time order that such and so many of the records, books, and
documents of the Province of Canada as he thinks fit shall be
appropriated and delivered either to Ontario or to Quebec,
and the same shall henceforth be the property of that Pro-
vince; and any copy thereof or extract therefrom duly certi-
fied by the officer having charge of the original thereof shall
be admitted as evidence.

144. The Lieutenant-Governor of Quebec may from time to
time, by Proclamation under the Great Seal of the Province,
to take effect from a day to be appointed therein, constitute
townships in those parts of the Province of Quebec in which
townships are not then already constituted, and fix the metes
and bounds thereof.

Duty of
Government
and Parliament
of Canada to
make railway
herein
described.

X. INTERCOLONIAL RAILWAY.

145. Inasmuch as the Provinces of Canada, Nova Scotia,
and New Brunswick have joined in a declaration that the con-
struction of the Intercolonial Railway is essential to the con-
solidation of the Union of British North America, and to the
assent thereto of Nova Scotia and New Brunswick, and have
consequently agreed that provision should be made for its
immediate construction by the Government of Canada: There-
fore, in order to give effect to that agreement, it shall be the
duty of the Government and Parliament of Canada to provide
for the commencement within six months after the Union, of

BRITISH NORTH AMERICA ACT, 1867. 305

a railway connecting the River St. Lawrence with the City of
Halifax in Nova Scotia, and for the construction thereof with-
out intermission, and the completion thereof with all prac-
ticable speed.

XI. ADMISSION OF OTHER COLONIES.

146. It shall be lawful for the Queen, by and with the Power to admit,
advice of Her Majesty’s Most Honourable Privy Council, on p^ fou pdJjJV
Addresses from the Houses of the Parliament of Canada, and i 8 ind, Britii
from the Houses of the respective Legislatures of the Colonies

or Provinces of Newfoundland, Prince Edward Island, and
British Columbia, to admit those Colonies or Provinces, or ”
any of them, into the Union, and on Address from the Houses by order in
of the Parliament of Canada to admit Rupert’s Land and the Cc
Northwestern Territory, or either of them, into the Union, on
such terms and conditions in each case as are in the Addresses
expressed and as the Queen thinks fit to approve, subject to
the provisions of this Act, and the provisions of any Order
in Council in that behalf, shall have effect as if they had been
enacted by the Parliament of the United Kingdom of Great
Britain and Ireland.

147. In case of the admission of Newfoundland and Prince AS to repre-
Edward Island, or either of them, each shall be entitled to a {fJJJJJiJUiJl
representation in the Senate of Canada of four members, and and Prince
(notwithstanding anything in this Act) in case of the admis-

sion of Newfoundland the normal number of Senators shall
be seventy-six and their maximum number shall be eighty-
two; but Prince Edward Island when admitted shall be deemed
to be comprised in the third of the three divisions into which
Canada, is, in relation to the constitution of the Senate
divided by this Act, and accordingly, after the admission of
Prince Edward Island, whether Newfoundland is admitted
or not, the representation of Nova Scotia and New Bruns-
wick in the Senate shall, as vacancies occur, be reduced from
twelve to ten members respectively, and the representation
of each of those Provinces shall not be increased at any time
beyond ten, except under the provisions of this Act for the
appointment of three or six additional Senators under the
direction of the Queen.

C.C.L. 20-f

GENERAL INDEX

A.

Act of Settlement, 24, 40.

‘ Administration of Justice in the Province,’ etc., 137-140.

Admiralty and Vice-Admiralty Courts, 138.

Agriculture and Immigration Act, 80, 91, 149.

Alberta Act, 144, 148-9.

Alberta, Province of, 38.

Constitution of, 49.

Created out of North-West Territories, 38.

Criminal law in, 55.

English law in, 50-1, 55.
Aliens-
Deportation of alien paupers, 216.

Provincial interference with, 129.

Rights in Canada, 216.
Aliens and naturalization, 114-5.
American Colonies

Breaking out of war with, Jl.
Ancillary legislation, 87-8, 93-5, 121.
Aspects of legislation, 69, 80-1, 98, 118, 141-2.
Assignments for benefit of creditors, 111-3.
Assize of bread, 141.
Australia

Commonwealth Constitution Act, 179, n. 78, 180, n. 81.

Constitution compared, 190, n. 115, 203, n. 169.
Autonomy of provinces, 96-8.

B.

Bagot, Sir Charles, 27.
Baldwin, Robert, 27.
Banking, incorporation of banks, and the issue of paper money,

109-110, 206, n. 177.
Bankruptcy and insolvency, 111-3.
Beacons, Buoys. Lighthouses, and Sable Island, 106.
Bill of Rights, 40.

Bills of Exchange and Promissory Notes, 110.
Blake, Hon. Edward, 2.

Borrowing of money on the public credit, 106.
Boundaries

Provincial railway, electric, etc., lines extending to bound-
ary, 128-9.
British Columbia, 44, 48.

Admitted into Confederation, 37.

Criminal law in, 54-5.

English law in, 55.

Pre-Confederation Constitution of, 48.

Present Constitution of, 44-5.

308 CANADIAN CONSTITUTIONAL, LAW.

British Constitution

Analogies to in Dominion Constitution, 40.
British North America, Act, 1867. (See, also, sub ‘Dominion
powers and legislation ‘ ; ‘ Dominion enumerated pow-
ers’; ‘Provincial enumerated powers ‘; ‘Provincial legis-
lation.’)

Concluding clause of section 91, 87-8.
Distribution of legislative power between Dominion and

provinces, 77-9.

Distribution of legislative power exhaustive, 77-8.
Founded on Quebec Resolutions, 33.
General character of provincial powers under, 91-3.
General principles of construction as to legislative powers

(see, also, sub ‘General Rules’; also supra pp. 40-48), 82-4.
General scheme of distribution of legislative power, 72-4,

77-9.

Legislative power distributed by subject not by area, 86.
Predominance of Dominion powers and legislation, 84-5.
Some general remarks on, 154-6.
British North America Acts, 1867, 1871, 1886, 37-9.
Act, 1907, 39.
Act, 1915, 39, 41.
Brown, George, 33-4.
Burke, Edmund, 17.

C.
Canada

Is it a Federation? 157.

Works dealing with Constitution of, 158, n. 4.
Canada, Old Province of, 93.

Power to repeal or alter its statutes, 93.
Canada (Ontario Boundary) Act, 1887, 39.
Canadian Speaker (Appointment of Deputy Act), 1895, 39.
Carleton (afterwards Lord Dorchester), Governor, 7-10, 12-16.
Cartier, Sir George Etienne, 33.
Census and Statistics, 106.
Chamberlain, Joseph, 65.

As to legislation respecting immigration, 149.
Champerty and Maintenance, 166, n. 32.
Charlottetown Convention, 33.
Cheese and Butter Manufactories, Regulating supply of milk to,

141.
Chinamen in Canada, 215, n. 205.

As to right to vote, 240, n. 270.
Civil War in America, 31-2.

Classes of subjects excepted from provincial powers, 119-124.
Coalition Government in Canada, 29-30.
Colonial Laws Validity Act, 187, n. 108.
Colourable legislation, 69-70, 133.
Companies

Dominion, 103-4.

Dominion licensing of foreign companies, 115.

Electric Light and Power, 128-9, 133.

GENERAL INDEX. 309

Companies ( Continued ) .

Foreign, 103.

Prohibiting contracts by unregistered, 142.

Provincial, 128-9, 130-3.

Provincial navigation companies, 107.
Company legislation, 100.
Concurrent legislative power, 80-2.
Confederation of Canada

Analogy to British Constitution, 40.

Conference at Quebec, 49.

Formed under B. N. A. Act, 1867, 37.

Synopsis of B. N. A. Act, 1867, 40.
Constitutional Act, 1791, 48.

Canada under, 19-22.

Genesis of, 12-18.
Constitutionality of Acts

Acts constitutional in part only, 100.

Estoppel from setting up unconstitutionality, 196, n. 138.

In doubtful cases permissible to refer to actual practice of
legislatures, 195, n. 132.

Interpretation placed on B. N. A. Act by Dominion parlia-
ment and by great public departments, 99.

Motive of legislation cannot impair constitutionality, 98.

Object and scope of the legislation, not merely its inci-
dental effect, determine constitutionality, 98.
Constitutions

Of Dominion, 40-7.

Of pre-Confederation provinces, 47-9, 161, n. 11.
Continued exercise of legislative power, 99.
Controversies between Dominion and provinces, 154.
Copyright, 113, 159-160, n. 10.
Corporations (see, also, sub ‘Companies’).

Dominion, 119-124.

Provincial, 128-9, 130-3.
County Court judges, 138.
Courts

Dominion Courts, 149-151.

Federal, 90.

Jurisdiction as to legislation, 67.

Not concerned with motives of legislation, 69.

Not concerned with wisdom or justice of legislation, 70, 97.
Criminal Code of Canada, 54-5, 57.
Criminal law, 116-9.

Charging expenses on municipalities, 139-140.

English in Upper Canada (see, also, sub ‘ English law in
force in Canada,’) 54.

Stated cases in, 150.
Crown, The

Exemption of Crown property from taxation, 126-7.

Imperial Power of Disallowance, 43.

In Canada, 59-66.

Representatives of in Canada and Australia, 169-170, n. 42.

310 CANADIAN CONSTITUTIONAL LAW.

Crown lands

Power of Dominion parliament over provincial Crown

lands, 121.
Currency and Coinage, 109.

D.

Deadman’s Island, 269, n. 386.

Declarations by Dominion parliament under sec. 92, sub-sec, (c)

of B. N. A. Act, 1867, 122.
Denominational Schools, 145-6.

Disallowance of Acts, Dominion power of, 44, 62-5, and Addenda.
Charters of incorporation forbidding employment of aliens,

129.
Exercised on B. C. Acts preventing non-British subjects

owning mining properties, 216, n. 205.
Exercised on principle that consequences of naturalization

is for Dominion, 216, n. 205.
Imperial power of, 43.
Direct taxation within province

Indian lands, Taxing former, 113-4.
License, Taxation by way of, 128.
On banks, 110.
What is? 125-6.

Distribution of legislative power in Canada generally, 70-4.
Divorce and Marriage, 115-6.
Dominion

Constitution of, 40-47.
Corporations generally, 122-4.
Exchequer Court of Canada, 45-6.
General scheme of Constitution of, 40-7.

Judiciary and Courts of Law governing Dominion sub-
jects in absence of legislation, 184, n. 95.
Parliament, 45.

Power of Disallowance (see sub ‘Disallowance’), 62-6.
Responsible Government in, 46-7.
Supreme Court of Canada, 46.
Dominion enumerated powers (see, also, sub ‘ Dominion powers

and legislation.’)

Bankruptcy and Insolvency, 111-113.
Banks, incorporation of Banks, and issue of paper money,

64, 109-110.

Beacons, Buoys, Lighthouses, and Sable Island, 106.
Bills of Exchange* and Promissory Notes, 110.
Borrowing of money on the public credit, 106.
Census and statistics, 106.
Copyright, 113.
Criminal law, etc., 116-119.
Currency and Coinage, 109.

Custom duties on foreign built ships, As to, 105.
Ferries between a province and any British or foreign
country, or between two provinces, 109.

GENERAL INDEX. 311

Dominion enumerated powers (Continued).

Fixing and providing for the salaries and allowances of
civil and other officers of the Government of Canada,
106, 127,

Indians and lands reserved for the Indians, 113-4.

Interest, 110.

Legal Tender, 111.

Marriage and Divorce, 115-6.

Militia, Military, and Naval Service and Defence, 106.

Naturalization and Aliens, 114-5.

Navigation and Shipping, 106.

Patents of Invention and Discovery, 113.

Penitentiaries, Establishment, Maintenance, and Manage-
ment of, 119.

Postal Service, 106.

Public Debt and Property, 101.

Quarantine and the establishment and maintenance of
Marine Hospitals, 107.

Raising of money by any mode or system of taxation, 105-6.

Regulation of Trade and Commerce, 102-5, 123-4.

Savings Banks, 110.

Sea Coast and Inland Fisheries, 108.

Such classes of subjects as are excepted out of the enumer-
ated provincial powers, 119-124.

Weights and Measures, 110.
Dominion powers and legislation

Agriculture^ As to, 80, 149.

Amending Constitution, 69, 77.

Ancillary legislation trenching on Dominion area, 81-2, 87-8.

Canada Temperance Act, 77.

Canadian subjects, Over, 79-80, 90-1.

Colourable legislation, 69-70.

Conditional legislation, 68.

Declaring railways and other works, etc., to be for general
advantage of Canada, 122.

Delegate, Power to, 68-9.

Exclusive of enumerated powers, 85-6.

Extra-territorial legislation, 79-80.

General character of, 86-7.

Immigration, As to, 80.

Imperial Treaties, 67-8.

Implied powers, 94.

Imposing new duties on provincial Courts and Magistrates,
90, 138.

Incidental powers, 121.

Intrusion on provincial area, 93-5.

Locally restricted Dominion laws, 88-90.

Maintenance of public order, 77.

N ew legislative bodies, Creation of, 69.

Overlapping, 82-4.

Plenary nature of powers, 66-7, 70.

Police jurisdiction over fisheries, 108.

Predominance of, 142-3.

312 CANADIAN CONSTITUTIONAL, LAW.

Dominion powers and legislation (Continued).

Private Bills, 89.

Property and Civil Rights, As to, 108, 135-7.

Provincial Courts, Over, in Dominion matters, 90, 138.

Provincial Crown lands for Dominion railway companies,
Over, 121.

Railway Companies, As to, 119-122.

Residuary legislative power, 73-7, 81, 89-90, 122-4, 135-6.

Taxing by “means of licenses, 105.

Temperance legislation, 81, 94.

Three-mile limit, As to fishing within, 108.

Trade and Commerce, As to, 199, n. 150.
Dominion property, 151.
Dominion railways

Powers of provincial legislatures as to, 121-2.
Dorchester, Lord, 7-10, 12-16.
Drugs, Regulating sale of, 141.
Durham, Lord, and His Report, 22-25.

E.

Education, Power to legislate as to, 143-9.

Ejusdem generis. Rule as to in case of licenses, 128.

Elections

Electoral franchise in Dominion and provinces, 43.
Electric power companies, 120.
Elgin, Lord, 28, 31.
Elizabeth, Statutes of, 164, n. 27.
Employers Liability Acts, 227, n. 234.
English case-law in Canada, 50.
English law in Canada generally, 50-9.
English poor laws not in force in Ontario, 54.
English statutes in force in Canada, 51-2.

How worked out, 52.

Voluntary adoption of in Canada, 58-9.
Establishment, maintenance, and management of penitentiaries,

H9.
Estoppel from setting up unconstitutionality of statutes, 196,

n. 138.

Exchequer Court of Canada, 45-6, 154, 265, n. 379.
Exclusiveness of Dominion powers and legislation. 85-6.
Executive Councils

Before responsible government, 21.

In Canadian provinces, 48.
Executive power correlative to legislative power, 61.

F.

Family Compact, The, 21, 29.

Federation of Canada (see stib B. N. A. Act, 1867, in Index to

Statutes), 23, 29, 32-5.

Concurrent legislative power between Dominion and pro-
vinces, 80-2.
Debates before, 31-3.

GENERA^ INDEX. 313

Federation of Canada (Continued).

Difficulties preceding, 29-32.

Dominion residuary legislative power, 73-7, 81.

Early proposals for, 16.

General principles of construction in respect to legislative
power and see General Propositions, pp. 40-48), 82-4.

General scheme of distribution of legislative power, 72-4.

Genesis of, 1-31, 47-9.

Is Canada a federation? 157.

Legislative power distributed by subjects, not by area, 86.

Looked forward to by Lord Durham, 23.

No reserved powers, 78-9.

Party deadlock immediate cause of, 31-3.

Premonitions of, 31-3.
Ferries between a province and any British or foreign country,

or between two provinces, 109.
Fire Marshals in Quebec, 139.
Fisheries

Provincial power over, 203, n. 172.

Dominion, 108.

Fixing of and providing for the salaries of officers of the Gov-
ernment, 106.
Franchise

For Dominion House of Commons, 43.

Women electors, 43.
Frauds, Statute of, 164, n. 27.

G.

Gait, Sir Alexander, 31, 33,
Gambling houses, Regulation of, 142.
Game laws, Provincial, 142.
General rules

For construing sections relating to distribution of legis-
lative power, 82-4.

For testing validity of Acts, 84.
Goldwin Smith, 1, 31.

Governors (see also sub ” Governor-General,” ” Lieutenant-
Governor.”)

Commissioners, etc., of, 170, n. 44.

Dismissal of Ministers by, 172, n. 44.

illnder responsible government, 171, n. 44.
Governor-General, 61-2, 65, 171, n. 42.

How far can exercise royal prerogative, 171, n. 44.

In respect to education, 144, 146-7.
Grand juries, 118-9.

Grand jurors, Power of provinces as to, 118.
Grenville, Lord, 15, 17, 19.
Grey, Earl, 28-9.

H.

Haldimand, Lt.-Governor, 12.

Harbours, Public, 151, 204, n. 171, 266, n. 382.

C.C.L. 20a

314 CANADIAN CONSTITUTIONAL LAW.

House of Commons (Dominion), 42-3.

Speaker of, 43.

House of Lords, Binding force of decisions in, 51.
Howe, Joseph, 28.

Letters to Lord John Russell, 28-33, ,

I.

Immigration and Agriculture, 80, 91, 149.
Imperial Parliament, 47.

Paramount authority of, 159, n 10.

Voluntary adoption in Canada of modern English statutes, 59.
Imperial power of veto, 43.
Imperial treaties, 65, 67-8.
Implication, Legislative power by, 94.

Imposition of punishment by fine, penalty, or imprisonment, 140.
Indians and lands reserved for Indians, 113-4, 152.

As to right to vote, 240, n. 270.

Surrender of Indian lands in N.-W. provinces, 213, n. 201.

What are ‘ lands reserved for Indians?’ 213, n. 201.
Indirect exercise of legislative power, 70.
Inherent powers of legislatures, 91-3.
Initiative and referendum, 170, n. 43.
Insolvency and bankruptcy, 111-3.
Insurance Companies case, 76-7.
Interest, 110-1.

Interpretation placed by Dominion Parliament on B.N.A. Act, 99.
Interprovincial and extra-provincial Works and Undertakings,

119-122.

J.

Japanese in Canada, 214, n. 204.

As to right to vote, 240, n. 270.
Judges and Judicial officers, 137-9.

Provincial, 139.

Judges and Magistrates, Appointment of, 137-9.
Jura regalia, 272, n. 391.
Juries, 118-9.

Grand juries, 118-9.
Justice of legislation

Law Courts not concerned with, 70.
Justices of the Peace, 139.

K.

Keith’s Responsible Government in the Dominions, and. Imperial
Unity and the Dominions, see Notes passim, and Addenda.

L.

Lafontaine, 27.

Lancaster Bill, The, 115.

‘ Lands, mines, minerals and royalties,’ 152-3.

‘ Lands reserved for Indians,’ 213, n. 201.

Legal tender, 111.

GENERAL IXDKX. 315

Legislation

Overlapping powers of, 72.
Legislative Councils

In Canadian provinces, 48-9.

Legislative Power (see, also, sub ” Dominion powers and legisla-
tion;” “Dominion enumerated powers;” “Provincial
legislation;” “Provincial enumerated powers.”)

Distribution of, 70-4.

Of delegation, 68-9.

Plenary nature of, 66-7, 70.
Legislative power and proprietary right, 100-1.
Lex et consuetude parliamenti, 92-3.
Licenses

As to provincial of Dominion companies, 123-4.
Lieutenant-Go vernors (see, also, sub “Governor”) 44-5, 61-2, 124-5.

How far can exercise royal prerogative, 171, n. 44.

Legislation relating to office of, 119.

Liability of to suit in colony, 167-170, n. 42.

Of North-West Territories, 169, n. 42.

Power to legislate as to, 119.

Provincial legislation as to, 125.

Reserve of Bill by, 171, n. 44.
Liquor Prohibition Appeal, 1895, 95.
Liquor traffic, Regulation of, 141.
Local Masters, Judges, and Referees, 139.
Local Works and Undertakings

Dominion, 119-22.
Lord’s Day Observance Acts, 129.
Lotteries, Legislation as to, 142.
Lower Canada, Old province of, 48.
Lymburner, Adam, 14, 16.

Macdonald, Sir John A., 31.

Magistrates, Provincial legislation as to Jurisdiction of, 119.

Magna Charta, 40, 166, 204, n. 173, 273, n. 392.

Mala in se, 116.

Mandamus

None to Lieutenant-Governor, 170, n. 42.

To a Provincial Secretary, 170, n. 42.
Manitoba

Constitution of, 44, 49.

Created out of North-West Territories, 38.

Criminal law in, 55.

English law in, 50-1, 55-6.
Magistrates and Judges, Appointment of 13′
Malicious injury to property, Provincial Laws as to, 142.
Masters in Chambers, 139.
Masters in Ordinary, 139.
Manitoba Act, 143, 147-8.
Maritime provinces-

Representative institutions in, 28.

316 CANADIAN CONSTITUTIONAL LAW.

Marriage and Divorce, 115-6.

Laws relating to marriage, 164-5, n. 27.
‘ Matters of a merely local and private nature in the province,’

143.

Mechanics and Wage-Earners Lien Acts (provincial), 227, n. 236.
Mercy, Prerogative of, 140-1.
Metcalfe, Lord, 27, 29.
Mignault, P. B., 167, n. 35.

Militia, Military, and Naval Service and Defence, 106.
Mill, J. S., and ” direct taxation,” 126.
Ministers of Justice, 63.
Mobilia sequuntur personam, 126.
Money Bills, Position of Senate as to, 43.
Motives of legislation, 69.
Municipalities

Power of legislatures to delegate functions to, 68-9.
Murray, Governor, 4.

His commission, 5.

N.

Naturalization and Aliens, 114-5.

Effect of, 214, n. 204.
Navigation and Shipping, 107.
Negotiable instruments, 110.
New Brunswick, 44, 47-8, 52.

English case-law in, 50-51.

English statutes in force in, 52-3.

Pre-Confederation Constitution of, 47 8.

Present Constitution of, 44-5.

Non-Ob stante clause of sec. 91 of B. N. A. Act, 1867, 84.
North-West Territories, 37, 55.

Constitutional history of, 158, n. 4.

Criminal law in, 55.

English law in, 5(K1, 55.
Nova Scotia, 44, 47-8, 52.

English case-law in, 50-1.

English statutes in force in, 52-3.

Pre-Confederation Constitution of, 47-8.

Present Constitution of, 44.
Nuisances, Police regulation of, 14.

O.

Objects and scope of legislation, 98.
Ontario, 44, 48-9.

Before Confederation, 48-9.

English case-law in, 50-1.

English statute law in, 53-5.

Present Constitution of, 44-5.
Ontario Lands case, 2.
Overlapping powers of legislation, 72, 82-4,

GENERAL INDEX. ,317

P.

Paper money, 206, n. 177.
Pardoning power, 140-1.
Parish Courts in New Brunswick, 139.
Parliament of Canada Act, 1875, 39.
Patents of Invention and Discovery, 113.
Peace of Paris, 1763, 1.
Penal procedure, Provincial, 118.

Penitentiaries, The establishment, maintenance, and manage-
ment of, 119.
Petition of Right, 40.
Pitt, William, 14-17.

Possibility of supercession by Dominion Act does not invali-
date provincial, 97.
Postal Service, 106.

Poulett Thomson (Lord Sydenham), 24-27.
Prairie Fire Ordinances, 227, n. 236.
Precedence, 167, n. 38.
Precious metals, 272, n. 391.
Pre-Confederation Constitutions, 47-9.
Prerogative of the Crown in Canada, 60-6.

Of Honour, 167, n. 38.

Of Justice, 168-9, n. 38, 41.

Of Mercy, 168, n. 37.
Prince Edward Island, 44, 47-8.

Admitted into Confederation, 37.

English case-law in, 50-1.

English statutes in force in, 52.

Pro-Confederation Constitution of, 47-8.

Present Constitution of, 44-5.
Privy Council, Judicial Committee of, 51, 169, n. 41.

Appeals to, 154, 263, n. 376.
Property

Provisions of B. N. A. Act, 1867, as to Dominion and pro-
vincial property, 151-2.
‘Property and Civil Rights’ (See sub ‘Provincial enumerated

powers,’) 83, 109, 112, 134-7.

Proprietary right in relation to legislative power, 100-1.
Provinces, The

Constitution of, 44-5.

Independence and autonomy of, 96-8.

Lieutenant-Governors of, 44-5.

Provincial enumerated powers (see, also, sub ‘Provincial powers
and legislation ‘), 124-143.

1. Amendment of provincial Constitution, 61, 92-3, 115, 124-5,

174, n. 53.

2. Direct taxation within the province, 104, 113-4, 125-8.

3. Borrowing money on sole credit of province, 127.

4. Provincial offices and officers, 127.

5. The management and sale of the provincial public lands,

and timber and wood thereon, 127.

318 CANADIAN CONSTITUTIONAL LAW.

Provincial enumerated powers ? (Continued).

6. The establishment, maintenance, and management of pub-

lic and reformatory prisons in and for the province, 127.

7. The establishment, maintenance, and management of hos-

pitals, asylums, etc., 127.

8. Municipal institutions in the province, 127.

9. Shop, saloon, tavern, etc., licenses, 105, 128.

10. Local works and undertakings other than certain excepted.

128-9.

11. Incorporation of companies with provincial objects, 130-3.

12. Solemnization of marriage in the province, 115-6, 133-4.

13. Property and civil rights in the province, 82-3, 112, 134-7.

14. Administration of justice in the province, 90-1, 112, 118-9.

137-140.

15. Imposition of punishment by fine, etc., 117-8, 140-3.

16. Over generally all matters of a merely local or private

nature, 91, 143.

Provincial judicial officers, 139.

Provincial powers and legislation (see, also, swft ‘Provincial enu-
merated powers ‘), 74-6.

Affecting aliens, 66, 114-5, 125.

Agriculture and immigration, 80, 149.

Canada, Altering or repealing statutes of old Province of, 93.

Co-equal and co-ordinate, 93.

Colourable legislation, 69-70.

Companies, Incorporation of, 130-3.

Giving banking powers to trust companies, 64.
With power to do business outside province, 64.

Conditional legislation, 68-9.

Creating new legislative bodies, 69.

Delegating functions, 68-9, 141.

Discriminating against foreign immigrants. 66.

Divorce, As to, 116.

Enumerated, None except, 91.

Extra-territorial legislation, 79-80.

Fisheries, Having relation to, 108.

Franchise of aliens, Regulating, 114-5.

Frauds in supplying milk to cheese factories, 81.

General character of, 91-3.

Immigration, As to, 80.

Imposing duties on judges and other Dominion officials, 90-1.

Incidental interference with Dominion legislation, 96.

Inherent apart from law-making, 91-3.

Injustice does not invalidate, 97.

Insolvent debtors, As to, 112.

Intrusion on Dominion area, 95-6.

Lieutenant-Governor, As to, 61.

Lord’s Day Observance, 129.

Magistrates, Stipendiary and police, 119.

Non-exercise by Dominion does not transfer power to pro-
vinces, 97-8.

Overlapping legislation, 82-4.

Pardoning power, 141.

GENERAL INDEX. 319

Provincial powers and legislation (Continued).
Penal laws, 141-2.
Penal procedure, 142.
Plenary nature of, 66-7, 70.

Proceedings, Power over own apart from law-making, 91-3,
Railways, As to Provincial, 66.
Residuary power of, 91.
Subjects of the Province, 79-80.

Supercession by Dominion Acts, Possibility of, 97-8.
Taxing, 104, 113-4, 125-8.

By means of licenses, 124, 127.

Dominion corporations, 127.

Dominion officials, 127.

Dominion railways, 121-2.

Former Indian lands, 114.
Temperance legislation, 81.
Treaties, Conflict with Imperial, 67-8.
Unwisdom does not invalidate Acts, 97.
Waterlots extending into navigable waters, Grant of, 201,

n. 164.
Public debt and property (see sw& ‘ Dominion enumerated

powers ‘ ) .
Public harbours, 266-7, n. 382.

Q.

Quarantine and Marine Hospitals, 107.
Quebec Act, 1774, 10-14, 48, 57.

Debates in British Parliament, 11.
Quebec Conference, 49.

Quebec District Magistrates Act, 137, 250, n. 308.
Quebec, Province of, 48, 52. 54.

Before Confederation, 48-9.

Case-law in, 58.

Civil Code in, 57-8, 167, n. 34.

Constitutional and Administrative law in, 57.

Conquest, At time of, 3-9.

Criminal law in, 55.

Early problems in, 4-10, 13-16.

Laws in force in, 56-8.

Parliament, Entitled to 65 members in, 42.
Quebec Resolutions, 33-4, 71.

R.

Railway Belt in British Columbia, 272, n. 391.

Railway Committee, The, 139.

Railways, Dominion, 119-122.

Railway legislation, 66.

‘ Raising of money by any mode or system of taxation,’ 105-6.

Reciprocity Treaty, Revocation of, 31-2.

Regalia, Majora and minora, 169, n. 41.

‘ Regulation of trade and commerce,’ 102-4, 123-4.

Representation by Population (“Rep. by Pop.”), 30-1.

CANADIAN CONSTITUTIONAL, LAW.

Responsible government in Canada, 22, 24-9, 33.

Evolution of in Canada, 1.
Kiel case, 77.
Rupert’s Land, 55.

‘Rivers and Lake Improvements,’ 151, 268, n. 383.
Roman Catholic Church in Canada, 10, 18, 26, 30.
Rule of law in Canada, 154.
Russell, Lord John, 24-5, 27.

S.
Saskatchewan

Constitution of, 49.

Created out of North-West Territories, 38.

Criminal law in, 55.

English law in, 50-1, 55.
Saskatchewan Act, 144, 148-9.
Savings Banks, 110.
Sea coast, 203, n. 171.
‘ Sea coast and inland fisheries,’ 108.
Secretary of State for Colonies, 62, 65.
Senate of Canada, 42.

Money Bills, 43.

Speaker of, 42.
Separate Schools, 144-9.
Shipping lines, Dominion, 119-120.
Shops, Regulating opening and closing of, 141.
Shortis case, 168, n. 38.
Simcoe, Lieut.-Governor, 15.
‘ Solemnization of marriage,’ 133-4.
Speaker

Of Dominion House of Commons, 43.

Of Senate, 42.
Stamp Acts, 194, n. 127.
Statutes. See Table of, supra, pp. 30-33.

British North America Acts, 38-9.
Statute Law Revision Act, 1893, 39.
Statutes, Validity and Invalidity of

Dominion as to appellate jurisdiction of Sessions of Peace
where no jury demanded, 118-9.

Dominion creating inter-provincial or international ferries.
109.

Dominion licensing foreign companies, 103, 115.

Dominion prescribing fishing seasons, 108.

Dominion prohibiting foreign nations fishing within three-
mile limit, 108.

Dominion regulating particular businesses, 103.

Dominion as to interest recoverable under mortgages, 111.

Dominion authorizing erecting lumber booms in provincial
rivers, 106.

Dominion imposing customs duties on foreign-built ships, 105.

Dominion as to valid solemnization of marriage, 115-6.

Dominion imposing civil obligations on provincial munici-
palities for payment of troops, 106.

GENERAL INDEX. 321

Statutes, Validity and Invalidity of (Continued).

Dominion taxing by means of licenses, 105.

Dominion as to warehouse receipts taken by a bank, 109-10.

Provincial relating to aliens, 114-5.

Provincial respecting assignments for creditors, 111-2.

Provincial as to banks and property of banks, 110.

Provincial licensing private banks, 110.

Provincial granting exclusive rights of electric lighting in
cities, 104-5.

Provincial affecting status and capacity of Dominion com-
panies, 104.

Provincial Liquor Acts, 104-5.

Provincial of local sanitary and police character, 106.

Provincial confirming jurisdiction of stipendiary and police
magistrates under Dominion Acts, 119.

Provincial respecting private fisheries, 108.

Provincial regulating grand juries, 118.

Provincial as to Indians exercising franchise, 114.

Provincial assessing surrendered Indian lands, 113-4.

Provincial as to jury panel, 119.

Provincial giving companies exclusive territories, 124.

Provincial incorporating navigation companies, 107.

Provincial penal legislation, 117-8.

Provincial as to valid solemnization of marriage, 115-6.

Provincial incidentally touching negotiable instruments, 110.

Provincial authorizing railways to boundary, 129.

Provincial taxing by way of licenses, 124.

Provincial taxing and licensing Dominion companies, 104,
123-4, 127.

Provincial taxing Dominion officials, corporations, and
licensees, 127.

Provincial regulating entry or departure of vessels, 107.
” Subjects of colony,” 80.
Succession duties, 236, n. 259.
Succession Duty Acts, 237, nn. 260-1.
Sunday Observance Laws, 142.
Supreme Court of Canada, 46, 149-151.
Sydenham, Lord, 24-7.

T.

Tache”, Sir E. P., 33.
Taverns, Closing of, 141.
Taxation

Direct within province, 125-7.

Dominion licenses, 128.

Of Dominion officials, 127.

Of Dominion railways, 121-2.

Of former Indian lands, 114.

Provincial, 104, 113-4, 125-8.

Succession duties, 126.

What is direct taxation, 125-6, 128.

322 CANADIAN CONSTITUTIONAL, LAW.

Telegraph and telephone lines (Dominion), 119-22.
Temperance legislation, 93-4.
Thompson, Sir John

Report on Quebec District Magistrates Act, 137.
Three-mile limit, 108, 192, n. 122, 204, n. 173.
Tilley, Sir S. L., 33.

Trading Stamps, Prohibiting sale of, 141.
Treaties, 174, n. 54.

Imperial, 67.
Trent Affair, 31.
Tupper, Sir Charles, 33.

A

u.

Union Act, 1840, 24-6, 30, 48.

Union of Upper and Lower Canada, Movement for, 21, 23.
United Empire Loyalists, 12-3.
United Kingdom-
Analogy of Constitution of Canada to that of, 46-7, 67, 71-2,

78-9.

Imperial parliament, 47.

United States Constitution, Comparison and contrasts with, 45,
62, 70, 78-9, 96-7, 125, 155-6, 190-1, nn. 115 and 120, 194,
n. 131, 197-8, n. 144, 235, n. 256, 263, n. 376.
Power of Congress to regulate commerce, 198, n. 144.
Unwritten Constitution of Canada, 40.
Upper Canada

Old province of, 48-9.

V.

Vested rights, 70.
Veto power in Canada

Imperial, 60-2.

Dominion, 62-6, and see Addenda.

W.

Walton, F. P., 167, nn. 34, 35.
Weights and measures, 110.
Wholesale licenses, 128.
Wholesale and retail, 193, n. 126a.

Y.

Yukon Territory, 158, n. 3.
Criminal law in, 55.
English law in, 50-1, 55.

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