Canada’s Federal System

being

Treatise on Canadian Constitutional

Law under the British North

America Act

BY

A. H. F. LEFROY

Toronto :

Carswell Co., Limited’

1913

r

PREFACE

I have endeavoured in this book to supply
the reader with all the light upon Canada’s fed-
eral system under the British North America
Act, 1867, and supplemental Imperial and
Dominion Acts, which is derivable from authori-
tative sources. Happily Canada’s federal Con-
stitution is a living system, so wisely devised
that it is free to expand and develop in harmony
with the national growth. Consequently all that
any writer upon this great theme can hope to do
is to faithfully describe the present aspect of a
polity which is in constant process of healthy
organic change and readjustment.

To describe this book as a second edi-
tion of the one published in 1898-9 under the
name of The Law of Legislative Power in Can-
ada, would be misleading. Although I have en-
deavoured to retain the principal features of
that work, I have entirely re-written it, and
greatly altered the arrangement. My main idea
here has been first to set out, explain and illus-
trate all such general principles of construction
of the provisions of the British North America
Act as are derivable from the authorities, and
then to discuss seriatim the various law-making
powers of the Dominion ]. arliament and the pro-
vincial legislatures in the li^, “: of those prin-

4

VI PREFACE.

ciples, concluding with a discussion of the pro-
visions of the Act relating to the public property
of the Dominion and the provinces respectively.

Canada has led the way in embodying the
free principles of British government in a
federal system. Nearly fifty years of experience
have proved her Constitution an abounding suc-
cess. Federation is in the air to-day; and the
success of Canada’s Constitution may make it
worthy of study far beyond the boundaries of
this Dominion.

A. H. F. Lefeoy.
September 1st, 1913.

TABLE OF CONTENTS

#

PAGE

Table of Cases Cited xxiii

Table of Abbreviations xxxix

Addenda xli

Leading Constitutional Propositions xliii

CHAPTER I.

The General Scheme 1-13

CHAPTER II.

Some General Considerations 14-19

Relevancy of ante-Confederation Conditions, 15-16

Constitution rests on a statute 17-18

CHAPTER III.

The Crown in Canada 20-49

The Crown one and indivisible 20-23

Legislative power carries executive power . . . 23-24

The Representatives of the Crown in Canada. 25-29

The veto power of the Dominion Government 30-49

CHAPTER IV.

The Imperial Parliament in relation to Canada . . 51-58

CHAPTER V.

Principal sections of the Federation Act distribut-
ing legislative powers

59-63

* It is desired to call special attention here to two features of
this book, namely, the note references to different passages appended
to the copy of the British North America Act, 1867, printed in the
Appendix of Statutes and Orders in Council, and the caption in the
General Index — ‘ Statutes, Validity or Invalidity of ‘ — under which
will be found a list of different kinds of statutes. Dominion and
provincial, the constitutionality of which has been passed upon by
the Courts, or otherwise authoritatively dealt with; also those of
‘ Dominion powers,’ and ‘ Provincial powers.’

Vni CANADA S FEDERAL SYSTEM.

PAGE

CHAPTER VI.

Plenary powers of Canadian legislatures 64-85

Not mere delegates of Imperial parliament . . . 64-67

Imperial Treaties 67-68

Powers to delegate their functions 69-73

Creation of new Legislative Bodies 74-75

Law Courts not concerned with motives for

legislating 75-76

Colourable and indirect legislation 76-82

Law Courts not concerned with justice of legis-
lation 82-85

CHAPTER VII.

Some introductory remarks as to the distribution

of legislative power within Canada 86-106

Grenerality of language used 86-89

The general scheme of distribution / 89-91

The Dominion residuary power 91-94

Distribution exhaustive 94-99

The Dominion residuary power further con-
sidered 99-101

Extra-territorial legislation 101-106

CHAPTER VIII.
I Concurrent Jurisdiction 107-111

CHAPTER IX.

General principles of construction of the British
North America Act in respect to the distribu-
tion of legislative powers 112-122

Federation Act to be construed as a whole . . . 112-118

» Overlapping legislation 118-120

Rules for testing validity of Acts 120-122

r

TABLE OF CONTENTS. IX

PAGE

CHAPTEE X.
Predominance of Dominion legislation 123-127

CHAPTER XI.
Exclusiveness of Dominion enumerated powers . . 128-132

CHAPTER XII.

General character of Dominion powers 133-140

General subjects of Dominion interest 133-138

Concluding clause of section 91 138-140

Matters of ‘merely local or private nature in

the province ‘ 140-143

CHAPTER XIII.
Locally restricted Dominion laws 144-147

CHAPTER .XIV.

Dominion power over all Canadian subjects and

over provincial Courts 148-153

CHAPTER XV.

General character of provincial powers 153-160

None except the enumerated ones 153-154

Inherent powers of legislatures 155-158

Provincial powers co-equal and co-ordinate. . 159-160

CHAPTER XVI.

Power to repeal or alter statutes of the old Pio-

vince of Canada 161-163

CHAPTER XVII.

Dominion intrusion on provincial area. Ancillary

legislation 164-179

Indirect interference 164-165

X CANADA S FEDERAL SYSTEM.

PAGF

Powers by implication : Direct intrusion 166-169

– Eule of necessity as applied to such Dominion

interference 169-179

CHAPTER XVIII.
Provincial intrusion on Dominion area 180-183

CHAPTER XIX.

Provincial independence and autonomy 184-198

^Plenary nature of provincial powers 184-198 9

Injustice no ground of invalidity 192-193

Provincial legislation not invalid by reason of

possible supersession by Dominion 193-196 ^

— ^ Property and civil rights in the province …. 197 ^

Provincial executive authority 197-198 –

CHAPTER XX.

Aspects of legislation 199-209

Prohibition and liquor traffic legislation 200-209

CHAPTER XXI.

Object and scope of legislation and other considera-
tions relevant to constitutionality of statutes. . 210-218

Presumption in favour of validity of Acts . . . 213-215

Interpretation put on the Federation Act by

Dominion parliament or Imperial officials 215-217

^ Continued exercise of a legislative power does

not make it constitutional 217-218

CHAPTER XXII.

Statutes unconstitutional in part only 219-221

Company powers under incorporating Acts . . 221

Nullity of unconstitutional Acts 222-223

TABLE OF CONTENTS. XI

PAGE

CHAPTER XXIII.
Legislative power and proprietary rights 224-229

CHAPTEE XXIV.

Enumerated Dominion Powers 230-283

1. The public debt and property 230

^’ 2. The reptitation of trade and commerce . . 230-236

3. The raising of money by any mode or sys-
tem of taxation 237-238 •

4. The borrowing of money on the public

credit 239

5. Postal Service 239

6. The Census and Statistics 239

7. Militia, military and naval service and de-
fence 239-241

8. The fixing and providing for the salaries

of civil and other officers of the Govern-
ment of Canada 241

9. Beacons, buoys, lighthouses, and Sable

Island 241

10. N”avigation and shipping 241-246

11. Quarantine and the establishment and
maintenance of Marine Hospitals 247

12. Sea coast and inland fisheries 247-263

. 13. Ferries between a province and any Brit-
ish or foreign country or between two pro-
vinces 263-264

14. Currency and coinage 264

15. Banking, incorporation of banks and issue

of paper money 264-272

16. Savings Banks 272

XU CANADA S FEDERAL SYSTEM.

PAGE

17. Weights and measures : 272

18. Bills of exchange and promissory notes . . 273-^74

19. Interest 274-279

20. Legal tender 279

^ 21. Bankruptcy and Insolvency 279-293

22. Patents of invention and discovery 293-294

23. Copyrights 295-296

^ 24. Indians and lands reserved for Indians . . 296-303

V 25. Naturalization and Aliens 303-314

Provincial legislation incidentally relat-
ing to aliens 313-314

^ 26. Marriage and Divorce 314-319

27. The Criminal law, except the constitution

of Courts of criminal jurisdiction, but
including the procedure in criminal mat-
ters 319-337

Procedure in criminal matters 333-337

28. The establishment, maintenance, and man-

agement of Penitentiaries 337

29. Such classes of subjects as are expressly
excepted in the enumeration of the
classes of subjects by the British North
America Act assigned exclusively to the
legislatures of the provinces 337-383

Dominion parliament can give corpora-
tions under this sub-section all neces-
ary powers 339-344

Dominion parliament has all other neces-
sary incidental powers when legislat-
ing under this sub-section 344-347

Dominion parliament can regulate gener-
ally the, liability of federal railways
to theip* employees for negligence . . . 348-349

/

/

TABLE OF CONTENTS. XIU

PAGE

Dominion parliament may forbid directors
of a federal railway being interested
in contracts with the company 349-350

Dominion control over railway crossings. 350-353

Further illustrations of Dominion inci-
dental powers in connection with
federal railways 353-356

How far federal railways can be affected

by provincial legislation 356-363

Cattle protection 358-359

Fire protection 359-361

Mechanics’ and wage-earners’ liens.. 361

Sequestrations and Eeceivers 361-362

Sunday Observance 362-363

Declaration that work for general advan-
tage of Canada or of two or more
provinces 364-371

Must such declaration be express . . . 366-367

Dominion corporations generally 371-373

Extra-provincial companies licensing Acts 373-377

Other provincial attempts to interfere
with the business of Dominion cor-
porations 377-381

Dominion parliament can alone incorpor-
ate companies with charter powers to
carry on business throughout the Do-
minion 381-3S3

CHAPTEE XXV.

Provincial enumerated powers 384-629

\

1. Amendment of the constitution 384-388

The Lieutenant-Governor 385-387

xiv Canada’s federal SYSTEii.

PAGE

Cannot abdicate functions 387

Can define their own privileges 388

Can refuse franchise to aliens -K: ^^^

2. Direct taxation within the provinces 388-4:24:

General rule for testing validity of Act

resting hereon 389-391

Plenary powers in matters of taxation . . 391-392

Provincial power of taxation generally . . 392-393

What is direct taxation? 393-399

* In order to the raising of a revenue for

provincial purposes ‘ 400-401

* Within the province ‘ 402-411

Provincial indirect taxation 411-414

What the provinces can tax — ^Dominion

lands 414-417

What the provinces can tax (continued)

— Dominion officials 417-421

What the provinces can tax (continued) —

Dominion corporations 421-422

What the provinces can tax (continued) —

Dominion licensees 423-424

3. The borrowing of money on the sole credit

of the provinces 424

4. Provincial offices and officers 424

5. The management and sale of the public
lands belonging to the province, and the

timber and wood thereon 425-426

6. The establishment, maintenance, and man-

agement of public and reformatory prisons

in and for the province 426

TABLE OF CONTENTS. XV

PAGE

7. The establishment, maintenance, and man-
agement of hospitals, asylums, charities,
and eleemosynary institutions in and for

the province, other than marine hospitals 426

8. Municipal institutions in the province . . 426-433

General meaning of this clause 426-429

Provincial legislatures can delegate powers

to municipalities 439

And have all other necessary incidental
powers in respect to municipal insti-
tutions 429-430

Discrimination against aliens 430

Dominion power over municipal corpora-
tions 431-433

9. Shop, saloon, tavern, auctioneer, and other
licenses, in order to the raising of a rev-
enue for provincial, local, or municipal
purposes 433-445

‘ Other licenses ‘ 433-444

Taxation by licenses is direct taxation . . . 435-436

Applicable to wholesale as well as retail

business 436-438

‘ In order to the raising of a revenue ‘ . . . 438-439

Licenses as a method of police regulation 439-440

Not restricted to ante-Confederation

licenses 441-442

Discrimination against aliens 442

Dominion taxation by license 443-445

10. Local works and undertakings, other than
such as are included in the classes assigned
to Dominion jurisdiction by No. 29 of
section 91 445-461

XVI CANADA S FEDERAL SYSTEM.

PAGE

Provincial power to authorize construction

of a railway to the limit of a province 445-453

Interference with Dominion lands 453

Power to legislate as to bonds of pro-
vincial railways held by persons domi-
ciled abroad 454-455

Power to impose condition of Sunday

observance 455-457

Eestriction on employment of aliens 457-460

Provincial corporations subject to Domin-
ion laws 460-461

11. The incorporation of companies with pro-

vincial objects 461-48S

* With provincial objects ‘ 464-475

The views of Ministers of Justice 476-479

Provincial incorporation of a body already
incorporated with similar powers in
another province 480-482

Provincial company connecting its wires
with those of a local company in an-
other province 482-483

Provincial companies may need Dominion

assistance 483

Dominion parliament cannot enlarge the
charter powers of a provincial com-
pany 483-485

Dominion parliament cannot, under colour
of incorporating a Dominion company,
infringe the provincial powers 485-488

12. Solemnization of marriage in the pro-
vince 488

13. Property and civil rights in the province. 488-525

{

TABLE OF CONTENTS. XVU

PAQF

Must be construed in light of the Domin-
ion powers 488-491

The true constitutional position 491-492

Dominion legislation under its residuary

power 492-493

Dominion interference must not exceed
what is necessary to the effectual ex-
ercise of its own powers 493-495

Provinces cannot legislate as to property
and civil rights necessary to a Do-
minion object 495-497

Power of Dominion over property may de-
pend on what the property is 497-499

* Property and civil rights in the pro-

vince ‘ 499-501

‘ In the province ‘ 501-513

Mobilia personam sequuntur 509-511

Owner in one province, property in

another 511-513

* Property in the province ‘ 513

Affecting rights of extra-provincial credi-
tors 513-515

Statutes and matters which have been held

to be within No. 13 of section 92 . . . 515-518

Provinces in legislating on property and
civil rights may in some incidental
way regulate trade and commerce . . . 518-519

Or touch the subject of bankruptcy and

insolvency 519-520

Eight of voting not a ‘ civil right ‘ within

No. 13 of section 92 521

Section 94 of the British North America

Act 521-525

C.F.S. — B.

XVIU CANADA S FEDERAL SYSTEM.

PAGE

14. The administration of justice in the pro-
vince, including the constitution, main-
tenance and organization of provincial
Courts, both of civil and criminal juris-
diction, and including procedure in civil
matters in those Courts 525-573

Section 96 of the British North America

Act 526-540

Dominion power over appointment of

judges 537-528

Provincial attempts to invade this Do-
minion power 528-529

Provincial attempts to settle qualification

of Dominion judges 530-531

Provincial attempts to provide for removal

of Dominion judges 532-533

Provinces supplementing salaries of Do-
minion judges 533

Provincial regulation of County Court

judges 533-537

Provinces designating County Court
judges to act under provincial liquor
Acts 537-538

Provincial legislatures appointing County
Court judges as local judges and ref-
erees 539

Provincial regulation of procedure and

sittings of Dominion judges 540

Dominion can impose jurisdiction on pro-
vincial Courts over Dominion sub-
jects 541-547

Dominion can confer jurisdiction on Brit-
ish Vice-Admiralty Court in Canada 547-549

Dominion interference with civil proce-
dure of provincial Courts in Domin-
ion matters 549-553

TABLE OF CONTENTS. XIX

PAGE

Can Parliament take away jurisdiction
from provincial Courts, even in Do-
minion matters ? 553-555

Provincial judicial oflBcers — Division

Court Judges 555-557

Provincial judicial officers (continued) —

Parish Courts 557-558

Provincial judicial officers (continued) —

Fire marshals 558-559

^Provincial judicial officers (continued) —
Magistrates and Justices of the
Peace 559-564

Provincial judicial officers (continued) —
Master in Chambers; Master in Or-
dinar}’, and local Masters, judges, and
referees 564-566

Provincial judicial officers (continued) —

Railway Committee 566-567

Provinces may charge expenses of crim-
inal prosecutions on municipalities. . 567-568

Province can authorise service of writs

out of the jurisdiction 568

Province can regulate the effect of judg-
ments and writs of execution 568-571

Provincial legislation in aid and further-
ance of Dominion Acts 571-573

Pardoning power not part of administra-
tion of justice 573

15. 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 sec-
tion 92 574-627

Canada’s federal system.

PAGE

Applies to No. 16 as well as to the pre-
ceding classes of subjects 574-575

Fine and imprisonment 575-576

Hard labour 576-577

May impose forfeiture of goods as punish-
ment 577

Be-imprisonment of debtors enlarged on

bail 577-578

Industrial Schools 578

Pardoning power over provincial offences. 579

Provinces may delegate their penal powers 579-580

Provincial penal laws 580-627

Police or municipal regulations of

liquor traffic 585-588

Regulations of selling of drugs …. 588-5i89

Assize of bread 589-590

Cheese and butter manufactories . . . 590-592

Trading stamps 592-593

Shop closing 593-594

Sunday Observance 594-612

Nuisances 612-613

Lotteries and gambling 614-615

Injury to property 615-616

Game laws 616-618

Prohibiting contracts by unregistered

companies 618

Procedure. Evidence 618-622

Predominance of Dominion parlia-
ment 623-627

TABLE OF CONTENTS. . XSl

FAGF

16. Grenerally all matters of a local or private

nature in the province 627-629

CHAPTER XXVI.

Provisions of British North America Act relating

to Education 630-666

Section 22 of Manitoba Act relating to Educa-
tion 652-666

CHAPTER XXVII.
Agriculture and Immigration . .’ 667-671

CHAPTER XXVIII.

Dominion Courts and Section 101 of the British

North America Act 672-688

References to Supreme Court by the Governor-
General in Council 678-680

Hypothetical questions 680-683

Appeal to Supreme Court need not be from

provincial Courts of last resort only …. 683-684

* Additional Courts for the better administra-
tion of the laws of Canada ‘ 685-688

Jurisdiction of Dominion Court may be limited

to a single province 688

CHAPTER XXIX.

Property provisions of British North America Act 6S9-736

Section 108 and Schedule 3 689-708

Public harbours 691-700

The foreshore 691-696

Fisheries 699-700

Rivers and Lake improvements 700-705

Right to cut ice in rivers 705

XXU. CANADA S FEDERAL SYSTEM.

PAGE

Eailways 705-707

Oastom houses, post oflfices and other pub-
lic buildings 707-708

Section 109 of the Act 708-737

Nature of ownership by Crown in Canada 709

* All lands, mines, minerals and royalties ‘ 710-737

Indian lands 710-721

In British Columbia 711-714

Dominion Treaty Indemnity case . . 714-719

Extinguishment of Indian title 719-721

Lakes, rivers and other waters and

fisheries 722-724

Escheats . . . Z 725-726

Gold and silver mines 726-731

Ferries 732-733

Subject to trusts, and interests, other than

that of the province 733-737

Controversies between Dominion and pro-
vinces must be dealt with on recog-
nised legal principles 738-739

CHAPTER XXX.

The Conclusion of the Matter 740-762

Appendix of Statutes and Orders in Council 763-866

TABLE OF GASES CITED

Abbott V. City of St. John, 189; 417; 419,

Adam, In re, 303,n.

Ah Yin v. Christie, 667.

Aitcheson v. Mann, 294.

Alberta Railway Act, In re. See Addenda p. xli.

Algoma R. W. Co. v. The King, 238; 243,n.

Allen V. Hanson, 283; 285.

Alloway v. Rural Municipality of Morris, 417.

Angers v. Queen Insurance Co., 96; 237,n.; 422; 443.

Anglo-Canadian Music Publishers Association v. Suckling, 295.

Asbury v. Ellis, 103; 104.

Assignment for Creditors case, see ‘ Attorney-General of Canada

V. Attorney-General of Ontario.’
Attorney-General v. Goldsbrough, 8,n.
Attorney-General v. RadlofE, 580,n.
Attorney-General of British Columbia v. Attorney-General of

Canada (Precious Metals case), 257; 498; 726; 730; 731
Attorney-General of British Columbia v. Attorney-General of

Canada (Deadman’s Island), 710,n.
Attorney-General of British Columbia v. Canadian Pacific R. W.

Co., 198; 343; 693; 695.
Attorney-General of British Columbia v. City of Victoria, 541.
Attorney-General of British Columbia v. Esquimalt & Nanaimo

R. W. Co., 691; 735.
Attorney-General of British Columbia v. Vancouver, etc.. Rail-
way and Navigation Co., 365.
Attorney-General of Canada v. Attorney-General of Ontario (Par-
doning Power case), 22,n; 82; 385; 579.
Attorney-General for Dominion of Canada v. Attorney-General of

Ontario (Indian Claims case), 297; 733.
Attorney-General of Canada v. Attorney-General of the Provinces

(Fisheries case), 128-9; 193; 199; 224; 226; 237; 241; 247;

251; 252; 259; 261; 262; 390; 425; 434; 435; 443; 473;

680; 683; 690; 691; 692; 695; 696; 699; 700; 701; 709; 722;

737.
Attorney-General of Canada v. Attorney-General of Quebec, see

‘ Mowat V. Casgrain.’
Attorney-General of Canada v. Cain, 20,n; 65; 103; 304.
Attorney-General of Canada v. Ewen, 294,n; 704.
Attorney-General of Canada v. Flint, 150; 246,n.; 546; 547.
Attorney-General of Canada v. Foster, 238.

*The darker type in this table signifies places where the cases
are specially dealt with.

XIIV CANADA S FEDEBAL SYSTEM.

Attorney-General of Canada v. Mercer, 726.

Attorney-General of Canada v. Sam Chak, 289; 545.

Attorney-General of the Commonwealth v. Ah Shang, 667.

Attorney-General for the Dominion v. Attorney-General for
Ontario (Queen’s Counsel case), see sub ‘Queen’s Counsel
case.’

Attorney-Greneral for Ontario v. Attorney-General for the Domin-
ion (Liquor Prohibition Appeal, 1895), 93; 99; 124; 134;
136; 138; 141; 155; 161; 168; 175; 196; 203; 204; 208;
233; 234; 432; 440; 444; 502; 515; 583; 586.

Attorney-General for Manitoba v. Attorney-General for CJanada,
708; 710,n.

Attorney-General for Manitoba v. Manitoba License Holders Asso-
ciation, 142; 162; 191; 204-5; 206; 234; 423; 587.

Attorney-General of New South Wales v. Brewery Employees’
Union, 18,n.

Attorney-General of New South “Wales v. Collector of Customs,
22,n.

Attorney-€reneral of Ontario v. Attorney-General of Canada
(Liabilities of Province at Confederation), 739.

Attorney-General of Ontario v. Attorney-General of Canada (As-
signment for Creditors case), 123; 130; 135; 166; 280;
293; 490; 568.

Attorney-General of Ontario v. Attorney-General for the Domin-
ion (Supreme Court References case), lO.n; 17; 19; 88;
92; 94; 148; 462; 540; 543; 544; 672; 679; 685; 687; 713.

See, also, ‘References by Governor-General in Canada, In re.’

Attorney-General for Ontario v. Attorney-General for Quebec, 734.

Attorney-General of Ontario ex rel. Barrett v. International
Bridge Co., 26,n.

Attorney-General for Ontario v. Hamilton Street R. W. Co., 109;
210; 321; 324; 456; 575; 583; 597; 600; 604; 606; 609;
612; 682.

Attorney-General of Ontario v. Mercer, 113; 489; 725.

Attorney-Greneral of Ontario v. Niagara Falls International
Bridge Co., 25,n.3.

Attorney-General of Province of Prince Edward Island v. Attor-
ney-General of the Dominion, 5,n.

Attorney-General of Quebec v. Attorney-General of Dominion of
Canada, 725.

Attorney-General for Quebec v. Attorney-General for Ontario, 734.

Attorney-General of Quebec v. Queens Insurance Co., 76; 211;
394; 396; 435.

Attorney-General of Quebec v. Reed, 393; 394; 396; 413; 414.

Aubry v. Genest, 576.

Bale des Chaleurs R. W. Co. v. Nantel, 290; 361; 570.
Bank v. Orrell. 105.
Bank v. Tunstall, 527; 528.

TABLE OF CASES CITED. XXV

Bank of Toronto v. Lambe, 30; 97; 114; 121; 135; 153; 180-1;
186; 231; 233,n; 234; 269; 373; 375; 389; 390; 391; 393;

394; 395; 399; 402; 412; 413; 420; 421.
Bank of Toronto v. St. Lawrence Fire Insurance Co., 471.
Barrett v. International Bridge Co., 26,n.
Barrett v. Scotten, 704.
Barton v. Taylor, 155.
Bateman’s Trusts, In re, 497.
Baxter v. Commissioners of Taxation, 421.
Beard v. Steele, 108.
Beaulieu v. La Cit6 de Montreal, 162.
Becquet v. McCarthy, 104.
Behari Lai, In re, 668.
Belanger v. Caron, 541; 644.
Bell Telephone Co., In re (See ‘ City of Toronto v. Bell Telephone

Co.’)
Bennett v. Pharmaceutical Association of the Province of Quebec,

588.
Bigamy, In re. Criminal Code Section relating to, see ‘ Criminal

Code Sections relating to Bigamy, In re.’
Black V. Imperial Book Co., 295.
Black V. The Queen, 26,n.

Blouin V. the Corporation of the City of Quebec, 202; 577.
Booth V. Mclntyre, 343; 736; 737.
Boucher, In re, 329.
Bourgoin v. La Campagnie de Chemin de Fer de Montreal, 222;

356; 495.
Bradburn v. Edinburgh Life Assurance Co., 167; 275; 499.
Bread Sales Act, Re, 272; 589.
Brewers and Maltsters Association of Ontario v. Attorney-General

for Ontario, 190; 204,n; 234; 374; 394; 400; 401; 423;

434; 435; 436; 437-8; 442.
British Columbia Electric Railway Co. v. Vancouver, Victoria,

and Eastern R. W. and Navigation Co. See Addenda p. xli.
British Columbia Fisheries, In re, 253.
Briton Medical Life Association, Re, 285.
Brooks v. Moore, 201,n; 669.
Brophy V. Attorney-General of Manitoba, 118; 632; 633; 646; 648;

651; 652; 654; 659; 660; 662; 663; 664.
Brown and City of Calgary, Re, 236.
Bruneau v. Massue, 543.
Buchanan v. Rucker, 104.

Bull v. Wing Chong, see ‘ Regina v. Wing Chong.’
Burke, Ex parte Timothy, 417.
Burrard Power Co. v. The King, 75; 729.

Caldwell V. Eraser, 299; 300; 301; 719; 72L

Calgary and Edmonton Land Co. v. Attorney-General of Alberta,
415.

XXVI CANADA S FEDERAL SYSTEM.

Callender Sykes & Co. v. Colonial Secretary of Lagos & Davies, 51.

Campbell v. Hall, 712.

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

342.
Canada, Attorney-General of,’ see ‘ Attorney-General of Canada.’
Canada Car and Manufacturing Co. v. Harris, 483.
Canada Central R. W. Co. v. The Queen, 736.
Canada Southern R. W. Co. v. Jackson, 349.
Canadian Pacific R. W. Co. and County and Township of York,

In re, 349,n; 351; 431; 552; 688.
Canadian Pacific R. W. Co. v. Corporation of Bonsecours, 70;

113; 136; 137; 339; 356; 359; 360; 422.
Canadian Pacific Railway Co. v. James Bay R. W. Co., 216.
Canadian Pacific R. W. Co. v. Northern Pacific, etc., R. W. Co.,

353.
Canadian Pacific R. W. Co. v. The King, 359.
Canadian Pacific R. W. Co. v. Ottawa Fire Insurance Co., 97;

264; 343; 371; 372; 466; 474; 478; 480; 483.
Canadian Pacific R. W. Co. v. Rural Municipality of Cornwallis,

415; 736.
Cavan v. Stewart, 104.

Central Vermont R. W. Co. v. Town of St. Johns, 245; 704.
Chandler v. Main, 333.
Chantler, In re, 335.
Chia Gee v. Martin, 667.
Choquette v. Lavergne, 396 ; 398.
Church V. Fenton, 297; 725.
Church V. Middlemiss, 26,n.

Cie de C. F. de la Bale des Chaleurs v. Nantel, 269.
Citizens Insurance Co. v. Parsons, 113; 114; 116; 121; 139; 153

197; 199; 209; 210; 216; 230; 231; 233; 237; 276; 314

343; 350; 372; 373; 381; 382; 389; 390; 465; 493; 494

499; 516; 521.
City of Fredericton v. The Queen, 65; 215; 644.
City of Halifax v. Jones, 375.
City of Halifax v. McLaughlin Carriage Co., 684.
City of Halifax v. Western Assurance Co., 375; 433.
City of Montreal v. Beauvais, 206; 210,n.; 236; 587; 593; 611.
City of Montreal v. Gordon, 240.
City of Montreal v. Montreal Street Railway, 98; 99; 100; 119;

139; 168; 172; 231; 338; 344; 350,n; 354; 355; 364.
City of Montreal v. Walker, 440.
City of Toronto v. Bell Telephone Company, 126; 167; 293;

338; 340; 342; 364; 365; 383; 445-6; 552; 688.
City of Toronto v. Canadian Pacific R. W. Co., 19; 150; 170;

175; 177; 350; 353; 491.
City of Toronto v. Grand Trunk R. W. Co., 353.
City of Toronto v. Virgo, 611.

TABLE OF CASES CITED, XXVll

City of Winnipeg v. Barrett, 632; 634; 638; 642; 643; 647; 648;
657; 659; 660.

Clark V. Union Fire Insurance Co., Re, 286.

Clarke v. Union Fire Insurance Co., 466.

Clarke v. Jacques, 430; 432.

Clarkson v. Ontario Bank, 81; 290; 513.

Clarkson v. Ryan, 687.

Clemens v. Bemer, 156; 331.

Coal Mines Regulation Act, In re, 309; 312.

Coal Mines Regulation Amendment Act, 1890, In re, 306.

Colonial Building and Investment Association v. Attorney-Gen-
eral of Quebec, 77; 221; 270,n;’ 343; 371; 373; 381; 382;
466; 473; 485.

Colquhoun v. Brooks, 188.

Columbia and Western R. W. Co. and The Railway Acts, In re,
366.

Cooey V. Municipality of the County of Brome, 16; 431; 432.

Cook V. Dodds, 128,n.

Cooper V. Mclndoe, 327.

‘ Corporation of ,* see ‘ , Corporation of.’

Cot6 V. Chauveau, 618.

CoU V. Watson, 417.

County Courts of British Columbia, In re, 152; 535; 536; 541.

Couture v. Panos, 322; 347; 601.

Cowan V, Wright, 513.

Cramp Steel Co. Limited, Re, 292.

Crawford v. Duffield, 414.

Crawford v. Tilden, 361.

Credit Valley R. W. Co. v. Great Western R. W. Co., 353.

Criminal Code Sections relating to Bigamy, In re, 65; 103; 104;
313,n; 333.

Crombie v. Jackson, 282; 289; 555.

Crowe V. McCurdy, 432; 536.

Crown Grain Co. v. Day, 123; 684.

Cunningham v. Tomey Homma, 78; 240; 301; 303-5; 307; 308;
309; 311; 388; 508.

Curran v. Grand Trunk R. W. Co., 331; 348-9.

Cushing V. Dupuy, 288; 490; 550.

Cuvillier v. Aylwin, 25,n.

Danjou v. Marquis, 685.

Dallaire v. La Cit6 de Quebec, 214; 329.

Dansereau, Ex parte, 285.

Deacon v. Chadwick, 104; 185; 568.

Desjardins v. La Corporation de le Cite de Quebec, 417.

DeVarennes v. La Procureur-General, 236.

De Veber, In re, 170; 290.

Dewar v. Smith, 263,n.

XXVlll CANADA S FEDERAL, SYSTEM.

Direct United States Cable Co. v. Anglo-American Telegraph
Co.. 261.

Dlxson V. Snetsinger, 704.

Dobie V. Temporalities Board, 65; 119; 121; 154; 161; 163;
220; 390; 480; 486; 495; 406; 501; 502; 504; 506; 510; 511.

Dobie V. Vallee, 500.

Doe d. Burk v. Cornier, 712.

‘ Dominion, Attorney-General of,’ see ‘ Attorney-General of the
Dominion.’

Dominion of Canada v. Province of Ontario (Indian Treaty in-
demnity case), 301; 714; 719; 738-9.

Dominion Liquor License Acts, 1883-4; 204,n; 206-8; 219; 577.

Dominion Provident Benevolent and Endowment Association,
In re, 291; 486; 565.

Don V. Lippman, 104.

Donaher, Ex parte, 444.

Donegani v. Donegani, 303,n.

Dow V. Black, 337; 392; 400; 413; 449.

Doyle V. Bell, 175.

Doyle V. Falconer, 155; 156; 385.

Dulmage v. Douglass, 115; 414.

Dumphy v. Kehoe, 497; 576.

Duncan, Ex parte, 332; 618; 627.

Dupont v. La Cie de Moulin a Bardeau Chanfr6n§, 135; 281.

Dupuis V. St. Jean, 705.

Edgar v. The Central Bank, 275,n.

Eldorado Union Store Co., Re, 282,n.

Eliza Keith, 242.

Ellis, Ex parte, 517; 569; 570.

English v. O’Neill, 375.

Esquimalt & Nanaimo R. W. Co. v. Bainbridge, 728.

European and North American R. W. Co. v. Thomas, 446.

Evans v. Hudon, 418.

Exchange Bank v. The Queen, 23,n.

Export Lumber Co. v. Lambe, 393.

Fader v. Smith, 696.
Fallis V. Dalthaser, 605.
Farwell v. The Queen, 687.
Farewell, The, 242; 246,n; 261,n; 547.
Fenton v. Hampton, 54; 156.

Fielding v. Thomas; 74; 157; 159; 332; 385; 388; 508; 625.
Fillmore v. Colburn, 421.
Fisher and Village of Carman, Re, 236; 600.
•Fisheries case,’ see ‘Attorney-General of Canada v. Attorney-
General of the Provinces (Fisheries case).’
Flanagan, Ex parte, 547.

TABLE OF CASES CITED. TYJx

Flick V. Brisbin, 294.

Florence Mining Co. v. Cobalt Lake Mining Co., 83; 227; 516.

Forristal v. McDonald, 687.

Fortier v. Lambe, 423.

Forsyth v. Bury, 338; 382; 644.

Foster and Township of Raleigh, Re, 236; 394; 433.

Fraser Institute v. More, 550.

‘ Frederick Gerring, Ship,” see ‘ Ship Frederick Gerring.’

‘ Fredericton, City of,’ see ‘ City of Fredericton.’

Ganong v. Bayley, 527; 555; 557.

Gavin Gibson k Co. v. Gibson, see Addenda p. xli.

Gaynor v. Lafontaine, 687.

Geller v. Loughrin, 289; 336; 544; 563.

Gibson v. Macdonald, 535; 644.

Girard, In re, 588.

Goodhue case, 510.

Gower v. Joyner, 516.

Grand Junction R. W. Co., Re, v. County of Peterborough, 366.

Grand Trunk R. W. Co. et al. In re, 683.

Grand Trunk R. W. Co. v. Attorney-General of Canada, 115; 124;

347; 350.
Grand Trunk R. W. Co., Re, and City of Kingston, 150; 170.
Grand Trunk R. W. Co. v. City of Toronto, 354; 432.
Grand Trunk R. W. Co. v. Hamilton Radial Electric Co., 352.
Grand Trunk R. W. Co. v. Therrien, 358.
Grant v. Canadian Pacific R. W. Co., 358,n.
Green, Ex parte, 580; 596; 602.

‘ Halifax, City of,’ see ‘ City of Halifax.’

Hamilton Powder Co. v. Lambe, 214; 440; 461.

Hart V. Corporation of the County of Missisquoi, 431.

Heneker v. Bank of Montreal, 269,n; 422.

‘ Henry Vancini, In re,’ see ‘ Vancini, Henry, In re’

Henty v. The Queen, 511.

Hewson v. Ontario Power Co., 338; 366; 383; 447; 466; 482.

Hibernian, The, 242.

Hill V. Weldon, 158.

Hodge V. The Queen, 65; 69; 83; 117; 165; 199; 201; 202; 206;

209; 235; 288; 387; 427; 429; 489; 494; 574; 576; 577;

579; 584; 585; 587.
Holman v. Green, 691; 692; 697.
Holmes v. Temple, 240,n;
Horwitz V. Connor, 26,n.
Hubert v. Mary, 295.

Hull Electric Co. v. Ottawa Electric Co., 234.
Huson V. Township of South Norwich, 442; 483.
Hydraulic de St. Francois, La Compagnie v. Continental Heat &

Light Co., 125; 342; 377; 474.

^

XXX CANADA S FEDERAL SYSTEM.

• Indian Claims case,’ see ‘ Province of Ontario v. Dominion of

Canada & Province of Quebec’
International and Interprovincial Ferries, In re, 263; 703; 732.
International Text Book Co. v. Brown, 376; 434.
Iron Clay Brick Manufacturing Co., Re, 292.

Jeffery v. Boosey, 101.

John Deere Plow Co. v. Agnew, 375.

Johnson v. Poyntz, 280,n.

Jones v. Canada Central R. W. Co., 454; 510; 514.

Jones V. Twohey, 105,

Keefe v. McLennan, 440; 441; 592.

Keefer v. Todd, 355.

Keewatin Power Co. v. Town of Kenora, 256; 704.

Kennedy v. Purcell, 148.

Kennelly v. Dominion Coal Co., 694; 697.

Kerley v. London and Lake Erie Transportation Co., 72; 92;

169; 210,n; 294,n; 321,n; 361,n; 363; 455; 458; 475; 679.
KlUam, In re, 290; 293; 417; 454.
‘ King,’ see, also, ‘ Rex.’
King V. Barber, 166.

” V. Basker, 563.

” V. Bigelow, 435.

” V. Brinkley, 679.

” V. Brown, 536.

” V. Commonwealth Court of Conciliation, 221.

” v. Cotton, 406.

” V. Gardner, 577.

” V. Governor of State of South Australia, 26,n.

” V. Joe, 644.

” V. Kay, 589.

” V. Kennedy, 547.

” V. King, 537.

” V. Martin, 243.

” v. Royal Bank of Canada, 270; 504-9.

” v. Ship North, 224; 259.

” v. Sutton, 22,n.

” V. Sweeney, 562.

” V. Walton, 333.

” V. Wipper. 536; 546.
Kitchen v. Saville, 590.
Klondike City Townsite, Re, 683.

‘ La Compagnie Hydraulic de St. Francois ‘ v. see ‘ Hydraulic de

St Francois, La Compagnie v.’
Lafferty v. Lincoln, 162.
Lake SImcoe Ice Co. v. McDonald, 245,n.

il

TABLE OF CASES CITED. XXXI

Lake Winnipeg Transportation Lumber and Trading Co., Re,
243; 247,n.

Lamonde v. Lavergne, 398; 412.

Landers v. Woodworth, 155.

Larsen v. Nelson and Fort Sheppard R. W, Co., 361.

L’ Association Pharmaceutlque v. Livernois, 223.

L’Assoclation St. Jean Baptiste v. Brault, 327; 581,n; 614; 683.

Le College de Medecins v. Brigham, 399.

Lee V. Bude and Torrington R. W. Co., 78,n.

Lee V. De Montigny, 433.

Legislation respecting Abstention from Labour on Sunday, 322.
455; 678.n; 679; 681.

Lenoir v. Ritchie, 217.

Lepine v. Laurent, 16,n.

Leprohon v. City of Ottawa, 190; 417; 419.

Levesque v. New Brunswick R. W. Co., 179; 355.

License Cases, 589.

Liquidators of the Maritime Bank of Canada v. The Receiver-
General of New Brunswick, 22-3; 25; 26; 65; 83; 160;
188; 272; 387.

Local Option Acts, In re, 444.

Logan V. City of Winnipeg, 643.

Longueuil Navigation Co. v. City of Montreal, 246.

Lord’s Day Act of Ontario, In re, 362.

Lovitt V. The King, 402; 409; 411; 511.

Low V. Routledge, 104, n.

Lundon & Whitaker Claims, In re, 721.

L’Union St. Jacques de Montreal v. Belisle, 83; 124; 145; 192;
194; 214; 223; 247,n; 287; 292; 350; 628; 644.

Lynch v. Canada North West Land Co., 274; 276; 277; 424.

Macdonald v. Grand Trunk R. W. Co., 348.

Macdonald v. Riordan, 350.

Macdonald v. The King, 704.

Macdougall v. Union Navigation Co., 243.

Madden v. Nelson and Fort Sheppard R. W. Co., 81; 358.

Maher v. Town of Portland, 15,n.; 632; 633; 644; 636; 639; 640;
645.

‘ Manitoba, Attorney-General of,’ see ‘ Attorney-General of Mani-
toba.’

‘ Maritime Bank, Liquidators of,’ see ‘ Liquidators of Maritime
Bank.’

Maritime Bank v. The Queen, 23,n.

Matthew v. Wentworth, 513.

Matthews v. Jenkins, 206; 577.

May V. May, 319.

McArthur v. Northern Pacific Junction R. W. Co., 178; 355;
364.

XXXll CANADA S FEDERAL SYSTEM.

McCaffrey v. Ball, 644.

McCaffrey v. Hall, 242; 615.

McCarthy v. Brener, 104; 516; 568.

McClanaghan v. St. Ann’s Mutual Building Society, 292.

McCullough V. State of Maryland, 419.

McDiarmid v. Hughes, 372.

McDonald v. Lake Simcoe Ice and Cold Storage Co., 698.

McDonald v. McGuish, 328.

McGregor v. Esquimau and Nanalmo R. W. Co., 83; 731.

McGuire v. Birkell, Regina ex rel., 564.

McKelvey v. Meagher, 304.

McKilligan v. Machar, 553.

McKinnon v. McDougall, 162.

McLaren v. Caldwell, 687.

McLaughlin v. Recorder’s Court, 611.

McLeod V. Municipality of King, 567.

McLeod V. Noble, 554; 572.

McMillan v. Southwest Boom Co., 241.

McMurrer v. Jenkins, 332; 619.

McNutt, In re, 619; 622,n.

Mercer v. Attorney-General for Ontario, 150; 197; 216.

Merchants Bank v. Smith, 265,n.

Merchants Bank of Halifax v. Gillespie, 283; 285; 286.

Miller v. Webber, 252.

Molsom V. Lambe, 444.

Monk V. Ouimet, 26,n.

Monkhouse v. Grand Trunk R. W. Co., 349; 358.

Montreal and Ottawa R. W. Co. v. City of Ottawa, 342.

‘ Montreal, City of,’ see ‘ City of Montreal.’

Montreal Light, Heat and Power Co. v. Archambault, 724,n.

‘Montreal Street R. W. Co. v. City of Montreal,’ see ‘City of
Montreal v. Montreal Street Railway.’

Montreal Trading Stamp Company v. City of Halifax, 592.

Mousseau v. Bate, 294.

Mowat V. Casgrain (Attorney-General of Canada v. Attorney-
General of Quebec), 25; 297; 301.

Mume V. Morrison, 274.

Nakane and Okazaka, In re, 68.

Narain Singh, In re, 667.

Nash V. Newton, 691; 694; 697.

Neagle, In re, 564.

New Zealand Loan & Mercantile Agency Co. v. Morrison, 51.

Niagara Election Case, 541.

Nickle V. Douglas, 402.

Normand v. St. Lawrence Navigation Co., 245,n; 724.

North Perth, Hessin v. Lloyd, In re, 521; 554.

‘ North, Ship v. The King,’ see ‘ Ship North v. The King.’

TABLE OP CASES CITED. XXXUl

O’Brien v. Allen, 344.

O’Danaher v. Peters, 439; 440.

O’Neill, i;a; parie, 162; 163; 206; 587.

O’Neil V. Tupper, 327; 577; 620.

‘ Ontario, Attorney-General of,’ see ‘ Attorney-General of Ontario.’

Ontario Power Co. v. Hewson, 166.

Ontario Mining Co. v. Seybold, 297-8; 300; 711; 720.

Ouimet v. Bazin, 72; 322; 323; 457; 581,n; 603; 605; 606.

Paige V. Griffith, 18; 575; 576.

Papin, Ex parte, 575.

Parent v. Trudel, 290; 520.

Paquet v. Lavoie, 332.

Payson v. Hubert, 155.

Pearce v. Kerr, 162.

Peek V. Shields, 274; 551.

Peil-ke-ark-an v. Reginam, 535; 542.

Penley v. Beacon Assurance Co., 55.

Perkins, Ex parte, 331; 546.

Perry v. Clergue, 236; 264; 698; 703; 732.

Phillips V. Eyre, 576.

Picton, The, 145; 246; 688.

Pigeon V. Mainville, 330; 614.

Pillow, Ex parte, 613.

Pillow V. City of Montreal, 612.

Pineo V. Gavaza, 289; 555.

Poitras v. Corporation of Quebec, 577.

Pope V. Griffith, 618.

Portage Extension of the Red River Valley Railway, In re,
352-3; 479.

Porter, Ex parte, 331; 546; 554.

Potter V. Minahan, 667.

Poulin V. Corporation of Quebec, 88; 595.

Powell V. Apollo Candle Co., 65.

‘ Precious Metals case,’ see ‘ Attorney-General of British Columbia
V. Attorney-General of Canada (Precious Metals case).’

Prince Edward Island, Attorney-General of Province of, v. Attor-
ney-General for the Dominion, 5,n.3; 687.

Prohibitory Liquor Laws, In re, see ‘ Attorney-General for On-
tario V. Attorney-General for the Dominion.’

Province of Ontario v. Dominion of Canada (Indian Treaty In-
demnity case), 7,n; 706,n.

Provinces of Ontario and Quebec v. Dominion of Canada, 737.

‘ Provincial Fisheries, In re,’ see ‘ Attorney-General of Canada v.
Attorney-General of Provinces.’

‘ Quebec, Attorney-General of,’ see ‘ Attorney-General of Qeubec’
Quebec Bank v. Tozer, 577.

C.F.S. — C.

xxxiv Canada’s federal system.

Queddy River Driving Boom Co. v. Davidson, 244; 473.
‘ Queen v.,’ see, also, ‘ Regina v.’
Queen v. Bank of Nova Scotia, 22,n; 23.n.
V. Burah, 387.
” V. Chandler, 280,n.

” V. City of Fredericton, 134; 181; 273,n; 322; 324; 494.
” V. Cox, 334.

V. De Coste, 571-2.
” V. Delepine, 184; 259; 261.
• Queen v. Dow,’ see ‘ Dow v. Black.’
Queen v. Edulgee Byramjee, 25,n.
” v. Farwell, 710,n; 728.
” V. Fisher, 245,n.; 724.

V. Halifax Electric Tramway Co., 328; 595.
” V. Marais, In re, 54.
V. McDougall, 436.
V. Michael McCarthy, 58.
” V. Molloy, 334.
” V. Moss. 228; 706,n; 722; 724.
V. O’Bryan, 572.
V. Pattee, 26,n.
” V. Robertson, 247; 497; 616.
” V. Reno, 560; 561.
” V. St. John Gas Light Co., 245,n; 724.
” V. Wolfe, 328.
” V. Yule, 724.
Queen’s Counsel case, 24,n; 29; 424; 566.
Quirt V. The Queen, 144; 167; 270,n; 286; 487; 490.

Railway Act, In re, 167; 177; 348; 358.
Redfield v. Corporation of Wickham, 361.
Reed v. Mousseau, 393.

References by the Governor-General in Council, see ‘ Attorney-
General of Ontario v. Attorney-General for the Dominion ‘
(Supreme Court References case).
‘ Regrina v.,’ see, also. Queen v.’
Regina v. Becker, 622.

V. Bennett, 560; 561.

V. Bittle, 331; 553; 620; 622.

V. Boardman, 582,n.; 618.

V. Boscowitz, 617.

V. Bradshaw, 334.

V. Brierly, 54; 103; 104; 303.

V. Bush, 556; 560; 561; 562.

V. College of Physicians and Surgeons of Ontario, 635.

V. Coote, 558; 559; 560.

V. County of Wellington, 166; 270; 282; 286,n; 416.

V. Eli, 329; 572.

I

TABLE OF CASES CITED. XXXV

Regina ex rel. Brown v. Robt. Simpson Co., 623-4,n.
V. Fleming, 501; 591.
V. Fox, 553; 620.
V. Frawley, 435; 575; 577; 618.
V. Harper, 326; ^ 329; 575; 614.
V. Hart, 326; 583; 621.
V. Holland, 235; 624.
V. Horner, 559; 560.
V. Keefe, 501; 590.
V. Keyn, 185.
V. Lake, 329; 572.
V. Lawrence, 319; 624; 625.
” V. Levinger, 336.
” V. Matheson, 625.

ex rel. McGuire v. Birkett, 429; 432; 564.
V. Mohr, 221; 340.
V. O’Rourke, 333; 335.
V. Pattee, 294,n.
V. Peters, 162.
” V. Petersky, 595.
V. Prevost, 333.
V. Riel, 92.
V. Roddy, 553; 619.
V. Rowe, 622.
” V. Schram, 240,ii.
V. Sharp, 103.
V. Shaw, 614; 625.
V. Stone, 108; 590.
V. Taylor, 52; 115; 518.
V. Toland, 101; 107; 329; 336.
V. Wason, 108; 183; 322; 329; 517; 518; 575; 590; 591;

592; 618.
V. Wing Chong, 87; 311,n; 392.
Renaud, Ex parte, 632; 633; 636; 637; 652.
‘ Rex,’ see, also, ‘ King.’
Rex V. Canadian Pacific R. W. Co., 358.
” V. Carlisle, 587.
” V. Durocher, 624.
” V. Ferris, 625.
” V. Garvin, 624.
” V. Hill, 119; 302.
” V. Horning, 668.
” V. Laughton, 626.
” V. Lee, 322.
” V. Lincoln, 162.
” V. Lovitt, 403.

” V. Massey-Harris Co., 372; 375-6.
” V. McGregor, 236.

XXXVl CANADA S FEDERAL SYSTEM.

Rex V. Meikelham, 103; 184; 206; 234.

” V. Neiderstadt, 375; 394.

” V. Pierce, 618.

” V. Priest, 309.

” V. Riddell, 587.

” V. Walsh, 537; 587.

” V, Yaldon, 322; 598.
Rhodes v. Fairweather, 184; 242; 259; 261.
Richardson v. Ransom, 561.
Richer v. Gervais, 552.
Riel case, see Regina v. Riel.
Robtelmes v. Brenan, 304.

Roman Catholic Separate Schools v. Township of Arthur, 643.
Ross V. Canadian Agricultural Ins. Co., 565; 644.
Ross V. Guilbault, 644.
Ross V. Torrance, 274.
Routledge v. Law, 53.
Royal Bank of Canada v. The King, 15,n; 42; 84; 454; 496;

504; 511; 514.
Royal Canadian Insurance Co. v. Montreal Warehousing Co., 277.
Royal Trust Co. v. Atlantic and Lake Superior R. W. Co., 350.
Ruddell V. Georgeson, 415.
Rural Municipality of Norfolk v. Warren, 417.
Russell V. The Queen, 69; 77; 93; 113; 121; 153; 164; 166; 197;
199; 200; 201; 202; 204; 207; 210; 235; 433; 439; 444;
492; 516; 574; 583; 585; 625.
Ryan v. Devlin, 542.
Ryder v. The Queen, 687.

Sawyer-Massey Co. v. Dennis, 499.

Schoolbred v. Clarke, 461.

Schultz V. City of Winnipeg, 274; 277; 429.

Scott V. Scott, 318.

Separate School Trustees of Belleville v. Grainger, 643.

Severn v. The Queen, 237,n.; 282; 390; 434; 436; 438; 440; 441;

443; 643; 65L
Sheppard v. Sheppard, 318.
Ship Frederick Gerring Jr., 261,n.
Ship ‘North’ v. The King, 185.

Sirdar and Gurdyal Singh v. Rajah of Faridkote, 104.
Sir M. Marion Wilson’s Estate, 185.
Slavin v. Village of Orillia, 441; 588.
Simmons v. Dalton, 554.
Singh, Narain, In re, 351.
Small Debts Act, In Re, 527; 528; 556.
Smiles v. Belford, 52; 295.
Smith v. Goldie, 293.
Smylle v. The Queen, 236; 425.

TABLE OF CASES CITED. XX5VU

Society des Ecoles Gratuites v. Cite de Montreal, 327; 614.

Spiller V. Turner, 105.

Sproule V. Reginam, 333.

Stairs v. Allan, 516; 568.

Standard Ideal Co. v. Standard Sanitary Mfg. Co., 375; 421.

Stark V. Shuster, 236; 593.

Steadman v. Robertson, 494.

Steinberger, Re, 551.

Stinson and College of Physicians, Re, 517; 570; 627.

St. Catharines Milling & Lumber Co. v. The Queen, 154; 225; 296;
297; 300; 412; 689; 690; 709; 711; 712; 718; 719; 720; 721.

St. Eugene Mining Co. and The Land Registry Act, 728.

St Francois Hydraulic Co. v. Continental Heat and Light Co.,
see ‘ Hydraulic de St. Francois, La Compagnie v. Contin-
ental Heat & Light Co.’

St. Jean Baptiste v. Brault, 687.

St. John Gas Light Co. v. The Queen, 691,n.

Sturmer and Town of Beaverton, Re. 206,n.; 699.

Swifte V. Attorney-General of Ireland, 318.

Tai Sing v. Maguire, 213.

Tarte v. Beique, 580.

Tennant v. Union Bank of Canada, 123; 166; 265; 267; 490.

Theberge v. Laudry, 148; 222.

Thomas v. Haliburton, 329.

Thomson v. Wishart, 327.

Thrasher case, 86; 95; 288; 540; 552.

Three Rivers, Corporation of, v. fciulte, 34; 220.

Timothy Burke, Ex parte, 417.

Tooke Bros. Limited v. Brock and Patterson, Limited, 279,n.

‘ Toronto, Bank of,’ see ‘ Bank of Toronto.’

‘ Toronto, City of,’ see ‘ City of Toronto.’

Toronto Harbour Commissioners, Re, 421.

‘Toronto and Niagara Power Co. v. Corporation of the Town of

North Toronto, 339.
Town of Windsor v. Commercial Bank of Windsor, 269; 422.
Township of Compton v. Simoneau, 431.
Treasurer of Province of Ontario v. Patten, 402.
Tremblay v. Cite de Quebec, 109; 603.
Tully V. The Principal Officers of He” Majesty’s Ordnance 240,n.;

42L
Turcotte v. Whalen, 580.
Tytler v. Canadian Pacific R. W. Co., 475.

Union Colliery Co. v. Attorney-General of British Columbia, 684.
Union Colliery Co. v. Bryden, 66; 78; 147; 192; 196; 199; 305;

306; 310; 312.
Union Navigation Co. v. Couillard, 243.

XXXViii CANADA S FEDEKAL SYSTEM.

Valin V. Langlois, 97; 148; 151; 163; 213; 217; 223; 274; 289;

293; 493; 525; 537; 541; 542; 545; 546; 547; 551; 644.
Vanane, In re, Henry, 148; 149; 289; 336; 536; 544; 563.

Wallace Huestis Grey Stone Co., In re, 280,n.

Ward V. Reed, 330; 551.

Washington v. Grand Trunk R. W. Co. 349,n.; 358.

Waterous Engine Works Co. v. Okanagan Lumber Co., 372; 375.

Watts V. Watts, 318.

Webb V. Outrim, 17,n.; 190; 419.

Weiler v. Richards, 390.

Weiser v. Heintzman, 553; 620.

Wergman, Ex parte, 572.

Whalen, Ex parte, 572.

Whelan v. Ryan, 417.

Wi Matua’s Will, 25,n.

Wi Parata v. Bishop of Wellington, 722.

Wilder v. La Cit6 de Montreal, 593.

Wile V. Bruce Mines R. W. Co., 362.

Wilson V. Codyre, 294.

WUson V. McGuire, In re, 536; 555; 564.

Wilson’s Estate, Sir M. Marion, 185.

Windsor and Annapolis R. W. Co., In re, 513.

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

228; 229; 366; 705.
‘ Windsor, Town of,’ see ‘ Town of Windsor. ‘
Wood V. Esson, 242.

Woodruff V. Attorney-General for Ontario, 402; 407; 410.
Woolley V. Attorney-General of Victoria, 728.
Wright, Ex parte, 536; 555.
Wyatt V. Attorney-General of Quebec, 248,n.

York County Loan and Savings Co., In re, 466.

Yorkshire Guarantee and Securities Corporation, Limited, In re,

398.
Young T. Harnish, 251; 253; 692; 699.

I,

TABLE OF ABBREVIATIONS

A. R Ontario Court of Appeal reports : Toronto.

B. C British Columbia reports: Victoria.

B. C. Sess. pap British Columbia Sessional papers.

Bryce’s Amer. Comm. The American Commonwealth, by James

Bryce: MacMillan & Co., 1888.

C. A New Zealand Court of Appeal reports.

Can. Com. Journ. . . Canada Commons Journal.

Can. Hans Canadian Hansard, being oflBcial reports of

the debates of the House of Commons
of the Dominion of Canada; Queen’s
Printer, Ottawa.

Can. Sess. pap Sessional papers of the province of Canada.

Cart Mr. J. R. Cartwright’s collection of cases de-
cided on the British North America
Act, 1867; Toronto, 5 vols.

Cass. Sup. Ct. Dig. . A digest of cases decided by the Supreme

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

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

C. L. R Commonwealth (Australia) L. R.

C. L. T The Canadian Law Times: Toronto.

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

C. P Upper Canada Common Pleas Reports:

Toronto.

Dall Reports of cases in the Courts of Pennsyl-
vania, by A. J. Dallas, 1830-5.

Dom. Sess. pap Dominion Sessional papers: Queen’s Printer,

Ottawa.

Dor. Q. A Decisions of the Court of Appeal (Queen’s

Bench reports) Quebec, by L. C. W.
Dorion: Montreal.

Dor. Q. B., Que. . . . Same as the last.

Ex. C. R Reports of the Exchequer Court of Canada:

Ottawa.

Gr Reports of cases in the Court of Chancery of

Upper Canada, and afterwards of On-
tario, by Alexander Grant: Toronto.

Hannay Reports of cases in the Supreme Court of

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

Haw. Rep Hawaiian reports: Honolulu.

Hodgins’ Provincial.

Legislation Correspondence, reports of the Ministers of

Justice, and Orders in Council, upon
the subject of Dominion and Provin-
cial Legislation, 1867-1895, by W. E.
Hodgins, M.A., Ottawa, 1896.

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.

L. C. J The Lower Canada Jurist, being a collection

of decisions of Lower Canada: Mon-
treal.

L. N The Legal News: Montreal.

^ The reference to the English Law Reports and some few others
are omitted from this table, as too well known to need explanation.

zl

Canada’s fedeeal system.

M. L. R. (Q. B.)

M. L. R. (S.C.).

M. R. . . . .

N. B

N. S

N. S. W.
N. W. T.

O. A. R. .
O. Lu R.

Ont Sess. pap.

O. P. R

O. R.

O. S.

O. W. N.
P. & B. .

P. E. I

P. R.

Pugs.

Q. L. R.

R. & C

Rev. Stats., N. S.

R. 4 G

R. J. Q. (S.C.) ..

R. J. Q. (Q.B.) ..

R. Lu

Russ. Eq

S. C. R

Steph. Dig

Stuart

Todd’s Pari. Gov. In.
Brit Col

U. C. R

V. L. R

W. L. T

W. N

W., W. and A’B.

Montreal Law reports. Queen’s Bench:
Montreal.

Montreal Law reports, Superior Court:
Montreal.

Manitoba reports: Winnipeg.

New Brunswick reports.

Nova Scotia reports.

New South Wales reports.

Reports of the Supreme Court of the North-
west Territories.

Ontario Court of Appeal reports: Toronto.

Ontario Law Reports (Superior Courts, in-
cluding provincial Court of Appeal).

Ontario Sessional papers: Toronto.

Ontario Practice reports: Toronto.

Reports of decisions in the High Court of
Justice for Ontario: Toronto.

Upper Canada Queen’s Bench and Practice
Courts reports, old series: Toronto.

Ontario Weekly Notes.

Reports of cases in the Supreme Court of
New Brunswick, by Wm. Pugsley and
G. W. Burbldge.

Prince Edward Island reports.

Ontario Practice reports.

New Brunswick reports, by Wm. Pugsley.

The Quebec Law Reports.

Russell and Chesley’s Nova Scotia reports.

Revised Statutes of Nova Scotia.

Russell and Geldert’s Nova Scotia reports.

Les Rapports Judiciaires Officiels de Quebec,
Superior Bench: Montreal.

Same (Queen’s Bench).

La Revue Legale: Montreal.

Russell’s Nova Scotia Equity decisions: Hali-
fax.

Supreme Courts of Canada reports: Ottawa.

Stephen’s Quebec Law Digest: Montreal.

Stuart’s Lower Canada reports.

Parliamentary Government in the British

Colonies by Alpheus Todd, LL.D., CM.

G., 2nd ed.; Longman Green & Co.,

London, 1894.
Upper Canada Queen’s Bench reports.
Victoria (Australia) Law reports.
The Western Law Times reports: Winnipeg.
Ontario Weekly Notes.
Wyatt, Webb and A’Beckett’s Victorian

(Australian) reports.

ADDENDA

To pp. 344-6; 350-353. Provincial legislation cannot val-
idly confer upon a provincial railway company com-
pulsory powers for the purpose of enabling it to con-
struct its line across the line of a Dominion railway by
way of level crossing, and to run its trains over the line
when constructed. It cannot override, interfere with or
control or affect, the crossing or right of crossing of a
Dominion railway by a provincial railway.
Per Duff, J. (p. 38). “When you have an existing
Dominion railway, all matters relating to the physical
interference with the works of that railway or the man-
agement of the railway should be regarded as wholly
withdrawn from provincial authority.
In re Alberta Eailway Act (1913), 48 S. C. E. 9.

To pp. 170-2. And see British Columbia Electric Railway Co.
V. Vancouver, Victoria, and Eastern R. W. and Navigation
Co. (1913), 48 S. C. E. 98, from which leave to appeal
to the Privy Council has been granted. See especially
per Duff, J., diss, at pp. 114-5.

To pp. 166-177; 180-183; 364-371; 445-461. See British
Columbia Electric Railway Co. v, Vancouver, Victoria,
and Eastern R. W. and Navigation Co., supra, per Duff,
J., diss, at pp. 115-134.

To p. 104, n. In Gavin Gibson & Co. v. Gibson, [1913] W. IST.
246, Atkin, J. ‘declined to accept the proposition that
a person in a British colony became a subject of that
colony so that a judgment of its Courts obtained in his
absence was binding upon him in all other Courts.’

* The cases here noted were reported after this book was through
the press.

LEADING CONSTITUTIONAL PROPOSI-
TIONS

1. The British North America Act
\is the sole charter by which the rights

claimed by the Dominion and the prov-
ijQces respectively can be determined .

2. Although the British North Am-
erica Act was founded upon the Quebec
Resolutions, and so must be accepted as
embodying a treaty of union between
the provinces, yet, when once enacted
it constituted a wholly new point of
departure, and established the Domin-
ion and provincial governments with
definite powers and duties both alike de-
rived from it as their source.

3. The state of legislation and the
legislative powers exercised in the vari-
ous provinces prior to Confederation
can at most only be usefully referred
to to throw light upon the language of
the Imperial Act when that language is
doubtful, as may also the course and
character of legislation in England
itself.

4. In estimating the relation of Can-
adian legislation to the provisions of
the British North America Act relat-
ing to the distribution of legislative
power, it is proper to remember that
some points of views may be more nat-

PAGE

14-16

14-16

15-16

xliv Canada’s federal system.

PAGE

ural to a young and growing community
interested in developing the resources
of a vast territory as yet not fully set-
tled than they could possibly be in the
narrow and thickly populated area of
such a country as England, and gener-
ally to bear in mind the actual condi-
tions of Canada. 19 ; 177-8

5. No consent or acquiescence of the
Crown in the form of non-exercise of
the veto power, or otherwise, can render
valid an Act otherwise ultra vires and
unconstitutional under the British

North America Act. 17

6. The British North America Act
although upon it is established the Con-
stitution of a vast Dominion is, after all,
a statute, and Courts of law must treat
its provisions by the same methods of
construction and exposition which they
apply to other statutes, no matter how
great the constitutional importance of
questions which may be raised. But a
liberal construction must be given to it
as a constitutional statute conferring
and distributing high and large powers
of government, both as to Canada and

its provinces. 17-19

7. The prerogative of the Crown
runs in Canada to the same extent as in
England, and when it has not been ex-
pressly limited by Imperial statute, or

m

LEADING PKOPOSITIONS. xlv

PAGE

by valid local law or statute, is as exten-
sive in His Majesty’s over-seas Domin-
ions as in Great Britain. For the pur-
pose of entitling itself to the benefit of
its prerogative rights the Crown is to be
considered as one and indivisible
throughout the Empire. 21-23

8. The Crown is a party to and
bound by both Dominion and provin-
cial statutes so far as such statutes are
intra vires, that is, relate to matters
placed within the Dominion or provin-
cial control respectively by the British
North America Act. 23

9. A gift of legislative power car-
ries with it a corresponding executive
power, even where such executive power
is of a prerogative character, unless

there be some restraining enactment. 24-25

10. The Lieutenant-Governors of
provinces, when appointed, are as much
the representatives of His Majesty for
all purposes of provincial government
as the Governor-General himself is
for all purposes of Dominion Govern-
ment. 25-29

11. The British North America Act
makes an elaborate distribution of the
whole field of legislative authority re-
specting the internal affairs of the Do-
minion between two legislative bodies,
and at the same time provides for the

xlvi Canada’s federal system.

PAGE

federated provinces a carefully bal-
anced Constitution under which no one
of the parts can pass laws for itself ex-
cept under the control of the whole,
acting through the Governor-General . 188

12. The possession by the Federal
Government of the veto power over pro-
v^incial legislation is one of those special
features of the Constitution of the Do-
minion which distinguishes it from the
Constitution of the United States of
America. 30-44

13. The powers of legislation con-
ferred upon the Dominion parliament
and the provincial legislatures respec-
tively by the British North America
Act, are conferred subject to the sover-
eign authority of the Imperial parlia-
ment. 51-58

14. With respect to those matters
over which legislative authority has
been conferred by the British North
America Act upon the Dominion par-
liament and the provincial legislatures
respectively, the powers of legislation
given are plenary and as large, and of
the same nature, as those of the Imper-
ial parliament itself. If it be once de-
termined that the Dominion parliament
or a provincial legislature has passed an
Act upon any subject which is within
its jurisdiction to legislate upon, its

LEADING PROPOSITIONS. xlvii

PAGE

jurisdiction as to the terms of such leg-
islation is as absolute as that of the Im-
perial parliament in the United King-
dom over a like subject. Neither the
Dominion parliament nor the provin-
cial legislatures are in any sense dele-
gates of, or acting under any mandate
from, the Imperial parliament. 64-74

15. Canadian legislatures have the
same power which the Imperial parlia-
ment would have under the like circum-
stances to confide to a municipal institu-
tion or body of their own creation
authority to make by-laws or regula-
tions as to subjects specified in the en-
actment, and with the object of carry-
ing the enactment into operation and
effect, and, also, power to legislate
conditionally, as, for instance, by enact-
ing that an Act shall come into opera-
tion only on the petition of a majority

of electors. 63-73

16. If the Dominion parliament or a
provincial legislature legislates strictly
within the powers conferred in rela-
tion to matters over which the British
North America Act gives them exclu-
sive legislative control, Courts have no
right to enquire what motive induced

them to exercise their powers. 75-6

17. The parliament of Canada can-
not under colour of general legislation

i

xlviii Canada’s fedeeai* system.

PAGE

deal with what are provincial matters
only, and conversely provincial legisla-
tures cannot under the mere pretence of
legislating upon one of the matters
eninnerated in section 92, really legis-
late upon a matter assigned to the juris-
diction of the parliament of Canada. 76-81

18. 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. 81-82

19. It is not competent for any
Court when once an Act is passed by
either the Dominion parliament or a
provincial legislature in respect to any
matter over which it has jurisdiction
to legislate, to pronounce the Act in-
valid because it may affect injuriously
private rights, any more than it would
be competent for the Courts in Eng-
land for the like reason to refuse to
give effect to a like Act of the parlia-
ment of the United Kingdom. 82-85

20. The framers of the British
North America Act in providing for the
distribution of legislative power within
Canada were careful to use only very
general language containing in prin-
ciple the conferred powers, but leaving
to future legislation and judicial inter-
pretation the task of completing the de-
tails. 86-89

LEADING PB0P0SITI0N8. xlix

PAGE

21. The scheme of the British North
America Act, comprises a fourfold
classification of legislative powers,
firstly, over those subjects which are as-
signed to the exclusive plenary power
of the Dominion parliament, secondly,
over those assigned exclusively to the
provincial legislatures, thirdly, over two
subjects, and two subjects only, which
are assigned concurrently to the Domin-
ion parliament and the provincial legis-
latures, namely, agriculture and immi-
gration, and fourthly, over a particular
subject which for special reasons is
dealt with exceptionally and made the
subject of special legislation. By sec-
tion 91 the Imperial parliament unequi-
vocally, but in general terms, declares
its intention to be to place under the
jurisdiction of the Dominion parlia-
ment all matters excepting only certain
particular matters assigned by the Act

to the local legislatures. 89-91

22. The great importance of that
feature of the British North America
Act whereby a general undefined and
unrestricted power to make laws for
the peace, order, and good government
of Canada in relation to non-provincial
subjects is vested in the Dominion par-
liament is obvious. 91-94

23. Whatever belongs to self-gov-
ernment in Canada belongs either to

C.F.S. — D-f

1 Canada’s federal system.

PAGE

the Dominion or to the provinces within
the limits of the British North America
Act. So far as the internal affairs of
Canada are concerned whatever is not
given to the provincial legislatures rests
with the Dominion parliament. 94-96 ; 121

24. 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 Do-
minion parliament, while on the other
hand if the subject-matter of an Act,
other than agriculture or immigration,
is within the jurisdiction of the Domin-
ion 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, an-
cillary to the main subject of legisla-
tion, may be within such provincial jur-
isdiction. 96-99

25. The exercise of legislative power
by the parliament of Canada in regard
to all matters not enumerated in sec-
tion 91, ought to be strictly confined to
such matters as are unquestionably of
Canadian interest and importance, and
ought not to touch upon provincial leg-
islation with respect to any classes of
subjects enumerated in section 92. 99-100

LEADING PROPOSITIONS.

PAGE

26. It is true, as a general statement,
that the Dominion parliament cannot
legislate except for Dominion territory,
but this does not affect the power of the
Imperial parliament to give the legis-
latures of self-governing Dominions
within the Empire, the power to pass
statutes which shall operate outside
their borders, though within those of

the Empire itself. 101-103

27. As the expressed intention of the
British North America Act was to con-
fer upon the Dominion a Constitution
similar in principle to that of the United
Kingdom, the Dominion parliament
probably has the same power to bind
British subjects domiciled in Canada
everywhere as the Imperial parliament
has to bind British subjects in general
everywhere. 103-106

” 28. With the exception of agricul-
ture and immigration (legislation in re-
lation to which is specially provided for
by section 95 of the British North Am-
erica Act) there is no subject-matter
over which there can (speaking strictly)
be said to exist concurrent powers of
legislation in the Dominion parliament
and the provincial legislatures. The
powers of the Dominion parliament and
of the provincial legislatures to deal di-
rectly and in their entirety, and as mat-
ter of separate and detached legislation

lii Canada’s fedeiial, system.

PAGE

(as distinguished from provisions
merely ancillary to the main subject of
legislation) with the various classes of
subjects enumerated in sections 91 and
92 are in each case special and exclu-
sive. 107-111

29. In order to construe the general
terms in which the classes of possible
subjects of legislation in sections 91
and 92 of the British North America
Act are described, both sections and the
other parts of the Act must be looked
at to ascertain whether language of a
general nature must not by necessary
implication or reasonable intendment be
modified and limited. For the British
North America Act has to be construed
as a whole and where some specific mat-
ter is mentioned as within the exclusive
power of one body, Dominion parlia-
ment or provincial legislature, as the
case may be, which but for that refer-
ence would fall within the more gen-
eral description of a subject-matter
confided to the other, the statute must
be read as excepting it from that gen-
eral description. 112-118; 215-6; 389

30. There can be a domain in which
provincial and Dominion legislation
may overlap, in which case neither leg-
islation will be ultra vires if the field is
clear, but if the field is not clear, and
in such a domain the two legisla-

LEADING PROPOSITIONS. liii

PAGE

tions meet, then the Dominion legisla-
tion must prevail. 118-120 ; 191

31. In determining the validity of
a Dominion Act the first question to be
determined is whether the Act falls
within any of the classes of subjects
enumerated in section 92 and assigned
exclusively to the legislatures of the
provinces. If it does then the further
question will arise whether the subject
of the Act does not also fall within one
of the enumerated classes of subjects in
section 91, and so does not still belong
to the Dominion parliament. But if the
Act does not fall within any of the
classes of subjects in section 92 no
further question will remain. 120-122

32. 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 sub-
jects eniunerated in section 92 of the
British North America Act, and as-
signed exclusively to the legislatures of
the provinces, for if it does not, it can
be of no validity and no further question

would then arise. It is only when an
Act of the provincial legislature prima
facie falls within one of these classes of
subjects that the further question arises,
namely, whether, notwithstanding this
is so, the subject of the Act does not also
fall within one of the enumerated classes

liv Canada’s federal system.

PAGE

of subjects in section 91, and so does
not belong to the Dominion parliament.
For, notwithstanding anything in the
British North America Act, the exclu-
sive authority of the parliament of
Canada extends to all matters coming
within the classes of subjects enumer-
ated under the various items in section
91. 120-122

33. “Where in respect to matters with
which provincial legislatures have
power to deal, provincial legislation di-
rectly conflicts with enactments of the
Dominion parliament, whether the lat-
ter immediately relate to the enumer-
ated classes of subjects in section 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 com-
ing within the classes of subjects as-
signed exclusively to the provincial leg-
islatures, nor within the enumerated
classes of section 91, the provincial leg-
islation must yield to that of the Do-
minion parliament. 123-127

34. Before the laws enacted by the
federal authority within the scope of
its powers the provincial lines disap-
pear. As to these laws we have a quasi-
legislative union. They are the local

LEADING PROPOSITIONS. Iv

PAGE

laws of the whole Dominion and of

each and every province thereof. 123-127

35. In cases where parliament has
legislated under its general power of
legislation, as distinguished from its
enumerated powers, there may be noth-
ing to prevent a province legislating iii
pari materia to meet the special wants

of that particular locality. 127

36. Notwithstanding anything in the
British North America Act, the exclu-
sive legislative authority of the parlia-
ment of Canada extends to all matters
coming within. the classes of subjects
enumerated under the various items of
section 91. 128-132

37. 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 leg-
islation, as distinguished from subjects
of a local or private nature in the prov-
ince. 133-136

38. The powers of the Dominion par-
liament as defined in section 91 would
seem to extend to such laws only as are
for the peace, order, and good govern-
ment of Canada. There does not fall
under the concluding words of that sec-
tion any legislation which cannot be pre-

Ivi Canada’s federal system.

PAGE

dicated as for the peace, order, and good
government of Canada. 136-8 ; 169

39. 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
any of the classes of subjects enumer-
ated in section 92, and by that section
assigned exclusively to the legislatures
of the provinces ; but this rule is not to
be imderstood as derogating from the
legislative authority given to provincial
legislatures by section 92, save to the
extent of enabling the parliament of
Canada to deal with matters local or
private in those cases where such leg-
islation is necessarily incident to the
exercise of the powers conferred upon
it by the enumerated heads of section

91. 138-140; 168

40. In legislating for the peace,
order, and good government of Canada
in regard to matters not specified among
the enumerated subjects of legislation
in section 91, the Dominion parliament
has no authority to encroach upon any
class of subjects which is exclusively
assigned to provincial legislatures;
neither, on the other hand, can pro-
vincial legislatures legislate on any of
the enumerated matters in section 91 for
their own provinces under the pretence,

LEADING PROPOSITIONS. Ivii

PAGE

or contention, that the legislation is of

a provincial or local character. 140-143

41. Notwithstanding Proposition 38,
it would seem that if the subject-mat-
ter dealt with comes within the classes
of subjects assigned to the parliament
of Canada (or, if, though this be not
the case, the law be one for the peace,
order, and good government of Canada
in relation to subjects assigned to the
legislatures of the provinces) there is
no restriction upon that Parliament to
prevent it passing a law affecting one
part of the Dominion and not another,
if in its wisdom it thinks the legisla-
tion applicable to and desirable in one

and not in the other. 144-147

42. The Dominion parliament can,
in matters within its sphere, impose
duties upon any subjects of the Domin-
ion, whether they be officials of provin-
cial Courts, other officials, or private
citizens ; and there is nothing in the ^
British North America Act to raise a ^
doubt about the power of the Dominion
parliament to impose new duties upon
the existing provincial Courts, or to
give them new powers as to matters
which do not come within the subjects
assigned exclusively to the legislatures
of the province. It may also, it would
seem, deprive them of jurisdiction over
such matters. So too, it would appear,

C.F.S. — Do

I

Iviii Canada’s federal system.

PAGE

in matters within their sphere, provin-
cial legislatures can impose duties
upon Dominion officials in certain
cases. 148-150; 553-4.

43. There is not to be found one word
in section 91 of the British North
America Act, expressing or implying a
right in the Dominion parliament to
interfere with provincial executive
authority, where acting, of course,
under valid provincial Acts in connec-
tion with matters proper to exclusive
provincial jurisdiction. 150; 197-8

44. The provincial legislatures have
no law-making powers except the enum-
erated powers expressly given to them
by the British North America Act. But,
apart from law-making powers, provin-
cial legislatures have, doubtless, by
virtue of being legislative bodies at all,
such powers and privileges as are neces-
sarily inherent in and incident to such
bodies ; and, having them, may regulate
their exercise by statute or standing
rules, if they see fit so to do, as for ex-
ample, the power to remove any obstruc-
tion offered to the deliberations or
proper action of the legislative body
during its sittings. 153-158

45. Co-equal and co-ordinate legis-
lative powers in every particular were
conferred by the British North America

Act on the provinces. 159-160

LEADING PROPOSITIONS. Hx

, , PAGE

46. The powers conferred by sec-
tion 129 of the British North America
Act upon the provincial legislatures of
Ontario and Quebec, to repeal and alter
the statutes of the old parliament of the
province of Canada, are made precisely
co-extensive with the powers of direct
legislation with which these bodies are
invested by the other clauses of the
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 de-
stroyed. 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. 161-163

47. An Act of the Dominion parlia-
ment is not affected in respect to its
validity, by the fact that it interferes
prejudically with the object and opera-
tion of provincial Acts, provided that it
is not itself legislation upon or within
one of the subjects assigned to the exclu-
sive jurisdiction of the provincial legis-
lature. It is true, a fortiori, that in as-
signing to the Dominion parliament leg-
islative jurisdiction in respect to the
general subjects of legislation enumer-
ated in section 91, the Imperial parlia-

Ix Canada’s federal system

i

PAGE

ment, by necessary implication, in-
tended to confer on it legislative power
to interfere with, deal with, and en-
croach upon, matters otherwise assigned
to the provincial legislatures under sec-
tion 92, so far as a general law relat-
ing to those subjects so assigned to it
may affect them, as it may also do to
the extent of such ancillary provisions
as may be required to prevent the
scheme of such a law from being de-
feated. 164-179

48. The power of the Dominion par-
liament to incidentally deal, by way
of ancillary legislation, with matters
which are under the jurisdiction of the
provinces, does not extend any further
than is reasonable to enable it to legis-
late on the general subjects conunitted
to its jurisdiction by the British North
America Act. 169-179

49. The provincial legislatures seem
to have no similar power of intruding
by way of ancillary legislation upon
the area of the Dominion enumerated
powers, though they may have to invade
the potential, though unoccupied, area
of the Dominion residuary power. And
whatever powers provincial legislatures
have as included, ex vi termini, within
the enumerated classes in section 92,
when properly understood, those powers
they may exercise, although in so doing

i

LEADING PK0P0SITI0N8. Ixi

PAGE

they may incidentally toucli or affect
something which might otherwise be
held to come within the exclusive juris-
diction of the Dominion parliament
under some of the enumerated classes
of section 91. 180-3

50. If, on due construction of the
British North America Act, a legisla-
tive power falls within section 92, it is
not to be restricted or its existence de-
nied because by some possibility it may
be abused or may limit the range which
otherwise would be open to the Domin-
ion parliament. Whatever power falls
within the legitimate meaning of the
classes in section 92, is what the Im-
perial parliament intended to give ; and
to place a limit on it, because the power
may be used unwisely, as all powers
may, would be an error, and would lead
to insuperable difficulties in the con-
struction of the Federation Act. And
the same, of course, is true mutatis mut-
andis of Dominion powers. 184-9 ; 193

51. The object of the British North
America Act was neither to weld the
provinces into one, nor to subordinate
provincial Governments to a central
authority, but to create a Federal Gov-
ernment in which they should all be re-
presented, entrusted with the exclusive
administration of affairs in which they
had a common interest, each province

brii Canada’s federal system.

PAGE

189

retaining its independence and auton-
omy.

52. Although by virtue of the non-
ohstante clause of section 91 of the
British North America Act, and the
concluding clause of that section, the
construction of the enumerated powers
conferred upon the Dominion parlia-
ment may be said to over-ride the con-
struction of section 92, — ^yet, when the
validity of a provincial Act is in ques-
tion, and it clearly appears to fall within
one of the classes of subjects enumer-
ated in section 92, the onus is on per-
sons attacking its validity to show that
it does also come with within one or
more of the classes of subjects specially
enumerated in section 91. 191-192

53. A provincial legislature is not
incapacitated, from enacting a law
otherwise within its proper competency
merely because the Dominion parlia-
ment might under section 91 of the
British North America Act, if it saw fit
so to do, pass a general law which would
embrace within its scope the subject-
matter of the provincial Act. 193-196

54. Subjects which in one aspect and
for one purpose fall within the juris-
diction of the provincial legislatures
under section 92 of the British North
America Act, may in another aspect and

LEADING PROPOSITIONS. Ixiii

PAGE

for another purpose, fall witMn the
jurisdiction of the Dominion parlia-
ment under section 91. 199-209

55. The true nature and character
of the legislation in the particular in-
stance under discussion — its ground
and design, and the primary matter
dealt with — its object and scope, must
always be determined in order to ascer-
tain the class of subjects to which it
really belongs, and any merely inci-
dental effect it may have over other mat-
ters does not alter the character of the

law. 210-213

56. If an Act of the parliament of
Canada, the objects and scope of which
is general, and within its proper com-
petency to deal with, provides that it
shall come into force in such localities
only in which it shall be adopted in a
certain prescribed manner, or, in other
words, by local option, this conditional
application of the Act does not convert
it into legislation in relation to matters
of a merely local or private nature
which by No. 16 of section 92 of the
British North America Act are within
the exclusive control of the provincial
legislatures. The manner of bringing
such an Act into force does not alter

its general and uniform character. 210-211

57. It is not to be presumed that the
Dominion parliament has exceeded its

Ixiv Canada’s federal system.

PAGE

powers, unless upon grounds really of
a serious character ; and so, likewise, in
respect to provincial statutes every pos-
sible presumption must be made in
favour of their validity. 213-215

58. Declarations of the Dominion
parliament are not, of course, conclusive
upon the interpretation of the British
North America Act; but when the
proper construction of the language
used in that Act to define the distribu-
tion of legislative power is doubtful, the
interpretation put upon it by the Do-
minion parliament in its actual legisla-
tion may properly be considered. And
the same applies a fortiori where the
provincial legislatures have by their leg-
islation shewn agreement in the views
of the Dominion parliament as to their
respective powers. So, too, the views
acted upon by the great public Depart-
ments, as expressed in Imperial des-
patches, or otherwise, carry weight in

the absence of judicial decision. 215-217

59. The Dominion parliament can-
not either expressly or impliedly, take
away from or give to, the provincial
legislatures a power which the Imperial
Act does or does not give them ; and the
same is the case, mutatis mutandis, with

the provincial legislatures. 217

60. If the Dominion parliament
does not possess a legislative power,

LEADING PROPOSITIONS. Ixv

PAGE

neither the exercise, nor the continued
exercise, of a power not belonging to it
can confer it, or make its legislation
binding. And the same is, of course,
true of legislation of provincial legis-
latures. 217

61. Although part of an Act either
of the Dominion parliament or of a pro-
vincial legislature may be ultra vires :-
and therefore invalid, this will not in-
validate the rest of the Act, if it appears
that one part is separate in its opera-
tion from the other part, so that each
is a separate declaration of the legisla-
tive will, and unless the object of the
Act is such that it cannot be attained
by a partial execution. 219-222

62. 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 valid-
ity, be interfered with by such an Act. 222-223

63. The fact that legislative jurisdic-
tion in respect of a particular subject
matter is conferred on the Dominion
parliament or provincial legislatures af-
fords no evidence or presumption that
any proprietary rights with respect to
it were transferred by the Act to the Do-
minion or provinces respectively. The
Dominion parliament has no power, by

Ixvi Canada’s federal system.

PAGE

virtue of its legislative jurisdiction
under section 91 of the British North
America Act, to confer upon others
proprietary rights where it possesses
none itself, unless under such items of
section 91 as necessarily imply the
power to deal with property although
not vested in the Crown as represented
by the Dominion Government. 224-229

64. The mere fact that an Act of a
provincial legislature may incidentally
touch some of the classes of subjects
eniunerated in section 91 of the British
North America Act, although, in fact,
such subjects are foreign to the pur-
poses of such Act, and not necessarily
and directly involved in the legislation,
does not make the Act really one within

or upon that class of subjects. 273-274

65. The Dominion parliament can
alone incorporate companies with pow-
ers to carry on business throughout the
Dominion, and the business of compan-
ies so incorporated may have to do with
property and civil rights, yet it cannot
empower them to cany on business in
any province otherwise than subject
to and consistently with the laws of that
province, (unless the business is such
that power to make laws in relation

to it is exclusively in the Dominion par- ‘
liament, under one of the enmnerated

LEADING PROPOSITIONS.

Ixvii

PAGE

heads of section 91 of the British North
America Act) . 339-343 ; 371-373 ; 381

66. The fact that a company incor-
porated under an Act of the Dominion
parliament with power to carry on its
business throughout the Dominion,
chooses to confine the exercise of its
powers to one province cannot affect
its status or capacity as a corporation,
if the Act incorporating the company
was originally within the legislative
power of the Dominion parliament. 382

67. The provincial legislatures have
general jurisdiction, and they alone
have general jurisdiction, over prop-
erty and civil rights in the province;
but this is not to be understood, on the
one hand, as meaning that they can leg-
islate upon any one of the subjects as-
signed exclusively to the parliament of
Canada by section 91; nor is it to be
understood, on the other hand, as mean-
ing that the parliament of Canada can-
not incidentally affect property and
civil rights by its legislation, so far as
such power is implied in its power to
legislate upon the subjects exclusively
assigned to it by section 91, or so far as
is required as ancillary to the power to
legislate effectually, and completely, on
such subjects; and as, on the one hand,
the operation of Acts of the provincial
legislatures respecting property and

Ixviii

CANADA S F£D£RAL SYSTEM.

civil rights in the province, or other pro-
vincial subjects, may be interfered with
by reason of the operation of Acts of the
Dominion parliament, so, also, Do-
minion Acts may be interfered with by
reason of the operation of Acts of the
provincial legislatures, although Do-
minion legislation, whether on one of
the enumerated classes in section 91, or
by way of provisions properly ancillary
to legislation on one of the said enumer-
ated classes, will over-ride and place in
abeyance, provincial legislation which
directly conflicts with it.

PAGE

488-491

70. A provincial legislature by vir-
tue of No. 13 of section 92 of the Brit-
ish North America Act has power to
make laws in relation to such * prop-
erty and civil rights ‘ (within the mean-
ing of that clause as restricted to allow
scope for the due operation of the other
provisions of the said Act) as have a
local position within the province; but
they have no such power in relation to
property and civil rights having their
local position in another province ; and
if, in any case, they cannot legislate in
relation to the one, without at the same
time legislating in relation to the other,
that is a case beyond their powers of leg-
islation altogether. 501-509

CANADA’S FEDERAL SYSTEM

Treatise on Canadian Constitutional Law under
THE British North America Act.

CHAPTER I.

The General Scheme.

To mention the various parts of what may
be called the skeleton framework of the Dom-
inion Constitution is a matter of no great dif-
ficulty. Our real difficulty will commence when
we set out to examine and portray, minutely
and with accuracy, the flesh and nerves and
sinews, as it were, with which that portion which
has to do with the distribution of legislative
power between the Dominion parliament and
the provincial legislatures has been clothed by
the decisions of the Courts, and by the communi-
cations which have passed between the provin-
cial Governments and the Dominion Govern-
ment, and the reports of the Dominion Minister
of Justice to the Governor-General upon pro-
vincial legislation.

The constituent parts of the Dominion Con-
stitution are to be found in the provisions of
the British North America Act, 1867 ;^ nor is it

^The British North America Act, 1867—30-31 Vict. c. 3—
was signed hy Her Majesty Queen Victoria on March 29th, 1867,
and came into force on July 1st of the same year. The following

C.F.S. — 1

2 CANADA S FEDERAL SYSTEM.

possible to state them better than in the words
there used.

At the apex of our constitutional system
stands His Majesty the King.

The Executive.

9. The Executive Government and authority
of and over Canada is hereby declared to con-
tinue and be vested in the (King).

2. The provisions of this Act referring to
(His) Majesty the (King) extend also to the
heirs and survivors of (His) Majesty, Kings
and Queens of the United Kingdom of Great
Britain and Ireland.

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 (King).

amending or supplemental British North America Acts have been
since passed by the Imperial parliament: 1871, 34-35 Vict. c. 28,
respecting the establishment of provinces in the Dominion of
Canada; 1875, 38-39 Vict. c. 38, to remove certain doubts with
respect to the powers of the Dominion parliament under section
18 of the Act of 1867, respecting the privileges, immunities, and
powers of the Senate and House of Commons; 1886. 49-50 Vict.
c 35, respecting the representation in the parliament of Canada
of territories which for the time being form part of the Do-
minion of Canada, but are not included in any province; and
1907, 7 Edw. VII., c. 11, superseding section 118 of the Act of
1867, relating to the annual grants of money to be paid by the
Dominion to the several provinces. The numbers prefixed to
certain clauses in the following statement of the constituent
parts of the Dominion Constitution refer to and introduce sec-
tions of the British North America Act, 1867, which is the Act
intended throughout this article when the expression ‘ the
British North America Act’ simply Is used. See Appendix of
Statutes and Orders in Council where all these statutes are
printed In full.

THE DOMINION PARLIAMENT. 6

Inasmuch, however, as His Majesty cannot
at the present time, whatever the future may
bring forth, preside in person over the Govern-
ment of his Dominion of Canada, he commis-
sions and instructs a Governor-General to re-
present him, who has a Council to aid and advise
him. The Federation Act provides : —

11. There shall be a Council to aid and advise
in the government of Canada, to be styled the
(King’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.

The Legislature.

17. There shall be one Parliament of Canada,
consisting of the (King), an Upper House,
styled the Senate, and the House of Commons.

20. There shall be a session of the Parlia-
ment 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.

The Senate.

21. The Senate shall, subject to the provi-
sions of this Act, consist of seventy-two members
who shall be styled Senators.^

‘The full strength of the Senate at the present time is 96
members: 24 from the maritime provinces; 24 from Quebec; 24
from Ontario; and 24 from the western provinces. See section 27.

4 CANADA S FEDKRAT, SYSTEM.

24. The Governor-General shall, from time to
time, in the (King’s) name, by Instrmnent
imder the Great Seal of Canada, summon quali-
fied persons to the Senate; and subject to the
provisions of this Act, every person so sum-
moned shall become and be a Member of the
Senate and a Senator.

29. A Senator shall, subject to the provisions
of this Act,^” hold his place in the Senate for life.

The House of Commons.

38. The Governor-General shall, from time
to time, in the (King’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 of sitting or voting as a Member of
the House of Commons.

48. The presence of at least 20 Members of
the House of Commons shall be necessary to
constitute a meeting of the House for the exer-
cise of its powers; and for that purpose the
Speaker shall be reckoned as a Member.

50. Every House of Commons shall continue
for five years 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.

*• Section 30 provides that a Senator may resign his place
In the Senate; section 31 that under certain circumstances the
place of a Senator shall become vacant.

THE DOMINION PARLIAMENT. 5

51. On the completion of the census in the
year 1871, and of each subsequent decennial cen-
sus, the representation of the four provinces’
shall be readjusted 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

* The four provinces are, of course, Quebec, Ontario, New
Brunswick and Nova Scotia. In 1870 the province of Manitoba
was carved out of the North-West Territories by Dominion Act,
33 Vict. c. 3, confirmed by Imp. 34-35 Vict. c. 28, and made one
of the provinces of Canada. British Columbia was admitted as
a province of the Dominion by Order in Council of May 16th,
1871, and Prince Edward Island by Order in Council of June 26th,
1873. The province of Alberta was constituted in 1905 by Do-
minion Act, 4-5 Edw. VII. c. 30, and the province of Saskatche-
wan, also in 1905, by Dominion Act, 4-5 Edw. VII. c. 42, both
under the authority of Imp. 34-35 Vict. c. 28, 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, all pro-
vide 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 Constitution, be applicable to each of
the said provinces ” in the same way 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 Vict. c. 35,
passed in 1886, gave the parliament of Canada power to provide
representation 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. As to
the interpretation of section 51, see Attorney -Oeneral for the
Province of Prince Edward Island v. Attorney-General for the
Dominion, [1905] A. C. 37, reported below, 33 S. C. R. 475, 594,
especially sub-sec. 4. Sub-sees. 3, 4, and 5 are not printed in the
text See Appendix of Statutes and Orders in Council.

6 Canada’s federal system.

its population (ascertained at such census) as
the number sixty-five bears to the number of the
population of Quebec (so ascertained).

Royal Assent.

55. Where a Bill passed by the Houses of
Parliament is presented to the Governor-General
for the (King’s) assent, he shall declare, accord-
ing to his discretion, but subject to the provi-
sions of this Act and to (His) Majesty’s instruc-
tions, either that he assents thereto 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.

56. Where the Governor-General assents to
a Bill in the (King’s), name, he shall by the first
convenient opportunity send an authentic copy
of the Act to one of (His) Majesty’s Principal
Secretaries of State, and if the (King) in
Council within two years after receipt thereof
by the Secretary of State thinks fit to disallow
the Act, such disallowance (with a certificate 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 Parliament or by Pro-
clamation, shall annul the Act from and after
the day of such signification.^*

57. A Bill reserved for the signification of
the (King’s) pleasure shall not have any force
unless and until within two years from the day

»• See infra, pp. 33-4; 47.

THE PROVINCIAL CONSTITUTIONS. 7

on which it was presented to the Governor-Gen-
eral for the (King’s) assent, the Governor-Gen-
eral signifies, by Speech or Message to each of
the Houses of Parliament or by Proclamation,
that it has received the assent of the (King) in
Council.

Provincial Constitutions.

58. For each Province there shall be an offi-
cer, styled the Lieutenant-Governor, appointed
by the Governor-General in Council by Instru-
ment under the Great Seal of Canada.

59. A Lieutenant-Governor shall hold office
during the pleasure of the Governor-General;
but any Lieutenant-Governor . . . shall not
be removeable within five years from his appoint-
ment, except for cause assigned, which shall be
communicated to him in writing within one
month after the order for his removal is made

* The case of Mr. Letellier de St. Just, who was dismissed
in 1879 by the Dominion Government from the Lieutenant-
Governorship of Quebec, shows that the discretion of the Cana-
dian Ministry is absolute in the matter of dismissal. As to
this case see Todd’s Parliamentary Government in British Colon-
ies, 2nd ed., p. 604; Com. Pap., 1878-9, vol. 51, pp. 148-152. In a
despatch of the Secretary of State for the Colonies to the Gover-
nor-General of July 3rd, 1879 (Can. Sess. Pap., 1880, No. 18), in
reference to this Letellier Case, he says: ” It has been noticed
that while under section 58 of the Act the appointment of a
Lieutenant-Governor is to be made ‘ by the Governor-General in
Council by instrument under the Great Seal of Canada,’ section
59 provides that ‘ a Lieutenant-Governor shall hold office during
the pleasure of the Governor-General,’ and much stress has been
laid upon the supposed intention of the legislature in thus vary-
ing the language of these sections. But it must be remembered
that other powers, vested in 8 similar way in ‘ the Governor-
General,’ were clearly intended to be and in practice are exer-

8 Canada’s federal system.

63. The Executive Council of Ontario and of
Quebec shall be composed of such persons as the
Lieutenant-Governor from time to time thinks
fit.

64. The Constitution of the Executive auth-
ority in each of the Provinces of Nova Scotia
and New Brunswick shall, subject to the provi-‘
sions of the Act, continue as it exists at the
Union, until altered imder the authority of this
Act.

69. There shall be a Legislature for Ontario,
consisting of the Lieutenant-Governor and of
one House, styled the Legislative Assembly of
Ontario.

71. There shall be a Legislature for Quebec,
consisting of the Lieutenant-Governor and of
two Houses, styled the Legislative Council of
Quebec and the Legislative Assembly of Quebec.

72. The Legislative Council of Quebec shall
be composed of twenty-four members to be ap-
pointed by the Lieutenant-Governor in the
(King’s) name by Instrument under the Great
Seal of Quebec.

cised by him, by and with the advice of his Ministers; and
though the position of a Governor-General would entitle his
views on such a subject as that now under consideration, to
peculiar weight, yet Her Majesty’s Government do not find any-
thing in the circumstances which would justify him in depart-
ing in this Instance, from the general rule, and declining to follow
the decided and sustained opinion of his Ministers, who are
responsible for the peace and good government of the whole
Dominion to the Parliament to which, according to the 59th
section of the statute, the cause assigned for the removal of the
Lieutenant-Governor must be communicated.” And c/. the Aus-
tralian case of Attontey-Oeneral v. Ooldsbrough, (1889) 15 V. L,
R. 638, at p. 647.

THE PEOVINCIAL CONSTITUTIONS. 9

83. Until the Legislature of Ontario or of
Quebec otherwise provides, a person accepting
or holding in Ontario or in Quebec any office,
commission, or employment, permanent or tem-
porary, at the nomination of the Lieutenant-
Governor, to which any annual salary, or any
fee, allowance, emolument, or profit of any kind
or amount whatever from the Province is at-
tached, 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 Pro^i.nce, or holding any of the fol-
lowing offices, that is to say : the offices of Attor-
ney-General, Secretary, and Registrar of the
Province, Treasurer of the Province, Commis-
sioner 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, pro-
vided he is elected while holding such office.^

‘ The British North America Act, 1867, does not prohibit
members of the Dominion Cabinet or of provincial Executive
Councils being members of the legislature during their continu-
ance in office, and so preserves the British system of responsible
government in Dominion and province alike. Here we get a
leading point of distinction between Canada and the United
States. Article 1, section 6, of the Constitution of the United
States provides ‘that : — ‘No person holding any office under the
Dnited States shall be a member of either House (i.e., the Senate
or the House of Representatives) during his continuance in
office.’ In like manner in all the States of the Union the execu-
tive is quite separate from the legislature. None of them have
our system of responsible parliamentary government. We may
say generally, both of the Dominion and provincial Constitutions,
in the words of the late Sir John Bourinot, that ‘that great
body of unwritten conventions, usages and understandings which

10 Canada’s federal system.

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 (sub-
ject nevertheless to either the Legislative As-
sembly of Ontario or the Legislative Assembly
of Quebec being sooner dissolved by the Lieuten-
ant-Governor of the Province) and no longer.

86. There shall be a Session of the Legisla-
ture of Ontario and of that of Quebec once at
least in every year, so that 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.

88. The Constitution of the legislature of
each of the Provinces of Nova Scotia and New
Brimswick shall, subject to the provisions of
this Act, continue as it exists at the Union until
altered under the authority of this Act . . .”

90. The following provisions of this Act re-
specting the Parliament of Canada, namely : the
provisions relating to appropriation and tax

have in the course of time grown up in the practical working of
the English Ck)n8titution form as important a part of the politi-
cal system of Canada as the fundamental law itself which governs
the federation:’ Maple Leaves, at p. 97. See, also, an Article on
The Theory and Practice of the Constitution by T. B. Flint
(1908), 28 C. L. T. 114; and one on ‘Fact and Fiction in the
Canadian Constitution,’ by R. T. Mullin, 7 Rev. L. 144 (1901).
” The unwritten Constitution of England Is a growth, not a
fabric:” per Lord Loreburn, L.C., In Attorney-Oeneral for Ontario
V. Attorney-Oeneral for Canada, [1912] A. C. at p. 586.

•The same applies to the provinces of British Columbia and
Prince Edward Island, which, in joining the Dominion, retained
their provincial constitutions subject to the provisions of the
British North America Act, 1867. In the same way the provinces

THE JUDICIARY. 11

Bills, the recommendation of money 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 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-Gen-
eral, of the Governor-General for the (King)
and for a Secretary of State, of one year for two
years, and of the Province for Canada.

Judicature.

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
Brunswick.

99. The Judges of the Superior Courts shall
hold office during good behaviour, but shall be
removable by the Governor-General on address
of the Senate and House of Commons.

of Manitoba, Alberta and Saskatchewan, when constituted, were
provided with Constitutions similar to that of the province of
Ontario (excepting that Manitoba was given a Legislative Coun-
cil as well as a Legislative Assembly, but the former was abo-
lished by Manitoba Statute, 39 Vict. c. 28, in 1876); and the
provisions of the British North America Act, 1867, are made to
apply to them ‘ in the same way and to the like extent as they
apply to the provinces heretofore comprised in the Dominion,
as if (each of said provinces) had been one of the provinces
originally united.’

‘The provisions as to appropriation and tax bills and the
recommendation of money votes are to be found in sections 53
and 54 of the British North America Act, 1867, and reproduce

12 Canada’s federal system.

100. The salaries, allowances, and pensions
of the Judges of the Superior, District, and
County Courts (except the Courts of Probate
in Nova Scotia and New Brunswick), and of the
Admiralty Courts in cases where the Judges
thereof are for the time being paid by salary,
shall be fixed and provided by the Parliament of
Canada.

101. The Parliament of Canada may, not-
withstanding 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 Courts for the better administration
of the laws of Canada.*

The above provisions of the British North
America Act, 1867, give the constituent parts
and fundamental features of the Constitution
of the Dominion of Canada. We shall now refer
to certain general considerations to be borne
in mind in dealing with the Constitution. Then
we shall consider the position of the Crown in

the usage of the Imperial parliament. See Bourinot’s Parlia-
mentary Procedure and Practice in the Dominion of Canada,
chap. XVII., pp. 530-581. See, however, now Imperial Parliament
Act, 1911. 8. 1.

•A Supreme Court and Exchequer Court of Canada, with
right of final appeal to the Supreme Court from the judgments
of Courts of last resort in the provinces, ‘ saving any right
which (His) Majesty may be graciously pleased to exercise by
virtue of (his) royal prerogative,’ was established in 1875. By
Dominion Act of 1887 all original Exchequer Court jurisdiction
was taken away from the judges of the Supreme Court of Canada,
and transferred to one single judge, to be called the Judge of
the Exchequer Court of Canada, duly appointed under the Act;
and the Exchequer Court has since then constituted a tribunal
entirely distinct from that of the Supreme Court of Canada, but
with a right of appeal to that Court. See, also, infra pp. 672-688.

PLAN OF THIS WORK. 13

Canada, and its relation to the Dominion par-
liament, and the provincial legislatures ; and dis-
cuss, incidentally, the Dominion veto power over
provincial Acts. After this, we shall endeavour
to explain, in the light of the authorities, the dis-
tribution of legislative powers, within the Dom-
inion, between the Dominion parliament on the
one hand and the provincial legislatures on the
other. And finally shall treat concisely of the
construction to be put on their respective specific
powers.

CHAPTER II.

Some General Considerations.

There is to be found in the judgments in some
of the earlier cases, a somewhat confused and
confusing notion that in considering the provi-
sions of the British North America Act in re-
spect to the distribution of legislative powers
between the Dominion and the provinces we may
sometimes have to go behind and beyond its
terms, and consider what the representatives of
the confederated provinces intended when they
consented to enter into the Union, or the posi-
tion of the different provinces before the Union,
and the powers of legislation they then pos-
sessed, and the manner in which they were wont
to exercise these powers.^ But it may be said
to be pretty well established now that the Bri-
tish North America Act itself is the sole charter
by which the rights claimed by the Dominion
and the provinces respectively can be deter-
mined; and that although the British North
America Act was founded upon the Quebec Re-
solutions, and so must be accepted as embodying
a treaty of union between the provinces, yet
when once enacted it constituted a wholly new
point of departure, and established the Domin-
ion and provincial Governments with definite
powers and duties, both alike derived from it as

‘See Law of Legislative Power In Canada, pp. 1-20; 41-61,
where the cases are all collected.

RELEVANCY OF ANTE-CONFEDERATION CONDITIONS. 15

their source/” From this it follows that the state
of legislation and the legislative powers exer-
cised in the various provinces prior to Confeder-
ation can at most only be usefully referred to
to throw light upon the language of the Imperial
Act when that language is doubtful. For ex-
ample, in a recent report of May 23rd, 1911, Sir
Allen Aylesworth, Minister of Justice, expressed
the view that the word ” Banking ” in No. 15 of
sec. 91, ” is intended to describe not only such
powers as are inherently banking powers, but,

” As to reference to the debates on the British North America
A.ct not being admissible to influence the Courts in its construc-
tion, see Maker v. Tovm of Portland, in the Privy Council, as
reported in Wheeler’s Law of Confederation, at p. 362. As to any
supposed inherent right in a Canadian legislature to repeal its
own legislative Acts, the Privy Council, in Brophy v. Attorney-
General of Manitoba, [1895] A. C. at pp. 222-3, say, with special
reference to sec. 22, sub-sec. 2 of the Manitoba Act (see infra,
p. 654) whereby an appeal to the Governor-General in Council
is given from any act or decision of the legislature of the pro-
vince, or of any provincial authority, affecting any right or privi-
lege of the protestant or Roman Catholic minority of the (King’s)
subjects in relation to education: ” If, upon the natural construc-
tion of the language used, it should appear that an appeal was
permitted in circumstances involving a fetter upon the power of
a provincial legislature to repeal its own enactments, their lord-
ships see no justification for a leaning against that contention,
nor do they think that it makes any difference whether the
fetter is imposed by express words, or by necessary implication.”
And in their recent judgment in Royal Bank of Canada v. The
King, [1913] A. C. at p. 296 (noticed at length infra pp. 504-9
g.v.), their lordships say that they ” agree with the contention of
the respondents that in a case such as this it was in the power
of the Alberta legislature subsequently to repeal any Act which
it had passed. If this were the only question which arose, the
appeal could be disposed of without difficulty. But the Act under
consideration does more than modify existing legislation. It pur-
ports to appropriate to the province the balance standing at the
special accounts in the banks, and so to change its position under
the scheme to carry out which the bondholders had subscribed
their ruoney.”

16 Canada’s federal system.

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. ‘ ‘
And it may even be that the course and character
of legislation in England itself may, in some
cases, throw light upon the proper interpreta-
tion of the British North America Act.” The
difficulties which arise if we attempt to rely
upon the state of legislation and other circiun-
stances in the provinces prior to Confederation
when seeking to interpret the British North
America Act, are obvious. For instance, the
state of things existing in some of the provinces
prior to Confederation were in some instances
different from those existing in others of the
provinces, and where this was the case, either
the interpretation of the British North America
Act must vary according to the province to which
it is being applied, or we must select some par-
ticular province or provinces in seeking for
light in construing it, or lastly, we must take
up the bold and comprehensive position assumed
by Dorion, C.J., in Cooey v. The Corporation of
the County of Brome/”^ where he says: — ” In the
absence of any expression to restrict the powers
so conferred ” (sc. by Nos. 8 and 16 of section
92 of the Federation Act) ” they must be under-
stood to comprise all those matters which, at the
time the Union was effected, had been considered
by the existing legislatures as belonging to muni-
cipal institutions or as being of a local or pro-
vincial character.”

•See Law of Legislative Power in Canada, pp. 61-*?*. fto^
infra, p. 231.

*• Quoted in Lepine v. Laurent (1891), 17 Q. L.

RESTS UPON A WRITTEN ORGANIC INSTRUMENT. 17

It also follows that no consent or acquies-
cence of the Crown in the form of non-exercise
of the veto power, or otherwise, can render valid
an Act otherwise ultra vires and unconstitu-
tional under the British North America Act;
and that no Colonial Secretary has ex officio a
right by a despatch, or otherwise, either to add
to, alter, or restrain any of the legislative powers
conferred by the Act, or to authorize a subor-
dinate legislature to do so. It also follows, above
all, that provincial legislatures have no powers
excepting the enumerated powers which are
given to them by the Act.

Again, the British North America Act, al-
though upon it is established the Constitution of
a vast Dominion, is, after all, a statute, and
Courts of law must treat its provisions by the
same methods of construction and exposition
which they apply to other statutes, no matter
how great the constitutional importance of ques-
tions which may be raised. As the Privy Coun-
cil say in their very recent judgment in respect
to References by the Dominion Government to
the Supreme Court’ of May 16th, 1912 : ” In the
interpretation of a completely self-governing
Constitution founded upon a written organic in-

^ Attorney-General for Ontario v. Attorney-General for Can-
ada, [1912] A. C. 571. In Webb v. Outrim, [1907] A. C. at pp.
90-1, their lordships declared themselves unable to acquiesce in
any such principle of construction as would rest on the know-
ledge of those who framed the Australian Constitution, and their
supposed preference for this or that model which might have been
in their minds. In the course of the argument before the Privy
Council of Canada in January, 1912, upon the question whether
the Dominion Government should veto the Alberta Act of 1910

C.F.S. — 2

18 Canada’s federal system.

strument, such as the British North America
Act, if the text is explicit, the text is conclusive,
alike in what it directs, and what it forbids.
When the text is ambiguous, as for example,
when the words establishing two mutually exclu-
sive jurisdictions are wide enough to bring a
particular power within either, recourse must be
had to the context and scheme of the Act. Again,
if the text says nothing expressly, then it is not
to be presumed that the Constitution withholds
the power altogether. On the contrary, it is to
be taken for granted that the power is bestowed
in some quarter unless it be extraneous to the
statute itself (as, for example, a power to make
laws for some part of His Majesty’s dominions
outside Canada) or otherwise is clearly repug-
nant to its sense. For whatever belongs to self-
government in Canada belongs either to the Do-
minion or to the provinces, within the limits of
the British North America Act.” At the same
time the character of this statute must of course
be borne in mind. As has been well said, ‘* The
British North America Act conferring legisla-
tive powers is not to be construed rigorously,
like a penal Act conferring judicial powers.'”‘
A liberal construction must be given to it as a
constitutional statute conferring and distribut-

respectlng the Alberta and Great Waterways R. W. Co., Mr.
Newcombe, Deputy-Minister of Justice, remarks: “Of course the
British North America Act must mean the same thing now that it
did when it was passed.” Reference, however, may be usefully
made on this point to the Australian case of Attorney-General of
New South Wales v. Brewery Employees’ Union (1908), 6 C. L. R.
469.

••Per Sanborn, J., In Paige v. Griffith (1873), 18 L. C. J. at
p. 122.

THE ACTUAL CONDITIONS OF CANADA. 19

ing high and large powers of government, both
as to Canada and the provinces.

One more general observation is suggested by
the words of a recent judgment of the Judicial
Committee of the Privy Council.* In estimating
the relation of Canadian legislation to the provi-
sions of the British North America Act relating
to the distribution of legislative power, it is pro-
per to remember that some points of view may be
more natural to a young and growing community
interested in developing the resources of a vast
territory as yet not fully settled than they could
possibly be in the narrow and thickly populated
area of such a country as England; and gener-
ally to bear in mind the actual conditions of
Canada. In the same spirit their lordships ob-
serve in their recent judgment just referred to
that * ‘ The needs of one country may differ from
those of another, and Canada must judge of
Canadian requirements.” °

* City of Toronto v. Canadian Pacific R. W. Co., [1908] A. C.
54, at p. 58.

‘ [1912] A. C. at p. 587. See, also, infra pp. 177-8.

I

CHAPTER in.

The Crown in Canada.’

1. The Crown one and indivisible.— In a very
recent Canadian appeal the Privy Council have
concisely dealt with the position of the Crown
in Canada as follows :^ ” In 1763, Canada and all
its dependencies with the sovereignty, property
and possession, and all other rights which had
at any time been held or acquired by the Crown

* For authorities generally in reference to the Crown, see,
also. Law of Legislative Power in Canada, pp. 72-184. And on
the general subject of the Crown in the Dominions, and Colonial
Governors, see Keith’s Responsible Government in the Dominions
(1912), vol. 1, pp. 83-353. As to Crown property see infra, pp.
709-10. See, also, an article on The Crown as representing the
State, by P. Cobbett (1903), 1 Common w. L. R. 23, 145. In March,
1875, the Dominion House of Commons, as the time allowed for
the exercise of the Dominion veto power in respect to a certain
New Brunswick Act relating to education (being the Act held
intra vires by the Privy Council in Maker v. Totcn of Portland,
infra, pp. 631-2) had elapsed, addressed the Crown in favour of a
modification of the law through Royal influence. The Crown,
however, by a despatch from Lord Carnarvon of October 18th,
1875, pointed out that while, as the Address admitted, the passing
of an Act to affect the provincial law would be unconstitutional,
as the matter was one of local interest, the attempt to exercise
the Royal authority by way of an appeal to the province to amend
the law would also be unconstitutional, and there the matter
ended, as New Brunswick stuck to its decision not to establish
separate schools: Can. Sess. Pap. 1877, No. 89, p. 434; Keith’s
Responsible Government in the Dominions, vol. 2, p. 690. For a
recent petition direct to the Crown on behalf of the Indians of
British Columbia, see infra, pp. 713-4,

* Attorney-General of Canada v. Cain, [1906] A. C. 542, at pp.
545-6. In this decision the Judicial Committee affirmed the
authority of the Dominion parliament to enact provisions for the
deportation from Canada of aliens as provided in the Alien Labour
Act See this case further noticed infra, p. 304.

THE CROWN IN CANADA. 21

of France, were ceded to Great Britain. Upon
that event the Crown of England became pos-
sessed of all legislative and executive powers
within the country so ceded to it, and save so far
as it has since parted with these powers by legis-
lation, royal proclamation, or voluntary grant,
it is still possessed of them . . The Imper-
ial Government might delegate those powers to
the Governor or the Government of one of the
Colonies either by royal proclamation, which has
the force of a statute, or by a statute of the Im-
perial parliament, or by a statute of a local par-
liament to which the Crown has assented. If
this delegation has taken place, the depositary or
depositaries of the executive and legislative
powers and authority of the Crown can exercise
those powers and that authority to the extent
delegated as e:ffectively as the Crown could itself
have exercised them.”

The prerogative of the Crovni runs in Canada
to the same extent as in England ; and the prero-
gative of the King, when it has not been ex-
pressly limited by Imperial statute, or by valid
local law or statute, is as extensive in His
Majesty’s colonial possessions as in Great Bri-
tain. As has been well said : * ‘ For the purpose
of entitling itself to the benefit of its prerogative
rights the Crown is to be considered as one and
indivisible throughout the Empire, and is not to
be considered as a quasi-corporate head of sev-
eral distinct bodies politic (thus distinguishing
the rights and privileges of the Crown as the
head of the Government of the United Kingdom
from those of the Crown as head of the Govern-

22 Canada’s federax system.

ment of the Dominion, and, again distinguishing
it in its relation to the Dominion and to the sev-
eral provinces of the Dominion).”^’

Thus His Majesty’s prerogative rights over
the Dominion of Canada as the fountain of hon-
our” or of mercy'”‘ have not been in the least
degree impaired or lessened by the British North
America Act. So, again, whatever rights and
prerogatives the Crown has when suing in re-
spect of Imperial rights, it has the same when
suing in the Colonies. And so it was held in one

-* Per strong, J., in The Queen v. Bank of Nova Scotia
(1885), 11 S. C. R. 1, at p. 17. The same learned judge In
Attomey-Oeneral of Canada v. Attorney -Oeneral of Ontario (fre-
quently siwken of as the Pardoning Power case) (1894), 23 S. C.
R. at p. 469, says : ” That the Crown, although it may delegate
to its representatives the exercise of certain^rerogatives, cannot
voluntarily divest itself of them, seems to i>e a well-recognized
constitutional canon.” The two Australian cases. The King v.
Sutton (1908), 5 C. L. R. 789, and Attorney-General of Neto South
Wales V. Collector of Customs (1908), ibid. 818, may also be re-
ferred to in this connection.

“” It may be of interest to put upon record the practice at the
present time in regard to conferring Imperial honours upon
Clanadians. The writer has taken some pains to ascertain this,
and is informed upon the best authority as follows: The practice
is for the Governor-General, when invited to do so, to make re-
commendations to the Secretary of State for the Colonies. It is
customary for him on such occasions, as a matter of courtesy
and expediency, before sending his list home, to show it to his
Prime Minister, asking him (1) if he has any objection to any
of the names on the list, and (2) if there are any names he would
like to add thereto. But this is to the Prime Minister as dis-
tinct from the Cabinet, who have no collective responsibility in
the matter. This is the rule. The Governor-General naturally
pays much deference to his Prime Minister’s wishes, though there
have been cases where honours have been conferred on Canadians
resident in Canada without even the knowledge of the Prime
Minister. Such instances are, however, comparatively rare. Of
course there must be some responsible Minister for the grant
of every honour. In the case of honours conferred upon Cana-
dians resident in the Dominion, the responsible adviser is the

THE CEOWN IN CANADA. 23

case that the Crown as represented by the Do-
minion Government had, when claiming in New
Brunswick as creditor of a bank, priority over
other creditors of equal degree according to the
general rule of English law.'”‘

But the Crown is a party to and bound by
both Dominion and provincial statutes so far as
such statutes are intra vires, that is, relate to
matters placed within the Dominion and provin-
cial control respectively by the British North
America Act.^^ And generally, although as we
have seen the British North America Act de-

Secretary of State for the Colonies. The prerogative of honour is
not one of those delegated to the Governor-General: (see Todd’s
Pari. Gov. in Brit. Col., 2nd ed., p. 313). In Canada the pro-
vincial governments do not recommend names for Imperial hon-
ours. In Australia, on the other hand, State Governors do make
recommendations t9 the Crown, as well as the Governor-General,
but are required t© -send to the Governor-General the list of hon-
ours so recommended: Article by Professor Harrison Moore in
Journal of Soc. of Compar. Legisl., N.S., 1903, p. 125. The preroga-
tive of mercy is specially delegated to the Governor-General in his
instructions, but not since 1905 as to offences against provincial
laws. See A. B. Keith’s Responsible Grovemment in the Dominions,
(1912) Vol. 1, at pp. 1565-6. See, also, on the whole subject of
the prerogative of mercy in the Dominions, Keith op. cit. Vol.
3, pp. 1386-1422. And a reference to the following parliamentary
papers 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 seg.); Imp. Pari. Pap. North Amer.,
1879, No. 99. See, also, infra p. 386, and Legislative Power in
Canada, pp. 180-184.

** Liquidators of the Maritime Bank of Canada v. Receiver-
General of New Brunswick, [1892] A. C. 437, affirming the Courts
below, 20 S. C. R. 695, 27 N. B. 379. So, too. Queen v. Bank of
Nova Scotia (1885), 11 S. C. R. 1; Maritime Bank v. The Queen,
17 S. C. R. 657. See, also. Exchange Bank v. The Queen (1886),
11 App. Cas. 157; and Legislative Power in Canada, pp. 72-86.

‘* In a report on a British Columbia Act respecting Work-
men’s Compensation for injuries suffered in the course of their
employment, the Minister of Justice says that he “apprehends
that it is incompetent to a provincial legislature to so legislate

24 Canada’s federal system.

clares by section 9 that * the executive gov-
ernment and authority of and over Canada
continues and is vested in the King,’ a gift of
legislative power carries with it a corresponding
executive power, even where such executive
power is of a prerogative character, unless there
be some restraining enactment.

For example, it is beyond dispute that by
virtue of their power over the administration of
justice in the province, including the constitu-
tion, maintenance, and organization of provin-
cial Courts, provincial legislatures may confer
power on the local Executives to appoint judicial
officers to preside over such Courts, provided
they do not contravene the provisions of section
96 of the British North America Act, that ‘ the
Governor-General shall appoint the judges of
the Superior, District, and County Courts in
each province. “‘ And when in 1887 the Ontario
Government submitted to the law officers of the
Crown in England the question whether provin-
cial legislatures have power to appoint or to
authorize the Lieutenant-Governor to appoint
Queen’s Coimsel, they responded that in their
opinion provincial legislatures had this power
under No. 4 of section 92 of that Act, which
assigns to them the establishment and tenure
of provincial offices, the appointment of Queen’s
Counsel being the appointment to an office.”* And

as to impose a liability upon the Crown in right of Canada, and
that in so far as this Act is intended to have that effect, it is
ultra vires.” Prov. Legisl.. 1901-3, pp. 83-84.

‘• Ont Sess. Pap., 1888, No. 37, at p. 30. And see now Queen’s
Counsel Case, [1898>A. C. 247, 23 O. A. R. 792, over-ruling
Lenoir t. Ritchie (1879), 3 S. C. R. 575.

THE CROWN IN CANADA. 25

SO the Privy Council have held that a colonial
Act assented to by the Crown through its auth-
orized representative can interfere with and
regulate the exercise of the prerogatives of the
Crown as the fountain of justice, so far as the
rights of those under its jurisdiction are con-
cerned, as by restricting the right of appeal to
the King in Council.^’

2. The representatives of the Crown in Can-
ada. — The Crown, however, is represented in
Dominion affairs by the Governor-General, and
in provincial affairs by the Lieutenant-Gover-
nors of the provinces, for although long doubted,
it is now decided by the ultimate Court of
Appeal, that Liieutenant-Governors of provinces,
when appointed, are as much the representatives
of His Majesty for all purposes of provincial
government as the Governor-General himself is
for all purposes of Dominion government.’ And,

” See Cuvillier v. Aylwin (1832), 2 Kn. P. C. 72; The Queen
V. Edulgee Byramjee, (1846) u Mo. P. C. at p. 295; In re Wi
Matua’s Will, [1908] A. C. 448; Mowat v. Casgrain, (1896) R. J.
Q. 6 Q. B. 12, infra, p. 297. And see, further, as to Executive
power being derived for legislative power: Legislative Power in
Canada, at pp. 123-176.

‘Liquidators of the Maritime Bank of Canada v. Receiver-
General of New Brunsvnck, [1892] A. C. 437, and for the
authorities generally, see Law of Legislative Power in Can-
ada, pp. 90-122. As to the Lieutenant-Governor of the North-
West Territories only having power to approve or reserve mea-
sures, but none to withhold assent, see report of Minister of
Justice of February 10th, 1876: Hodgins’ Prov. Legisl.. 1867-1895,
p. 1279; and as to when he should do so: see ibid. pp. 1276-7. As
to the provincial Attorney-General being the proper officer to
assert the rights of the Crown in the Courts of the province, even
in respect to the violation of rights created by a Dominion Act
and to enforce the criminal law of the Dominion: see Attorney-
General of Ontario v. Niagara Falls International Bridge Co.,

26 Canada’s federal, system.

as has been pointed out, althougli, speaking gen-
erally, provincial legislatures have power to
amend, from time to time, notwithstanding any-
thing in the British North America Act, the
Constitution of the province, they have no such
power as regards the office of Lieutenant-Gover-
nor,* because the Lieutenant-Governor repre-
sents the Crown. At the same time, as has been
judicially stated,** this, no doubt, does not inhibit
a statutory increase of powers and duties ger-
mane to the office being imposed on the Lieuten-
ant-General of the provincial Government, as, for
example, the power of commuting and remitting
offences against the laws of the province, or
offences over which the legislative authority of
the province extends. It means rather, in words
of Mr. Edward Blake, ” that those elements of

(1873) 20 Gr. 34; Attorney-General of Ontario, ex rel. Barrett v^
International Bridge Co. (1881), 28 Gr. 65, 6 A. R. 537; Monk T.
Ouimet, (1874) 19 L. C. J. 71. As to the Attorney-General of the
province being the proper authority to grant a fiat for set. fa.
proceedings to set aside a patent: see Queen v. Pattee, (1871)
5 O. P. R. 292. For an unsuccessful attempt to hold responsible the
members of a provincial Executive Council who had concurred
in an uJtra vires Order in Council for the sale of Crown lands,
and in the execution of a deed of the same to a purchaser pur-
suant to such Order in Council, see Church v. Middlemiss, (1877)
21 L. C. J. 319, afterwards referred to in Liquidators of the Mari-
time Bank of the Dominion v. Receiver-Oeneral of the province
of New Brunsicick (1889) 20 S. C. R. at p. 698. And see as to
the province of Quebec, Black r. The Queen, (1899) 29 S. C. R.
693. In the Australian cases of King v. Governor of the State
of South Australia (1907), 4 C. L. R. 1497, and Horioitz v. Connor
(1908) 6 C. L. R. 39, the High Court of the Commonwealth 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. See, also, Attorney-
General v. Ewen (1895), 3 B. C. 468.

* Section 92, No. 1.

*• See infra, p. 385.

THE ROYAL PREROGATIVE IN CANADA. 27

the Constitution which can be properly deemed
to be parts of the Constitution relating to the
office of the Lieutenant-Governors, are not to be
changed ; and for an obvious reason, because the
Lieutenant-Governor is the link between the
federal and the provincial, aye, and between the
Imperial and the provincial authority; he is the
means of comrmmication, he is the chain and
conduit of Imperial as well as federal connec-
tion; and, therefore, his office in the Constitu-
tion, his constitutional position as a federal offi-
cer, is not to be affected.” *”

The Governor-General and the Lieutenant-
Governor, then, being alike, in their respective
spheres, the representatives of His Majesty, the
question remains how far and in what manner
they are invested with the power and duty of
exercising his royal prerogatives. As to this
it would seem that, in accordance with the gen-
eral law of the Empire, such powers of the
Crown as are not expressly or impliedly confer-
red by the British North America Act, or
dealt with by statute, local or imperial, exist,
whether in the Governor-General or in the pro-
vincial Lieutenant-Governors, only by delega-
tion from the Sovereign, and, until so controlled
by statute law, can be v^ithdrawn or modified and
regulated, by the Sovereign, acting under the
advice of his Imperial Ministers, as to the Gov-
ernor-General directly, and as to Lieutenant-
Governors mediately through the Governor-
General. For it is well decided that a colonial
governor under the British system is not a

*” Published argument in Pardoning Power case in Ontario
Court of Appeal (19 O. A. R. 31).

28 Canada’s federal system.

viceroy, but is vested with an authority limited
by the terms of his commission and instructions ;
and, of course, by the terms of any statute con-
ferring authority upon him, or regulating his
powers. And, therefore, it seems impossible to
accept as correct the theory advanced in 1886 by
the Ontario Government, and supported by some
few recent judicial utterances, that provincial
lieutenant-governors are entitled, virtute officii,
and without express statutory enactment, or
express delegation from the Crown, to exercise
all prerogatives incident to executive authority
in matters over which provincial legislatures
have jurisdiction; and that the Governor-Gen-
eral, in like manner, is entitled, virtute officii,
and without any statutory enactment, or express
delegation from the Crown, to exercise all pre-
rogatives incident to executive authority in mat-
ters within the jurisdiction of the federal par-
liament. According to this view the Governor-
General and the Lieutenant-Governors became,
in place of the Queen whose deputies they were,
the sovereign authorities of the Dominion and
the provinces respectively when the British
North America Act, 1867, came into force, al-
though that Act by section 9 expressly enacts
that * the executive authority over Canada is
declared to continue and be vested in the Queen, *
and by several other express provisions seems
very clearly to show that all prerogative func-
tions and powers not in some way bestowed by it
upon the Governor-General or the Lieutenant-
Governors remain vested in the Sovereign. But
this is not saying that executive power is not in-

THE ROYAL PKEEOGATIVE IN CANADA. 29

eluded in legislative power. The Queen’s Coun-
sel case,*” is clear authority that it is. Their
lordships there say: — “By the combined effect
of these enactments ” {sc. Nos. 1, 4, and 14 of
section 92 of the British North America Act)
“it is entirely within the discretion of the pro-
vincial legislature to determine by what officers
the Crown, or, in other words, the Executive
government of the province, shall be represented
in its Courts of law or elsewhere, and to define
by Act of parliament the duties whether sub-
stantial or honorary, which are to be incumbent
upon these officers, and the rights and privileges
which they are to enjoy. The (Ontario) Revised
Statute of 1877, in so far as it relates to the ap-
pointment of Queen’s Counsel, is, in the opinion
of their lordships, within the limits of that
authority; and, that being so, there appears to
them to be no ground for the suggestion that its
provisions when given effect to by the Lieuten-
ant-Governor will constitute an encroachment
upon the prerogative of the Crown, or upon the
rights of any representative of the Crown to
whom, by the terms of his commission, the right
of appointing Counsel to represent the Sov-
ereign may have been delegated.” The mat-
ter may perhaps be deemed rather of theo-
retical interest than of practical importance, but
unforeseen emergencies may arise in the history
of the Empire when the preservation of the cor-
rect constitutional theory may prove of supreme
moment.”

*« [1898] A. C. 247.

‘ See Law of Legislative Power in Canada, pp. 110-122, 320.
A.lso see the views and criticisms of Mr. A. B. Keith, in his Re-

30 Canada’s federal system.

3. The veto power of the Dominion Govern-
ment. — Before leaving the subject of the Crown
in the Constitution of the Dominion, it is right
to notice the veto power which the Federal Gov-
ernment possesses over provincial legislation,
which is a special feature of the Constitution of
Canada distinguishing it from that of the United
States. In words of the Privy Coimcil :” ” Under
the Constitution of the United States, each State
may make laws for itself, uncontrolled by the
federal power, and subject only to the limits
placed by law on the range of subjects within its
jurisdiction.” But in the case of Canada, the
British North America Act ” makes an elaborate
distribution of the whole field of legislative
authority between two legislative bodies, and
at the same time provides for the federated pro-

sponsible Government in the Dominions, (1912) Vol. II., pp. 654-
664. He says (p. 656): ‘The real position of the Lieutenant-
Governor is that he is the wielder of the executive power of the
province, in its entirety, just as a Colonial Governor wields the
power of the Colony. Some confusion has crept into the discus-
sion of his position as the result of the vague use of the ‘ (‘word’)
‘ prerogative. In its widest sense all executive government may
be called a part of the prerogative, but the term is perhaps more
generally applied merely to that portion of the executive authority
which rests not on statute but on the common law. It may be
more convenient to adopt the wider use of the term, and to
ascribe to the Governor of a Colony and the Lieutenant-Governor
of a province the royal prerogative, but it must be remembered
that the prerogatives they wield are those appropriate to a
Colony or province, and, as has been already seen, these prero-
gatives are not co-extensive with those of the Crown in the
United Kingdom. . . The executive power is vested in the
Crown and Its representatives: it is not conferred but regulated
by law. The only real question is what prerogatives are neces-
sary for the provincial form of Government, and differences of
opinion as to these matters are of course possible.’ See, alsr
op. cit. Vol. 1, pp. 105-146.

‘Bank of Toronto v. Lambe (1887), 12 App. Cas. at p. 587.

DOMINION VETO POWEE. 31

vinces a carefully balanced Constitution, under
which no one of the parts can pass laws for itself,
except under the control of the whole, acting
through the Governor-General.” This Federal ^

v^eto power is that principle of central control of
which the late Mr. Cardwell, as Secretary of
State for the Colonies, says, in a despatch to the
Governor-General of December 3rd, 1864,^ ac-
knowledging the receipt of Quebec Resolutions ;
” The importance of this principle cannot be
overrated. Its maintenance is essential to the
practical efficiency of the system, and to its
harmonious operation, both in the general gov-
ernment and in the government of the several
provinces.”

It is important, then, to note, first of all, the
precise character of this veto power, and, then,
how we find it in fact being exercised after
nearly half a century of Confederation.

By virtue of sections 56 and 90 of the British
North America Act an authentic copy of every
provincial Act has to be sent to the Governor-
General, and if the Governor-General in Council,
within one year after receipt thereof, thinks fit
to disallow the Act, such disallowance, being
signified by the Governor-General in the manner
prescribed, shall annul the Act from and after
the day of such signification. Thus one year,
and no longer period, is allowed within which a
provincial Act may be disallowed by the Gover-
nor-General in Council ; and however detrimen-
tal, from the point of view of the federal Govern-
ment, experience of its working may have shewn

‘ Can. Sess. Pap., 1865, Vol. 24, No. 12, p. 11.

32 Canada’s federal system.

it to be, it cannot afterwards be vetoed. More-
over provincial Acts, if disallowed, must be
disallowed altogether; this or that clause of an
Act cannot be vetoed without the remainder.*
And as Sir John Thompson, in a report to the
Governor-General of December 27th, 1893, in
respect to certain British Columbia Acts,* points
out, there is no power vested in the Governor-
General ** to make a conditional disallowance, or
to . . suspend the operation of a statute,
so that the same may have no force or effect until
and unless it be assented to by a majority of the
members of a legislature constituted differently
from that which exists. ‘ ‘ Moreover the Domin-
ion House of Commons cannot constitutionally
interfere with the operation of provincial Acts
by passing resolutions urging their disallowance
by the Governor-General. ** If such a resolution
were allowed to have effect, it would amount to
a virtual repeal of the section of the British
North America Act, 1867, which gives the exclu-
sive right of legislating on these matters to the
provincial legislatures. ” ”

•Hodgins’ Prov. Legisl., Vol. I., at pp. 674-5. On the other
hand as Sir John Thompson points out In his report on the
disallowance of the Quebec Act respecting District Magistrates,
affirmed by Order in Council of January 22nd, 1889, (Hodgins’
Prov. Legisl., 1867-1895, p. 357) the allowance of provincial legis-
lation by the Dominion Government is not, in all cases, an ad-
mission of the validity of such legislation, having the effect of
depriving the Federal authority of the right or power of disallow-
ing statutes similar to those which have been permitted to go
into operation.

•Provincial Legislation, 1867-1895, p. 1146.

“Despatch of the Secretary of State for the Colonies to
the Governor-General of June 30th, 1873; Hodgins’ Prov. Legisl.,
1867-1895, p. 701-2.

INTERVENTION OF IMPERIAL GOVERNMENT. 33

Lastly, it is to be observed that no direct
power of confirmation or disallowance of Acts
of the provincial legislature rests with the
Imperial authorities. The latter, however,
not unfrequently intervenes, through the Sec-
retary of State for the Colonies, by despatch
to the Governor-General, with proposed or
actual provincial legislation, by way of ob-
jection thereto, when the occasion arises. Thus
in 1909 we find the Secretary of State for
the Colonies suggesting the omission from an
Ontario Act of certain clauses purporting to
restrict the right of appeal to the Privy Coun-
cil;” and about the same time, he, also, inter-
vened in respect to Ontario legislation under
which it was proposed to levy duties on property
passing on death not locally situate in the pro-
vince. The Dominion Government called his
remonstrances to the attention of the Ontario
Government, and asked to know what course they
intended to pursue.” Again in 1911 the Secretary
of State for the Colonies intervened in the inter-
est of members of the English Institute of Char-
tered Accountants with an Ontamo Act, relating
to persons practising as accountants in Ontario ;
and the Minister of Justice recommended dis-
allowance,^^ and the Act was disallowed accord-
ingly. The power of the Imperial authorities to

” Report of Committee of Priry Council, approved April 27th,
1909.

” Report of Sir A. Aylesworth, Minister of Justice, of October
18th, 1909. See, also, infra, pp. 402-11.

” Report of Sir A. Aylesworth, Minister of Justice, of March
23rd, 1911.

C.F.S. — 8

34 Canada’s ffdeeal system.

disallow a Dominion Act within two years after
receipt thereof by a Secretaiy of State is i)re-
served by section 56 of the British North Amer-
ica Act.”‘

And now as to the principles on which the fed-
eral veto power is and should be exercised. By
what seems a perfectly somid and natural de-
velopment of constitutional theory, a change of
view has established itself since the early days of
Confederation. Even so late as 1882 we find a
Quebec appellate judge statiug that M the true
check for the abuse of (provincial) powers, as
distinguished from an unlawful exercise of them,
is the power of the central government to dis-
allow laws open to the former reproach.]'” We
must consider such a view as this now finally dis-
carded. The change which has come over the
authoritative view in this matter cannot be more
concisely expressed than it was by Sir Allen
Aylesworth, then Minister of Justice, in the
course of a debate in the House of Commons, on
March 1st, 1909, upon a motion for a return of
all correspondence, etc., relating to the unsuc-
cessful application for the disallowance of the
Ontario Act, 7 Edw. VII. c. 15, respecting Cobalt
Lake and Kerr Lake, whereby claims to certain
mining properties then pending in the Courts

Has to the power of reservation by the Grovernor-General,
and of disallowance by the Imperial Governments see Keith’s
Responsible Government in the Dominions (1912) Vol. 3, p. 1007
et seq.; and the reports and Imperial despatches relating to
Imperial supervision over Dominion legislation, collected in
Hodglns’ Prov. Legisl. 1867-1895, pp. 6-60. See, also, infra p. 56.

” Per Ramsay, J., in The Corporation of Three Rivers v.
Suite, 5 L. N. at pp. 334-5.

DOMINION VETO POWER. 35

were overridden/’^ He there says: ** The large
question of principle which was presented for
consideration was simply whether or not the
provincial legislature has the power, without
control, to take one man’s property and give it
to another, and to take away from the person
injured any right of redress in the Courts . .
I think I may safely say that, if this identical
question had arisen before 1896, this legislation
would have been disallowed. And I will say at
once that I believe that was the intention with
which the f ramers of the British North America
Act provided the right of disallowance in the
statute.” He then quotes various official utter-
ances of judges and Ministers of Justice to shew
that, even as late as 1893, the authoritative view
was, that if provincial legislation interfered with
rights of property without providing compen-
sation, that circimistance afforded sufficient rea-
son for the exercise of the power of disallow-
ance; but, that his immediate predecessors in
office — citing words of the Hon. David Mills, in
1901, and the Hon. Charles Fitzpatrick, in 1902
— ^had expressed a different \dew, in which he
fully concurred, viz., that each provincial
legislature, within the sphere of its authority
and jurisdiction, should be supreme and amen-
able only to its constitutional judges, the electors
of its own pro”sdnce.^^*

The Dominion Government, of recent years,
has repeatedly recognized and acted on this prin-

” Debates in Canadian House of Commons, March 1st, 1909,
Vol. 89, pp. 1750-1758.

“” See Hodgins’ Prov. Legisl. 1901-3, pp. 4, 46.

36 Canada’s federal STSXEii.

ciple. Thus, unsuccessful attempts to procure
the disallowance of provincial Acts upon the
grounds of manifest injustice and interference
with vested rights, were made in the case of a
Nova Scotia Act of 1899 ;^” and again in 1901, in
reference to an Ontario Act, where the Minister
of Justice says, in a report of December 31st,
1901: “It is no doubt intra vires of the legis-
lature, and if it be unfair, or imjust, or contrary
to the principles which ought to govern in deal-
ing with private rights, the constitutional re-
course is to the legislature, and the acts of the
legislature may be ultimately judged by the
people. The undersigned does not consider,
therefore, that your Excellency ought to exer-
cise the power of disallowance in such cases ;”^^
and, again, the same year, in connection with a
British Columbia Act, where the Minister takes
precisely the same ground in a report of Decem-
ber 31st, 1901.” And in the correspondence
with the Department of Justice in reference to
this last Act, the Attorney-General of British
Columbia tenders an explanation of why the
idea of disallowing provincial Acts, in such
eases ae the above, has been discarded by the
Federal Government, which is worth noting. He
says: ” In the early days of Confederation, the
Dominion Executive appears to have been im-
bued with the notion that the relation between
the Dominion and the provinces was analogous
to that existing between parent and child, and

” Provincial Legislation, 1899-1900, p. 52 seg.
“Provincial Legislation, 1901-3, at p. 4.
“Ibid. p. 46.

DOMINION VETO POWER. 37

to have acted accordingly. That view of the
status of the provinces has been overthrown by
a series of Imperial Privy Council decisions,
which have clearly established that the prov-
inces, acting within the scope of their powers,
are almost sovereign States, and that they are
entitled to exercise all the prerogatives of the
Crown not conferred upon the Dominion.” ”

Again, in 1904, an unsuccessful attempt was
made to procure the disallowance of a Manitoba
statute respecting the town of Emerson, which
had become insolvent, on similar grounds, and
also on the ground that the legislation in ques-
tion would have the effect of shaking the con-
fidence of financial institutions in Canadian
securities, the Minister declaring that ‘* he does
not consider that he can consistently with the
practice which has grown up in such cases, re-
view the propriety of the legislation, or recom-
mend it for disallowance on the ground of its
supposed injustice to any individual.” ^”^

But, probably, the final quietus to any sup-
posed constitutional power in the Dominion
Government to veto provincial Acts on the
ground of unjust interference with vested rights
has been given by the proceedings and corres-
pondence which took place between the Domin-
ion and Ontario Governments in reference to
the suggested disallowance of the Ontario Power
Commission Amendment Act, 1909, a statute

“As to prerogatives of the Crown the qualification should
probably have been added: “so far as necessarily and properly
Incidental to the powers of legislation conferred upon them by
the British North America Act”: see supra, pp. 27-9.

=” Provincial Legislation, 1904-1905, pp. 91-99.

38 Canada’s federal system.

which was passed in aid of the policy of the
Ontario Government which had established the
Hydro-Electric Power Commission in that pro-
vince, with statutory powers to supply electrical
energy to the municipalities of the province.
This Act made alterations in contracts thereto-
fore executed between certain municipal cor-
porations and the Commission, and declared
that the contracts so altered ‘ shall be conclu-
sively deemed to be contracts executed by the
corporations ‘; and enacted that every action
theretofore brought, and then pending, calling
in question the validity of the said contracts, or
any by-laws purporting to authorize the execu-
tion of the same by the municipalities, or the
jurisdiction, power, or authority of the Commis-
sion or of any municipal corporation, to exercise
any power or do any of the acts which the Acts
passed in reference to the Commission author-
ised to be done, * shall be and the same is hereby
forever stayed.’

The most strenuous efforts were made to pro-
cure the disallowance of this Act on the grounds
that it, and the entire legislative scheme of which
it formed a part, amounted to a breach of faith
on the part of the Ontario Government, was
an unjust interference with vested rights, and
calculated to greatly injure the credit, not only
of Ontario, but of Canada as a whole, as a field
for investment, in the money markets of Europe,
inasmuch as the provincial Government thus
entered the field in competition with a number
of companies, supported mainly by English capi-
tal, which had been allowed to expend enormous

DOMINION VETO POWER. 39

sums in the construction of works for develop-
ing electric power. All was in vain; and what-
ever one may think of the morality or policy of
such legislation, there does not seem any real
doubt that the position taken by the Attorney-
General for Ontario, and acquiesced in by the
Dominion Minister of Justice, is in constitu-
tional theory perfectly sound, save, perhaps, so
far as it may seem to question the constitutional
propriety of the Federal Government vetoing
provincial legislation of such a character as is
calculated to seriously injure the credit of Can-
ada as a safe field for investment of capital.”
From the point of view of constitutional theory
it seems impossible to deny the great force of
the words of the Attorney-General of Ontario
in a communication of December 7th, 1909, in
which he says: *’ For upwards of 200 years the
Lords and Commons of Great Britain have legis-
lated without fear of the royal veto, although
its existence has been undoubted; and, there-
fore, in full accord with the spirit and genius
of British institutions, the people of the pro-
vince, being entitled to all rights of British sub-
jects elsewhere, and as free . . to legis-
late within their jurisdiction as the Lords and
Commons of Great Britain are free to legislate,
cannot submit to any check upon the right of the
legislature to legislate with respect to subjects

^ This last point came up again in the proceedings taken to
procure the disallowance of the recent Alberta legislation In
reference to the Alberta and Great Waterways Railway Company.
The legislation, however, was not disallowed. See infra, p. 42.
Cf., also, an opinion given by Mr. A. V. Dicey in reference to
the Disallowance of Provincial Acts as unjust and confiscatory,
(1909) 45 C. L. J. 457.

40 Canada’s federal system.

within its well-defined jurisdiction, although a
technical right to disallow may exist. Any other
view would mean that there are different grades
of British subjects in the Empire; that the
people of the several provinces of the Dominion
have not, and are not entitled to, the full and
free enjoyment of those civil rights and liberties
which are enjoyed by British subjects in the
mother country, a condition of things which
would be intolerable.” And so Sir Allen Ayles-
worth, as Minister of Justice, in his final report
against disallowance, says: ” In the opinion of
the undersigned, a suggestion of the abuse of
power, even so as to amount to practical con-
fiscation of property, or that the exercise of a
power has been unwise or indiscreet, should
appeal to your Excellency’s Government with
no more effect than it does to the ordinary tri-
bunals, and the remedy in such case is, in the
words of Lord HerscheU, an appeal to those by
whom the legislature is elected.’*

It is unlikely, also, that the Federal Govern-
ment will often hereafter disallow provincial
Acts on the ground that they are ultra vires, un-
less they are seriously injurious to Imperial or
Dominion policies or interests. There is great
force in the position taken up by the Govern-
ment of British Columbia in a communication
to the Department of Justice of August 22nd,
1905, in connection with the suggested disallow-
ance of a British Columbia statute of that year,
requiring commercial travellers and other per-
sons not resident in the province to take out a
license before soliciting orders therein, namely,

DOMINION VETO POWER. 41

that — ‘* unless the Bill should be a clear and pal-
pable attempt on the part of the province to in-
vade the legislative field of the Dominion par-
liament, provincial Acts should not be disal-
lowed by the Governor-General-in-Council on
constitutional groimds only. The effect of dis-
allowance, except on the principle mentioned, is
to make the Minister of Justice the highest judi-
cial dignitary in the land for the determination
of constitutional questions, and in reality above
the Supreme Court of Canada. The decisions
of the Supreme Court of Canada are open to
question in the Judicial Committee of the Privy
Council. From the decisions of the Minister of
Justice there is no appeal. He stands alone.*’ ^*
However, some statutes of the province of Sas-
katchewan of 1909, incorporating certain Loan
& Investment & Trust Companies, and purport-
ing to vest them with power to do business be-
yond the limits of the province, were disallowed
on this ground, pursuant to a report of the Min-
ister of Justice of January 9th, 1911, who says :
‘* It is the duty of your Excellency’s Govern-
ment when persuaded by authority, or upon due
consideration, that a provincial enactment is
ultra vires of the legislature, to see that the pub-
lic interest does not suffer by an attempt to sanc-
tion locally laws which can derive their author-
ity only from the Parliament . . Great con-
fusion and hardship may result from a statu-
tory corporation carrying on a trust or invest-
ment business in excess of its corporate powers.”
And a Quebec Act of 1910, amending the charter

=== Provincial Legislation, 1904-1906, pp. 148-149.

42 Canada’s federal system.

of a company named the General Trust, was dis-
allowed because it conferred upon the company
powers which the Minister of Justice considered
*’ infringed upon the subject of banking; and,
also, because it apparently authorised the com-
pany to carry on a general business throughout
Canada/’

The whole subject of the Dominion veto
power was gone into at great length in the
recent application before the new Conservative
Government asking for the disallowance of the
Alberta Act of 1910, c. 9, whereby the Alberta
legislature purported to confiscate to the general
revenue fund of the province certain moneys
then on deposit with certain banks, the proceeds
of the sale of bonds of the Alberta and Great
Waterways Railway Company, the said moneys
having been paid and deposited as aforesaid by
the purchasers under an arrangement with the
Alberta Government, and the railway company,
confirmed by Alberta statute and Orders in
Council, that they were only to be ^aid out, from
time to time, to the railway company, or its
nominee, in monthly payments, as the construc-
tion of the line proceeded. The Act, however,
guaranteed the bonds, and provided for thie in-
denmification of the railway company.”‘ On the
application which was argued orally before a
Committee of the Privy Council of Canada in
January, 1912, it was contended that the Act was
ultra vires as designed to raise provincial rev-

“•The Act was afterwards held ultra vires by the Privy
Council: Royal Bank of Canada v. The King, [1913] A. C. 283.
See infra, p. 504 et aeq.

DOMINION VETO POWER. 43

enue in a manner not authorised by the British
North America Act, and as interfering with the
exclusive authority of Parliament with regard
to banking; and that it unjustly diverted the
proceeds of the bonds from the purpose of the
construction of the road for which they had been
raised and deposited, and injuriously affected
the general credit and reputation of the Do-
minion. Mr. Doherty, however, in his report as
Minister of Justice, dated January 20th, 1912,
and duly approved by Order in Council, advised
against disallowance, but at the same time he
distinctly asserts that the veto power may con-
stitutionally be exercised on the ground of hard-
ship and injustice to the rights affected. He
says: ” There was considerable discussion at the
hearing as to the practice and precedents in
respect of disallowance of legislation by reason
of unjust provisions, or because of its interfer-
ence with vested rights or the obligations of con-
tract, and a recent report of the predecessor in
office of the undersigned was quoted as shewing
that the Governor-General should in no case be
advised to disallow for such reasons. It is true,
as has been frequently pointed out, that it is
very difficult for the Government of the Domin-
ion, acting through the Governor-General, to re-
view local legislation or consider its qualities
upon questions of hardship or injustice to the
rights affected, and this is manifest not only by
expressions in reports of the Ministers, but also
by the fact that but a single instance is cited in
which the Governor-General has exercised the
power upon these grounds alone. The under-

44 Canada’s federal system.

signed entertains no doubt, however, that the
power is constitutionally capable of exercise,
and may on occasion be properly invoked for
the purpose of preventing, not inconsistently
with the public interest, irreparable injustice or
undue interference with private rights or prop-
erty through the operation of local statutes intra
vires of the legislatures. Doubtless, however^
the burden of establishing a case for the execu-
tion of the power lies upon those who allege it,
and, although the undersigned is not prepared
to express approval of the statute in question,
which he feels must be regarded as a most re-
markable execution of legislative authority, he
is nevertheless not satisfied that a sufficient case
for disallowance has been established either on
behalf of the bondholders, the Bank, or the com-
panies, especially when it is considered that the
legislation sanctioned by the Assembly evidences
as it does a very deliberate and important fea-
ture in the policy of the local Government . .
The undersigned apprehends that it is sufficient
for present purposes to say that he is not con-
vinced, after the very thorough discussion to
which the matter was subjected, that it was pre-
judicial to the credit of the Dominion, or not
advisable in the interests of the province, to take
legislative measures to prevent improvident ap-
plication of these funds which had been raised
virtually upon the credit of the province, and
which the province had bound itself to repay
with interest.” “”

**i>Upon the argument the following instances were cited, all
It will be observed belonging to the earlier days after Confedera-

– > ‘ ;:IAL INTERVENTION. 45

Imperial lutcrierence to protect rights of
foreign creditors. — On the argument before
the Privy Council of Canada in this Alberta
case, Mr. Masten cited a despatch from Mr.
Joseph Chamberlain, as Secretary of State
for the Colonies, to the Governor of New-
foundland, annoimcing to him the decision of
the Imperial Government not to disallow the
Newfoundland Act confirming a contract en-
tered into by the Government with a rail-
way contractor, Mr. R. G. Reid, whereby the
railways, docks, telegraphs, and steamship ser-
vice, of the Colony were transferred to him. The
despatch was printed in the ‘ Times ‘ of January
23rd, 1899, and seems to confirm the views ex-
pressed in the text. Mr. Chamberlain says:

tion, in which provincial Acts reserved for the consideration
of the Governor-General had had assent refused to them on the
ground of being contrary to sound principles of legislation:

1871, Manitoba: Hodgins’ Prov. Legisl, 1867-1895, pp. 769-70;

1872, Manitoba: ibid, pp. 772-3; 1874, Prince Edward Island:
ibid. p. 1155; 1874, Manitoba: ibid. p. 777; 1876, Prince Edward
Island: ibid. p. 1178. The following instances of reports of Min-
isters of Justice recommending disallowance on similar grounds
were cited: 1876, Quebec: ibid. pp. 275-8; 1881, Ontario: ibid. pp.
177-188-192; 1885, N. W. Territories: ibid. p. 1242; 1886, Bri-
tish Columbia: ibid. p. 1103; 1887, Manitoba: ibid. pp. 856-7; 1891,
Manitoba: ibid. pp. 941-5. Mr. Lafleur, arguing in support of the
application, contended that the new doctrine of the impropriety
of disallowance on grounds of confiscation or impairment of con-
tracts seems to have originated with Mr. Mills’ report as Minister
of Justice on a Manitoba Statute of 1898: Hodg. Prov. Legisl.,
1898, pp. 72-3. Even Mr. Mills, however, recommended the dis-
allowance of a Yukon Ordinance of 1898 on the ground that it
unjustly discriminated against classes of barristers and solicitors,
and imposed conditions which seemed impossible of performance:
Ibid. 1898, pp. 121-2. Mr. Lafleur contended that the expressed
opinions of the ten first Ministers of Justice, or acting-Ministers of
Justice, clearly show that they did not consider that the scope of
the Federal Government’s powers of disallowance were restricted

46 Canada’s federal system.

** The right to complete and unfettered control
over financial policy and arrangements is essen-
tial to self-government . . . The Colonial
Government and legislature are solely respon-
sible for the management of its finances to the
people of the Colony, and unless Imperial in-
terests of grave importance were imperilled, the
intervention of Her Majesty’s Government in
such matters would be an unwarrantable intru-
sion and a breach of the charter of the Colony.
. . It is asserted, indeed, that the contract dis-
poses of assets of the colony over which its credi-
tors in this country have an equitable, if not a
legal claim, but … I cannot admit that
the creditors of the colony have any right to
claim the interference of Her Majesty’s Goveril-

to cases of ultra vires, or of interference with federal policy; and
that the practice which had been definitely settled before the
term of oflace of Mr. Mills should be restored. As to the dicta of
the Privy Council cited infra, pp. 66, 82-4, as to the fact of legisla-
tion amounting to a practical confiscation of property not making
It ultra vires, and as to the plenary nature of the powers of Cana-
dian legislatures, he observes that the attention of the Judicial
Committee was directed there not to the case of laws which were
still in suspense, but to statutes which had got beyond the stage
of constitutional veto, and had become binding laws. Summing up
Mr. Lafleur informed the Privy Council of Canada that the num-
ber of Acts actually disallowed on grounds of injustice under
what he calls the old regime, i.e., from Confederation to 1898,
were five in number; but that in numbers of other cases the
recommendations made by the Ministers of Justice led to a
change in fhe law either by repeal or by amendment, and con-
sequently the necessity for disallowance was obviated. As to
the five cases thus referred to by Mr. Lafieur where disallow-
ance actually followed, Mr. Masten, arguing on the other side,
remarks as to them : ” I find that in two of these cases, one prin-
cipal ground of objection was that the rights of Dominion com-
panies were prejudicially affected, which always is a recognised
ground for disallowance, and therefore. It takes away from ther
strength of the remarks which are obiter on the other question.”

IMPERIAL INTERVENTION. 47

ment in this matter. It is on the faith of the
Colonial Government and legislature that they
have advanced their money, and it is to them
that they must appeal if they consider them-
selves damnified. No doubt if it was seriously
alleged that the Act involved a breach of faith
or a confiscation of the rights of absent persons,
Her Majesty’s Government would have to ex-
amine it carefully and consider whether the dis-
credit which such action on the part of the colony
would entail on the rest of the Empire rendered
it necessary for them to intervene. But no such
charge is made, and if Her Majesty’s Govern-
ment were to intervene whenever the domestic
legislation of a colony was alleged to affect the
rights of non-residents, the right of self-govern-
ment would be restricted to very narrow limits,
and complications and confusion from the divi-
sion of authority must arise. ‘ ‘ But in the course
of the same argument, Mr. Newcombe, Deputy
Minister of Justice, sitting with the Privy Coun-
cil of Canada, remarks: *’ There is a little dif-
ference between Imperial action in the disallow-
ance of a colonial Act, and Federal action here,
in that the Imperial Government disallows by
virtue of the Royal prerogative without any
advice based on the representations of the colony,
whereas here I think the interpretation of the
Judicial Committee that we have a carefully bal-
anced constitution, under which no one of the
pro^dnces can pass laws for itself, except under
control of the whole exercised by the Governor- ;

General ” (see infra pp. 188-9) ” means that his
Excellency is advised here locally under our

■

48 Canada’s federal system.

system by the representatives of all the pro-
vinces, and, therefore, there is a reason for inter-
fering locally which could not be urged in the
ease of colonial legislation dealt with at the
Court in London/’

Dominion interference on behalf of foreign
immigrants. — But provincial Acts which dis-
criminate against foreign immigrants and resi-
dent aliens are evidently treated by the Fed-
eral Government as standing on a footing of
their own, quite apart from any question
of Imperial treaty, and have been frequently
disallowed. Thus in 1899, a British Colum-
bia Act, the effect of which was that no
person other than a British subject might,
thereafter, be recognized as having any right
or interest in any of the mining properties
to which the British Coliunbia Placer Mining
Act applied, was disallowed. So, also, in 1901,
the Minister of Justice recommended the disal-
lowance, unless amended in time, of a number
of British Columbia Acts incorporating railway
companies which contained a provision, in effect,
that no aliens should be employed on them dur-
ing construction unless it were demonstrated to
the satisfaction of the Lieutenant-Governor in
Council that the work could not be proceeded
with without the employment of such aliens.
In his .report of December 27th, 1901, he puts
it on the ground that the subjects of aliens and
of immigration are within the exclusive author-
ity of Parliament, but also, that ” it has been,
and is, the policy of your Excellency’s Govern-

IMPERIAL INTERVENTION. 49

ment to promote immigration, large sums of
money being annually expended from the Do-
minion Treasury to that end. The efforts of
your Excellency’s Government would, however,
be certainly paralyzed if the immigrant, upon
coming to Canada, is to find the way of employ-
ment closed to him by provincial legislation.”
Actual disallowance, however, became unneces-
sary as the provincial authorities agreed to make
the necessary amendments.^^ Again, in 1901,
British Columbia Acts prohibiting immigration
into the province of any immigrants who failed
to satisfy an educational test of knowledge of
a European language, and providing that no
workman should be employed on works to be
constructed under provincial franchises who
failed to pass a similar test, were disallowed, at
the urgent request of the Japanese Consul.^*
As Mr. Joseph Chamberlain points out, in
a despatch to the Governor-General of January
22nd, 1901,^”* such legislation affects directly the
relations of the Empire with foreign States.

A fortiori the Governor-General in Council
may always be relied upon to veto provincial
Acts contrary to Imperial treaties, which are
placed under the special care of the Dominion by
section 132 of the British North America Act,
providing that * the Parliament and Government
of Canada shall have all powers necessary or

^Provincial Legislation, 1901-1903, pp. 64, 74-75. For an-
other case of disallowance being recommended on similar
grounds: see il)id, p. 80.

==* Provincial Legislation. 1899-1900, pp. 134-8, 145.

=«76id. p. 139.

C.F.S. 4

50 Canada’s federal system.

proper for performing the obligations of Can-
ada or any province thereof as part of the Brit-
ish Empire towards foreign countries arising
under treaties between the Empire and such for-
eign countries. ‘

CHAPTER IV.

The Imperial Parliament.

The legislative bodies which have power to
make statutes of one sort or another, binding
upon Canadians, are the Imperial parliament,
the Dominion parliament, and the various pro-
vincial legislatures. The British North Amer-
ica Act contains no renunciation of the para-
mount authority of the Imperial parliament.
Powers of legislation conferred upon the Do-
minion parliament and the provincial legisla-
tures, respectively, by that Act, are conferred
subject to the sovereign authority of the Im-
perial parliament.^ In the early days of Con-
federation, the idea was sometimes mooted, and

* For the authorities, generally, see Law of Legislative Power
in Canada, pp. 208-231, where, however, the reference to ‘ The
Royal’ case (p. 212), is misleading, as, in fact, sec. 547 of the
Imperial Merchant Shipping Act, 1854, gave permission to alter
that Act as to vessels registered in Canada by any Act or Ordin-
ance confirmed by Her Majesty in Council. As to Imperial Acts
binding colonies, see Callender Sykes d Co. v. Colonial Secretary
of Lagos and Davies, [1891] A. C. 460, 466-7; New Zealand Loan
and Mercantile Agency Co., Ltd., [1898] A. C. 349, at pp. 357-8.
And on the general subject of Imperial control over legislation
in the Dominions, see now Keith’s Responsible Government in
the Dominions (1912), Vol. 2, pp. 1007-31. The Commonwealth
of Australia Constitution Act, Imp. 63-64 Vict. c. 12, gives the
following power to the Federal parliament (sect. 51, No.
xxxviii.): — ‘The exercise within the Commonwealth, at the
request or with the concurrence of the parliaments of all the
States directly concerned, of any power which can at the estab-
lishment of this Constitution be exercised only by the parliament
of the United Kingdom, or by the Federal Council of Australasia.’
No legislation has been passed under this head: Keith op. cit.,

52 Canada’s federal system.

in one reported case/’ apparently adopted by the
late Chief Justice Draper, that when the Brit-
ish North America Act purports to give ‘ ex-
clusive ‘ legislative powers to the Dominion
parliament and the provincial legislatures, re-
spectively, it means ‘ exclusive of the Imperial
parliament,^ and not merely exclusive the one
of the other. Any such view, however, was en-
tirely and finally discountenanced by a decision
of the Ontario Court of Appeal in 1876,^ where-
in the holder of a copyright, under the Imperial
Copyright Act, 1842, sought for and obtained
an injunction to restrain the defendants from
publishing a reprint of his book in Canada, al-
though the British North America Act gives
the Dominion parliament ‘ exclusive ‘ legisla-
tive authority over ‘ Copyrights,’ and the Do-
minion Copyright Act, 1875, requires all authors
desirous of obtaining copyright in Canada to
print and publish and register under that Act,

Vol. 2, p. 816, n. 2, who says that it ‘ is not of course an authority
to alter Imperial Acts.’ In a very kind notice of the present
writer’s Law of Legislative Power in Canada, in the Law Quart-
erly Review (Vol. 14, p. 199), Mr. A. V. Dicey observes: — ‘The
curious idea suggested by Draper, C.J., that the words ‘ exclusive
legislative authority,’ which occur in the British North America
Act, s. 91, exclude the legislative power of the Imperial parlia-
ment, could never have obtained the currency which it certainly
has acquired if even learned lawyers had not occasionally failed
to realise that the parliament at Westminster is a Sovereign legis-
lature. It ought to be added that this sovereignty, so far from
being inconsistent with the practical independence of the Cana-
dian legislatures on all matters of solely Canadian interest, in
some respects facilitates the amendment, whenever it may be
required, of the Canadian constitution, and explains the absence
of provisions for carrying out of constitutional changes.’

^*Regina v. Taylor (1875), 36 U. C. R. at p. 220.

^Smiles v. Belford (1876), 23 Gr. 590, 1 O. A. R. 436.

THE IMPERIAL PARLIAMENT. 53

which the plaintiff had not done. The Imperial
Copyright Act, 1842, expressly prohibited Her
Majesty’s colonial subjects from printing or
publishing in the colonies, without the consent
of the proprietor of the copyright, any work in
which there was copyright in the United King-
dom, and, by another section, extended the
operation of the Act to every part of the British
Dominions. This being so, the plaintiff was held
entitled to the remedy he sought. This decision,
in fact, was only following a judgment of the
House of Lords in England in 1868,^ in which
it was unsuccessfully contended that inasmuch
as Canada had a legislature of her own, and was
not directly governed by legislation from Eng-
land, she was not included in the general words
of the Imperial Act of 1842 above referred to,
whereby that Act was extended to every part of
the British Dominions. All the British North
America Act did was to place the right of deal-
ing with colonial copyright within the Domin-
ion under the exclusive control of the parlia-
ment of Canada as distinguished from the pro-
vincial legislatures. Such, at all events, was the
holding in this Ontario case.

AU subsequent Canadian decisions have up-
held, in like manner, the view that the para-
mount authority of the Imperial parliament
has been in no wise lessened by our Federal
Constitution. In fact, what is known as the
Colonial Laws Validity Act, passed by the Im-
perial parliament in 1865, expressly provides

*Routledge t. Low (1868), L. R. 3 H. L. 100.

‘{

54 Canada’s federal system.

that * Any colonial law which is or shall be in
any respect repugnant to the provisions of any
Act of parliament, extending to the colony to
which such law may relate, or repugnant to any
order or regulation made under authority of
such Act of parliament, or having in the colony
the force and effect of such Act, shall be read sub-
ject to such Act, order, or regulation, and shall to
the extent of such repugnancy, but not otherwise,
be and remain absolutely void and inoperative.’
And in a very recent judgment the Privy Coun-
cil * has said that the obvious meaning of this
enactment is ** to preserve the right of the Im-
perial legislature to legislate even in a colony,
although a local legislature has been given, and
to make it impossible, when an Imperial statute
has been passed expressly for the purpose of
governing that colony, for the Colonial legis-
lature to enact anything repugnant to an ex-
press law applied to that colony by the Imperial
legislature itself . . This statute reconciles
the two principles of giving local legislation,
but, nevertheless, leaving still open to the Im-
perial legislature, by express legislative pro-
vision, the power to do something in the colony. ”
But the intention of an Imperial Act to apply
to self-governing colonies must be clearly ex-

*In re The Qtieen v. Marais, [1902] A. C. 51, at p. 54. See,
also, as to this Act, Regina t. Brierly, (1887) 14 O. R. at p. 531,
et acq. And for other declarations by the parliament of Great
Britain of its authority over the colonies, see Imp. 6 Geo. III.,
c. 12, and section 46 of the Quebec Act, 31 Geo. III., c. 31. See,
also, Stokes on the Colonies (1783), at pp. 29-30; Wheeler’s Con-
federation Law, p. 346 seq. In the case of The Farewell (18811
7 O. L. R. 380, it was held that when an Act of the Dominion
parliament is in part repugnant to an Imperial statute .effect
will be given to its enactments in so far as they agree with
those of the Imperial Act.

THE IMPERIAL PAKLIAMENT,

55

pressed ;*’ and in practice the paramount power
of legislation by the Imperial parliament is only
exercised by Acts conferring constitutional
powers, or dealing with a limited class of sub-
jects of special Imperial or international con-
cern, such as merchant shipping and copyright.

As to merchant shipping, the Merchant Ship-
ping Act, 1894, which is now the governing Im-
perial statute, expressly provides that:—

‘ The legislature of a British possession
may, by any Act or Ordinance, confirmed by
Her Majesty in Council, repeal, wholly or in
part, any provisions of this Act (other than
those of the third part thereof which relate to
emigrant ships), relating to ships registered in
that possession ; but any such Act or Ordinance
shall not take effect until the approval of (His)
Majesty has been proclaimed in the possession,
or until such time thereafter as may be fixed by
the Act or the Ordinance for the purpose.’
And,—

* The legislature of a British possession
may, by any Act or Ordinance, regulate the
coasting trade of that British possession, sub-
ject in every case to the following conditions:—

(a) The Act or Ordinance shall contain a
suspending clause providing that the Act or
Ordinance shall not come into operation until
(His) Majesty’s pleasure thereon has been pub-
licly signified in the British possession in which
it has been passed ;

*a See per Vankoughnet, C, in Penley v. Beacon Assurance
Co. (1864), 10 Gr. 422, at p. 428; and supra, p. 51, n. 1.

56 Canada’s federal system.

(&) The Act or Ordinance shall treat all
British ships (including the ships of any other
British possession) in exactly the same manner
as ships of the British possession in which it is
made. ‘

In like manner, at the late Imperial Con-
ference, Sir Wilfrid Laurier said of the Im-
perial power of disallowance: ” While the
United Kingdom has asserted to itself the power
to disallow any legislation which it is in the
power of the self-governing Dominions to pass,
it has been very chary of exercising that power,
except in matters of shipping, whereon it has
always maintained the doctrine that it has the
power to supervise the legislation passed by the
self-governing Dominions.^

As to copyright, the new Imperial Copyright
Act, 1911 (which repeals the Imperial Act of
1842, above referred to), although it enacts that
the Act, save as to such of its provisions as are
expressly restricted to the United Kingdom,
shall extend throughout His Majesty’s Domin-
ions, also provides that ‘ it shaU not extend to
a self-governing Dominion, unless declared by
the legislature of that Dominion to be in force
therein either without any modifications or addi-
tions, or with such modifications and additions
relating exclusively to procedure and remedies
or necessary to adapt this Act to the circum-
stances of the Dominion as may be enacted by
such legislature ‘: (sec. 25).

•Proceedings Imp. Conf. 1911, p. 406: cited Ewart’s Kingdom
Papers, pp. 222-3. On the whole subject of Merchant Shipping
legislation In the Dominions, see Keith op. cit.. Vol. 3, pp. 1188-
1215.

THE IMPERIAL PAELIAMENT. 57 ‘

Also, that, —

‘ 26. The legislature of any self-governing
Dominion may, at any time, repeal all or any of ;U

the enactments relating to copyright passed by
Parliament (including this Act), so far as they
are operative within that Dominion: provided
that no such repeal shall prejudicially affect any Ii

legal rights existing at the time of the repeal,
and that on this Act, or any part thereof, being
so repealed by the legislature of a self-govern-
ing Dominion, that Dominion shall cease to be
a Dominion to which this Act extends. . . .’
Also, that, —

* 27. The legislature of any British Posses-
sion to which this Act extends may modify or
add to any of the provisions of this Act in its
application to the Possession, but, except so far
as such modifications and additions relate to
procedure and remedies, they shall apply only
to works the authors whereof were, at the time
of the making of the work, resident in the Pos-
session and to works first published in the Pos-
session. ‘

It remains to mention a position advanced
by the late Sir John Thompson, when Minister
of Justice, notably in the debate in the Domin-
ion House of Commons,^ and in the communica-
tions which passed between the Dominion and
Imperial Governments in reference to copyright
legislation,^ that in relation to all those subjects

• Commons Debates, Vol. 27, p. 864, March 27th, 1889.
‘ Legislative Power in Canada, pp. 223-231. See the various

reports and despatches relating to Canadian copyright collected
in Hodgins’ Prov. Legisl.. 1867-1895, pp. 12-13, 30-58c, and App.
A-, p. 1281-1313.

I

58 Canada’s federal system.

in respect to which power to legislate is given by
the British North America Act to the Dominion
parliament and provincial legislatures respect-
ively, they have the power to repeal an Imperial
statute passed prior to the British North Am-
erica Act affecting those subjects though ex-
pressed to extend to the colonies. This view,
however, has not found favour with the Law |

Ofl&cers of the Crown in England, nor can any i|

decisions of the Courts be cited in its support.
On the contrary it seems opposed to the view ‘

taken by the Privy Council of the Imperial
Colonial Laws Validity Act of 1865, and its ap- j,

plication, in the recent case of In re The Queen
V. Marais/ referred to above.

• [1902] A. C. 51, at p. 54. See, however, the Australian case
of The Queen v. Michael McCarthy (1873), 4 A. J. R. 155. Cf. also
Regina v. Petersky (1895), 4 B. C. 385, noted infra, p. 595; and
Legislative Power in Canada, pp. 223-4.

CHAPTER V.

Legislative Powers of the Dominion Parlia-
ment AND THE Provincial Legislatures.

As Stated m the British North America Act.

It seems the only proper way to open the
great subject of the distributioi^ of legislative ‘ (5

powers within Canada to set out in their en-
tirety the two famous sections, 91 and 92, of the
British North America Act. |

91. * It shall be lawful for the (King), 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 subjects by this Act assigned exclu-
sively to the legislatures of the provinces; and
for greater certainty, but not so as to restrict
the generality of the foregoing terms of this sec-
tion, it is hereby declared that (notwithstanding
anything in this Act), the exclusive legislative
authority of the Parliament of Canada extends
to all matters coming within the classes of sub-
jects next hereinafter enumerated, 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 sys- ^
tem of taxation.

4. The borrowing of money on the Public
Credit.

i^

60 Canada’s federal system.

5. Postal Service.

6. The Census and Statistics.

7. Militia, Military and Naval Service, and
Defence.

8. The fixing of and providing for the Sal-
aries and Allowances of Civil and other Officers
of the Government of Canada.

G. 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.

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 Constitu-
tion of the Courts of Criminal Jurisdiction, but
including the Procedure in Criminal Matters.

DOMINION POWERS. 61

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
A Legislatures of the Provinces.

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 jl

by this Act assigned exclusively to the legisla-
tures of the provinces. ‘

92. * In each province the legislature may ex-
clusively make laws in relation to matters com-
ing within the Classes of Subjects next herein-
after enumerated ; that is to say : —

1. The amendment from time to time, not-
withstanding anything in this Act, of the Con-
stitution of the Province, 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 province.

4. The establishment and tenure of Provin-
cial Offices, and the appointment and payment
of Provincial Officers.

5. The management and sale of the Public
Lands belonging to the Province, and of the
timber and wood thereon.

62 Canada’s federal system.

6. The establishment, maintenance, and man-
agement of Public and Reformatory Prisons in
and for the Province.

7. The establishment, maintenance, and man-
agement of Hospitals, Asylmns, Charities, and
Eleemosynary Institutions in and for the Pro-
vince, 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 Rev-
enue for Provincial, Local, or Municipal Pur-
poses.

10. Local works and undertakings, other
than such as are of the following classes : —

(a) Lines of Steam and other Ships, Rail-
ways, 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.

(&) Lines of Steamships between the Pro-
vince and any British or Foreign Country.

(c) Such works as, although wholly situate
within the Province, are before or after their
execution declared by the Parliament of Can-
ada to be for the general advantage of Canada or
for the advantage of two or more of the Pro-
vinces.

11. The Incorporation of Companies with
Provincial Objects.

“^ 12. The Solemnization of Marriage in the
Province.

^ 13. Property and Civil Rights in the Pro-
vince.

PROVINCIAL POWERS. 63

14. The Administration of Justice in the
Province, including the constitution, mainten-
ance, and organization of Provincial Courts,
both of Civil and of Criminal Jurisdiction, and
including procedure in civil matters in those
Courts.

15. The imposition of punishment by fine,
penalty, or imprisonment for enforcing any
Law of the Province made in relation to any
matter coming within any of the classes of sub-
jects enumerated in this section.

16. Generally all matters of a merely local or
private nature in the Province.’

Such are the principal provisions of the
British North America Act as to distribution of
legislative power within Canada between the
Dominion parliament and the provincial legis-
latures. They are supplemented by section 93, ^
making special provision as to the power of each
province, under certain restrictions, to make
laws in relation to education ; sectiqn^4,^ialdllg ^
provision for a possible desire in the future on
the part of the provinces to bring about uniform-
ity of all or any of the laws relative to property
and civil rights therein; and section 95, provid-
ing for concurrent powers in the Dominion and
the provinces to make laws in relation to Agricul-
ture and Immigration. But, before dealing with
any of the special powers thus enumerated, there
are certain introductory remarks to be made,
and certain general principles of interpretation
established by the authorities to be pointed out.

^

CHAPTER VI.

Plenaey Powers of Canadian Legislatures.

1. Not mere delegates of Imperial Parlia-
ment. — Neither the Dominion parliament nor
provincial legislatures are, in any sense, dele-
gates of, or acting under any mandate from,
the Imperial parliament. When the British
North America Act enacted that there should be
a legislature for each province, and that its
legislative Assembly should have authority
to make laws for the province and for pro-
vincial purposes in relation to the matters
enumerated in section 92, it conferred powers
not in any sense to be exercised by dele-
gation from, or as agents of, the Imperial
parliament, but authority as plenary and as
ample within the limits prescribed by section
92 as the Imperial parliament, in the plenitude
‘ of its power possessed, and could bestow. And
so with the Dominion parliament with respect
to those matters over which legislative authority
is conferred, plenary powers of legislation are
given as large, and of the same nature as those
of the Imperial parliament itself. If it be once
determined that the Dominion parliament or a
provincial legislature has passed an Act upon
any subject which is within its jurisdiction to
legislate upon, its jurisdiction as to the tenns of
such legislation is as absolute as that of the Im-
perial parliament in the United Kingdom over a
like subject.

PLENARY NATURE OF LEGISLATIVE POWERS. 65

For these statements we have the authority
of repeated judgments of the Privy Council.
The earliest of these is that of Hodge v.
The Queen, where their lordships illustrate
what they thus lay down by holding that
provincial legislatures have full authority to
delegate their powers, whereas in the United
States, the State legislatures are held to pos-
sess only a delegated power themselves, and, ^^
therefore, to be unable to delegate their powers :
to any other person or body. The Privy
Council had in a previous case taken a similar
view of the plenary nature of the powers of the
Indian legislature,^’ while in a subsequent one^
in which they were dealing with the power of
the legislature of New South Wales, they refer
to these two prior decisions, and say: ‘* These
two cases have put an end to a doctrine which
appears at one time to have had some currency
that a colonial legislature is a delegate of the
Imperial legislature. It is a legislature re-
stricted in the area of its powers, but within
that area unrestricted, and not acting as an
agent or a delegate.” Again, in the subsequent
case of Dobie v. Temporalities Board,^ their

* (1883), 9 App. Cas. at p. 132. So again. Liquidators of
the Maritime Bank of Canada v. Receiver-General of Neio Bruns-
wick, [1892] A. C. 437; Attorney-General of Canada v. Cain,
[1906] A. C. 542, at p. 547. See. aJso, per Ritchie, C.J., in City of
Fredericton v. The Queen (1880), 3 S. C. R. at p. 529; per Gir-
ouard, J., in In re Criminal Code Sections relating to Bigamiy
(1897), 27 S. C. R. at p. 490. Similarly as to executive powers,
see Attorney-General for Canada v. Cain, [1906] A. C. 542.

^» The Queen v. Burah (1878), 3 App. Cas. 889.

^Powell V. Apollo Candle Co. (1885), 10 App. Cas. at p. 290.

» (1882), 7 App. Cas. at p. 146.

C.F.8. — 5 ^

66 Canada’s federal system. ,

lordships say that within the limits prescribed
to them by the British North America Act, pro-
vincial legislatures are supreme, and ** there is
really no practical limit to the authority of a
supreme legislature except the lack of executive
power to enforce its enactments.” And, con-
formably with all this, in Union Colliery Co. v.
Bryden,*’ their lordships say: ” In assigning
legislative power to one or the other of these
parliaments ” (sc. Dominion or provincial),
” it is not made a statutory condition that the
exercise of such power shall be, in the opinion
of the Court of law, discreet. . It is the pro-
per function of a Court of law to determine
what are the limits of the jurisdiction committed
to them; but when that point has been settled,
Courts of law have no right whatever to enquire
whether their jurisdiction had been exercised
wisely or not.”

Now it may well be doubted whether there
are to be found in the judgments of any Court
dicta more pregnant and far-reaching, or, if
one may use such an expression of judicial utter-
ances, more statesmanlike, than these utterances
of the Privy Council as to the plenary character
of colonial legislative powers. If the federal
constitution contained in the British North
America Act was to satisfy the requirements of
future generations, and suffice for the rapidly
expanding national life of this great country;
if, as the minds of men open to the wider view,
Canadians are to enjoy a political life as in-
spiring, as vivid, and as free, as that of the

* [18991 A. C. 680. at pp. 684-5.

PLENARY NATURE OF LEGISLATIVE POWERS. 67

people of the United Kingdom, no other theory
of legislative power in Canada could suf&ce. Yet
the old idea of the inferior status of colonial
legislatures has been slow in disappearing e ven
from legal minds, — a survival of the days of
Legislative Assemblies fettered in their actions
by irresponsible Executives, and by Legislative
Councils, the members of which were appointed
by the Crown, and without complete control
over the public revenues, or the civil list, or the
regulation of trade and commerce.” It may be
said, in truth, to have been certain very recent
interferences with vested rights, far too arbi-
trary in the opinions of many people, by the
Ontario legislature, which have at last made
manifest the full force of the Privy Council
judgments above referred to.**

This supremacy of legislatures imder our
Constitution is, indeed, one of the points in
which, in the words of the preamble of the Brit-
ish North America Act, it is a * Constitution
similar in principle to that of the United King-
dom. ‘ For as Professor Dicey says, in his Law
of the Constitution,^ * the sovereignty of Par-
liament is (from a legal point of view) the dom-
inant characteristic of English political institu-
tions. ‘

2. Imperial treaties.— A consideration of the
plenary powers of our legislatures suggests the
question whether an Act of the Dominion par-

“See Bourinot’s Manual of the Constitutional History of
Canada; ed., 1901, pp. 1-37.
* See supra, pp. 34-40.
‘ 3rd ed., at p. 37.

68 Canada’s federal system.

liament or of a provincial legislature could be
held void and imconstitutional merely because
in conflict with an Imperial treaty, unless, of
course, such treaty had been confirmed by Im-
perial statute. The question is, in truth, of small
importance, for the Empire is beld together, not
by legal technicalities, but by the good sense and
moderation, and national feeling of British
people. It is little likely that the Dominion
parliament would, at any time, persist in pass-
ing an Act at variance with an Imperial treaty,
and if it did the Governor-General would, doubt-
less, reserve it to await His Majesty’s pleasure,
or if he failed to do that, the Imperial veto
power would be available to save the situation.
Provincial Acts might, however, conflict with
Imperial treaties, and have, perhaps, done so in
such matters as immigration. But as to these
there is not only the Dominion veto power avail-
able, but the British North America Act, by sec-
tion 132, especially provides;—

132. The Parliament and Government of
Canada shall have all powers necessary or
proper for performing the obligations of Can-
ada or of any province thereof, as part of the
British Empire towards foreign countries, aris-
ing under treaties between the Empire and such
foreign countries.*

We have, however, no provision in our Con-
stitution similar to Article VI. of the Constitu-

*For a recent case of a provincial Act being held inopera-
tive as against provisions of an Imperial treaty which had been
sanctioned by a Dominion Act pursuant to its powers under
this section, see In re Nakane and Okazaka (1908), 13 B. C. 370.

LEGISLATURES MAY DELEGATE THEIR FUNCTIONS.

69

tion of the United States, which provides that
* All treaties made, or which shall be made
under the authority of the United States, shall
be the supreme law of the land. ‘ **

3. Power of legislatures to delegate their
functions. — It follows from the plenary char-
acter of the powers of Canadian legislatures,
that they have the same power which the Imper-
ial parliament would have, imder the like cir-
cumstances, to confide to a municipal institution
or body of their own creation authority to make
by-laws or regulations as to subjects specified in
the enactment, and with the object of carrying
the enactment into operation and effect; and,
also, power to legislate conditionally, as, for in-
stance, by enacting that an Act shall come into
operation only on the petition of a majority of
electors.’ As to the former, the Privy Council
observe, in Hodge v. The Queen^” that: ** It is
obvious that such an authority is ancillary to
legislation, and without it an attempt to pro-
vide for varying details and machinery to
carry them out might become oppressive, or
absolutely fail. . . It was argued at the Bar
that a legislature committing important regula-
tions to agents or delegates effaces itself. That
is not so. It retains its powers intact, and can,
whenever it pleases, destroy the agency it has

” On the general subject of Imperial control in Treaty
matters, see Keith, op. cit. Vol. 3, pp. 1101-57. See, also, itid..
Vol. 2, pp. 796 et seg.; and Legislative Power in Canada, pp. 256-9.

» Such conditional legislation was upheld by the Priry
Council in Russell r. The Queen (1882), 7 App. Cas. at p. 835.

” (1883), 9 App. Cas. at p. 132.

70 Canada’s federal system.

created and set up another or take the matter
directly into its own hands/”‘ Their lordships
do not think it necessary to pursue this sub-
ject further, save to add that, if by-laws or

“*It appears from the verbatim report of the argument In
this case, reported Dom. Sess. Pap., 1884, Vol. 17, No. 30, p. 113,
that in the course of it Sir Barnes Peacock observed: “Another
difficulty which occurs to my mind is this, that these resolutions
or laws or whatever they may be called, would not require the
assent of the Lieutenant-Governor, whereas if they were passed
by the legislative Assembly, they would require that assent.” And
Sir Horace Davey, as he then was, met this objection as follows,
to the complete satisfaction, apparently, of the Board: — ” I answer
that the Lieutenant-Governor, when he assented to the Act
by which these commissioners were empowered to make rules and
regulations, consented to the rules and regulations which they
might make, and it is just the same as if the enactments were
In this form, ‘ it shall be an offence against the law of the
province to commit any infraction of the rules and regulations to
be made by the commissioners.’ The Lieutenant-Governor as-
sented to that, and impliedly he assented to the infraction of
these rules and regulations being treated as an offence against
the law of the province, in just the same way as when Her
Majesty assented to the Act of Parliament by which the judges
were empowered to frame rules of procedure, she assented to
these rules of procedure, when framed by Her Majesty’s judges,
being part of the law of the land . . When Her Majesty
assents to a law empowering a body to make rules and regulations
for carrying general legislation into execution and detail, the
Crown authorises those, and gives its assent to legislation in
this form, that these rules and regulations shall have the force of
law, or that any infringement of the rules and regulations to be
made by the body shall be an offence against the law and shall
be punishable accordingly.” And, perhaps, this is as good a place
as any to refer to the words of Lord Watson on the argument in
Canadian Pacific R. W. Co. v. Bonsecours, [1899] A. C. 367 (see
verbatim report) : ” The Dominion cannot give jurisdiction, or
leave jurisdiction, with the province. The provincial parliament
cannot give legislative jurisdiction to the Dominion parliament.
If they have it, either one or the other of them, they have It by
virtue of the Act of 1867. I think we must get rid of the idea
that either one or the other can enlarge the jurisdiction of the
other or surrender jurisdiction.” To which Lord Davey adds:
” or curtail.” And see infra, pp. 74-5.

LEGISLATUEES MAY DELEGATE THEIE FUNCTIONS. 71

regulations are warranted, power to enforce
them seems necessary and equally lawful.” And
so they held that the Ontario legislature had
power to entrust to a Board of Commissioners
authority to enact regulations, in the nature of
by-laws and municipal regulations of a merely
local character, for the good government of
taverns; and, thereby, to create offences and
annex penalties thereto, in the manner pur-
ported to be done by the Ontario Liquor License
Act. But, of course, in the case of such legisla-
tures with strictly limited jurisdiction, they can
delegate no powers beyond those which they can
directly exercise. And so in their later judg-
ment on the Liquor Prohibition Appeal, 1895,”
the Privy Council say: — ** Until Confederation,
the legislature of each province as then consti-
tuted could, if it chose, and did in some cases,
entrust to a municipality the execution of
powers which now belong exclusively to the par-
liament of Canada. Since its date, a provincial
legislature cannot delegate any power which it
does not possess; and the extent and nature of
the functions which it can commit to a municipal
body of its own creation must depend upon the
legislative authority which it derives from the
provisions of section 92, other than No» 8: ”
(‘ Municipal Institutions in the Province.’)
So, of course, a provincial legislature can
delegate to the Lieutenant-Governor in Council
the power to make rules, regulations, and by-laws
ancillary to carrying into operation the provi-
sions of an Act. And legislation by one legisla-

“[1896] A. C. at p. 364.

72 Canada’s federal system.

tive body by reference to the enactments of an-
other legislative body is defensible on the same
principle.” Perhaps, by way of illustration,
and as an example of delegation and legislation
by reference in combination, it may be well to
cite section 308 of the Dominion Railway Act,
1888. Certain railways having been declared
to be works for the general advantage of Canada
by Parliament, in 1883, and thereby brought
under Dominion jurisdiction by virtue of sec-
tion 92, item 10 (c) of the British North Amer-

“C/. Legislative Power in Canada, pp. 694-5. C/. Kerley v.
London and Lake Erie Transportation Co. (1912), 26 O. L. R. 588;
and per Davies, J., in Ouimet v. Bazin (1912), 46 S. C. R. at p. 514.
Reference may, however, be made to the opinion of the late Mr.
Christopher Robinson, read in the Debate in the House of Com-
mons on certain Bills relating to railways in Manitoba, on April
25th, 1901, as to whether it was intra vires for the Dominion par-
liament to authorise by statute an arrangement by which the
province of Manitoba was to have power for a period of 30
years, to limit rates on part of the Canadian Northern Railway,
a Dominion railway, parts of which were in Ontario. This part
of the line in question covered about 290 miles in Ontario, and
about 40 miles in Manitoba. In this opinion Mr. Robinson stated:
‘ What the British North America Act intended and provided for
is that a Dominion road, such as the present, should be and
remain under the exclusive control of the Federal parliament
as regards rates and otherwise, so that the line as a whole should
be so managed, and the rates as it from time to time regulated,
as the circumstances affecting the whole line may appear to
require . . . The Dominion, as it seems to me, should be
free at all times to deal with the subject as a whole, and thi»
they are precluded from doing by an enactment which for thirty
y«ars limits such rates on a particular portion not by their dis-
cretion, but by that of a provincial Executive. … It may be
argued no doubt that this provision may at any time be repealed,
BO that the power is still kept in their hands; and even while it
continues it is in effect only an enactment confirming in advance
such rates as the provincial Executive may name, thus making
them rates fixed by the Dominion. The answer would seem to
be that the confirmation of the contract for 30 years cannot with-
out bad faith be withdrawn: that the provision is not, in reality

LEGISLATION BY REFERENCE. 73

ica Act,” it was enacted by the above section,
that * The Governor-General may, at any time,
and from time to time, by proclamation or pro-
clamations, confirm any one or more of the Acts
of the legislature of any province of Canada,
passed before the passing of this Act, relating
to any railway which, by an Act of the Parlia-
ment of Canada, has been declared to be a work
for the general advantage of Canada, and from
and after the date of such proclamation the Act
or Acts thereby declared to be confirmed shall
be confirmed, ratified, and made as valid and
effectual as if the same had been enacted by the
Parliament of Canada.’

or in substance, an exercise by the Dominion of the powers
entrusted to it through the province as its subordinate agent
or representative, but an abdication of their authority in favour
of the province; and that the right to enact cannot be given or
affected by the powers to repeal, which is inseparable from all
such legislation. It is to be remembered, also, that this is the
transference of the Federal power to one of several provinces,
which by the Constitution are excluded from all jurisdiction over
the subject-matter, and extends to a portion of the line in
another province, whose Interests now or within the period of
30 years may be prejudicially affected by the action of Manitoba,
against which the Federal authority is thus precluding itself
from affording redress. It is in this view not so much a denial
of provincial rights to refuse such legislation as in disregard of
them to grant it. Such legislation appears to me to be opposed to
the spirit and intention of our Constitution, if not beyond the
powers given to it. . . It may be added that this is a question
affecting not merely the immediate parties to the transaction,
but that all whose interests are subject to our Constitution are
entitled to assume that they will be dealt with in accordance
with it, the due observance of the distribution of powers being
in effect part of the compact in pursuance of which the British
North America Act was passed.’ The Dominion statute was, how-
ever, enacted: see I Edw. VII., c. 53, D.; and clause 8 of Sched.
B. to the Act.

” As to such declarations and their effect, see infra, pp. 363-
370.

74

CANADA S FEDERAL SYSTEM.

4. Creation of new legislative bodies. — A
further question which suggests itself in con-
nection with the present subject is whether the
Dominion parliament or a provincial legislature
could create in Canada, and arm with general
legislative authority within the limits of their
respective spheres, a new legislative body not
created or authorised by the British North Am-
erica Act. Now it would seem that provincial
legislatures certainly could, for under No. 1 of
section 92, they can amend the Constitution of
the province, except as regards the office of Lieu-
tenant-Governor ; and, as a matter of fact, under
this provision, Manitoba, New Brunswick, and
Prince Edward Island have abolished their
Legislative Councils. And, as to the Dominion
parliament, when, in the argument before the
Privy Council, in Fielding v. Thomas,^* counsel
observed: ” The Canadian parliament has no
power at all, given to it, to alter the Constitu-
tion of Canada,” Lord Davey, as we shall
presently see, said: ** that is a big question
that it would be unwise to express any opinion
upon. There is * peace, order, and good govern-
ment of Canada.’ “” And it cannot be said
.that so to create a new legislative body would
either in the case of the Dominion parliament,
or the provincial legislatures, be a permanent
and irrevocable abdication of functions. They
would remain invested with the responsibility
for what they had done ; and the Dominion par-
liament could not, it may be, override section 20

” [1896] A. C. 600.

‘•MS, transcript from Cook and Right’s notes, p. 23; infra,
p. 92.

LAW COURTS NOT CONCERNED WITH MOTIVBS. 75

of the British North America Act, which pro-
vides that there shall be a session of the parlia-
ment of Canada once, at least, in every year,
so that twelve months shall not intervene be-
tween the last sitting of the Parliament in one
session and its first sitting in the next session;
nor the legislatures of Ontario and Quebec the
provisions of section 86, that there shall be a
session of those legislatures once at least in every
year. We are here, however, dealing with mat-
ters not covered by judicial decisions, and with
questions which, perhaps, may never arise for
determination.”*

5. Law Courts are not concerned with
motives. — It is, again, obviously corollary to the
plenary nature of legislative power in Canada
that if the Dominion parliament or a provincial
legislature legislates strictly within the. powers
conferred in relation to matters over which the
British North America Act gives them exclusive
legislative control, Courts have no right to en-
quire what motive induced them to exercise
their powers.” Even if the legislature avow on
the face of an Act that it intends thereby to
legislate in reference to a subject over which it
has no jurisdiction; yet, if the enacting clauses
of the Act bring the legislation within its
powers, the Act cannot be considered ultra vires.
Nevertheless, the object and design of an Act

“”As to the legislative power of tlie provinces over particu-
lar lands in the province being transferred to the Dominion, see
Burrard Power Co. v. The King, [1911] A. C. 87.

*• See for illustrative cases generally Legislative Power in
Canada, pp. 273-278.

76 Canada’s federal system.

may, as we shall presently see, be one of the
things to be determined in order to ascertain the
class of subjects of legislation to which it really
belongs.”* All we are statiQg now is that, assum-
ing that an Act, the constitutionality of which
is in question, comes within one or other of the
legislative powers conferred by sections 91 and
92 of the British North America Act, as the case
may be; then, the motive which induced the
legislature to exercise its power cannot be con-
sidered.

6. Colourable legislation. — The parliament
of Canada cannot, under colour of general legis-
lation, deal with what are provincial matters
^ only; and conversely, provincial legislatures
^cannot, under the mere pretence of legislating
upon one of the matters enumerated in section
92, really legislate upon a matter assigned to
the jurisdiction of the parliament of Canada.
What is here referred to is legislation osten-
sibly under one or other of the powers conferred
by the British North America Act on the enact-
ing body, but, in truth and fact, relating to some
subject which is not within the jurisdiction of
that body. There appear to be few reported
cases in which a Court has actually held an Act
to be merely colourably constitutional in this
sense, but Attorney-General for Quebec v.
Queen Insurance Go.,^” is such a case. There the
Privy Council held, that a certain Quebec Act,
entitled an Act to compel assurers to take out

»• Infra, p. 210 et seq.
“(1878), 3 App. Cas. 1090.

COLOURABLE LEGISLATION. 77

a license, and whicli purported to be, on the face
of it, an exercise of the power conferred by No.
9 of section 92 of the British North America
Act, to make laws in relation to shop, saloon,
tavern, auctioneer, and other licenses, was not
in substance, a License Act at all, but a simple
Stamp Act on policies, and was indirect taxa-
tion, and ultra vires. Their lordships again,
incidentally, refer to the subject in Russell v.
The Queen,^^ where they observe, referring to
the Canada Temperance Act, 1878, then under
discussion: ” There is no ground or pretence for
saying that the evil or vice struck at by the Act
in question is local, or exists only in one pro-
vince, and that Parliament, under colour of gen-
eral legislation, is dealing with a provincial mat-
ter only. It is, therefore, unnecessary to dis-
cuss the considerations which a state of circum-
stances of this kind might present. The present
legislation is clearly meant to apply a remedy
to an evil which is assumed to exist throughout
the Dominion.”

And in much the same way in Colonial
Building and Investment Association v. Attor-
ney-General of Quebec/^ where their lordships
held, that the mere fact that a Dominion com-
pany chose to limit its operations to one pro-
vince only, did not invalidate its charter, they
say: ”It is unnecessary to consider what
remedy, if any, could be resorted to if the incor-
poration had baen obtained from Parliament
with a fraudulent object, for the only evidence

” (1887), 7 App. Cas. at pp. 841-2.
» (1883), 9 App. Cas. at p. 165.

r

78 Canada’s fedeeal system.

given in the case discloses no ground for sug-
gesting fraud in obtaining the Act,” (sc. of in-
corporation) ;”* the case here suggested appar-
ently being one in which Parliament had been
induced — ^while ostensibly exercising its proper
power of incorporating Dominion companies—
to, in fact, incorporate a company with a pro-
vincial object, thus infringing upon the exclu-
sive jurisdiction of the provinces under No. 11
of section 92 of the British North America Act.

In this connection, too, may be cited the judg-
ment of the Privy Council in Union Colliery
Go. V. Bryden/’^ in which, as they themselves say,
when distinguishing it in Cunningham v. Tomey
Homma “: ‘* This Board, dealing with the par-
ticular facts of that case, came to the conclu-
sion that the regulations there impeached were
not really aimed at the regulation of coal mines
at all, but were, in truth, devised k) deprive the
Chinese, naturalised or not, of the ordinary
rights of the inhabitants of British Columbia,
and, in effect, to prohibit their continued resi-
dence in that province, since it prohibited their
earning their living in that province.”

And in the verbatim report of the argument
before their lordships in that case,” occurs an
interesting passage bearing upon this matter:—

“• The judges will not entertain allegations that a private
Act was obtained by fraud or improper practices. If parlia-
ment has been deceived, the remedy is with parliament alone;
Lee V. Bude and Torrington R. W. Co. (1871), L. R. 6 C. P. at
p. 582.

*> [1889] A. C. 587.

” [1903] A. 0. at p. 157. See for other decisions, Legislative
Power in Canada, pp. 372-381.

** Transcript from Shorthand Notes of Martin, Meredith
and Henderson.

^

COLOURABLE LEGISLATION. 79

Mr. Blake: — ”I agree that where a legisla-
ture has an absolute jurisdiction it is no use
looking at its motives. I agree that where it
has no jurisdiction it is no use looking at its
motives. But, I say, where it has a limited, or
qualified jurisdiction, you have to find out what
it was really doing in order that you may de-
termine whether it is within that limited juris-
diction-”

Sir Edward Fry: — ^* You spoke of bona fide
legislation. I do not understand what is bona
fide 3ind mala fide legislation.^ ^ .

Mr. Blake: — ** Colourable legislation.”

Sir Edward Fry: — ** If it does accomplish
an object which it cannot accomplish I suppose
it falls. Surely it is not a question of good
faith.”

Mr. Blake: — *^ I am afraid it is necessary,
where a legislature has a limited or qualified
jurisdiction, to look at it a little differently from
what at first sight one is disposed to look at Acts
of an absolutely omnipotent Parliament.”

Lord Watson: — ** I never saw such a quali-
fication. Supposing they were empowered to
pass an Act in the interests of Chinese aliens,
I do not think the Court would permit them,
under the power of that Act, to pass a statute
that was obviously and admittedly against the
interests of every Chinaman in Canada. I sup-
pose, an impossible thing.”

Mr. Blake: — *’ Quite so. Your lordships
would practically be considering whether, al-
though the legislature said this was in the in-
terests of Chinese aliens, it really was so.”

80 Canada’s federal system.

Sir Edward Fry: — *’ I suppose we must look
at the substance of the legislation.”

Mr. Blake : — *’ Yes. I think it will be found
that it will be impossible, efficiently, to deal with
the question of a legislature having a qualified
power, unless one looks more narrowly into the
real substance of the legislation, than is neces-
sary otherwise.”

Another curious point, in this connection, is
suggested by Mr. Blake in this same argument,
namely: Whether provincial legislation may be
ultra vires because it is attempting to produce,
piecemeal, an aggregate result which is ultra
vires:—

Mr. Edward Blake: — *^ I have stated in my
Case the series or portions of series of statutes
from which your lordships find the general
course of legislation. It does not seem to me
that it would be possible to ignore the aggre-
gate result of a number of separate Acts of Par-
liament as bearing upon the question as to
whether each one of those Acts of Parliament
might be within the jurisdiction — if the aggre-
gate result would be such as your lordships
would hold to be outside the jurisdiction. Else
it might be said that we might produce a general
result by separate steps, which general result
it would be impossible for them to produce other-
wise.”

Lord Watson: — *’ I suppose you would say
that, if they could prohibit a Chinaman working
in a mine they could prohibit him working in a
bakery or factory, and so on until they left him
with nothing to do, and if you could do it in one
province you could do it in all.”

COLOURABLE LEGISLATION. 81

Mr. Haldane, however, seems to satisfac-
torily deal with the point later on in the argu-
ment, when he says: ** I respectfully say I can-
not decide, any more than the people of old, the
question of how many grains it takes to make a
heap. You must see your heap and then judge
whether, taking it as a whole, it is a heap. I am
dealing with this particular grain, and I say
this, at least, is not a heap. ‘ ‘ ^^*

But that, if the Dominion parliament or the
provincial legislatures, have no power to legis-
late directly upon a given subject-matter,
neither may they do so indirectly, is a principle
which has been recognised in many provincial
decisions;”^ and received the imprimatur of the
Privy Council in Madden v. Nelson and Fort
Sheppard R. W. Co.^* There their lordships,
referring to the contention that, if a provincial
legislature did not directly enact that a Domin-
ion railway must fence their railway line, but
only that, if they did not, they should be respon-
sible for cattle killed thereon, the provincial
legislation might be valid, say: “Their lord-
ships are not disposed to yield to that sugges-
tion,^ even if it were true to say that this statute
was only an indirect mode of causing the con-
struction to be made, because it is a very famil-
iar principle that you cannot do that indirectly
which you are prohibited from doing directly.”

=°» Cf. dicta of Hagarty, C.J.O., in Clarkson v. Ontario Bank
(1888), 15 O. A. R. at p. 181, to the effect that a legislature
cannot by piecemeal in separate Acts legislate in relation to
matters which it could not deal with as a whole in one Act.

“See Legislative Power in Canada, pp. 386-392.

»♦ [1899] A. C. 626, at pp. 627-8.

C.F.S. — 6

82 Canada’s federal system.

It should not, however, apparently be deemed
in any way necessarily a device to make uncon-
stitutional legislation colourably valid, for a
legislature to insert in its enactments such cau-
tionary phrases as ‘ in matters within the legis-
lative jurisdiction of the province,’ ‘ so far as
this legislature has power thus to enact,’ ‘ sub-
ject always to the royal prerogative as hereto-
fore, ‘ etc. ; nor is the Court in such cases called
upon by analysis or criticism of possible powers
and functions, which may be embraced in the
words used, to discriminate as to what are within
and what without the scope of the enactment;
any particular case is to be dealt with as and
when it arises. If no attempt has been made to
act upon or enforce enactments thus guarded,
it would seem premature to ask for a declaration
of their invalidity.”

7. Law Courts not concerned with justice of
legislation. — Again, it is not competent for any
Court, when once an Act is passed by either the
Dominion parliament or a provincial legisla-
ture, in respect to any matter over which it has
jurisdiction to legislate, to pronounce the Act
invalid because it may affect injuriously private
rights, any more than it would be competent for
the Courts in England, for the like reason, to
refuse to give effect to a like Act of the parlia-
ment of the United Kingdom. If the subject be
within the legislative jurisdiction of the par-
liament, and the terms of the Act be explicit,
effect must be given to it, so long as it remains

” See Attorney-General of Canada t. Attomey-Oeneral of On-
tario (1890), 20 O. R. at p. 246; 19 O. A. R., at p. 38.

LAW COURTS NOT CONCERNED WITH JUSTICE OF ACTS. 83

in force in all Courts of the Dominion, however
private rights may be affected.^” The Privy-
Council decision in the early case of L’Union
St. Jacques v. Belisle/^” really established this.
There, it appeared, that the by-laws of the
Union fixed the relief to be given to its members
and the class of beneficiaries to receive it,
amongst whom were, during their widowhood,
the widows of deceased members of a certain
standing in the Society. An Act of the legisla-
ture of the province, wherein the Union was
incorporated, in their lordships’ words ” tak-
ing notice of a certain state of embarrassment
resulting from what it describes, in substance,
as improvident regulations of the Society, im-
posed an enforced commutation of their exist-
ing rights upon two widows.” Nevertheless,
they held that the Act was intra vires. In
another, and much more recent case, which went
to the Privy Council,^* it appeared that the
British Columbia legislature had, in 1883,
granted, by statute, the land in question, with
its mines and minerals, to the Dominion Govern-
ment in aid of the construction of the Esquimalt
and Nanaimo Railway Company, and that, in

*■ See Law of Legislative Power in Canada, pp. 279-288, and
especially the dicta of the Privy Council in the Fisheries Case,
[1898] A. C. at p. 473; Hodge v. The Queen (1883), 9 App. Cas.
at pp. 131-2; and Liquidators of the Maritime Bank v. Receiver-
General of New BrunsuHck, [1892] A. C. at pp. 441-2.

” (1874), L. R. 6 P. C. 31.

‘^McGregor v. Esquimau and NaTiaimo R. W. Co., [1907]
A. C. 462. Cf. also Florence Mining Co. v. Cobalt Lake Mining
Co., [1909] 18 O. L. R. 275, affirmed by the Privy Council, March
18th, 1910, 102 L. T. 375, where their lordships especially say
that they ” see no reason to differ from the conclusion of the
Court below ” on the point of legislative power. See, too, McNair
V. Collins (1912), 27 O. L. R. 44.

84 Canada’s federal system.

1887, the Dominion Government granted it to
the railway company. In 1904, liowever, the
British Colmnbia legislature passed an Act de-
claring that a grant in fee simple, without any
reservation as to mines and minerals, should be
issued to certain settlers therein defined, and a
grant was made to the appellant of the same
land. The Privy Council held, that the Act of
1904, on its true construction, legalised the grant
thereunder to the appellant, and superceded the
title of the railway company, and was intra vires.
The land, of course, had ceased to be the prop-
erty of the Dominion in 1887. And now in the
very recent Alberta aiid Great Waterways
Case,’^” their lordships say : * ‘ Their lordships are
not concerned with the merits of the political
controversy which gave rise to the statute the
validity of which is impeached. What they have
to decide is the question whether it was within
the power of the legislature of the province to
pass the Act.”

/ Our legislatures, moreover, are not restricted
by the limitations of what is called * the right of
eminent domain ‘ under the United States Con-
stitution. Thus, the passage in Kent’s Commen-
taries,”^ is quite inapplicable to them, where it is
written : * If it (the legislature) should take
it (private property) for a purpose not of a
public nature, as if the legislature should take
the property of A. and give it to B. ; or if they
should vacate a grant of property, or of a fran-
chise, under the pretext of some public use or

*** Royal Bank v. The King, [1913] A. C. 283. See infra, pp.
504-9.

” 12th ed.. Vol. 2, at p. 340.

LEGISLATURE MAY DISREGARD VESTED RIGHTS. 85

service, such cases would be gross abuses of
their discretion, and fraudulent attacks on
private right, and the law would be clearly
unconstitutional and void.” Neither have we,
in our constitution, anything like the pro-
visions of the United States Constitution,
that ‘ no State shall . . . pass any bill
of attainder, ex post facto law, or law im-
pairing the obligation of contracts ‘; and that,
as to Congress itself, * no bill of attainder or
ex post facto law shall be passed. ‘ All of which
forcibly brings out the difference between the
sovereign powers of Canadian legislatures when
legislating on the subjects committed to their
jurisdiction, and the limited powers of legisla-
tures in the United States.

CHAPTER VII.

Some Introductoky Remaeks as to the Dis-
teibution of legislative power within
Canada.

1. Generality of language used. — It will
be observed that the framers of the British
North America Act, in providing for the dis-
tribution of legislative power within Canada,
were careful to use only very general lan-
guage, containing in principle the conferred
powers, but leaving to future legislation and
judicial interpretation the task of completing the
details. As has been very well said by a British
Colmnbia judge :^ ”The Constitution Act of
Canada only lays down broad, but distinct well-
guarded principles and lines of demarcation,
between the different legislative powers of sep-
arate legislative bodies, sometimes over the same
subject, leaving these principles to be applied
from time to time, according to the ever- varying
growth and changes in the subjects of legisla-
tion incident to a new and progressive country.
. . We must not expect to find that an organic
Act of this kind will attempt to specify par-
ticularly even all the general heads of the sub-
jects on which either Dominion or local legis-
latures can be expected to legislate. It would
require omniscience to foresee what in the course
of time may arise to call for legislative interfer-
ence. All that the framers of it could be ex-

> Crease, J., In The Thrasher Case (1882), 1 B. C. (Irving) at
r. 209, 211.

CONSTITUTION USES BROAD GENERAL LANGUAGE, 87

pected to do would be what they have done in
sections 91 and 92, lay down clear principles of
distinction between the classes of subjects which
were to be dealt with by the several legislatures,
enunciate clear principles to guide them in their
respective legislation, and compile the other sec-
tions of the Act with special, though inferential,
reference to the guiding principles so laid down,
and especially guarding against clashing of
authority.” To which may be added words of
the same learned judge in another case,^ that
‘* it is natural that in the working out of such
a Constitution in a new and growing country,
questions should be continually cropping up,
and call upon the Courts to define gradually and
with greater exactness, as time progresses and
population expands, the relative powers given
by the Act to the Dominion and provinces re-
spectively.”

It would, of course, have been impossible to
make a complete enumeration of all the powers
to be vested in the Dominion parliament and
the provincial legislatures, but there is much
more in the matter than that; and it would be
a grave injustice to the framers of our Consti-
tution to take so narrow a view. Mr. Dicey has
pointed out that ‘ the very inflexibility of a writ-
ten Constitution is a temptation to the framers
of one to include in it maxims, principles, and
restrictions, which (though not in their nature
constitutional), appear to them, at the time, to
have special claims upon respect and observ-

*Regina v. Wing Chong, 2 B. C. (Irving), at p. 156.
* Article on Federal Government, 1 L. Q. R. at pp. 86-7.

88 Canada’s federal system.

ance. The framers of the British North Am-
erica Act resisted this temptation, far more than
did those of the United States Constitution/
As they state, in the preamble of the Act, they
purposed to give to Canada * a Constitution
similar in principle to that of the United King-
dom ‘; and so they restrained their hands, and
in the distribution of legislative powers, as in
devising the other features of our Constitution,
with consummate skill and wisdom, they allowed
as free scope as in the nature of the case was
possible, for that process of organic growth of
the Constitution coincidently with the growth of
the development of the national life generally,
which is one great virtue of the Constitution of
Great Britain. As a Quebec judge ‘ concisely
puts it : ” The general terms employed show that
the wish has been to give a general elasticity in
our Constitution.”

But, of course, this great object could only be
attained at the cost of some ambiguity. As the
Privy Coimcil say in their recent judgment con-
cerning references to the Supreme Court by the
Governor-General in Council:” ** Numerous
points have arisen, and may hereafter arise,
upon those provisions of the Act which draw the
dividing line between what belongs to the Dom-
inion or to the province respectively. An ex-
haustive enumeration being unattainable (so in-
finite are the subjects of possible legislation),

*See Legislative Power in Canada, pp. xlvi.-lxiv.

•Tessier, J., in Poutin v. Corporation of Quebec (1881), 7
Q. L. R. at p. 339. .

•• Attomey-Oeneral of Ontario v. Attomey-Oeneral of Canada,
[1912] A. C. at pp. 581, 583.

GENERAL SCHEME OF CONSTITUTION. 89

general terms are necessarily used in describing
what either is to have, and with the use of gen-
eral terms comes the risk of some confusion,
whenever a case arises in which it can be said
that the power claimed falls within the descrip-
tion of what the province is to have. Such
apparent overlapping is unavoidable, and the
duty of a Court of law is to decide in each par-
ticular case on which side of the line, it falls in
view of the whoje statute. . . When the text
is ambiguous, as, for example, when the words
establishing two mutually exclusive jurisdictions
are wide enough to bring a particular power
within either, recourse must be had to the context
and scheme of the Act-”

2. The General Scheme. — The scheme of the
British North America Act, in respect to the
subject now under consideration, comprises a
four-fold classification of legislative powers:
firstly, over those subjects which are assigned to
the exclusive plenary power of the Dominion
parliament; secondly, over those assigned ex-
clusively to the provincial legislatures; thirdly,
over two subjects, and two subjects only, which
are assigned concurrently to the Dominion par-
liament and the provincial legislatures, namely,
agriculture and immigration;” and, fourthly,

• Section 95. ‘ In each province the legislature may make
laws in relation to Agriculture in the province, and to Immigra-
tion into the province; and it is hereby declared that the Par-
liament of Canada may from time to time make laws in relation
to Agriculture in all or any of the provinces, and to Immigration
into all or any of the provinces; and any law of the legislature
of a province, relative to Agriculture or to Immigration, shall
have effect in and for the province as long and as far only as it

is not repugnant to any Act of the parliament of. Canada.’

90 Canada’s federal system.

over a particular subject, namely, education,^
whicli, for special reasons, is dealt with excep-
tionally, and made the subject of special legisla-
tion. By section 91, the Imperial parliament
unequivocally, but in general terms, declares its
intention to be, to place under the jurisdiction
of the Dominion parliament all matters except-
ing only certain particular matters assigned by
the Act to the local legislatures. The 92nd sec-
tion, therefore, instead of dealing with the sub-
jects to be assigned to the local legislatures in
the same general terms as had been used in the
91st section, by placing under the jurisdiction
of those legislatures all matters of a purely local
or private nature within the province (a mode
of expression which would naturally lead to
doubt and confusion, and would be likely to
bring about that conflict which it was desirable
to avoid), emnnerates, under items numbered
from 1 to 15 inclusive, certain particular sub-
jects, all of a purely provincial, municipal, and
domestic nature, that is to say, * of a local or
private character, ‘ and then winds up with item
No. 16, to prevent the particular eniuneration
of the * local and private ‘ matters included in
items 1 to 15 being construed to operate as an
exclusion of any other matter, if any there might
be, of a merely local or private nature. But,
inasmuch as certain of the items of federal jur-
isdiction enumerated in the 91st section, might
be well considered to be matters which would
come within some of the provincial subjects
enmnerated in the 92nd section, as, for example,

‘ Section 93. See infra p. 630 et seq.

GENERA CONSTITUTION. 91 ”^iP

‘ bills of exchai! TO and vromissory notes,’ and
‘ bankruptcy and insolvency, ‘ within * prop-
erty and civil rights, ‘ and so it might have been
thought that provincial legislatures might legis-
late with regard to them provided they restricted
the operation of such statutes to the province,
whereas, in fact, the 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, by a necessary
and wise provision, the 91st section especially
enacts that, * notwithstanding anything in this j
Act, the exclusive legislative authority of the
parliament of Canada extends to all matters
coming within the classes of subjects next here-
inafter enumerated.”’ The 91st section also ex-
pressly provides that the enumeration of classes
therein contained is not thereby to * restrict
the generality ‘ of the preceding extensive
powers * 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 legis-
latures of the provinces. ‘

3. The Dominion residuary power. — The
great importance of that feature of the British
North America Act whereby a general undefined
and unrestricted power to make laws for the
peace, order, and good government of Canada,

‘”Of. City of Fredericton v. The Queen (1880), 3 S. C. R. at
pp. 562, 566 et seq.

92 Canada’s federal system.

in relation to non-provincial subjects, is vested
in the Dominion parliament, is obvious. Its
possible scope is by no means determined as yet.
It has been suggested by no less a person than
Lord Davey that by virtue of it, the Dominion
parliament might, perhaps, even change the fed-
eral Constitution, though not, of course, the Con-
stitutions of the provinces.* In the Riel case,”
the Privy Council said that the words are apt
to authorize the utmost discretion of enactment
for the attainment of the objects pointed to,

• See Legislative Power in Canada, p. 699, n. 1. In Kerley v.
Lake Erie Transportation Co. (1912), 26 O. L. R. at p. 595. Boyd,
C, says that it “means the exercise of large and liberal discre-
tionary powers to be exercised for the well being of the com-
munity, and for the right working of the Constitution.” There
were one or two observations by members of the Board on the
argument in the matter of Supreme Court references by the
Governor-General: Attomey-Oeneral for Ontario v. Attorney-Gen-
eral for Canada, [1912] A. C. 571, in reference to this clause,
which are, perhaps, worth while recording here. Thus Lord
Lorebum, L.C. (p. 101 verbatim report: Briggs, Toronto), says: —
” It is not, I suppose, contended that the words ‘ peace, order, and
good government ‘ involve the faculty of re-writing the whole
Constitution.” And Lord Atkinson says (p. 156): “Must not
any legislation that you pass under that be consistent with the
different sections of the Act?”

Mr. Newcombe: “No doubt the whole Act must be taken
together.”

Lord Atkinson : ” If they did not do that they oould practi-
cally repeal all the sections.”

And, again, at p. 169, Lord Atkinson says: — ” Surely you
cannot say that the legislature, under this power of ‘ peace, order,
and good government,’ can practically tear up the sections of the
British North America Act.”

And in the judgment itself, [1912] A. C. at p. 584, after
referring to the clause in question, 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
British North America Act.”

•(1885), 10 App. Cas. 675.

DOMINION RESIDUARY POWER. 93

quite irrespective of the English common law
or legislation. In another case they said that
they fully authorised the Canada Temperance
Act.” In yet another,” they say that the Domin-
ion parliament does not derive jurisdiction
from them 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;
but, that ” some matters, in their origin local or
provincial, might attain such dimensions as to
affect the body politic of the Dominion, and to
justify the Canadian parliament in passing laws
for their regulation or abolition in the interest
of the Dominion.”

The special significance of the word ‘ order,’
in the phrase * peace, order, and good govern-
ment of Canada,’ is, also, worthy of special no-
tice. In the corresponding Quebec Resolution
(No. 29) the words used were * peace, welfare
and good government, ‘ which were also the words
used in respect to the law-making powers in the
Royal Proclamation of 1763,”* in the Quebec Act,
14 Geo. III., c. 3, s. 12; in the * Constitutional
Act ‘ of 1791, 31 Geo. III., c. 31, s. 2, and also in
the Union Act of 1840, 3-4 Vict. c. 35, s. 3. It is
clear therefore, that the substitution of the word
‘ order ‘ for welfare was done advisedly. It
places in the hands of the federal power of
the Dominion the right and responsibility
of maintaining public order throughout the

^’^ Russell T. The Queen (1882), 7 App. Cas. 836.
” [1896] A. C. at p. 361. And see as to this infra, pp. 136-8, 169.
*^For this Proclamation see Houston’s Constitutional Docu- i/
ments of Canada, p. 67; Cart. Cas., Vol. 3, at p. 449n.

94 Canada’s federal system.

whole country. The want of a similar pro-
vision in the Constitution of the United States,
has been described as * the capital defect of
the American Constitution, where the preser-
vation of law and order is not, primarily r-ui
and directly, the affair of the Government ^’
of the United States.’ “*’ The difficulties and/*^
dangers resulting therefrom were illustrated by
the great railway strike disturbances in Chicago
in the summer of 1894. See further, as to this
Dominion residuary power, infra, p. 99 et seq,

4. Distribution of legislative power between
Dominion and provinces is exhaustive. — It is

clear, then, from the sections of the Federation
Act relating to the distribution of legislative
power to which reference has been made, that
they exhaust the whole range of legislative
power, so far, at any rate, as the internal affairs
♦ of Canada are concerned, and that whatever is
not thereby given to the provincial legislatures
rests with the Dominion parliament. And so,
in their very recent judgment in respect to refer-
ences by the Governor-General in Council to the
Supreme Court,^”” the Privy Council say : ” There
can be no doubt that under this organic
instrument 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.
It would be subversive of the whole scheme and

“”The Spectator, July 14th, 1894.

” Attomey-Oeneral for Ontario v. Attomey-Oenerai for Car^
odOy [1912] A. C. 571, at p. 581.

CANADIAN SELF-GOVERNMENT COMPLETE, 95

policy of the Act to assume that any point of
internal self-government is withheld from Can-
ada.” But herein lie two important points of
difference between our Constitution 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. Consequently, many possible laws no
legislature in the United States has power to
pass. The scheme of our Federation Act was
to have no reserved power ; but that there should
be, in Canada, the same kind of legislative power
as there is in the British parliament, so far as
that was consistent with the confederation of the
provinces and our position as a Dominion within
the Empire. Under the British Constitution,
no legislative power exists in the people alone
at all, but such wholly exists in the King, Lords,
and Commons, and the concurrence of these
alone can express the supreme will of the nation,
and there is no limit to their power of legisla-
tion. Here then, again, the framers of the Brit-
ish North America Act have been faithful to
the statement in the preamble of the Act, that
it was passed to carry out the expressed wish of
the legislatures of the different provinces of
Canada, that they should be federally united
* with a Constitution similar in principle to that
of the United Kingdom.’ And we can under-
stand the meaning of what was well said by a
British Columbia judge,” that in these sections

” The Thrasher Case (1882), 1 B. C. (Irving), at p. 195.

96 Canada’s federal system.

of our Federation Act we have that distribu-
tion of legislative power which ” may one day,
though in the perhaps distant future, expand
into national life/’

The second point of contrast with the Con-
stitution of the United States is that with us
all powers of legislation not expressly assigned
j to the provincial legislatures, are vested in the
J Dominion parliament, whereas in the Constitu-
tion of the United States, as expressed in the
10th Amendment: ‘ The powers not delegated
to the United States by the Constitution,
nor prohibited by it to the States, are reserved
to the States respectively, or to the people.’
This has been, again and again, pointed out in
the cases as a leading distinction between the
two Constitutions. The intention of the f ramers
of our Constitution, who had before them the
melancholy warfare which had so long desolated
i ^ so large a portion of this Continent, was, no

‘ doubt, as a Quebec judge has said,” that ” the

general Legislature should be stronger, far
stronger than the federal Legislature of the
United States— in relation to the States Govern-
ments.”

There is, then, no possible kind of legislation
relating to the internal affairs of Canada, which
cannot be enacted either by the Dominion par-
Jiament or by the provincial legislatures. If the
subject-matter of an Act is not within the
jurisdiction of the provincial legislatures, act-
ing either severally or in concert with each

“Torrance, J., In Angers v. Queen Ins. Co. (1877), 21 L. C. J.
at p. 80. Aliter in Australia: Constitution Act, sees. 106, 107.

t

iil

EXCLUSIVENESS OF LEGISLATIVE POWERS. 97

other, it is within the jurisdiction of the Domin-
ion parliament ; while, on the other hand, if the
subject-matter of an Act, other than agriculture
or immigration, is within the jurisdiction of
the Dominion parliament, it is not (in its en-
tirety) within the jurisdiction of the provincial
legislatures, whether acting severally or in con-
cert with each other, although some of the pro-
visions of such Act, ancillary to the main sub-
ject of legislation, may, as we shall see, be within
such provincial jurisdiction. In the case of
Valin V. Langlois,^^ the Privy Council based
their reasoning upon the fact that ‘* that which
is excluded by the 91st section of the British
North America Act is not anything else than
matters coming within the classes of subjects
assigned exclusively to the legislatures of the
provinces.” And, in the later case of Bank of
Toronto v. Larnbe,’^” their lordships state that
they adhere to the view ‘* which has already
been taken by this Committee, that the Federa-
tion Act exhausts the whole range of legislative
power, and that whatever is not thereby given
to the provincial legislatures rests with the Par-
liament.” But as a Supreme Court judge has
recently pointed out,” this does not mean that

” (1879), 5 App. Cas. at p. 119.

” (1887), 12 App. Cas. at p. 588.

” Duff, J., in Canadian Pacific R. W. Co. v. Ottawa Fire Ins.
Co. (1907), 39 S. C. R. at p. 465. On December 5th, 1912, in the
House of Commons, in answer to the question : ‘ What portions
of the Dominion of Canada are solely under Federal control and
jurisdiction’ the Minister of Justice replied — “The territory which
remains subject to the legislation of the Dominion and not sub-
ject to any provincial powers, is comprised in the North-West
Territories and the Yukon Territory, being all that part of the
Dominion not included within the boundaries of any province:”
Newspaper report.

C.F.S. — 7

V

98 Canada’s federal system.

there must be found vested in one single author-
ity, 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 fed-
eral railway with which the provincial railway
connects. And, in like manner, in their recent
judgment in City of Montreal v. Montreal Street
Railway, “^'”^ where the question was the power of
the Dominion parliament when legislating re-
specting a federal railway to also legislate re-
specting the through traffic passing over a pro-
vincial railway which connected with it, the
Privy Council say: ” One of the arguments
urged on behalf of the appellants was this : The
through traffic must, it is said, be controlled by
some legislative body. It cannot be controlled
by the provincial legislature because that legis-
lature has no jurisdiction over a federal line,
therefore it must be controlled by the legislature
of Canada. The answer to that contention is
this, that so far as the * through ‘ traffic is car-
ried on over the federal line, it can be controlled
by the parliament of Canada, and that so far
as it is carried over a non-federal pro^dncial
line, it can be controlled by the provincial legis-
lature, and the two companies who own these
lines can thus be respectively compelled by these
two legislatures to enter into such agreement
with each other as will secure that this ‘through’
traffic shall be properly conducted; and fui-ther
that it cannot be assumed that either body will
decline to co-operate with the other in a reason-
able way to effect an object so much in the

“• [1912] A. C. 333, at p. 346.

J

DOMINION RESIDUARY POWER. 99

interest of both the Dominion and the province
as the regulation of ‘ through ‘ traffic.”

5. Extent and scope of Dominion residuary
power. — Reverting to the subject of the resi-
duary power conferred upon the Dominion par-
liament to make laws for the peace, order, and
good government of Canada in relation to non-
provincial subjects, as has been already inti-
mated,”” judicial decisions have, by no means as
yet, worked out its full meaning and scope. As
the Judicial Committee themselves say, in City
of Montreal v. Montreal Street Railway,^'”‘ it
was laid down in their previous judgment on the
Liquor Prohibition Appeal, 1896,’^” with regard
to this residuary power of the Dominion par-
liament that — ” (1) sections 91 and 92 of the
British North America Act indicate that the ex-
ercise of legislative power by the parliament of
Canada in regard to all matters not enumerated
in section 91 ought to be strictly confined to such
matters as are unquestionably of Canadian in-
terest and importance, and ought not to trench
upon provincial legislation with respect to any
classes of subjects enumerated in section 92; (2)
that to attach any other construction to the gen-
eral powers which, in supplement of its enum-
erated powers, are conferred upon the parlia-
ment of Canada by section 91, would not only be
contrary to the intendment of the Act, but would
practically destroy the autonomy of the pro-

“” Bupra, p. 92.
“= [1912] A. C. at pp. 343-4.

“* Attorney-Oeneral of Ontario v. Attorney-Qeneral of the
Dominion, [1896] A. C. 348. See also, infra, pp. 136-8.

100 Canada’s federal system.

vinces; and (3) that if the parliament of Can-
ada had authority to make laws applicable to
the whole Dominion 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, there is hardly a
subject upon which it might not legislate to the
exclusion of provincial legislation.” And they
held that these principles established that the
invasion of the rights of the province which the
Railway Act and Order of the Commissioners,
in the case before them, necessarily involved in
respect to one of the matters enumerated in sec-
tion 92, namely, legislation touching local rail-
ways, could not be justified on the ground that
this Act and Order concerned the peace, order,
and good government of Canada/’*

It is by no means clear that the view expressed
in some cases that the Dominion parliament’s ac-
tion in this field is subject to the express provi-
sions of the British North America Act itself,
will be ultimately sustained, save, of course, as
to the provisions which confer upon the pro-
vinces their exclusive powers, one of which is
the amendment of the Constitution of the pro-
vince, except as regards the office of Lieutenant-
Governor. No doubt, it may be asked, how can
the Dominion parliament have the power to
amend the Imperial Act which established it?
The only possible answer would be, if such power
it has, — ‘ ‘ because the Imperial Act, which con-

“• See further as to this case of City of Montreal v. Montreal
Street Railway, [1912] A. C. 333, infra, pp. 344-6.

DOMINION RESIDUARY POWER. 101

stituted it, gave it the power.” So we come
back to the question, does the power to make
laws for the peace, order, and good government
of Canada, in relation to non-provincial sub-
jects, include even this, or does it not? ”’

Extra-territorial legislation. — Again, it is
no doubt true, as a general statement, that
the Dominion parliament cannot legislate ex-
cept for Dominion territory, just as a great
English judge said of Imperial statutes in a fa-
mous case: ‘* The statutes of this realm have no
power, are of no force, beyond the Dominions of
Her Majesty, not even to bind the subjects of the
realm, unless they are expressly mentioned, or
can be necessarily implied. ” ‘* But this does not
affect the power of the Imperial parliament to
give the legislatures of self-governing Domin-
ions within the Empire, the power to pass sta-
tutes which shall operate outside their borders,
though within those of the Empire itself. And
the powers conferred upon the Australian Fed-
eral parliament by the Commonwealth of Aus-
tralia Constitution Act, 1900, suggest that no
narrow construction should be given to this resi-
duary Dominion power, for we find (section 51),

“* For expression of an opinion adverse to the possession
of any such power by the Dominion parliament (not, however,
confirmed by the Law Officers of the Crown in England) see the
Memorandum by the late Sir John Bourinot, in special refer-
ence to whether Parliament had power to provide for the ap-
pointment of a Deputy Speaker of the Senate: Hodgins’ Prov.
Legisl. 1867-1895, App. B., pp. 1314-1323. See, also, Keith’s
Responsible Government in the Dominions, Vol. 2, pp. 771-6.

^* Jeffrey v. Boosey (1854), 4 H. L. R. at p. 939. See, also,
supra, p. 51, n. 1,

102 Canada’s federal system.

power conferred there to make laws for the
peace, order, and good government of the Com-
monwealth with respect to ‘ fisheries in Aus-
tralian waters beyond territorial limits, ‘ ” ‘ ex-
ternal affairs, ‘ and * the relations of the Com-
monwealth with the islands of the Pacific ‘ ; in
connection with which is also to be noted the
provision (section 5) that * the laws of the
Commonwealth shall be in force on all British
ships, the (King’s) ships of war excepted, whose
first port of clearance and whose port of destina-
tion, are in the Commonwealth.’^” The ques-
tion of the power of the legislatures of the self-
governing Dominions to legislate extra-terri-
fcorially within the Empire, would seem, after
all, to be merely a question of the construction
of the Constitution which the Imperial Govern-
ment or parliament has conferred upon them
respectively. It is, moreover, still a moot ques-
tion whether colonial statutes, purporting to

” This power had been possessed by the Federal Council of
Australasia since 1885. ‘ It is not perhaps without interest that
the Hague Tribunal, in the case of the North American fisheries
dispute, have clearly shown their recognition of the right of the
three parliaments of the United Kingdom, Canada, and New-
foundland to express the sovereign power of the Empire to
make regulations regarding the fishery on the coast — a signifi-
cant rejoinder to the attempts once pressed by the Government of
the United States that the Imperial parliament and Government
alone could make regulations affecting the treaty rights of the
United States in North America:’ Article on Legal Interpretation
of the Ck)nstitution of the Commonwealth, Jl. of Comp. Legisl.,
N.S. Vol. XL, p. 238.

**A8 to these powers see an article by Professor Harrison
Moore in 16 L. Q. R. at pp. 38-40; the last mentioned power had
also been possessed by the Federal Council of Australasia since
1885. For some cases upon the question of extra-terrltoriality
as a ground of objection to Colonial statutes, see, also, Law of
Legislative Power in Canada, pp. 321-338.

EXTRA-TEBEITORIAL LEGISLATION, 103

have an extra-territorial operation, are, never-
theless, not valid and binding within the terri-
tory and upon the Courts of the lawmaker, un-
less repugnant to some Act of the Imperial par-
liament; it being quite a different question
whether foreign Courts will recognise them, and
judgments obtained in legal proceedings initi-
ated under them.”

Moreover, bearing in mind the fact that,
as we shall see, /the powers of the Dominion
parliament, as also of the provincial legis-
latures, are as plenary and ample within the
limits prescribed by the British North Am-
erica Act as the Imperial parliament, in the
plenitude of its power possessed and could be-
stow, and that the expressed intention was to
confer upon the Dominion a constitution sim-
ilar in principle to that of the United Kingdom,
it seems beyond question that they must have
the same power to bind their own subjects every-
where, as the Imperial parliament has to bind

*• See Asbury v. Ellis, [1893] A. C. 339; Rex v. Meikleham,
(1905) 11 O. L. R. 366; per Boyd, C, in Regina v. Brierly (1887).
14 0. R. at p. 531; per Sedgewick, J., in In re Criminal Code
Sections relating to Bigamy (1897), 27 S. C. R. at p. 482; and,
generally, Law of Legislative Power in Canada, pp. 321-338. In
Bex V. Meikleham (1905), 11 O. L. R. 366, it is pointed out that,
although it is no doubt a rule of international law that there is
no municipal jurisdiction — using that expression in its broad
sense — to interfere with persons on board a foreign vessel navi-
gating the high seas, and the Great Lakes had in Regina v. Sharp
(1869), 5 P. R. 135, been held to form part of the high seas, yet
where it is plain that the legislature has intended to disregard
or interfere with that rule, the Courts are bound to give effect
to its enactments. See this case referred to also infra p. 184, n. 1.
As to the deportation and expulsion of aliens, paupers, and
others, see Attorney-General of Canada v. Cain, [1906] A. C.
542, and infra, p. 303, n.

n

104 Canada’s federal system.

British subjects everywhere.” For the expres-
sion * subject of a colony ‘ has high judicial
authority,” and, perhaps, may be taken to mean

” See In re Criminal Code Sections relating to Bigamy
(1897), 27 S. C. R. 461. Cf., however, an article on Extra-terri-
torial Criminal Legislation of Canada, by PYank A. Anglin, in
which he arrives at a contrary conclusion: 19 C. L. T. at pp. 1, 38.
And see the Despatch of the Secretary of State for the Colonies
of December 17th, 1869, objecting to the Dominion Act, 32-33
Vict, c 23, s. 3, purporting to make any person who wilfully
and corruptly makes a false affidavit or declaration out of
Canada to be used in Canada, guilty of perjury and liable to
be prosecuted in Canada, as ultra vires, because it assumed ‘ to
affix a criminal character to acts committed beyond the limits
of the Dominion’: Hodgins’ Prov. Legisl. 1867-1895, p. 7. It was
amended by 33 Vict. c. 26, D., which confines the offence to mak-
ing such false affidavit or declaration ‘ out of the province in
which it is to be used, but within the Dominion of Canada.’

“That of Turner, L.J., in Low v. Routledge (1865), L. R. 1
Ch. 42, at pp. 46-7. The point decided there is that a colonial
legislature cannot affect an alien’s rights under an Imperial
Act expressed to extend to the colonies. The plaintiff, an alien,
temporarily resident in Montreal, claimed to be entitled to copy-
right under the Imperial Copyright Act, 5-6 Vict c. 45, in respect
to a book she was publishing in England and it was unsuccess-
fully contended that she could not be so entitled, because by a
Canadian statute an alien coming into Canada for the purpose
of publishing a work, as the plaintiff had done, and publishing
his book there, would not be entitled to copyright in the work
so published, and because an alien coming into Canada could
acquire only such rights as were given by the law of Canada. In
Regina v. Brierly (1887), 14 O. R. at p. 533, Boyd, C, says: —
” Quoad Canada, and as to British subjects resident here, the
parliament of Canada has the same authority as that possessed by
the Imperial parliament with reference to British subjects through-
out the realm.” And see Keith op. cit. Vol. 3, pp. 1453-7. As to
statutes authorising the initiation of legal proceedings against
defendants out of the jurisdiction, see Ashiury v. Ellis, [1893]
A.. C. 339, 344; Buchanan v. Rucker (1898), 9 East 192; Becquet
v. McCarthy (1831), 2 B. & Ad. 951; Don v. Lippman (1837), 5
01. & F. 1, at p. 21; Sirdar d Ourdyal Singh v. Rajah of Farid-
kote. [1894] A. C. at p. 685; Cavan v. Stexoart (1816), 1 Stark
N. P. 525; McCarthy v. Brener (1896), 2 Terr. L. R. 230. 233;
Deacon v. Chadwick (1901), 1 Q. L. R. 346, where it was held
that a judgment obtained in one province by service cf process
out of the jurisdiction against a domiciled resident of another

EXTRA-TERRITORIAL LEGISLATION. 105

British subjects domiciled in the colony. But
in all this we are, as it were, looking forward be-
yond the stage which we have actually reached

province, who had not in any way attorned to the jurisdiction,
had no extra-territorial effect on the ground that no province
can pass laws to operate outside its own territory, and no tri-
bunal established by a province can extend its process beyond
the province so as to subject persons or property elsewhere to its
decisions; but that it would be otherwise where the rule or judg-
ment of such other province had been obtained upon the non-resi-
dent’s own application; and Bank v. Orrell (1878), 4 V. L. R, L.
219. See, also, an article on Extra-territorial Jurisdiction in this
matter (1899), 19 C. L. T. at p. 185. A consideration of these cases,
most of which are commented on in Legislative Power in Canada,
at pp. 328-333, brings prominently into notice the distinction
already referred to, between the question whether such statutes
are valid and binding within the territory and upon the Courts
of the law-maker, and the question whether foreign Courts will
recognise them, and judgments obtained in legal proceedings
initiated under them; and with regard to the latter question,
the difference between the position of those who are in some sense
subjects of the law-maker, and of those who are not. In a
despatch of October 29th, 1874, to the Governor-General of Can-
ada, quoted by Todd (Pari. Gov. in Brit. Col., 2nd ed., at p. 183),
the Secretary of State for the Colonies wrote: — ” It is obvious
that if the intervention of Her Majesty’s Government were liable
to be invoked whenever Canadian legislation on local questions
affect, or is alleged to affect, the property of absent persons, the
measure of self-government conceded to the Dominion might be
reduced within very narrow limits. It is to the Dominion gov-
ernment and legislature that persons concerned in the legislation
of Canada on domestic subjects and its results must have re-
course.” But as to the legislature of a colony, in which an
English company domiciled in England carries on business,
being unable by legislation to affect the rights of preference
shareholders, as between themselves and ordinary shareholders,
under a contract entered into in England, as by imposing a
duty in the nature of income tax on all dividends or interest
paid out of assets in the colony to the members of the company,
see Spiller v. Turner, [1897] 1 Ch. 911. In Jones v. Twohey
(1908), 1 Alt. L. R. 267, 295, Beck, J., held that certain statutes
in force in Saskatchewan providing that a chattel mortgage
should be void as against creditors and subsequent purchasers
unless registered, and requiring a suflacient description of the
goods — ” were effective only within the territory over which the

10«

CANADA S FEDERAL SYSTEM.

in the organic development of this Dominion
and the Empire at large.

legislature which enacted them had jurisdiction, and were obvi-
ously and necessarily intended to protect creditors and subse-
quent purchasers seeking to enforce their claims within the
same judicial territory; and hence that such registration was not
necessary in order to preserve the validity of the mortgage as
against creditors and subsequent purchasers seeking to enforce
their claims in other jurisdictions,” e.g., in this case, in Alberta.
A.S to a provincial legislature having no authority either to
establish, vary, or declare the boundary line between it and
another province, see report of Sir Oliver Mowat as Minister of
Justice, of December 17th, 1896, on a New Brunswick Act pur-
porting to enact what shall be the line of division between the
provinces of New Brunswick and Nova Scotia: Hodgins’ Prov.
Legisl. 1896-8, p. 48.

CHAPTER VIII.

CONCURKENT JURISDICTION.

With the exception of agriculture and immi-
gration, legislation in relation to which is spe-
cially provided for by section 95 of the British
North America Act, there is no subject-matter
over which there can (speaking strictly) be said
to exist concurrent powers of legislation in the
Dominion parliament and the provincial legis-
latures. And yet, this must not be taken to mean
that, if any Act is intra vires of the Dominion
parliament, a precisely similar Act could under
no circmnstances be intra vires of a provincial
legislature. For, as we shall see,^ subjects which
in one aspect and for one purpose fall within
section 92, may, in another aspect and for an-
other purpose, fall within section 91 of the Brit-
ish North America Act; and if the subject-mat-
ter dealt with comes within the classes of sub-
jects assigned to the parliament of Canada,
there is no restriction upon its passing an Act
which will affect one part of the Dominion and
not another; and, consequently, it seems quite
possible that a particular Act, regarded from
one aspect, might be intra vires of provin-
cial legislature, and yet, regarded from another
aspect, might be also intra vires of the Dominion
parliament.. What is properly to be called the
subject-matter of the Act may depend upon
what is the true aspect of the Act.’* An Ontario

^ Infra, pp. 199-209.

‘• Wilson, J., in Reg. v. Taylor (1875), 36 U. C. R. at p. 206.

108 Canada’s federal system.

Act, concerning bills of lading, and giving con-
signees and endcfpsers the same rights, and im-
posing on them the same liabilities as if the con-
tract had been made with them, has been held
intra vires as dealing only with property and
civil rights, although the Dominion parliament
might also have passed a similar Act as a neces-
sary and convenient matter to be dealt with in
the regulation of trade and commerce.” But
whether or not there could be a case of an Act
which, in its entirety, both Parliament and the
provincial legislatures could constitutionally
pass, it certainly must not be supposed that Par-
liament and the provincial legislatures can, for
no purpose whatever, or imder no circumstances
whatever, legislate in relation to the same mat-

xter. In some directions the jurisdictions of the
pro^dnces and of the Dominion may overlap.

^Thus, the fact that the Dominion parliament
can declare anything a crime, will not, it would
seem, exclude the powers of the province to deal
with the same thing in its ci\al aspect, and to
impose sanctions for the observance of the la\f,
as, for example, in the matter of providing
against frauds in the supplying of milk to cheese
factories.’ In the cases from which the last ex-
ample is derived, the subject-matter of the two
Acts was not, strictly speaking, the same. That
of the Dominion Act was a crime, it was a crim-
inal law passed in the interests of the general
public; that of the Ontario Act was rather the

* Beard v. Steele (1873), 34 U. C. R. 43. And see per Wilson,
J., ad loc. eit.

•Per Rose, J., in Regina v. Stone (1892), 23 O. R. 46. Cf.
Regina v. Wason (1890), 17 O. A. R. 221. And see infra, pp. 590-2.

I
i

I

CONCURRENT POWERS OF LEGISLATION. 109

regulation of the mode of carrying on a par-
ticular trade or business within the province, so
as to secure fair and honest dealing between the
parties concerned. Again, although, as the
Privy Council have held,* the Ontario Act, to
prevent the profanation of the Lord’s Day,
treated as a whole, is ultra vires as legislation
upon criminal law, which is exclusively for the
Dominion parliament, this does not necessarily
mean that the provincial legislatures cannot
pass Sunday Observance laws closing places of
amusement, and prohibiting trading or indus-
trial work on Sundays, as police regulations, in
the sense of *’ regulations suggested by the spe-
cial circumstances of particular localities, to
promote the welfare and benefit of the public
and the material, intellectual, and moral in-
terests of the inhabitants. ‘ ” And where the Do-
minion legislation is not on any matter which
is expressly mentioned in the enumeration of
section 91, but is under the general power to
make laws for the peace, order, and good govern-
ment of Canada, it does not, by any means, fol-
low, that the provincial legislature cannot make
a local law of a similar character, e.g., temper-
ance legislation. Moreover, when the legislative
powers of the Dominion parliament and the
provincial legislatures are said to be mutually
exclusive, this must not be understood as mean-
ing that legislation by the latter cannot he intra
vires if it interferes with or even renders nuga-

* Atty.-Oeneral for Ontario v. Hamilton Street R. W. Co..
[1903] A. C. 524.

‘Tremblay t. Cite de Quebec (1910), R. J. Q. 38 S. C. 82,
37 S. C. 375. And see infra, pp. 594-612.

110 Canada’s federal system.

tory perfectly constitutional legislation by the
former. As we shall see, in certain cases, local
legislation may by indirect means render in-
operative federal legislation, and vice versa.””^
And so, of the legislative area given to the Do-
minion parliament by section 91 of the British
North America Act, part is its own exclusively,
but that area also may include, in addition, cer^
tain possible ancillary provisions which touch
and trench upon the provincial law and jurisdic-
tion ; and, as long as there are enactments within
the latter part of the Dominion area, they will
exclude the right of the province to legislate in
such a way as to destroy or derogate from them,
for, as we shall see, valid Dominion legislation
has always the predominant authority.””

And, lastly, inasmuch as, as we shall see later
on, with regard to certain classes of subjects
generally described in section 91, legislative
powers may reside as to some matters falling
within the general description of those subjects,
in the provincial legislatures, there may be said
to be concurrent jurisdiction as to such subjects
in Parliament and the provincial legislatures
in this sense, that legislative power as to a cer-
tain department or certain departments of broad
general subjects of legislation is vested in the
one, and as to the remaining departments in the
other.'”

We arrive, therefore, at this result, that the
most that can be said with accuracy is, that the
powers of the Dominion parliament and of the

»• See infra, pp. 164-189.
•” See infra, pp. 123-7.
** See infra, pp. 112-118.

GENERAL PRINCIPLES OF CONSTRUCTION, 111

local legislatures to deal directly and in their
entirety, and as matter of separate and detached
legislation (as distinguished from legislative
provisions merely ancillary to the main subject
of legislation), with the various classes of sub-
jects enumerated in sections 91 and 92, are in
each case special and exclusive.

CHAPTER IX.

General Principles of Construction of the
British North America Act in Respect
to the Distribution of Legislative Power.

1. Act to be construed as a whole. — In order
to construe the general terms in which the
classes of possible subjects of legislation in
sections 91 and 92 of the British North America
Act are described, both sections and the other
parts of the Act must be looked at, to ascer-
tain whether language of a general nature must
not by necessary implication or reasonable in-
tendment be modified and limited. For the
British Noii;h America Act has to be construed
as a whole, and where some specific matter is
mentioned as within the exclusive power of one
body, Dominion parliament or provincial legis-
lature, as the case may be, which, but for that
reference, would fall within the more general
description of a subject-matter confided to the
other, the statute must be read as excepting it
from that general description. And so with
regard to certain classes of subjects generally
described in section 91 of the British North Am-
erica Act, legislative power may reside as to
some matters falling within the general descrip-
tion of those subjects in the legislatures of the
provinces; and, in a sense, the converse also is
true in certain cases, and legislative power maj^
reside in the Dominion parliament as to some
matters falling within the general description
of the provincial classes of subjects enumerated
in section 92.

FEDERATION ACT TO BE CONSTRUED AS A WHOLE. 113

Thus, in the cases of Citizens Insurance
Company v. Parsons,^ and Russell v. The Queen,”
the Privy Council say that sections 91 and 92
must be read together, and the language of the
one interpreted, and where necessary, modified
by that of the other ; and illustrate their mean-
ing by the observation that it could not have
been intended, while assuring to the provinces
exclusive legislative authority on the subject of
property and civil rights, to exclude Parliament
from the exercise of its general power to make
laws for the peace, order, and good government
of Canada in relation to matters not coming
within the classes of subjects exclusively as-
signed to the provincial legislatures, whenever
any incidental interference with property and
civil rights would result from it. And, in At-
torney-General of Ontario v. Mercer* their
lordships say : * ‘ The extent of the provincial
power of legislation * over property and civil
rights in the province ‘ cannot be ascertained
without, at the same time, ascertaining the
power and rights of the Dominion under sec-
tions 91 and 102. “*

As Mr. Edward Blake very well put it on the
argument in the Bonsecours case “”r ” These sec-
tions of eniuneration {sc. sections 91 and 92),

‘ (1881), 7 App. Cas. at p. 110.
» (1882), 7 App. Cas. at p. 839.
‘ (1883), 8 App. Cas. at p. 776.

* Section 102 creates a Consolidated Revenue Fund, to be
appropriated for the public service of Canada, out of Duties
and Revenues over which the respective provincial legislatures
had power of appropriation before and at the Union.

* [1899] A. C. 367. Verhatim report of argument, p. 6.

C.F.8. — 8

114 Canada’s federal system.

must be construed so as to avoid a conflict ; and
this is to be done by cutting out of whatever may
be the larger, the more general, the wider, the
vaguer enumeration of one section, so much as
is comprised in some narrower, more definite,
more precise enumeration in the other section.
As, for example, in one section you find ‘ Prop-
erty and Civil Rights,’ in the other ‘ Bills and
Notes;’ you excise from ‘ Property and Civil
Rights,’ so much as is comprised in ‘ Bills and
Notes.’ ”

So, again, in Bank of Toronto v. Lamhe,’^ in
deciding upon the validity of a certain Act of
the Quebec Legislature, passed in 1882, entitled
* An Act to impose certain direct taxes on cer-
tain commercial corporations,’ the Privy Coun-
cil sa}”, that the first thing to enquire into is
whether the tax falls within the description of
taxation allowed by No. 2 of section 92 of the
Federation Act, namely, ‘ direct taxation within
the province in order to the raising of a revenue
for provincial purposes ‘ ; and, secondly, they
say: ” If it does, are we compelled, by anything
in section 91 or in the other parts of the Act, so
to cut do^^^l the full meaning of the words of
section 92 that they shall not cover this tax.”
And they point out ” that in Citizens Insurance
Co. V. Parsons* when dealing with the meaning
of the words ‘ regulation of trade and com-
merce, ‘ in No. 2 of section 91 : “It was found
absolutely necessary that the literal meaning of

• (1887), 12 App. Cas. at p. 581.
‘ 12 App. Cas. at p. 586.

• (f881), 7 App. Cas. 96.

FEDERATION ACT TO BE CONSTRUED AS A WHOLE. 115

the words should be restricted in order to afford
scope for powers which are given exclusively to
the provincial legislatures.”

It is somewhat surprising, however, to find
provincial Courts, as they have done in two
cases at any rate, interpreting one of the classes
of subjects of legislation mentioned in section
92 by another of the classes in the same section.
In one of these cases,^ a Manitoba Court held,
that, although No. 14 of section 92 assigns to
provincial legislatures the maintenance of pro-
vincial Courts, both of civil and of criminal jur-
isdiction, this does not authorise them to pro-
vide for the maintenance of Courts of Justice
and Court houses by the imposition of law
stamps on legal proceedings therein, because it
must clearly mean maintenance in such manner
and by the exercise of such powers as are within
the scope of the legislature, and the power of
the provincial legislatures as to taxation is de-
fined by No. 2 of section 92 as ‘ direct taxation
within the province in order to the raising of
a revenue for provincial purposes.’ In the
other,'”* an Ontario judge held, that the power
given by No. 13 of section 92, as to property and
civil rights, ” must be qualified in its turn by
power No. 2, for the right to deal with prop-
erty and civil rights, could not authorise the
levying of any indirect tax.” But, although the
provisions of sections 91 and 92 must be inter-
preted with reference the one to the other, and
to other parts of the Act, it seems a strange

‘Dulmage v. Douglas (1887), 4 M. R. 496.
‘*Regina v. Taylor (1875), 36 U. C. R. at p. 201.

116 Canada’s federal system.

construction to say that a certain legislative
power might have been held to have been given
by one of the classes specified in one of these
sections, if another legislative power had not
been given by another class specified in the same
section.

To return to the general subject of interpret-
ing section 91 by section 92, and vice versa, in
Citizens Insurance Co. v. Parsons, ^^ the Privy
Council observe that, notwithstanding the endea-
vour o:^ section 91 of the British North America
Act, to give pre-eminence to the Dominion par-
liament in case of a conflict of powers, it is
obvious that, in some cases in which this appar-
ent conflict exists, the legislature could not have
intended that the powers exclusively assigned
to the provincial legislature should be absorbed
in those given to the Dominion parliameut.j For
example, they say that solemnization of m ar-
riage would come within the genei’al description
‘ marriage and divorce, ‘ which is contained in
the enumeration of subjects in secJtion_91, yet
‘ solemnizatio n of marrja ge in the provin ce ‘
is enumeratSframong the classes of subjects in
sec tion 9 2, and no one can doubt, notwithstand-
ing 1!te general words of section 91, that this
subject is still within the exclusive authority of
the legislatures of the provinces.” So the rais-
ing of money by any mode or system of taxation,
is enumerated among the classes of subjects in
section 91, but the description is sufficiently
large and general to include ‘ direct taxation

” (1881), 7 App. Cas. at p. 108.
” See infra, pp. 314 et seq.

FEDERATION” ACT TO BE CONSTRUED AS A WHOLE. 117

within the province in order to the raising of a
revenue for provincial purposes/ assigned to
the provincial legislature by section 92, and it
obviously could not have been intended that in
this instance, also, the general power should
override the particular one. In these cases their
lordships add: “It is the duty of the Cc(i/1\t s, — •
however difficult it may be, to ascertain in whal
degree and to what extent authority to deal with
matters falling within these classes of subjects
exists in each legislature, and to define in the
particular case before them the limits of their
respective powers. It could not have been the
intention that a conflict should exist; and, in
order to prevent such a result, the two sections
must be read together, and the language of one
interpreted, and, where necessary, modified by
that of the other. ‘ ‘ In such cases, to quote words
of the Privy Council in another case,”: ‘* The
literal meaning of the words in section 91 should
be restricted in order to afford scope for powers
which are given exclusively to the provincial
legislatures.”

In some instances, however, as has been , .sP^**^”
pointed out by a learned judge of the Ontario W^ j
Court of Appeal,” it would be more cori’^ct to
say that the Dominion parliament has been in-
vested with a power excepted out of some gen-
eral power conferred upon provincial legisla-
tures. I He says : ” There are some cases in which
the power is given generally to the provinces to

« (1887), 12 App. Cas. at p. 586.

“Hodge y. The ‘Queen (1882), 7 O. A. R. at p. 274, per Bur-
ton, J.A.

118 Canada’s fedeual system.

deal with a particular subject. Take, for in-
stance, ‘ property and civil rights, ‘ which in
these general terms would comprise the power
to regulate contracts of every kind, including
bills of exchange and promissory notes. When,
therefore, we find the Dominion entrusted with
an exclusive power to legislate upon bills and
notes, the only way to make the Act consistent
is to read this as an exception to the general
power granted to the province. So, again, al-
though the provinces have exclusive power,
under sub-section 14, to make laws ‘ in relation
to the administration of justice in the province,
including the constitution, maintenance, and
organization of provincial Courts, both of civil
and criminal jurisdiction,’ when we find bank-
ruptcy and insolvency mentioned as a subject
for the exclusive jurisdiction of the Dominion,
we must, necessarily, understand that the or-
ganization of an insolvent Court, and adminis-
tration of justice and proceedings connected
with insolvency, are excepted from the general
words of that sub-section. But to that extent
only can the Dominion parliament assume to
interfere. ‘ ‘ . —

Thus, as it has been often expressed, the sub-
jects enmnerated in sectJon a, 91 ani i_92 of the
British North America Act, in many cases
** overlap,” or, to use an expression of Lord
Watson’s, on the argument before the Privy
Council on the Manitoba School Case, 1894,”
” interlace,” and so, therefore, may_JQominion
and provincial legislation upon them. In such

*Brophy y. Attorney-General of Manitoba, [1895] A. C. 202.

OVERLAPPING LEGISLATION. 119

case neither legis lation w ill be ul tra vires if^the
field is clearTbut, if the fieTdlsnafxleOir, and in
such domain the two legislations meet, then, the
Dominion legislation mu^^prevail. The Privy
Council have so expressed themselves in two re-
cent cases,” and it is especially this ” double enu-
meration ‘ ‘ which causes difficulty in the construc-
tion of the Act; and has been sometimes made
the subject of hostile comment. Probably, how-
ever, Dorion, C. J., is quite justified in saying ” :
‘* I consider that the Act is as clear as it could
be made, to embrace so many questions in a small
compass.” Not only, indeed, do some of the
enumerated classes of subjects in the one sec-
tion overlap some of those in the other section,
but, if either of the two sections are taken separ-
ately, in some instances, the subjects enimierated
in the same section overlap each other. As to
section 91, however, as Sir Farrer Herschell, as
he then was, observed on the argument in the
matter of the Dominion License Acts”: ** It
must be remembered that the enumerated sub-
jects in that section are only subordinate enum-
erations for greater certainty, but not to exclude
the generality of the words that go before ; and,
when they are simply specifying things for
greater certainty, some of those specifications
may very well overlap. They may very well

^* Grand Trunk R. W. Co. v. Attorney-Oeneral of Canada,
[1907] A. C. at pp. 67-9; and City of Montreal v. Montreal Street
R. W. Co., [1912] A. C. at p. 343, as to which latter case see infra
pp. 344-6. See, also, Rex v. Hill (1907), 15 O. L. R. 406.

” In Dobie v. The Temporalities Board, 3 L. N. at p. 254.

“Transcript from Marten and Meredith’s shorthand notes,
at p. 167.

120 Canada’s federal system.

include certain things that would be included
witliin the more general terms, but they speci-
fied them for greater certainty.”

2. Rules for testing validity of Acts. — In
determining the validity of a Dominion Act, the
first questionto~’5e”delermined is, whet her t he
Act falls within any of the classes^of subjects
enumeraEecT in section 92, and assigned exclu-
sively 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 eniunerated classes of sub-
jects 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 as-
signed exclusively to the legislatures of the pro-
vinces, for, if it does not, it can be of no validity,
and no further question would then arise. It
is only when an Act of the provincial legisla-
ture prima facie falls within one of these classes
of subjects that the further question arises,
namely, whether, notwithstanding this is so, the
subject of the Act does not also fall within one
of the enumerated classes of subjects in section
91, and so does not belong to the Dominion par-
liament. /For, notwithstanding anything in the
British North America Act, the exclusive

I

I

RULES FOE TESTING VALIDITY OF ACTS. 121

authority of the parliament of Canada extends
to all matters coming within the classes of sub-
jects enumerated under the various items in
section 91. These are the rules for determining
the constitutionality of Dominion or provincial
Acts laid down by the Privy Council in Russell
V. The Queen,^” I SLiid Citizens Insurance Co. v.
Parsons/” and repeated and applied by them in
Dohie V. The Temporalities Board/^ and Bank
of Toronto v. Lamhe.^^ In the first of these cases
their lordships add: “It cannot be contended,
and, indeed, was not contended at their lord-
ships’ Bar, that, if the Act does not come within
one of the classes of subjects assigned to the pro-
vincial legislatures, the parliament of Canada
had not, by its general power, to make laws for
the peace, order, and good government of Can-
ada, full authority to pass it.”””

Of course, as has already been pointed out,
(the subject-matter of a provincial Act may fall
within one of the general subjects enumerated
in section 91, in a broad interpretation of the
latter, and yet the provincial legislature may
have exclusive power to deal with it.[ To put it
in another way, [there are cases where it is pos-
sible and proper to give so large a meaning to
the words of section 91, that section 92 can still
be left to have effect by way of exception^ It
must also be borne in mind that, as we shall see,
the exercise of provincial legislative powers, and

” (1882), 7 App. Cas. at p, 836.
” (1881), 7 App. Cas. at p. 109.
” (1882), 7 App. Cas. at p. 149.
” (1887), 12 App. Cas. at p. 581.
^* S?e suprc. pp. 94-9.

122

CANADA S FEDERAL SYSTEM.

the operation of provincial Acts, may be some-
times more or less restricted by reason of exist-
ing Dominion legislation.””

“^ This seems as good a place as any to note the words of.the
Privy Council in Washington v. Grand Trunk R. W. Co., [1899]
A.. C. at p. 280 : ” The decision of the Court of Appeal seems to
have been influenced by contrasting the Act of Parliament with
certain statutes enacted by the legislature of Ontario for the
regulation of provincial railways. As these are enactments
emanating from a different legislative body from that which
passed the statute to be interpreted, and cannot be said to be
in pari materia with it, their lordships are unable to see that
they ought to have any influence upon the question to be decided
arising exclusively under the Dominion Act relating only to
Dominion railways.” As to text, see infra, pp. 123-7.

CHAPTER X.

Predominance of Dominion Legislation.

Where, in respect to matters with which pro-
vincial legislatures have power to deal, p^vin-
cial legislation directly conflicts with enactments
of the Dominion parliament, whether the latter
immediately relate to the enumerated classes of
subjects in section 91 of the British North Am-
erica Act, or are only ancillary to legislation on
such subjects, or are enactments for the peace,
order, and good government of Canada in rela-
tion to matters not coming within the classes of
subjects assigned exclusively to the provincial
legislatures, nor within the enumerated classes
of section 91, the pro\dncial legislation must
yield to that of the Dominion parliament. For
before the laws enacted”by the federal authority,
within the scope of its powers, the provincial
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
province thereof. ” The Privy Council has
affirmed tEis predominance of Dominion legisla-
tion in no less than six judgments.^ Thus, in
one case,’ they say that J provisions in regard to
voluntary assignments for the benefit of credi-

‘ See, besides the three cases here particularly referred to,
Tennant v The Union Bank of Canada, [1894] A. C. 31; Orand
Trunk R. W. Co. v. Attorny-Gc neral of Canada, [19071 A. C at
p. 68; Crovm Grain Co. v. Day, [1908] A. C. at p. 507.

* Attorney-Genepal of Ontario v. Attorney-General of Canada,
[1894] A. C. 189.

124 Canada’s federal system.

tors, and giving them precedence of executions,
might be included in bankruptcy legislation, as
ancillary thereto, and as alternative to compul-
sory bankruptcy proceedings, and that provin-
cial legislatures would be then precluded from
interfering with the legislation, though in the
absence of any such Dominion bankruptcy law,
they held the like provisions in the Ontario As-
signments and Preferences Act i7itra vires/ And
in another,^ they held that the^ enactments of the
Ontario Liquor License law, 1890, must yield
to those of the Canada Temperance Act, 1886,
so f^r as they came into collision with the lat-
ter, /’ and must remain in abeyance unless and
until the Act of 1886 is repealed by the parlia-
ment which passed it.” J Nor does it make any
difference whether the provincial enactments be
prior in date to the conflicting Dominion enact-
ments, or subsequent.* I But, as their lordships
also point out in the last mentioned case, the
Dominion parliament has no authority to repeal
directly any provincial statute, whether it does
or does^ot come within the limits of jiixisdic-
tion prescribed by section 92, any more than a
provincial legislature can repeal a- Dominion
Act. This case further shows that it makes no
difference whether the Dominion legislation in
question be under the general residuary power
of the Dominion parliament, or under any of
its enumerated powers, for it was under the
former, and not under the latter, that the Board

•Liquor Prohibition Appeal, 1895, [1896] A. C. 348.

* See UTJnion St. Jacques de Montreal v. Belisle, L. R. 6 P. C
31. at pp. 36-7; Liquor Prohibition Appeal, 1895. [1896] A. C. at
pp. 366-7, 369; and Legislative Power in Canada, at pp. 529-30.

■

PARAMOUNT AUTHORITY OF DOMINION LAWS. 125

placed the power to pass the Canada Temper-
ance Act.

Their lordships reiterate the same doctrine
in the recent case of La Compagnie Hy-
draulic de St. Francois v. Continental Heat
and Light Co.*” where they affirmed the Court
below in holding that the power conferred by a
provincial legislature on an industrial company
in the incorporating Act, to carry on their cor-
porate enterprise to the exclusion of every other
company, in a designated territory, is without
effect against a company constituted for similar
ends by a previous statute of the parliament of
Canada. They say: ” The contention on behalf
of the appellant company was that the only
effect of the Canadian Act was to authorise the
respondent company to carry out the contem-
plated operations in the sense that its doing so
would not be ultra vires of the company, but that
the legality of the company’s action in any pro-
vince must be dependent on the law of that pro-
vince. This contention seems to their lordships
to be in conflict with several decisions of this
Board. Those decisions have established that
where as here,ya given field of legislation is
within the competence both of the parliament
of Canada, and of the provincial legislature, and
both have legislated, the enactment of the Do-
minion parliament must prevail over that of
the province if the two are in conflict^ as they
clearly are in the present case. It must, how-
ever, be remembered that in this case, as in City

” [1909] A. C. 194, reported below (1907), R. J. O. 16 K. B.
406.

126 Canada’s federal system.

of Toronto v. Bell Telephone Co.*” the Domin-
ion company in question fell within the enu-
merated classes of subjects in section 91, viz.,
No. 29.

But the rule as to predominance of Domin-
ion legislation, it may be confidently salH, can
yonly be invoked in cases of absolutely con-
flicting legislation in pari materia, when it
would be an impossibility to give effect to both
the Dominion and the provincial enactments.y
And, of course, provincial legislation which is
merely supplemental to Dominion legislation,
may be perfectly good, at any rate when the lat-
ter is not within one of the enumerated classes
of subjects. Thus, where the Dominion Com-
panies Act provided a method for serving sum-
monses, notices, and other documents on a com-
pany incorporated under that Act, this was held
not to prevent pro^dncial, or rather North- West
Territorial, legislation, providing that such com-
panies must file a power of attorney to some per-
son in the Territories upon whom process might
be served, before they could be registered and
enabled to carry on their business in the Terri-
tories, thus providing another and more conven-
ient method for the service of process upon such
company.’ ^^

And the Privy Coimcil have certainly not
received with favour the contention which
has been raised, in certain cases, that pro-
vincial powers of legislation are restricted or
placed in abeyance by the very inaction of the

** [1905] A. C. 52, 6 O. L. R. 335. 3 O. L. R. 465.

*Rex V. Massey-Harris Co. (1905), 6 Terr. L. R. at p. 131.

PARAMOUNT AUTHORITY OF DOMINION LAWS. 127

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.^

And, lastly, in cases where Parliament has
legislated under its general power of legislation,
as distinguished from its enumerated powers,
there may be nothing to prevent a province legis-
lating in pari materia to meet the special wants
of that particular locality/

‘Legislative Power in Canada, pp. 534-537.
‘ A curious question may be raised as to what law governs
Dominion subjects in Canada, when and so far as the Dominion
parliament has not legislated on them. If we are to say that
there is any one body of law upon Dominion subjects behind
Dominion legislation, it seems clear that we must look to the
English common law; and the gradual results of that theory
would tend towards a uniformity of law throughout Canada, with
the sole exception of those subjects assigned by the British
North America Act to the provinces, and dealt with in Quebec
under the French law. The competitive theory would be that
the Dominion legislative powers, when exercised, apply in each
province, and the effect of them in any particular province has
to be judged according to the law of that province, so that be-
hind the Dominion legislative powers in Quebec there would be
the French law, and in the other provinces the English law.
This, no doubt, is the theory which is most likely to be accepted.
In what, perhaps, may be called the Indian Treaty Indemnity
case (Province of Ontario v. Dominion of Canada, [1910] A. C.
637, 42 S. C. R. 1), where a question arose as to the right of the
Dominion to require the province of Ontario to indemnify it in
respect to a treaty of surrender entered into by the Dominion
with certain tribes of Indians of certain lands within the bound-
aries of Ontario, counsel for the Dominion had relied upon cer-
tain principles of the civil law. In the Supreme Court, Idington,
J., observes (p. 102): — “As to the civil law, invaluable as it
often is to afford light upon the origin of what is found in much
of the Civil Code of Quebec and the exceptional cases arising in
that province left unprovided for by that Code, it is no dis-
paragement of the civil law to say that it is not of much direct
service when we come to consider questions arising upon the

CHAPTER XI.

exclusiveness of dominion enumerated
Powers.

Notwithstanding anjrthing in the British
North America Act, [the exclusive legislative
authority of the parliament of Canada extends
to all matters coming within the classes of sub-
jects enumerated under the various items of
section 91. Here, again, we are merely quoting
words embraced in the 91st section of the Fed-
eration Act, but they gave rise to comment in
the judgment of the Privy Council in the Fishi-

British North America Act, or upon legislation of the Dominion
which usually applies uniformly to all the provinces, and of still
less value is it when we have, as here, to consider the legislation
of another province than Quebec. The civil law is the ultimate
origin of much that concerns property and civil rights in
Quebec, but when these subject-matters were relegated by the
British North America Act to the respective jurisdictions of the
provinces there was no longer need for its consideration as
having any binding or operative effect in relation to the forma-
tion of the government of the Dominion as a whole, or its rela-
tion to its several parts, or anything springing therefrom.”
In the judgment on appeal in this case the Privy Council say.
[1910] A. C. at 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 particu-
lar 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 or 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 applicable.”
In Cook v. Dodds (1903), 6 0. L. R. 608, it was held that as the
Bills of Exchange Act does not deal with the consequences which
are to flow from the character which it attaches to the promise

EXCLUSIVENESS OF DOMINION POWERS. 139

eriesjiase/ in connection with the question then
before them, viz., /whether regulations control-
ling the manner of fishing being, undoubtedly,
within the competence of the Dominion parlia-
ment, under No. 12 of that section (‘ Sea Coast
and Inland Fisheries’), they can, nevertheless,
be the subject of provincial legislation also, in
so far as it is not inconsistent with the Dominion
legislation.! They say: ‘* The earlier part of this
section, read in connection with the words be-
ginning ‘ and for greater certainty,’ appear to
amount to a legislative declaration that any
legislation falling strictly within any of the
classes specially enumerated in section 91, is not
within the legislative competence of the provin-
cial legislatures under section 92. In any view,
the enactment is express that laws in relation
to matters falling within any of the classes enu-
merated in section 91, are within the ‘ exclu-
sive ‘ legislative authority of the Dominion
parliament. jWhenever, therefore, a matter is

which a bill or note contains, whether that of a joint, or a joint
and several, liability, these consequences fall to be determined
according to the law of the province in which the liability is
sought to be enforced. In Responsible Government in the Do-
minions (Vol. 2, p. 793), Mr. Keith discusses the question
‘ whether there is a common law of the Commonwealth of Aus-
tralia and expresses the view that there is no such common law
save in so far as the prerogatives of the Crown are concerned.
He adds: ‘It is true, of course, that in each of the States the
common law prevails, and in interpreting as a Court of Appeal
the statutes of the States the High Court will interpret the
common law, but that does not make the common law in force
as a part of the common law of the Commonwealth, though
within the range of the subjects committed to it it will be pos-
sible for the Commonwealth to declare that the doctrines of
the common law shall apply.’

^ [1898] A. C. 700, at pp. 715-716.

CF.S. —

130 Canada’s federal system.

within one of these specified classes, legislation
in relation to it by a provincial legislature is, in
their lordships’ opinion, incompetent.^ It has
been suggested, and this view has been adopted
by some of the judges of the Supreme Court,
that, although] any Dominion legislation deal-
ing with the subject would override provincial
legislation, the latter is, nevertheless, valid, un-
less and until the Dominion parliament so legis-
lates. Their lordships think that such a view
does not give their due effect to the terms of sec-
tion 91, and in particular to the word * exclu-
sively.’ It would authorise, for example, the
enactment of a bankruptcy law or a copyright
law in any of the provinces unless and until the
Dominion parliament passed enactments deal-
ing with those subjects. Their lordships do
not think this is consistent with the language
and manifest intention of the British North Am-
erica Act. It is true the Board held, in the case
of A ttor ney-Qen eral o^Cam^ada^jw. Attornev-
Generql^^Ontario, ^hat a law passed by a pro-
vincial legislature, which affected the assign-
ments and property of insolvent persons, was
valid as falling within the heading * property
and civil rights,’ although it was of such a na-
ture that it would be a suitable ancillary provi-
sion to a bankruptcy law. But the ground of
this decision was, that the law in question did
not fall within the class ‘ bankruptcy and in-
solvency ‘ in the sense in which those words
were used in section 91. For these reasons, their
lordships feel «©»strained to hold, that the en-

»[1894] A. C. 189.

EXCLUSIVENESS OF DOMINION POWERS. 131

actment of fishery regulations and restrictions
is within the exclusive competence of the Domin-
ion legislature, and is not mthin the legislative
powers of provincial legislatures. [ But, whilst
in their lordships’ opinion all restrictions or
limitations by which public rights of fishing are
sought to be limited or controlled, can be the
subject of Dominion legislation only, it does not
follow that the legislation of provincial legisla-
tures is not competent merely because it may
have relation to fisheries. For example, provi-
sions prescribing the mode in which a private
fishery is to be conveyed or otherwise disposed
of, and the rights of succession in respect of it,
would be properly treated as falling under the
heading ‘ property and civil rights ‘ within
section 92, and not as in the class * fisheries ‘
within the meaning of section 91. So, too, the
terms and conditions upon which the fisheries
which are the property of the province may be
granted, leased, or otherwise disposed of, and
the rights which consistently with any general
regulations respecting fisheries enacted by the
Dominion parliament may be conferred therein,
appear proper subjects for provincial legisla-
tion, either under class 5 of section 92, ‘ the
management and sale of public lands, ‘ or under
the class ‘ property and civil rights.’ Such
legislation deals directly with property, its dis-
posal, and the rights to be enjoyed in respect of
it, and was not, in their lordships’ opinion, in-
tended to be within the scope of the class * fish-
eries ‘ as that word is used in section 91.” It
is, then,pnly that subject-matter which is within

132

CANADA S FEDERAL SYSTEM.

the proper meaning and interpretation of one
of the enumerated classes of section 91, that is
for the exclusive legislative jurisdiction of the
Dominion parliament;/ and we must not take
too narrow and literal a view of the words by
which those classes are described. But the im-
portant thing to notice is, that [under the British
North America Act, legislative power is dis-
tributed by subjects and not by areaj; and this
will be further illustrated by what we shall have
to say as to locally restricted Dominion laws.

CHAPTER XII.

General Character of Dominion Powers.

1. General subjects of Dominion interest.—

JThe principle of the 91st section of the British
North America Act is to place within the legis-
lative 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 province. As the
late Mr. Justice Sedgewick of the Supreme Court
of Canada has said, the English-speaking pro-
vinces were, in the main, in favour of a legis-
lative union, but Lower Canada, ” properly
tenacious in its language, its institutions, and
its laws,” desired a provincial legislature, in
order to the perpetuity of these rights, and
necessitated a federal union or none at all: ^’ but
they were none the less desirous of giving the
central authority all jurisdiction compatible
with that determination, including generally
those subjects that would be common to the
whole Canadian people, irrespective of origin
or religion. Now the English criminal law was
the law of Lower Canada. . Then, too, the
Lower Canadian legislature and people had long
previously adopted, of their own free will, the
general principles of English commercial law.
. . Commercial law was not in that class of
institutions and laws, which they regarded as
peculiarly their own, and they were willing that
the federal parliament should alone legislate in

134 Canada’s federal system.

respect thereto.'” And for the rest, it will be
readily seen that the other Dominion powers
relate to matters necessarily and naturally
proper for federal administration.

To quote words of Sir John Macdonald,
in the Debates before Confederation: ‘* All
the great questions which affect the general
interests of the Confederacy as a whole, are
confided to the Federal parliament, while the
local interests and local laws of each section
are preserved intact, and entrusted to the
care of the local bodies.'”^ And so, to quote
a Maritime province judge,’: *’ The power to
make laws in relation to the regulation of trade
and commerce, like that relating to bills of ex-
change, or interest, weights and measures, or
legal tender, and certain other powers, was a
necessary incident to the Union to secure a
homogeneous whole, the object of the Union be-
ing to draw together the scattered settlements
of the different provinces, of diverse races and
religions, into one common people, to give them,
as far as practicable, a community of interest
and feeling; that, so far as could be done con-

‘/n re Prohibitory Liquor Laws (1895), 24 S. C. R. at pp.
232-4.

‘ An interesting paper by Professor Leacoclc of tlie University
of McGill, published among the Proceedings of the American
Political Science Association. 1909, brings home to one to how
great an extent the framers of the British North America Act,
as compared with those of the Constitution of the United States,
In fixing the exclusive legislative powers of the Dominion parlia-
ment, minimised the disadvantages in the economic and indus-
trial sphere which are inseparable from federal government and
divided jurisdictions.

* Fisher, J., in Queen v. Mayor, etc., of Fredericton (1879). 3
Pugs. A B. at pp. 168-9.

i

GENERAL CHAKACTER OF DOMINION POWERS. 135

sistently with their relative positions, their com-
mercial intercourse with each other should be
analogous; that the merchant or manufacturer
in Ontario should find in Nova Scotia or New
Brunswick, the same principles of commercial
law as were in operation in his own province;
and transact his business, buy, sell, and trade,
upon the same principles with an inhabitant of
Pictou or St. Stephen as with a citizen of Tor-
onto or London.” And in like manner, to quote,
this time, a Quebec judge,* : “/It is in the interest
of the trade and commerce of the whole Domin-
ion that there should be one uniform law for all
the provinces, regulating proceedings in the
case of insolvent debtors, unrestricted in its
operation by provincial boundaries; that it
should be possible to obtain a national execu-
tion, and not merely a limited provincial one

*Wurtele, J., in Dupont v. La Cie de Moulin (1888), 11 L. N.
225. In Bank of Toronto v. Lamhe (1885), M. L. R. 1 Q. B. at
p. 146, Dorion, C.J., says: “Every provision of the British North
America Act shews that the object of the promoters of the
measure was to place each province in a state of perfect inde-
pendence, as regards each other, to establish the utmost freedom
of intercourse and commercial relations between them, to ex-
clude from the legislative authority of the provinces all regula-
tions as to trade and commerce, customs and excise, navigation
and shipping, banks, bankruptcy and insolvency — in fact every
subject which might give occasion to an interference by one
province directly or indirectly which would affect the interests
of the other provinces.” However, the decision of the Privy
Council in that case, (1887), 12 App. Cas. 575, shews him to be in
error in the conclusion he proceeds to draw, that the Quebec Act
in question, taxing monetary institutions incorporated and domi-
ciled in other provinces, and whose stock was held by people
residing out of Quebec, was ultra vires; and it also shews that
he went too far in saying, in Attorney-General of Quebec v. Attor-
ney-Oeneral of the Dominion (1876), 2 Q. L. R, at p. 237, that:
” the provincial legislatures exercise their authority over matters
affecting the inhabitants of their respective provinces only.”

13» V^Nr ial House of Assembly, being a body which has
I /no judicial functions, and a Court of Justice, be-
^ ^. ^^ ing a Court of Record. There is, therefore, no
ground for saying that the powers of punishing
for contempt, because it is admitted to be in-
herent in the one, must be taken by analogy to
be inherent in the other.”‘ So, too, we read in
Cooley’s Constitutional Limitations,* that * in
America the authority of legislative bodies in
this regard (i.e., power to punish for contempt),
is much less extensive than in England. .
American legislative bodies have not been
clothed with the judicial fimction, and they do
not, therefore, possess the general power to pun-
ish for contempt ; but, as incidental to their legis-

* Doyle V. Falconer (1866), L. R. 1 P. C, at p. 339.
‘ As to the lex et consuetudo Parliamenti not applying to

Colonial legislatures, see further per Pollock, C.B., in Fenton
f. Hampton (1858), 11 Moo. P. C. 347. at p. 397.

• 6th ed., pp. 159-160.

INHERENT POWERS IN LEGISLATURES. 157

lative authority, they have the power to punish
as contempts the acts of members and others
which tend to obstruct the performance of legis-
lative duty, or to defeat, impede, or embarrass
the exercise of legislative power.’

However, the practical importance of this
subject does not seem very great, so far as our
provincial legislatures are concerned, for in the
case of Fielding v. Thomas,^ the Privy Council
have decided that No. 1 of section 92 of the Brit-
ish North America Act, whereby provincial
legislatures may exclusively make laws in rela-
tion to ‘ the amendment from time to time, not-
withstanding anything in this Act, of the Con-
stitution of the province, except as regards the
office of Lieutenant-Governor,’ confers the
power ” to pass Acts for defining the powers
and privileges of the provincial legislature.”
And they held, in this case, a provincial Act
intra vires which enacted that ‘ each House
shall be a Court of Record, and shall have all
the rights and privileges of a Court of Record
for the purpose of summarily inquiring into,
and (after the lapse of twenty-four hours) pun-
ishing the acts, matters, and things herein de-
clared to be violations or infringements of this
chapter,’ etc., amongst which were libels upon
members of either House during the session of
the legislature ; and prescribed imprisonment for
such time during the session of the legislature
then being held as might be determined by the
House before which such violation or infringe-

» [1896] A. C. 600, at pp. 610-1. See Law of Legislative Power
in Canada, pp. 746-749, for Canadian and Australian decisions.

158 Canada’s federal system.

ment should be inquired into ; and this, notwith-
standing that criminal law is one of the subjects
reserved by the British North America Act for
the Dominion parliament. They added, how-
ever: *^ Their lordships are disposed to think
that th^ House of Assembly could not constitute
itself a Court of Record for the trial of criminal
offences.! But, read in the light of the other sec-
tions of the Act, and having regard to the sub-
ject-matter with which the legislature was deal-
ing, their lordships think thatl those sections
were merely intended to give the House the
powers of a Court of Record for the purpose of
dealing with breaches of privileges and con-
tempt by way of committal. \ If they meant more
than that, or if it be taken as a power to try or
punish criminal offences otherwise than as in-
cident to the protection of members in their pro-
ceedings, section 30 could not be supported.’*
They further held, that /the provincial legisla-
ture had power to provide, as it had done by the
Act in question, 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 lia-
bility to a criminal prosecution.’*/

As to the power of the Dominion parliament
in respect to these matters, section 18 of the
British North America Act, as amended by Imp.
38-39 Vict. ch. 38, expressly provides :/ 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

••C/. Hill V. Weldon (1845), 3 Kerr (N, Br.) 1.

PRIVILEGES OF PARLIAMENT. 159

respectively, shall be such as are, from time to
time, defined by Act of the Parliament of Can-
ada,) but so that any Act of the Parliament of
Canada defining such privileges, immunities,
and powers, shall not confer any privileges, im-
munities, or powers, exceeding those at the pass-
ing of such Act, held, enjoyed, and exercised, by
the Commons House of Parliament of the
United Kingdom of Great Britain and Ireland
and by tlie Members thereof.” In Fielding v.
Thomas,^” the Privy Council remark, as to this :
— ” It is to be observed that the House of Com-
mons of Canada was a legislative body created
for the first time by the British North America
Act, and it may have been thought expedient to
make express provision for the privileges, im-
munities, and powers of the body so created,
which was not necessary in the case of the exist-
ing legislature of Nova Scotia.” In the Court
below,” counsel suggested that it may have been
necessary to give this express grant to the Par-
liament of Canada to exercise the same powers
as the English House of Commons, because it is
dealing with civil rights.”‘

2. Provincial powers co-equal and co-
ordinate.— Co-equal and co-ordinate legislative
powers in every particular were conferred by

” [1896] A. C. at p. 610.

” 26 N. S. at p. 59.

“» See for one view of the construction and effect of section
18, the Memorandum by the late Sir John Bourinot: Hodgins’
Prov. Legisl., 1867-1895, App. B., at pp. 1316-7. See, also, infra.
p. 388. And on the general subject of the privileges and proce-
dure of colonial legislatures, see Keith’s Responsible Government
in the Dominions, Vol. 1, pp. 441-473.

160

CANADA S FEDERAL SYSTEM,

\^>

/J^

(^\v,

7

/

the British North America Act on the provinces.
As the Privy Council states in its decision
in Liquidators of the Maritime Bank of
Canada v. Receiver-General of New Bruns-
wick,^^ ihe British North America Act placed
the Constitutions of all provinces within the Do-
minion on the same level / and what is true with
respect to the legislature of Ontario, is equally
applicable to the legislature of New Brunswick.
And it may be mentioned in this connection, that
a p:^inciple appears established with regard to
the/disallowance of Acts by the Governor-Gen-
eral, 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. ‘V

” [1892] A. C. at p. 442. And see Legislatire Power in Caa-
ada, pp. 705-9.

•* Hodgins’ Provincial Legislation, 1867-1895, at pp. 244a-244>,
817. See, however, supia. p. 32, n. 8.

CHAPTER XVI.

Power to Repeal or Alter Statutes of the
Old Province or Canada.

The powers conferred by section 129 of the
British North America Act upon the provincial
legislatures of Ontario and Quebec, to repeal
and alter the statutes of the old parliament of
the province of Canada, are made precisely co-
extensive with the powers of direct legislation
with which these bodies are invested by the other
clauses of that Act ; and the power of the provin-
cial legislature to destroy a law of the old pro-
vince 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,
applicable to the two provinces of Ontario and
Quebec, be validly repealed by one of them,
unless the nature of the Act is such that it still
remains in full vigour in the other. These are,
in fact, the very words of the Privy Council, in
their judgment in Dohie v. The Temporalities
Boards And so, in that case, the Board for the

* (1882) 7 App. Gas. at pp. 147, 150. Referring to this case
in their subsequent judgment in the Liquor Prohibition Appeal,
1895, [1896] A. C. at pp. 366-7, their lordships say: ” In that case
the legislature of Quebec had repealed a statute continued in force
after the Union by section 129 ” (sc. of the British North America
Act) ” which had this peculiarity that its provisions applied both
to Quebec and to Ontario, and were incapable of being severed sO’
as to make them applicable to one of these provinces only. Their
lordships held that . . .it was beyond the authority of the
legislature of Quebec to repeal statutory enactments which af-
fected both Quebec and Ontario.”

C.F.S. — 11

162 Canada’s federal system.

management of the Temporalities Fund of the
Presbyterian Church in Canada being a cor-
poration created for the two provinces and ap-
plicable to them both, it was held that it could
be altered only by a parliament having power
to legislate for those two provinces, that is, by
the Dominion parliament. Now, therefore, as
the Minister of Justice says, in a recent report
to the Governor-General, of November 22nd,
1900,^: ‘There can be no doubt that the legisla-
ture of either of the provinces of Ontario and
Quebec has no power to modify or repeal the
provisions of the charter of a corporation
created by the legislature of the late pro^dnce
of Canada for the purpose of doing business in
Upper and Lower Canada. ‘ ^ And it has been
held, in a Quebec Court, that a provincial legis-
lature cannot repeal a statute of the old Pro-
vince of Canada applicable equally to Upper and

» Provincial Legislation. 1899-1900, p. 16.

‘For several Canadian cases illustrating sec. 129, see Legis-
lative Power in Canada, pp. 368-371, to which may be added
Lafferty v. Lincoln (1907), 38 S. C. R. 620, over-ruling Rex v.
Lincoln (1907), 5 W. L. R. 301, where it was sought to apply
the principle of the Dobie case to an attempt by the new pro-
vince of Alberta to alter or amend an Ordinance of the Assembly
of the North- West Territories in force at the time of the creation
of the new province. See, also, Pearce v. Kerr (1908), 9 W. L. R
504; Beaulieu v. La Cite de Montreal (1907), R. J. Q. 32 S. C. 97;
McKinnon v. MoDongall (1907), 3 E. L. R. 573; Regina v. Peters.
Stev. N. Br. Dig., 3rd ed., p. 138. In Ex parte O’Neill (1905). R.
J. Q. 28 S. C. 304, at pp. 309-10, referred to infra. Saint Pierre, J.,
held that, although the legislature of Quebec had no power to re-
peal the Temperance Act, 1864, commonly known as the Dunkin
Act, passed by the old province of Canada, and applicable equally
to Upper and Lower Canada, this did not debar that legislature
from enacting a law having for its object the regulating of the
liquor traffic within the limits of its territory, in accordance with
its power affirmed and illu3trated by Attorney-General of

i

STATUTES OF OLD PROVINCE OF CANADA. 163

Lower Canada, such repeal only to take effect
in so far as that province is concerned.* Sed
quaere, if it was not a case of interfering with a
corporation incorporated to do business in both
provinces, or controlling a fund administrable 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.

In this connection, also, it may be well to
refer again to the words of Ramsay, J., in Dobie
V. Temporalities Board/ quoted supra, p. 154.

Manitoba v. Manitoba License Holders” Association, [1902] A. C.
73, both statutes taking effect concurrently. In his judgment in
Valin V. Langlois (1879), 3 S. C. R. at pp. 20-2, Ritchie, C.J.,
referring to section 129 of the British North America Act, says
the provincial Courts ” are the Courts which were the established
Courts of the respective provinces before Confederation, existed
at Confederation, and were continued with all laws in force,
‘as if the union had not been made,’ by the 129th section of the
British North America Act, and subject, as therein expressly
provided, ‘ to be repealed, abolished, or altered by the parlia-
ment of Canada, or by the legislature of the respective province,
according to the authority of the parliament, or of that legisla-
ture under this Act.’ They are the Queen’s Courts bound to take
cognizance of and execute all laws whether enacted by the Do-
minion parliament or the local legislatures, provided always
such laws are within the scope of their respective legislative
powers.” And others of the judges of the Supreme Court refer
in this case in like manner to section 129.

*Ex parte O’Neill (1905), R. J. Q. 28 S. C. 304, at pp. 309-310.

» (1880) 3 L. N. at p. 250.

i,

CHAPTER XVII.

Dominion Intrusion on Provincial Area.

Ancillary Legislation.

J. — kn

1. Indirect interference. — lAn Act of the
Dominion parliament is not affected in respect
to its validity by the fact that it interferes pre-
judicially with the object and operation of pro-
vincial Acts, provided that it is not in itself legis-
lation upon or w^ithin one of the subjects as-
signed to the exclusive jurisdiction of the pro-
vincial legislature. ^The Privy Council made
this very clear by their judgment in Russell v.
i The Queen.^ The question there vras, whether
the Can ada Temp er ance Act, 18 78, was with-
in the proper competency of the Dom inion
parliament to pass, and at the place cited,
their lordships^ say: ” It appears, that by
statutes of the province of New Brunswick,
authority has been conferred upon the munici-
pality of Fredericton to raise money for muni-
cipal purposes by granting licenses of the nature
of those described in No. 9 of section 92 of the
British Noi*th America Act, and that licenses
granted to taverns for the sale of intoxicating
liquors were a profitable source of revenue to
the municipality. It was contended by^the ap-
pellant’s counsel, and it was their main argu-
ment on this part of the case, .that the Temper-
ance Act interfered prejudicially with the traf-

» (1883), 9 App. Gas. at p. 130. ^

DOMINION INTRUSION ON PEOVINCIAL AREA, 165

fic from which this revenue was derived, and
thus invaded a subject assigned exclusively to
the provincial legislature. 1 But, supposing the
effect of the Act to be prejudicial to the revenue
derived by the municipality from licenses, it
does not follow that the Dominion parliament
might not pass it by virtue of its general auth-
ority to make laws for the peace, order, and good
government of Canada. Assuming that the mat-
ter of the Act does not fall within the class of
subjects described in No. 9, that sub-section can
in no way interfere with the general authority
of the Parliament to deal with that matter.”
And they point out that the Dominion legisla-
tion in question was not in itself legislation
within the subject of No. 9 of section 92 of the
British North America Act, and that if /because
of No. 9 of section 92, Parliament could never
legislate with regard to any article or commo-
dity which had or might be covered by such
licenses as are therein referred to, it might be
that laws necessary for the public good or public
safety could not be enacted at all, as being
thereby beyond the competency of Parliament,
and yet not laws of the character specified in
No. 9. / It is clear that in Russell v. The Queen,
we hare the deliberate conclusion of their Lord-
ships, for in Hodge v, TJiA^QueenJ” they ex-
pressly say that they ** do not intend to vary or
depart from the reasons expressed for their
judgment in that case.”

* (1883) 9 App. Cas. 117. For these, and numerous Canadian
judgments illustrating the same subject, see Law of Legislative
Power in Canada, pp. 425-468.

166 Canada’s federal system.

Powers by implication — ^Direct intrusion. —
In Russel Ly.^he^ Queen, it will be noted, the
legislation was under the gene ral resi duary
power of the Dominion parliament, and not
under one of the enumerated classes of section
91. It is true, a fortiori, that/in assigning^ the
Dominion parliament legislative jurisdiction in
respect to the general subjects of legislation
enimaerated in section 91, the Imperial parlia-
ment, by necessary implication, intended to con-
fer on it legislative power to interfere with, deal
with, and encroach upon, matters otherwise as-
signed to the provincial legislatures under sec-
tion 92, so far as a general law relating to those
subjects so assigned to it may affect them, as it
/may also do to the extent of such ancillary pro-
visions 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/ Thus, to take a recent judg-

* See infra, pp. 167-9. The Privy Council, however, cannot
perhaps be said to have encouraged us to go so far as the two dis-
senting judges in the Australian case of The King v. Barger
(1908), 6 C. L. R. 41, and to say that even the enumerated powers
granted to the Federal parliament are to be construed in as full
a manner as if the Federal parliament were that of a unitary
state. As to the prevailing doctrine of the Australian Courts, see
infra p. 170, n. 6b. See, also, infra pp. 169-179. In Ontario Power
Co. V. Hewson (1903), 6 O. L. R. at p.l5, Britton, J., says, referring
to the Power Company there in question: ” If the Dominion, and
the Dominion only, has power over the source of supply of water,
the thing of use to the company to be chartered, then the Domin-
ion has, of necessity, power to deal in detail with what is neces-
sary to utilize the water supply for purposes beneficial to Canada.”
He cites Tennant v. Union Bank of Canada, [1894] A. C. 1, and
Attomey-Oenerca of Ontario v. Attomey-Oeneral of Canada, [1894]
A. C. 189 (for which cases see infra pp. 265, 279-281), and, also,
Regina v. County of Wellinifton (1890), 17 A. R. 421, at p. 444,
where Osier, J.A., says that the grant of general legislative power

DOMINION INTRUSION ON PROVINCIAL AREA. 167

ment, in The Bell Telephone Case* their lord-
ships held that, if a work or undertaking falls
within item 29 of section 91, being within the
exceptions to item 10 of section 92 (whereby
provincial legislatures are given the exclusive
power to make laws in relation to local works
and undertakings other than certain specified
classes) , (the Dominion parliament have exclu-
sive jurisdiction, not only to incorp orate , but to
grant the powers„j:!equired for the construction
and establishment of the proposed work, even if,
in granting such powers, there be involved an
apparent invasion of matters otherwise within
exclusive local jurisdiction.^ And, as we have
seen, I Dominion legislation, whether on one of
the enumerated classes in section 91, or by way
of provisions properly ancillary to legislation
on one of the said enumerated classes, will over-
carries with it the power to enact minor provisions incidental to
the general purpose of the Act. The Act in question was a Do-
minion Act providing for the winding-up of the insolvent Bank
of Upper Canada, and was held intra vires under the Dominion
power over bankruptcy and insolvency, notwithstanding that it
contained certain minor provisions regarding the execution and
registration of instruments, which, it was objected, trenched upon
the limits of local powers, but which were all incidental to the
principal purpose of the Act. S. C. in App. sub nom. Quirt v. The
Queen (1891), 19 S. C. R. 510. Britton, J., also cites Bradburn v.
Edinburgh Life Assurance Co. (1903), 5 O. L. R. 657, noted infra
p. 275. In In re Railway Act (1905), 36 S. C. R. 136, at p. 143,
Davies, J., says: — ” I do not think the Courts should be astute
to discover reasons to annul the legislation of parliament on a
subject matter within its exclusive jurisdiction, even if, in the
exercise of its powers, it does trench upon the subjects gener-
ally within the provincial jurisdiction, or if plausible arguments
can be urged that, from that one aspect, such legislation is not
necessary to control effectively the subject matter of such legis-
lation.”

* [1905] A. C. 52. And see Kerley v. London, etc., Co., infra
p. 457, n.

168

CANADA S FEDERAL SYSTEM.

ride and place in abeyance provincial legislation
which directly conflicts with it.*’ /

In their judgment on the LiqjioiJ^^ohibition
Appeal, 1895,” however, the Privy Council point
oiTt” the distinction between the scope of the
Dominion parliament when legislating on the
enumeratea subjects in section 91, and when

legislating under its

general residuary power.

They state that it is free to deal with matters
assigned to the provinces ** in those cases where
such legislation is necessarily incidental to the
exercise of the powers conferred upon it by the
enumerative heads of clause 91, r’^” but they add,
** to those matters which are nor specified among
the enumerated subjects of legislation, the ex-
ception from section 92, which is enacted by the
concluding words of section 91,^ has no applica-
tion ; and in legislating with regard to such mat-
ters, the Dominion parliament has no authority
to encroach upon any class of subjects which is
exclusively .assigned to provincial legislatures by
section 92 ;|” and they proceed to explain their
meaning to be that sudi-ieg i g lation by P arlia-
ment, as is last referred to, ‘ ‘/ought to be strictly
confined to such matters as are unquestionably
of Canadian interest and importance, and ought
not to trench upon provincial legislation with

*• Supra pp. 123-7.

• [1896] A. C. 348, 360-1.

‘• And so, again, in their recent judgment in City of Montreal
T. Montreal Street Railway, [1912] A. C. at p. 343.

• ‘ 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.’ Infra pp. 138-
140. 168.

DOMINION INTRUSION ON PROVINCIAL AREA. 169

respect to any of the classes of subjects enum-
erated in section 92; ‘J and ought not to be
passed ** in relation to matters which in each
province are substantially of local or private
interest, upon the assumption that these mat-
ters also concern the peace, order, and good gov-
V ernment of the Dominion.” Parliament, they
-^say, does not derive jurisdiction from the intro-
ductory provisions of section 91 “to deal with
any matter which is in substance local or pro-
vincial, and does not truly affect the interest of
the Dominion as a whole.” At the same time
their lordships add that they ** do not doubt
that some matters in their origin local and pri-
vate, might attain such dimensions as to affect
the body politic of the Dominion, and to justify
the Canadian parliament in passing laws for
their regulation or abolition in the interests of
the Dominion. ‘ ‘ *”

2. Rule of necessity as applied to such
Dominion interference. — When it is sought,
however, to find some rule regulating the power
of the Fe deral parlia ment thus incidentally to
deal with matters which are imder the jurisdic-
tion of the provinces, it does not appear that
any has been, or. it may be, can be, formulated
beyond this, that^uch power does not extend any
further than is reasonable to enable it to legis-

‘” See, infra p. 294, cases illustrating the point that, in con-
ferring some benefit or creating some right, the Dominion parlia-
ment may impose as a condition upon those who avail them-
selves of that benefit, or that right, something which it would be
ultra vires for it to enact otherwise. And c/., in the same way,
as to provincial legislatures: Kerley v. London and Lake Erie
Transportation Co. (1912), 26 O. L. R. 588. See, also, infra pp.
136-8.

170 Canada’s federal system.

late on the general subjects committed to its
jurisdiction by the British North America Act.'” /
And, to adopt the words of Palmer, J., in /n re
De Veber,^: “perhaps the Act can present no
more difficult subject for construction than
where to draw the line. Lawyers attempting
this must always be met with the difficulty that
they are, to some extent, allowing the Dominion
parliament to exercise legislative powers that
are by the express words of the Act, not only
given to another legislative body, but given to
it exclusively.” Light is to be found, however,
on the problem in the recent Privy Council deci-
A^ion in City of Toronto v. Canadian Pacific R.W.
Co.^ iThere, the question before the Board was,
whether sections 187 and 188 of the Dominion
Railway Act, 1888, which empowered the Rail-
way Committee of the Privy Council to order
any crossing over a highway of a railway sub-
ject to its jurisdiction, to be protected by gates
or otherwise, and to apportion the cost of pro-
viding and maintaining such protection between
the railway company and ‘ any person inter-
ested, ‘ were intra vires. | Relying on these pro-
visions,[the Railway Committee had ordered the
Canadian Pacific Railway Company to pro\dde

•* In Australia the Courts have, it would appear, established
a doctrine of an implied prohIJ>ition of interference by the Com-
monwealth parliament in matters reserved to the State parlia-
ments. The decisions, which are referred to in Mr. Keith’s
Article on the Legal Interpretation of the Commonwealth Con-
stitution (Jl. of Comp. Legisl., N.S., Vol. XII., pp. 105-127), may
nevertheless be of some assistance in connection with the sub-
ject under discussion.

‘ (1882) 21 N. B. at p. 425.

• 11908] A. C. 54. Cf. Re Grand Trunk R. W. Co. and City of
Kingston (1903), 8 Ex. C. R. 349.

DOMINION INTRUSION ON PROVINCIAL AREA. 171

gates and watchmen at certain level crossings in
Toronto, and had further directed that one-half
of the costs attending the placing and maintain-
ing of the gates and watchmen be contributed by
the City of Toronto. As appears by the ver-
batim report of the argument before their lord-
ships,” it was strongly argued that to justify the
Dominion parliament infringing on the provin-
cial area by ancillary legislation, it must be ” a
thing absolutely necessary, or incidental, to the
particular power given to the Dominion parlia-
ment.” /But the Privy Council seem to have
accepted the argument by Sir Robert Finlay : —
” It is said it is not necess ary the municipality
should pay, but it is necessarv that some
one ..should pay. If there are three or
four different ways of doing a thing, you
may always say no one of them is neces-
sary, because you may take another course,
but here, if someone must_j)ay, the Dominion
must provide some machinery for throwing the
liability in -SonifiJiuarter. That is necessary. The
precise choice of the way of doing it is a matter
that is necessarily left to the legislature and to
those to whom they entrust the authority.” In
holding the legislation intra vires, their lord-
ships say, at p. 58: ** The sections impugned do
no more than provide reasonable means for safe-
guarding, in the common interest, the public
and the railway, which is committed to the ex-
clusive jurisdiction of the legislature which
enacted them, and were, therefore, intra vires.
If the precautions ordered are reasonably neces-

* Report by Marten, Meredith, Henderson, and White, short-
hand writers.

172 Canada’s federal system.

sary, it is obvious that they must be paid for,
aud in the view of their lordships there is no-
thing ultra vires in the ancillary power con-
ferred by the sections on the Committee to make
an equitable adjustment of the expenses among
the persons interested.”

But, how difficult it may be, in any particular
case, to decide whether Dominion legislation is
so incidental to legislation by it under one of its
enumerated powers as to be intra vires, although
trespassing pro tanto on provincial jurisdiction,
is well illustrated by Montreal Street R. W. Co.

— — 4-vr ‘ ”

V. City of Montreal,^’^ whereliour supreme Court
judges helH^that the Dominion parliament could
not legislate as to through traffic over a provin-
cial railway connecting with a federal railway as
being incidental to its legislative power over
the federal railway, and two held that it could-‘V
Duff, J., at pp. 232-3, observes ” that it might
be convenient that the Dominion and the provin-
cial railway should have joint traffic arrange-
ments, and these should be under a single con-
trol, does not advance the argument ” (sc, that
the Dominion had power to control the through
traffic over the provincial railway.)

Those judges, however, in this last case, who
speak as though Dominion legislation intruding
on the provincial areas must be ‘* necessarily in-
cidental ” to the exercise of a Dominion enumer-
ated power, seem to suggest a more restrictive
principle than the Privy Council judgment just

‘• (1910) 43 S. C. R. 197.

“Anglin, J., discusses the whole subject at great length at
pp. 238-249. Cf. per Idington, J., at pp. 220-221; per Duff, J., at
p. 229.

DOMINION INTRUSION ON PROVINCIAL AREA. 173

referred to countenances. Anglin, J. (p. 248), in
his dissenting judgment, holds it sufficient if the
intrusive legislation is ** eminently germane, if
not absolutely necessary, ” to the main legislation.
Yet when, on appeal to the Privy Council, the
judgment of the Supreme Court was affirmed,”‘
f their lordships say (at pp. 344-5) : “/[t must be
i shewn that it is necessarily incidental to the
\^xercise of control over the traffic of a federal
railway, in respect to its giving an unjust pref-
erence to certain classes of its passengers or
ptherwise, that it should also have power to exer-
Icise control over the * through ‘ traffic of such a
i purely local thing as a provincial railway prop-
erly so called, if only it be connected with a fed-
eral railway. /. But it is not to be assumed
that the provincial railway companies would in
the reasonable conduct of their business refuse
to make such agreements with federal railway
companies as would enable the latter to discharge
the obligations which might be placed upon them
under this section,” (sc. the 317th section of the
Dominion Railway Act as to through traffic and
undue preference) *’ and still less is it to be as-
sumed that the provincial legislature would fail
to exercise their own legislative powers to com-
pel recalcitrant companies over which they had
control to enter into such agreements if they re-
fuse to do so. As long as it is reasonably prob-
able that the provincial companies will enter
into such agreements, or will be coerced to enter
into them by the provincial legislature which
controls them, it cannot be held, their lordships

“• [1912] A. C. 333.

174 Canada’s federal system.

think, that it is necessarily incidental to the exer-
cise by the Dominion parliament of its control
over federal railways that provincial railways
should be coerced by its legislation to enter into
these agreements in the manner in which it
sought to coerce the Street Railway Company
in the present case to enter into the agreements
specified in the order appealed from. There is
not a suggestion in the case that the ‘ through ‘
traffic between this federal and this local line,
or between any other federal or local line,
had attained such dimensions before this Rail-
way Act was passed as to affect the body politic
of the Dominion. If it had been so, the ready
waj^ of protecting the body politic was by mak-
ing such a statutory declaration in any particu-
lar case or cases as was made in reference to the
Park line ” (i.e., that, it was a work ‘ for the
general advantage of Canada,’ under No. 10 (c)
of section 92, and No. 29 of section 91). ” The
right contended for in this case is in truth the
absolute right of the Dominion parliament wher-
ever a federal line and a local provincial line
connect, to establish, irrespective of all conse-
quences, this dual control over the latter line
whenever there is through traffic between them,
at least of such a kind as would lead to unjust
discrimination between any classes of the cus-
tomers of the former line. In their lordships’
view this right and power is not necessarily
incidental to the exercise by the parliament of
Canada of its undoubted jurisdiction and con-
trol over federal lines, and is, therefore, they
think, an unauthorized invasion of the rights of .
the legislature of the province of Quebec”,

1

J:

DOMINION INTRUSION ON PROVINCIAL ABEA. 175

It is true, also, that in their former judgment
in the matter of the Li quor ^Brohibitinn Appeal,
1895,’^ the Privy Council say that the /parlia-
ment of Canada has power to deal with local or
private matters referred to in the sixteen classes
enumerated in section 92, ‘^ in those cases where
such legislation is necessarily incidental to the
exercise of the powers conferred upon it by the
enmnerative heads of section 91. ‘ j Still this, prob-
ably, must not, be pressed to m^n that in all
cases the UntninioTi 1pgi^1atif >u mustJ a£. in a
strict sense of the word, necessarily incide ntal
to the exercise of the power under j^ich jlLis
acting. Rather in their recent decision, just
referred to, of City of Toronto v. Canadian Paci-
fic R. W. Co.^^ they seem to vindicate Rose, J.,
in the view he expresses in Doyle v. Bell,”^*: ” I
do not understand by the use of the word * neces-
sary,’ as found in various decisions and text-
books, that it is meant to lay down the doctrine
that to bring within the powers of the Dominion
legislature any pro^dsion of an enactment re-
specting a subject within the exclusive juris-
diction of such legislature, and which provision
might affect civil rights, it must necessarily ap-
pear that without such provision it would be im-
possible to carry into effect the intention of the
legislature, or that probably no other provision
would be adequate. / On the contrary it seems to
me that if such provision might, under certain
circumstances, be beneficTM, and assist to more

” [1896] A. C. 348.

” [1908] A. C. 54.

” (1884) 11 O. A. R. at p. 335.

176 Canada’s federal system.

fully enforce such legislation, then it must, at
all events, on an appeal to the Courts, be held
to be necessary, that is, necessary in certain
events. Surely the legislature must be allowed
some, and in my opinion, a very wide, discretion
as to the mode of enforcing its own enactments.^
It cannot be said that the Courts are to sit in
judgment on the exercise of such discretion, and
to dictate to the legislature whether they shall
adopt this or that mode, because, in the opinion
of the Courts, one mode is more convenient or
better, or at least as well adapted to effect the
purpose of the legislature.”

And this view finds support in that taken in
the United States in a somewhat parallel case.
Story, in his work on the Constitution of the
United States,” discussing the clause in the Con-
stitution (Art. 1, sec. 8 (18)), which gives power
to Congress * to make all laws which shall be
necessary and proper for carrying into execution
the foregoing powers, and all others powers
vested by this Constitution in the Government of
the United States, or in any department or officer
thereof,’ observes: * The relation between the
measure and the end, between the nature of the
means employed towards the execution of a
power and the object of that power, must be the
criterion of constitutionality, and not the greater
or less of necessity or expediency. If the legis-
lature possess a right of choice as to means, who
I can limit that choice ? Who is appointed an um-
j pire or arbitrator in cases where a discretion is
confided to a Government? The very idea of such

‘ « 5th ed., Vol. 2, at p. 143.

I

DOMINION INTRUSION ON PROVINCIAL AREA. 177

a controlling authority in the exercise of its
power is a virtual denial of the supremacy of
the Government in regard to its powers. It re-
peals the supremacy of the national Govern-
ment proclaimed in the Constitution.’ And
again (ibid, at p. 147) : * Let the end be legiti-
mate, let it be within the scope of the Constitu-
tion, and all means which are appropriate, which
are plainly adapted to the end, and which ,are
not prohibited, but are consistent with the letter
and spirit of the instrument,” (sc. the Consti-
tution) ** are constitutional.”

And in their judgment above referred to in
City of Toronto v. Canadian Pacific R. W. Co.,”^*
their lordships’ language suggests the principle
thay in estimating the relation of Dominion legis-
lation to the provisions of the British North
America Act relating to provincial powers it
is proper to remember that some points of view
may be more natural in a young and growing
community interested in developing the re-
sources of a vast territory as yet not fully set-
tled, than they could possibly be in the narrow
and thickly populated area of such a country
as England. And Davies, J., in In re Railway
Act” in the same way, says that in such matters
we should bear in mind the actual conditions
of Canada. Considering the question of what
subjects bearing upon the maintenance and op-
eration of Dominion railways ‘ ‘ must either
wholly or partially come within the ambit of

‘• [1908] A. C. 54, at p. 58.

” (1905) 36 S. C. R. 136. at pp. 145-6. As to this case see
inira p. 348.

C.F.8. — 12

178 Canada’s federal system.

the Parliament alone capable of calling these
corporations into being and effectively regulat-
ing their operation,” he says: — *’ We cannot
ignore, in determining what are and what are
not fairly within the ambit, the actual existing
conditions in Canada. Here are at least three
great railway corporations, either already trans-
continental, or rapidly becoming so. Their op-
erations are of a national character and im-
portance. Their employees number many thou-
sands. The Unions of these employees amongst
themselves, for the better support and protec-
tion of their interests, and the amalgamation,
in some cases, of their Unions with the Labour
Unions of the neighbouring Republic, add addi-
tional strength to the argument for giving a
broad and liberal construction to the plenary
powers of legislation vested in the Dominion
parliament so as to ensure some degree of uni-
formity in its exercise.”

Another case which illustrates how difficult it
may sometimes be to determine whether, in legis-
lating upon subjects entrusted to its jurisdiction
by section 91, the Dominion parliament has or
has not unduly encroached upon the sphere of
provincial jurisdiction, is McArthur v. Northern
Pacific Junction R. W. Co.,”^ in which Street, J.,
Hagarty, C.J.O., and Osier, J.A.,” held that sec-
tion 27 of R. S. C. 1886, c. 109, whereby all ac-
tions for indemnity for any damage or injury
sustained by reason of any railway under Do-

” (1888-90) 15 O. R. 723, 17 O. A. R. 86.

•» Osier, J.A., refers to his judgment in this case, and reiter-
ates the view expressed therein, in Re Canadian Pacific R. W. Co.
and County and Township of York (1898). 25 O. A. R. at pp. 72-3.

DOMINION INTRUSION ON PROVINCIAL AREA. 179

minion control must be commenced within six
months, was intra vires of the Dominion parlia-
ment, being in accordance with the customary^
legislation in similar cases both in Canada and
England; while Burton, J.A., and Maclennan,
J. A., held that it was ultra vires, as being an
unnecessary interference with property and civil
rights and with procedure in the province, the
latter denying that any such clause is to be found
in the railway legislation of either England or
the United States. In the New Brunswick case,
however, of Levesque v. New Brunswick R. W.
Co,/”^ the Supreme Court of that province also
held the same section to be intra vires in pre-
scribing the limitation. King, J., indeed, (at
p. 604), expresses a doubt whether that part of
it which authorises the railway company, in an
action for damages, to plead the general issue
and give the special matter in evidence, is also
intra vires, but Allen, C.J., (at p. 613), holds
both matters alike to be incident to the right of
the Dominion parliament to legislate on the sub-
ject of railways.

» (1889) 29 N. B. 588.

CHAPTER XVIII.

Provincial Intrusion on Dominion Area.

As to the question whether provincial legis-
latures have any right on their side to intrude
upon the Dominion area, the first consideration
which presents itself is that they have not the
advantage of the strong position in which the
Dominion parliament is placed by the non
obstante clause of section 91 of the British
North America Act, nor of the concluding clause
of that section which we have already dealt
with ;””* nor does there seem to be any authority
to support the view that provincial legislatures
can at all legislate upon any of the enumerated
classes of subjects in section 91, properly under-
stood, 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 legis-
latures have as included, ex vi termini, within
the enumerated classes in section 92 when prop-
erly understood, those powers they may exer-
cise, although in so doing they may incidentally
touch or affect something which might other-
wise be held to come within the exclusive juris-
diction of the Dominion parliament under some
of the enumerated olasses in section 91. As the
Privy Council laid down in Bank of Toronto v.

“* Supra pp. 138-140, 168.

‘For the cases, which are all Canadian decisions, see Law
of Legislative Power in Canada, pp. 454-468.

PROVINCIAL INTRUSION ON DOMINION AREA. 181

Lamhe’ where a power falls within the legiti-
mate meaning of any class of subjects reserved
to the local legislatures by section 92, the con-
trol of those bodies is as exclusive, full, and
absolute as is that of the Dominion parliament
over matters within its jurisdiction. Tl^ mat-
ter would seem to be one entirely of construction i
of the Act ; that is, of properly defining th^ var-
ious classes of subjects enumerated in section
92, the general language there used having to
be modified by reason of the language used in
section 91. And, as one learned judge puts it,’
the mere fact that an Act of a provincial legis-
lature may incidentally touch some of the classes
of subjects enumerated in section 91, although,
in fact, such subjects are foreign to the pur-
poses of such Act, and not necessarily and di-
rectly involved in the legislation, does not make
the Act really one within or upon that class of
subjects. Thus, when the Minister of Justice
objected to an Ontario Act which pro\T.ded that
a railway company thereby incorporated, might
become a party to promissory notes and bills
of exchange, and how such notes and bills might
be made, accepted or endorsed so as to be bind-
ing on the company, as an infringement on the
Dominion power, under No. 18 of section 91,
over ‘ bills of exchange and promissory notes, ‘
Mr. Mowat, as he then was, the provincial At-
torney-General, replied that the Dominion
power is *’ not incompatible with the right of

‘ (1887), 12 App. Cas. at p. 586.

•Allen, C.J., in TJie Queen v. City of Fredericton (1879), 3 P.
t B. at p. 187.

182 Canada’s federal system.

the provincial legislature to confer authority
on a corporation to become a party to instru-
ments of this nature as a matter incidental to
‘ such corporation. The object of the legislation

(is not to alter or interfere with the general law
in respect to those subjects, but to invest the
•j company with the powers necessary for its due
1 working,” and he refers to the fact that legis-
lation of this nature has, for twenty years,
passed unchallenged as entitled to weight as
shewing that it is inti’a vires. And we may com-
pare the language of the Privy Council in the
Fisheries case, supra, p. 131.

The question of whether provincial legisla-
tures possess, under any circumstances, the
power to intrude on the area occupied by the
Dominion enumerated powers, is, of course,
quite a different one to that of their power to
intrude on the area which the Dominion parlia-
ment might occupy under its residuary legisla-
tive power to make laws for the peace, order,
and good government of Canada. So far from
this residuary power of legislation residing in
the Dominion ‘ notwithstanding anything ‘ as-
signed to the provinces, it will be remembered
that exactly the reverse is the case, namely, that
that power is given only in relation to matters
not coming within the classes of subjects as-
signed exclusively to the pro\dnces; and, there-
fore, the provinces might be held to have power
incidentally to invade this area, without having
any such power to invade the area of any of the
enumerated Dominion subjects.*

*See Legislative Power in Canada, pp. 461-2.

I

PROVINCIAL INTRUSION ON DOMINION AREA. 183

Finally, we may probably accept as unques-
tionable the dicta of Hagarty, C.J.O., in Regina
V. Wason/ that we can, as to both Dominion and
provincial jurisdictions, ” adhere to the rule
that where either has the right to legislate on a
named subject, it must by necessary implication,
be held that all powers are given fully to carry
out the object of the enactment, although subjects
such as civil rights and procedure, civil or crim-
inal, may be apparently interfered with. The ex-
clusive right to deal with the specific subjects re-
mains wholly unaffected — the carrying the legis-
lation into practical effect and providing neces-
sary penalties for its observance is alone in
question.”

•17 0. A. R. at p. 232.

CHAPTER XIX.

Provincial Independence and Autonomy/

If, on due construction of the British North
America Act, a legislative power falls within
section 92, it is not to be restricted or its exist-
ence denied because by some possibility it may

‘ In two Newfoundland decisions (J. W. Withers, Queen’s
Printer, St. John’s, N.F., 1897), Rhodes v. Fairtoeather (1888),
at p. 321, and Queen v. Delepine (1889), at p. 378, the question
of the territorial limits of the jurisdiction of the local legislature
Is discussed, and found to extend to, but not beyond, three miles
outside of the line drawn from headland to headland of the bays
of Newfoundland. See infra p. 259, n. In Rex v. Meikleham,
(1905), 11 O. L. R. 366, it is pointed out that the province of On-
tario extends to the line in Lake Huron which forms the western
boundary of the British possessions and the easterly boundary
at that point of the United States of America, and the whole area
forms part of the province of Ontario, and is under its legislative
authority and control; and that, therefore, the Ontario legisla-
ture had authority to enact that no intoxicating liquor should be
sold or kept for sale in any rcom or place on any vessel navi-
gating any of the Great Lakes under penalties to be enforced as
thereunder provided, as applied to an offence committed within
the said territorial limits, notwithstanding the contention that
the Great Lakes form part of the high seas, and that the juris-
diction with regard to offences committed upon them is in the
Admiralty, and not in any Court of Ontario, except in so far as
that jurisdiction has been confirmed by. Imperial authority.
Meredith, C.J., delivering the judgment of the Court, says, at pp.
873-4: “If it had been that this steamer ‘Greyhound,'” (the
steamer on which the liquor in question has been sold) “was
being navigated by an American citizen, as he had a right to
navigate it on the waters of Lake Huron, and had been passing
from the City of Detroit to Sault Ste. Marie, and in the course
of its journey had proceeded for some distance upon the Cana-
dian side of the lake, and, therefore, within the territory of
Ontario, I should require time to consider whether in that case
the license law of the province could be held to apply to acts

PLENARY NATURE OF PROVINCIAL POWERS. 185

be abused or may limit the range which other-
wise would be open to the Dominion parliament.
Whatever power falls within the legitimate
meaning of the classes in section 92, is what
the Imperial parliament intended to give; and
to place a limit on it, because the power may be
used unwisely, as all powers may, would be an
error, and would lead to insuperable difficulties

done on board the vessel. Here, however, the case is entirelj
different. The vessel had come to the harbour of Goderich; it
was not exercising the right of navigation enjoyed by the citi-
zens of the United States of America as well as by the subjects
of His Majesty in the way I have mentioned; it was being used
for an excursion which went out from the port of Goderich for
a few miles and returned to that port; and I may say in passing
that it has never been doubted even before the passing of the
Imperial statute which followed Regina v. Keyn (1876), 13 Cox
C. C. 403, that with regard to harbours, bays, and bodies of water
intra fauces terroe, as it is called in the cases, there is local
jurisdiction in the country to which they belong. I think we
may distinguish this case from those which have been cited, and
properly rest our judgment upon the ground that this was not
the case of a foreign ship travelling in the way I have indicated,
but was a ship practically in the harbour of Goderich and con-
travening the local laws which prevailed there, and which, ac-
cording to the testimony, were known to the applicant, the cap-
tain of the vessel, for, upon his own statement, he had applied
for a license to the authorities of this country and had failed to
obtain it.” No province can pass laws to operate outside its own
territory; and no tribunal established by a province can extend
Its process beyond the province so as to subject persons or pro-
perty elsewhere to its decisions: Deacon v. Chadwick (1901),
1 O. L. R. 346. As to the parliament of Canada having exclusire
jurisdiction to legislate with respect to fisheries within the three-
mile zone off the sea-coasts of Canada, and the right of immedi-
ate pursuit, see The Ship ‘ North ‘ v. The King (1906), 37 S. C. R.
385. 11 Ex. C. R. 141, 11 B. C. 473. As to a Canadian province
not being a ‘ colony or dependency ‘ within the meaning of a
clause in a will authorising trustees to invest in any stocks or
securities ‘of any British colony or dependency,’ though this
would not prevent investing in stock issued by any of the Cana-
dian colonies before they were merged in the Union, see In re
Sir 8. M. Marion Wilson’s Estate, [1911] 2 Ch. 58, 27 Ti. L. R. 429.

186 Canada’s federal system.

in the construction of the Federation Act.” The
Privy Council state and illustrate this in Batik
of Toronto v. Lambe,^^ and at the same time
point out the distinction existing so far as con-
cerns limiting the range which would be open to
the Federal power, between the Constitution of
the United States and that of the Dominion of
Canada. Having decided in favour of the valid-
ity of a certain Act passed by the Quebec legis-
lature in 1882, whereby certain direct taxes were
imposed on all banks doing business in that pro-
vince, they say at the passage referred to:
” Then it is suggested that the legislature may
lay on taxes so heavy as to crush a bank out of ^

existence, and so to nullify the power of Parlia-
ment to erect banks. But their lordships can-
not conceive that, when the Imperial parlia-
ment conferred wide powers of local self-gov-
ernment on great countries such as Quebec, it
intended to limit them on the speculation that
they could be used in an injurious manner.
People who are trusted with the great power
of making laws for property and civil rights
may well be trusted to levy taxes. There are
obvious reasons for confining their power to
direct taxes and licenses because the power of

‘• As to the futility of a provincial legislature attempting to
fetter its own future action, see the report of Sir John Thompson,
as Minister of Justice, of February 17th, 1894: Hodgins’ Prov. y

LegisL, 1867-1895, pp. 1227-8.

‘” (1887), 12 App. Cas. at pp. 586-7. See, following this deci-
sion, Great North Western Telegraph Co. v. Fortier (1903), R. J.
Q. 12 Q. B. 405. Cf. the words of Mr. Asquith on the 3rd reading
of the Home Rule Bill in the British House of Commons, on
January 15th, 1913: — ” Given perversity on one side, and pedantry
on the other, there is not a Constitution in the world could not
be wrecked in a week.”

f

PLENAB^ NA.irrcK ‘F PROVINCIAL POWERS. 187

indirect taxa ion •vroiiid be felt all over the Do-
minion. Bm, vviiatever power falls within the
legitimate meaning of classes 2 and 9 ” (sc. of
section 92), ‘*is, in their lordships’ judgment,
what the Imperial parliament intended to give ;
and to place a limit on it because the power may
be used unwisely, as all powers may, would be
an error, and would lead to insuperable difficul-
.ties in the construction of the Federation Act.
Their lordships have been invited to take a
very wide range on this part of the case, and to
apply to the construction of the Federation Act
the principles laid down for the United States
by Chief Justice Marshall. Every one would
gladly accept the guidance of that great Judge
in a parallel case. But he was dealing with the
Constitution of the United States. Under that
Constitution, as their lordships understand,
each State may make laws for itself uncontrolled
by the Federal power, and subject only to the
limits placed by law on the range of subjects
within its jurisdiction. In such a Constitution
Chief Justice Marshall found one of those
limits, at the point at which the action of the
State legislature came into conflict with the
power vested in Congress. The appellant in-
vokes that principle to support the conclusion
that the Federation Act must be so construed
as to allow no power to the provincial legisla-
tures under section 92, which may by possibility,
and if exercised in some extravagant way, inter-
fere with the objects of the Dominion in exercis-
ing their powers under section 91. It is quite
impossible to argue from the one case to the

188 Canada’s federal system.

other. Their lordships have to construe the
express words of an Act of Parliament which
makes an elaborate distribution of the whole
field of legislative authority between two legis-
lative bodies, and, at the same time, provides
for the federated pro\4nces a carefully balanced
Constitution, under which no one of the parts
can pass laws for itself except under the control
of the whole, acting through the Governor-Gen-
eral. And the question they have to answer is,
whether the one body or the other has power to
make a given law. If they find that on the due
construction of the Act a legislative power falls
within section 92, it would be quite wrong of
them to deny its existence because by some pos-
sibility it may be abused, or may limit the range
which would otherwise be open to the Dominion
parliament.””‘

As regards the contrast here suggested be-
tween the Constitution of the United States and
our own, it is manifest that, by reason of having
certain specified subjects of legislation exclu-
sively assigned to them, provincial legislatures
in Canada cannot be so restricted in their action
as State legislatures are under the American
Constitution. And so in Liquidators of the
Maritime Bank of Canada v. The Receiver-Gen-

‘” Ck>uii8el referring to this passage, on the argument In the
recent case of The Royal Bank o/ Canada v. The King, [1913],
A. C. 283, Lord Haldane, L.C., is reported as saying: — ” There is
only an exception to that in this respect as Lord Herschell him-
self said in Colguhoun v. Brooke, in the House of Lords, (1889),
14 App. Cas. 493, to the effect that if there are two constructions
of an Act, and one is contrary to peace, and international comity,
and the other is in accordance with it, you would prefer that
which is consistent with it: Transcript from notes of Marten,
Meredith A Co., 8 New Court, London, 3rd day, at p. 64.

PROVINCIiiL AUTONOMY. 189

eral of New Brunswick/ their lordships say:
” The object of the British North America Act
was neither to weld the provinces into one, nor
to subordinate provincial Governments to a
central authority, but to create a Federal Gov-
ernment in which they should all be represented,
entrusted with the exclusive administration of
affairs in which they had a common interest,
each province retaining its independence and
autonomy. . In so far as regards those
matters which, by section 92, are specially re-
served for provincial legislation, the legislation
of each province continues to be free from the
control of the Dominion, and as supreme as it
was before the passing of the Act. . It
possesses powers not of administration merely,
but of legislation in the strictest sense of that
word; and within the limits assigned by section
92 of the Act of 1867, these powers are exclu-
sive and supreme. ‘ ‘

And now, in Ahhott v. City of St. John* it
has been held that No. 2 of section 92 of the
British North America Act, giving provincial
legislatures exclusive power of legislation in
respect to direct taxation within the province,
is not in conflict with No. 8 of section 91, which
provides that the Dominion parliament shall
have exclusive legislative authority over the fix-
ing of and providing for the salaries and allow^-
ances of civil and other officers of the Govern-
ment of Canada ; and that a civil or other officer
of the Government of Canada may be lawfully

‘ [1892] A. C. at pp. 441-3.

• [19081 40 S. C. R. 597.

190 Canada’s Frj)E84L 8ys”:em.

taxed in respect to hi*< income as such by the municipality in which nc xo^des; thus overrul- ing several previous decisions, amongst which Leprolion v. City of Ottawa* may be specially mentioned. The Privy Council decision in Webb V. Outrim,^ was much relied on in the judgments. But when, in 1904, the Quebec legis- lature passed a Bill which the Lieutenant-Gov- ernor thought might be construed as rendering liable to seizure the salaries of public officers appointed by the Federal Government, he re- served it for the signification of the pleasure of the Governor-General, and by report of October 29th, 1904, the Minister of Justice expressed his opinion that for the above reasons the Bill should not receive effect at the hands of the Do- minion Government, which was approved by Order-in-Council.' Another Privy Council decision which illus- trates the principle of Constitutional law under discussion is the Brewers and Maltsters' Asso- ciation of Ontario v. The Attorney-General of Ontario,^ wherein they held, affirming the decision of the Ontario Coui*t of Appeal, that an Ontario Act requiring every brewer, distiller, or other person, though duly licensed by the Government of Canada for the manufac- ture and sale of fermented, spirituous and other * (1877-1878), 40 S. C. R. 478. As to the Dominion power to impose a tax by way of license as a condition of the right to fish, under their general taxing power, notwithstanding any inter- ference thereby with the provincial power to tax by similar licenses, see the Fisheries case, [1898] A. C. 700, at pp. 713-4. » [1807] A. C. 81. See infra pp. 419-420. •Provincial Legislation, 1904-1906, p. 12. * [1897] A. C. 231; cf. Fortier v. Lambe (1895), 25 S. C. 422. PROVINCIAL AUTONOMY. 191 liquors, to take out licenses to sell the liquors manufactured by them, and pay a license fee therefor, was intra vires. And in the still later ease of Attorney-General of Manitoba v. Mani- toba License Holders^ Association,^ their lord- ships held intra vires, the Liquor Act of Mani- toba, 63-64 Vict. ch. 22, which prohibited all use in Manitoba of intoxicating liquors as bever- ages, and included divers prohibitions and re- strictions affecting the importation, exportation, manufacture, keeping, sale, purchase and use of such liquors. They held that its subject was and had been dealt with as a matter of a merely local nature in the province within the mean- ing of No. 16 of section 92, and that it was, there- fore, constitutional, notwithstanding that in its practical working it must interfere with Do- minion revenue, and indirectly, at least, with business operations outside the province. To summarize the whole matter, then, the position seems to be this : although when provin- cial legislation and Dominion legislation directly conflict with each other, the latter must prevail, and although by virtue of the non obstante clause of section 91 of the British North Am- erica Act, and the concluding clause of that sec- tion, the construction of the enumerated powers conferred upon the Dominion parliament may be said to over-ride the construction of section 92, yet the provinces, under our Constitution, have not, as the several States of the Union have, a general power of legislation subject only to certain specified powers which they themselves • [1902] A. C. 73. 192 Canada's federal system. have conferred upon the Federal body, but they, as well as the Dominion, have received from one and the same source, namely, the Imperial par- liament, certain express powers of legislation upon specified subjects, which are theirs exclu- sively; and, therefore, their power to legislate upon these specified subjects cannot be denied, as is the case with the States, merely because in doing so they may interfere with or restrict the range of Federal legislation. But, on the other hand, the Dominion Government possesses what the United States Government has not, viz., a veto power over all provincial legislation." And it is quite in harmony with all this, that in L'Union St. Jacque de Montreal v. Belisle,^" the Privy Council has laid it down that when the validity of a provincial Act is in question, and it clearly appears to fall within one of the classes of sub- jects enumerated in section 92 of the British North America Act, the onus is on the persons attacking its validity to show that it does also come within one or more of the classes of sub- jects specially enumerated in section 91. Injustice no ground of invalidity. — As to any objection to either provincial or Dominion legis- lation on the ground of injustice, it is sufficient to quote the words of the Privy Council in Union Colliery Co. v. Bryden,^' : ** In assigning legis- lative power to the one or the other of these parliaments, it is not made a statutory condi- • As to which, see supra pp. 30-50. • (1874) L. R. 6 P. C. 31. See, also, supra pp. 120-122. " [1899] A. C. 580, at p. 585. And see supra pp. 75, 82-85. SUPREMACY OF CANADIAN LEGISLATURES. 193 tion that the exercise of such power shall be, in the opinion of a Court of law, discreet. In so far as they possess legislative jur- isdiction, the discretion committed to the par- liaments 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 committed to them; but, when that point has been settled. Courts of law have no right whatever to enquire whether their juris- diction has been exercised wisely or not "; and their words in the Fisheries Case^--. " The sug- gestion that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the Courts of any limit upon the absolute power of legis- lation conferred. The supreme legislative power in relation to any subject matter is always^ capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the legis- lature is elected." Provincial legislation not invalid by reason of possibility of Dominion legislation supersed- ing it. — Nor is a provincial legislature incapaci- tated from enacting a law otherwise within it? proper competency merely because the Domin- ion parliament might under section 91 of the British North America Act, if it saw fit so to do,, pass a general law which would embrace within its scope the subject matter of the provincial 1 " [1898] A. C. at p. 713. C.F.S.— 1.3 194 Canada's federal system. Act. This is affirmed and illustrated by the Judicial Committee of the Privy Coimcil in UUnion St. Jacques de Montreal v. Belisle" where they held that a certain Act of the legisla- ture of Quebec, passed for the relief of a benefit and benevolent Society in Montreal, was within the legislative capacity of that legislature. As the judgment points out, the Act dealt solely with the affairs of that particular Society, and in this manner : taking notice of a certain state of embarrassment resulting from what is de- scribed, in substance, as improvident regulations of the Society, it imposed a forced commutation of their existing rights upon two widows, who, at the time "When the Act was passed, were annui- tants of the Society under its rules, reserving to them the rights so cut down in the future pos- sible event of the improvement up to a certain point of the affairs of the Association. Their lordships held that clearly this matter was pri- vate and local, relating, as it did, to a benevolent or benefit Society incorporated in the City of Montreal within the province, which appeared to consist exclusively of members who would be subject prima facie to the control of the provin- cial legislature. They, however, allude" to the hypothesis stated in argument by Mr. Benjamin, of a law having been previously passed by the Dominion parliament to the effect that any Association of that particular kind throughout the Dominion, on certain specified conditions, assimied to be exactly those which appeared "(1874) L. R. 6 P. C. 31. »*At pp. 36-37. PREDOMINANCE OF DOMINION LEGISLATION. 195 upon the face of the statute in question, should, thereupon, ipso facto, fall under the legal admin- istration in bankruptcy or insolvency; and say that they are '' by no means prepared to say that if any such law as that had been passed by the Dominion legislature it would have been within the competency of the provincial legislature afterwards to take a particular Association out of the scope of a general law of that kind, so competently passed by the authority which had power to deal with bankruptcy and insolvency. " But," they add, ** no such law ever has been passed; and to suggest the possibility of such a law" as a reason why the power of the provincial legislature over this, a local and private Asso- ciation, should be in abeyance or altogether taken away, is to make a suggestion, which, if followed up to its consequences, would go far to destroy that power in all cases." They point out that, upon the same principle, because under No. 7 of section 91 of the British North America Act, the Dominion parliament has the exclusive right of legislating as to all matters coming under the head of ' militia, military and naval service, and defence,' and because any part of the land in the province of Quebec might be taken by the Dominion legislature for the pur- pose of military defence, and because that which had not been done as to some particular land, might possibly have been done, therefore, it not having been done, all power over that land, and, therefore, over all the land in the province of Quebec is taken away, so far as it relates to legis- lation concerning matters of a purely local or 196 CANADA S FEDERAL SYSTEM. ^k/ private nature, which, they say, they t hink neither a necessary or reasonable, nor a just or proper construction. The late Lord Watson put the point with his usual clearness, when he said, in the course of the argument in the Liquor Prohibition Appeal, 1895,^^ that one of the oldest principles of the law governing the exercise of legislative power in Canada to be found is this that '* there are ; matters with which the province can deal which \ are not excepted from their legislative jurisdic- ; tion until the Dominion Government has pro- ceeded to act upon the powers given to it by cer- tain sub-sections of section 91." And in this connection the words of the Minister of Justice in his report of December 28th, 1901, on a Prince Edward Island Act^" may be noted: "There may be provincial legislation which can have effect until superseded by Parliament, and as to such the undersigned apprehends, that the power of disallowance may be properly exercised if the legislation be, in the opinion of your Excel- lency's Government, prejudicial to Dominion interests." On the other hand, in Union Colliery Co. v. Bryden,^" their lordships have said that the abstinence of the Dominion parliament from legislating to the full limit of its powers cannot have the effect of transferring to any provincial legislature the legislative power assigned to the Dominion by section 91 of the British North America Act. '•Printed report published by Wm. Brown k Co., London, 1895, at p. 245. '• Provincial Legislation, 1901-1903, p. 97. " [1899] A. C. 580. at p. 588. PKOPERTY AND CIVIL BIGHTS. 197 Property and civil rights in the province. — We shall have to consider more particularly the precise scope of the power over property and civil rights within their respective territories given to the provincial legislatures by No. 13 of section 92 of the British North America Act when we come to treat particularly of the var- ious enimaerated powers bestowed in that section, and in section 91,^^" but the words of Fournier, J., in Citizens Insurance Co. v. Parsons/'^ seem indisputable, and apposite to the subject now under discussion, that the aim of the law-giver in dividing the legislative powers by section 91 and 92 of the British North America Act between the Federal Government and the provinces was, so far as compatible with the new order of things, to conserve to the latter their autonomy so far as the civil rights peculiar to each of them were concerned. To put the matter even more gener- ally, we may say in the words of Mr. Benjamin on the argument before the Privy Council in Russell V. The Queen -^^ " Whatever was domes- tic, whatever was private, whatever was home rule was to be left with the provinces. Their domestic institutions, their home rule, was not to be interfered with." Provincial executive authority. — So, also, the words of Ritchie, C.J., in Mercer v. Attorney- General of the Province of Ontario, ^'^ may be "» See infra pp. 488-521. " (1880) 4 S. C. R. at p. 255. " Transcript from shorthand notes of Marten & Meredith. Other dicta of the same kind will be found in Legislative Power in Canada, pp. 702-704. » (1881) 5 S. C. R. at p. 638. 198 Canada's federal system. cited here, that—" As to matters coming within the classes of subjects enumerated in section 91 of the British North America Act, over which the exclusive legislative authority of the Parlia- ment of Canada is declared to extend, there is not to be found one word expressing or implying the right to interfere with provincial executive authority;" although the recent decision of the Privy Council in Attorney-General of British Columbia v. Canadian Pacific R. W. Co.^^ shews that he is mistaken when he adds—" or property and its incidents." ** [1906] A. C. 204. See, as to this case, 4n/ro p. 343. CHAPTER XX. Aspects of Legislation. One of the most interesting and important principles which have been evolved by judicial decision in connection with the distribution of legislative power in Canada is that expressed by the Judicial Committee where they say in Hodge v. The Queen^ ' * the principle which the case of Russell V. The Queen,^ and the case of Citizens Insurance Co.^ illustrate, is that subjects which in one aspect and for one purpose fall within section 92 of the British North America Act, may in another aspect and for another purpose, fall within section 91;" a principle, it may be added, which is well illustrated in reference to legislation relating to fisheries by their lordships in the Fisheries case,* and again by a passage in their judgment in Union Colliery Co. of British Columbia v. Bryden.^ Upon the argument in the last named case, Mr. Haldane observes: " It is remarkable the way this Board has reconciled the provisions of section 91 and section 92, by recognizing that the subjects which fall within section 91 in one aspect, may, under another aspect, fall under section 92." » (1883) 9 App. Cas. at p. 130. » (1882) 7 App. Cas. 829. * (1881) 7 App. Cas. 96. * Atty. -General o1 the Dominion v. Atty.-Oeneral of the Pro- vinces, [1898] A. C. 700, at p. 716. Infra pp. 247, 262-3. "> [1899] A. C. 580, at p. 587. See infra pp. 305-7.

* Transcript from shorthand notes by Marten, Merdith &
Henderson.

200

CANADA S FEDERAL SYSTEM.

We shall find when we proceed to consider
how these and other cases illustrate the principle
thus expressed, that by ‘ aspect ‘ must be under-
stood the aspect or ^oint^fview of the legislator
i n legisl ating— the object, purpose, and scope of
the legislation : that the word is used subjectively
of the legislator, rather than objectively of the
matter legislated upon.

Liquor legislation. — Thus in Russell v. The
Queen, when it was contended that the Canada
Temperance Act, 1878, was ultra vires of the
Dominion parliament, because it had relation to
property and civil rights, which by No. 13 of
section 92 of the British North America Act was
assigned to the provincial legislatures, their
lordships say: “What Parliament is dealing
with in legislation of this kind is not a matter
in relation to property and its rights, but one
relating to public order and safety. That is
the primary matter dealt with, and, though
incidentally the free use of things in which
men have property is interfered with, that
incidental interference does not alter the char-
acter of the law. Upon the same considerations
the Act in question cannot be regarded as legis-
lation in relation to civil rights. In however
large a sense these words are used, it could not
have been intended to prevent the parliament of
Canada from declaring and enacting certain uses
of property, and certain acts in relation to pro-
perty, to be criminal and wrongful. Laws which
make it a criminal offence for a man wilfullv to

‘ (1882) 7 App. Cas. at pp. 838-9.

ASPECTS OF LEGISLATION. 201

set fire to his own house on the ground that such
an act endangers the public safety, or to over-
work 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 properlj^ be regarded as legis-
lation 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.* Laws of this nature
designed for the promotion of public order,
safety, or morals, and which subject those who
contravene them to criminal procedure and pun-
ishment, belong to the subject of public wrongs
rather than to that of civil rights. They are of
a nature which fall within the general authority
of Parliament to make laws for the order and
good government of Canada, and have direct
relation to criminal law.” And what in Hodge
V. The Queen/ their lordships are pointing out
in the passage above referred to, is that it was a
mistake to suppose that because, in Russell v.
The Queen^”* they had held that the Canada
Temperance Act, 1878, which abolished all retail
transactions between traders in liquor and their
customers within every provincial area in which
its enactments had been adopted by the majority
of the local electors as in the Act pro^dded, and

‘And so in Brooks v. Moore (1907), 13 B. C. 91, Morrison, J.,
held the Animal Contagious Diseases Act, 1903, to be intra vires
of the Dominion parliament, citing this passage. He held, fur-
ther, that it came under sec. 95 of the British North America Act
as relating to federal agriculture. See, as to this section, infra
pp. 667-671.

• (1883) 9 App. Cas. at p. 130.

” (1882) 7 Apu. Cas. 829.

202 Canada’s federal system.

which, \i.ewed in its proper aspect, and with re-
ference to its proper purpose, was a general Act
relating to public order and safety and good
morals in the Dominion, fell within the powers
conferred upon the Dominion parliament by
section 91 of the British North America Act, to
make, laws for the peace, order, and good govern-
ment of Canada, therefore it followed that the
whole subject of the liquor traffic was given to
the Dominion parliament, and, consequently,
taken away from the provincial legislatures, and
that the Liquor License Act of Ontario, R. S. O.
1877, c. 181, which was confined in its operation
to municipalities in Ontario, and entirely local
in its character and operation, was necessarily
ultra vires. On the contrary, their lordships
held, in Hodge v. The Queen, that the portions
of the said Ontario License Act with which they
had to deal came within Nos. 8, 15, and 16 of
section 92,” and not within section 91. Thus in
words of Meredith, C.J., in Blouin v. The Cor-
\ poration of the City of Quebec j^”” those people
I are mistaken who ** seem to think it impossible
/ that Parliament and the provincial legislatures
1 can for any purpose whatever, or under any cir-
\ cimistances whatever, legislate in relation to the
^^«ame matter.”

Prohibition legislation. — The cases, then, of
Russell V. The Queen and Hodge v. The Queen

“That is, they came within the three conjointly. See per
Lord Herschell In the argument on The Liquor Prohibition Ap-
peal, 1895, at p. 156. (Published by Wm. Brown & Co., London,
1895).

‘» (1880) 7 Q. L. R. at p. 22.

i

ASPECTS OF LEGISLATION. 203

illustrate the fact that there may be legislation
in respect to traffic in liquors in two different as-
pects, one contemplating its prohibition in the)
general interests of the Dominion, and the other I v^
contemplating its regulation in the interests of 1
the good order of the municipalities. But as to )
the prohibition of trade in intoxicating liquors,
the recent decision of the Privy Council on the
Liquor Prohibition Appeal, 1895,^^ shows that
it also itself may be treated from two different
aspects, under one of which it is within the ex-
clusive jurisdiction of the Dominion parliameni,
while under the other it is within the exclusive
jurisdiction of the provincial legislatures. Their
lordships hold that: **A law which prohibits re-
tail transactions and restricts the consumption
of liquor within the ambit of the province, and
does not affect transactions in liquor between
persons in the province and persons in other pro- •
vinces or in foreign countries, concerns property
in the province which could be the subject matter
of the transactions if they were not prohibited,
and, also, the civil rights of persons in the pro-
vince,” and may, perhaps, be authorized under
No. 13 of section 92, * property and civil rights in
the province ; ‘ but they do not consider it neces-
sary to determine whether such legislation is
authorized under that head or not, because, if
not, it is certainly ** not impossible that the, vice
of intemperance may prevail in particular local-
ities within the province, to such an extent as to
constitute its cure by restricting or prohibiting

” [1896] A. C. 348. Wheeler, Confederation. Law, pp. 1042 seg.,
gives a verhatim account of the proceedings before the Privy
Council.

204 Canada’s federal system.

the sale of liquor, a matter of a merely local or
private nature, and, therefore, falling prima
facie within No. 16 ” (sub-section of section 92
of the British North America Act).’* ” In that
state of things,” they add, ‘* it is conceded that
the parliament of Canada could not imperatively
enact a prohibitory law adopted and confined to
the requirements of localities within the pro-
vince, where prohibition was urgently needed.”
But none the less, as decided in Russell v. The
Queen, the Dominion parliament has power to
legislate for the suppression of the liquor traffic
in a Canadian aspect for the peace, order, and
good government of Canada generally.

In Attorney-General of Manitoba v. Mani-
toba License Holders Association,^” the Judicial
Committee, referring to the Liquor Prohibition

“As to a similar provincial power to prohibit the manufac-
ture of intoxicating liquors, — “if it were shown that the manu-
facture was carried on under such circumstances and conditions
as to make its prohibition a merely local matter in the province,”
^see S. C. at p. 371. As in the Brewers and Maltsters Associa-
tion of Ontario v. Attorney-General for Ontario, [1897] A. C. 231,
where the main object of the Act before them was to raise a
revenue for provincial purposes, so in the matter of the Dominion
Liquor License Acts, 1883-4, Cass. Dig. S. C. 509, where the object
of the legislation was rather regnilation of the liquor traffic, the
Privy Council finds nothing turns, so far as legislative power is
concerned, upon the fact that those affected by the statutory pro-
visions dealt In wholesale quantities, and not in retail quantities.
A.nd in the recent Liquor Prohibition Appeal, 1895, [1896] A, C.
348, they, in like manner, draw no distinction whatever between
the sellers of liquors in wholesale quantities, and other sellers;
and say of the Canada Temperance Act, 1886: — “They draw an
arbitrary line at eight gallons in the case of beer, and at ten gal-
lons in the case of other intoxicating liquors, with the view of
discriminating between wholesale and retail transactions.” See
further on this subject of the distinction between wholesale and
retail trading, Law of Legislative Power in Canada, pp. 726-730;
and infra p. 438, n.

“[1902] A. C. at p. 78.

t

ASPECTS OF LEGISLATION. 205

Appeal, 1895, and to their statement there that
it was not necessary for the purpose of that
appeal to determine whether such legislation was
authorized by No. 13 or by No. 16 of section 92,
add: ‘* Although this particular question was
thus left apparently undecided, a careful perusal
of the judgment leads to the conclusion that, in
the opinion of the Board, the case fell under
No. 16 rather than under No. 13. And that
seems to their lordships to be the better opinion.
In legislating for the suppression of the liquor
traffic the object in view is the abatement or
prevention of a local evil, rather than the regula-
tion of property and civil rights — though, of
course, no such legislation can be carried into
effect without interfering more or less with * pro-
perty and civil rights in the province. ‘ Indeed,
if the case is to be regarded as dealing with mat-
ters within the class of subjects enumerated in
No. 13 it might be questionable whether the
Dominion legislature could have authority to
interfere with the exclusive jurisdiction of the
province in the matter.”

In other words, as their lordships say in this
very case (p. 77) : ” The drink question, to use
a common expression which is convenient if not
altogether accurate, is not to be found specifi-
cally mentioned either in the classes of subjects
enumerated in section 91, and assigned to the
legislature of the Dominion, or in those enumer-
ated in section 92, and thereby appropriated to
provincial legislatures ; ‘ ‘ therefore, there may be
legislation on the drink question in a Dominion
aspect, or in a provincial aspect. But ‘ property

206 Canada’s federal system.

and civil rights in tlie province’ are among the
specially enumerated classes in section 92, and,
therefore, the Dominion parliament could not
legislate in relation to * property and civil
rights ‘ in all the provinces, or in more than one
province (using legislation in relation to pro-
perty and civil rights in the proper sense of sec-
tion 92) and defend that legislation as legislation
on the subject in a Dominion aspect.”

Liquor trafl&c regulation. — And it would seem
in no way doubtful that the regulation of the
liquor trafl&c also admits of two aspects in which
it may be viewed and legislated upon. That it
may be legislated upon in the provincial aspect,
notwithstanding that by No. 2 of section 91 the
regulation of trade of commerce is committed ex-
clusively to the Dominion parliament, is, of
course, established by the case of Hodge v. The
Queen, already sufficiently referred to ; and the
decision of the Privy Council in the matter of the
Dominion License Acts 1883-4, although no rea-

“And see now in connection with this case of Attorney-
General of Manitoba v. The Manitoba License Holders’ Associa-
tion, [1902] A. C. 73: City of Montreal v. Beauvais (1909), 42 S.
C. R. 211; Ex parte O’Neill (1905), R. J. O. 28 S. C. 304. As to
the power of the Ontario legislature to prohibit the sale of liquor
on vessels on the great lakes, see Rex v. Meikleham (1905), 11
O. L. R. 366. And as to a provincial legislature having power to
provide in a Prohibition Act that liquor seized under the Act
shall be confiscated, see Matthews v. Jenkins (1907), 3 E. L. R.
577 (P.E.I.) It is no objection to a local option by-law, resting
upon provincial legislation, that it includes a public harbour, for
although the harbour may be, as a harbour, within the jurisdic-
tion of the parliament of Canada, it is none the less, for purposes
within the ambit of provincial legislation, within the jurisdiction
of the province and its legislatures, provincial and municipal : Re
Sturmer and Tovm of Beaverton (1911), 24 O. L. R. 65, 72.

ASPECTS OF LEGISLATION. 207

sons were there given, evidently proceeded upon
the ground that Parliament was therein legis-
lating upon the subject not in a Dominion aspect,
but in a provincial aspect, and that the Acts
were, therefore, ultra vires. A perusal of Mar-
ten and Meredith’s shorthand notes of the argu-
ment which are in print, leads to the conclusion
that in their decision the Board accepted the
contention of Mr. Davey that the Acts were
ultra vires because they were for the pur-
pose of regulating the liquor traffic through
the machinery of local municipal licensing
bodies, exercising restricted local jurisdic-
tion, and exercising police functions within those
local jurisdictions, and amounted also to a taxa-
tion of the inhabitants within the respective
provinces for mimicipal purposes, because the
balance of the license fund under them, after
payment of the inspectors’ salaries and the ex-
penses of the commissioners, was to go into the
municipal treasury, the regulation and the legis-
lation with reference to wholesale licenses being
the same as that with reference to shop licenses.
It may further be observed that under the
Dominion License Acts, 1883-4, each Board of
license commissioners of the different di.stricts
might make their own regulations. On the other
hand, in Russell v. The Queen,^” the Privy Coun-
cil especially insist upon the element of uniform-
ity in the Canada Temperance Act when holding
it intra vires, saying: ** The objects and scope
of the legislation are general, viz., to promote
temperance by means of a uniform law through-

” (1882) 7 App. Cas. at p. 841.

208 Canada’s federal system.

out the Dominion. The manner of bringing the
prohibition and penalties of the Act into force,
which Parliament has thought fit to adopt, does
not alter its general and uniform character.
Parliament deals with the subject as one of gen-
eral concern to the Dominion, upon which uni-
formity of legislation is desirable, and Parlia-
ment alone can so deal with it.”

In their judgment, moreover, in the Liquor
Prohibition Appeal, 1895^^^ the Privy Council
call attention to the fact that matters which, at
one time, may only admit of being treated in a
local or provincial aspect may, at another time,
assume a phase in which they may admit, also,
of being treated in a Dominion or national
aspect. They say at the place referred to:
” Their lordships do not doubt that some mat-
ters, in their origin local and provincial, might
attain such dimensions as to affect the body
politic of the Dominion, and to justify the Cana-
dian parliament in passing laws for their regu-
lation or abolition, in the interests of the Dom-
inion. But great caution must be observed in
distinguishing between that which is local and
provincial, and, therefore, within the jurisdic-
tion of the provincial legislatures, and that which
has ceased to be merely local or provincial, and
has become a matter of national concern in such
sense as to bring it within the jurisdiction of the
^ parliament of Canada. An Act restricting the
\ right to carry weapons of offence, or their sale
/ to young persons, within the province, would be
( within the authority of the provincial legislature.

“[1896] A. C. 348.

ASPECTS OF LEGISLATION. 209

But traffic in arms, or the possession of them
under such circumstances as to raise a suspicion
that they were to be used for seditious purposes,
or against a foreign State, are matters which
their lordships conceive might be competently
dealt with by the parliament of the Dominion.”
The decisions, therefore, which have arisen i
in connection with laws prohibiting or regulat-l
ing the liquor traffic illustrate in a remarkable^ -^^
way the fact, that under our Constitution,^sub-
jects which, in one aspect and for one purpose,
fall within the jurisdiction of the provincial
legislature, may in another aspect and for an-
other purpose, fall within the jurisdiction of the
Dominion parliament. > The Privy Council in
Hodge v. The Queen^^ as we have seen,*” referred
to the case of Citizens Insurance Go, v. Parsons,*^
as illustrating the same principle. What they,,
doubtless, mean is that the purport of their judg-
ment in that case was that the true aspect of the-
Ontario Insurance Act which they there held
intra vires was that of an Act intended to regu-
late the business of fire insurance companies in
the province of Ontario, with a view to securing-
uniform conditions in their policies, and not
that of an Act for the general regulation of trade
in the Dominion ; and that for this reason it fell
within No. 13 of section 92 of the British North
America Act, ‘ property and civil rights in the
province,’ and not within No. 2 of section 91,
* the regulation of trade and commerce. ‘ ”

” (1883) 9 App. Cas. at p. 130.
^ Supra, p. 199.
” (1881) 1 App. Cas. 96.

“For other illustrations of this principle in the provinciaF
Courts, see Law of Legislative Power in Canada, pp. 411-415, in

C.F.S. — 14

CHAPTER XXI.

The Object and Scope of Legislation and
OTHER Considerations Relevant to Con-
stitutionality OF Statutes.

It follows as a necessary corollary of the
principle discussed in the last chapter that, as
the Privy Council says in Russell v. The
Queen,^: ” The true nature and character of the
legislation in the particular instance under dis-
cussion—its grounds and design, and the prim-
ary 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.’* We saw, in the last chapter, how
this was illustrated in Russell v. The Queen.
It may be added that later on, in the same judg-
ment, their lordships held that though the

connection especially with municipal police regulation as con-
trasted with criminal law; and as to the expression ‘ police regula-
tion,’ see infra p. 584, n. For a late case, see City of Montreal
V. Beauvais (1909), 42 S. C. R. 211; and cf. Attorney-Oeneral of
Ontario v. Hamilton Street R. W. Co., [1903] A. C. 524; and
Kerley v. London d Lake Erie (1912), 26 O. L. R. 588. So Pom-
eroy on Constitutional Law, Ist ed., at p. 218, cited by FournJer,
J., In Citizens Insurance Co. v. Parsons (1880), 4 S. C. R. at p.
260, says: ‘ All experience shows that the same measures or mea-
sure scarcely distinguishable from each other may flow from
distinct powers; but this does not prove that the powers them-
selves are identical. Although the means used in their execu-
tion may sometimes approach each other so nearly as to be con-
founded, there are other situations in which they are sufficiently
distinct to establish their individuality.’
• (1882) 7 App. Gas. at pp. 838-40.

OBJECT AND SCOPE OF LEGISLATION. 211

Canada Temperance Act, 1878, which was the
Act in question, was to be brought into force in
those localities only which adopted it by local
option exercised in the prescribed manner, it
was, nevertheless, not to be considered as relat-
ing to matters of a merely local or private nature
within the province, within the meaning of No.
16 of section 92 of the British North America
Act, and say: ” The objects and scope of the
legislation are still general, namely, to promote
temperance by means of a uniform law through-
out the Dominion.”

And the previous decision of the Board in
Attorney-General of Quebec v. Queen Insurance
Company,^ also affords an excellent example of
the principle under discussion. There it ap-
peared that the provincial Act of Quebec, 39
Vict. ch. 7, purported to be, on the face of it,
an exercise of the powers conferred by No. 9 of
section 92, as to ‘ shop, saloon, tavern, auction-
eer, and other licenses,’ and to impose a license
on persons carrying on the business of assur-
ance in the province, but, as a matter of fact, did
not compel the supposed licensee to take out or
pay for a license, but merely provided that * the
price of such license ‘ should consist of an ad
hesive stamp to be paid in respect to each trans-
action, not by the licensee, but by the person who
dealt with him. Their lordships held that the
Act was virtually a Stamp Act, and not a
License Act, and they further held that it was
not direct taxation, and was ultra vires. They
say: ” The result is this, that it is not in sub-

* (1878) 3 App. Gas. 1090.

212 Canada’s federal system.

stance a License Act at all; it is nothing more
nor less than a simple Stamp Act on the policies,
with provisions referring to a license, because,
it must be presumed, the framers of the Statute
thought it was necessary, in order to cover the
kind of tax in question with legal sanction, that
it should be made in the shape of the price paid
for a license. ‘ ‘

And in the argument on the Liquor Prohibi-
tion Appeal, 1895, Lord Watson says,*: ** We
are always inclined to stand on what is the main
‘ substance of the Act in determining under which
of these provisions it really falls. That must be
determined secundum subjectam materiam,
i according to the purpose of the statute, as that
\ can be collected from its leading enactments.
\ When a legislature proceeds to enact that not
‘ less than a certain quantity of liquor shall ever
be sold retail, what is the object of it? Is it for
the physical benefit of the population that they
are legislating? Is it because small quantities
should not in their opinion be sold to any one
who wants a drink ? Or is it because they want
to regulate the trade? ” Again, later on,* he
says: ** There may be a great many objects, one
behind the other. The first object may be to
prohibit the sale of liquor, and prohibition the
only object accomplished by the Act. The
second object probably is to diminish drunken-
ness; the third object to improve morality, and
good behaviour of the citizens; the fourth ob-
ject to diminish crime, and so on. These are all

•Published by Wm. Brown ft Co., London, 1895: p. 184.
♦ At pp. 317-8.

ii

OBJECT AND SCOPE OF LEGISLATION. 313

objects. WMcli is the object of tbe Act? I

should be inclined to take the view that that

which it accomplished, and that which is its

main object to accomplish, is the object of the

statute; the others are mere motives to induce

the legislature to take means for the attainment

of it. ‘ ‘ And we may add in this connection the

observation of Gray, J., in Tai Sing v. MaguireJ^ . ^ A

that ” the preamble is really no substantial part S ^^,’

of an Act. It is simply the professed light by

which it is alleged the Act should be read ; but in

determining the objects of the Act we must look,

not at the preamble, but really at its enacting

clauses.'”

It must, however, be remembered that 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 legislature, the motive which induced
Parliament, or a local legislature, to exercise its
power in framing it cannot affect its validity.
This has already been pointed out in a previous
chapter. ‘”

Presumption in favour of the validity of
Acts. — We may refer here to the presumption
in favour of the validity of statutes. That it
is not to be presumed that the Dominion parlia-
ment has exceeded its powers, unless upon
grounds really of a serious character, is laid
down by the Privy Council in Valin v. Lang-

• (1878) 1 B. C. Irving 101, at p. 104.

• For other Canadian decisions illustrating the text generally,
Bee Law of Legislative Power in Canada, pp. 419-424,

‘” Supra, p. 75.

214 Canada’s federal system.

lois/ ; and their lordships have, also, said in
UUnion St. Jacques de Montreal v. Belisle*
that where the validity of a provincial Act is
in question, and it clearly appears to fall within
one of the classes of subjects enumerated in sec-
tion 92 of the British North America Act, the
onus is on the persons attacking its validity to
shew that it does also come within one or more
of the classes of subjects specially enumerated
in section 91. But the Canadian Courts have
gone further, and laid it down that in respect to
provincial statutes, generally, every possible
presumption must be made in favour of their
validity, even to the extent of disregarding title,
and preamble, and the legislature’s own inter-
pretation of the meaning of an Act passed by
itself, and its own statement of the particular
power under which it is legislating. As Ramsay,
J., puts it in Hamilton Powder Co. v. LamheJ’ :
” The powers of a local legislature are gathered
from the subject matter, and not from the
declaration of their powers.” Were it not for
these decisions, however, the propriety of any
general presumption in favour of provincial
Acts might be doubted, 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. And so, in
Dallaire v. La Cite de QueheCj^’ Langelier,

‘ (1879) 5 App. Gas. at p. 118.

• (1874) L. R. 6 P. C. 31.

• (1885) M. L. R. 1 Q. B. 460, at p. 466. For other Canadian
dicta and decisions relating to this matter, see Law of Legislative
Power In Canada, pp. 261-269.

•• (1907) R. J. Q. 32 S. C. at p. 120.

i

PRESUMPTION OF CONSTITUTIONALITY. 215

A.J.C., claims that the presumption in case of
doubt as to whether a province or the Dominion
has power to pass certain legislation, ought to
be in favour of the Dominion, rather than of the
province, on the ground that our Constitution
reserves to the parliament of Canada all those
powers which are not expressly given to the
local legislatures. And certainly the weighty
words of Henry, J., in City of Fredericton v.
The Queen^”^ may well be borne in mind; ” It
has been properly said, that it is a serious matter
to consider and decide that an Act of a legisla-
ture is ultra vires \ but it is much more serious
and unfortunate, by any judicial decision, to
destroy the Constitution of a country. The im-
portance of our decision arises, not nearly so
much from any effect it may have on the Act in
question, which, in itself, claims from us the
most patient and deliberate consideration, but
from the general result, in view of the consti-
tutional relations established by the Imperial
Act in question, as provided in the sections re-
ferred to in regard to other subjects.”

Interpretation put on the Federation Act by
Dominion parliament or Imperial officials. —

Declarations of the Dominion parliament are
not, of course, conclusive upon the interpreta-
tion of the British North America Act ; 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

” (1880) 3 S. C. R. at p. 545.

216 Canada’s federal system.

legislation, may properly be considered. The
Privy Council lay this down in Citizens Insur-
ance Co. V. Parsons,^^ where they refer in a
marked way to certain Acts of the Dominion
parliament in which the power of the provinces
to incorporate insurance companies for carry-
ing on business within the provinces is explicitly
recognized, pointing out that such recognition
is directly opposed to the contention raised by
counsel in that case, that by No. 11 of section 92
of the British North America Act, the * incor-
poration of companies with provincial objects,’
is meant companies with public provincial ob-
jects, so as to exclude insurance and commercial
companies. And, no doubt, this applies, a for-
tiori, when the provincial legislatures have, by
their legislation, shown agreement in the views
of the Dominion parliament as to their respec-
tive powers. And so in the same case in the
Supreme Court,’^ Foumier, J., says: *’ We may
fairly presume that the agreement of both legis-
latures to keep within the limit of their respec-
tive powers affords a strong presumption that
they have only exercised such powers as prop-
erly belonged to them.” So, too, the views acted
upon by the great public departments, as ex-
pressed in Imperial despatches, or otherwise,
carry weight in the absence of judicial decision.”

” (1881) 3 App. Cas. at p. 116. Cf. Canadian Pacific R. W. Co.
V. James Bay R. W. Co. (1905), 36 S. C. R, 42, per Nesbitt, J., at
pp. 89-90.

‘• 4 S. C R. at pp. 279-280. See further. Legislative Power In
Canada, pp. 237-238.

” Per Taschercau, J., In Mercer t. AUomey-Oeneral for On-
tario (1881), 5 S. C. R. at p. 673.

I

r

AEGUMENT FROM ACTUAL LEGISLATION. 217

But, as already indicated (supra pp. 69-75),
the Federal parliament cannot, either expressly
or impliedly, take away from, or give to the pro-
vincial legislatures a power which the Imperial
Act does, or does not, give them, and the same is,
mutatis mutandis, the case with the provincial
legislature; and, therefore, although a certain
weight must be attached to the views of their
respective powers expressed by the Dominion
parliament and the provincial legislatures,
through the medium of their legislative enact-
ments, the futility of any of these bodies assum-
ing to declare authoritatively the proper inter-
pretation of the British North America Act can-
not be disputed.”

Continued exercise of a legislative power
does not make it constitutional. — So again, in
the words of Ritchie, C. J., in Valin v. Langlois,^’
it is clear that if the Dominion parliament does
not possess a legislative power, neither the exer-
cise, nor the continued exercise, of a power not
belonging to it can confer it, or make its legis-
lation binding. And the same is, of course, true
of legislation by provincial legislatures. A
strong protest against basing a claim to legis-
lative power upon the fact of continued exer-
cise of such power by the Dominion or the pro-
vinces, and the acquiescence therein of the one
or the other, is contained in the report of Sir

“And so per Gwynne, J., in Lenoir v. Ritchie (1879), 3 S. C.
R. at pp. 639-640; per Taschereau, J., in Valin v. Langlois (1879),
3 S. C. R. at pp. 73-74. As to legislation by reference see supra,
pp. 71-3.

“3 S. C. R. at p. 26.

218 Canada’s federal system.

John Thompson, as Minister of Justice, upon
the Acts of the Province of New Brunswick for
1889.” He says there that he deems it his duty
to express his dissent from the view *’ that the
interpretation of the British North America Act
can in any way be affected by subsequent legis-
lation by Parliament, or the legislatures, or by
any action of the Government. No legislative
body can, by legislation, increase or diminish the
authority conferred upon it by the Constitution,
nor can any expression of opinion or course of
legislative action by either afford any conclusive
or even satisfactory guide to its interpretation.”
. . No person in Canada can be bound by ac-
quiescence in unconstitutional legislation on the
part of Governments, even if such acquiescence
has occurred.”

” Provincial legislation, 1867-1895, at p. 753.

“As to whether, nevertheless, the Dominion parliament may
not have certain powers of amending even the British North
America Act, apart from any interference with the provincial
powers, under its residuary power of legislation, see supra, pp.
100-1.

p

CHAPTER XXII.

Statutes Unconstitutional in Part Only.

1. We have seen in speaking of the Crown
that a provincial Act, if disallowed by the Gov-
ernor-General in Council, must be disallowed
altogether, that this or that clause of an Act can-
not be vetoed without the remainder {supra p.
82). A different principle prevails when the ques-
tion of the constitutional validity of statutes
comes before the Courts. 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 legis-
lative will, and unless the object of the Act is
such that it cannot be attained by a partial ex-
ecution. The judgment, or rather the report,
of the Judicial Committee of the Privy Council
upon the Dominion Liquor License Acts, 1883-4,
supports and illustrates this. They say that the
Acts ” are not within the legislative authority
of the parliament of Canada. The provisions
relating to adulteration, if separated in their
operation from the rest of the Acts, would be
within the authority of the parliament; but as
in their lordships’ opinion they cannot be so
separated, their lordships are not prepared to
report to Her Majesty that any of these Acts is
within such authority.” And so in Corporation

220 Canada’s federal system.

of Three Rivers v. Sulte,”^ Ramsay, J., says: *^ A
statute ultra vires does not remain in force for a
part, because some fractional part is witMn the
powers of the legislature, unless it appears that
the subject beyond the powers of the legislature
is perfectly distinct from that within, and that
each is a separate declaration of the legislative
will. This is not the case here.” Thus the fact
that a provincial Act authorizes something to be
done which the legislature had power to author-
ize, does not necessarily make the Act intra
vires even in respect to such application of it.
But, on the other hand, an Act may, certainly,
sometimes be intra vires in some of its applica-
tions, while ultra vires in others.*

It is clear that we cannot always treat
particular sections of an Act as isolated
independent clauses. The Act may form one
connected scheme to attain one definite object,
and so may have to be dealt with as a whole,
when its constitutionality is impugned. And so,
in another judgment, Ramsay, J., says,’: ” To
, let a law stand which is partly ultra vires and
i| partly constitutional, may be the most perfect
;l mode of defeating the legislative will. I, there-
‘ fore, say that a law which is ultra vires in part
may thereby be ultra vires in whole, and so it
should be construed, at all events, when it ap-
pears that the object of the Act is not attained
by a partial execution. Take, for instance, an
Act of incorporation of a railway company from

‘ (1882) 5 L. N. at p. 332.

* See Legislative Power in Canada, pp. 293-299.

*Dobie V. The Temporalities Board (1880), 3 L. N. at p. 251.

PARTIAL INVALIDITY OF STATUTES. 231

Quebec to Toronto. Could that be interpreted
as an Act of incorporation from Quebec to the
province line ? Unquestionably it could not be.*’
This matter is referred to in the Australian
case of The King v. Commonwealth Court of
Conciliation.* At pp. 315-320, the test is said to
be whether the statute with the invalid portions
omitted would be substantially a different law
as to the subject-matter dealt with by what re-
mained, from what it would be with the omitted
portions forming part of it. ” ^

2. Company powers under incorporating Acts.

— But it must not be supposed that Acts incor-
porating companies must necessarily be invali-
dated altogether because ultra vires in part. In
Colonial Building and Investment Association
V. The Attorney-General of Quebec/ Dorion,
C.J., with whom Cross and Baby, JJ., con-
curred, says: ” Without deciding that the whole
Act incorporating the company respondent is
ultra vires, we hold that the company has no
right to exercise in the province of Quebec the
powers conferred by its Acts of incorporation,
to buy, lease and sell land, etc., in the jDrovince
of Quebec.” So, again, Dorion, C.J., says,” of
the Dominion Act incorporating the Bell Tele-

* (1910), 11 C. L. R. 1, at p. 22.

* See, also, an Article on Unconstitutional Legislation by W.
Harrison Moore (1908-9), 6 Commonwealth Law Rev. 201.

* (1882), 27 L. C. J. at p. 304. The Privy Council, on appeal
to it, however, held the Act intra vires in all respects: (1883) 9
App. Cas. 157.

‘ Regina v. Mohr (1881), 7 Q. L. R. at p. 190. Here, again, the
Privy Council have overruled the actual decision, holding the
whole Act intra vires, [1905] A. C. 52.

222 Canada’s federal system.

phone Co. with power to build and operate tele-
phone lines in Canada or elsewhere: ‘* It is not
necessary to decide whether or not the whole
Act of incorporation is ultra vires, it is suffi-
cient for this case that the authority given to
erect telegraph poles in the streets of the City
of Quebec is ultra vires/’

3. Nullity of unconstitutional Acts. — 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 against
or affect those persons. If authority is wanted
for such manifest propositions it can be found
in the decisions of the Privy Coimcil in Bourgoin
V. La Compagnie du Chemin de Fer de Mont-
real,^ and in Theherge v. Landry.^ And similarly
under the American Constitution, Judge
Cooley,'” says: * When a statute is adjudged to
be unconstitutional, it is as if it had never been.
Rights cannot be built up under it; contracts
which depend upon it for a consideration are
void; it constitutes a protection to no one who
has acted under it, and no one can be punished
for having refused obedience to it before the

• (1880), 5 App. Cas. 381, at p. 406.

• (1876), 2 App. Cas. 102.
‘”Constitutional limitations, 6th ed., at p. 222.

PAETIAL INVALIDITY OF STATUTES. 323

decision was made. And what is true of an Act
void in toto is true, also, as to any part of an Act
which is found to be unconstitutional, and which
consequently is to be regarded as having never,
at any time, been possessed of legal force. ”

“As to whether it is necessary to specially plead the un-
constitutionality of a statute, and whether one can be estopped
from so doing, see infra p. 644, n. See, also, per Meredith, C.J.,
in Yalin v. Langlois (1879), 5 Q. L. R. at p. 16; per Duval, C.J., in
L’Vnion St. Jacques de Montreal v. Belisle (1872), 20 L, C. J.
at p. 39; U Association Pharmaceutique v. Livernois (1900), 30
S. C. R. 400.

CHAPTER XXIII.

Legislative Power and Proprietary Rights.

The subject of Dominion and provincial
property under the British North America Act
will be discussed in a later chapter, but it is
proper to call attention here to the distinction
between a gift by that Act of legislative power,
and a gift by it of proprietary rights. The fact
that legislative jurisdiction in respect of a par-
ticular subject-matter is conferred on the Do- i
minion parliament or provincial legislatures 1
affords no evidence or presumption that any ;
proprietary rights with respect to it were trans- I
f erred by the Act to the Dominion or provinces *
respectively. Thus, in the Fisheries Case,”^ the
Privy Council say: ” It must be borne in mind
that there is a broad distinction between pro-
prietary rights and legislative jurisdiction. The
fact that such jurisdiction in respect of a par-
ticular subject-matter is conferred on the Do-
minion legislature, for example, affords no evi-
dence that any proprietary rights with respect
to it were transferred to the Dominion. There
is no presumption that because legislative juris-
diction was vested in the Dominion parliament
proprietary rights were transferred to it. The

* Attomey-Oenerai -for the Dominion r. Attomev-Oeneral for
the Provinces, [1898] A. C. 700, at pp. 709-711. As to this case
see. also. The King v. Ship North (1906), 37 S. C. R. 385, 11 Ex.
C. R. 141, where held that the Dominion Government has power
to absolutely prohibit foreign nations from fishing within th«
three-mile limit of the coast of Canada.

LEGISLATIVE POWER AND PROPERTY. 225

Dominion of Canada was called into existence
by the British North America Act, 1867. What-
ever proprietary rights were, at the time of the
passing of that Act possessed by the provinces,
remain vested in them, except such as are by
any of its express enactments transferred to the
Dominion of Canada.^ In like manner in St.
Catharines Milling and Lumber Co. v. The
Queen/ their lordships had said — ” There can
be no a priori probability that the British legis-
lature in a branch of the statute which professes
to deal only with the distribution of legislative
power, intended to deprive the provinces of
rights which are expressly given them in that
branch of it which relates to the distribution of
revenues and assets. The fact that the power
of legislating for Indians, and for lands which
are reserved to their use, has been entrusted to
the parliament of the Dominion is not in the
least degree inconsistent with the right of the
provinces to a beneficial interest in these lands,
available to them as a source of revenue when-
ever the estate of the Crown is disencumbered
of the Indian title.”

So, again, the Dominion parliament has no
power, by virtue of its legislative jurisdiction
under section 91 of the British North America
Act to confer upon others proprietary rights

*In this connection sec. 117 of the Act must be borne in
mind: — ‘The several provinces shall retain all their respective
public property not otherwise disposed of in this Act, subject to
the right of Canada to assume any lands or public property re-
quired for fortifications or for the defence of the country.’

» (1888) 14 App. Cas. 46.

:»
C.F.8. — 15

226 Canada’s federal system.

where it possesses none itself, unless under such
items of section 91 as necessarily imply the
power to deal with property although not vested
in the Crown as represented by the Dominion
Government. Thus, in the Fisheries case just
referred to, the Privy Council say: ” If the
legislature purports to confer upon others pro-
prietary rights where it possesses none itself,
that, in their lordships’ opinion, is not an exer-
cise of the legislative jurisdiction conferred by
section 91. If the contrary were held it would
follow that the Dominion might practically
transfer to itself property which had, by the
British North America Act, been left to the
provinces and not vested in it.” But these
words have, of course, to be understood in the
light of the subject-matter then before the
Board. The question was whether under theii
legislative jurisdiction under item 12 of section
91 over * Sea Coast and Inland Fisheries,’ the
Dominion parliament had jurisdiction to auth-
orize the giving by lease, license, or otherwise,
to lessees, licensees, or other grantees, the right
of fishing in fisheries vested in private individ-
uals or in the provinces. Their lordships held
that it had not, for that the 91st section of the
British North America Act did not convey to
the Dominion any proprietary rights in relation
to fisheries; and they drew attention to the dis-
tinction which must be borne in mind between
rights of property and legislative jurisdiction.
Their lordships must certainly not be under-
stood as meaning that under its power to legis-
late in relation to Dominion railways, the Do-

LEGISLATIVE POWER AND PROPERTY. 227

minion parliament cannot provide for the ex-
propriation of lands, for example, for this legis-
lative power necessarily implies such a right to
interfere with private property, and even with
provincial Crown Lands.* Neither must they
be understood as impugning the power of pro-
vincial legislatures to deal freely with vested
rights and private property in the province
(other than property vested in the Crown as
represented by the Dominion Government, as
to which item 1 of section 91 of the Federation
Act gives the Dominion parliament exclusive
power of legislation). This is abundantly clear
from their lordships’ decision in The Florence
Mining Co. v. Cobalt Lake Mining Co.^ But
then it must be remembered that item 13 of sec-
tion 92 gives the provincial legislatures exclu-
sive power to make laws in relation to ‘ property
and civil rights in the province. ‘

As regards fisheries, the Privy Council take
occasion to say: ” At the same time, it must be
remembered that the power to legislate in rela-
tion to fisheries does, necessarily, to a certain
extent, enable the legislature so empowered to
affect proprietary rights. An enactment, for
example, prescribing the times of the year dur-
ing which fishing is to be allowed, or the instru-
ments which may be employed for the purpose
(which it was admitted the Dominion legislature
was empowered to pass), might very seriously
touch the exercise of proprietary rights, and the

* Attorney-General of British Columbia v. Canadian Pacific
R. W. Co., [1906] A. C. 204, 11 B. C. 289. As to this case, see
further, infra, p. 343.

” (1910) 102 L. T. 375. See as to this case, supra, pp. 34, 83;
infra, p. 516.

228 Canada’s federal system.

extent, character and scope of such legislation
is left entirely to the Dominion legislature.”

And, in connection with the general subject
under consideration, the relation between legis-
lative powers and proprietary rights under the
British North America Act, we may refer to the
view expressed by Ritchie, C. J., in Windsor and
Annapolis R. W. Co. v. Western Counties
R. W. Co,,”” that though the Dominion parlia-
ment has unquestionably the right to legislate
as to, and dispose of, any property belonging to
the Dominion,^ it has only the right to dispose
of the interest it may have in such propert3^
The question before him was as to the rights of
the Dominion parliament to legislate in rela-
tion to the Windsor Branch Railway, a provin-
cial railway which had passed to the Dominion at
Confederation under schedule 3 and section 108
of the British North America Act, in derogation
of certain running powers and other rights over
it granted or leased to a certain private railway
before Confederation. Sed quaere. The Privy
Council, on appeal, held, that the Dominion Act
in question did not do this, and, therefore they
expressed no opinion whatever on the point,
which they call, however, ” a question of diffi-
culty and importance.” And some support to
the view of Ritchie, C.J., is to be found, perhaps,
in the holding of the Supreme Court in
The Queen v. Moss,^^ that, if a province before
Confederation had so dedicated the bed of a

•Russ. Eq. at p. 307. In appeal (1882), 7 App. Cas. 178.
‘Under Item 1 of section 91 of the Act.
• (1896) 26 S. C. R. 322.

LEGISLATIVE POWER AND PROPERTY. 229

navigable river for the purposes of a bridge that
it could not have objected to it as an obstruction
to navigation, the Crown, as representing the
Dominion, on assuming control of the naviga-
tion was boimd to permit the maintenance of the
bridge. But, strangely enough, none of the
judgments in Windsor and Annapolis R. W. Co.
V. Western Counties R. W. Co.^ take notice
of the fact that by No. 1 of section 91, the exclu-
sive power of making laws in relation to the
public debt and property is assigned to the Do-
minion parliament; and the only question is, it
is submitted, whether in legislating on such pub-
lic property, it can or cannot override any vested
rights which the property was subject to before
Confederation, as well, of course, as any to
which it may become subject by act of the Do-
minion Government or parliament after Con-
federation, short of its ceasing altogether to be
public property of the Dominion. And the
answer to this question, it would seem, should,
under the authorities, now be in favour of the
Dominion power.^”

» (1878) Russ. Eq. 287, 383; 3 R. & C. 377; 2 R. & G. 280.
^•See supra, pp. 82-5.

CHAPTER XXIV.

Specific Legislative Powers — Dominion and
Provincial.

Having now set forth the sections of the
British North America Act which construct the
framework of our Federal Constitution, and
having discussed the place and functions therein
of the Crown in which is vested the executive
pewer, 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 eniuner-
ated legislative powers in sections 91 and 92, so
far as the authorities have thrown light upon
them, and then to treat of the property pro-
visions of the Act.

DOMINION POWERS.

1. The public debt and property.

The question of Dominion and provincial
property under the British North America Act
is treated of in Chapter XXIX.’ See, however,
supra pp. 228-9.

2. The regulation of trade and commerce.

In Citizens Insurance Co. v. Par sons, ^^ the
Privy Council, to use their own words in their

» See pp. 689-739.

‘• (1881) 7 App. Cas. 96.

REGULATION OF TRADE AND COMMERCE. 331

subsequent judgment in Bank of Toronto v.
Lamhe,^ found it ‘ ‘ absolutely necessary that the
literal meaning of these words ‘ regulation of
trade and commerce ‘ should be restricted in
order to afford scope for powers which are given
exclusively to the provincial legislatures.” And
in their very recent judgment in City of Mont-
real V. Montreal Street Railway,^” they say: —
” Taken in their widest sense these words
would authorise legislation by the parliament of
Canada in respect of several of the matters spe-
cifically enumerated in section 92 and would
seriously encroach upon the local autonomy of
the province.” And so, upon the argument
before the Board in the Liquor Prohibition
Appeal, 1895,^ Lord Halsbury, L.C.,* is re-
ported as saying with reference to them: —
” I think one must bear in mind that you
are not at liberty to construe these words in
their ordinary natural meaning. You must
take the words as used by the legislature. . .
I cannot help thinking that you must give what
I will call the statutory meaning to those words. ”
And so in Citizens Insurance Co. v. Parsons^
their lordships say that the words ‘* may have
been used in some such sense as the words * regu-
lations of trade ‘ in the Act of Union between
England and Scotland (6 Anne ch. 11), Article

‘ (1887) 12 App. Cas. at p. 581.

=» [1912] A. C. at p. 344.

‘Attorney-General for Ontario v. Attorney-General for the
Dominion, [1896] A. C. 348.

* Transcript from shorthand notes (Wm. Brown & Co., LoH-
don, 1895), at p. 209.

» (1881) 7 App. Cas. at p. 112.

232 Canada’s federal system.

6 of which enacted that all parts of the United
Kingdom, from and after the Union, should be
under the same * prohibitions, restrictions and
regulations of trade.’ ” ” Parliament has at
various times since the Union,” they say,
‘* passed laws affecting and regulating specific
trades in one part of the United Kingdom only,
without its being supposed that it thereby in-
fringed the Articles of Union.”‘ Thus the Acts
for regulating the sale of intoxicating liquors
notoriously vary in the two Kingdoms.” And
they come to the conclusion that ‘ regulation of
trade and commerce ‘ in No. 2 of section 91 of
the British North America Act, includes
” political arrangements in regard to trade, re-
quiring 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 comprehend the power to regulate by
legislation the contracts of a particular business
or trade (such as the business of fire insurance),
in a single province. ‘ ‘

And, as to the use of the word ‘ general ‘ in
the above passage — * general regulation of
trade affecting the whole Dominion ‘ — Lord
Watson observed, in the course of the argument
of the Liquor Prohibition Appeal, 1895,* that:
” It is apt to be misused, and it is apt to mislead.
It is not general as including all particulars,

•• Note the words of the Act are ‘ the regulation of trade and
commerce,’ not ‘ the regulation of trades and commerce.’ It may
be that regulation of the customs tariff was what was principally
in the mind of the legislator.

• At p. 200. See supra, p. 203, n.

REGULATION OF TRADE AND COMMERCE. 233

but it is general as distinguished from certain
particulars.”

Their lordships, however, while speaking in
this way as to the ‘ regulation of trade and com-
merce ‘ in Citizens Insurance Co. v. Parsons,”
expressly say that they abstain from any
attempt to define the limits of the authority of
the Dominion parliament in this direction. They
have themselves referred to their language in
two subsequent judgments,* but without further
elucidating the subject; and although the Do-
minion power in question has been the subject
of much discussion elsewhere, the precise deter-
mination of its scope can scarcely be said to
have been much advanced. It may still be said,
as Lord Watson is reported to have observed on
the argument of The Liquor Prohibition Ap-
peal, ISQS,**: ” I do not think any of the cases
afford a definition, or anything like a precise
definition, of what precisely is meant by the ex-
pression ‘ regulation of trade ‘ in sub-section 2.
There are explanations of it, but the explana-
tions, as far as I can find, require as much ex-
planation as the section itself.”

It was in entire accordance with their inter-
pretation in Citizens Insurance Co. v. Parsons

‘ (1881) 7 App. Gas. 96.

^Bank of Toronto v. Lambe (1887), 12 App. Gas. at p. 586,
and The Liquor Prohibition Appeal, 1895, [1896] A. G. at p. 363.
Judge Clement, however, thinks (Law of Canadian Constitution,
2nd ed., p. 202, n. 4), that their lordships’ words in the latter
case indicate that a general federal Act regulating trade and
commerce might legitimately embrace such provisions as to the
insurance trade throughout the Dominion as were contained in
the Ontario Act in question in Citizens Insurance Co. v. Par-
sons.

•At p. 210.

234 Canada’s federal system.

of this Dominion power, that the Privy Council
held, in Bank of Toronto v. Lamhe,^^ that it does
not prevent any provincial taxation on the per-
sons or companies regulated ; and in the Liquor
Prohibition Appeal, 1895,” that the prohibitive
enactments of the Canada Temperance Act can-
not be regarded as regulations of trade and com-
merce; and in Brewers and Maltsters Associa-
tion of Ontario v. Attorney-General of Ontario,^^
that an Ontario Act was not ultra vires although
it required every brewer, distiller, or other per-
son, though duly licensed by the Government of
Canada for the manufacture and sale of fer-
mented, spirituous, and other liquors, to take
out licenses to sell the liquors manufactured by
them, and pay a license fee therefor; and in
Attorney-General of Manitoba v. Manitoba
License Holders^ Association,^^ that the Liquor
Act of Manitoba was intra vires, although it
included divers prohibitions and restrictions
affecting the importation, exportation, manu-
facture, keeping, sale, purchase, and use of in-
toxicating liquors, and so, in the words of the
judgment, *’ must interfere with licensed trades
in the province of Manitoba, and indirectly at
least, with business operations beyond the limits
of the province “; and in Hull Electric Co. v.
Ottawa Electric Co.,^* that a provincial Act

” (1887) 12 App. Cas. at p. 586.

” [1896] A. C. 348.

” [1897] A. C. 231.

” [1902] A. C. 73. As to the power of the Ontario Legisla-
ture to prohibit the sale of liquor on vessels on the great lakes,
see Rex v. Meikleham (1905), 11 O. L. R. 366.

“[1902] A. C. 237.

REGULATION OF TRADE AND COMMERCE.

235

validating a municipal by-law granting certain
persons an exclusive right of establishing a sys-
tem of electric lighting for a certain term of
years in the city was intra vires, notwithstand-
ing that electric light is a commercial commo-
dity, seeing that the scheme in favour of which
the by-law was passed was a purely local under-
taking, and not the less so because in such cases
it is usual, and probably essential for the success
of the undertaking, to exclude for a limited time
the competition of rival traders.

Upon the argument before the Privy Council
in Russell v. The Queen, in 1882,^^ counsel for the
appellant said: ” Any such matters as embargo
laws, intercourse between different provinces,
coasting regulations, regulations of navigation,
and all those sort of matters, I submit, would
come within it, but not an Act really dealing
with the morals of a people in a particular dis-
trict, which may be a very small district.” And
so, in Hodge v. The Queen^^ the Privy Council
upheld a provincial Act making police or muni-
cipal regulations of a merely local character for
the good government of taverns, etc., licensed for
the sale of liquors by retail ; and there have been
very numerous decisions in Canadian Courts
holding provincial legislation of a local, sani-

•*

“Transcript from Marten and Meredith’s shorthand notes,
2nd day, at p 18. See Regina v. H’OlUind (1900), 7 B. C. 281. up-
holding the provisions of the Dominion Insurance Act, which re-
quire fire insurance companies to obtain a license from the
Minister of Finance before doing business in Canada (other than
companies carrying on business exclusively within the province
by the legislature of which they were incorporated), as within
the terms ‘ regulation of trade and commerce.’

” (1883) 9 App. Cas. 117.

236 Canada’s fedekal system.

tary, or police character,” valid, notwithstand-
ing any effect it might have on particular
trades.” And in this connection a very apposite
citation may be made from Story on the Consti-
tution of the United States,^*: *’ The acknow-
ledged powers of the States over certain sub-
jects having a connection with commerce are
entirely different in their nature from that to
regulate commerce ; and, though the same means
may be resorted to, for the purpose of carrying
each of these powers into effect, this by no just
reasoning furnishes any ground to assert that
they are identical. Among these are inspection
laws, health laws, laws regulating turnpikes,
roads and ferries, all of which, when exercised
by a State, are legitimate, arising from the gen-
eral powers belonging to it, unless so far as they
conflict with the powers delegated to Congress.
They are not so much regulations of commerce
as of police. ‘ “°

” As to the phrase ” police regulations,” see infra, p. 584.

“See Legislative Power in Canada, at pp. 455-456; also ibid..
p. 559, n. 3, where many cases of this sort are referred to, to
which may now be added: Smylie r .The Queen (1900), 27 O. A.
R. 172, 31 O. R. 202; Rex v. McGregor (1902), 4 O. L. R. 198, 204;
Stark V. Shuster (1904), 14 Man. 672; Re Fisher and Village of
Carman (1905), 16 Man. 560; Re Brown and City of Calgary
(1906), 5 W. L. R. 576; DeVarennes v. Le Procureur Gin^ai,
R. J. Q. (1907), 16 K. B. 571, in app. 31 S. C. R. 444; City of
Montreal v. Beauvais (1909), 44 S. C. R. 211; Re Foster and
Township of Raleigh (1910), 22 O. L. R. 26, 342; Report of
Minister of Justice of Nov. 14, 1899, on a British Columbia Act
purporting to make void as against an alien immigrant, a con-
tract of service entered into by him before coming to the pro-
vince: Provincial Legislation, 1899-1900, at p. 105. See also, iUd.,
at p. 121.

“Sth ed., vol. 2, at p. 14.

* The power of Congress is not so wide as the Dominion
power. It is to ‘ regulate commerce with foreign nations, and
among the several States, and with the Indian tribes:’ Consti-
tution of United States, Art 1, sec. 8 (3).

FEDERAL TAXATION. 837

3. The raising of money by any mode or sys-
tem of Taxation.

As the Privy Council point out in Citizens
Insurance Co. v. Parsons/^ the description of
this Dominion power is sufficiently large and
general to include ‘ direct taxation within the
province in order to the raising of a revenue for
provincial purposes,’ assigned to the provincial
legislatures by No. 2 of section 92, but it ob-
viously could not have been intended that the
general power should over-ride the particular
one. All other power to impose direct taxation,
however, is exclusively in the Dominion under
this sub-section. But as we shall see no narrow
construction has been given to the words ‘ for
provincial purposes. ‘

So, again, notwithstanding the exclusive pro-
vincial power under No. 9 of section 92 to make
laws in relation to ‘ shop, saloon, tavern, auc-
tioneer, and other licenses in order to the rais-
ing of a revenue for provincial, local, or muni-
cipal purposes,’ the Dominion parliament, also,
can tax by means of licenses. Thus in the
Fisheries case,” the Privy Council say that it
is impossible to exclude as not within the power
we are considering, a Dominion provision im-
posing a tax by way of license as a condition of
the right to fish in sea coast and inland fisheries.

” (1881) 7 App. Cas. at p. 108. As to what is ‘direct taxa-
tion,’ see infra, pp. 393-9.

^Attorney-General of Canada v. Attorney-General of the Pro-
vinces, [1898] A. C. 700, at pp. 713-4. And see, also, as to both
the Dominion parliament and the provincial legislatures having
power to tax by means of licenses, per Taschereau, J., in Angers v.
Queen Insurance Co. (1877), 16 C. L. J. N. S. at pp. 204-5; per
Ritchie, C.J., in Severn v. The -Queen (1878), 2 S. C. R. at p. 101.

238 Canada’s federal system.

There is, of course, nothing to prevent the
parliament of Canada, or the provincial legisla-
tures, legislating retrospectively in relation to
subject-matters within their respective jurisdic-
tions. And so, in Attorney-General v. Foster/^
a Dominion Act respecting customs duties,
which was only assented to on May 16th, 1890,
was, nevertheless, held intra vires in pro\i.ding
that it should be held to have come into force
on March 28th, 1890, and to have applied to aU
goods imported or taken out of warehouse for
consumption on or after the latter date. At
p. 173, Allen, C.J., calls attention to section 122
of the British North America Act, which declares
that the customs and excise laws of each pro-
vince shall continue in force until altered by the
parliament of Canada.

In another recent case it has been held,^* that
under this No. 3 of section 91, the Dominion
parliament has legislative authority to 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 re-
pugnancy between this and any Imperial enact-
ment extending to Canada.

Section 125 of the British North America
Act specially provides that * no lands or prop-
erty belonging to Canada or any province shall
be liable to taxation ‘ ; the cases, however, which
have arisen under this section, concern provin-
cial, and not Dominion taxation, and will be
noticed under No. 2 of section 92.”

» (1892) 31 N. B. 153.

‘*Algoma Central R. W. Co. v. The King (1901), 7 Ex. C. R.
239.

“Infra, pp. 415-7.

TAXATION NEED NOT BE UNIFORM. 239

In conclusion, it may be noticed that in entire
accordance with that omnipotence of Canadian
legislatures within their respective spheres,
which is one of the points in which, in the words
of the preamble of the British North America \

Act, the Dominion has ‘ a Constitution similar
in principle to that of the United Kingdom,’
there is no such necessity for uniformity and
equality of taxation with us as exists in the
United States, where the Constitution provides,
by Article 1, section 3, that ‘ direct taxes shall
be apportioned among the several States . . .
according to their respective numbers, ‘ etc., and
by Article 1, section 8, that ‘ all duties, imports,
and excises, shall be uniform throughout the
United States ‘ ; and that ‘ no capitation or
other direct tax shall be laid, unless in propor-
tion to the census or enumeration hereinbefore
directed to be taken. ‘

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.

“•As Clement says with regard to this power (op. cit. p.
207, n. d. ) ‘ Any construction other than ” the census and statis-
tics in relation thereto ” would land one in difficulties.’ There
seems to be no reported expression of judicial opinion upon it.

240 Canada’s federal system.

It would seem that in City of Montreal v.
Gordon,^” the Supreme Court held that the par-
liament of Canada had no constitutional right
to impose in the Militia Act civil obligations
upon any provincial municipality for the pay-
ment of the troops. The only other citation to
be made under this sub-section seems to be an
observation of the Privy Council in Cunning-
ham V. Tomey Homma” where it was argued
that a British Columbia Act which enacted that
no Japanese, whether naturalised or not, should
have his name placed on the register of voters,
or be entitled to vote at the elections for the pro-
vincial legislature, was ultra vires, because
under No. 25 of section 91, the Dominion par-
liament has exclusive power to legislate in rela-
tion to * Naturalization and Aliens.* They say
that it might with equal force be argued that be-
cause No. 7 of section 91 gives the Dominion
parliament exclusive legislative authority as to
‘ Militia, Military and Naval Service and De-

“(1905), Coutlee’s Cas. 343, reversing the Court below
(1903), R. J. Q. 24 S. C. 465. As to taxing soldiers and sailors,
see per Robinson, C.J., in Tully v. The Principal Officers of Her
iiajesty’s Ordnance (1847), 5 U. C. R. at p. 14. See, also, an
Article on ‘ The Law Applicable to the Militia of Canada,’ by W.
B. Hodgins: (1901), 21 C. L. T. 169; and another Article on the
same subject in 37 C. L. J, 214. The decision of Chauveau, J.,
in Holmes v. Temple (1882), 8 Q. L. R. 351, holding this power
to be exclusive of the Imperial parliament, so that the Imperial
Army Act could not apply to make the Canadian public liable
for offences under it (i.e., in this case, attempting to persuade
a member of the Active Militia of Canada to desert), though the
same are not offences under the Militia Act of Canada, is of
course not longer supportable. See supra, pp. 51-8. Cf. Reg. v.
Schram (1864), 14 C. P. 318, a case, however, before Confeder-
ation.

“[19031 A. C. 151.

NAVIGATION AND SHIPPING. 241

fence,’ therefore, the Dominion parliament has
the exclusive authority to confer the provincial
electoral franchise upon the militia.

8. The fixing of and providing for the sal-
aries and allowances of civil and other ofl&cers
of the Government of Canada.”

9. Beacons, buoys, lighthouses, and Sable
Island.

10. Navigation and shipping.'”‘

This power entitles the Dominion parlia-
ment to declare what shall be deemed an inter-
ference with navigation. Thus in the Fisheries
case,’® the Privy Council say: ” Their lord-
ships entertain no doubt that the Dominion par-
liament had jurisdiction to pass the Act, inti-
tuled : * An Act respecting certain works con-
structed in or over navigable waters. ‘ It is, in
their opinion, clearly legislation relating to
‘ navigation.’ In McMillan v. Southwest Boom
Co.,^° the New Brunswick Supreme Court had
held that this Dominion power was not intended
to include the right to authorize the erection of

**As to the provincial power to tax the salaries of Dominion
officials, see supra, pp. 417-421.

=** As to Admiralty jurisdiction in the Dominions, generally,
see Keith’s Responsible Government (1912), Vol. 3, pp. 1348-56.
As to the Imperial Merchant Shipping Acts, see supra, pp. 55-6.

” [1898] A. C. 700, at p. 717, affirming the Supreme Court,
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..
16-7, n. (a).

” (1878) 1 P. & B. 715.

c.F.s. — 16

242 Canada’s federal system,

booms for securing lumber in the rivers of the
province, but that the phrase * navigation and
shipping ‘ was used in the sense in which it was
used in the Imperial Acts relating to * naviga-
tion and shipping ‘ ; and meant the right to pre-
scribe rules and regulations for vessels navi-
gating the waters of the Dominion. And as to
the validity of the Dominion Act respecting the
navigation of Canadian waters, and the appli-
cability of its provisions to collisions occurring
therein, see The Eliza Keith/”^ and The Hibern-
ian.^” It is not apparently material at what port
a British vessel is registered, whether, e.g., she
is registered in the Dominion, or in Great
Britain.^^

In McCaffrey v. Hall/* the Quebec Superior
Court held intra vires a local Act whereby cer-
tain persons were authorized to erect piers and
booms in the River Nicolet * provided always
that the said piers and booms shall be so con-
structed and placed, as in no way to interfere
with or obstruct the crossings, or free inter-
course and navigation of said river.* And in
Wood V. Esson,^^ it was held that the Crown for
the province cannot grant a water-lot extending
into navigable waters so as to enable the grantee
to construct or erect any wharf or other obstruc-
tion that will interfere with navigation without
proper legislative authority.

” (1877) 3 Q. L. R. 143.

**L. R. 4 P. C. 511, at pp. 516-7. And see Legislative Power in
Canada, p. 641, n. 2. O/., also. The Farewell (1881), 7 Q. L. R. 380.

-Rhodes V. FairtoecUher (1888), Newfoundland Decisions,
p. 337.

•• (1891) 35 L. C. J. 38.

» (1884) 9 S. C. R. 239.

NAVIGATION AND SHIPPING. 243

But this Dominion power does not prevent
the valid incorporation of provincial navigation
companies. Thus, in Macdougall v. Union Navi-
gation Co./*^ the Quebec Court of Queen’s Bench
held intra vires a Quebec Act incorporating such
a company, the operations of which were limited
to the province, for * carrying on any forward-
ing business, and the constructing, owning,
chartering or leasing ships, steamboats, wharves,
roads or other property required for the
purpose of such forwarding business,’ as
a local work or undertaking under Number
10 of section 92. And so per Taylor,
C.J., in Re Lake Winnipeg Transportation
Lumber and Trading Co.,^” who says: ” Legisla-
tion on ‘ navigation and shipping ‘ would seem
rather to deal with such matters as the law of
the road, lights to be carried, how vessels are to be
registered, evidence of ownership and title,
transmission of interest and such matters.”

But such a provincial corporation may find
that, in order to the effectual execution of its
corporate purposes it has to have recourse to
the Dominion legislature or officers. Thus, in a
report of February 23rd, 1910, as Minister of
Justice, Sir Allen Aylesworth says, of a New
Brunswick Act authorising the City of St. John

” (1877) 21 L. C. J. 63. See, also. Union Navigation Co. v.
Couillard (1875), 7 R. L. 215.

” (1891) 7 M. R. at p. 259. For a general 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. M-artin
(1904), 36 N. B. 448, the Supreme Court of New Brunswick held
intra vires a Dominion enactment forbidding, under penalty of
imprisonment, enticing seamen to desert from their ship, or har-
bouring such deserters.

244 Canada’s federal system.

to build a bridge across the Harbour of St. John :
** This Act while it may operate to confer capa-
city upon the corporation of St. John to con-
struct and maintain a bridge across the harbour,
cannot give any title to the city to construct
works upon the harbour bed or in or over navi-
gable waters. It is, however, necessary, if the
bridge is to be constructed by the city, that the
corporate powers of the City should be enlarged
accordingly, and in that view the undersigned
considers that the Act should be left to its opera-
tion, and he presumes that, of course, the City
authorities will obtain the necessary Dominion
authority and sanction before proceeding with
the work.” And so in Queddy River Driving
Boom Co. V. Davidson,^^ the Supreme Coui-t held
ultra vires a provincial Act purporting to incor-
porate a boom company with power to obstruct
by piers and booms a public tidal and navigable
river, as trenching on the exclusive jurisdiction
of the Dominion over * navigation and ship-
ping ‘; and because, inasmuch as the objects of
the company involved interference with na\iga-
tion, they could not be said to be ‘ provincial
objects,’ within No. 11 of section 92. But it is
competent for the Dominion parliament to in-

” (1883) m S. C. R. 222. And see Legislative Power in Can-
ada, p. 641, n. 2. Cf. Reg. v. Fisher (1891), 2 Ex. C. R. 365,
where held that a grant from the Crown which derogates from a
public right of navigation is to that extent void, unless such inter-
ference with navigation is authorized by Parliament, and that
if by a provincial Act passed before Confederation, authority has
been given to the Crown by its grant to derogate from, or inter-
fere with, the public right of navigation, that authority is, since
the Union, exercisable by the Governor-General in Council, and
not by the Lieutenant-Governor in Council.

NAVIGATION AND SHIPPING. 245

corporate under Dominion charter the members
of a provincial company, and so enlarge the
scope of their operations and powers; but
quaere, whether a provincial legislature can con-
fer on a company incorporated by Dominion
charter, enlarged powers and franchises, thus,
in effect, amending the provisions of a Dominion
Act of incorporation.”

Again, the late Sir John Thompson, reported
on January 28th, 1889,*” favourably in regard to
a Nova Scotia Act in relation to public health,
which authorised the Governor-in-Council to
regulate — ‘ so far as this legislature has juris-
diction in this behalf, with a view of preventing
the spread of infectious diseases, the entry or
departure of boats or vessels at the different
ports or places in Nova Scotia,’ saying: ‘* The
British North America Act gives exclusive legis-

*• See, further, on the whole subject. Legislative Power in
Canada, p. 633, n. 2, and infra, pp. 480, 483. A provincial legisla-
ture may extend the boundaries of a municipality so as to include
part of a navigable river: Central Vermont R. W. Co. v. Town of
St. Johns (1886), 14 S. C. R. 288. “If it is beyond controversy
that navigable rivers are for purposes of navigation under the
control of the parliament of Canada, it is not less true that the
provinces have, upon these same rivers, the right to exercise
all municipal and police powers, so long as their legislation
creates no hindrance to navigation:” per Fournier, J., S. C. at p.
297, cited Clement op. dt. p. 211. As to provincial Crown grants
extending into navigable waters see Queen v. Fisher (1891),
2 Ex. C. R. 365; Queen v. St. Johns Gas Light Co. (1895), 4 Ex.
C. R. 326, at p. 346, where held that a provincial legislature can-
not legalize such an interference with or injury to the right of
navigation or fishery as would amount to a nuisance; In re Pro-
vincial Fisheries (1896), 26 S. C. R. at p. 575; Normand v. St.
Lawrence Navigation Co. (1879), 5 Q. L. R. 215; Lake Simcoe
Ice Co. V. McDonald (1900), 29 O. R. 247, 26 O. A. R. 411, 31
S. C. R. 130.

” Hodgins’ Provincial Legislation, 1867-1895, p. 582. Cf. ibid.
at pp. 946-7.

f:

246 Canada’s fedeeal system,

lative power to the parliament of Canada in
respect of quarantine, navigation, and shipping.
It would clearly not be competent for a provin-
cial legislature to make an enactment relating
to the arrival of vessels, vehicles, passengers, or
cargoes from places outside the province, but it
may be that provincial control may be exercised
in relation to transport from one port of the
province to another, subject, of course, to any
regulation on the subject of quarantine by the
federal authority.”

It was under this Dominion power, in con-
junction with that over the regulation of trade
and commerce, and with that under section 101
of the British North America Act to establish
Courts for the better administration of the laws
of Canada, that in the case of The Picton*^ the
Supreme Court affirmed the validity of the Do-
minion Act constituting the Maritime Court of
Ontario.

Lastly, in Longueuil Navigation Co. v. City
of Montreal*^ it was held that, notwithstanding
that * navigation and shipping ‘ is placed under
Dominion jurisdiction, a Quebec Act authoris-
ing the levy of a tax upon ferryboats, including
steamboats carrying passengers and goods be-
tween Montreal and places not distant more than
nine miles, was intra vires.

” (1879) 4 S. C. R. 648. Cf. Attorney-General v. Flint (1884),
16 S. C. R. App. at p. 707. In the case of The Farewell (1881),
7 Q. L. R. 380, it was held that 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. As to sec. 101, see infra, pp. 672-688.

« (1888) 15 S. C. R. 566.

I

SEA COAST AND INLAND FISHERIES. 247

11. Quarantine and the establishment and
maintenance of Marine Hospitals/”

12. Sea coast ‘”” and inland fisheries.

The scope of this Dominion power has been
defined by the Privy Council in the Fisheries
case,” having been first discussed by the Su-
preme Court in that case in the Court below,”
and in their previous decision in The Queen v.
Robertson*’^ The Privy Council affirm the Su-
preme Court in holding that the legislative
authority of the Dominion parliament is con-
fined to the enactment of fishery regulations and
restrictions, and does not extend to direct inter-
ference with proprietary rights in fisheries, as
by authorizing the giving by lease, license, or
otherwise, the right of fishing in navigable or

** See report of Sir John Thompson of January 28th, 1889,
supra, pp. 245-6.

“• Clement, op. cit. p. 213, calls attention to ‘ the curious error ‘
into which Lord Selborne, L.C., fell in UUnion St. Jacques v.
Belisle (1874), L. R. 6 P. C. at p. 37, in not treating ‘sea coast,’
as ‘an adjective,’ igu. two adjectives), and speaking of it as
putting ” the whole of the sea coast within the exclusive cogni-
zance of the Dominion legislature.”

” Attorney-General of the Dominion v. Attorney-Oeneral of the
Provinces, [1898] A. C. 700.

*» 26 S. C. R. 444.

” (1882), 6 S. C. R. 52. Clement, op. cit. p. 216, queries the
words of the judgment in this case (infra, p. 248), so far as it
seems to hold that the provincial legislatures cannot pass laws
with reference to the improvement and the increase of the fisher-
ies. The fisheries, he observes, are provincial assets. He also
cites Re Lake Winnipeg Transportation and Lumber Co. (1891),
7 Man. L. R. 255, as showing that a provincial Act incorporating
a company with power to catch and cure fish is not an Act in
relation to ‘ fisheries ‘ within the meaning of the power under con-
sideration, but falls under No. 11 of section 92, ‘ the incorpora-
tion of companies with provincial objects.’

248 Canada’s federal system.

non-navigable lakes, rivers, streams, and waters,
the beds of wMcb bad been granted to private
proprietors before Confederation, or not hav-
ing been so granted are assigned to the provinces
under the British North Anieric£^A£t.^ At pp.
712-7l ^_their lordsh ips sax:^^^ever~pro^
prietary rights in relation to fisheries were pre-
viously vested in private indi\T.duals or in the
provinces respectively, remain untouched by
that enactment ” (sc. No. 12 of section 91).
” Whatever grants might previously have been
lawfully made by the provinces in virtue of their
proprietary rights could lawfully be made after
that enactment came into force. At the same
time, it must be remembered that the power to
legislate in relation to fisheries does necessarily
to a certain extent, enable the legislature so em-
powered to affect proprietary rights. An enact-
ment, for example, prescribing the times of the
year during which fishing is to be allowed, or the
instruments which may be employed for the
purpose (which it was admitted the Dominion
legislature was empowered to pass), might very
seriously touch the exercise of proprietary
rights, and the extent, character, and scope of
such legislation is left entirely to the Dominion
legislature.”

The Privy Council further dealt with the
question raised before them as to whether pro-
vincial legislatures might not, also, make fishery
regulations so far as not inconsistent with Do-

*• See supra, p. 226, as to this case. As to the right of fishing
in navigable and floatable rivers in Canada being exclusively
in the Crown, see Wyatt v. Attorney-General of Quebec [TDll]
A. C. 489.

SEA COAST AND INLAND FISHERIES.

249

minion legislation. As to this they say, at pp.
715-716: *’ It has been suggested, and this view
has been adopted by some of the judges of the
Supreme Court, that although any Dominion
legislation dealing with the subject would over-
ride provincial legislation, the latter is never-
theless valid, unless and until the Dominion
parliament so legislates. Their lordships think
that such a view does not give their due effect
to the terms of section 91, and in particular
to the word ‘ exclusively. ‘ *^ . . Their lord-
ships feel constrained to hold that the enactment
of fishery regulations and restrictions is within
the exclusive competence of the Dominion legis-
lature, and is not within the legislative power of
provincial legislatures; ^^But whilst in their
lordships’ opinion all restrictions or limitations
by which public rights of fishing are sought to
be limited or controlled can be the subject of
Dominion legislation only, it does not follow that
the legislation of provincial legislatures is not
competent merely because it may have relatior
to fisheries. For example, provisions prescrib-
ing the mode in which a private fishery is to be
conveyed or otherwise disposed of, and the
rights of succession in respect of it, would be
properly treated as falling under the heading
* property and civil rights ‘ within section 92,
and not as in the class ‘ Fisheries ‘ within the
meaning of section 91. So, too, the terms and
conditions upon which the fisheries which are
the property of the province may be granted,
leased, or otherwise disposed of, and the

1/

♦•See supra, pp. 107-111; 120-122;; 128-132.

250 Canada’s federal system.

rights which consistently with any general regu-
lations respecting fisheries enacted by the Do-
minion parliament may be conferred therein,
appear proper subjects for provincial legisla-
tion, either under class 5 of section 92, * the
management and sale of public lands,’ or under
the class ‘ property and civil rights.’ Such
legislation deals directly with property, its dis-
posal, and the rights to be enjoyed in respect of
it, and was not, in their lordships’ opinion, in-
tended to be within the scope of the class * Fish-
eries ‘ as that word is used in section 9|i. ‘^The
Supreme Court *” had held that the provincial
legislatures had jurisdiction to regulate times
and modes of fishing in provincial waters, sub-
ject to any Dominion legislation in relation to
sea coast and inland fisheries. Gwynne, J., who
dissented from the other judges on the point,
adds; however (at p. 545) : ‘* I do not think that
any Act or part of an Act of a provincial legis-
lature, passed for the purpose of aiding in the
protection of fisheries as provided by an Act
of the Dominion parliament, would be held to
be ultra vires as being legislation upon a subject,
namely, the * fisheries,’ which is exclusively
within the jurisdiction of the Dominion parlia-
ment, however inoperative and unnecessary such
provincial legislation might be; but, unless so
in aid of the legislation of the Dominion parlia-
ment, I am of opinion that the subject is not
within the jurisdiction of the provincial legis-
latures.”

* (1896) 26 S. C. R. 444.

SEA COAST AND INLAND FISHERIES. 251

Basing itself upon the decision of the Privy
Council in the Fisheries case, the Supreme
Court of Nova Scotia held, in Young v. Har-
nish,^” that the Dominion Fisheries Act, R. S. C.
1887, ch. 95, sec. 4, was ultra vires in so far as
it empowered the grant of exclusive fishing
rights even over a public harbour, and that fish-
eries do not necessarily constitute a part of
such a harbour. In this case the plaintiff held
a license obtained from the Marine and Fish-
eries Department of Canada under the above
Fisheries Act, authorizing him to fish in the
public waters of St. Margaret’s Bay in Nova
Scotia ; and an Order in Council made under
the Act provided, under penalties, that no
seine should be drawn or any net set within
a certain distance of any weir, trap, or net
of any kind under license. Graham, E.J.,
with whom the rest of the Court concurred, says
(pp. 220-221) : ** It can be seen that the license
fixes the locality of the plaintiff’s traps, and
that the effect of the Order in Council excludes
all others for l-8th of a mile round his trap.
That appears to bring the effect of the license
and the Order in Council within the condenma-
tion of the decision referred to. It was con-
tended that public harbours belong to the Do-
minion, and that the place in which the traps
were set formed part of a public harbour. Very
likely this is so, but, if I understand the case
just cited ” (sc. the Fisheries case), ” I think
these fisheries do not necessarily constitute a
part of the harbour. The harbours may afford

– (1904) 37 N. S. 213.

252 Canada’s federal system.

a protection to the nets or traps and boats of the
fishermen. When the nets or traps constitute
an obstruction to the navigation, the Dominion
authorities may, no doubt, by regulations, inter-
fere. But, if the fore-shore on the margin of a
harbour, according to that case, may or may not,
according to circumstances, form part of a har-
bour, I think the fishing is not necessarily part of
the harbour . . For some purposes, as for the
necessities of navigation, or for preserving or
making more productive the fisheries, the Domin-
ion authorities may apparently, by regulation,
exclude the fishermen from setting traps, nets,
etc., in some places altogether, or permit them
to be set only at long intervals apart and at some
seasons, but, apparently, they cannot by the
effect of any such legislation give any fisherman
an exclusive right to fish in any particular place.
It is not necessary in this view to deal with the
question of the right of the Crown, either for
the Dominion or the province, to give anyone
an exclusive right of fishing in a navigable arm
of the sea.”

In Miller v. WebherJ”^ Graham, E.J., held,
that under the decision of the Privy Council in
the Fisheries case,” the provisions of the Do-
minion Fisheries Act, R. S. C. 1906, ch. 45, sec.
47, sub-sec. 7, that : * No one shall use a bag-net,
trap-net, or fish pound, except under a special li-
cense, granted for capturing deep-sea fish other
than salmon, * is intra vires even as applied to a
net set in waters (not being a public harbour),

” (1910) 8 E. L. R. 460.
” [1898] A. C. 712, 713.

SEA COAST AND INLAND FISHERIES. 263

within three miles of the shore; and referring
to Young v. Harnish, just cited, he says (p. 464),
that a distinction may be drawn, and, perhaps,
should have been drawn in that case between
leases and licenses.

As regards inland waters the Privy Council
decision settled the matter, and since 1898 the
provinces of Quebec and Ontario issue all fish-
ery licenses in non-tidal waters, the making and
enforcing of the regulations governing the times
and methods of fishing remaining with the Do-
minion.

With respect to tidal waters and non-tidal ‘\
waters within the Railway Belt in British i
Columbia, the following questions were brought |
before the Supreme Court on a recent Reference ^^
under section 60 of the Supreme Court Act (R.
S. C. 1906, c. 139) in November, 1912, and all
answered in the negative by their judgment of
February 18th, 1913.^^

1. Is it competent to the legislature of British
Columbia to authorise the Government of the
province to grant by way of lease, license, or
otherwise, the exclusive right to fish in any or
what part or parts of the waters within the Rail-
way Belt, (a) as to such waters as are tidal, and
(b) as to such waters as though not tidal, are in
fact navigable ?

2. Is it competent to the legislature of British
Columbia to authorise the Government of the
province to grant by way of lease, license, or
otherwise, the exclusive right, or any right, to
fish below low water mark in, or in any or what

°*47 S. C. R. 493. Leave has been granted to appeal to the
Privy Council.

254 Canada’s federal system.

part or parts of, the open sea witMn a marine
league of the coast of the province ?

3. Is there any and what difference between
the open sea within a marine league of the coast
of British Columbia, and the gulfs, bays, chan-
nels, arms of the sea, and estuaries of the rivers
within the province, or lying between the pro-
vince and the United States of America, so far
as concerns the authority of the legislature of
British Columbia to authorise the government
of the province to grant by way of lease, license,
or otherwise, the exclusive right, or any right,
to fish below low water mark in the said waters
or any of them ?

All these questions, as already mentioned,
have been answered by the Supreme Court in
the negative. Idington, J., says: ” There can be
‘no doubt that the right to fish in the sea and all
its arms on the coast of British Columbia has
been a public right enjoyable by everybody, and
must so remain until the Dominion parliament
signifies otherwise, as for example, by declar-
ing that it will be for the good of the whole of
Canada that a several or exclusive right of fish-
ing may be granted. There may be a question
whether or not the province could grant an ex-
clusive license anticipating and conditional upon
and subject to the legislative regulations to be
provided by Parliament. . . I cannot over-
look the comprehensive language of the exclu-
sive power given Parliament over * sea, coast,
and inland fisheries,’ and coupled therewith the
predominant feature of our whole scheme of
Confederation, which is that to those who- are to

1

BRITISH COLUMBIA FISHERIES.

255

be directly affected by the exercise of any power
is entrusted the power of due and proper rectifi-
cation of any misuse of such power. This power
of granting exclusive licenses to fish in the
waters of British Columbia, so touches the wel-
fare of the whole people of Canada, not only in
relation to their food, but also in the widest areas
of national life, in so many and diverse ways
that a book might be written thereon. I think
the people who may be affected by its operation
must be declared virtual masters, through their
Parliament, of the situation. . Even if the
right to fish in non-tidal but navigable waters
may differ from those other rights, all seem so
classed together by the British North America
Act that I think the right of the province in
either case must be treated for all practical pur-
poses as resting on the one common basis of the
regulations of Parliament:” (pp. 495-8).

Duff, J., observes (p. 502) : ” It is not neces-
sary to consider the very important question
whether the bed of the open sea within the three-
mile limit is, or is not, vested in the Crown in
right of the province.” As to this, see infra pp.
259-262. At p. 503, 5, he says : ‘* It is clear I think
that the beds of non-tidal waters, whether navi-
gable or not, do not, according to the law of
British Columbia belong to the Crown jure pre-
rogativce. . 1 do not think there is the slightest
ground for holding that in this matter, the rule
of the common law did not come into force sim-
pliciter.” He also says, (p. 509) : ” Whether on
its introduction into British Columbia the law
of England underwent such a modification as to

256 Canada’s federal system.

require us to hold that in every body of water
in that province which is capable of navigation
(the bed of which is vested in the Crown), a
right or privilege of fishing belongs to the pub-
lic, and if there be such a right or privilege what
is the nature of it, are questions involving points
of far reaching importance which ought only to
be passed upon after hearing argument in the
interest of those private owners who might be
affected by the decision, and who were not repre-
sented on the hearing of this Bef erence. . The
beneficial ownership of the beds of navigable
non-tidal waters within the Railway Belt that
were vested in the Crown at the date of the trans-
fer passed to the Dominion ; and with the owner-
ship of the beds the fisheries passed also as
ordinary profits of the soil unless at the date of
the Union the title of the Crown was burdened
with a public right of fishing that was only cap-
able of being restricted or limited through the
exercise of legislative authority. If such a pub-
lic right did exist in respect of the fishings in the
waters in question then by the operation of the
British North America Act as construed in the
Fisheries case, [1898] A. C. 700, the Dominion
parliament became solely invested with legisla-
tive authority to limit or restrict that right.”

Anglin, J., reiterates the view expressed by
him in Kenora Case,”^^ as to the inapplicability to
the great stretches of fresh water in this country
which are navigable in fact of the rule of the
English common law, which treats as navigable

‘•’• Keetoatin Power Co. v. Tovm of Kenora (1906), 13 O. L. R.
237. In app., 16 O. L. R. 184.

BRITISH COLUMBIA FISHEEIES. 257

only STicli waters as are tidal, but considers it
unnecessary here to determine that important
point, since in either view, the British Columbia
legislature cannot authorise grants of exclusive
rights to fish in these waters in the Railway
Belt: and adds (p. 512) : ” I cannot accept the
contention pressed on behalf of British Columbia
that the interest of a province in the ordinary
fisheries in provincial waters which should be
deemed navigable in law is a jus regale of the
same nature as its rights to the precious metals
which were held not to be partes soli, and were
on that account excluded from the operation of
the grant of the Railway Belt lands : Attorney-
General of British Columbia v. Attorney-Gen-
eral of Canada (1889), 14 App. Cas. 295. A pub-
lic fishery will not pass by a Crown grant of the
solum of the water in which it exists, or indeed
of the fishery itself in express terms, not because
such a fishery is not pars soli, but because the
solum itself, vested by law in the Crown, is sub-
ject to a trust to preserve the public rights of
navigation and of fishing, which the competent
legislature alone can extinguish. But the pre-
cious metals do pass under a Crown grant
which contains language apt to convey them.
Legislative action is not requisite. On the other
hand any fishery vested in the Crown in waters
of which it owns the solum, other than a public
common of piscary existing by law, with which
a province is not competent to interfere, is held
not by prerogative but by proprietary title.”

In a communication of May 14th, 1901, to the
Dominion Government,^^” the Premier of Ontario

‘^^ Provincial Legislation, 1899-1900, at p. 47.
c.F.s. — 17

268 Canada’s federal system.

states that: ” The limited authority conceded to
the provincial legislature by the British North
America Act, as interpreted by the Privy Coim-
cil, is entirely inadequate for the proper pro-
tection of the fisheries of the province. So long
as the Dominion Government is prepared to pass
proper regulations for the protection of fish in
the waters of the province, no harm may arise,
but the undersigned is of the opinion that, as the
proprietary right in the fish by the judgment
of the Privy Council is vested in the province,
the province should have all the powers neces-
sary to protect its own property, even to the
extent of defining the close season for fishing in
the waters of the province, and limiting the
quantity of fish to be taken, and the mode of tak-
ing the same, as the legislature of the province
may deem expedient. In the opinion of the
undersigned it would, therefore, be desirable
that steps be taken, by conference with the Do-
minion Government, to secure the amendment
of the British North America Act extending the
powers of the province in the direction herein
indicated.”

When in 1899 the Nova Scotia legislature
enacted a provision enabling the Governor in
Council to authorize the leasing of fish traps and
weirs on any part of the coast of Nova Scotia,
the Dominion Government objected that this
was a matter of the regulation of the fisheries,
stating, in a communication of the Deputy-Min-
ister of Justice to the provincial Attorney-Gen-
eral, of April 18th, 1900: ** What the section
seems really to intend is to enable the Lieuten-

SEA COAST AND INLAND FISHEEIES. 259

ant-Governor in Council to authorize the use of
traps or weirs on any place on the coast to be
specified. This he certainly could not do except
where consistent with Dominion legislation. As
to leasing the bed of the sea within the three-
mile limit, it is, at least, doubtful whether a pro-
vincial legislature has any authority.” The
provincial Government, however, avoided dis-
allowance by imdertaking to repeal the objec-
tionable section.” The provincial Attorney-
General, in a communication of April 25th,
1910, to the Minister of Justice, in connection
with this matter, says: ” The real fact of the
case is that the water, the navigation, and the
control and regulation of fisheries of the fore-
shore are in the Dominion, but the terra jirma,
the land under this water, is undoubtedly an ex-
tension of the property in the land, which the
British North America Act vests in the pro-
vince.”

In The King v. The Ship North^^^ it has been
held, affirming Martin, Local Judge of the Brit-
ish Columbia Admiralty District, that the deci-
sion of the Privy Council in the Fisheries case
does not mean that the Dominion parliament
has not power to absolutely prohibit foreign na-
tions from fishing within the three-mile limit
of the coast of Canada, and that the federal Gov-
ernment has no police jurisdiction.’*^* Martin

« Provincial Legislation, 1899-1900, at p. 58.

« (1906) 37 S. C. R. 385, 11 Ex. C. R. 141, 148-150, 11 B. C. 473.

•*’ In Newfoundland Decisions (J. W. Withers, Queen’s Prin-
ter, St. John’s, N. F., 1897), Rhodes t. Fairweather (1888), at p.
221, and Queen v. Delepine (1889), at p. 378, the question of the
territorial limits of the jurisdiction of the local legislature is

260 Canada’s federal system.

L.J. A., cites from that portion of their lord-
ships’ judgment in which they sp^ak of the power
of the Dominion parliament to impose a tax by
way of license as a condition of the right to

discussed and found to extend to, but not beyond, three miles
outside of a line drawn from headland to headland of the bays
of Newfoundland. The former of these cases was an action for
penalties against the master of a British ship, registered in
Scotland, for killing and taking on board seals previous to the
date fixed by the legislature of Newfoundland for sealing, the
seals in question having been all taken outside the above limits.
The owners and masters of the ship resided in Scotland, and
also several of the crew, who were engaged there. She cleared
from St. John’s for the seal fishery, and returned there after the
royage for the purpose of manufacture and shipment Carter,
C.J., after referring to Imperial Acts in reference to offences com-
mitted on board British ships, says, at p. 325 : *’ Has the legis-
lature of this colony authority to pass an Act conferring jurisdic-
tion of the like character over persons on board a ship on the
high seas beyond colonial limits, whether registered in this
colony or other British port? I apprehend it has not. Then
oy what authority can it prohibit or confer the right of killing
seals beyond its territorial limits? The Terra Nova” (the de-
fendant’s ship) “is a ship of the British nation, and as such
the Imperial parliament would unquestionably be competent to
give effect to an Act prohibiting with penalties the killing of
seals or such like, at a specified time, anywhere over the sea,
by persons on board said ship, but that is from supreme, and
unlike colonial limited authority.” Little, J., at p. 343, after
referring to the class of Imperial Acts above mentioned, says:
” This sovereign authority rendering the subject amenable
under such circumstances to Imperial laws is inherent in the
State or nation; and, as a colony is only a pa’-t of the State
♦• (1899) 31 O. R. at p. 400.

i

INDIANS AND LANDS RESERVED FOR INDIANS. 301

of title is in accord with the opinion of Mr.
Justice Rose, as expressed in the unreported
case of Caldwell v. Fraser, and is not at variance
with the judgment of the Court of Queen’s
Bench in Attorney -General of Canada v. Attor-
ney-General of Quehec.”^^*”

The further point presents itself 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 sur-
render. But however this may be, the Dominion
Government would doubtless, in all cases, pro-
tect the rights of the Indians under such treaties
by exercise of its veto power, as it did in the case
of an Ordinance of the North- West Territories
of 1889, which assumed to restrict rights of
hunting contrary to such treaties;^”” and so, on
similar grounds, a British Columbia Act of
1874, relating to Crown lands in the province,
but making no reservations for the Indian
tribes, was disallowed.”^

There is, of course, nothing in this Dominion
power over Indians to debar provincial legis-
latures enacting that Indians shall not exercise
the provincial franchise.”^

** (1897) R. J. Q. 6 Q. B. 12. altos Mowat v. Casgrain. under
which name it is referred to supra, p. 297.

“* Hodgins’ Provincial Legislation, 1867-1895, at pp. 1254-6.

‘=* Ibid., at pp. 1024-8, g.v. on the general subject of the Indian
title. And as to what may be called the Indian Treaty Indem-
nity case, DoTninion o/ Canada v. Province of Ontario [1910] A.
C. 637, see infra, p. 714.

^^- Cunningham v. Tomey Homma, [1903] A. C. 151.

302 Canada’s federal system.

In Rex V. Hill,^””^ a question of a different
character arose. It was there held that an unen-
franchised treaty Indian, residing on a Reserve,
was rightly convicted for having practiced medi-
cine for hire in Ontario, but not upon the Re-
serve, without being registered pursuant to the
provisions of the Ontario Medical Act, on the
principle that, though the Dominion parliament
may remove an Indian from the scope of the pro-
vincial laws to a greater or less extent, yet to the
extent to which it had not done so, as in this
case, an Indian must in his dealings outside the
Reserve govern himself by the general law which
applies there. Maclaren, J. A., says (p. 411) : —
*’ This claim is made on the broad ground that
because section 91 of the British North America
Act gives to the Dominion parliament exclusive
legislative authority over ‘ Indians and lands
reserved for Indians,’ no provincial legislation
can affect Indians or Indian lands. . . Let
us see where such an interpretation of the
British North America Act would land us. By
sub-section 7 of section 91 the Dominion is given
exclusive authority to legislate respecting the
* Militia.’ It would be somewhat startling to
hear it gravely argued that no legislation of the
province can apply to or affect militiamen. By
sub-section 25 the subject of * Aliens ‘ is assigned
exclusively to the Dominion. According to the
argument on this appeal, no provincial legisla-
tion applies to an alien. A militiaman, or an
alien, or a member of any of the other classes
mentioned in section 91, may violate any pro\dn-

«* (1907). 15 O. L. R. 406.

INDIANS AND LANDS RESERVED FOR INDIANS. 303

cial law without incurring any penalty, and can-
not avail himself of any benefit or advantage
conferred by provincial legislation.” It may,
also, be noted that, at p. 410, Osier, J.A., uses
very broad language as to the possible power of
the Dominion parliament to remove Indians
from the scope of provincial laws. He says: —
*’ Parliament may, I suppose, remove him (sc.
an Indian) from their scope.” But Meredith,
J.A., suggests a qualification (p. 414) : ” That
enactment ” (sc. the Ontario Medical Act) *’ is
not one respecting Indians, or lands reserved for
Indians . . . and if it be considered inap-
plicable to Indian bands or Indian lands, it is
difficult to perceive how it even overlaps the ex-
clusive field of federal legislative authority. The
right to legislate exclusively as to Indians and
Indian lands cannot give the power to confer on
Indians all or any provincial rights which are
within the exclusive authority of the province.
It is not needful to say what would have been the
result if the defendant had confined his practice
to the Indians, nor is such a question open to
consideration in such a case as this.”

25. Naturalization and aliens.”‘””

In Cunningham v. Tomey Hom^na/’^’ the
Privy Council say that this sub-section of sec-

“* It would seem that the status of Individuals resident in
the colonies must be determined by the law of England, but the
rights and liabilities incidental to such status must be deter-
mined by the laws of the colony: In re Adam (1837) 1 Mo. P.
C. 460; Donegani v. Donegani (1835) 3 Kn. at p. 85; Regina
V. Brierly (1887), 14 O. R. at p. 533. The status in question
in the first two cases was that of an alien. As to the power of
the Dominion parliament to legislate for the expulsion of aliens,

•’^’ [1903] A. C. 151.

304 Canada’s federal system.

tion 91 of the British North America Act *^ does
not purport to deal with the consequences of
either alienage or naturalization. It undoubt-
edly reserves these subjects for the exclusive
jurisdiction of the Dominion— that is to say, it
is for the Dominion to determine what shall con-
stitute either the one or the other ; but the ques-
tion 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 natural-
ization; but the privileges attached to it, where
these depend upon residence, are quite inde-
pendent of nationality.” Their lordships, there-
fore, refused to hold that a British Colum-
bia Act which enacted that no Japanese, whether
naturalized or not, should have his name placed
on the register of voters, or be entitled to vote
at the elections for the provincial legislature,
was ultra vires. They, apparently, placed tlve
Act in question under No. 1 of section 92, whereby
the Constitution of the province, and any
amendment of it, are placed under the exclusive
control of the provincial legislature; and they
add that it might with equal force, have been
argued that, because No. 24 of section 91 gives

see Attorney-General of Canada v. Cain, [1906] A. C. 542; and an
Article by W. Martin Griffin (1899), 33 Amer. Law Rev. 90; also
an article on the Exclusion and Deportation of Aliens (1905) 25
C. L. T. 487; also the Australian cases Robtelmea v. Brenan,
[1906] 4 C. L. R. 395; McKelvey v. Meagher, [1906] ibid. p. 265;
and an Article on the Legal Interpretation of the Constitution of
the Commonwealth, by A. B. Keith, in Jl. of Compar. Legisl.
N. S. Vol. 11, pp. 235-8. As to the power of a provincial legisla-
ture to provide for the deportation of alien insane paupers, see
Hodgins’ Prov. Legislation, 1867-95, p. 1325.

NATURALISATION AND ALIENS. 306 i f

the Dominion parliament exclusive legislative
authority over Indians, and lands reserved for
the Indians, therefore, a provincial legislature
had no right to provide that Indians should not
exercise the provincial franchise.

In the Court below,^” the British Columbia :,|

judges had considered themselves bound to de- •

cide against the validity of the Act in question ..jj

in consequence of the previous judgment of the – !’|

Judicial Committee in Union Colliery Co. of ijf

British Columbia v. Bryden^^^ But, although ‘ •

their lordships do, in the latter case, observe
that the subject of naturalization seems prima
facie to include the power of enacting what shall ‘

be the consequences of naturalization, they ex-
pressly guard themselves against being supposed
to be defining the precise meaning of * natural-
ization ‘ in the clause under consideration. At
p. 586 of their judgment they say: ” Every alien
when naturalized in Canada becomes, ipso facto,
a Canadian subject of the Queen; and his child-
‘ren are not aliens requiring to be naturalized,
but are natural born Canadians. It can hardly
have been intended to give the Dominion par-
liament the exclusive right to legislate for the
latter class of persons resident in Canada; but
section 91, sub-section 25, might properly be
construed as conferring that power in the case
of naturalized aliens after naturalization. The
subject ‘ naturalization ‘ seems, prima facie, to
include the power of enacting what shall be the

“^7 B. C. 368, 8 B. C. 76.
‘» [1899] A. C. 580.

C.F.8.— 20

306 Canada’s federal system.

consequences of naturalization, or, in other
words, what shall be the rights and privileges
pertaining to residents in Canada after they
have been naturalized. It does not appear to
their lordships to be necessary, in the present
case, to consider the precise meaning which the
term ‘ naturalization ‘ was intended to bear, as
it occurs in section 91, sub-section 25.”

In the Union Colliery Company case, the
immediate question before the Board was
whether the provisions of section 4 of the Brit-
ish Colimabia Coal Mines Regulation Act, as %
amended in 1890, which prohibited Chinamen
of full age from employment in imderground
coal workings was, or was not, ultra vires of the
provincial legislature. They decide them to be
ultra vires^^^^ upon the following grounds: —
” They {sc. the provisions in question) may be
regarded as merely establishing a regulation ap-
plicable to the working of underground coal
mines; and, if that were an exhaustive descrip-
tion of the substance of the enactments it would
be difficult to dispute that they were within the
competency of the provincial legislatures, by
virtue either of section 92, subs. 10, or sec-
tion 92, subs. 13. But the leading feature
of the enactments consists in this, that they
have, and can have, no application except to
Chinamen who are aliens or naturalized sub-
jects; and that they establish no rule or regula-
tion except that these aliens or naturalized sub-

“• The Supreme Court of British Columbia had previously de-
cided the point the other way: In re Coal Mines Regulation
Amendment Act, 1890 (1896), o B. C. 306.

NATURALISATION AND ALIENS, 307

jects shall not work, or be allowed to work, in
underground coal mines within the province of
British Columbia. Their lordships see no rea-
son to doubt that, by virtue of section 91, sub-
section 25, the legislature of the Dominion is
invested with exclusive authority in all matters
which directly concern the rights, privileges,
and disabilities of the class of Chinamen who
are resident in the provinces of Canada. They
are, also, of opinion that the whole pith and
substance of the enactments of section 4 of the
Coal Mines Regulation Act, in so far as objected
to by the appellant company, consist in estab-
lishing a statutory prohibition which affects
aliens or naturalized subjects, and, therefore,
trench upon the exclusive authority of the par-
liament of Canada.”

And in Cunningham v. Tomey Homma,^^^ their
lordships themselves refer to this previous deci-
sion of the Board in Union Colliery Co. v. Bry-
den, and distinguish it thus: ” This Board deal-
ing with the particular facts of that case, came
to the conclusion that the regulations there im-
peached were not really aimed at the regulation
of coal mines at all, but were, in truth, devised to
deprive the Chinese, naturalized or not, of the
ordinary rights of the inhabitants of British
Columbia, and, in effect, to prohibit their con-
tinued residence in that province, since it pro-
hibited their earning their living in that pro-
vince. It is obvious that such a decision can
have no relation to the question whether any
naturalized person has an inherent right to the

ri903] A. C. at p. 157.

308 Canada’s federal system.

suffrage within the province in which he
resides.”

The net result, therefore, of these two Privy
Council decisions seems to be, that provincial
legislatures cannot legislate against aliens,
whether before or after naturalization, merely
as such aliens, so as to deprive them of the
ordinary rights of the inhabitants of the pro-
vince; although they might so legislate against
them as possessing this or that personal char-
acteristic or habit, which disqualifies them from
being permitted to engage in certain occupa-
tions, 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 pri^dleges which have
to be^specially conferred’ are in question, such
as the right to exercise the franchise. It is
within the power of provincial legislatures to
refuse to confer such rights upon aliens or any
other class of people in the province ; and espe-
cially is this clear in the case of the legislative
franchise, for the qualifications for the exercise
of that are an integral part of the Constitution
of the province, which by No. 1 of section 92 is
expressly assigned exclusively to the provincial
legislature.

In other words, their lordships appear to
have accepted the view submitted by Mr. Chris-
topher Robinson, K.C., of counsel for the appel-
lant, on the argiunent in the Tomey Homma
case,”*: ** There is just this essential and lead-

“• Transcript from shorthand notes of Barnett ft Barnett, pp.
22-23.

NATUBALISATION AND ALIENS. 309

ing distinction between Bryden’s case and this,
that every person, unless prohibited, has the
right to work, that is to say, he requires to ask
leave to do so from no one, but no person can
vote unless the right is conferred upon him by
the proper authority.” And Lord Watson, in
the course of the same argument, is reported to
have put the point of distinction thus,^^*: “I
can understand it being said that the provincial
legislature had no jurisdiction to enact a special
enactment prohibiting an alien from doing
something which otherwise he would be entitled
to do; but it is a different thing when you say
that the provincial legislature is bound to enable
the alien to do something which prima facie he
has not the right to do. ‘ ‘ And, in further illus-
tration and support of the view here taken, the
words of Mr. Edward Blake, as coimsel for the
respondent, on the same argument, are worth
repeating,^'”: — ” As I submit their lordships did
not decide (in the Union Colliery Co. case),
that it would not be quite possible for a provin-
cial legislature incidentally to do that which
would affect the rights of alien Chinamen, be-

‘”lUd., p. 18

“•i&i(7., p. 42. And see the way these two Privy Council de- i

cisions are discussed in the subsequent British Columbia case o? f’

In re Coal Mines Regulation Act (1904), 10 B. C. 408. It must be
remembered that the children of naturalized aliens are not aliens
at all, but natural-born British subjects: see per Martin, J., S. C.

at pp. 426-7; Cunningham v. Tomey Homma, [1903] A. C. at p. 156. f

But with regard to what Martin, J., says, in the place referred to, r

it is submitted that there is nothing in the Privy Council deci- I

sions justifying the conclusion that ultra vires legislation in rela- |

tion to aliens before or after naturalization, can be rendered intra
vires by extending the legislation to their children and grand-
children. And see Rex v. Priest (1904), 10 B. C. at p. 436.

‘T

310

CANADA S FEDERAL SYSTEM.

cause it was pointed out that, if they could come
to the conclusion that the primary object of
legislation, in that case, had been the regulation
of coal mines, that, then, even if, as a matter of
regulation, a disability had been imposed upon
an alien it might have been upheld, because the
general subject of the regulation of coal mines
was within those subjects given to the provincial
legislatures.”

In 1899 the British Columbia legislature
passed the Placer Mining Amendment Act, the
effect of which was that no person other than a
British subject might thereafter be recognized
as having any right or interest in any of the
mining properties to which the British Colum-
bia Placer Mining Act applied. In a despatch
of the Secretary of State for the Colonies of
September 18th, 1899, as, also, in a report of the
Minister of Justice of January 12th, 1900, it
was objected that under the law as laid down by
the Privy Council in Union Colliery Co. v. Bry-
den,”^”^ this legislation was ultra vires ; and in a
further report of April 12th, 1900, the Minister
of Justice recommended that it should be dis-
allowed, and it was disallowed accordingly.'”
In his latter report, the Minister of Justice ex-
presses the view that it followed from the deci-
sion in the Union Colliery Company case, that
provincial legislatures ” cannot make excep-
tional provisions affecting aliens’ rights and pri-
vileges.””^’ The provincial Attorney-General

‘« [1899] A. C. 580.

‘”Provincial Legislation, 1899-1900, p. 120.
“”• In 1885 Crease, J., held ultra vires as, amongst other
objections, interference with the rights of aliens, as imposing

NATURALISATION AND ALIENS. 311

had in vain contended that ** there is a wide dis-
tinction in law between an attempt to legislate
with regard to the nature of the employment in
which an alien may engage in the province, and
a law, such as that in question, dealing entirely
with the public property of the province. ‘ ‘

It was, apparently, with reference to the
Privy Council decision in Cunningham v. Tomey
Homma,^’^^ that the Minister of Justice reported
in regard to a British Columbia Act prohibit-
ing aliens from voting at municipal elections,
that the question of the authority of the legis-
lature to pass such an Act had been determined
favourably to the province.”* The power would
seem to be found in No. 8 of section 92 (‘ muni-
cipal institutions in the province ‘), just as in
the Tomey Homma case, it had been found in
No. 1 of section 92 (the amendment of the Con-
stitution of the province).

unequal taxation (as to which, however, see supra, p. 239), and
as contrary to Imperial Treaty (as to which see supra pp. 67-8),
the Chinese Regulation Act, 1884, which imposed an annual tax
of $10 on every Chinese in British Columbia above 14 years of
age, who on payment was to receive a license, stringent penalties
being imposed on any Chinaman found without such a license,
and, also, providing that the sum payable by Chinamen for a
free miner’s certificate should be three times the ordinary
amount; and the Privy Council, on petition, granted leave to
appeal on the ground that the question at issue was of great
public importance involving the power of the provincial legisla-
ture to discriminate in the imposition of direct taxation for
the purposes of revenue and police: Bull v. Wing Chong (1886),
1 B. C. (pt. 2), 150, and noted Wheeler’s Confederation Law, at
p. 122. The appeal was not, however, pioceeded with: ibid.

‘*» [1903] A. C. 151.

*” Provincial Legislation, 1901-1903, p. 84. C/, Report of
Minister of Justice of January 5th, 1901: Provincial Legislation,
1899-1900, at pp. 134-8; and infra, p. 430.

312 Canada’s federal system.

When in 1904-5 the British Columbia legisla-
ture enacted that no Chinaman should occupy
any position of trust or responsibility in or
about a mine whereby through his ignorance,
carelessness or negligence, he might endanger
the life or limb of any person therein employed,
the Minister of Justice objected that this was
ultra vires on the principle of the Privy Coun-
cil decision in Union Colliery Co. v. Bryden^’^’^^
and recommended disallowance; and the legis-
lation was disallowed accordingly.””

Shortly before, a British Columbia Act
respecting liquor licenses, which provided that
no license under it should be issued or trans-
ferred to any person of the Indian, Chinese, or
Japanese race, had been disallowed.'”

By a report of December 27th, 1901, the Min-
ister of Justice compelled amendment under
threat of disallowance of a number of British
Columbia Acts incorporating railway com-
panies which provided, in effect, that no aliens
should be employed on them during construc-
tion, unless it were demonstrated to the satis-
faction of the Lieutenant-Governor in Council
that the work could not be proceeded with with-
out the employment of such aliens.”*

>” [1899] A. C. 580.

>•• Provincial Legislation, 1904-1906, pp. 130-131, 138. C/. lUd.,
1899-1900, pp. 134-8. The appeal to the Privy Council as to the
validity of this provision, referred to as pending in the memor-
andum of the Attorney-General of British Columbia printed In
Provincial Legislation, 1904-6, at p. 133, was not proceeded with,
the Act having been thus disallowed. The British Columbia
Supreme Court had previously held it intra vires on the authority
of the Bryden Case, In /n re Coal Mines Regulation Act (1904),
10 B. C. 408.

»” Provincial Legislation, 1899-1900, pp. 104, 123.

“• nid., 1901-1903, pp. 64, 74-75.

NATURALISATION AND ALIENS. 313

Provincial legislation incidentally relating to
aliens. — 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 eli-
gible as directors. Nevertheless, as recently as
October 29th, 1904, the Minister of Justice has
objected to such legislation, sa5rLng that it is,
in his opinion, ” ultra vires, as legislation with
regard to rights and capacities of aliens is
clearly within the exclusive authority of Parlia-
ment.” He added, however, that he did not on
that account recommend disallowance as he was
not aware that the public interest so required,
and judicial effect might, of course, be given to
the objection if it should become necessary to
raise it.^”

As to ‘ naturalization ‘ in the clause under
consideration. Strong, C.J., would seem to have
considered that the Dominion parliament could
not, in spite of it, turn an alien into a natural-
ized British subject. He says,””: ” It is out of
the question to say that the legislature of a de-
pendency created by an Imperial statute has
sovereign powers of legislation in all personal
and extra-territorial matters relating to British
subjects resident within its limits irrespective
of express grant. In the case of the national

>” Provincial Legislation, 1904-1906, p. 3. See, further, as to
such legislation, Legislative Power in Canada, pp. 459-460. See,
also, per Strong, C.J., In re Criminal Code sections relating to
Bigamy (1897), 27 S. C. R. at pp. 474-5; and infra, p. 314.

“*J» re Criminal Code Sections relating to Bigamy (1897), 27
S. C. R. 461, at pp. 474-5.

314 Canada’s federal system.

character of residents of alien origin it has no
such power. Personal allegiance is a matter
which has always been and always must be, in
the absence of the statutory delegation of its
powers, dealt with by the Imperial parliament.
The acquisition of British nationality is a mat-
ter upon which the Imperial parliament has the
exclusive right of legislation, although the effect
of alienage upon the local tenure of land may be
dealt with by a colonial legislature. ‘ ‘ “”*

26. Marriage and divorce.

The Privy Council have now, on the recent
reference to them of certain questions concern-
ing marriage, authoritatively determined the
relation of this Dominion power to the provin-
cial power conferred by No. 12 of section 92,
over * solemnization of marriage in the pro-
vince.’ They had previously observed in Citi-
zens Insurance Co. v. Parsons”^ that solemn-
ization of marriage would come within the gen-
eral description of ‘ marriage and divorce, ‘ yet
that * solemnization of marriage in the pro-
vince ‘ is enumerated among the classes of sub-
jects in section 92, and that no one can doubt,
notwithstanding the general words of section 91,
that this subject is still within the exclusive

“•• See on the general subject Article sub voc., ‘ British Sub-
ject ‘ in Encyclopedia of Laws of England, 2nd ed., Vol. 2. p. 413
seg. Also Article by John W. Salmond on Citizenship and Alle-
giance (1901) 17 L. Q. R. 270, 18 L. Q. R. 49; and one on Natural-
isation of Aliens (1905), 25 C. L. T. 181, by N. W. Hoyles; and
Keith’s Responsible Government in the Dominions, Vol. 3, pp.
1322-4.

“• (1881) 7 App. Cas. at p. 108. See Legislative Power in
Canada, p. 488, n. 3.

MARRIAGE AND DIVORCE. 315

authority of the legislature of the provinces;
and they cite this as illustrating the fact that,
with regard to certain classes of subjects gen-
erally described in section 91, legislative power
may reside as to some matters falling within the
general description of these subjects in the legis-
latures of the provinces. In such cases, they
add: “It is the duty of the Courts, however
difficult it may be, to ascertain in what degree
and to what extent authority to deal with mat-
ters falling within these classes of subjects exists
in each legislature, and to define in the particu-
lar case before them, the limits of their respec-
tive powers.” On the recent reference,^” their
lordships have done this in respect to the mat-
ter in hand. As they state in thejr judgment
the contention on the part of the prov^cc^ ^as
that the provincial power extends only to the
directory regulation of the formalities by which
the contract of marriage is to be authenticated,
and does not extend to any question of validity.
Their lordships refused to accede to this view.
They say: “Their lordships have arrived at
the conclusion that the jurisdiction of the Do-
minion parliament does not, on the true con-
struction of sections 91 and 92, cover the whole
field of validity. They consider that the provision
in section 92 conferring on the provincial legis-
lature the exclusive power to make laws relating
to the solemnization of marriage in the pro-

^” [1912] A. C. 880. Reported below, 46 S. C. R. 132. So far
as the judgments of the Supreme Court discuss the law of the
province of Quebec as to marriage they are outside the purview of
this book, as that law was pre-confederation law, and involved no
question under the British North America Act.

316 Canada’s federal system.

vince, operates by way of exception to the
powers conferred as regards marriage by sec-
tion 91, and enables the provincial legislature to
enact conditions as to solemnization which may
affect the validity of the contract. There have,
doubtless, been periods, as there have been and
are countries, where the validity of the marriage
depends on the bare contract of the parties with-
out reference to any solemnity. But there are,
at least, as many instances when the contrary
doctrine has prevailed. The common law of
England, and the law of Quebec, before Con-
federation, are conspicuous examples, which
would naturally have been in the minds of those
who inserted the words about solemnization into
the statute. Prima facie these words appear to
their lordships to import that the whole of what
solemnization ordinarily meant in the systems /
of law of the provinces of Canada at the time of
Confederation is intended to come within them,
including conditions which affect validity.”

It must be noted, however, that the provin-
cial power extends only to * solemnization of
marriage in the province,’ and although this
Privy Council decision establishes the fact that
a provincial legislature may enact that no mar-
riage celebrated, or purporting to be celebrated,
in the province of which it is the legislature,
shall be valid unless solemnized in the manner
and imder the conditions prescribed by it; yet
this is not saying that a provincial legislature
can validly enact that inhabitants of the pro-
vince of which it is the legislature, shall not be
validly married if they cross the border and are

i

MAKRIAGE AND DIVORCE. 317

married according to the solemnities and under
the conditions prescribed by the legislature of
another province for marriages within the
borders of that province. The effect of the
Privy Council decision is merely that the Do-
minion parliament cannot enact, as was pro-
posed by what was known as the * Lancaster Bill, ‘
that any marriage performed by any person
authorized to perform any ceremony of mar-
riage by the laws of the place where it is
performed and duly performed according to
such laws, shall everywhere within Canada
be deemed to be a valid marriage, notwith-
standing any difference in the religions of
the persons so married, and without regard to
the religion of the person performing the cere-
mony; because a province has power to enact
that no marriage solemnized within its borders
should be valid where the parties or 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
Roman Catholic priest.

To take a concrete instance, the Quebec legis-
lature might enact that every marriage cele-
brated in the province of Quebec must be cele-
brated before a Roman Catholic priest, if both
or one of the contracting parties are Roman
Catholic ; and further, that, unless so celebrated
nothing purporting to be such a marriage shall
be a true and valid marriage at all. But the
Quebec legislature would have no power to enact
that two French-Canadian Protestants, or a
Roman Catholic man and a Protestant woman,

318 Canada’s federal system.

or vice versa, domiciled in Quebec, could not
cross the border and be married in Ontario, ac-
cording to Ontario law ; nor that, if they did so,
their marriage should be any the less a good and
valid marriage than it would have been, if they
had stayed in Quebec, and been married before
a Roman Catholic priest/'”*

Reference may here be made, also, to the
opinion of the Law Officers of the Crown in Eng-
land in 1870,”” to the effect that under ‘the
solemnization of marriage in the province,’ the
provincial legislatures have the power of legis-
lating ui3on the subject of the publication of
banns, and issue of marriage licenses; while
‘ marriage and divorce ‘ in section 91, ” signify
all matters relating to the status of marriage,
between what persons and under what circum-
stances it shall be created, and (if at all)
destroyed. ‘

In Watts V. Watts”* the Privy Council have
held that the Supreme Court of British Colum-
bia still has jurisdiction to entertain a petition
for divorce between persons domiciled in that
province, and in respect of matrimonial offences
alleged to have been committed therein, such

“” Cf. Stoifte V. Attorney-General of Ireland, [1912] A. C. 276,

»” Dom. Sess. Pap. 1877, No. 89, p. 340.

“* [1908] A. C. 573, 13 B. C. 281. See to same effect Sheppard
V. Sheppard (1908), 13 B. G. 486. As to the British Columbia
legislature having no jurisdiction to confer on the full Court
of the province any appellate jurisdiction in divorce matters,
see Scott v, Scott (1891), 14 B. C. 316. And as to the provincial
legislature not being able to leg^islate as to the rules of evidence
by which a right of divorce is to be established, see report of
Sir Oliver Mowat, Minister of Justice, of Nov. 10th, 1897, on a
new Brunswick Act: Hodgins* Prov. Legisl., 1896-8, p. 52. As

MARRIAGE AND DIVORCE. 319

jurisdiction having existed since before Confed-
eration, and not been taken away.

In 1907, the Ontario legislature assumed to
enact that the High Court of Justice in Ontario
should have jurisdiction, subject to certain con-
ditions 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.
Doubt, however, has been expressed as to the
constitutionality of this enactment,'”; but it is,
it is submitted, supported by the recent Privy
Council judgment just referred to, that it is
intra vires.

27. The Criminal Law, except the Constitu-
tion of Courts of Criminal Jurisdiction, but in-
cluding the procedure in criminal matters.

Criminal law was placed under Dominion
jurisdiction no doubts because^ as Harrison, C.J.,
says, in Begina v. Lawrence, ‘^”^ : ‘* It is important
that the law of a country as to crime and crim-
inal procedure shall be uniform, so that the
rights of all citizens shall be, as much as pos-
sible, equally respected, and the public wrongs

in British Columbia, so in New Brunswick, and Nova Scotia,
provincial Courts exercise divorce jurisdiction dating from
before Confederation. This is not so in any other province;
nor is there as yet any Dominion Divorce Court. In Prince
Edward Island, however, under local statute 5 Wm. IV., c. 10
(1836), the Lieutenant-Governor and Council have jurisdiction
in all matters touching marriage and divorce. See Article on
Divorce, by N. W. Hoyles, 37 C. L. J. 481 et seq.

“‘May V. May (1910), 22 O. L. R. 559, 565; Malot v. Malot
(1913) 4 W. N. 1405.

“• (1878) 43 U. C. R. at p. 174.

I

320 Canada’s federal system.

of any citizen, as much as possible, equally
punished.” Two things, however, create diffi-
culty in the construction of No. 27, 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 section 92, assigned
to the provincial legislatures; and whereas
^ * procedure in criminal matters’ is assigned to
the Dominion parliament, ‘ the constitution,
maintenance, and organization of provincial
Courts, both of civil and criminal jurisdiction,’
is, by No. 14 of section 92, assigned to the pro-
vincial legislatures.
^ Dealing, then, with the first point, we must,

in accordance with the principle of construction
already noticed,^” read No. 15 of section 92, as j
excepted out of * criminal law ‘ assigned to the
Dominion by No. 27 of section 91.'” And so.
Lord Herschell is reported as remarking of No.
27 of section 91, upon the argument in the
Liquor Prohibition Appeal, 1895,’^®: ** It is all
the criminal law in the widest and fullest sense,
except that part of it which is necessary for the
purpose of enforcing, whether by fine, penalty,
or imprisonment, any of the laws validly made
under the sixteen clauses under which laws are

“‘Supra, pp. 112-118; 316-6.

“•Per Richards, C.J., in Regina v. Boardman (1871), 30 U. C.
R. at p. 556.

“• [1896] A. C. 348: printed report of argument, published by
Wm. Brown & Co., London, 1895, pp. 280-1.

\

CRIMINAL LAW.

321

to be made by the provincial parliament.” And
now, in Attorney-General for Ontario v. Ham-^^
ilton Street R. W. Co.,”’ the Privy Council, in
holding the Ontario Lord’s Day Act ** ti^ated
as a whole ” ultra vires, as legislation upon
criminal law, has said: ” The reservation of the
criminal law for the Dominion of Canada is
given in clear and intelligible words which must
be construed according to their natural and
ordinary signification. Those words seem to
their lordships to require, and, indeed, to admit,
of no plainer exposition than the language itself
affords. Section 91, sub-section 27 of the British
North America Act, 1867, reserves for the exclu-
sive legislative authority of the parliament of
Canada ‘ the criminal law, except the constitu-
tion of Courts of criminal jurisdiction.’ It is,
therefore, the criminal law in its widest sense
that is reserved, and it is impossible, notwith-
standing the very protracted argument to which
their lordships have listened, to doubt that an
infraction of the Act, which in its original form,
without the amendment afterwards introduced,”^
was in operation at the time of Confederation,
is an offence against the criminal law. The fact •
that from the criminal law generally there is •

^«’ [1903] A. C. 524. Reported below in Ontario Court of
Appeal (1902), 1 0. W. R. 312. Nevertheless in Eerley v. London
and Lake Erie Transportation Co. (1912), 26 0. L. R. 588, Boyd,
C, held that provincial legislatures can require provincial com-
panies, a° ^ ” — •’•■’^”on of their incorporation, not to work on
Sunday ;his case, infra, pp. 455-7.

HUB ‘:’i< ' >; ! nent, as to the validity of which their lord-
ships gi . ‘ 1, the Ontario Legislature prohibited tram-
way co;. 1 r – . iect to certain exceptions, working their
trains on Sum;?:

C.F.S

322 Canada’s federal system.

one exception, namely, ‘ the constitution of

Courts of criminal jurisdiction,’ renders it more

clear, if ami;hing were necessary to render it

more clear, that with that exception . . . the

criminal law, in its widest sense, is reserved for

the exclusive authority of the Dominion.””‘

This suffices to dispose of the suggestion made

-( in several provincial cases, that to come within

the meaning of * criminal law ‘ in No. 27 of

section 91, and so to fall under the exclusive jur-

‘ isdiction of the Dominion parliament, an offence

\ must be of that kind which is esteemed to be

• malum in se, quite apart from its also being

; malum prohihitum.^^^ And so in Rex v. Lee,”*’ it

was argued unsuccessfully that it is not in the

power of Parliament to make a crime of an act

which has nothing criminal in its nature; and

“”Followed in In re Legislation respecting abstention from
Labour on Sunday (1905). 35 S. C. R. 581; Rex v. Yaldon (1908),
17 O. A. R. 179. The words ” treated as a whole,” in the Privy
Council judgment, are particularly to be noticed, and are empha-
sized in the recent Quebec case of Couture v. Panos (1908), R. J.
Q. 17 C. B. 560, 564. See infra, p. 601. In Ouimet v. Bazin (1912),
46 S. C. R. at p. 528 (as to which case see infra p. 606). Anglin,
J., says: ” I do not regard the decision of the Judicial Com-
mittee” (sc. In the Hamilton Street R. W. Co. case), “as de-
pending on the fact that the Upper Canada ‘ Lord’s Day Act ‘
(C. S. U. C. 1859, c. 104) had been originally enacted by a legis-
lature clothed with authority to pass criminal laws. Neither can
I accede to an argument which involves the view that legisla-
tion held to be criminal In one province of Canada may be
regarded as something different in another province, or that the
phrase ‘ the criminal law ‘ used in s. 91, s.-s. 27, of the British
North America Act may have a meaning different from that which
would be attached to it in other legislation of the Imperial parlia-
ment. Halsbury, L.C., says that it is ‘ the criminal law in its
widest sense that is reserved ‘ to the Dominion parliament.”

“* E.g. per Allen, C.J., In Queen v. City of Fredericton (1879),
3 P. & B. at pp. 188-9; per Street, J., in Regina v. Wason (1889),

CEIMINAL LAW.

323

that the Dominion Act there in question (which
made it an indictable offence for a dealer to
make use of any written or printed matter or
advertisement, or apply any mark to any article
of certain specified kinds, guaranteeing, or pur-
porting to guarantee that the gold or silver on
or in such article will wear or last a specified
time), assumed to render penal what is nothing
more than the mere warranting, in writing or
by means of a mark, the lasting quality of an
article, a matter of contract or representation
not within the realm of criminal law. The On-
tario Court of Appeal held the legislation intra
vires, Meredith, J.A., observing (pp. 495-6) :
” In regard to such questions as that involved in
this case, the rule may be that which is said to
prevail in the Courts of the United States,
which, as applied to Canada, may be thus stated :
Parliament has power to prohibit and punish
any act as a crime provided it does not violate
any exclusive powers of legislation conferred
upon the legislatures of the provinces; and the
Courts cannot consider the question further than
to see whether there has been a violation of such
exclusive powers. There was no such violation

17 O. R. at p. 64. Archambault, J., however, in Ouimet v. Bazin
(1910), R. J. Q. 20 C. B. at p. 423, delivering tlie judgment of
the majority of the Ck)urt, upholds the distinction as a line of
demarcation between Dominion power under No. 27 of section
91, and provincial power under No. 15 of section 92, saying: —
” A provincial legislature cannot legislate on a malum in se
because it would be a criminal law, but it can inflict a penalty .
or imprisonment for the violation of laws which it passes within I
the limits of its legislative power, and the act thus prohibited j
does not thereby become a criminal act, a malum in se, but simply I
a malum prohibitum.” See further, as to this case, infra, p. 606.
“* (1911) 23 O. L. R. 490.

324 Canada’s federal system.

in the legislation in question. Tie purpose of
the legislation, doubtless, was to prevent fraud
under circumstances in which the public might
easily be deluded by an elusive vendor.”

This Privy Council decision, also, seems to
displace the view expressed by Wetmore, J., in
Queen v. City of Fredericton/”^ that: *’ To ascer-
tain the jurisdiction given to Parliament in ref-
erence 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 per-
tinent to consider the condition of things before
Confederation.’^*’ And the question whether
before Confederation certain offences have been
embraced within the criminal law may, perhaps,
determine the power of pro\i.ncial legislatures
to deal with such offences after Confederation.
And so, upon the argument before the Privy
Council in this very case of Attorney-General
for Ontario v. Hamilton Street R. TT./” Lord
Davey is reported to have said to counsel for the
province : ” Your difficulty is that at the time of
Confederation this (i.e., the infraction of the
provisions of the Lord’s Day Act), was already
a crime. It is not as if they had passed an Act
for the first time for dealing with a matter tliat
was within their jurisdiction, and imposed the
penalty for the purpose of enforcing an Act of
that character. That is not the case. It was
already a crime at the time of Confederation.

‘* (1879) 3 P. & B. at p. 160. Cf. Regina v. Shaw (1891),
7 M. R. at p. 518.

“* See supra pp. 15-16.
^ [1903] A. C. 524.

I

CRIMINAL LAW. 325

And, therefore, this subject, which is already a
crime, was outside their jurisdiction to deal
with. If they were dealing with this for the
first time I could follow the argument. ” ‘** And,
in Beaulieu v. La Cite de Montr eal/^^ the Su-
perior Court at Quebec held that the Quebec
legislature had no power to add to a law of the
old province of TTanada'”‘passe^before Confed-
eration, which forbade vagrancy, disorderly con-
duct, etc., in the streets of Montreal, and made
an infringement punishable by a fine of $20— a
clause that ‘ in the case of habitual and incor-
rigible drunkenness,’ the magistrate might sen-
tence the delinquents to imprisonment, upon the
ground that legislation making drunkenness an
offence punishable in itself, apart from dis-
orderly conduct or a breach of the peace, is
within the exclusive jurisdiction of the
Dominion.

To pass to another subject, if by ** compet-
ency ” be understood ” exclusive compet-
ency,””** there seems no difficulty in acquiescing

“* Marten, Meredith, Henderson and White’s Shorthand Notes,
2nd day, pp. 25-26.

^* (1907), R. J. Q. 32 S. C. 97. In his report of January 28th,
1889, as Minister of Justice, Sir John Thompson, referring to a
Nova Scotia Act, giving a town council power to make by-laws
for ‘ the prevention and punishment of vice, drunkenness, immor-
ality, and indecency in the public streets, highways, and other
public places, and prevention of the profanation of Sunday,’
observes: “These matters are within the control of the parlia-
ment of Canada, and have bean legislated upon by that parlia-
ment, and it can only be competent for a provincial legislature
to enact laws in respect to them for the purpose of aiding the
enforcement of the laws of Canada. In any other view it would
be difficult to assent to the constitutional character of the pro-
visions mentioned:” Hodgins’ Prov. Legisl. 1867-1895, at p. 581.

**’See supra, pp. 107-111; 164-179.

326 Canada’s federal system.

in what Sir James Hannen is reported as having
said upon the argument in Russell v. The
Queen,^^”^ ‘. ** If you have got a thing clearly — I
will not stop to consider what would be clearly —
but if you have got a thing clearly within the
competency of the provincial legislature, it cer-
tainly seems to me that the Dominion parlia-
ment could not indirectly take that away from
the province by making it a crime to do that
which the provincial legislature had authority
to say might be done : ” and this would, of course,
apply, a fortiori, to any power which the Domin-
ion parliament has, apart from No. 27 of section
91, to pass laws creating offences and imposing
punishment in the interests of peace, order, and
good government in the Dominion.”*

We shall deal generally with the provincial
power under No. 15 of section 92, which has been
sometimes spoken of as provincial criminal
law,”‘ when we come to that sub-section in the
next chapter of this book : in the meanwhile the
following points may be mentioned here. It
goes almost without saying that, as Sir J.
Thompson observes, in a report, as Minister of
Justice, of February 12th, 1894, on some Quebec
Acts,”* : ** A provincial legislature has, of course,
no power to authorize any Act which has been
constituted an offence by Parliament.” Thus,

“”Published by Wm. Brown & Co., London, 1895: 2nd day,
at p. 102.

»*See supra, pp. 140-3; Regina v. Harper (1892), R. J. Q. 1
S. C. at pp. 333-5, per Dugas J. ; and Legislative Power in Canada,
at p. 384.

^Eg. per Rose, J., In Regina v. Hart (1891), 20 O. R. at pp.
612-4. And see inira, p. 583n.

»»*Hodgins’ Provincial Legislation, 1867-1895, p. 461.

CRIMINAL LAW. 337

in U Association St. Jean Baptiste v. Brault,^”
the Supreme Court held that provincial legisla-
tures have no jurisdiction to permit the opera-
tion of lotteries forbidden by the criminal sta-
tutes of Canada: a decision which nullifies the
decision in Societe des Ecoles Gratuites v. Cite
de Montreal,^^^ to the contrary, where, however,
the point as to lotteries being criminal does not
seem to have been taken. So, again, in Thom-
son V. Wishart,^^^ the Manitoba Court of Appeal
have held that as maintenance and champerty
had become obsolete as crimes in England in
1870, section 12 of the Criminal Code (R. S. C.
1906, ch. 146), introducing into Manitoba the
criminal law of England as it was on July 15th,
1870, in so far as applicable to Manitoba, did not
introduce the law of maintenance and cham-
perty, considered as crimes, into that province;
and that, this being so, a Manitoba Act allowing
an attorney or solicitor to agree with a client
to be paid for his services by receiving a share
of what might be recovered in an action, is not
ultra vires as trenching upon or intended as a
repeal of any provision of the criminal law.
Perdue, J.A., delivering the judgment of the
Court, says: ** This is purely a matter relating
to property and civil rights, and until the Do-
minion parliament steps in and makes cham-

‘•• (1900) 30 S. C. R. 598.

“* (1901) R. J. Q. 19 S. C. 148. As to the Dominion power
to impose forfeiture as punishment, e.g., the forfeiture of money
found in a common gambling house, see O’Neil v. Tupper (1896),
26 S. C. R. at p. 132, 4 R. J. Ql. (Q. B.) 315.

^ ^ (1910) 19 Man. 340.

328 Canada’s federal system.

perty an actual criminal offence … I should
be prepared to hold that the provincial enact-
ment was within the powers of the legislature.”
So neither can provincial legislatures alter
or amend the criminal law, using that term of
course in the sense in which it is used in No. 27
of section 91. Thus in The Queen v. Halifax
Electric Tramway Co.,^^^ sl direct amendment by
the provincial legislature of an Act passed prior
to Confederation, and entitled * Of offences
against religion,’ prohibiting servile labour
(works of necessity and mercy excepted) on the
Lord’s Day, was held to be ultra vires, upon the
ground that the statute thus sought to be
amended was criminal law, while at the same
time, it was not denied that the provincial legis-
lature would have power to deal with the sub-
ject by legislation coming under the head of
property and civil rights.’** And, on a like prin-
ciple, it was held in McDonald v. McGuisli,^””*
that there was no appeal to the Supreme Coui*t
of the province from a judgment of the County
Court questioning a conviction by a magistrate
under the Canada Temperance Act, as none was
expressly given by the latter Act, although the
provincial Acts creating and organizing the
County Courts gave a general appeal to the
Supreme Court of the province. It would, in-
deed, be ultra vires of a provincial legislature to
confer a right of appeal from a judgment on

»» (1898) 30 N. S. 469.
>” See inira, pp. 594-612.

»•• (1883) 5 R. & G. 1; followed in The Queen v. Wolle (1886),
7 R. & G. 24.

CRIMINAL LAW. 329

certiorari questioning a conviction under the
Canada Temperance Act.”‘”^

But although it cannot be denied that Par- }
liament may draw into the domain of criminal
law an act which has hitherto been punishable
only under a provincial statute,^”^ it does not
seem possible now to accept the view indicated
by Grraham, E.J., in Thomas v. Halihurton,^”*
that when Parliament has drawn an act into
the domain of criminal law, the right of the pro-
vincial legislature to pass laws in regard to such
act necessarily ceases. The provincial legisla- 1
ture might still, it is submitted, in many in- ‘
stances, legislate against the same Act in another ‘;
jaspect.^”* Thus, although in Dallaire v. La Cite J
de Quebec,^”” Langelier, A.J.C., decided that
when the Dominion parliament has declared
an act criminal, regulated the procedure to
secure its punishment, and determined the tri-
bunal which shall have jurisdiction to entertain
it, a local legislature has no power to pass a law
to punish the same act, and to determine the tri-

‘”Per Osier, J.A., in Regina v. Eli (1886), 13 O. A. R. at
p. 533, cited per Moss, C.J.A., in In re Boucher, 4 O. A. R. 191, q.v.
Cf., also, Regina v. Lake (1878), 43 U. C. R. 515; Regina v. Toland
(1892), 22 O. R. 505.

‘”Per Osier, J.A., in Regina v. Wason (1890), 17 O. A. R. at
p. 241. See the subject discussed 10 C. L. T. at p. 233, seq. In tlie
Session of Parliament in 1882 a bill respecting pawnbrokers,
to prevent them practising extortion, was withdrawn by the
mover at the request of the Minister of Justice, on the ground
that it was doubtful if it was within the jurisdiction of the
Dominion parliament: Bourinot’s Parliamentary Procedure and
Practice (2nd ed. at p. 674), citing Can. Hans., 1882, p. 266.

=»’ (1893) 26 N. S. at p. 73. Cf. per Dugas, J., in Regina v.
Harper (1892), R. J. Q. 1 S. C. at pp. 533-5.

‘**See infra, pp. 582-585; and supra, pp. 199-209.

“■ (1907) R. J. Q. 32 S. C. 118.

330 Canada’s federal system.

bunal which shall take cognizance of it, and the
procedure to follow to secure its punishment;
the alleged offence there being vagrancy, and
the defendant accused of being a loose, idle, or
disorderly person, who being able to work, and
maintain himself and family, wilfully refused
and neglected to do so, which is an offence under
the Dominion Criminal Code ; yet, at p. 120, the
learned judge is careful to say, to venture on a
translation: *’ This is not a law the object of
which is to maintain good order in the City of
Quebec, but it is a law of a general character,
and one which declares criminal all the acts
which fall under the term vagrancy. It is, then,
a true criminal law, and consequently one within
the exclusive jurisdiction of the Federal Parlia-
ment. . The Quebec legislature has no power’
to pass laws declaring criminal all those acts of
vagrancy which have already been declared such
by the Criminal Code.”
^ The Dominion parliament can give jurisdic-

j tion to provincial Courts in criminal matters,
I in spite of any provincial statutes relating to
5 such Courts. Thus, in Ward v. Reed,”” although
a provincial Act enacted that the County Courts
should not have jurisdiction over any action
against a justice of the peace for an\i:hing done
by him in the execution of his office, it was,
nevertheless, held, by the Supreme Court of New
Brunswick, that a Dominion Act providing that
penalties against Justices of the Peace for the
non-return of convictions, etc., might be re-

** (1882) 22 N. B. 279. Specially referred to In Pigeon v.
Mainville (1893), 17 L. N. at p. 72.

CRIMINAL LAW. 331

covered by an action of debt by any person suing
for the same in any Court of Record in the pro-
vince in which such return ought to have been
made, was intra vires of the Dominion parlia-
ment, because (p. 283), ” it is a matter connected
with the administration of the criminal law
which belongs exclusively to the Dominion par-
liament, which has the right, in legislating upon
a matter within its control, to give authority to
the existing Courts in the province to try such
matters.'””

But the Dominion parliament cannot, of
course, regulate the procedure under a provin-
cial penal statute. Thus, in Regina v. Bittle/”‘
it was held ultra vires of the Dominion parlia-
ment to enact that on the trial of any proceed-
ing, matter, or question under an Act in force
in any province respecting the issue of licenses
for the sale of spirituous liquors, the defendant
should be competent to give evidence.^””

^Cf. Clemens v. Bemer (1871), 7 C. L. J. 126; Curran v.
Grand Trunk R. W. Co. (1898), 25 0. A. R. 407; Ex parte Perkins
(1884), 24 N. B. at p. 70; Ex parte PoHer (1889), 28 N. B. 587,
where Allen, C.J., with whom Wetmore and King, JJ., concurred,
seems to indicate the view that though the Dominion parliament
has the right to make use of provincial magistrates for the pur-
pose of enforcing the law, where the provincial legislature, as in
the case before him, has not authorized the constitution of any
Court to try such offences, yet that, if the provincial legislature
has established such a Court, the Dominion parliament must,
then, either make use of that Court or establish a Dominion Court
under section 101 of the British North America Act, but cannot
select some other provincial Court in lieu of the one so estab-
lished by the provincial legislature. Sed. giuere; see supra, pp.
148-150.

‘°» (1892) 21 O. R. 605. And see Legislative Power in Can-
ada, at p. 464, n. 1.

*°* As to the Dominion power over criminal law not debarring
a provincial legislature preventing and punishing obstruction to
the business of legislation, although the interference or obstruc-

332 Canada’s federal system.

Provincial legislatures alone have power to
regulate the procedure under the penal laws
which they have authority to enact under No. 15
of section 92 of the British North America Act.
There seems no reason to doubt the correctness
of any part of Dunkin, J. ‘s, statement of the law
in Ex parte Duncan/^” where he says: ” What-
ever infractions, whether as to matters of Do-
minion or provincial legislation, Parliament sees
fit to designate as crimes, it, and it alone, can so
declare, and as such punish, and to that end regu-
late procedure. Whatever infractions of any
provincial law coming within the purview of this
92nd section of the British North America Act
Parliament may not see fit thus to deal with, the
interested province may punish by fine, penalty,
and imprisonment; but its so doing does not
make the offence to be thus punished a crime, nor
the procedure laid down in order to its punish-
ment, procedure in a criminal matter. On the
contrary, such whole matter must remain a civil
matter within what is here the true meaning of
these respective terms. ” “^

tlon be of a character involving the commission of a criminal
offence, or bringing the offender within reach of the criminal law,
see Fielding \. Thomas, [1896] A. C. 600; Legislative Power In
Canada, p. 748, n. 1, and supra, pp. 155-158. And as to the right to
fines and penalties under the criminal law, see infra, p. 576, n.
See also Legislative Power in Canada, pp. 463-8; and to the cases
there cited, add Regina v. Fox (1899), 18 O. P. R. 343; McMurrer
V, Jenkins (1907), 3 E. L. R. 149.

»• (1872) 16 L. C. J. at p. 191.

»” Semble, the provision of the Criminal Code (R. S. C. 1906,
c. 146, s. 13), that ‘ no civil remedy for any act or omission shall
be suspended or affected, by reason that such act or omission
amounts to a criminal offence,’ is ultra vires as assuming to
bind the provincial civil tribunals: Paquet v. Lavoie (1898), R.
J. Q. 7 Q. B. 277. So, also, in Richer v. Oervais (1894), R. J. Q.

CRIMINAL PEOCEDUEE. 333

Procedure in criminal matters. — We can now v>
proceed to the second point of difficulty arising
under No. 27 of section 91, namely, to distin-
guish * procedure in criminal matters,’ from
the constitution of a Court of criminal jurisdic-
tion within the meaning of No. 14 of section 92.
It is not possible, however, to do more than state —
the actual decisions. In The King v. Walton,^^*
the Ontario Court of Appeal held, that a pro-*
rincial 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 summon-
ing 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

6 S. C. 254, it was held that a Dominion Act declaring a non-
juridical day must be interpreted as relating only to Dominion
matters. As to the power of the Dominion parliament to include
within the criminal law of Canada acts of Canadian subjects
committed abroad, see In re Criminal Code Sections relating to
Bigamy (1897), 27 S. C. R. 461; and supra, pp. 103-5. Of., however,
an Article on Extra-territorial criminal legislation of Canada, by
Frank A. Anglin, in 19 C. L. T. at pp. 1, 38, who arrives at the
conclusion that, subject to the single possible exception of
Canadian sailors or marines upon a Canadian vessel of war, as to
which he cites the Dominion power over ‘ Militia, Military and
Naval service and Defence’ (No. 7 of section 91), the Dominion
parliament ‘ has not been clothed with jurisdiction to so regulate
the conduct of Canadians as to constitute their acts, committed
without the territorial limits of Canada, criminal offences.’ See,
also, Chandler v. Main (1863), 16 Wise. 422.

^ (1906) 12 O. L. R. 1. And see, also, Regina v. O’Rourke
(1882), 32 C. P. 388, 1 O. R. 464, and Regina v. Prevost (1885),
M. L. R. 1 Q. B. 477, where the Dominion Act adopting the pro-
vincial laws as to what persons should be qualified to serve as
grand jurors or petit jurors in criminal cases, subject to any
provision in any Act of the Parliament of Canada, was held intra
vires. See, however, Sproule v. Reginam, 2 B. C. (Irving) 219.

iff

334 Canada’s federal syltem.

alone has power to legislate. The Supreme
Court of Nova Scotia in Queen v. Cox^””^ had
held the same way. In that case Henry, J., says
(p. 316) : ** It seems clear to me that both the
grand jury and the petit jury are constituent
elements in our Superior Criminal Courts. ” On
the other hand, Townshend, J., says (p. 315) :
” It is open to a great deal of argument whether
or not the grand jury are a part of the constitu-
tion of the Court ;’* while Ritchie, J., says (p.
314) : ** In many cases the procedure of the
Court is so combined with its constitution and
organization that it seems very difficult, if not
impossible, to define clearly the line separating
them. ‘ ‘

In Begina v. Bradshaw/^* it was held by the
Ontario Court of Queen’s Bench, that a Domin-
ion 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 of the Dominion parliament. At
p. 569, Gwynne, J., delivering judgment, says,
that the enactment comes within ‘ procedure ‘ of
the Court in item 27 of section 91 ; and that the
conferring power upon the parties to an appeal
in criminal matters to dispense with the jury if
they think fit, an dto submit themselves to the
judgment of the Court of General Sessions with-
out a jury, cannot be said to interfere with the
constitution of the Court.””

«» (1898) 31 N. S. 311.
«♦ (1876) 38 U. C. R. 564.

“Followed by McDougall, C.J., In Queen v. Malloy (1900),
4 Can. Cr. Gas. 116, who held that a provision of the Criminal

CRIMINAL PROCEDURE,

335

In In re Chantler/^^ Osier, J.A., held, that it
is not within the power of a provincial legisla-
ture to regulate or control the inspection of the
jurors’ book or jury panel so far as it relates to
criminal causes or matters. He says (p. 535),
after referring to Eegina v. O’Rourke, supra: —
‘* If the proceedings which result in the prepar-
ation of the panel for the trial of criminal causes
and matters are matters of criminal procedure,
a fortiori, anything which relates to the right of
the accused in respect of the panel itself must
be equally so. I suppose it would hardly be con-
tended that it would be within the power of the
local legislature to enact that the panel should
not be inspected or the accused entitled to a copy
of it until after he had pleaded, or until after
the opening of the Court ; and the restriction of
the right to the period of six days before the
sittings ” (as by the provincial enactment in
question) ” is not in the least different in
principle.”

By Order in CouncH of April 19th, 1888, a
British Columbia Act, to establish a Court of
Appeal from the summary decisions of magis-
trates, which gave a right of appeal to a Judge
of the Supreme Court of British Columbia from
any conviction made under a Dominion statute,
was disallowed as legislation affecting procedure
in criminal matters.^^’ And in a report of May

Code that the appellate Courts should try the appeal from a
Bummary conviction without a jury was one relating to the pro-
cedure, and not to the constitution of the Court.

‘” (1905) 9 O. L. R. 529.

“‘Hodgins’ Provincial Legislation, 1867-1895, at p. 1108. As
to a provincial legislature authorising Industrials Schools as
places of confinement for persons convicted of criminal offences
under the Dominion criminal law, see infra, p. 578.

336 Canada’s fedleal system.

10th, 1892, upon certain British Columbia Acts,
Sir John Thompson, as Minister of Justice, says
of certain sections of an Act to amend the Jurors
Act,”*: ” The sections of this Act, 8 to 15 inclu-.
sive, deal with the subject of juries in connec-
tion with the trial of criminal cases. In the view
of the undersigned those provisions have to do
exclusively with procedure in criminal matters
as distinguished from the constitution of Courts
of criminal jurisdiction, and are, therefore, be-
yond the provincial jurisdiction.””**

In Ex parte Vancin%”’^° the Supreme Court
of New Brunswick held that a pro\dncial Act
* which created stipendiary and police magistrates
a Court with all the powers and jurisdiction
•which any Act of the parliament of Canada had
conferred or might confer, was intra vires. The
case went to the Supreme Court,”^ where, how-
ever, it was found unnecessary to pass upon this
provincial Act. Hannington, J. (36 N. B., at
p. 464), says: ” It is contended that the pro^dn-

“» Hodgins’ ibid., p. 1125.

*” Sections 8 to 15 thus referred to, abolished the jury de
medietate linguw, allowed jurors to affirm instead of taking the
oath in certain cases, dealt with the right of peremptory chal-
lenge and challenge for cause, making up a jury when the panel
has been exhausted, and the right of a jury to separate in
certain cases. Reference may, also, be made to Regina v. Levin-
ger (1892), 22 O. R. 690, overruling Regina v. Toland (1892), 22
O. N. 505, and holding a provincial Act authorising the General
Sessions of the Peace to try persons charged with forgery to be
intra vires, being in relation to the constitution of a provincial
Court of criminal jurisdiction. ” The constitution of a Court,”
says Armour, C.J., delivering the judgment of the Court in the
former case, ” necessarily includes its jurisdiction.”

»»• (1904) 36 N. B. 456; followed in Geller v. LoughHn (1911),
24 O. L. R. 18, see at pp. 23, 33, 35.

« 34 S. C. R. 621.

FEDERAL WORKS AND CORPORATIONS. 337

cial Act in terms authorizes the parliament of
Canada to establish criminal Courts; this it
could not do, and did not contemplate doing, and
the language used had no such meaning.” Sed
quaere, as to this suggested limitation on the
provincial legislature. It is submitted that thej
provincial legislature could give such authority]
and could also, at any time, withdraw it.^^^ ‘

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 the British North America Act,
assigned exclusively to the legislatures of the
provinces.

The classes of subjects referred to here are:
the office of Lieutenant-Governor, which, by No.
1 of section 92 of the Act, is excepted out of the
power of provincial legislatures to amend the
constitution of the province ; ^’^ and the classes of
subjects excepted in No. 10 of section 92 out of
the broad general class designated ‘ local works
and undertakings ‘ ; which latter are : —

{a) Lines of steam or other ships, railways,
canals, telegraphs, and other works and under-
takings connecting the province with any other
or others of the provinces, or extending beyond
the limits of the province.”*

“^See supra, pp. 69-73.

“‘As to the Lieutenant-Governors, see supra, pp. 25-29.
“*In Dow V. Black (1874), M. L. R. 1 Q. B. at p. 192, Fisher,
J., held that these last words refer to extension into another
C.F.S.— 22

338 Canada’s federal system.

(&) Lines of steamships between the pro-
vince and any British or foreign country.

(c) Such works as, although wholly situate
within the province, are before or after their
execution declared by the parliament of Canada
to be for the general advantage of Canada, or
for the advantage of two or more of the pro-
vinces.”**

It is these of which we have to speak here.

In one of their very latest judgments, City of
Montreal v. Montreal Street Railway,’^^^ the
Privy Council say: ** Now the effect of sub-sec-
tion 10 of section 92 of the British North
America Act is, their lordships think, to trans-
fer the excepted works mentioned in sub-heads
(a), (h) and (c) of it into section 91, and thus
to place them under the exclusive jurisdiction
and control of the Dominion parliament. These
two sections must then be read and construed as
if these transferred subjects were specially
enumerated in section 91, and local railways as

province, not to extension into a foreign country: sed queere.
However, the point does not seem to have been finally determined
even yet; but see per Garrow, J.A., in City of Toronto t. Bell
Telephone Company (1903), 6 O. L. R. at p. 343; per Davies, J.,
In Hevoson v. Ontario Power Co. (1905), 36 S. C. R. at p. 606.

“*’ As to the Dominion Act Incorporating the Antlcosti Com-
pany, with power to purchase that island, and to sell and lease
the same, being ultra vires as for a Dominion object and affecting
property and civil rights in Quebec, see per Ritchie, C.J., In
Forsyth v. Bury (1888), 15 S. C. R. at pp. 548-9. Strong, J. (p.
551), also expresses the same opinion, while Gwynne, J., Inti-
mates an Inclination to hold otherwise, but In the view these
last two judges took of the case it was unnecessary for them
to determine the point, while the remaining judges (Fournier
and Taschereau, JJ.), do not pass upon it And see infra, p. 364.

“• [1912] A. C. 333. Reported below, 43 S. C. R. 197.

FEDERAL WORKS AND CORPORATIONS. 339

distinct from federal railways were specifically
enumerated in section 92.” “‘

Dominion parliament can give all necessary
powers. — The first point to notice in respect to
the powers of the Dominion parliament under
this sub-section is that, when acting under it, it
can confer upon a corporation all powers neces-
sary to effectuate its corporate purposes. For
example, to adopt and adapt words of the Privy
Council in their very recent judgment in the
Toronto and Niagara Power Co. v. Corporation
of the Town of North Toronto,””’ Parliament
may treat an electric power company whose work
or undertaking extends beyond the limits of one
province, or the works of which have been ex-
pressly declared to be for the general advantage
of Canada, and so brought within section 91 of
the British North America Act, as proper to be
entrusted with freedom to interfere with muni-
cipal and private rights. And speaking of the
company whose corporate powers were there in
question, they add: ” For that there might ^ell
have been, on the balance of advantages, good

^ It will be noted that the power given to the Dominion
parliament by the combined effect of section 91, sub-section 29,
and section 92, sub-section 10, is to make laws in relation to
‘ railways ‘ connecting the province with any other or others of
the provinces, or extending beyond the limits of the province, and
not merely in relation to ‘ railway companies.’ The case of
Canadian Pacific R. W. Co. v. Corporation of Bonsecours, [1899]
A.. C. 367, presently to be noticed, illustrates this.

=’ [1912] A. C. 834. This case raised no question under
the British North America Act. The whole question was the
bearing of certain provisions of the Dominion Railway Act on
those of the plaintiff’s special Act of incorporation; and whether
the former modified and restricted the latter.

340 Canada’s federal system.

reason, the purpose of the company being to
bring electric power from Niagara Falls to parts
of Canada, to reach which its lines would have to
pass through a series of municipal areas. To
make its powers of entry subject to the veto of
each municipality might mean failure to achieve
its purpose.”

And so in City of Toronto v. Bell Telephone
Company/”^ the Board, overruling Regina v.
Mohr”” held that the Dominion Act incorporat-
ing the Bell Telephone Company was intra vires,
and that *’the Bell Telephone Company acquired
from the legislature of Canada all that was
necessary to enable it to carry on its business in
every province of the Dominion, and no provin-
cial legislature was, or is, competent to interfere
with its operations, as authorized by the parlia-
ment of Canada.” They held, therefore, that a
provincial Act making the consent of the muni-
cipal council a condition precedent to the exer-
cise of the company’s powers in cities, towns
and incorporated villages was ultra vires; and
that, under their said Act of incorporation, the
company was entitled, without the consent of the
municipal corporation, to enter upon the streets
and highways of the City of Toronto, and to con-
struct conduits or lay cables thereunder, or to
erect poles with wire affixed thereto, upon or
along such streets or highways.

It was argued that the Bell Telephone Com-
pany was formed to carry on, and was carrying
on, two separate and distinct businesses — a local

»• [1905] A. C. 52. Reported below, 6 O. L. R. 335. 3 O. L. R.
465.

“• (1881) 7 Q. L. R. 183.

4

FEDERAL WORKS AND CORPORATIONS. 341

business and a long distance business ; and it was
contended that the local business, and the under-
taking of the company so far as it dealt with
local business, fell within the jurisdiction of the
provincial legislature. But their lordships held
that the undertaking authorized by the Domin-
ion Act of incorporation, was one single under-
taking, though for certain purposes its business
might be regarded as falling under different
branches or heads ; and that the imdertaking of
the Bell Telephone Company was no more a
collection of separate and distinct businesses
than the undertaking of a telegraph company
which has a long distance line combined with
local business, or the undertaking of a railway
company which may have a large suburban traf-
fic, and miles of railway communicating with dis-
tant places.””

“••A curious and novel point arose in this case as to whether
the company were bound by the terms of a provincial Act, which
it Itself had applied for, and which had been passed at its own
instance, confirming its powers to erect lines of telephone aloag
public highways and streets of cities, towns and incorporated
villages, but only subject to certain restrictions, and to the con-
sent of the municipal councils being obtained. It was argued
that the company, having applied for and obtained that provincial
A.ct, were subject to its restrictions, if not by force of the enact-
ment, yet as the result of the legislative agreement with the
municipal corporations, evidenced thereby, to which the company
were parties. The Privy Council state simply that they do not
find any trace of such agreement; but in the Court of Appeal, the
point is dealt with by two of the judges, Garrow, J. A. (6 O. L. R.
at p. 344), holding that the company could not, even by an ex-
press consent, surrender the powers entrusted to them by the
Dominion parliament, to the local legislature; and Maclennan.
J.A. (6 O. L. R. at pp. 349-50), holding, on the other hand, that
the company could, and had agreed with the city to construct
its works in the manner, and subject to the restrictions and
limitations contained in the Act in question. He says: “The
company has asked the legislature to modify its powers and

342 Canada’s fedeeal system.

A Dominion corporation, then, for carrying
out such an undertaking as comes within the ex-
ceptions to item 10 of section 92, is not subject,
in carrying on the business as authorized by its
charter, to the provincial laws of the province
where it does so.”^ And this applies to Domin-
ion corporations generally in the exercise of
powers conferred upon them by the Dominion
parliament, and strictly relating to the subjects
of legislation enumerated in section 91 of the
British North America Act.”” But it will be
otherwise when the Dominion is incorporating,
not imder one of its exclusive enumerated
powers, but under its general residuary power,

rights over highways in the three named classes of municipalities,
and the legislature has done so. I think the company is estopped
from denying the power of the legislature after it has complied
with the request;” and (p. 352): “a Dominion corporation may,
by application to the legislature of a province, have its powers
over property in that province enlarged, diminished, varied or
qualified, in any manner whatever, whether such powers were
originally obtained from the Dominion or from the province, or
partly from the one and partly from the other.”

*” And so per Garrow, J.A., in City of Toronto r. Bell Tele-
phone Co. (1903), 6 O. L. R. at p. 342. And see per Maclennan,
J.A., 3 S. C. at p. 347; and La Cie Hydraulique 8t. Francois v.
Continental Heat and Light Co.. [1909] A. C. 194, supra, p. 125.
See, also, Canada Atlantic R. W. Co. v. Montreal and Ottawa R. W.
Co. (1901), 2 O. K. R. 336, and Montreal and Ottawa R. W. Co.
V. City of Ottawa (1902), 4 O. L. R. 56, as to railway companies
which have taken proper proceedings under the Dominion Rail-
way Act, and been duly authorised thereunder to cross highways
in a city not being bound to make compensation to the miinl-
cipallty therefor. And as to the Dominion Railway Act not entit-
ling municipalities to compensation for such crossing of their
highways, see per Moss. C.J., in 4 O. L. R. at p. 74. As to pro-
vincial power to tax Dominion corporations, see infra, p. 421.

***Tennant v. Union Bank of Canada, [1894] A. C. 31. As \
will be presently seen, infra, pp. 356-363, this does not mean that
the undertaking of such a Dominion corporation may not be in
any way affected by provincial legislation.

I

FEDERAL WORKS AND CORPORATIONS. 343

as, for example, incorporating an insurance
company,^^^ or a building and investment com-
pany.^** In such cases it can grant no more than
the power of acting as a corporation throughout
the Dominion, but subject in each province, as
any other person, to the laws of that province.”*
So, again, in the recent case of Attorney-Gen-
eral of British Columbia v. Canadian Pacific B,
W. Co.,^^” the Privy Council have decided that
for the purposes of a Dominion railway com-
pany, the Dominion parliament has power to
dispose of provincial Crown lands, and, there-
fore, of a provincial foreshore to a harbour. It
was argued that there is nothing in the British
North America Act to shew that the rights of the
Crown in respect of a province are any more put
under the legislative control of the Dominion,
than there is to shew that the rights of the Crown
in respect of the Dominion are put under the

*** Citizens’ Insurance Co. v. Parsons (1881), 7 App. Cas. 96.

“* Colonial Building & Investment Association v. Attorney-
General of Quebec (1883), 9 App. Cas. 157.

‘*’ See Legislative Power in Canada, pp. 618-623, 626-7, to
which last reference add now, per Idington, J., in Canadian
Pacific R. W. Co. t. Ottaioa Fire Insurance Co. (1907), 39 S. C. R.
at p. 442. It does not, however, follow that the Dominion Govern-
ment might not, on occasion, veto a provincial Act affecting such
Dominion companies, as for example, by attempting to legislate
certain shareholders within the province into a privileged and
preferential position in a public company, as compared with
shareholders in other provinces. See report of Minister of Justice
of Sept. 27th, 1907, on some Nova Scotia legislation affecting loan
companies incorporated by the Dominion parliament, in which
he threatened disallowance of such legislation as, even if compe-
tent, inconsistent with the policy of the Dominion in incorporat-
ing and defining the powers of such companies, and the relations
between them and their shareholders.

*• [1906] A. C. 204. Reported below, 11 B. C. 289. Cf. Booth
V. Mclntyre (1880), 31 C. P. at p. 193.

344 Canada’s federal system.

legislative control of the province; to which
Lord Davey is reported as replying : ” If there is
a Dominion railway, the line of which crosses
through some public property of the province,
you put it in the power of the province to veto
altogether the legislation of the Dominion. Par-
liament has said that the Dominion parliament
shall have legislative jurisdiction: you would
make it subject to the veto of the province, and
share it in fact between the Dominion and the
province.*”

The Dominion parliament has all necessary
incidental powers when legislating under No. 29
of section 91. — This is, in truth, only a more gen-
eral statement of the same principle upon which
the cases we have just been considering depend,
a principle of general application in the con-
struction of the British North America Act.”*
But the powers assumed under this principle
must, in fact, be necessarily incidental “** to the
exercise by the Dominion parliament of its
control. Thus in one of their very latest de-
cisions, City of Montreal v. Montreal Street Rail-
way y-^” the Privy Council have held the provision

“‘ Transcript from Shorthand Notes of Marten, Meredith,
Henderson & White, pp. 112-114. Where a Manitoba Act author-
izes a provincial railway company to appropriate so much of the
public lands, which belonged to the Dominion, as should be
deemed necessary for the purposes of the railway, the Act was
disallowed by the Dominion Government: Hodgins’ Provincial
Legislation. 1867-1895, at pp. 855-6. Private persons, however,
could not in such a case, refuse to pay the tolls exacted by a rail-
way company improperly authorized by a provincial Act to cross
Etominion lands: O’Brien v. Allen (1900), 30 S. C. R. 340.

“•See supra, pp. 164-179.

“*• As to this see supra, pp. 172-4.

»• [1912] A. C. 333. Reported below, 43 S. C. R. 197.

i

THROUGH TRAFFIC ON RAILWAYS. 345

of the Dominion Railway Act, 1906, which sub-
jects any provincial railway, although it has not
been declared by Parliament to be a work for
the general advantage of Canada, to those of its
provisions which relate to through traffic, to be
ultra vires; and that an order of the Dominion
Board of Railway Commissioners of Canada
made under its authority was invalid, which
directed, with regard to through traffic over a
railway which, though originally a provincial
railway, had become a federal railway by reason
of having been declared by the parliament of
Canada to be a work for the general advantage of
Canada, and a provincial street railway, that
the latter should ‘ enter into any agreement or
agreements that may be necessary to enable ‘
the former company to carry out its provisions
with respect to the rates charged so as to prevent
any unjust discrimination between any classes of
the customers of the federal line. Their lord-
ships say, at pp. 344-45 : ” It must be shewn that
it is necessarily incidental to the exercise of con-
trol over the traffic of a federal railway, in re-
spect of its giving an unjust preference to cer-
tain classes of its passengers, or otherwise, that
it should, also, have power to exercise control over
the ‘ through ‘ traffic of such a purely local thing
as a provincial railway properly so called, if only
it be connected with a federal railway. . .
As long as it is reasonably probable that the
provincial companies will enter into such agree-
ments, or will be coerced to enter into them by
the provincial legislature which controls them,
it cannot be held, their lordships think, that it is

346 Canada’s federal system.

i

necessarily incidental to the exercise by the
Dominion parliament of its control over federal
railways that provincial railways should be coer-
ced by its legislation to enter into these agree- {i
ments in the manner in which it sought to coerce
the street railway company in the present case to
enter into the agreements specified in the order
appealed from . . The right contended for in
this case is in truth the absolute right of the
Dominion parliament wherever a federal line
and a local provincial line connect to establish,
irrespective of all consequences, this dual con-
trol over the latter line whenever there is
through traffic between them, at least of such
a kind as would lead to unjust discrimination
between any classes of the customers of the
former line. In their lordships’ view this right
and power is not necessarily incidental to the
exercise by the parliament of Canada of its
undoubted jurisdiction and control over federal
lines, and is therefore, they think, an unauthor-
ized invasion of the rights of the legislature of
the province of Quebec.”**

Dominion may prohibit federal railways
” contracting out.” — The question of what is

»*In the Court below in this case (43 S. C. R. at pp. 227-8),
Duff, J., suggests as a possible case where the Dominion parlia-
ment might legislate directly in respect of a provincial railway
upon a subject matter in respect of which the province might have
legislated in the absence of Dominion legislation, the case where
such provincial railway intersecting with a federal railway, the
exercise of the powers of the Dominion to legislate for the pro-
tection of the public as affected by the operation of the Dominion
railway might involve the passing of regulations touching the
traffic through the point of intersection of the provincial railway,
and an area surrounding that point of intersection embracing to
some extent the provincial line.

M.

FEDERAL RAILWAYS. 347

necessarily incidental to the Dominion power of
legislation under No. 29 of section 91 came up
before the Privy Council in Grand Trunk R. W.
Co. V. Attorney-General of Ganada.^*”^ There the
question was the competency of the Dominion
parliament to enact the provisions contained in
a Dominion Act prohibiting any ” contracting
out ” on the part of railway companies within
the jurisdiction of the Dominion parliament
from the liability to pay damages for personal
injury to their servants. Their lordships said
that the case turned upon ** whether the law is
truly ancillary to railway legislation;” and that
it seemed to them that, *’ inasmuch as these rail-
way corporations are the mere creatures of the
Dominion legislature— which is admitted — it
cannot be considered out of the way that the
parliament which calls them into existence
should prescribe the terms which are to regulate
the relations of the employees to the corporation.
It is true that, in so doing, it does touch what
may be described as the civil rights of those em-
ployees : but this is inevitable, and, indeed, seems
much less violent in such a case where the rights,
such as they are, are, so to speak, all intra fami-
liam, than in the numerous cases which may be
figured, where the civil rights of outsiders may
be affected. As examples may be cited provi-
sions relating to expropriation of land, condi-
tions to be read into contracts of carriage, and
alterations upon the common law of carriers. ” ^*’

“* [1907] A. C. 65; referred to Couture t. Panos (1908), Q. R.
17 K. B. 561, q. v.

“‘ It will be noticed that here the Privy Council were dealing
with the Grand Trunk Railway, and speaking with reference to

348 CANADA’S FEDERAL SYSTEM.

Dominion can regulate, generally, the liabi-
lity of federal railways to their employees for
negligence. — In In re Railway Act/*^ the Su-
preme Court have held intra vires of the parlia-
ment of Canada, the Dominion Act providing
that no railway company within its jurisdiction
shall be relieved from liability for damages for
personal injury to any employee by reason of
any notice, condition, or declaration issued by
the company, or by any insurance or provident
Association of railway employees, or of rules or
by-laws of the company or Association, or of
privity of interest or relation between the com-
pany and Association or contribution by the com-
pany to funds of the Association, or of any bene-
fit, compensation, or indemnity, to which the
employee or his personal representative may be-
come entitled, or obtain from such Association;
or of any express or implied acknowledgment,
acquittance, or release obtained from the Asso-
ciation prior to such injury purporting to re-
lieve the company from liability.

And in Curran v. Grand Trunk R. W. Co.***
it was held that the provision of the Dominion

similar through railways; but semble, a similar power would be
recognised in connection with railways, which, originally pro-
vincial, had become federal by being declared by the Dominiom
parliament to be for the general advantage of Canada, or of two
or more provinces. See infra, pp. 364-371. The Dominion parlia-
ment may possibly have power to bind Dominion railways as
to the terms upon which they shall carry goods delivered to
them in a foreign country; but unless in that way, it is not open
to question that it has no jurisdiction to legislate as to the
working of railways In a foreign country, or to fix upon a
carrier operating such a railway any liabilities: Macdonald v.
Grand Trunk R. W. Co. (1900), 31 O. R. 663, 5.

**» (1905) 36 S. C. R. 136. See especially per Taschereau, J.,
at p. 141; and per Davles, J., at p. 143, 144-5.

*** (1898) 25 O. A. R. 407.

i

I

FEDERAL RAILWAYS. 349

Railway Act giving to any person injured by
failure to observe any of the provisions of the
Act a right of action ‘ for the full amount of
damages sustained ‘ is intra vires; and that the
limitation of amount recoverable contained in
the provincial Workmen’s Compensation for
Injuries Act does not apply to a workman or
his representatives proceeding under that pro-
ion/””

Dominion Parliament may forbid directors of
a federal railway being interested in contracts
with the company. — In the same way it has been

•””And so in Washington v. Grand Trunk R. W. Co. (1897),
24 O. A. R. 183, Osier, J.A., at pp. 185-6, says that those provisions
of the Workmen’s Compensation for Injuries Act as to packing
railway frogs, relating as they do to the construction or arrange-
ment of the railway track itself, must, in his opinion, be confined
in their application to railway companies which are within the
jurisdiction of the provincial legislatures; and he distinguishes
Canada Southern R. W. Co. v. Jackson as relating to other pro-
visions of that Act dealing with the general law of Master and
Servant. The other judges do not refer to the point, the decision
turning upon the construction of s. 262 of the Dominion Railway
Act, 1888; and the same applies, also, to the judgments on appeal
in this case: 28 S. C. R. 184; [1899] A. C. 275. In Monkhouse v.
Orand Trunk R. W. Co. (1883), 8 O. A. R. 637, Spragge, C, held
the same way. But in Canada Southern R. W. Co. v. Jackson
(1890), 17 S. C. R. 316, the provisions of the Ontario Work-
men’s Compensation for Injuries Act giving employees a right
of action under certain circumstances for injuries arising from
the negligence of fellow servants were held to apply to a railway
though it had been declared a work for the benefit of Canada;
Patterson, J., saying, at p. 325: — “The rule of law which it
alters was a rule of common law, in no way dependent on or
arising out of Dominion legislation, and the measure is strictly
of the same class as Lord Campbell’s Act which, as adopted by
provincial legislation, has been applied without question to all
our railways.” Legislation providing for the safety of the public
at, or upon, a line of railway, is a matter relating to such a work
or undertaking: per Meredith, J., in Re Canadian Pacific R. W.
Co. and County and Tovmship of York (1898), 25 O. A. R. at
p. 79. Cf. per Osier, J., at pp. 72-3; per Burton, J.A., at p. 70.

350 Canada’s federal system.

decided in Macdonald v. Riordan/*’^ that a pro-
vision of the Dominion Railway Act enacting
that no director of a federal railway shall * enter
into, or be directly, or indirectly, for his own use
and benefit interested in any contract with the
company, not relating to the purchase of land
necessary for the railway, or be or become a
partner of any contractor with the company ‘ is
intra vires.^*’^

Dominion control over railway crossings.—
In their recent decision in City of Toronto v.
Canadian Pacific R. W. Co.,^” the Privy Council
reiterated and applied the propositions laid
down by them in Grand Trunk R. W. Co. v.
Attorney-General of Canada,^*^ referred to

‘« (1899) 30 S. C. R. 619. Reported below. R. J. Q. 8 Q. B. 555.
The Supreme Court simply adopt the reasons of Wurtele, J., de-
livering the judgment of the Court below. He says: — “It Is a
matter which essentially affects the internal economy of a railway
company that its directors should not be adversely interested in
any contract entered into by the company, or that they should
not be or become partners of any contractors with the company.”
In his dissenting judgment in Montreal Street R. W. Co. v. City
of Montreal (1910), 43 S. C. R. 197, Anglin, J., refers to this case
of McDonald v. Riordan, and expresses the view that Wurtele, J.,
in his remarks upon the subject restricts the ancillary legislative
jurisdiction of parliament within too narrow limits.

***Cf. Royal Trust Co. v. Atlantic and Lake Superior R. W.
Co. (1908), 13 Ex. C. R. 42. at pp. 45-46, as to the Dominion par-
liament having power to legislate as to where bonds issued by
a Dominion railway must be registered, and so over-ride provi-
sions of the provincial law as to where bonds should be registered.
And as to the Dominion power to regulate the contracts of federal
railways generally, see per Taschereau, J., in Citizens’ Insurance
Co. V. Parsons (1880), 4 S. C. R. at pp. 307, 312-4. And of. per
Badgley, J., in L’Vnion St. Jacques de Montreal t. Belisle, 20 L.
C. J. at p. 31. And see Legislative Power in Canada, pp. 502-505.

**’ [1908] A. C. 54. Reported below. 8 O. W. R. 348, 9 O. W.
R. 785.

»♦• [1907] A. C. 65.

FEDERAL RAILWAY CROSSINGS. 351

above;”” and held intra vires provisions of the
Dominion Railway Act authorizing the Railway
Committee of the Privy Coimcil of Canada, in
the case of a railway (i.e., sl federal railway)
constructed across any street or other public
highway, at rail level or otherwise, to * require
the company to which such railway belongs,’
within such time as the said committee should
direct, to protect such street or highway by a
watchman, or by a watchman and gates, or other
protection ; and to make such orders ‘ respect-
ing such works and the apportionment of the
costs thereof, and of any such measures of pro-
tection between the said company and any per-
son interested therein, as appear to the Railway
Committee just and reasonable.’ And they up-
held an order of the Railway Committee order-
ing the Canadian Pacific Railway Company to
provide gates and watchmen at certain level
crossings in Toronto ; and directing that one-half
of the cost attending the placing and maintain-
ing of the gates and watchmen be contributed by
the City of Toronto.^'” Their lordships say : —
” If the precautions ordered are reasonably
necessary, it is obvious they must be paid for,
and in the view of their lordships there is noth-
ing ultra vires in the ancillary power conferred
by the sections on the committee to make an
equitable adjustment of the expenses among the

^** Supra, p. 347.

**” See, also, as to the jurisdiction of the Dominion parlia-
ment here in question Re Canadian Pacific R. W. Co. and County
and Township of York (1896-8), 27 O. R. 559, 25 O. A. R 65.
These two Privy Council decisions are cited and applied to the
matter of immigration in In re Narain Singh (1908), 13 B. C. 477.

352 Canada’s federal system.

persons interested. The jurisdiction conferred
over property and civil rights in the province is
quite consistent with a jurisdiction specially re-
served to the Dominion in respect of a subject-
matter not within the jurisdiction of the pro-
vince.” The Board seems to have accepted the
argument of Sir Robert Finlay, of counsel in
this case:”^ “It is said it is not necessary the
municipality should pay, but it is necessary that
someone should pay. If there are three or four
different ways of doing a thing you may always
say no one of them is necessary, because you
may take another course, but here if someone
must pay, the Dominion must provide some
machinery for throwing the liability in some
quarter. That is necessary. The precise choice
of the way of doing it is a matter that is neces-
sarily left to the legislature, and to those to
whom they entrust the authority.”

In Grand Trunk R. W. Co. v. Hamilton Rad-
ial Electric Co.,^” Street, J., held that sections of
the Dominion Railway Act enacting that the
plaintiffs and other railways, and any railways
whatever crossing them, were works for the gen-
eral advantage of Canada, and subject thereafter
to the legislative authority of Parliament, and
another Dominion enactment that no railway
shall be crossed by any electric railway whatever,
unless with the approval of the Railway Com-
mittee, were intra vires “^ In In re Portage

“•Report of Marten, Meredith, Henderson & White, short-
hand writers.

»” (1897) 29 O. R. 143.

*• As appears from the report of this case, the Railway Com-
mittee had held that a provision in the defendants’ Ontario Act

FEDERAL RAILWAYS. 353

Extension of the Red River Valley Railway”*
however, the Supreme Court unanimously held
that, notwithstanding a Dominion Act specially-
declaring certain railways, amongst others the
Canadian Pacific Railway, and, also, * all branch
lines or railways connecting with or crossing
them or any of them ‘ to be works for the
general advantage of Canada, the Manitoba
legislature could authorize the construction of
a railway wholly within the province, but cross-
ing the Canadian Pacific Railway line, the Rail-
way Committee of the Privy Council first ap-
proving of the mode and place of crossing.

Further illustrations of Dominion incidental
powers in connection with federal railways. — In
City of Toronto v. Grand Trunk R. W. Co.,”^
where the majority of the Supreme Court had
the same question before them, and came to the
same conclusion, as the Privy Council in City of

of incorporation forbidding them to cross at grade was ultra
vires, and had made an order allowing them to cross at grade
notwithstanding it. And cf. in support: Credit Valley R. W. Go.
V. Great Western R. W. Co. (1878), 25 Gr. 507; Canadian Pacific
R. W. Co. V. Northern Pacific, etc., R. W. Co. (1888), 5 M. R. at p.
313. See, also. In re Portage Extension of Red River Valley R.
W., Cas. Sup. Ct. Dig. 487; see, also, the report of the Minister
of Justice of March 3rd, 1890, on a certain Manitoba Act: Hod-
gins’ Prov. Legisl. 1867-1895, at pp. 912-3. It by no means follows
that a provincial legislature could make a similar provision as
to a Dominion railway crossing a provincial one. The non
o1>8tante clause of section 91 must always be remembered. See
supra, pp. 128-132; and Legislative Power in Canada, p. 445, n. 3.

‘”Cas. Sup. Ct. Dig. 487.

“* (1906) 37 S. C. R. 232. Leave to appeal to the Privy Coun-
cil was refused: 37 S. C. R. IX. See as to this case, per Idington,
J., in Montreal Street R. W. Co. v. City of Montreal (1910), 43
S. C. R. 197, at p. 219.

C.F.S.— 23

il

354 Canada’s federal system.

Toronto v. Canadian Pacific R. W. Co./” Iding-
ton, J., in his dissenting judgment, in which he
protests against the doctrine of necessarily inci-
dental powers being carried too far/” says, at
p. 253: ” The appellant being a municipal cor-
poration possesses only such powers as the Muni-
cipal Act of Ontario has given, and is subject to
such liabilities as that Act expressly or impliedly
imposes. There is no power that I can conceive
of in the Dominion parliament to directly add to
or take away from the powers of the municipal-
ity. Indirectly Dominion legislation, as for ex-
ample, making the omission to observe a duty
already existing a crime, may so operate on
municipal or other corporations as apparently
to conflict with this statement. On consideration
there is clearly only apparent conflict.” In
Grand Trunk R. W. Co. v. City of Toronto,^”^
however, Meredith, J., held that though the Dom-
inion parliament could not confer corporate
powers on municipal corporations which the pi*o-
vincial legislation had not conferred upon them,
as, for example, empowering them to acquire and
make new streets across Dominion railways, yet
it could empower the Railway Committee of the
Privy Council of Canada to decide whether it
was necessary in the interest of the municipality
that such streets should be made, and to direct

»” [1908] A. C. 54. See p. 350, supra.

*” In Montreal Street R. W. Co. v. City of Montreal, supra,
Anglin, J., discusses very thoroughly, at pp. 238-248, the authori-
ties as to what Dominion legislation will in different cases fall
within the description of truly and properly ancillary, or neces-
sarily incidental to the complete and effective control of federal
railways.

“> (1900) 32 O. R. 120, 127 et seq.

FEDERAL RAILWAYS. 355

how and on what terms such streets might be
made, where the municipal corporation had the
capacity under provincial legislation to make
them.

In McArthur v. Northern Pacific Junction R.
W. Co.,”’ Street, J., Hagarty, C.J.O., and Osier,
J.A., held that a Dominion enactment whereby
all actions for indemnity for any damage or in-
jury sustained by reason of any railway under
Dominion control must be commenced within six
months, was intra vires of the Dominion parlia-
ment,”” being in accordance with the customary
legislation in similar cases both in Canada and
England; while Burton, J.A., and Maclennan,
J. A., held that it was ultra vires ^ as being an un-
necessary interference with property and civil
rights, and with procedure in the province, the
latter (p. 127) denying that any such clause is
to be f oiuid in the railway legislation of either
England or the United States.

Lastly, in Keefer v. Todd,’^^ the Dominion
Peace Preservation Acts, being Acts for the bet-
ter preservation of the peace in the vicinity of
public works, in which large bodies of labourers
are congregated and employed, and which for-
bade the possession of firearms and other lethal
weapons, and, also, the sale and possession of
intoxicating liquors within the districts in which
they were duly proclaimed in force, were held

^ (1888-1890) 15 O. R. 723, 17 O. A. R. 86. See this case re-
ferred to in Montreal Street R. W. Co. v. City of Montreal (1910),
43 S. C. R. 197, at p. 243.

“•So lield also in Levesque v. ‘Neio Brunswick R. W. Co.
(1889), 29 N. B. 588.

*” (1885) 2 B. C. (Irving) 249. See at p. 255.

356 Canada’s federal system.

intra vires by Begbie, J., as being really laws in
relation to and confined to the Canadian Pacific
Railway, a public work within the meaning of
sub-section (a) of No. 10 of section 92 of the
British North America Act.

How far federal railways can be affected by
provincial legislation.”‘— Much light has been
thrown upon this subject by the decision of the
Privy Council in Canadian Pacific Railway Co.
V. Corporation of Bonsecours,^^^ where the ques-
tion arose as to the right of the Quebec legisla-
ture to require a ditch belonging to the railway
company, and running along the side of the rail-
way track of the compan}^ on the lands of the
company for the purpose of their railway, to be
kept in good order and free from obstruction
which would impede the water-flow. Their
lordships say (pp. 372-3) : ” The British North
America Act, whilst it gives the legislative con-
trol of the appellants’ railway, qua railway, to
the parliament of the Dominion, does not de-
clare that the railway shall cease to be part of the

“* In Bourgoin t. La Campagnie du Chemin de Per de Mon-
treal (1880). 5 App. Cas. 381, the Privy Council held that the
provincial legislature had no power to ratify and validate the
transfer of a federal railway, with its property, liabilities, rights,
and powers to the Quebec government, and through it to a com-
pany with a new title and a different organization, to be governed
by and subject to provincial legislation; but that ratification by
a Dominion Act was necessary. They held so both on the general
law of England and of Quebec, under which an Act of parliament
would be required to validate such a transfer, and upon the
special provisions of the British North America Act.

*” [1899] A. C. 367, see esp. at p 373. Reported below, R. J.
Q. 7 Q. B. 121.

I

FEDERAL RAILWAYS AND PROVINCIAL LEGISLATION. 357

province in which it is situated, or that it shall,
in other respects, be exempted from the jurisdic-
tion of the provincial legislatures. Accordingly
the parliament of Canada has, in the opinion of
their lordships, exclusive right to prescribe regu-
lations for the construction, repair, and altera-
tion of the railway, and for its management, and
to dictate the constitution and powers of the
company; but it is, inter alia, reserved to the
provincial parliament to impose direct taxation
upon those portions of it which are within the
province, in order to the raising of a revenue for
provincial purposes. It was obviously in the
contemplation of the Act of 1867 that the rail-
way legislation, strictly so called, applicable to
those lines which were placed under its charge,
should belong to the Dominion parliament. It,
therefore, appears to their lordships that any at-
tempt by the legislature of Quebec to regulate by
enactment, whether described as municipal or
not, the structure of a ditch forming part of the
appellant company’s authorized works, would be
legislation in excess of its powers. If, on the
other hand, the enactment had no reference to
the structure of the ditch, but provided that, in
the event of its becoming choked with silt or rub-
bish, so as to cause overflow and injury to other
property in the parish, it should be thoroughly
cleaned out by the appellant company ” {i.e., the
Canadian Pacific R. W. Co.), ” then the enact-
ment would, in their lordships’ opinion, be a
piece of municipal legislation competent to the
legislature of Quebec:” and they read the enact-
ment, or rather the notification to the railway

358 Canada’s federal system.

given under it, as embracing the latter purpose
only.^”

Cattle protection.— But immediately after
this decision, in Madden v. Nelson and Fort
Sheppard R. W. Co.,”’ the Board held that the
provisions of the British Coliunbia Cattle Pro-
tection Act that a Dominion railway company,

*** See, following this decision, Grand Trunk R. W. Co. t.
Therrien (1900), 30 S. C. R. 485, where the Supreme Court held
that the provincial legislatures have no jurisdiction to make
regulations in respect to crossings, or the structural condition of
the roadbed of railways subject to the provisions of the Railway
Act of Canada. See per Sedgewick, J., at p. 492; also. Rex v.
Canadian Pacific R. W. Co. (1905), 1 W. L,. R. 89, where the
Supreme Court of the North- West Territories held intra vires sls
applied to the defendant railway, the provisions of the Prairie
Fire Ordinance respecting fires caused by sparks from an engine.
So in Grant v. Canadian Pacific R. W. Co. (1904), 36 N. B. 528,
it was held that certain provincial enactments against starting
fires near any forests or woodlands between May 1st and Dec. 1st
in any year were intra vires and applied to the defendant rail-
way, McLeod, J., saying (p. 545): — “These sections do not seek
to control the company in the management of its railway in any
way. They are simply for the protection of the property in New
Brunswick against damage by fire.” In MonkhOMSe v. Grand
Trunk R. W. Co. (1883), 8 O. A. R. 637, Spragge, C, held that an
Ontario Act providing for the safety of railway employees and the
public by regulating the construction and maintenance of railway
frogs would be ultra vires if intended to apply to a Dominion
railway. See, also, Washington v. Grand Trunk R. W. Co. (1897),
24 O. A. R. 183, per Osier, J.A., at pp. 185-6, and Legislative
Power in Canada, p. 596, n. 1.

*» [1899] A. C. 626. Reported below, 5 B. C. 541. In In re
Railway Act (1905), 36 S. C. R. 136, noted supra, p. 348, Davies, J.,
at pp. 146-7, refers to these two Privy Council decisions, saying
that they ” throw much light upon the view which the Judicial
Committee of the Privy Council take as to the necessity of ex-
cluding the provinces from Interfering by legislation in a matter
wholly withdrawn from them, and, inferentlally, show how
broad should be the construction placed upon the powers of the
Dominion in a matter exclusively relegated to It to legislate
upon.”

I

FEDERAL RAILWAYS AND PROVINCIAL LEGISLATION. 359

unless they erected proper fences on their rail-
way, should be responsible for cattle injured or
killed thereon, was ultra vires of the provincial
legislature, and say: ” Their lordships think it
unnecessary to do more than to say that in this
case the line seems to have been drawn with suffi-
cient precision in the case of the Canadian Paci-
fic R. W. Co. V. Corporation of the Parish of
Notre Dame de Bonsecours/”^^ when it was de-
cided that, although any direction of the provin-
cial legislature to create new works on the rail-
way, and make a new drain, and to alter its con-
struction, would be beyond the jurisdiction of the
provincial legislature, the railway company were
not exempted from the municipal state of the
law as it then existed, that all landowners, includ-
ing the railway company, should clean out their
ditches so as to prevent a nuisance. It is not
necessary to do more here than to say that
this case raises no such question anywhere near
the line, because in this case there is the actual
provision that there shall be a liability on the
railway company unless they create such and
such works upon their roadway. This is mani-
festly and clearly beyond the jurisdiction of the
provincial legislature. ‘ ‘

Fire protection. — In connection with these
two Privy Council decisions is to be also noted
Canadian Pacific B. W. Co. v. The King,^””^ where
the Supreme Court (Idington, J., dissenting)
held ultra vires as applied to the defendants,

*»• Suvra, p. 356.

»* (1907) 39 S. C. R. 476.

360 Canada’s federal system.

certain North- West Territories Ordinances,
which prescribed penalties for kindling a fire,
and letting it run at large on land of another
person, but provided that there should be no lia-
bility under the Act in the case of a party in
charge of a railway locomotive engine, if the
same were equipped with a suitable smoke
stack, and if, in the case of a line of railway
passing through prairie country, it was pro-
tected by a fire-guard of ploughed land. It
was conceded that the legislature of the North-
West Territories had no greater jurisdiction
than a provincial legislature, and the Court
put their decision upon the ground that the
provision as to fire-guards was imposing a
duty upon companies operating railways under
the legislative control of the Dominion, which
no Dominion enactment imposed. They say: —
** It is an enactment prescribing the main-
tenance of such fire-guards as adjuncts to
Dominion railway lines as a condition of the law-
ful operation of them in the localities to which
it applies ; and, therefore, an enactment profess-
ing to regulate the working (if not the construc-
tion) of such lines; and consequently within
Lord Watson’s words, *’ railway legislation
strictly so called.'”” In his dissenting judgment
Idington, J., says: ” It seems to me all to resolve
itself into a question of the right of the local
legislature to enact laws, tending to protect pro-
perty against the dangers of a local nature, aris-
ing from that negligence which the Dominion

^ Sc. In Canadian Pacific R. W. Co. v. Bonsecours, [1899]
A. C. 367, at pp. 372-3.

I

FEDERAL RAILWAYS AND PROVINCIAL LEGISLATION. 361

parliament never sanctioned, nor intended to
sanction, nor legislated as to. . . Can a Do-
minion railway company in the negligent doing
of the work of building, and running, or both,
befoul the streams, pollute the air, endanger life
and property, and destroy everything in its path,
regardless of all those local regulations that bind
every person, and every other corporate body,
in a province. ‘ ‘^”^

Mechanics and wage earners* liens. — In

Crawford v. Tilden,””^ it was held that a lien un-
der the Ontario Mechanics and Wage Earners
Lien Act cannot be enforced against the railway
of a company incorporated under a Dominion
Act, and declared thereby to be a work for the
general advantage of Canada.

Sequestration and receivers. — In Baie des
Chaleurs R. W. Co. v. N ant el”” the majority of

“* See pp. 488, 490-5. A report of the Minister of Justice of
October 29th, 1904. in reference to an Ontario Act respecting aid
to certain railways, suggests that many things which a pro-
vincial legislature could not impose as statutory requirements
upon a federal railway — such as that the location of the line
should be subject to the approval of the Railway Commit-
tee of the Executive Council of the province; that rates for
passengers and freight should be subject to the approval of
the said Committee; that there should be no special rates, rebates,
drawbacks or concessions to favourite shippers, etc. — it might
secure as matter of agreement between the local government and
the company as a condition to the grant of a subsidy. Cf. as to
a provincial legislature imposing Sunday observance conditions,
when incorporating a provincial railway: Kerley v. London and
hake Erie Transportation Co. (1912), 26 O. L. R. 588; infra, pp.
455-7.

=•«» (1907) 14 O. L. R. 572, 13 O. L. R. 169. And cf., also,
Larsen v. Nelson and Fort Sheppard R. W. Co. (1895), 4 B. C. 151.

“‘ (1896) R. J. Q. 9 S. C. 47, 5 Q. B. 65. As to the sale of a
Dominion railway under a writ of ft,, fa., see Redfield v. Corpor» (1881) 7 App. Cas. at p. 117.
•” (1883) 9 App. Cas. at pp. 164-5.
‘” See infra, pp. 461-487.

“^ It is, of course, competent for the Dominion parliament to
incorporate under Dominion charter the members of a provincial

382 Canada’s federal system.

A Dominion corporation may, however, con-
fine its operations to one or more provinces. —

Subject, of course, to any express requirements
of their charter, or Act of incorporation, the fact
that a company incorporated under a Dominion
Act with power to carry on its business through-
out the Dominion, chooses to confine the exercise
of its powers to one province cannot affect its
status or capacity as a corporation, if the Act
incorporating the company was originally
within the legislative power of the Dominion
parliament. This is clearly laid down in the
case of the Colonial Building and Investment
Association/^^ just referred to. That Associa-
tion had been incorporated with power to carry
on its business, consisting of various kinds,
throughout the Dominion. It was, however, con-
tended that inasmuch as the Association had
confined its operations to the province of Que-

company, and so enlarge the scope of their operations and powers:
Todd’s Parliamentary Government in British Colonies, 2nd ed.,
at p. 437. As to whether the Dominion parliament can authorize
the Governor-General in Council to permit a provincial company
to transact business throughout the Dominion, or In foreign coun-
tries, see infra, pp. 483-5. Nevertheless, there may, no doubt, be
objects for which only a provincial legislature could incorporate a
company because of their necessarily provincial character: Forsyth
V. Bury (1888), 15 S. C. R. 543, per Ritchie, C.J., at p. 549; per
Strong, J., at p. 551; Citizens’ Insurance Co. v. Parsons (1880),
4 S. C. R. at p. 310; Legislative Power in Canada, p. 375, n. 2; 634.
It is questionable whether provincial legislatures can validly
enlarge or affect the powers of a Dominion corporation. See the
remarks of Sir Allen Aylesworth, in a report as Minister of Jus-
tice, dated March 30th, 1910, on a Nova Scotia Act of 1909 respect-
ing the Victorian Order of Nurses for Canada, where he raises
the question of the power of the provincial legislature to do this
in the case of the Order, ” which is Incorporated by royal letters
patent with general powers.” Cf. per Maclennan, J.A.
“(1883) 9 App. Cas. 157.

DOMINION COMPANIES GENERALLY. 383

bee, and its business had been of a local and pri-
vate nature, it followed that its objects were local
and provincial, and, consequently, that its incor-
poration belonged exclusively to the provincial
legislature. Their lordships overruled this con-
tention, laying down the above principle, and
adding (p. 374) : ” The parliament of ^Canada
could alone constitute a corporation v^ith these
powers; and the fact that the exercise of them
has not been co-extensive with the grant, cannot
operate to repeal the Act of incorporation, nor
warrant the judgment prayed for, viz., that the
company be declared illegally constituted.”
They, however, add (p. 165) : “It is unneces-
sary to consider what remedy, if any, could be
resorted to if the incorporation had been ob-
tained from Parliament with a fraudulent ob-
ject. ‘ ‘”* But whenever the objects of a company
as defined by its Act of incorporation, contem-
plate possible extension beyond the limits of one
province, it is vdthin the exception of No. 10 (a)
of section 92 of the British North America
Act.'”

*” Their Lordships refer to their holding in this case i»
City of Toronto v. Bell Telephone Co., [1905] A. C. at p. 58.
And see supra, pp. 76-82.

•”Per Davies, J., in Hewson v. Ontario Power Co. (1905), 86
S. C. R. at p. 606.

CHAPTER XXV.

Provincial Enumerated Powers.

1. The amendment from time to time, not-
withstanding anything in this Act, of the Con-
stitution of the Province, except as regards the
ofl&ce of Lieutenant-Governor.

The non obstante clause in this sub-section —
which is to be found in none other of the sub-sec-
tions of section 92 of the British North America
Act, is to be noticed, and to be reconciled with
the non obstante clause in section 91, which
states that ‘ notwithstanding anything in this
Act, the exclusive legislative authority of the
parliament of Canada extends to all matters
coming within the classes of subjects next here-
inafter enumerated.’ Doubtless the earlier
non obstante clause must dominate over the
later ; ‘ so that we may, perhaps, state the true
position thus: Under this sub-section of sec-
tion 92, provincial legislatures have the same
power to alter and amend the constitutions of
their respective provinces (except as regards
the office of Lieutenant-Governor), by their
own legislative Act, as the Imperial parliament
possessed at the date of the passing of the Brit-
ish North America Act; but, whilst the amend-
ment of their own Constitution is conceded to

* The non obstante clause in section 91 must, it is submitted,
be interpreted to mean ‘ notwithstanding anything hereinbefore or
hereinafter enacted in this Act.’

I

PROVINCIAL POWERS. 385

the provinces, they might, as an unnecessary in-
cident of amending their Constitution, enact
some things which might be abrogated by a Do-
minion law.'” Otherwise, as Ramsay, J., says in
Ex parte Dansereau/ No. 1 of section 92, in its
widest sense, would amount to a power to upset
the British North America Act,”””

The Lieutenant-Governor. — In Attorney-
General of Canada v. Attorney-General of
Ontario/^ Boyd C, speaking of this sub- sec-
tion, ** which forbids interference with the
office of Lieutenant-Governor,” says: ** That
veto is manifestly intended to keep intact the
headship of provincial government, forming, as
it does, the link of federal power; no essential
change is possible in the constitutional position
or functions of this chief officer, but that does not
inhibit a statutory increase of duties germane to
the office.” And so in his published argument
before the Court of Appeal in this case, Mr. Ed-

‘• See Legislative Power in Canada, p. 699, n. 1, and p. 755,
n. 1.

‘ (1875) 19 L. C. J. at pp. 224-5.

»»The Colonial Laws Validity Act, 1865— Imp. 28-29 Vict,
c. 63 — enacted in section 5: —

5. ‘ . . . Every representative legislature shall, in respect
to the colony under its jurisdiction, have, and be deemed at all
times to have had, full power to make laws respecting the con-
stitution, powers, and procedure of such legislature; provided
that such laws shall have been passed in such manner and form
as may from time to time be required, by any Act of parliament,
letters patent, Order in Council, or colonial law for the time
being in force in the colony.’ As to the application of this sec-
tion to a provincial legislature, see Fielding v. Thomas, [1896]
A. C. 600, at p. 610. See also, as to it, per Sir J. W. Colvile, in
Doyle v. Falconer (1866), L. R. 1 P. C. at p. 341; and Clement’s
Canadian Constitution, 2nd ed., pp. 249-50.

‘«> (1890) 20 0. R. 222, at p. 247.

c.F.s. — 2.5

386 Canada’s federal system.

ward Blake said of this clause of the Federation
Act: — ” This means that those elements of the
Constitution which can be properly deemed to be
parts of the Constitution relating to the office of
the Lieutenant-Governors are not to be changed ;
and for an obvious reason, because the Lieuten-
ant-Governor is the link between the federal and
the provincial, aye, and between the Imperial and
the provincial authority ; he is the means of com-
munication, he is the chain and conduit of Im-
perial as well as federal connection ; and, there-
fore, his office in the Constitution, his constitu-
tional position as a federal officer, is not to be
affected.” And the Ontario Court of Appeal,^”
and the majority of the Supreme Court of Can-
ada, “‘* affirmed him in holding the Ontario Act
there in question intra vires, though it purported
to vest certain powers, authorities, and functions
in the Lieutenant-Governor of Ontario, amongst
others that of remitting sentences for offences
against provincial penal statutes. In the latter
Court, however, Gwynne, J., says: — ‘* So to ex-
tend the powers, authorities, and functions of
the Lieutenant-Governor of Ontario beyond
those expressly vested in him by the Constitu-
tional Act is, in my opinion, a violation of the
terms of No. 1 of section 92 of the Act. . An
Act which pui’ports to vest in a Lieutenant-Gov-
ernor of the province the royal prerogative in
excess of so much thereof as is expressly or by
necessary implication vested in him by the Brit-
ish North America Act must, I think, be held to

»’ 19 O. A. R 31.
” 23 S. C. R. 458.

AMENDMENT OF CONSTITUTION. 387

be an alteration of the Constitution of the pro-
vince as regards the office of Lieutenant-Gover-
nor.” The other judges of the Supreme Court
do not specially refer to this clause, Strong, C.J.,
and Fournier, J., resting their decision in
favour of the Act upon its precautionary
phrases — ‘ So far as this legislature has power
to enact,’ etc., while Taschereau, J., simply refers
to Liquidators of the Maritime Bank of Canada
V. Receiver-General of Netv Brunswick.’^

Cannot abdicate functions. — Upon the argu-
ment before the Privy Council in Hodge v. The
Queen,^ Mr. Horace Davey contended that under
this sub-section, provincial legislatures ** could
do what Lord Selborne, no doubt correctly, said
in The Queen v. Bur ah* the Indian legislature
could not do, — abdicate their whole legislative
functions in favour of another bodj^” But, as
Sir A. Hobhouse remarked,^ this they cannot do.
” They remain invested with a responsibility.
Everything is done by them, and such officers as
they create and give discretion to.” ‘

»’ [1892] A. C. 437. In a report, however, of Sir John Thomp-
son, as Minister of Justice, dated July 16th. 1887, upon the Quebec
A.ct of 1886. respecting the executive power, which declared the
Lieutenant-Governor, or person administering the government of
the provinces, to be a corporation sole, he says: ” In the opinion
of the undersigned, it is immaterial whether a legislature by an
A.ct seeks to add to or take from the rights, powers, or authorities
which, by virtue of his office, a Lieutenant-Governor exercises, in
either case it is legislation respecting his office; and he recom-
mended that the Act should be disallowed, and it was dissallowed
accordingly: Hodgins’ Prov. Legisl.. 1867-1895, p. 338. See, fur-
ther, as to the Lieutenant-Governors, infra, pp. 25-29.

» Dom. Sess. Pap. 1884, vol. 17, No. 30. p. 11.

* nSTS) 3 App. Cas. at p. 905.

• Dom. Sess. Pap., iMd., p. 70.
‘ See supra, pp. 74-5.

388 Canada’s federal system.

Can define their own privileges. — The Privy
Council have held that under this sub-section,
provincial legislatures have power to pass Acts
for defining their own powers, immunities and
privileges, in the sense which they make clear
by saying : ‘* It surely cannot be contended that
the independence of the provincial legislature
from outside interference, its protection, and
the protection of its members from insult, while
in the discharge of their duties, are not matters
which may be classed as part of the Constitution
of the province, or that legislation on such mat-
ters would not be aptly and properly described
as part of the constitutional law of the pro-
vince.”‘

Can refuse franchise to aliens. — In Cunning-
ham V. Tomey Homma,^ their lordships held
that, notwithstanding the exclusive Dominion
power to legislate in relation to ‘ naturalization
and aliens,’ a provincial Act enacting that no
Japanese, whether naturalized or not, should
have his name placed on the register of voters,
or be entitled to vote at the elections for the
provincial legislature, was intra vires, appar-
ently under this sub-section.

2. Direct taxation within the Province in
order to the raising of a revenue for provincial
purposes.

^Fielding v. Thomas [1896], at pp. 610-1. See Legislative
Power In Canada, pp. 746-749.

• [1903] A. C. 151. Reported below, 7 B. C. 368, 8 B. C. 76.
See Bupra, pp. 303-5.

i

PROVINCIAL POWERS. 389

General rule for testing validity of a provin-
cial Act resting hereon. — ^In Citizens Insurance
Co, V. Parsons,” the Privy Council point out that,
‘ the raising of money by any mode or system of
taxation ‘ is among the classes of subjects as-
signed by section 91^” of the British North
America Act to the Dominion parliament, and
that the description is sufficiently large and gen-
eral to include * direct taxation within the prov-
ince in order to the raising of a revenue for pro-
vincial purposes ‘ here assigned to the provin-
cial legislature, and that it obviously could not
have been intended that the general power should
override the particular one.” And so in the
subsequent case of Bank of Toronto v. Lambe/’
presently to be more particularly noticed, where
the question before the Board was whether a
certain Quebec Act entitled ^ An Act to impose
certain direct taxes on certain commercial cor-
porations ‘ was valid, their lordships say: *’ To
ascertain whether or not the tax is lawfully im-
posed, it will be best to follow the method of en-
quiry adopted in other cases. First, does it fall
within the description of taxation allowed by
class 2 of section 92 of the Federation Act,
namely, ‘ direct taxation within the province in
order to the raising of a revenue for provincial
purposes?’ Secondly, if it does, are we com-
pelled by anything in section 91, or in the other
parts of the Act, so to cut down the full mean-
ing of the words of section 92, that they shall

• (1881) 7 App. Cas. at p. 108.

“No. 3.

“See supra, pp. 112-118; 315-6.

» (1887) 12 App. Cas. 575. at p. 581.

i:,

390 Canada’s federal system.

not cover this tax*” ” And in this connection it
is necessary to bear in mind the essential dis-
tinction between regulation and taxation.” And
so, in this case of Bank of Toronto v. Lamhe,
the Privy Council say (at p. 586), with refer-
ence to the Dominion power to regulate trade and
commerce: ‘* If they were to hold that this
power of regulation prohibited any provincial
taxation on the persons or things regulated, so
far from restricting the expressions, as was
found necessary in Parsons^ case, they would be
straining them to their widest conceivable ex-
tent.” And on the same point, on the argument
on the Liquor Prohibition Appeal, 1895,” when
Bank of Toronto v. Lamhe was referred to, Lord
Watson asked: ** Do you regulate a man when
you tax him?” And Lord Herschell thereupon
said : ** May it not be necessary to regard it from
this point of view, to find what is within regula-
tion of trade and commerce, what is the object
and scope of the legislation T* Is it some public
object which incidentally involves some fetter on
trade or commerce, or is it the dealing with trade
and commerce for the purpose of regulating it f
May it not be that, in the former case, it is not

‘• See, also, as to the concurrent power of taxation between
the Dominion parliament and the provincial legislatures: Attor-
ney-Oenerai of the Dominion v. Attorney-General of the Provinces
(The Fisheries case), [1898] A. C. 700, at pp. 713-714; per Strong,
J., in Severn v. The’Queen (1878), 2 S. C. R. at p. Ill; per Dorion.
C.J.. in Dol>ie v. The Temporalities Board (1880), 3 L. N. at p.
254; the argument before the Supreme Court upon the Dominion
Liquor License Acts, 1883-4; Dom. Sess. Pap. 1885. No. 85, at
p. 98; Todd’s Pari. Gov. in Brit. Col., 2nd ed., at p. 564,

“See Weiler v. Richards (1890), 26 C. L. J. N. S. 338.

» [1896] A. C. 348.

*See supra, pp. 230-6.

11

DIRECT TAXATION WITHIN PROVINCE, 391

a regulation of trade and commerce, while in the
latter it is, though in each case trade and com-
merce in a sense may be affected?” And Lord
Watson then says: ” It would be difficult to
imply from these words ‘ the regulation of trade
and commerce, ‘ whilst the power of direct taxa-
tion is given to the province — the clauses must be
read reasonably together — it would be difficult
to suppose that regulating commerce meant the
passing of an Act by the Dominion legislature
exempting banks from provincial taxation, for
practically that is what the argument in that
case ” (sc. Bank of Toronto v. Lamhe), ” had to
come to ; that under the words * regulating com-
merce ‘ was implied a power of exempting a
bank from provincial taxation, or the liability to
be taxed by the provincial parliament. ” ”

Plenary powers in matters of taxation.— And
before passing on to a more particular discus-
sion of the provincial power of taxation under
this sub-section, it is worth while to observe that,
in accordance with that similarity in principle
to the free constitution of the United Kingdom
which pervades the constitution of this Domin-
ion, no Canadian legislature. Dominion or pro-
vincial, is subject in matters of taxation to that
restriction which exists under the United States

” Printed report published by Wm. Brown & Co., London,
1895, at pp. 120-1. Cf., also iMd., at p. 141. In a letter from the
Board of Trade to the Colonial Office, dated July 13th, 187S, a
copy of which is on file in the Governor-General’s Office at
Ottawa, the Board of Trade states that ‘ whilst measurement of
tonnage is an Imperial matter, local taxation of shipping is
essentially a colonial matter:’ See Legislative Power in Canada,
p. 642, n.

392 Canada’s federal system.

Constitution, and requires ** all public taxation
to be fair and equal in proportion to the value of
property, so that no one class of individuals,
and no one species of property, may be unequally
or unduly assessed.'”^ At the same time the
Dominion Government has objected to provin-
cial Acts discriminating in the matter of taxa-
tion against extra-provincial companies or in-
dividuals doing business in the province, al-
though not resorting to disallowance. Thus by
report of December 28th, 1901, upon a Prince
Edward Island Act, the Minister of Justice says :
” The undersigned does not consider that the
public interest is served by allowing unequal
taxation within a province as between the resi-
dents of that province, and the residents of other
provinces of the Dominion who may happen to
be doing business there.” And by a report of
March 4th, 1902, referring to another Prince
Edward Island Act of the same kind, the Minis-
ter says: ” No doubt both these Acts discrim-
inate against companies, or individuals, estab-
lished or residing outside of the province, and
this is a policy which is not favoured by your
Excellency’s Government.””

Provincial power of taxation generally. —
Now, as has been already seen, provincial legis-

” Kent’s Commentaries, 12th ed., vol. 2, p. 331. See, also.
Legislative Power in Canada, pp. 254-5, 720. n. 1; and supra, pp.
87-8. In Dow v. Black (1875), L. R. 6 P. C. at p. 282, the
Privy Council decided that No. 2 of section 92 ” must be taken to
enable the provincial legislature wherever it shall see fit, to im-
pose direct taxation for a local purpose upon a particular locality^
within the province.”

“Provincial Legislation. 1901-1903, pp. 96-98; IMd.. 1904-1906,
p. 25. And see Regina v. Wing Chong (1885), B. C. (pt. 2) 150,
referred to supra, p. 311, n., as to discrimination against aliens.

PROVINCIAL TAXATION GENERALLY. 393

latures have no powers of legislation (save as
to their own immunities and privileges) , except-
ing those enumerated in section 92 of the British
North America Act.^” Therefore, any power of
taxation they have must be found there ; and as
Gwynne, J., says in Reed v. Mousseau/”^ the only
sub-sections of section 92, which expressly auth-
orize the raising by Act of the provincial legisla-
tures of any revenue whatever, by any system of
taxation, are Nos. 2, 9, and 15.” Although, how-
ever, we cannot, as Baby, J., does in Bank of
Toronto v. Lamde/^ claim for the j)rovince an
inherent right to levy money by any mode or sys-
tem of taxation within the province, and for pro-
vincial ends, it may well be that they have such
power so far as they can bring it within No. 16
of section 92, as a matter ‘ of a merely local or
private nature in the province.”* We are now,
however, immediately concerned with No. 2 of
section 92.

What is direct taxation? — This question has
been brought before the Privy Council in four

“See supra, pp. 153-8.

” (1883) 8 S. C. R. at p. 431.

” Section 124 of the Federation Act provides that New Bruns-
wick may continue to levy existing lumber dues, but may not
increase the amount of such dues; and that the lumber of any
of the provinces other than New Brunswick shall not be subject
to such dues. In Attorney-General of Quebec v. Reed (1882), 26
L. C. J. at p. 355, Dorion, C.J.. points out that this is an excep-
tion to the general rule that provincial legislatures have no
power of indirect taxation.

” (1885) M. L. R. 1 Q. B. at p. 197. Cf. per Mathieu, J., In
Export Lumber Co. v. Lambe (1885), 13 R. L. at p. 117.

“See supra, pp. 140-3; infra, pp. 627-9.

394 Canada’s federal system.

cases.” In the last of these four cases, the Brew-
ers and Maltsters Association case, they held
valid, as direct taxation, a provincial Act impos-
ing, in order to raise a revenue for provincial
purposes, a license fee on brewers and distillers,
and other persons (though duly licensed, by the
Government of Canada, for the manufacture
and sale of fermented, spirituous, or other
liquors) for licenses to sell mthin the province
the liquors manufactured by them.^’ After re-
ferring there to their prior decision in Bank of
Toronto v. Lamhe, in which they held valid as
direct taxation, a Quebec Act imposing, as a tax
on every bank carrying on business within the

* Attomev-C^eneral for ^Quebec v. Queen Insurance Co. (1878),
t App. Cas. 1090; Attorney-General vf Quebec v. Reed (1883), 10
App. Cas. 141; Bank of Toronto t. Lamhe (1887), 12 App. Ca».
675, and Brewers and Maltsters Association of Ontario v. Attorney-
General for Ontario, [1897] A. C. 231. This last case was followed
in Rex v. Neiderstadt (1905), 11 B. C. 347. In the United States
Constitution it is provided (Art. 1, sec 8) that ‘ no capitation or
other direct tax shall be laid, unless in proportion to the census
or enumeration hereinbefore directed to be taken.’ Hence it
would seem that no tax can be a direct tax in the sense of the
United States Constitution, which is not capable of apportion-
ment according to the rules thus laid down; and it has been
seriously doubted if, in the sense of that Constitution, any taxes
are direct taxes, except those on polls or on lands: Story on the
Constitution of the United States, 5th ed.. Vol. 1. pp. 703-4. Hence
the American decisions as to what are direct taxes within the
United States Constitution are inapplicable to the Constitution
of Canada. This distinction has been pointed out and commented
on In many Canadian cases: see Legislative Power in Canada,
p. 720, n. 1.

*• As to the power of provincial legislatures to impose license
fees upon extra-provincial companies. Dominion or other, doing
business in the province, see supra, pp. 373-377. As to the pro-
vincial legislatures having a general power to impose a license
fee with a view to revenue, or to delegate such a power to a
municipality, see Re Foster and Township of Raleigh (1910), 22
0. L. R. 26, 342.

«

DIRECT TAXATION WITHIN PROVINCE. 395

province, a sum varying with the paid-up capi-
tal, with an additional sum for each office or
place of business; and to John Stuart Mill’s de-
finition” of a direct tax as ‘ one which is de-
manded from the very persons who it is intended
or desired should pay it,’ as distinguished from
indirect taxes, which are * those which are de-
manded from one person in the expectation and
intention that he shall indemnify himself at the
expense of another,’ which definition they had,
in Bank of Toronto y. Lamhe, taken as ** seem-
ing to them to embody with sufficient accuracy
for this purpose ” {sc. the purpose of legal de-
finition) ** the common understanding of the
most obvious indicia of direct and indirect tax-
ation, which were likely to have been present to
the minds of those who passed the Federation
Act, ” their lordships say : — ” In the present case,
as in Lamhe’ s case, their lordships think the tax
is demanded from the very person whom the legis-
lature intended or desired should pay it. They do
not think there was either an expectation or in-
tention that he should indemnify himself at the
expense of some other person. No such transfer
of the burden would in the ordinary course take
place, or can have been contemplated as the
natural result of the legislation in the case of
a tax like the present one, a uniform fee, trifling j

in amount, imposed alike upon all the brewers f

and distillers without any relation to the quan-
tity of goods which they sell. It cannot have been
Intended by the imposition of such a burden to

” As to this reference to Mill and the economists, see Bank
of Toronto v. Lambe, 12 App. Cas. at pp. 581-3; and Legislative
Power in Canada, p. 717, n. 2.

396 Canada’s federal system.

tax the customer or consumer. It is, of course,
possible that in individual instances the person
on whom the tax is imposed may be able to shift
the burden to some other shoulders. But this
may happen in the case of every direct tax.”
Here, then, the Judicial Committee indicate
very clearly what is to be understood as ‘ direct
taxation ‘ within the meaning of the clause
imder consideration.

In Attorney-General for Quebec v. The
Queen Insurance Co.^”^ they did not find it
necessary to consider the scientific definition
of direct or indirect taxation, because they held
that, whether as used by political economists,
or in jurisprudence in the Courts of law, or
in the popular use, the term * direct taxa-
tion ‘ did not apply to the tax they had there to
deal with, namely, a stamp imposed by statute
on policies, renewals, and receipts, with provi-
sions for avoiding the policy, renewal, or receipt,
in a Court of law, if the stamp was not affixed.”

In Attorney-General of Quebec v. Beed^” the
Board applied the same tests as in the first two
decisions above mentioned, the tax in question
being a stamp duty of ten cents imposed by a

» (1878) 3 App. Cas. 1090.

*» In Attorney-General o/ Quehec v. JBeed, 3 Cart, at pp. 220-1,
Ramsay, J., comments on this Privy Council decision, and denies
that it ” Implies that a duty being subject to collection by means
of a stamp, makes it necessarily indirect taxation.” What the
Privy Council decided, he says, was ” only that the duty sought to
be collected in that case, by a so-called license, was. in reality, an
ordinary Stamp Act, and indirect taxation.” So, also, per Pelle-
tier, J., in Choguette v. Lavergne (1893), R. J. Q. 5 S. C. at pp.
122-3; per Lacoste, C.J., S. C. in App., R. J. Q. 3 Q. B. at pp. 308-9.

»• (1883) 10 App. Cas. 141; followed Plummer Wagon Co. v.
Wilson, 3 M. R. 68.

PBOVINCIAL STAMP ACTS. 397

Quebec Act on every exhibit produced in Court
in any action depending therein. They said that
the view most favourable to the tax being a
direct tax was that of Mill above mentioned;
but that, even on this view of the matter, the tax
was not direct,^’ for from the very nature of
legal proceedings, ” until they terminate, as a
rule and speaking generally, the ultimate inci-
dence of such a payment cannot be ascertained
. . The legislature, in imposing the tax, cannot
have in contemplation, one way or the other, the
ultimate determination of the suit, or the final
incidence of the burden, whether upon the person
who had to pay it at the moment when it was
exigible, or upon anyone else … In truth,
that is a matter of absolute indifference to the in-
tention of the legislature. On the other hand
. . . it may be assumed that the person who
pays it is in the expectation and intention that he
may be indemnified, and the law which enacts it,
cannot assume that that expectation and inten-
tion may not be realized. As in all other cases of
indirect taxation, in particular instances, by par-
ticular bargains and arrangements of indivi-
duals, that which is the generally presumed inci-
dence may be altered. An importer may be
himself a consumer. Where a stamp duty upon
transactions of purchase and sale is payable,
there may be special arrangements between par-

“54-55 Vict. c. 28, D., passed July 10th, 1891, provided, by
Bection 5, that all fees payable on proceedings in the provincial
Courts, purporting to be imposed by or under the authority of any
Act of the provincial legislature, shall be payable according to
the provisions of such Acts respectively. This Act, however, ap-
pears as one of those repealed from the coming into force of R.
S. C. 1906, in Sched. A. of that consolidation.

398 Canada’s federal system.

ties determining who shall bear it.” The ques-
tion whether it is a direct or an indirect tax can-
not depend upon those special events which may
vary in particular cases; but the best general
rule is to look to the time of payment, and if, at
the time, the ultimate incidence is uncertain,
then, as it appears to their lordships, it cannot,
in this view, be called direct taxation within the
meaning of the second section of the 92nd clause
of the Federation Act. ‘ ‘

One or two decisions remain to be noticed. In
In re Yorkshire Guarantee and Securities Cor-
poration, Limited/^ the Supreme Court of Bri-
tish Columbia held, unanimously, that a tax im-
posed b}^ the provincial Assessment Act upon
mortgages was a direct tax, and i^itra vires,
within the indicia laid down by the Privy Coun-
cil in the above cases, notwithstanding that the
evidence showed that the company required their
mortgagors to recoup the amount. At p. 274,
Drake, J., says: ” The intention of the legisla-
ture is that the owner of the personalty is to bear

” It might seem that the Privy Council here intimate the
view that a stamp duty upon transactions of purchase and sale
would be an indirect tax, by reason of the uncertainty of the
ultimate incidence of it; but held otherwise in the case of a
stamp duty on sales of land, in Choquette r. Lavergne (1893-4),
R. J. Q. 5 S. C. 108, in App. sub nom. Lamonde t. Lavergne, R. J.
Q. 3 Q. B. 303. See per Lacoste, C.J., R. J. Q. 3 Q. B. at p. 308;
per Pelletier, J., R. J. Q. 5 S. C. at pp. 121-3. However, when in
1911, the Ontario legislature enacted that there should be levied
a tax of two cents payable by the transferor in money or stamps
for every $100, or fraction thereof, of the par value upon every
change of ownership of shares of debenture stock issued by any
corporation, or company, made or carried into effect in the pro-
vince, Mr. Doherty, Minister of Justice, by his report of January
30th, 1912, questions whether such taxation is not indirect.

** (1895) 4 B. C. 258.

i

DIRECT TAXATION WITHIN PROVINCE. 399

the tax ; it is imposed on him, and he is the person
intended to bear it. It is not imposed on him
with a view that someone else (the mortgagor)
shall bear it, or that it shall be distributed over
a class of persons. The tax is not imposed on
the dollars, but on the owners of the dollars.
Customs duties are imposed on the goods, not on
the owner of the goods. I cannot see how the
appellants in this case can escape from the deci-
sion of Bank of Toronto v. Lamhe. This tax ap-
pears to me to fall within the indicia laid down
by the Privy Council in that case for discrimin-
ating between a direct and indirect tax. ‘ ‘

In Le College de Medecins v. Bringham,^* it
was held that a provincial Act requiring all
members of the College of Physicians and Sur-
geons of the province to paj^ two dollars for the
use of the college was intra vires.^**

** (1888) 16 R. L. 283. By report of December 24th, 1894, the
Minister of Justice says: — ” The question may arise whether taxa-
tion which renders both the owner, occupier, and tenant of land
liable for a tax, the amount of which is arrived at having regard
to the extent, and value of the land so owned, occupied, or held
under lease, is not indirect, and, therefore, ultra vires of a pro-
vincial legislature:” Hodgins’ Provincial Legislation, 1867-1895, p.
1229. By report of December 27th, 1901, the Minister of Justice
objected to a British Columbia Act ‘ to provide for the collection
of a tax on persons,’ which required every male person in the
province to pay an annual revenue tax of |3, and that every mer-
chant, farmer, trader, or employer of labour should pay the said
annual tax for every male person in his employ, and might deduct
the same from salary or wages due to such male person, and
should be liable for the same, that this was clearly iadirect taxa-
tion under the judgment in Bank of Toronto v. LainT)e, supra, and
that the Act should be repealed, but it appeared that similar pro-
visions had been allowed to go into force before, and for this, and
other reasons, the Act was not disallowed.

“” Mr. Clement (op. cit. p. 259) tabulates different kinds of
taxation which have been held to be within the competence of a
provincial legislature in the cases. And see infra, pp. 414-423.

400 Canada’s federal system.

* In order to the raising of a revenue for pro-
vincial purposes.’ — A question arises whether
these words in No. 2 of section 92 of the Federa-
tion Act indicate that direct taxation may not
be resorted to by a provincial legislature in order
to raise a revenue for local or municipal pur-
poses, as distinguished from general provincial
purposes. This has been supposed to be the in-
tent of the clause by some judges,”* and colour is
lent to such a view by the fact that No. 9 of sec-
tion 92 expressly authorizes legislation in rela-
tion to the licenses there referred to * in order
to the raising of a revenue for provincial, local,
or municipal purposes.’ However in Dow v.
Black/^ already referred to, where the constitu-
tionality of a provincial Act authorizing the in-
habitants of a parish to raise by direct taxation,
within the parish, a subsidy for a certain rail-
way came into question, and it was contended
that No. 2 of section 92 only authorizes direct
taxation incident on the whole province for the
general purposes of the whole province, the
Privy Coimcil say: ** Their lordships see no
ground for giving so limited a construction to
this clause of the statute. They think it must be
taken to enable the provincial legislature, when-
ever it shall see fit, to impose direct taxation fo]*

“See Legislative Power In Canada, p. 722, a. 1, where the
words of Lord Watson, addressed to Counsel on the argument In
The Brewers and Maltsters Association of Ontario case, [1897]
A. C. 231, in reference to these words are cited: — “You construe
It very reasonably as meaning revenue purposes arising within
the province somewhere.”

••(1875) L. R. 6 P. C. 272.

PROVINCIAL TAXATION. 401

a local purpose upon a particular locality within
the province. “^^

In the Brewers and Maltsters Association
case,^^ the Judicial Committee, while pass-
ing, as we have seen,^° upon the validity of
the specific enactment before them, refused
to answer the more academic question sub-
mitted as to whether the provincial legislature
could impose direct taxation, not only in order
to raise a revenue for provincial purposes, but
also ** for any other object within provincial
jurisdiction;” but in the course of the argument
in that case,” Lord Herschell is reported as say-
ing as to No. 9 of section 92: ” They may have
put in sub-section 9 in order to make certain that

“As Mr. Clement says in his Law of the Canadian Constitu-
tion, 2nd ed., p. 252, this decision ‘ is sufiBcient warrant for the
whole system of municipal taxation now operative throughout
Canada.’

” [1897] A. C. 231.
‘* Supra, p. 374.

*• Manuscript transcript of notes of Marten, Meredith and
Henderson, at p. 55. In a report of January 8th, 1904, the Min-
ister of Justice says he has ” very serious doubts as to the capa-
city of a local legislature to enact such provisions as in the
Ontario Consolidated Municipal Act, 1903, whereby municipal
councils are authorized to make by-laws, inter alia, for taking
land within the municipality for purposes of a militia drill shed
or armoury, and for regulating harbours, erecting wharves, piers,
and docks in harbours, etc., and for aiding any regularly organ-
ized rifle association, and supplementing the sum paid during the
annual drill of the militia, on the ground that militia and defence,
and navigation and shipping, are exclusively subjects for the Do-
minion parliament, and that a provincial legislature has no power
of taxation except for provincial, municipal, or local purposes; he
does not, however, consider the provisions in question so objec-
tionable in substance as to require the disallowance of the Act:
Provincial Legislation, 1901-2, pp. 20-21.

c.F.s. — 26

402 Canada’s federal system.

a particular kind of things would beyond all
question be within taxation powers.’*”

*’ Within the province.” — It is next to be
noticed that the direct taxation authorized by
No. 2 of section 92 has to be ‘ within the pro-
vince,’ and in Woodruff v. Attorney-General
for Ontario,*^ the Privy Council have said that

*• The phrase ‘ for provincial purposes ‘ may be compared
with the phrase ‘ for provincial objects ‘ in No. 11 of section 92.
q.v., infra, pp. 464-479.

•[1908] A. C. 508. Reported below, 15 O. L. R. 416. But
though the property must be within the province, the person to
be taxed need not be domiciled, or even resident within it, as the
Privy Council pointed out in Bank of Toronto v. Lambe (1887),
12 App. Gas. at pp. 584-5, saying: — ” The next question is whether J
the tax is taxation within the province. It is urged that the bank |;
is a Toronto corporation, having its domicil there, and having ■

its capital placed there; that the tax is on the capital of the
bank; that it must, therefore, fall on a person or persons, or j

on property, not within Quebec. The answer to this is that No. 2 ^
of section 92 of the British North America Act, does not require I
that the persons to be taxed by Quebec are to be domiciled
or even resident in Quebec. Any persons found within the pro-
vince may be legally taxed there if taxed directly. This bank.”
(t.c. the Bank of Toronto) “is found to be carrying on business
there, and on that ground alone it is taxed. There is no attempt
to tax the capital of the Bank, any more than its profits. The
bank itself is directly ordered to pay a sum of money.” Nickle
V. Douglas (1875), 35 U. C. R. 126, 37 U. C. R. 51, decided that a
person domiciled in Kingston, Ontario, should not be assessed
upon stock owned by him in the Merchants Bank, which had Its
head office in Montreal, inasmuch as such stock was not property
in the province within the meaning of the Ontario Assessment
Act. In Lovitt v. The King (1910), 43 S. C. R. at pp. 160-1. Anglin,
J., gays: — “The legislature of a British province, which is em-
powered to impose only ‘ taxation -within the province,’ cannot
by legislative declaration make anything property within the
province which would not otherwise be such according to the
recognised principles of English law. If it could, the constitu-
tional limitation upon its power would be a dead letter.” In
connection with Woodruff v. Attorney-Oeneral for Ontario, see
.Treasurer of Province of Ontario v. Patten (1910). 22 O. L. R.
184.

PROVINCIAL SUCCESSION DUTY ACTS. 403

it is ultra vires of a provincial legislature to tax
property not within the province. They held,
therefore, that the Ontario Succession Duty Act
which laid a succession duty upon property, en-
acting (sec. 4) * the following property shall
be subject to a succession duty as hereinafter
provided,’ etc., did not include within its scope
moveable property, being in the case before
them, bonds and municipal debentures, and a
cash balance in a New York bank, locally situate
outside the province of Ontario, which it was
alleged that the testator, a domiciled inhabitant
of the province, had transferred in his lifetime,
with intent that the transfers should only take
effect after his death. Their lordships say
(p. 513) : ” The pith of the matter seems to be
that the powers of the legislature being strictly
limited to * direct taxation within the province,’
any attempt to levy a tax on property locally sit-
uate outside the province is beyond their com-
petence. . . Directly or indirectly the conten-
tion of the Attorney-General involves the very
thing which the legislature has forbidden to the
province — taxation of property not within the
province.” Holding, then, that the provincial
legislature can only tax property locally situate
in the pro^nnce, the Board naturally make no ex-
press reference to the maxim mohilia sequuntur
personam^ or mobilia ossibus inlicerent, referred
to in the judgments below.

In the subsequent case of Bex v. Lovitt,**
however, they had occasion to do so. They there

*• [1912] A. C. 212. Reported below, 43 S. C. R. 106, 37 N. B.
558. And see further, as to these maxims, infra, pp. 404-7.

404 CANADA’S FEDERAL SYSTEM,

held that, where a testator resident and domi-
ciled in Nova Scotia, was at the date of his death
possessed of a sum of money deposited in a New
Brunswick branch of the Bank of British North
America, the head office of which is in Lon-
don, which was paid to his executors after
they had obtained ancillary probate in New
Brunswick, the executors were liable to pay
succession duty under the New Brunswick
Succession Duty Act, 1896, by which all pro- –
perty situate within the province is made
liable to succession duty whether the deceased
was domiciled in that province or not. They held,
in the first place, upon the decisions respect-
ing branch banks, that the debt of the bank to
the deceased was property situate within New4
Brunswick/* The defendants, however, con-
tended that the situation of the obligation of the
bank, the property in question, was to be deter-
mined, not by its actual locality, but according
to the principle expressed in the maxim mohilia
sequuntur personam, so that, in this view, the
property was neither in London nor in New
Brunswick, but in Nova Scotia. Their lord-
ships, therefore, explain this maxim as one aris-
ing from a general English rule of construction
of statutes relating to legacy and succession –
duties, namely, that the duties are intended to be
imposed only on those who become entitled by
^ virtue of English law ; from which it follows that
moveable property situate in England of o^e
who dies domiciled abroad is exempt, inasmuch
as in respect to the distribution of such property,

** See at p. 219.

I

PROVINCIAL SUCCESSION DUTY ACTS. 405

English Courts act, not on English law, but on
the law of the domicile. Those who succeed to
such property succeed to it, not by virtue of
English law, but by virtue of the law of the domi-
cile. They continue : *’ The principle or practice
thus defined is considered just and expedient as
between nations, and our Courts give it full
effect in the construction of taxing statutes, both
English and Colonial, but its application may be
excluded by the use of apt and clear words in a
statute for the purpose . . Here the legisla-
ture of New Brunswick has expressly enacted
that all property situate in the province shall be
subject to a succession duty though the testator
may have had his fixed place of abode or domicile
outside the province. The Act purports to ex-
clude the application of the maxim mohilia se-
quuntur personam as regards personal estate
within the province belonging to persons domi-
ciled elsewhere, but to retain it as regards the
property of New Brunswick citizens situate out-
side the province. ” ”

Here, then, we have two decisions of the
Pri^^ Council, one that a provincial legislature
cannot place a tax directly on property locally,
situate outside the province— and the other that
a provincial legislature can place a tax upon pro-

* The Act purported to bring within the scope of the succes-
sion duty: —

(a) All property situate within the province whether the
deceased was domiciled there or not;

(6) All property outside the province belonging to persona
domiciled therein; and

(c) All property outside the province belonging to persons
not domiciled therein, if such property were devised to a person
resident therein.

406 Canada’s federal system.

perty locally situate inside the province to which
a person succeeds under a will or an intestacy,
notwithstanding that the deceased 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.

The question remains : Can a provincial legis- <^ lature 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 property, by suc- cession, to a person in the province? In King -^ V. Cotton*^ the majority of the Supreme Coui*t have held that it can. The Court there was called on to apply the Quebec Succession Duty Act to moveables, having a local situs outside the province, which formed part of the succes- sion of a decedent domiciled within the province. The legislation in question imposed a tax on the transmission owing to death of * moveable and immoveable property ' in the province, cal- culated upon the value of the property trans- mitted; and specially provided that the word * propei^ty ' should include ' all moveables, wherever situate, of persons having their domi- cile (or residing) in the province of Quebec at the time of their death.' The Court (Davies and Anglin, J J., dissenting), held, that the moveable property in question, being bonds, stocks, promissory notes, jewellery and pictures, actually situate in the United States at the date of the demise of the decedent, and forming part *• (1912) 45 S. C. R. 469. Reported below, R. J. Q. 20 KB. 162. PBOVINCIAL SUCCESSION DUTY ACTS. 407 of Ms estate, was subject to the duty imposed by the Act, distinguishing Woodruff v. Attorney- General for Ontario" Thus Fitzpatrick, C.J., says (p. 477) : ** There is no question here of an attempt to tax property situate beyond the juris- diction ; the Quebec statute merely fixes the con- ditions subject to which it gives a good title to the property of the deceased. In a word, the tax is imposed as a condition of the devolution." At p. 475, he says: '' By the law of the domicile of the deceased, the title under which the heirs receive the estate, the moveable property of the deceased, wherever situate, is governed. In such a case the maxim of mobilia ossihus inhcerent finds its application." Although, however, that maxim may be thus cited to justify, as it were, the legislation, it can have no bearing on the question of its constitutional validity; nor does his lordship say it has. Idington, J., distin- guishes the Woodruff case in the same way.** At pp. 492-6 he says : * ' I cannot think any doubt can exist as to the right to tax the transmission. . . . I cannot assent to the . . . assump- tion that * direct taxation within the province ' necessarily means only taxation in respect of property physically within the province. . . . A man may be domiciled within a province, and can be made answerable for taxes imposed upon him in respect of property outside the province, but over which the laws of the province may " [1908] A. C. 508. *• Pages 487-8, 492-6. As Idington, J., points out, in the Wood- ruff case, the property in question had actually been transferred to another person in the lifetime of the deceased; but that do«6 not seem to affect the ratio decidendi of that decision.. 408 Canada's federal system. have given him the only foundation he can have for dominion or legal possession. For example, a man domiciled within a province may build railway cars, and lease them to one of the rail- way companies running into the United States, and sometimes have them at home and some- times abroad. Can he not be taxable in respect of such property? . . Then we have the in- come tax which forms no mean part of the aggre- gate municipal taxation. Yet it often rests on no other foundation in law than the domicile of the man taxed. The income tax has never been questioned. Yet the sources from which the in- come flows may be in every quarter of the globe. . . Surely the fact that the income may never have reached home, and may be left abroad to earn more, is not to determine the power of im- posing such a tax ": and he cites Bank of To- ronto V. Lamhe,*"^ on the point of taxation of in- come not being indirect. At pp. 498-9, he says: "'Direct taxation within a province, ' and * direct taxation of pro- perty within a province ' are, I submit, not inter- changeable terms. It is the former term that is used, and if the meaning of the latter term was what it purposed, surely it would have been so expressed. And when we find the Privy Council has not adhered to the literal expression of the same power by limiting it to the * revenue for provincial purposes,' but has, heretofore, found in that, despite the words used, power to delegate * (1887) 12 App. Cas. 575. 8ed gtuere: Is there not a well recognized distinction between a tax on property, and a tax on income? PROVINCIAL SUCCESSION DUTY ACTS. 409 it to corporate municipal and school boards," I do not think we should seek, in another spirit of interpretation, relative to words in the same sentence, to restrict the power by something not expressed, and to something quite unusual." Duff, J., at p. 507, says: " The point for con- sideration, then, is this: Was the authority (which the provinces unquestionably possessed before Confederation) to impose duties upon, or in respect of, the benefits acquired under a succession comprising in fact extra-territorial moveables, abrogated by the provision of the British North America Act, which limits the provincial power of taxation to ' taxation within the province?' . . . On what ground are we so to restrict the words * taxation within the pro- evince ' as to exclude such successions from the taxing authority of the province? There ap- pears to be no groimd for doing so. The possi- bility of those words being so restricted does not appear to have occurred to the Judicial Commit- tee when considering the case of Lovitt v. The King/"' In his dissenting judgment, however, in this case. Da vies, J., held that the effect of the gen- "See supra, pp. 69-73; 400. " [1912] A. C. 212. Vhe learned judge seems to mean that, as in the Lovitt case the Court held that property in the pro- vince could be taxed, on succession, although the decedent was domiciled out of the province; why, then, cannot the succession to property out of the province be taxed where the decedent was domiciled in the province? If one is taxation ' within the pro- vince,' why is not, also, the latter? In Re Renfrew (1898), 29 0. R. at p. 569, Street, J., says: "There is no doubt that it was within the powers of our legislature to have enacted that the property of a deceased person situate outside the province should be considered in arriving at the aggregate value of the property of the deceased." 410 CANADA 8 FEDERAL SYSTEM. ']| eral language in Woodruff v. Attorney-General for Ontario" cannot be so cut down; and that that judgment was not based upon the mode in which the Ontario legislature attempted to levy succession duties there in dispute, but upon the denial of the existence of any constitutional power in the legislature, either directly or in- directly, to impose such duties upon property not within the province. Anglin, J., took a simi- lar view. He says (p. 539) : *' The view which I take of the British North America Act provision is that it should be read as authorizing direct tax- ation only where the real subject of the tax — whether person, business, or property — is within the province . . . Under the Quebec Act imposing death duties, for the reasons I have stated, I am of the opinion that the real subject of taxation is the property passing, notwith- standing the clearly expressed intention of the legislature to fasten the tax upon the transmis- sion;" and (at pp. 540-541) he points out, with much force, if one may presume to say so, that in the Woodruff case, the Attorney-General for Ontario argued, as reported, that *' the duty claimed was not a tax on property, but a tax on the devolution or succession: the duty was im- posed on persons beneficially entitled . . .; the persons taxed were resident in the province ; " but that the Judicial Committee replied to this : — ** Directly or indirectly, the contention of the Attorney-General involves the very thing which the legislature has forbidden to the province — taxation of property not within the province;" •*ri9081 A. C. 508. PROVINCIAL INDIRECT TAXATION. 411 and he quotes their further words: ** The pith of the matter seems to be that, the power of the pro- vincial legislature being strictly limited to ' dir- ect taxation within the province, ' any attempt to levy a tax on property locally situate outside the province is beyond their competence."" Provincial indirect taxation. — This seems the most convenient place to consider the general subject of provincial taxation, apart from No. 2 or No. 9 of section 92, which, unless we consider No. 15 should be included, are the only clauses in the Federation Act, excepting section 124 con- cerning New Brunswick lumber dues," which give express powers of taxation to provincial legislatures, and all relate to direct taxation." If, then, the provinces have any powers at all of indirect taxation, it can only be such indirect taxation as is of * a merely local or private nature in the province,' within the meaning " And see supra, pp. 402-3. As to its making no difference, if the property in respect to which the impost be exacted, is in the hands of executors within the province, — that the duties are declared by the Act imposing them to be payable at the date of the death, when, ex hypothesi, the property had not a situs with- in the province, except constructively: see per Duff, J., in Lovitt V. The King (1910), 43 S. C. R. at pp. 143-4. He there saya: — " The declaration that the duties should be payable at death, or within one year thereafter, appears to have been intended to afford a basis for levying interest from the date of death in de- fault of payment when due. Such incidents of the tax appear to me, once It is clear that the legislature is aiming alone at pro- perty within the province, to be unobjectionable; and, in any view. I can see no difficulty in giving to every part of the provi- sion its full application as regards assets which by legal con- struction are considered New Brunswick assets in the hands of the executors at the date of the testator's death." ** See supra, p. 393, n. "As to No. 9 of section 92, see infra, pp. 433-445. 412 Canada's federal system. of No. 16 of section 92, or such indirect taxation as is incidental to the exercise of the other ex- press powers conferred by section 92. And, moreover, any such provincial power of indirect taxation is obviously greatly restricted by sec- tion 121, which provides that ' all articles of the growth, produce, or manufacture, of any one of the provinces shall, from and after the Union, be admitted free into each of the other pro- vinces;' and by section 122, which places cus- toms and excise laws under the Dominion juris- diction. Thus these two sections place beyond provincial control the main field of indirect tax- ation, and, speaking generally, it may therefore be, without doubt, correctly said that the pro- vinces are confined to direct taxation." But it does not seem to follow that the pro- vincial legislatures may not have a limited power to impose indirect taxation either under No. 16 of section 92, in which case it would have to be imposed under such circumstances and condi- tions as to make its imposition a merely local matter in the province — but, as has been seen," a subject-matter of legislation may be this, and yet may extend in its operation over the whole province — or as incidental to one of their other express powers. Some of these seem to clearly suggest power of taxation, as No. 4 ' the pay- ment of ofl&cers, ' — No. 6, * the maintenance ' of •• It would seem in this general sense that the Privy Council were speaking in Bank of Toronto v. Lambe (1887), 12 App. Cas. at p. 586. Cf. 8t. Catharines Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. at p. 57; Dow v. Black (1875), L. R. 6 P. C. at p. 282; Lamonde v. Lavergne (1894), R. J. Q. 3 Q. B. at p. 314; Legislative Power in Canada, p. 731, n. 2. •' See supra, pp. 140-3. f I PROVINCIAL INDIRECT TAXATION. 413 public and reformatory prisons in and for the province, — No. 7 * the maintenance ' of hospi- tals, etc., — No. 14 * the maintenance ' of pro- vincial courts; and there is not a word in them to limit such taxation to direct taxation. In Bank of Toronto v. Lamhe,''^ in the Quebec Court of Queen's Bench, Ramsay, J., claims the Privy Council judgment in Dow v. BlackJ"* as direct authority that Nos. 2 and 9 do not ex- clude from the power of provincial legislatures the right to impose other forms of taxation, as, for example, under No. 16 of section 92; and points out the curious clerical error in the report of their lordships' judgment where * 9th article of section 92,' is printed, instead of * 16th article of section 92.' So, too, several of the Supreme Court judges in Attorney-General v. Reed''^ express views on the whole favourable to a provincial power of imposing indirect taxes under No. 16 of section 92, or as incidental to some of the other of their express powers under that section.'^ The decision of the Quebec Court of Queen's Bench in Bank of Toronto v. Lambe,'^ may perhaps be claimed as a direct decision on " (1885) M. L. R. 1 Q. B. at p. 192. See, also, per Baby, J., S. C. at pp. 197-9. " (1875) L. R. 6 P. C. 272, at p. 282. C/. per Dorion, C.J., in B” (1889) 6 Man. at p. 57.
‘” (1891) 21 0. R. at p. 162.

430 Canada’s federal system.

to invest the Master in Chambers at Toronto with
authority to try controverted municipal election
cases, for, as observed by MacMahon, J. (p. 173) :
‘* As the provincial legislature has the exclusive
right to make laws relating to municipal institu-
tions, it carries with it the authority to create the
tribunal for the trial of contested elections.”
No. 8 is here, of course, supplemented by No. 14,
‘the administration of justice^ln the province;’
and so, in Clarke v. Jacques,’^”^ it was held that
by virtue of these two powers, the provincial
legislature might regulate the matter of appeals
in controverted municipal elections.

Discriminating against aliens.'” — ^A British
Columbia Act of 1900, whereby it was enacted
that no Chinaman, Japanese, or Indian should
be entitled to vote at any municipal election for
the election of mayor or alderman, was allowed
to go into operation, on the ground, apparently,
that it was intra vires under section 92 of the
Federation Act ; and that the rights or privileges
of the Japanese residents of British Columbia, if
prejudicially affected, were not sufficiently so to
warrant interference.”* But in a despatch from
the Colonial Office to the Foreign Office of
August 8th, 1901, we find the opinion expressed
that such an Act is ultra vires; and No. 24 of
section 91 (‘ Indians and land reserved for In-
dians ^), SiS well as item 25 (* naturalization and
aliens ‘), is curiously enough referred to.'””

“* ri900) R. J. Q. 9 Q. B. 238.

“” See supra, pp. 303-312.

“•Provincial Legislation, 1899-1900, p. 139.

^^ Ibid., p. 144. See supra, p. 388; and infra, p. 442.

I

MUNICIPAL INSTITUTIONS. 431

Dominion power over municipal corpora-
tions. — In In re Canadian Pacific R. W. Co. and
County and Township of York,^^^ in connection
with the Dominion power to compel municipali-
ties to contribute to the cost of protecting rail-
way crossings over federal railways,'” Rose, J.,
says: ‘* It must be borne in mind that when the
parliament of Canada is legislating respecting
any subject within its exclusive legislative auth-
ority, its jurisdiction and powers cannot be
affected, limited, or controlled by any provincial
legislation; it deals with the Dominion as a
whole, irrespective of any territorial divisions,
municipal or otherwise.”” Therefore, if a pro-
vincial legislature sees fit to create a municipal
corporation, and to vest in such corporation
highways or lands, such legislation manifestly
cannot prevent the parliament of Canada from
dealing with such lands so vested in such corpor-
ation, and the corporation in which they are
vested, in the same way and manner as if such
lands had been in the hands of private citizens.”

The cases, again, of Hart v. Corporation of
the County of Missisquoi,^^^ Cooey v. Municipal-
ity of the County of Brome/”^* and Township of
Compton V. Simoneau,”^^^ suggest the possibility
of powers and functions being conferred upon
municipal corporations by the Dominion parlia-

“• (1896) 27 O. R. 559, at p. 569.

*” As to which see now City of Toronto v. Canadian Pacific R.
W. Co., [1908] A. C. 54; and supra, pp. 170-2.
‘” As to this, see supra, pp. 123-7.
“‘ (1876) 3 Q. L. R. 170.
“* (1872) 21 L. C. J. 182.
“• (1891) 14 L. N. 347.

432 Canada’s fedekal system.

. ment, in respect to matters not of provincial com-
petency under the British North America Act.
In Cooey v. Municipality of the County of
‘Brome,^^^ Dunkin, J., observes: ” Each provin-
cial legislature, alone, can create municipalities,
properly so called, establish their functionaries,
and assign them their proper duties and their
powers, but always within the limits of its own.
Whether or not it can render them incapable
of other duties and powers to be delegated by
Parliament, is a question that need not here be
considered. ” ‘” And in In re Prohibitory Liquor
Laws,^^^ Sedgewick, J., says: ” Regulations made
by Dominion law as well as by local law must be
enforced by some sort of machinery. Parlia-
ment, I think, may use existing municipal mach-
inery for this purpose; may in respect to
those subjects committed to it, such, e.g.,
as weights and measures, the fisheries in-
spection, navigation, etc., give to municipal
councils power to make by-laws. ‘ ‘ But it would
seem from Grand Trunk R. W. Co. v. City of
Toronto,^^^ that the Dominion parliament can-
not give new corporate powers to municipal cor-
porations, or confer upon them capacities which

“• 21 L.. C. J. at p. 186.

“‘Under No. 8 of section 92, in conjunction with No. 14
(‘the administration of justice in the province’) the provincial
legislature may provide for the trial of contested municipal
elections: Reg. ex rel. McGuire v. Birkett (1891), 21 O. R. 162;
Crowe v. McCurdy (1885), 18 N. S. 301; and regulate the matter
of appeals therein: Clarke v. Jacques (1900), R. J. Q. 9 Q. B. 238.

“» (1885) 24 S. C. R. at p. 247. Mr. Clements cites the Canada
Temperance Act as one example of powers conferred and duties
imposed upon municipalities by federal law (Law of Canadian
Constitution, 2nd ed., p. 265, n. 4.)

“• (1900) 32 O. R. 120, 125.

A

PROVINCIAL LICENSING POWERS. 433

the provincial legislation has not given them,
e.g ; the legal capacity to acquire and make new
streets across Dominion railways.””

9. Shop, saloon, tavern, auctioneer, and
other licenses, in order to the raising of a re-
venue for provincial, local, or municipal pur-
poses.

‘Other licenses.’ — Privy Council decisions
have now removed several points of uncertainty
in respect to the proper construction of this sub-
section, and the scope of the power by it confer-
red on provincial legislatures. To begin with,
many judges in our own Courts,”^ though not
all,”^ had felt themselves constrained to inter-
pret * other licenses ‘ by the rule of ejusdem
generis. In Russell v. The Queen,^’^^ however,
the Judicial Committee indicated that, in their
view, these words did not refer only to licenses

“” See. however, supra, pp. 354-5. As to Dominion Com-
panies, incorporated under the enumerated classes of powers in
section 91, being exempt from municipal control in respect to
the exercise of their charter powers, see suvra, pp. 339-343.

“•For cases, see Legislative Power in Canada, pp. 27, n. 1;
726, n. 2. To the cases there referred to may be added City of
Halifax v. Western Assurance Co. (1885), 18 N. S. 387.

“»Por cases, see ibid. In Lee v. de Montigny (1899), R. J. Q.
15 S. C. 607, Langelier, J., held that a provincial Act authorizing
the City of Montreal to require laundries to take out a license
was intra vires, resting the right, erroneously as it is, with
deference, submitted, on No. 8 of section 92, as relating to muni-
cipal institutions. See supra, pp. 426-9. In Re Foster and
Township of Raleigh (1910), 22 O. L. R. 26, 342, a provincial Act
exacting payment of an annual license fee for keeping billiard
tables for hire was held valid.

“» (1882) 9 App. Cas. 829.

C.F.S.— 28

434 Canada’s federal system.

ejusdem generis as the shop, saloon, tavern, and
auctioneer licenses expressly mentioned (if in-
deed these can be comprised within any one
genus), for they speak there obiter of ” licenses
granted under the authority of sub-section 9, by
the provincial legislature, for the sale or carry-
ing of arms.” And in the Fisheries case,'”*
they speak of provincial legislatures being able
to impose the obligation of obtaining a license,
as a condition of the right to fish, in order to
raise a revenue for provincial purposes/” Fin-
ally, in the Brewers and Maltsters Association
case,'”** going beyond what was absolutely neces-
sary to dispose of the appeal, they say: ‘* Their
lordships were not satisfied by the argument of
the learned counsel for the appellants that the
license which the enactment renders necessary ”
(so. a license on brewers and distillers to sell
wholesale within the province), ” is not a license
within the meaning of sub-section 9 of section
92. They do not doubt that general words may
be restrained to things of the same kind as those
particularized, but they are unable to see what
is the genus which would include * shop, saloon,
tavern, and auctioneer ‘ licenses, and which
would exclude brewers’ and distillers’ licenses;”
and thus they destroy the authority of Severn
V. The Queen,^” upon the one point on which, if
any, its authority remained unimpaired.””

“•[1898] A. C. 700.

“■And see International Text Book Co. v. Broion (1907), 13
0. L. R. 644.

“• [1897] A. C. 231.

»” (1878) 2 S. C. R. 70.

*”A provlBclal legislature, legislating to prevent the sale of
Intoxicating liquor without a license, may prohibit within de-

il

Jl

PROVINCIAL LICENSING POWERS. 435

Taxation by license is direct taxation* —
Again some judges in Canadian Courts had ex-
pressed the view that taxation by means of
licenses under this sub-section was indirect
taxation/” whereas, as has been already
pointed out, in the Brewers and Maltsters
Association case, the Privy Council has de-
cided that it is direct taxation, within No.
2 of section 92.”° With deference, it is
submitted that the probable explanation of
the sub-section imder consideration is that it
was intended by it to authorize the provinces to
raise a revenue by the licenses referred to, al-
though some doubt might exist as to whether this
was not indirect taxation.’^^ And that provincial
legislatures must not, under colour of licenses,
tax indirectly, is declared by the judgment of
the Privy Council, in Attorney-General of Que-
bec V. Queen Insurance Co.”^ where it was held
that a certain Quebec Act, entitled ‘ An Act to
compel assurers to take out a license, ‘ and which
purported to be, on the face of it, an exercise of
the power conferred by No. 9 of section 92, was
not, in substance, a license Act at all, but a simple
Stamp Act on policies, and was indirect taxation,

fined areas the sale of any liquid containing any alcohol at all,
even though not in intoxicating quantities: The King v. Bigelow
(1907), 41 N. S. 499.

“* See Legislative Power in Canada, p. 361, n. 2.

»* Supra, pp. 394-6.

“”And so per Spragge, C.J., in Regina T, Frawley (1882),
7 O. A. R. at p. 264; per Maclaren, Q.C., arguendo in In re Prohi-
litory Liquor Laws (1895), 24 S. C. R. at p. 179; per Davey, Q.C.,
arguend^o in the Matter of the Dominion License Acts, 1883-4:
Transscript from Marten and Meredith’s Shorthand Notes, at
pp. 126, 131.

“» (1878) 3 App. Cas. 1090.

436 Canada’s fedeeal system.

and ultra vires. As a matter of fact, the Act did
not compel the supposed licensee to take out, or
pay for, a license, but merely provided that * the
price of such license ‘ should consist of an adhe-
sive stamp to be paid in respect to each trans-
action, not by the licensee, but by the person who
dealt with him. And in the Brewers and Malt-
sters Association case, their lordships say; ” If
the legislature were under the guise of direct
taxation, to seek to impose indirect taxation,
nothing that their lordships have decided or said
in the present case would fetter any tribunal
that might have to deal with such a case if it
should ever arise.”

Applicable to wholesale as well as retail busi-
nesses. — Again it had been held by the Supreme
Court,'” that this power of taxing by way of
licenses did not authorize a pro^dncial legislature
to impose a license fee on brewers, though, of
course, it did a tax upon retail shop, saloon, and
tavern keepers. And in several provincial Courts,
judges had expressed the view that wholesale
trade had a quasi-national, rather than munici-
pal character, and comprised the trade and com-
merce of the country in some fuller sense than
the retail trade ; and that, thus, a line of cleavage
between Dominion and pro\dncial powers was to
be f oimd in the distinction between wholesale and
retail trade.”* But in The Queen v. McDou-
gall,”^ Townshend, J., relying on the decision of
the Judicial Committee in the Matter of the

‘*’ Severn v. The Queen (1878), 2 S. C. R. 70.
*** See Legislative Power In Canada, p. 727, n. 3.
“• (1889) 22 N. S. at p. 491.

I

WHOLESALE AND RETAIL. 437

Dominion License Acts, 1883-4,”‘ 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 Amer-
ica Act, has been abandoned;” ^” for the Board
there found that nothing turns, so far as legisla-
tive power is concerned, upon the fact that those
affected by the statutory provisions in question
dealt in wholesale quantities, and not in retail
quantities/^^ And in the Liquor Prohibition
Appeal, 1895,”° they, in like manner, draw no dis-
tinction whatever between the sellers of liquors
in wholesale quantities, and other sellers, and
say of the Canada Temperance Act, 1886 : ” They
draw an arbitrary line at eight gallons in the case
of beer, and at ten gallons in the case of other
intoxicating liquors, with the view of discrimin-
ating between wholesale and retail transactions.”
And now, as we have seen,”” in Brewers and
Maltsters Association of Ontario v. Attorney-
General for Ontario,^*”^ their lordships have held
that the license fees imposed by the Ontario Act
before them being direct taxation, the Ontario
legislature had power to impose them, although
those affected were wholesale dealers, selling by
wholesale being defined by the Act, as selling in

“•Gas. Dig. S. C. 509.

“^And so In Regina v. nalliday (1893), 21 O. A. R. at p. 44,
Boyd, C, says that the regulation of the liquor traffic, both
wholesale and retail, must now be considered to be a matter of
provincial competence.

“• See further as to the matter of the Dominion License
Acts, 1883-4; Legislative Power In Canada, pp. 403-6, 727-9.

“» [1896] A. C. 348, at pp. 367-8.

^*’ Supra, pp. 394-6.

‘” [1897] A. C. 231. \

438 CANADA^S FEDERAL SYSTEM.

quantities of not less than five gallon casks, or
one dozen bottles, etc., the distinction between
wholesale and retail trade being treated, as has
always been usual in our statutes and judicial
utterances, as depending on the quantity sold.”*
Thus, as in the matter of the Dominion Liquor
License Acts, 1883-4, where the object of the
legislation was mainly regulation of the liquor
traffic, so in the Brewers and Maltsters Associa-
tion case, when the main object of the Act before
them was to raise a revenue for provincial pur-
poses, the Privy Council finds nothing turns, so
far as legislative power is concerned, upon the
fact that those affected by the statutory provi-
sions dealt in wholesale quantities, and not in
retail quantities.

* In order to the raising of a revenue.’ —

The licensing power under sub-section 9, is thus
restricted; as has been called attention to in
many judgments. Thus in Severn v. The
Queen^*^ Strong, J., says: ** The imposition of

**• What would seem the more essential difference between
wholesale and retail trade, namely, that the wholesale merchant
supplies the trade, whereas the retailer deals directly with the
general public; and whether any line of severance of legislative
power can be founded on this distinction, does not appear to
have been discussed in any of the cases, except so far as the
wholesale merchant in this sense may be identified with the
manufacturer, as to whom, in the Liquor Prohibition Appeal,
1895, just referred to, the Privy Council expressed the opinion
(at p. 371), that under certain circumstances the provincial
legislatures might have power to control his business in the
absence of conflicting legislation by the parliament of Canada.
They do not hold that the mere fact that he is a wholesale
manufacturer, and not a retail dealer, determines under which
legislative Jurisdiction he falls.

‘*» (1878) 2 S. C. R. at pp. 108-9.

i

PROVIXCIAL LICENSING POWEBS. 439

licenses authorized by this sub-section 9 of sec-
tion 92 is, it will be observed, confined to licenses
for the purposes of revenue, and it is not to be
assumed that the provincial legislatures will
abuse the power, or exercise it in such a way as
to destroy any trade or occupation. Should it
appear explicitly on the face of any legislative
Act that a license tax was imposed with such an
object, it would not be a tax authorized by this
section, and it might be liable to be pronounced
extra vires/ ^^** And so in Russell v. The Queen,”^**
their lordships say: ** It is to be observed that
the power of granting licenses is not assigned to
the provincial legislatures for the purpose of
regulating trade, but in order to the raising of
a revenue for provincial, local, and municipal
purposes.”

Licenses as a method of police regulation.—
But, quite apart from No. 9 of section 92 of the
Federation Act, there seems nothing to prevent
provincial legislatures imposing the necessity o:*”
obtaining licenses, as a method of police regula-
tion.”‘ And so in O’Danaher v. Peters/” where
the New Brunswick Liquor License Act, 1887,
was held intra vires in imposing the necessity of
taking out a license on wholesale sellers of liquor,
no mention is made of No. 9 of section 92 at all ;
but it would seem that the Act was ^dewed in the
light rather of police regulation. And in Hamil-

***For other like citations, see Legislative Power in Canada,
p. 376, n. 3.

>• (1882) 7 App. Gas. 829.

***As to which, see infra, pp. 580-627; supra, pp. 206-9.

»” (1889) 17 S. C. R. 44.

440 Canada’s federal system.

ton Potvder Co. v. Lamhe,^*^ a Quebec Act requir-
ing those who stored, or kept, gunpowder in any-
building, to take out a license under a penalty-
was upheld as being in the nature of a police
regulation, and not as coming within No. 9 of sec-
tion 92. And in O’DanaJier v. Peters, Tascher-
eau, J., remarks: ” Whether he ” (the defend-
ant) ” sold wholesale or retail is immaterial, it
is not because he sold a large quantity that he can
claim to have the action against him dismissed;”
and Patterson, J., says: ** The power of the local
legislatures to provide for the issuing of licenses
for the sale of spirituous liquors, either in large
or small quantities, to limit the niunber of li-
censes, and to prohibit, under penalties, the sale
of such liquors without a license, cannot now be
treated as an open question.” And so there
would seem no doubt, in accordance with what
has already been said as to the distinction be-
tween wholesale and retail trade, that, as under
the American decisions cited by Ritchie, E.J.,
in Keefe v. McLennan/*’ so in Canada, the power
of police regulation extends to wholesale trade,
though in Severn v. The Queen/^”” Strong, J., ex-
pressed the view, apparently concurred in by
Ritchie, and Taschereau, JJ.,”^ though a point
not necessary to be decided for the disposition of
the case, that the wholesale trade in liquor is
not a proper subject of police regulation, though
the retail trade of course is.

»*• (1885) M. L. R. 1 Q. B. 460. See, also, City of Montreal
V. Walker (1885), M. L. R. 1 Q. B. at p. 472.

»- (1876) 2 R. & C. at p. 12.

«• (1878) 2 S. C. R. at pp. 105-6.

•*» lUd., at pp. 100-2, 115. See, also, per Strong, J., in 7n re
Prohibitory Liquor Laws (1895), 24 8. C. R. at p. 204,

PROVINCIAL LICENSING POWERS. 441

Not restricted to ante -Confederation licenses.
— Some judges have favoured the view that, in
taxing by means of licenses under No. 9 of sec-
tion 92, provincial legislatures are confined to
licenses of the same kind as those in existence in
the provinces before Confederation.^^^ The diffi-
culties of such methods of interpretation of the
powers conferred by the British North America
Act, have, however, already been pointed out.”‘
And the weight of authority seems clearly in
favour of the view expressed by Strong, J., in
Severn v. The Queen,^^* who referring to the
judgment of Richards, J., in that case, and in
Slavin v. Village of Orillia,^’^^ says: ” I am un-
able to accede to the doctrine that we are to attri-
bute to the words * other licenses ‘ ” (sc. in No.
9 of section 92), ” the same meaning as though
the expression had been *such other licenses as
were formerly imposed in the province, ‘ or equi-
valent words. The result of such a construction
would be that the same words would have a dif-
ferent meaning in different provinces, and that
the several provincial legislatures would have
different powers of taxation, though the power is
included in the same grant . . I cannot
think this was the intention of the Imperial par-
liament. I think everything indicates that co-
equal and co-ordinate legislative powers in every

“‘See Slavin v. Village of Orillia (1875), 36 U. C. R. at p.
176; per Richards, C.J., in Severn v. The Queen (1878), 2 S. C.
R. at p. 87; Keefe r. McLennan (1876), 2 R. & C. at p. 12. And
see Legislative Power in Canada, at pp. 44-49.

“* Supra, pp. 15-16.

•” (1878) 2 S. C. R. at p. 109.

” (1875) 36 U. C. R. 159.

442 Canada’s federal system.

particular, were conferred by the Act on the
provinces/” and I know of no principle of inter-
pretation which would authorize such a reading
of the British North America Act as that pro-
posed.” “^ And so in the course of the argument
in the Brewers and Maltsters Association case/”^
Lord Herschell observed: ** There is very great
difficulty in construing section 92, which applies
to all the provinces, and saying that the powers
of the provincial legislature would differ accord-
ing to what had been done by the provinces
prior ” to Confederation.”‘

Discriminating against aliens. — ^In 1900 the
British Columbia legislature passed an Act
whereby Mongolians and Indians were excluded
from those who might sign petitions for liquor
licenses, which, though objected to, was not dis-
allowed by the Dominion Government, on the
ground, apparently, that it was intra vires under
section 92 of the Federation Act, and that the
rights or privileges of the Japanese residents of
British Columbia, if prejudicially affected, were
not sufficiently so to warrant interference.””

“• See supra, pp. 159-160.

“‘ It must be admitted, so far as Strong, J., is concerned, that
in Huson v. Tovmship of South Norwich (1895), 24 S. C. R. at
pp. 150-1, he withdrew from the position he took up in the above
passage, and says: — “These observations were not material to
the judgment I then gave, which was founded entirely on the
9th sub-section of section y2, and I have now come to the con-
clusion that they were not well-founded.”

“• [1897] A. C. 231. Manuscript transcript of Marten, Mere-
dith and Henderson’s Notes, p. 80.

>* As to the power of provincial legislatures to require extra-
provincial oompanies to take out licenses before doing busiaess
In the province, see supra, pp. 373-7.

‘”Provincial Legislation, 1899-1900, at pp. 134-138. And see
supra, p. 430.

I

m

DOMINION LICENSING POWERS, 443

The Dominion, also, can tax and regulate by
way of license. — It is, almost, unnecessary to
cite authority for the proposition that the Dom-
inion parliament can also tax by way of license.
However, in the Fisheries case,^” their lord-
ships say: ** In addition to the legislative power
conferred by the 12th item of section 91 (‘ Sea
Coast and Inland Fisheries ‘), the 3rd item of
that section confers upon the parliament of
Canada the power of raising money by any mode
or system of taxation. Their lordships think it
is impossible to exclude, as not within this power,
the provision imposing a tax by way of license
as a condition of the right to fish. It is true that
by virtue of section 92, the provincial legislature
may impose the obligation to obtain a license in
order to raise a revenue for provincial purposes,
but this cannot, in their lordships’ opinion, dero-
gate from the taxing power of the Dominion
parliament, to which they have already called
attention. Their lordships are quite sensible of
the possible inconveniences, to which attention
was called in the course of the arguments, which
might arise from the exercise of the right of
imposing taxation in respect of the same subject-
matter, and within the same area by different
authorities. They have no doubt, however, that
these would be obviated in practice by the good
sense of the legislature concerned.”‘” Again,

^” A.ttomey-General for the Dominion v. Attorney-Oeneral for
the Provinces, [1898] A. C. at pp. 713-4.

^•^ See, also, as to both the Dominion parliament and the
provincial legislatures having power to tax by way of license:
per Ritchie, C.J., in Severn t. The Queen (1878), 2 S. C. R. at
p. 101 ; per Taschereau, J., in Angers v. The ^Queen Insurance Co.
(1877), 16 C. L. J. N. S. at pp. 204-5.

444 Canada’s federal system.

the liquor trade is as much part of the trade and
commerce of the country as any other trade, and,
therefore, it must be within the power of the
Dominion parliament to regulate it, in any
manner, and in any degree, which comes within
the meaning of No. 2 of section 91 of the British
North America Act, * the regulation of trade
and commerce ; ‘ and notwithstanding some dicta
to the contrary,'” it seems equally clear that the
Dominion parliament in so regulating might
do so by means of licenses. Indeed, as Hagarty,
C.J.O., observes in In re Local Option Act,'” the
Canada Temperance Act, 1878, which the Privy
Council held to be intra vires of the Dominion
parliament in Russell v. The Queen^^^ itself con-
templated the issuing of licenses to brewers and
distillers and manufacturers of native wines.
And so in the course of the argument before the
Judicial Committee in the matter of the Domin-
ion License Acts,”‘ Sir Baines Peacock ob-
serves: ” You could not say that the Parliament
could not create a criminal offence for selling
liquors without a license in the same way as they
might create a similar offence for carrying arms
without a license, or manufacturing dynamite
without a license.” As Palmer, J., says in Ex
parte Donaher,^” ” constitutional limitations

“•As per Fournier, J., in MoJson t. Lambe (1888) 15 S. C. R.
at p. 265. See, also, per Ritchie, C.J., S. C. at p. 259, and per
Cartwright, Q.C., arguendo in In re Prohibitory Liquor Laws
(1895), 24 S. C. R. at p. 188.

“♦ (1891) 18 O. A. R. at p. 580.

«• (1882) 9 App. Cas. 829.

“•Transcript from Shorthand Notes of Marten ft Meredith,
at p. 140.

>” (1888) 27 N. B. at p. 590.

I

PROVINCIAL WORKS AND UNDERTAKINGS. 445

look only to results, and not to the means by
which results are reached.”

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 under-
takings connecting the province with any other
or others of the provinces, or extending beyond
the limits of the province:

(b) Lines of steamships between the pro-
vince and any British or foreign country:

(c) Such works as, although wholly situate
within the province, are before or after their
execution declared by the Parliament of Canada
to be for the general advantage of Canada or for
the advantage of two or more of the provinces.

As concerns the sub-divisions (a), (&) and
(c) of this sub-section, being the exceptions to
the general provincial power in respect to local
works and undertakings, these have been fully
dealt with under No. 29 of section 91.”* It re-
mains to note the authorities bearing upon the
power to make laws in relation to local works and
undertakings not within these excepted classes.

Provincial power to authorize construction
of a railway to the limit of a province. — No
doubt, as Garrow, J.A., says in City of Toronto

*”^ See supra, pp. 337-383. As to the Dominion power to
withdraw local works and undertakings from provincial jurisdic-
tion, see supra, pp. 364-371. As to the Dominion power to control
crossings by provincial railways of Dominion railways, see
supra, pp. 350-353.

446 Canada’s pedebal system.

V. Bell Telephone Co.,^^^ speaking of sub-division
(a) of the clause under consideration: ” The
moment it appears in the application for a char-
ter, or special Act, that the projected works or
undertakings will, when constructed, extend be-
yond the provincial boundaries, they take their
place beside railways, canals, ships, etc., having
similar extra-provincial termini; and at once be-
come subjects of exclusive Dominion jurisdic-
tion. ‘ ‘ But the question arises whether a provin-
cial legislature can authorize the construction, or
operation, of such works and undertakings as
railways, or electric light and power transmis-
sion lines, or telephone lines, extending to the
provincial boundary. The European and North
American B, W. Co. v. Thomas^^”^ brought up
this question. There a railway company had
been incorporated by a New Brunswick Act,
passed prior to Confederation, for the purpose
of constructing a railway from St. John to the
boundary of the United States, and its charter of
incorporation was amended after Confederation
by a further provincial Act which it was con-
tended was ultra vires, because the railway was
a part of a scheme for a continuous railway ex-
tending through the province into the State of
Maine. The Supreme Court of New Brunswick,
however, held, that it was intra vires under sec-
tion 92, No. 10, of the British North America
Act, Ritchie, C. J., observing : ** We think we have
no right to look to the intentions, or anticipa-
tions, or doings, of pai-ties outside the provincial

“• 6 O. L. R. at p. 343. In App. [1905] A. C. 52.
“• (1871) 1 Pugs. 42.

PROVINCIAL WORKS AND UNDERTAKINGS. 447

legislature, either in the State of Maine, or in
the province of New Brunswick, and that the in-
tention of the legislature as expressed in the Act,
alone can control us — that the fact of the legis-
lature of the State of Maine authorizing, or its
people intending to construct, or actually con-
structing, a line of railway in that country, can-
not in any way affect the authority of our own
legislature to legislate on, and deal with, railway
undertakings, provided always such railways do
not connect the province with any other or others
of the provinces, nor extend beyond the limits of
the province. This is the simple question, and
all we have to consider in determining on the
validity of the Act. ‘ ‘

In Hewson v. Ontario Power (7o.,”^ how-
ever, where a question arose, although not
material to the decision of the case, as to
whether a provincial legislature could grant an
electric power company the right to connect its
wires with those of United States companies —
Davies, J., with whom Sedgewick, J., expressed
concurrence, says as to this (p. 608) : ” It seems
clear to me that the legislature could not grant a
local company power to connect its wires with
those of a local company in any of the other pro-
vinces. If it could, each company would cease
to be one of a ‘ local or private nature,’ and
become interprovincial and general. How then
could the legislature grant power to connect the
wires of the company it was creating with those
of the companies of a foreign country ? The local
or private company, on such connection taking

»” (1905) 36 S. C. R. 596, 8 O. L. R. 88, 6 O. L. R. 11.

448 Canada’s federal system.

place, would at once cease to be * local or pri-
vate ‘ within the British North America Act,
1867, and become international. It was agreed
that the province has as much right to confer
powers beyond its jurisdiction upon the cor-
poration it calls into existence, as the Dominion
parliament has beyond Canada. In a certain
sense that may be true. But there is a difference
and a rational one too. Provincial charters are
defined by the British North America Act, 1867,
as matters of a local or private natiu’e not con-
necting the province with any other or others of
the provinces, and * not extending beyond the
limits of the province.’ Dominion charters are
not controlled by any such statutory limitations,
and while the exercise of the powers they confer
upon a company of connecting at the interna-
tional boundary line v^th the works of a foreign
company may be subject to the municipal law of
that country, and permitted and controlled by
the comity of nations, there is no statutory pro-
hibition in the British North America Act pre-
venting the granting of the power by the Cana-
dian parliament to a company it incorporates to
connect with a company of the United States at
the boundary line.” But it seems necessary to
point out that No. 10 of section 92 does not
speak of undertakings of a * local and private
nature,’ as the learned judge appears to imply,
but simply of * local works and undertakings ‘ ;
and, furthermore, it distinctly implies that the
classes indicated by (a) and (&), are within what
it means by ‘ local works and undertakings,’
although they are inter-provincial or extend be-
yond the limits of the province, and although

PROVINCIAL WORKS AND UNDERTAKINGS. 449

they are excepted out of the general provincial
power, over * local works and undertakings. ‘
So far, in other words, as the part located within
the province is concerned, they may be consid-
ered local works and undertakings ; but the pro-
vince cannot make laws in relation to them. The
learned judge seems to have had in his mind
the form of expression in No. 16 of section 92,
‘ matters of a merely local or private ‘ nature
in the province.

However, in Dow v. Black,’^'” the Supreme
Court of New Brunswick held ultra vires a pro-
vincial Act empowering the majority of the in-
habitants of a parish in New Brunswick to
raise by local taxation a subsidy designed to pro-
mote the construction of a certain railway ex-
tending beyond the limits of the province into the
State of Maine, but already authorized by statute
prior to Confederation, upon the ground that it
was legislation in relation to a local work or
undertaking extending beyond the limits of the*
province within No. 10 (a) of section 92. The«
judgment of the Privy Council on appeal in this
case'” does not help us, because they took quite-
a different view of the nature of the Act in ques-
tion, holding it valid as direct taxation under No..
2 of section 92.”* But Ministers of Justice have
repeatedly questioned the competency of a pro-
vince to authorize the construction or operation
of a railway to the boundary line of a pro-
vince, or having its two termini upon the bound-

“* (1873) 14 N. B. 300, sub nom. The Queen v. Dow.
“» (1875) L. R. 6 P. C. 272.
“* See supra, p. 400.

c.F.s. — ^29

450 Canada’s fedehal system. %

ary, though abstaining from disallowance, and
leaving the matter to the determination of the
Courts. Thus in a report of January 5th, 1901,
in reference to certain British Columbia statutes,
the Minister of Justice quotes the exception No.
10 (a) and says: ‘* In view of the fact that the
works and undertakings with regard to which a
province may legislate must be local, and ha\4ng
regard to the exception quoted, it seems question-
able to the undersigned whether it is competent
to the province to authorize the construction or 1
operation of a railway to the boundary line of a
province, or having its two termini upon the
boundary. The imdersigned does not on that ac-
count recommend the disallowance of these stat-
utes, but he commends the matter to the consid-
eration of the provincial government, and the
companies concerned, lea^i^ng the question to the
determination of the Courts, if necessary.'”

And when in 1901, the British Columbia legis-
lature assumed to confer authority upon the
Crow’s Nest Southern Railway Company to con-
struct, and operate, railways connecting a point
upon the boundary between British Columbia
and the United States, with two points upon the
boundary between British Columbia and the
North- West Territories, the Minister of Justice,
in a report of September 19th, 1901, observes
that the power of a provincial legislature to auth-
orize such works depends upon the interpretation
of No. 10 of section 92 of the British North
America Act, and upon ** whether upon the fair
construction of all the provisions of sections 91

*” Provincial Legislation, 1899-1900, p. 138.

BAILWAT8 TO THE BOUNDARY. 451

and 92 of that Act, a provincial legislature can
be held to have authority to provide for the con-
struction and operation of railways running
through the province, and connecting the United
States with the province, and the other portions
of the Dominion.” He continues: ” It would
seem to be certain that if the lines of railways in
question occupied the same relation to two pro-
vinces of the Dominion which they do to the
United States and the North- West Territories,
the Act would be ultra vires, but the United
States is a foreign country, and the North- West
Territories are not a province, so that these
undertakings do not fall within the letter of
the express exception above quoted ” {i.e., that
in item 10 (a) of section 92). ” It is doubtful,
however, whether works making such connection
can be considered local in their character, and,
therefore, within the power conferred. It is ob-
served, also, that Parliament is given exclusive
power to legislate with regard to ferries between
a province, and any British or foreign country,
or between two provinces; that lines of steam-
ships between any British or foreign country
are excepted from provincial power, and having
regard to the intention and scope of the section
defining the respective authority of Parliament
and the legislatures, it would seem to be anomal-
ous that a legislature should authorize the con-
struction of lines of railway such as those in
question. Similar objections have heretofore
been stated with regard to provincial railways
touching the international or provincial bound-
aries, but it has not been considered in such
cases that the public interest demanded disallow-

I

452 Canada’s federal system.

ance, because of the facilities afforded for rais-
ing these questions in the Court where they may
be judicially determined.”‘”‘

Perhaps, in view of this state of the authori-
ties, and in spite of the fact that it seems to have
become a sort of tradition in the Department of J
Justice, to object to provincial Acts authorizing
the construction of a railway to the boundary
line of a province, it may be here submitted, with
all proper deference, that such Acts are intra
vires; and the same would, of course, apply to
Acts authorizing the construction of canals,
telegraphs, telephones, or electric power trans-
mission lines to the boundary of the pro^^nce.
The plenary powers of provincial legislatures
are not to be restricted by construction,'” save
so far as is necessary to allow for the enumerated
Dominion powers under section 91 ;^” and what
Nos. 10 (a) and (h) of section 92 except from
provincial power, and No. 29 of section 91 places
under Dominion power, are such lines of steam
or other ships, railways, canals, telegraphs, and
other works and undertakings as themselves con-
nect the province with any other or others of the
provinces, or extend beyond the limits of the
province: and if the local work or undertaking
comes to an end at the boundary, it cannot be
said to do this ; although the connection or exten-

iTi Provincial Legislation, 1901-1903, p. 58. See also report of
November 24th, 1902, on statutes of New Brunswick, and report
of December 31st, 1901, on statutes of Manitoba: Provincial
Legislation, 1901-1903, pp. 34, 36; also report April 29th, 1909,
on Saskatchewan Statutes.

‘” See supra, pp. 64-74.

”•See supra, pp. 112-118; 315-6; 389.

PKOVINCIAL WOEKS AND UNDERTAKINGS. 453

sion may be made by another work or undertak-
ing wMcb meets it at the boundary.

Interference with Dominion lands. — We

have seen that the Dominion parliament can
authorize a federal railway company to expro-
priate and cross provincial Crown lands/” but
it by no means follows that a provincial legisla-
ture could, quite apart from any question of
Dominion veto, authorize a provincial railway
company to expropriate and cross Dominion
Crown Lands. No. 1 of section 91, which gives
the Dominion parliament the exclusive power to
make laws in relation to ‘ the public debt and
property,’ coupled with the non obstante clause
of that section, would certainly seem to forbid
this. And so in his report of July 4th, 1887,'”
with reference to a Manitoba Act respecting the
Red River Valley railway, by which power was
given to appropriate so much of the public lands
as should be deemed necessary for the purposes
of the railway, the late Sir John Thompson
pointed out that the public lands of Manitoba
were, for the most part, and with the exception of
those especially transferred to the province,
vested in Her Majesty, in the right of the Domin-
ion ; and stated that it was not competent for the
legislature of that province to authorize any one
to enter upon, and to appropriate for any pur-
pose, the lands so vested in Her Majesty in right
of the Dominion, and accordingly recommended
the disallowance of the Act, which was disal-
lowed accordingly.’^”‘

“‘ Supra, pp. 343-4.

‘**’ Hodgins’ Provincial Legislation, 1867-1895, at pp. 855-6.

^” As to public lands in Manitoba now, see infra, p. 708, n.

454 Canada’s federal system.

Power to legislate as to bonds of provincial
railways held by persons domiciled abroad. — In
Jones V. Canada Central R. W. (7o./” Osier, J.,
held that, though a debenture bond of an Ontario
railway company might, when the holder resided
in England, be properly held to be a debt domi-
ciled out of the province, and so not within the
provincial jurisdiction to affect under No. 13
of section 92, ‘ property and civil rights in the
province ‘ ; yet that the company in question,
being a local work or undertaking within the
meaning of subs. 10 of section 92, such pro\an-
cial legislature had jurisdiction to legislate in
respect to such a debt in carrying out by statute
a scheme for the financial re-organization of the
company ; and that its powers were not paralyzed
merely because some or all of the debts payable
were payable to creditors resident outside of the
province: and, therefore, not property or civil
rights in the province. He says,'” somewhat
vaguely: ** It is weU settled that the Dominion
parliament may legislate with respect to pro-
perty and civil rights within the province where
it becomes necessary to do so for the purpose of
legislating generally and effectually in relation
to matters exclusively within their own legisla-
tive authority. If the powers conferred upon
the provincial legislatures are to be effectually
exercised, they must, I think, receive a not less
liberal construction.” To be a little more pre-
cise, it is to be observed that to make laws in rela-

« (1881) 46 U. C. R. 250.

•”At p. 260. Cf. per Savary, Co.J., in In re Killam (1878),
14 C. L. J. N. S. p. 242. See, also, now, Royal Bank of Canada
V. The King, [1913] A. C. 283; infra, p. 504.

i

BONDS OP LOCAL &AJLWAY HELD ABBOAD. 455

tion to debenture bonds of provincial railway-
companies which are held and owned abroad
does not appear to come within any of the enum-
erated classes of Dominion subjects in section 91,
but would, perhaps, be within the power of the
Dominion parliament, under its general residu-
ary power of legislation :’*^ but so far from this
residuary power of legislation residing in the
Dominion, * notwithstanding anything assigned
to the province, ‘ we have seen ‘^* that exactly
the reverse is the case, namely, that that power
is given only in relation to matters not coming
within the classes of subjects assigned exclu-
sively to the provinces; and, therefore, the pro-
vinces might be held to have power when legis-
lating on one of the classes of subjects enumer-
ated in section 92, incidentally to invade this
area, although, as has already been stated,'”
there seems no authority going so far as to im-
pute to the provinces the right actually to invade
Dominion territory comprised in the enumer-
ated subjects for the purpose of provisions ancil-
lary to one of their own Acts.

Power to impose condition of Sunday Obser-
vance. — In Kerley v. London and Lake Erie
Transportation Co.,^^’ Boyd, C, says: ‘* As I
read the opinion given upon the special case in
35 S. C. R.” (sc. in In re Legislation respecting
Abstention from Labour on Sunday) y^^*^” “the

^See supra, pp. 91-4; 99-101.

‘”See supra, pp. 89-94; 140-3.

^ Supra, pp. 180-3.

“• (1912) 26 O. L. R. 588.

“^’SS S. C. R. 581. See supra, p. 322, n.

456 Canada’s federal system.

Court intimates that a province has no power to
restrict the operation of companies of their own
creation to six days in each week, because that re-
striction seems to be within the views expressed
in the Privy Council,^” and to be regarded as a
matter of criminal law, ultra vires of the pro-
vince. See pp. 582 and 592 in answer to question
5. This point, in this limited way, as to purely
provincial corporations was not before the lords
of the Privy Council, and their guarded deliv-
erance would rather imply that this was one of
the questions not passed upon. However, with
all proper deference to the judges of the Su-
preme Court, I cannot regard the opinion ex-
pressed on this head, as a judgment binding on
me, nor can I accept it as the law. I fail to see
why the province may not legally and validly
incorporate a railway company in Ontario as a
local undertaking with power to operate only on
six days in the week. A refusal to allow work on
the Sunday would not in this connection savour
of the criminal law, but would be a supposed, or
an accepted, salutary rule of conduct imposed
for the benefit of the workmen, and the better
working of the road itself. If the company
accept such a charter with such a limitation,
wherein is the Constitutional Act offended
against? . . . Here is no general criminal
intent, but the incorporation of a local concern,
over which the province has plenary power of
legislation, covering all things and conditions
considered expedient and desirable by the incor-

*” 8c. In Attorney-Cteneral for Ontario v. Hamilton Street R.
W. Co., [1903] A. C. 524; as to which case, see supra, pp. 321-: .

PROVINCIAL WORKS AND UNDERTAKINGS, 457

porating power . . . The power to legislate
as to the Lord’s Day by the provincial law-
makers, as to railways subject to their legisla-
tive authority, is recognized in the Dominion
Lord’s Day Act, R. S. C. 1906, c. 153, sec. 3 (2)/««
. . . The late decision of the Supreme Court
on Sunday law in Ouimet v. Bazin,^^” is not in
point for the present case. It is distinguishable
both because it purports to be a general law
framed for all persons, and because the case did
not involve the question of local corporations
over which the province has constitutional power
and competence.” And so he says of Ontario
legislation, enacting that no company operating
an electric railway shall operate the same, or
employ any person thereon, on Sunday, subject
to certain exceptions, — ” the legislation is not to
be regarded as a section of the criminal law of
Canada, but as a particular penal law intended
for the regulation of local electric railways
within the province;” and he holds it to be intra
vires.^^’^

Restriction on employment of aliens. — It is
very apposite in connection with the dicta of

^^ See supra, pp. 362-4.

‘•» (1912) 46 S. C. R. 502.

^’^ This judgment has now (May 5th, 1913) been reversed by
the Appellate Division, which, however, does not find it neces-
sary to deal with the constitutional point, but proceeds entirely
upon the ground that the provincial legislation in question does
not apply to the defendant company, which had been incorporated
by Dominion Act, and the incorporation of which was exclusively
of Dominion competence, in addition to the fact that the incorpor-
ating Act specially declared it to be a work for the general
advantage of Canada. The judgment of the Appellate Division
will be reported in Vol. 28 O. L. R.

468 Canada’s federal system.

Boyd, C, in the above case of Kerley v. London J
and Lake Erie Transportation Co., “‘ to refer to |
the attempts which have been made, recently, in ;
British Colimabia to attach to the incorporation
or subsidizing of provincial railways the condi-
tion that no Chinese or Japanese shall be em-
ployed thereon. Thus in 1900 the British Col-
umbia legislature passed an Act granting a sub-
sidy to a certain railway, but providing that no
Chinese or Japanese should be employed or per-
mitted to work in the construction or operation
of the railway, under a penalty, and the Act was
disallowed by the Governor-General in Coun-
cil.”^^

In the same session the British Columbia
legislature passed a number of Acts incorporat-
ing railway companies, and other companies,
each of which contained a provision, in effect,
that Chinese or Japanese persons should not be
employed by the company. The Attorney-Gen-
eral of British Columbia in a report, approved on
Feb. 8th, 1900, defended these Acts on the ground
that ”all that is sought to be attained by the legis-
lation in question is that Chinese or Japanese
persons shall not be allowed to find emplo\anent
on works the construction of which has been
authorized, dr made possible of accomplishment,
by the granting of certain privileges or fran-
chises by the legislature. It will, therefore, be
seen that the restrictive provisions are merely in
the nature of a condition in agreements or con-
tracts between the provincial Government and

»• (1912) 26 0. L. R. 588.

••ProTlncial Legislation, 1899-1900, pp. 104. 123.

RESTRICTING EMPLOYMENT OF ALIENS. 459

particular individuals, or companies, whereby
certain privileges, franchises, concessions, and,
in some cases, also subsidies and guarantees, are
granted to such individuals or companies in con-
sideration of only white labour being employed
in the works which are the subject-matter of such
agreements. “”^ By a report of April 12th, 1900,
the Minister of Justice, while refraining from
disallowance, says that he is of the opinion that
the above provisions are ultra vires of the pro-
vincial legislature as affecting aliens, and adds a
hint that the same indulgence must not be ex-
pected in future.”*

The same Minister, however, speaks much
more positively as to such legislation being
ultra vires in a report of Sept. 19th, 1901,
where, referring to a British Columbia Act
to incorporate the Crow’s Nest Southern R. W.
Co., he says : *’ Section 23 of the Act provides that
* no alien shall be employed on the railway during
construction, unless it be demonstrated to the
satisfaction of the Lieutenant-Governor in Coun-
cil that the work cannot be proceeded with with-
out the employment of such aliens.’ This pro-
vision is manifestly ultra vires, and, therefore,
harmless ; and inasmuch as the undersigned has
come to the conclusion that he ought not to
recommend disallowance for the other reasons
stated in this report, he does not consider it ex-
pedient to do so because of the obvious invalidity
of this provision relating to aliens.”””

“» Provincial Legislation, 1899-1900, p. 112.

“*Il)id., pp. 122-3.

“* Provincial Legislation, 1901-3, p. 58.

460 Canada’s federal system.

Finally, by a report of December 27tb, 1903 ,
the Minister takes the decisive step of recom-
mending the disallowance, unless amended in
time, of a niunber of British Columbia Acts
incorporating railway companies which con-
tained a provision, in effect, the same as
that referred to in his report of September
19th, 1901, just mentioned, saying: ” The
subject of aliens is clearly within the exclusive
authority of Parliament. Immigration is also
within Dominion jurisdiction, and it has been,
and is, the policy of your Excellency’s Govern-
ment to promote immigration, large sums of
money being annually expended from the Dom-
ion Treasury to that end. The efforts of your
Excellency’s Government would, however, be
certainly paralyzed if the immigrant, upon com-
ing to Canada, is to find the way of employment
closed to him by provincial legislation. The
policy of these enactments is so contrary to that
of your Excellency’s Government, and the enact-
ments themselves so manifestly ultra vires, that
the undersigned considers that no course is open
to your Excellency’s Government, consistently
with the public interest, but the exercise of the
power of disallowance, unless, indeed, the pro-
vincial legislature repeal these provisions.”^'”
Disallowance, however, became unnecessary as
the provincial government agreed to make the
necessary amendments.'”

Provincial corporations subject to Dominion
laws. — Provincial corporations are, of course,

>* Provincial Legislation, 1901-1903, p. 64.
‘”/bid., pp. 74-75. See supra, pp. 48-9.

PREDOMINANCE OF DOMINION LAWS. 461

just as subject to Dominion laws, validly enacted,
as individuals are. Thus in Schoolhred v.
Clarke,^”” Patterson, J., says: ” The body politic
created by any provincial Act of incorporation
becomes, like a natural body, subject to the laws
of the land. There are a niunber of subjects
over which exclusive legislative jurisdiction is
given to the parliament of Canada, as well as
others in relation to which the Parliament may
make laws for the peace, order, and good govern-
ment of Canada, the legislation in which must
govern all corporate bodies, as well as natural
bodies, for example, interest, legal tender, cur-
rency, taxation, the criminal law, and bank-
ruptcy and insolvency.” Conversely with a cor-
poration created by Act of the old province of
Canada, in Hamilton Powder Co. v. Lambe,^^^’^
the Quebec Court of Queen’s Bench decided
that such a company though incorporated
with the power to manufacture and sell gun-
powder, was, nevertheless, subject to be in-
terfered with as to the privileges so conferred
upon it and hitherto enjoyed, by provincial legis-
lation after Confederation requiring it to take
out a license as a matter of police regulation in
connection with its business.

11. The incorporation of companies with
provincial objects.

This clause of section 92 of the British
North America Act is concerned with the

^” (1890) 17 S. C. R. at p. 274. And see St. Francois Hy-
draulic Co. V. Continental Heat and Light Co., [1909] A. C. 194;
supra, p. 377.

“^ (1885), M. L. R. 1 Q. B. 460.

462 Canada’s federal system.

incorporation of private companies. Such,
at least, seems to be its purport. The cre-
ation of municipal corporations would fall under
No. 8 of section 92 ; of charitable, and other simi-
lar corporations, under No. 7 ; of what may, per-
haps, be called governmental corporations, such
as the Hydro-Electric Power Commission of On-
tario, under No. 1, No. 4, or No. 14 ; and of educa-
tional corporations imder section 95. The ques-
tion of the proper interpretation of the words
‘ with provincial objects ‘ has occasioned, how-
ever, a considerable divergence of judicial opin-
ion; and, also, been the crucial point in a long-
standing contention between the Dominion and
provincial authorities. This, and a number of J
questions connected with it, and dependent on it,
as to the respective Dominion and provincial
powers in regard to the incorporation of com-
panies, were argued in February, 1913, before the
Supreme Court, and stand for judgment and
will, no doubt, afterwards, come before the Judi-
cial Committee of the Privy Coimcil, on the ref-
erence by the Governor-General in Council,
which occasioned the preliminary question of
jurisdiction so to refer, now determined affirma-
tively by the Privy Council, ‘” on appeal from
the judgment of the Supreme Court.^*** All that

‘ »• [1912] A. C. 571.

•” In re References by the Oovernor-OeneraJ in Council
(1910), 43 S. C. R. 536. The questions submitted on this refer-
ence are: (1) What limitation exists under the British North
A.merica Act, 1867, upon the power of the provincial legislatures
to Incorporate companies?

(2) Has a company incorporated by a provincial legislature,
under the powers conferred In that behalf by section 92, No. 11,
of the British North America Act, 1867, power or capacity to do

PROVINCIAL INCORPORATIONS. 463

can be done in the meantime is to endeavour to
state concisely, and correctly, how the auth-
orities stand at the present time.

business outside the limits of the incorporating province? If so,
to what extent and for what purpose?

(3) Has a corporation constituted by a provincial legislature
with power to carry on a fire insurance business, there being no
stated limitation as to the locality within which the business
may be carried on, power or capacity to make and execute
contracts: (a) within the incorporating province insuring pro-
perty outside the province; (6) outside of the incorporating pro-
vince insuring property within the province; (c) outside of the
incorporating province insuring property outside of the province?
Has such a corporation power or capacity to insure property
situate in a foreign country, or to make an insurance contract
within a foreign country? Do the answers to the foregoing inquir-
ies, or any and which of them, depend upon whether or not the
owner of the property or risk insured is a citizen or resident of
the incorporating province?

(4) If in any or all of the above-mentioned cases (a), (&)
and (c) the answer be negative, would the corporation have
throughout Canada the power or capacity mentioned in any and
which of the said cases on availing itself of the Insurance Act,
1910, 9-10 Edw. VII., c. 32, s. 3, s.-s. 3, D.? Is the said enactment,
the Insurance Act, 1910, c. 32, s 3, s.-s. 3, intra vires of the par-
liament of Canada?

(5) Can the powers of a company incorporated by a pro-
vincial legislature be enlarged, and to what extent, either as to
locality or objects by (a) the Dominion parliament; (b) the
legislature of another province?

(6) Has the legislature of a province power to prohibit
companies incorporated by the parliament of Canada from carry-
ing on business within the province unless or until the com-
panies obtain a license so to do from the Government of the
province, or other local authority constituted by the legislature,
if fees are required to be paid upon the issue of such licenses?

(7) Is it competent to a provincial legislature to restrict a
company incorporated by the parliament of Canada for the pur-
pose of trading throughout the whole Dominion in the exercise of
the special trading powers as conferred, or to limit the exercise
of such powers within the province? Is such a Dominion trading
company subject to or governed by the legislation of a province
in which it carries out or proposes to carry out its trading powers
limiting the nature or kinds of business which corporations not
Incorporated by the legislature of the province may carry on.

464 Canada’s federal system.

* With provincial objects ‘ — Can a provin-
cial insurance company take risks on property
situate outside the province? — The contention
that by * provincial objects ‘ is meant * public

or the powers which they may exercise within the province, or
imposing conditions which are to be observed or complied with
by such corporation before they can engage in business within
the province? Can such a company so incorporated by the par-
liament of Canada be otherwise restricted in the exercise of its
corporate powers or capacity, and how, and in what respect by
provincial legislation?

Previously to the argument of the above questions before
the Supreme Court, the following questions were argued, in
November, 1912, before that tribunal on another reference, and
also stand for judgment: —

(1) Are sections 4 and 70 of the Insurance Act, 1910, or any
or what parts of the said sections ultra vires of the parliament
of Canada?

(2) Does section 4 of the Insurance Act, 1910, operate to
prohibit an insurance company incorporated by a foreign State
from carrying on the business of insurance in Canada if such
company do not hold a license from the Minister under the said
Act, and if such carrying on of the business is confined to a
single province?

The following are the sections of the Dominion Insurance
Act, 1910, above referred to: —

Sec. 3, sub-sec. 3: ‘Any company incorporated by an Act of
the legislature of the late province of Canada or by an Act of the
legislature of any province now forming part of Canada, which
carries on the business of insurance wholly within the limits of
the province by the legislature of which it was incorporated, and
which is within the exclusive control of the legislature of such
province, may, by leave of the Governor in Council, avail itself
of the provisions of this Act on complying with the provisions
thereof: and if it so avails itself the provisions of this Act shall
thereafter apply to It, and such company shall thereafter have the
power of transacting its business of insurance throughout Canada.’

Sec. 4 : ‘In Canada, except as otherwise provided by this
Act, no company or underwriters or other person shall solicit or
accept any risk, or issue or deliver any receipt or policy of
insurance, or grant any annuity on a life or lives, or collect or
receive any premium, or inspect any risk, or adjust any loss,
or carry on any business of insurance, or prosecute or maintain
any suit, action or proceeding, or file any claim in insolvency

‘provincial objects/ 465

provincial objects ‘ was long ago discouraged in
the judgment of the Privy Council in Citizens
Assurance Co. v. Parsons f^ and does not seem
to have been ever again revived. Their lord-
ships refer in that connection, in a marked way,
to certain Acts of the Dominion parliament in
which the power of the provinces to incorporate
insurance companies for carrying on business
within the provinces is explicitly recognized ; and
point out that this recognition is directly opposed
to such contention. What the phrase does mean

relating to such business, unless it be done by or on behalf of a
company or underwriters holding a license from the Minister.’

Sec. 70 prescribes penalties for —

‘Every person who: —

(o) In Canada, for or on behalf of any individual under-
writer or underwriters, or any insurance company not possessed
of a license provided for by this Act in that behalf and still in
force, solicits or accepts any risk, or grants any annuity or
advertises for, or carries on any business of insurance, or prose-
cutes or maintains any suit, action, or proceeding, or files any
claim in insolvency relating to such insurance, or acting as an
insurance agent, receives directly or indirectly any remuneration
from any British or foreign unlicensed insurance company or
underwriters: or, except as provided for in sec. 139 of this Act,
issues or delivers any receipt or policy of insurance, or collects
or receives any premium, or inspects any risk, or adjusts any
claim; or

(b) except only on policies of life insurance issued to per-
sons not resident in Canada at the time of issue, collects any
premium in respect of any policy . . .’

By sec. 3, sub-sec. 2 (6), the provisions of the Act are not to
apply:

(&) ‘To any company incorporated by an Act of the legis-
lature of the late province of Canada, or by an Act of the legisla-
ture of any province now forming part of Canada, which carries
on the business of insurance wholly within the limits of the
province by the legislature of which it was incorporated, and
which is within the exclusive control of the legislature of such
province.’

*•» (1881) App. Cas. at p. 116.

c.F.s.— 30

466 Canada’s federal system.

was exhaustively considered by five of the judges
of the Supreme Court in Canadian Pacific R. W.
Co. V. Ottawa Fire Insurance (7o.,”^ although no
two of them can, perhaps, be said to have come to
precisely the same conclusion. And as four of
their lordships now have an opportunity of
reconsidering the matter on the reference
above mentioned, while an appeal to the Judicial
Committee is likely to follow immediately, all
that seems necessary now is to endeavour, with-
out making lengthy abstracts from their judg-
ments, to state the interpretations they respec-
tively put upon the words ‘ with provincial ob-
jects ‘ in Canadian Pacific Railway Co. v. Ottawa
Fire Insurance Co., above referred to. It should
be first stated, however, that the point actually
decided by the majority of the Court in that case
(Fitzpatrick, C.J., and Davies, J., dissenting),
was that a company incorporated under the auth-
ority 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 insur-
ance of property, also outside those limits.”‘

•» (1907) 39 S. C. R. 405. Reported below, 9 O. L. R. 493.
11 O. L. R. 465; but the constitutional point was not raised or
discussed tliere.

** So held previously, in Colonial Building and Investment
Association v. Attomey-Oeneral of Quebec (1882), 27 L. C. J. at
p. 299; Clarke v. TJnion Fire Insurance Co. (1883), 10 O. P. R.
313. And see also Hewson r. Ontario Power Co. (1905), 36 S. C.
R. at p. 604; Re York County Loan and Savings Co. (1908). 11 0.
W. R. 507; and Legislative Power in Canada, pp. 637-638. On the
argument in the matter of References by the Governor-General
In Council to the Supreme Court, [1912] A. C. 571, verbatim
report (Wm. Briggs, Toronto), at p. 47, Lord Atkinson is reported
as remarking: ” I see it is asked whether a provincial corporation
can insure foreign property; that is a question which is not
touched by the law of Canada at all.”

PROVINCIAL COMPANIES. 467

Fitzpatrick, C.J.,^”* holds that ‘ provincial
objects ‘ in No. 11 of section 92 means ‘* such ob-
jects as are within the legislative jurisdiction of
a province to effect : ‘ ‘ and, at the place cited, he
says : ” Admittedly the Dominion parliament has
the right to create a corporation to carry on busi-
ness throughout the Dominion, and it appears
to me impossible to maintain that a provincial
legislature, if it can deal with the incorporation
of insurance companies at all, can create a com-
pany with powers co-extensive with those con-
ferred by the Dominion on a company incorpor-
ated for the purpose of carrying on the business
of insurance.” Davies, J., holds that the word
* provincial ‘ in the clause in question is to be
read in a territorial sense, as opposed to Dom-
inion in the same sense ; and expressly says “‘
that it does not mean ” companies or subjects
within provincial legislative jurisdiction.” He
holds, therefore, that a provincial legislature can
only incorporate companies to do insurance busi-
ness within the province: and ^°’ that any con-
tract made by such a provincial insurance com-
pany out of the province is wholly void, and that
” neither the place where the contract was made,
nor the ratification of the shareholders, had such
been given, nor any comity, or consent, or license,
given by any foreign State, or province, could in-
ject vitality into that which in its substance or
essence was void and dead.” He adds, however,
” while the objects and purposes of the company
must be confined to the province, things might

^ 39 S. C. R. at pp. 412-3.
*» At p. 424.
** At pp. 429-30.

468 Canada’s federal system.

be legally done outside the province strictly in
furtherance of those objects. . . I put it
upon the principle that everything necessary to
enable a company to carry out, properly and ef-
ficiently, the purposes for which it was incorpor-
ated is impliedly granted to them, and that if it
is necessary for a provincial company, in order
fully and effectually to carry out the objects and
purposes for which it was incorporated, to pur-
chase abroad the machinery or other articles
necessary to enable it to manufacture, including
in such the raw material, it could legally do so.
But I squarely challenge the proposition that a
provincial manufacturing, or trading, or insur-
ance company has the world for its market or
business, or that it can carry on its business at
all beyond the province, excepting to the extent,
and for the legitimate purpose, of enabling it
efficiently to carry out the functional purposes
of its incorporation within the province by which
it was incorporated.” Davies, J., then holds that
the very essence of the meaning of the phrase
* with provincial objects ‘ is that the corpor-
ate business of the company properly so called,
must be confined to the area of the province.

Idington, J., holds,^”^ that the intention of the
phrase * with provincial objects ‘ is to distin-
guish the subjects exclusively assigned to the pro-
vinces, from those assigned to the Dominion as
the line of incorporating power given, thus ap-
proximating to the view of Fitzpatrick, C.J. He
says that No. 11 ” clearly was pointed at some-
thing in the nature of a partition of the sovereign

•^ See at pp. 444-8.

‘provincial objects/ 469

legislative powers between the Dominion and the
provinces;” but that this has no bearing on the
power of a corporation, once created, to enjoy
rights given by the comity of nations. ” What
happens,” he says, ” once the corporation is thus
created, is that other provinces, or foreign
States, either by the comity of nations, or per-
chance, in case of treaty, by force thereof, recog-
nize the existence of such a corporate body, as a
legal entity, doing the like kind of business for
the carrying on of which it was created;” and he
denies (p. 451), that any distinction can be
drawn between the powers of the Dominion par-
liament and the provincial legislatures in regard
to the status of their corporate creations abroad ;
** either Dominion or provincial corporation
stands upon the same footing in a foreign State. ‘ ‘
At pp. 445-3, he says: *^ It is not that the comity
adds to the power of the corporation, as some
seem to suggest this theory implies. It is that
any State creating a corporation without re-
stricting its powers is supposed to know as a
matter of international law that the same kind
of business it enables it to do can then legally be
done abroad by this creation, in States that
choose to accord it recognition.” “*

Maclennan, J. A.,””* says : ” I think the expres-
sion ‘ provincial objects ‘ is used in contradiction
to Dominion objects, and means no more than
this: that just as Parliament in incorporating
companies must confine itself to Dominion ob-

^At p. 455, Idington, J., refers to an Article on the status
of Foreign Corporations and tlie Legislature, in 23 L. Q. Rev.
(No. 91), p. 296.

»• At pp. 457-8.

470 Canada’s federal system.

jects, as between the Dominion and other coun-
tries, so each province, not only as between itself
and other countries, but between itself and
the provinces, must confine itself to provin-
cial objects; and as Parliament cannot empower
a company to go into another country and there
construct a railway, or canal, or telegraph, or
telephone line, so neither can a provincial legis-
lature confer any such powers on a company in-
corporated by it. And as a Dominion company,
desiring to exercise such powers in Maine or
Michigan, must obtain them from those States,
so a company desiring to exercise such powers
in more than one province must be incorporated
by a province, and then apply for the required
powers to the other province, or provinces.”

Lastly,”” Duff, J.,”^ says: ” In this sub-sec-
tion (sc. No. 11 of section 92), ** the word * ob-
jects ^ seems to be used in the sense in which it
is commonly used in relation to the subject dealt
with, — the incorporation of companies; . . .
and to denote the purposes for which a company
is established, or its undertaking as defined by
its constitution. . . . The characteristic ‘ pro-
vincial ‘ which is to mark the objects of such a
company, is not necessarily, I think, to be found
in every act or transaction of the company, —
but, in the undertaking of the company viewed
as a whole. If the company is one formed for
gain, then the ‘ objects of the company ‘ is only
another expression for the business of the com- 5|^
pany — the business by means of which the com-

*• Girouard, J., did not deal with the constitutional point in
his judgment.

»” At pp. 460, 467, seq.

«f’

i

k

‘ WITH PROVINCIAL OBJECTS/ 471