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give effect to the enactment. May we lay down the same rule in regard to a "confirmed" Act of a colonial legislature? We think not. Until very recently, there was no judicial decision directly upon this question, but there was high authority in support of the view here adopted—that a colonial legislature cannot affix a criminal character to acts committed beyond the territorial limits of the colony; and there would appear to be no argument in favor of this view, which would not be equally applicable to the case of colonial legislation affecting civil rights “accrued” abroad (¿) (if we may use the expression). The high authority to which we refer as to criminal legislation, is that of the law officers of the Crown in England. In 1861, the parliament of (Old) Canada passed an Act to give jurisdiction to Canadian magistrates in reference to certain offences committed in New Brunswick. This Act was disallowed by order of the Queen in Council upon the report of the law officers of the Crown, who advised that "such a change cannot be legally effected by an Act of the colonial legislature, the jurisdiction of which is confined within the limits of the colony" (j).

And again, the Dominion parliament, in 1869, passed "An Act respecting perjury," the third section of which


"3. Any person who wilfully and corruptly makes any false affidavit, affirmation, or declaration out of Canada, or out of any Province of Canada, before any functionary authorized to take the same for the purpose of being used in Canada, or in such Province, shall be deemed guilty of perjury, in like manner as if such false affidavit, affirmation or declaration had been made in Canada, or in such Province, before competent authority; and such person may be dealt with, indicted, tried and if convicted, be sentenced, and the offence may be laid and charged to have

(i) The legal rights arising out of a contract, are governed by the lex loci contractus; the lex fori governs as to the nature extent and character of the remedy, Forsyth, 239, 249.

(j) Jour. Leg. Ass. Can 1862, p. 101.

been committed, in that district, county or place where he has been apprehended or is in custody."

In a despatch (k) to the Governor-General, the Colonial Secretary adverts to this section as assuming "to affix criminal character to acts committed beyond the limits of the Dominion of Canada," and "as such a provision is beyond the legislative power of the Canadian parliament," he suggested amendment. The Act was not disallowed, but the acquiescence of the Minister of Justice in the correctness of the law laid down by the Colonial Secretary, is evidenced by the fact that the Act was amended in the very next session, so as to limit the operation of the third section to affidavits made in one province of the Dominion for use in another province (l).

Forsyth (m), in his collection of opinions on constitutional law, cites an opinion given by the law officers of the Crown (2), in England, in 1855:

We conceive that the Colonial Legislature cannot legally exercise its jurisdiction beyond its territorial limits -three miles from shore-or, at the utmost, can only do this over persons domiciled (0) in the colony, who may offend against its ordinances even beyond those limits, but not over other persons" (p).

In the case of Peak v. Shields (q) the question was discussed in our courts, but owing to the divergence of view on the part of the judges (particularly in the

(k) Can. Sess. Papers, 1870, No. 39; see Todd, " Parl. Govt. in Brit, Col." 150.

(l) 33 Vic. c. 26, amending 32-33 Vic. c. 23, s. 3.

(m) p. 24; see also p. 238.

(n) Sir J. Harding, Queen's Advocate; Sir A. E. Cockburn, A.G. (afterwards Lord Chief Justice of England); and Sir R. Bethell, S.G. (afterwards Lord Chancellor Westbury).

(0) See post, p. 193.

(p) See also Atty.-Gen. of Hong Kong v. Kwok-a Sing, L. R. 5 P. C. 179, and re Goodhue, 19 Grant 386, at pp. 404 and 452.

(q) 31 U. C. C. P. 112; 6 O. A. R. 639; 8 S. C. R. 579.

Supreme Court) the case can hardly be considered an authority (r). The plaintiffs invoked against the defendants a clause in the Insolvent Act of 1875, which, shortly stated, provided that when it was found on the trial of an action against an insolvent, that the debt sued for, had been contracted by him when, to his knowledge, he was unable to meet his engagements, he might be imprisoned for two years unless the debt and costs were sooner paid. In the case in question, the debt had been contracted in England. A majority of the judges, who rendered opinions in the case, held that the statute did not affix a criminal character to an act committed abroad; that the law enacted by the section, was a law as to the remedy available in our courts, and therefore valid (8). Of the Supreme Court, the majority who expressed an opinion on this constitutional point, decided against the applicability of the section, invoking the rules of interpretation to which we have before referred, as limiting the section to debts contracted in Canada; but at the same time serious doubt was expressed by each of these judges as to the validity of the enactment, in case its unambiguous meaning had admitted none but the wider interpretation. The position is thus clearly put by Mr. Justice Strong (†):

"By the 91st section of the B. N. A. Act, the parliament of Canada is empowered to make laws for the peace order and good government of Canada. Does this warrant the enactment of statutes binding British subjects in respect of

(r) As to the questions arising in this case, which involved consideration of the B. N. A. Act, see post, notes to s. 91, s-s. 21, etc.

(8) Somewhat analogous questions arise under the "Act respecting Arrest and Imprisonment for Debt (R. S. O. c. 67). It is submitted that so far as these statutes make provision as to the remedy to secure the performance of the obligation created by the contract sued on, they apply to the case of proceedings for a debt contracted abroad; but that so far as they are punitive-whether technically "criminal" or not-they do not (as a matter of interpretation) so apply, and could not (as a matter of jurisdiction to enact them) be made so to apply.

(t) 8 S. C. R. at p. 596-7.

acts done without the territory of the Dominion, merely because they happen at the time to have a domicile in the Dominion? Or are not such persons, like all other subjects of the Queen, liable to be affected by no legislation regulating their personal conduct without the limits of the Dominion, save such as may be enacted by the Imperial legislature, the parliament of the United Kingdom? I think these weighty and important questions would arise and have to be determined in the present case, if we found in the enactment under consideration, either from express words or necessary implication, that it was the intention of the legislature to apply it to traders, domiciled inhabitants of Canada, making purchases without the Dominion. But as there is not the slightest indication of such a design, as respects this 136th section, we are relieved from the obligation of determining such a grave question of constitutional law."

The only other case in our courts, is Regina v. Brierly ("), involving the validity of section 4 of the "Act respecting offences relating to the Law of Marriage" (R. S. C. c. 161): IV. Every one who being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada or elsewhere, is guilty of felony and liable to seven years' imprisonment:

"2. Nothing in this section contained shall extend to: (a) Any second marriage contracted elsewhere than in Canada by any other than a subject of Her Majesty, resident in Canada, leaving the same with intent to commit the offence;

This section was held valid by the Divisional Court of the Chancery Divison, but in view of the decision about to be referred to, it would appear that this judgment can only be supported as to foreign marriages, upon the view that the offence dealt with by the section, is the leaving Canada with intent. The opinion of the Chancellor in that case, is— if to say so he permissible-a clear marshalling of all that can be urged in support of the jurisdiction of a colonial legislature to pass such an enactment; and were it not that Regina v. Brierly must be considered overruled by the

(u) 14 O. R. 525.

decision of the Judicial Committee of the Privy Council in the case about to be noted, it might be deemed an act of presumption to question the correctness of the principles enunciated. With all deference, it is submitted that the limitation of the lines of judicial investigation open to a Canadian judge, to a consideration of the express provisions of the B. N. A. Act on the one hand, and of the Colonial Laws Validity Act on the other, is to leave untouched those implied restrictions to which reference has been made in an earlier part of this chapter—such, e. g., as those indicated in Craw v. Ramsay (). The meaning given to the phrase, “extra territorial legislation" seems also unduly limited; in the books it is constantly used to describe the attempt by the legislature of one state, to determine the legal relation to arise, in that state, from

acts done and contracts entered into in another.

Very opportunely, the report of the case, McLeod v. Attorney-General for New South Wales (w), before the Judicial Committee of the Privy Council, comes to hand. The legislature of that colony had upon its statute book the following enactment:

"Whosoever being married, marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years."

By applying to this enactment the rules of interpretation already discussed, the Committee construed the word wheresoever," as meaning "wheresoever in this colony." The question of jurisdiction is thus dealt with:

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"Their Lordships think it right to add, that they are of opinion that if the wider construction had been applied to the statute, and it was supposed that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the jurisdiction of the colony to enact such a law, Their Lordships are far from suggesting

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(v) See ante, p. 181, et seq.

() App. Cas. (1891) 455.

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