CHAPTER X.

THE DIVISION OF THE FIELD.

In the earlier chapters of this book, the practical oneness of the spheres of authority of the legislative and executive departments of government has been insisted upon, and the legal supremacy of the former over the latter pointed out (). Expressed in another way and in reference to a government of limited authority, it may be said that to fix the sphere of authority of the legislative department of such a government, is to fix at the same time the sphere of authority of the executive department of that government. Applying that principle to the Canadian constitution, it will be at once seen how important it is to fix, if possible, the exact line which is to divide, for legispurposes, the field of colonial authority between the

lative

Dominion parliament and the Provincial legislative assem

blies.

For, that line found, we have likewise established

the line of division between the Dominion and the Provinces for the purposes of executive government.

Before entering upon an examination in detail of the sections of the B. N. A. Act which provide for the distribution of legislative power, we may shortly advert to the laws and legal institutions existing in the different provinces at the time the B. N. A. Act took effect, and to some. general principles which have been authoritatively established in reference to the nature of the division effected by

the Act.

(a) See ante, p. 12, p. 22, et seq., p. 46, et seq., and Chap. VI.

I. When the Union took effect, there was in existence in each of the individual provinces, a legal system-a "body" of laws and legal institutions. By sec. 129 of the B. N. A. Act, it was provided that all laws, etc., in existence in the different provinces at the time of the Union, “shall continue as if the Union had not been made, subject nevertheless (except with respect to such as are enacted by or exist under Acts of the parliament of Great Britain, or of the parliament of the United Kingdom of Great Britain and Ireland) to be repealed, abolished or altered by the parliament of Canada, or by the Legislature of the respective province, according to the authority of the parliament or of that legislature under this Act."

This mass of laws and legal institutions may be considered the raw material, so to speak, upon which the legislatures of the Dominion and the respective provinces were to operate, each according to its authority under the B. N. A. Act; and it must be borne in mind that we have laws (common law and statutory enactments) on many subjects which have come down to us from pre-Confederation days, and these can be repealed or altered only by that legislative body which could now, were they non-existent, enact them (b). The division, therefore, effected by the B. N. A. Act, was a present division of the whole body of existing law (in its widest sense), as well as a division of the field for future exercise of authority (c). Of course, the body of law in existence when the B. N. A. Act came into force was of provincial creation, but at once upon that Act taking effect, that portion of existing laws, etc., which fell within the sphere of authority of the Dominion parliament, became what we may call a body of Dominion law, while the remainder might, not inaptly, be designated a body of provincial laws.

(b) Dobie v. Temporalities Board, 7 App. Ca3. 136.

(c) See ante, pp. 49, 50.

II.-The division effected by the B. N. A. Act is exhaustive. The limitations upon our powers of self-government, arising from our colonial status, have been already dealt with (d). The power to legislate along certain lines and in reference to certain matters, deemed to be matters of Imperial concern, has been expressly or is impliedly withheld; but of all the matters in respect to which we have power-i.e., of the entire field of self-government alloted to us the B. N. A. Act effects a division, assigning certain classes of those matters to the Provincial assemblies, and the balance to the parliament of Canada.

The following passage from a recent judgment of the Judicial Committee of the Privy Council discloses the contention to the contrary which had been raised, and finally disposes of it: (e)

"It only remains to refer to some of the grounds taken by the learned judges of the Lower Courts which have been strongly objected to at the Bar. It has been suggested that the provincial legislatures possess powers of legislation. either inherent in them, or dating from a time anterior to the Federation Act, and not taken away by that Act. Their Lordships have not thought it necessary to call on the respondent's counsel, and therefore possibly have not heard all that may be said in support of such views. But the judgments below are so carefully reasoned, and the citation and discussion of them here has been so full and elaborate, that their Lordships feel justified in expressing their present dissent. . . They adhere to the view which has always been taken by this Committee, that the Federation Act exhausts the whole range of legislative power, and that whatever is not thereby given to the provincial legislatures, rests with the Parliament (ƒ)."

III. The parliament of Canada and the provincial assemblies possess, each within the sphere assigned to it,

(d) See Chap. IX.

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

(f) See further upon this point, the notes to the opening clause of

sec. 91 post.

plenary powers of legislation. This attribute of colonial legislatures has been examined at some length in the last chapter, and we need here only emphasize this fact, that there is no distinction whatever, in this regard, between the Dominion parliament and the assemblies of the different provinces. The principle has been applied alike to the legislative power of each-to uphold, for example, the "local option" clauses of the Canada Temperance Act (g), and the delegation of power to license commissioners, under the Ontario Liquor License Acts (h).

IV. In a country under the rule of law, it necessarily devolves upon the courts which administer law, to enquire and deterinine, in any given case, whether an Act of a legislature having authority over a limited range of subject matters, is within or without its powers,—is or is not law. As we have already pointed out (i), long before the passage of the B. N. A. Act, English and Colonial judges had been called on to consider colonial Acts, and to determine the question of their legal validity; and the duty of the courts to determine like questions under the B. N. A. Act, was no new jurisdiction, although full appreciation of the extent of their judicial authority in this regard, seems to have dawned on Canadian judges with something like surprise. It serves to indicate how small is the range of matters with which colonial legislatures are unable to deal, that we find colonial judges almost forgetting that any limits exist (j). After twenty-five years of experience

() Russell v. Reg.,.7 App. Cas. 829.

(h) Hodge v. Reg., 9 App. Cas. 117. See also Reg. v. O'Rourke, 1 O. R. 465, 32 U. C. C. P. 388, as to the adoption by the Dominion Parliament, for purposes of criminal procedure, of Provincial Acts respecting jurors.

(i) See Chap. IV. and Chap. IX., ante.

(j) In this connection we may point out that in L'Union St. Jacques v. Bélisle, L. R. 6 P. C. 31, the reporter states the question involved to be whether the Act there impugned was or was not repugnant to the B. N. A. Act-a strictly accurate way of putting it, but in these days not followed.