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Provincial Assembly (a), it was provided, in effect, that two or more counties might be grouped together for the purpose of facilitating the conduct of business in the Division courts of the grouped counties, and that the judges of the County courts of those counties might arrange for taking the work in rotation throughout the entire group. The validity of this Act was upheld in Wilson v. McGuire (b). In Gibson v. McDonald, it was held that a somewhat similar arrangement as to the General Sessions of the Peace in the different counties of Ontario, was
invalid, and there is no doubt that the correctness of the · earlier decision must be deemed somewhat impugned by
this case. The point on which the latter decision rests, however, is the very narrow one, that the judge of the County Court of one county was sitting as Chairman of the General Sessions in another, “ and not otherwise than by virtue of his office as judge of the County Court of his own county," and that this he had, under his commission, no right to do. Armour, C.J., expressly reserved the question as to the power of the provincial assembly to provide that the judge of the County Court of one county shall be Chairman at the General Sessions of the Peace in another, and the decision therefore only goes to this length, that a County Court judge can act as such only in the county for which he is appointed, by the Governor-General in Council, under section 96 of the B. N. A. Act. Taken together, these two cases support our proposition. A Provincial government can impose upon the individual who is County Court judge, duties (falling of course within the range of matters of provincial cognizance) other than those covered by his commission from the Governor-General, care being necessary perhaps in defining that those super-added duties
(a) R. S. O. (1877) c. 42.
() 2 0. R. 118, Arniour, J., dissenting. It is to be noted that the majority of the Court expressly limited their judgment to affirming the validity of the Act, in its bearing on Division Courts.
are-- when exercisable otherwise than in his own County Court—to be exercised by him, not quâ County Court julge, but quâ provincial officer.
With regard to the creation of courts by the Dominion Government, the scheme of the B. N. A. Act is logical, while as to those Provincial courts mentioned in section 96 of the B. N. A. Act, the scheme is quite the reverse.
We do not rely upon any possible complication which may arise from the way in which“ procedure” is treated by the Act (©). It is difficult, in many cases, to distinguish between law and "procedure.” In its narrow sense“ procedure” relates simply to the organic working of a court, and is not supposed to affect rights, or to alter the legal relations arising out of any given facts; while in a widler sense it may have a most potent effect along both lines (al.. Of this, however, more anon. The method of organizing those provincial courts mentioned in section 96 is illogical in this, that the machinery of those courts is supplied partly by the Dominion government and partly by the Provincial, with the resultant difficulty in fixing responsibility to which reference has already been made (e). The power to appoint, necessarily carries with it the power to determine the tenure of office (subject, as to the Superior Court judges, to section 99), and therefore the power to dismiss. This power of appointment and dismissal rests with one government, another government defines the (luties of the office—an arrangement certainly unique' uncler a British constitution. But, except in so far as this peculiar arrangement affects the law of our constitution, further comment upon it is, perhaps, out of place here.
However constituted, the Provincial courts have, we again repeat, to administer Dominion as well as Provincial law, and this is perhaps the proper place to advert more
(c) Compare s. 91, 8-s. 27, and s. 92, s.s. 14.
fully to the question of-“ procedure” alluded to in the last paragraph. On this question considerable divergence of view is apparent in the cases (f), arising largely from the differing constructions placed upon the words “ procedure in civil matters in those courts ” in section 92, sub-section 14. Taking that sub-section alone, and noting the sharp distinction drawn between criminal and civil jurisdiction, and that together they are exhaustive of the whole field, the plain meaning is, that “procedure,” in all matters other than criminal, is subject to the exclusive legislative power of the provincial legislatures, and there would appear to be no warrant therefore for the opinion that “procedure in civil matters” in this sub-section must be read as limited to proceedings in relation to matters over which the provincial legislatures have exclusive legislative power (9). But what is “procedure”! We have already noted that the word is capable of two very different interpretations. It is only used once in section 91, and once in section 92, and à comparison of the two sub-sections in which it occurs will suffice to show that in sub-section 27 of section 91, it has the wide, and in sub-section 14 of section 92, the narrower meaning. "The criminal law
incluling the procedure in criminal matters," would indicate the view of the framers of the B. N. A. Act, that “procedure in criminal matters” is an essential and necessary part of criminal law; while “the constitution, maintenance, and organization of provincial courts, incluling procedure in civil matters,” would appear to point to the “procedure” incident to the organic working of the courts. In a sense, statutory regulation of procedure in any, the most immaterial, step of a cause may affect rights and obligations,
(j) See notes to B. N. d. Act, s. 92, s.s. 14, where the cases are collected.
(9) See Peak v. Sbields, 8 S. C. R. at p. 591. “ Matters" is here used in two very different senses. “Civil matters,' we take it, is but another way of saying civil actions, suits, or other judicial proceedings; while "matters over which, etc.,” refers to subject matters for legislative action.
but only in a very secondary sense.
No idea of altering those legal relations which arise from any facts irrespective of any litigation in reference thereto, is present to the mind of the legislature in laying down such statutory regulations, and it is this sort of “procedure” that is referred to in sub-section 14 of section 92, while as to criminal matters, “ procedure,” from the laying of the information to the infliction of the penalty, is carefully treated as a component part of criminal law, the various safeguards thereby created forming part of the “rights” of persons accused of crime (h). So far as procedure is of this sortà necessary and practically component part of legislation relative to any of the classes of matters within the competence of the Dominion parliament—it is an accessory which follows its principal.
The cases under the B. N. A. Act bear us out, we think, in this distinction. As to criminal law, section 91, subsection 27, is a clear indication that “procedure in criminal matters ” is such component part of that law, although, as will appear later, the term “criminal law” in Canadian jurisprudence is a term of limited scope ; but as to laws relating to matters other than crimes, a perusal of the various sub-sections of section 91 discloses many matters, any legislation on which must involve procedure,—of which matters, proceclure is a component part. Maritime law is a branch of jurisprudence which falls within “ Navigation and Shipping”(i), and its peculiarly peremptory in rem procedure is an essential part of any such law, practically creative of rights and obligations. And so of divorce law, patent law (j), insolvency law, and election law; and
(1) Since the above was written Mr. Justice McMahon has handed out his judgment in Reg. v. Toland, holding that 53 Vic. c. 18, s. 2 (Ont.), giving to a police magistrate power to try certain offences under R. S. C. c. 165, “ An Act respecting Forgery," is ultra vires of a provincial legis. lature.
(i) Sec. 91, s-s. 10; sce“ The Picton," 4 S. C. R. 618. (;) See In re The Pell Te'ephone Co., 7 0. R. 60.5, cited in foot note ante, p. 230. Aitcheson v. Mann, 9 P. R. 253, 473.
perhaps other branches of jurisprudence may be found wrapped up in the various sub-sections of section 91. The leading cases on the subject are those involving consideration of insolvency law and election law. The extent to which the Dominion parliament, by legislation under subsection 21 of section 91, “ bankruptcy and insolvency,” is empowered to interfere with “procedure in civil matters in the province,” came up for consideration before the Judicial Committee of the Privy Council, in the case of Cushing v. Dupuy (7:), and was disposed of in the judgment of that tribunal in these words:
“It was strongly contended that the parliament of Canada could not take away the right of appeal to the Queen from final judgments of the Court of Queen's Bench, which, it was said, was part of the procedure in civil matters exclusively assigned to the legislature of the province. The answer to this objection is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates, without interfering with and modifying some of the original rights of property, and other civil rights, nor without providing some mode of special procedure for the vesting, realization, and distribution of the estate, and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, that the Imperial statute, in assigning to the Dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights and procedure within the provinces, so far as a general law relating to those subjects miglit affect them.”
The power of the Dominion parliament to regulate the procedure in connection with the trial, by provincial courts, of controverted election cases, arising out of elections to the House of Commons, has scarcely been questioned. The language of the Judicial Committee of the Privy Council, in Cushing v. Dupuy, applies mutatis
(k) 5 App. Cas. 409.