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mutandis to legislation upon this subject, which by section 41 of the B. N. A. Act, is clearly with the Dominion parliament (1). The controversy which has arisen as to the power of the Dominion parliament to refer such cases for determination by provincial courts, has been settled in affirmance of the power (m).
So far as provincial courts are concerned, the provincial legislatures have full control of them, subject only to the appointing power of the Dominion government in reference to those mentioned in section 96 of the B. N. A. Act—the Superior, District, and County Courts in each province, excepting the Probate Courts of Nova Scotia and New Brunswick—and to the power of the Dominion parliament to regulate the procedure in the sense above explained. This jurisdiction over provincial courts is not limited to those which were in existence at the Union, but extends to the creation of such new provincial courts (1), with such jurisdiction, and with such judicial and administrative staff, as to the provincial legislature may seem proper for “the administration of justice in the province,” which phrase is used in its widest sense. It covers the appointment of all officers connected with the administration of justice (0), with the exceptions noted. The question has been much discussed in connection with the appointment of police magistrates and justices of the peace, and has been complicated somewhat by considerations as to the prerogatives of the Crown in this connection. With this phase of the question we have already dealt (p). It is now settled, subject to review by our Supreme Court, and the Judicial Committee of the Privy Council, that the
(1) See notes to that section, post. (m) Stee ante, pp. 231-2, and notes to s. 41 of the B. N. A. Act, post.
(n) Reg. v. Coote, L. R. 4 P. C. 599; Ganong v. Bayley, 1 Pug. & Burb. 324.
(0) Reg. v. Bush, 15 0. R. 398, per Street, J. See passage quoted post.
(p) See Chap. VI., and Chap. VIII. ante, p. 165.
appointment of justices of the peace and police magistrates, relates to “the administration of justice” (which term is to be read in its broad sense, and qualified only by the power of the Dominion parliament under sections 96 and 101), and rests therefore with the provinces. The situation is thus summed up by Armour, C.J., in Reg. v. Bush (9):
“Laws providing for the appointment of justices of the peace are, it is contended, and I think rightly, laws in relation to the administration of justice, for the appointment of justices of the peace is a primary requisite to the administration of justice ; and if this contention be correct the passing of such laws is exclusively within the power of the provincial legislatures.
• There is a considerable weight of judicial opinion in favor of this contention, and although not binding upon us, yet in a matter of construction such as this, it ought not to be lightly dissented from."
And he refers to a number of authorities, which will be found collected in the notes to section 92, sub-section 14. Mr. Justice Street says, referring to the language of subsection 14 :
“Now, these words, standing alone and without any interpretation or context, appear to me to be sufficient, had no other clause in the Act limited them, to confer upon the provincial legislatures the right to regulate and provide for the whole machinery connected with the administration of justice in the provinces, including the appointment of all the judges and officers requisite for the proper administration of justice in its widest sense, reserving only the procedure in criminal matters."
And he refers to sections 96, 100, and 101 as the only sections in any way limiting the meaning to be given to sub-section 14, and then proceeds:
“Everything coming within the ordinary meaning of the expression, “ the administration of justice,” not covered by the sections which I have referred to, therefore, remains, in my opinion, to be dealt with by the provincial legislatures, in pursuance of the powers conferred upon them by paragraph 14 of section 92.”
(9) 15 O. R. 399.
In re Simmons and Dalton (r), it was held by Mr. Justice Proudfoot that the High Court of Justice for Ontario—the “Superior Court” of that province-has jurisdiction to supervise the exercise of judicial functions by a “ federal” Court-e.y., the Revising Officers Court under “The Electoral Franchise Act” (R. S. C. c. 5)—but this decision has been overruled by the Divisional Court of the Chancery Division ().
The Chancery Division has, in common with the other divisione of the High Court of Justice, plenary jurisdiction to deal with matters of prohibition which concern the alministration of justier within Ontario as a provincial unit. This (inherent) power is circumscribed by the requirements of the province, and operates, I think, only as to laus enacted by or in force in Ontario pertaining to matters of prorinciul comisance under the B.V. d. Act."--Per Boyd, C.
Courts, or judicial tribunals, established under Dominion legislation--limited as their functions must be to administering Dominion law (t)-are entirely outside of “the administration of justice in the Province,” and “are not suborilinate judicial Courts quom the Province.” (11).
(7) 12 O. R. 505.
(s) re North Perth, 21 O. R. 538. (1) See ante, p. 229.
(u) 21 0. R. at p. 513 ; ses further on this subject, notes to s. 41 of the B. N. A. Act, post.
THE B. N. A. ACT, 1867,
30-31 Vic. CAP. 3.
An Act for the Union of Canada, Nova Scotia, and
New Brunswick, and the Government thereof; and for Purposes connected therewith.
[29th March, 1867.]
WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire (i) to be federally (ii) united into one Dominion under the Crown of the United Kingdom (iii) of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom (iv):
(i) “ Have expressed their desire.”—This expression of desire is to be found in the Quebec Resolutions, which will be found printed in full in the appendix. See ante, p. 2.
(ii) “ Federally.”—The use of this term would seem to imply the continued existence of the parties to the fredus. See chapter III., ante, p. 47; and see also the judgment of the Privy Council in Liquidators of Maritime Bank v. Receiver-General of New Brunswick (a).
(a) At present only reported in Times Law Reports for week ending 6th July, 1892 (Vol. VIII., p. 677).
(iii) “ Under the Crown of the United Kingdom.”—See notes to section 2, post ; and see also, as to the necessary saving of Imperial sovereignty in colonial legislation, chapter IX., ante, p. 183, et seq.
(iv) “A constitution similar in principle, etc.”—For a comparison and contrast of our system of government, with those of the United Kingdom and the United States, see chapter I. As to the limitation of this preamble to the Dominion government only, and the harmlessness of such limitation, see ante, p. 3, and chapter III. It is submitted, however, that read in connection with clause 3 of this preamble, it should be treated as a general reference to the type of governmental machinery, and its working principle throughout both the Dominion and the various provinces.
And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire :
And whereas on the establishment of the Union by authority of Parliament (i) it is expedient, not only that the Constitution of the Legislative authority (ii) in the Dominion be provided for, but also that the nature of the Executive
Government (iii) therein be declared : (i) “ By authority of parliament.”—As to the legislative supremacy of the Imperial parliament over Canada, in common with all other parts of the British Empire, see chapter IV. In the early days of our colonial history provinces were divided, and again joined together by the Crown in the exercise of "prerogative," but as representative legislatures were in existence in the pre-Confederation provinces, any attempt to effect their union otherwise than by Act of the Imperial parliament would have been illegal.