Government of Nova Scotia

Brunswick (i).

64. The Constitution of the Execu- Executive tive Authority in each of the Provinces of and New Nova Scotia and New Brunswick shall, subject to the provisions of this Act (ii), continue as it exists at the Union until altered under the authority of this Act (iii).

(i) The early constitutions of the Maritime Provinces will be found treated of in chapter II., ante. In chapter III. we have pointed out the importance of this section, taken in connection with section 88, as showing that in the Maritime Provinces at least, the old provincial constitutions are continued; the sphere of their authority being, of course, under the B. N. A. Act, limited to a smaller range of matters. See also notes to section 58, ante.

(ii) "Subject to the provisions of this Act."-That is to say, subject to the change in the mode of appointment of the executive head of the province, and subject also to those provisions of the B. N. A. Act, which limit the provincial sphere of authority. These are the only provisions of the Act which in any way limit the full operation of this section, unless perhaps the group of clauses which deal with the division of assets-see section 102, et seq, post,may be said to be provision relating to the provincial constitutions. See particularly the notes to the word royalties" in section 109.

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(iii) “ Until altered under the authority of this Act.” — That is to say, until altered by the provincial legislative assemblies, under section 92, sub-section 1. See notes thereto.

exercised by Lieutenant

65. All powers, authorities, and func- Powers to be tions which under any Act of the ment of Great Britain, or of the ment of the United Kingdom of

Ontario or

Parlia- Governor of
Parlia- Quebec with
Great alone (i).

advice or

Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively, with the advice or with the advice and consent of or in conjunction. with the respective Executive Councils, or any members thereof, or by the Lieutenant-Governor individually, as the case requires, subject neverthless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respective Legislatures of Ontario and Quebec (ii).

(i) See notes to section 12. ante. p. 256; and see also chapter III., p. 48, et seq. The powers here referred to are statutory powers. No such provision is made in reference to Nova Scotia and New Brunswick, nor in the Orders in

Council admitting Prince Edward Island and British Columbia to the Dominion. Owing to the division of (Old) Canada into Ontario and Quebec, it was necessary to provide for the exercise of the powers, etc., which had theretofore been exercised by the Governor or LieutenantGovernor of the old provinces; and by section 12, all such powers are vested in the Governor-General, so far as the same are capable of being exercised in relation to the government of Canada, while, by this section, the very same powers, in their entirety, are vested in the Lieutenant-Governors of Ontario and Quebec respectively. The two sections, taken together, effect no division of power, but provide simply for the exercise of the same powers in the different spheres of authority created by the B. N. A. Act. In Gibson v. McDonald (d), Mr. Justice O'Connor, referred to a slight difference in the wording of this section, as compared with section 12,-the words "as far as the same continue in existence," which appear in the 12th section, being omitted from this 65th section-indicating, in his opinion, that some powers continued to exist in relation to the Dominion, and were vested therein, which did not continue to exist in relation to the provinces. It is difficult to imagine what idea in the mind of the draftsman led to this difference in phraseology. The governments. of the Dominion and of the provinces of Ontario and Quebec were all, in a sense, new creations. The exercise of these powers, etc., in relation to the government of the Dominion cannot be said to be a continuation of them, while, in a sense it may be so spoken of in relation to the governments set up by the B. N. A. Act, in Ontario and Quebec. It is impossible to assign any difference in meaning to the two sections, owing to this difference in phraseology Their effect is sufficiently clear, that all these powers, etc., are to be vested in the executive head of the Dominion and of each provincial government, so far as they are capable of

(d) 7 O. R. 401.

being exercised in relation to those governments respectively.

The fact that the B. N. A. Act does effect a clear division of the "sphere of authority," seems not to have been appreciated in Regina v. Amer (dd), where Mr. Justice Wilson treats these two sections as vesting the same power in the Governor-General and a Lieutenant-Governor in reference to the same subject matter. In view of the subsequent discussions which have taken place in reference to the scheme of the B. N. A. Act, the words which we have italicized, would seem to be an incorrect construction of these two sections.

In Attorney-General for Quebec v. Reed (8 S. C. R. 408, affirmed on appeal, 10 App. Cas. 141), it was contended that the Quebec Act, 43 & 44 Vic. c. 9, which imposed a duty, to be paid in stamps, upon every "exhibit" filed in court in any action depending therein, might be supported under C. S. L. C., c. 109, section 32, which gave to the government of (Old) Canada, power to impose by Order in Council such a duty on exhibits. This contention is thus disposed of in the judgment of the Judicial Committee of the Privy Council:

"With regard to the third argument, which was founded upon the 65th section of the Act, it was one not easy to follow, but their Lordships are clearly of opinion that it cannot prevail. The 65th section preserves the pre-existing powers of the Governors or Lieutenant-Governors in Council to do certain things not there specified. That however was subject to a power of abolition or alteration by the respective legislatures of Ontario and Quebec, with the exception of course of what depended on Imperial legislation. Whatever powers of that kind existed, the Act with which their Lordships have to deal neither abolishes nor alters them. It does not refer to them in any manner whatever. It is said that among those powers, there was a power, not taken away, to lay taxes of this very kind upon legal proceedings in the courts, not for the general revenue purpose of the

(dd) 42 U. C. Q B. 391.

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province, but for the purpose of forming a special fund called The Building and Jury Fund," which was appropriated for purposes connected with the administration of justice. What has been done here is quite a different thing. It is not in aid of the Building and Jury Fund. It is a legislative Act, without any reference whatever to those powers; if they still exist, quite collateral to them; and, if they still exist, it is capable of being exercised concurrently with them."

See further as to this case, section 92, sub-section 2. The power of the Lieutenant-Governor to impose, by Order in Council, such tax as was in question in Attorney-General v. Reed, has been entirely abrogated by the limitation of provincial powers of taxation to direct taxation; a limitation which, it is submitted, applies to all the revenue producing powers of provincial governments. This point is referred to, but not decided in Attorney-General v. Reed; see 10 App. Cas. at p. 145. A reference to the judgment of Gwynne, J., in the Supreme Court-see 8 S. C. R., at p. 432-will show that, in his view, this limitation does so apply. See, also, the decisions of the Manitoba Courts referred to in the notes to sub-section 2 of section 92, post.

In Lenoir v. Ritchie (3 S. C. R. 575) the question of the power of the Nova Scotia Provincial Assembly to authorize the Lieutenant-Governor to appoint Queen's Counsel, and to assign precedence, as between those Queen's Counsel and those appointed by the Dominion Government, was under consideration. Before Confederation, the question was not regulated by any statutory enactment, but the Governors and Lieutenant-Governors of the various provinces had been in the habit of exercising the prerogative of the Crown in this regard. After Confederation, the government of the Dominion claimed that the GovernorGeneral, as representative of Her Majesty in Canada, was alone entitled to exercise this prerogative. It was treated as falling within the class of prerogatives vested in the Crown as the fountain of honour-treated so to speak as a prerogative-at-large, not connected with any particular