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judgment of the Judicial Committee of the Privy Council, in Bank of Toronto v. Lambe (r) :
“ Their Lordships have to construe the express words of an Act of parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative bodies, and at the same time provides for the confederated provinces a carefully balanced constitution under which no one of the parts can pass laws for itself, except under the control of the whole acting through the Governor-General.”
(5) “ The signification of pleasure on bills reserved.” See section 57 ; also chapter VII, ante, p. 149.
(ii) “ One year.”—In chapter VII. (ante, p. 149), we have pointed out that upon the expiration of the two years allowed by section 56 for the disallowance by the Queen in Council of Dominion legislation, no act of Imperial executive authority can thereafter weaken its effect; that nothing short of “repugnant ” Imperial legislation can override it. The first proposition is equally applicable to the position of the Dominion executive in reference to provincial legislation after the expiration of the one year allowed by this section 90 for its disallowance. The second proposition has no application, except in the case of section 95. Upon the expiration of the year, no power short of Imperial legislation can interfere with the operation of a provincial Act, passed in relation to a matter within its legislative competence. The Dominion legislature cannot interfere because the legislative powers of the Dominion and of the provinces are exclusive, each of the other. See chapter X., (Inte, p. 206.
VI.—DISTRIBUTION OF LEGISLATIVE Powers (i).
Powers of the Parliament (ii). 91. It shall be lawful for the Queen authority of (iii), by and with the advice and consent Canada. of the Senate (iv) and House of Commons
(r) 12 App. Cas. at p. 587.
(v) to make laws for the peace, order, and good government (vi) of Canada, in relation to (vii) all matters not coming (viii) within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater certainty (ix) but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive (x) Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated (xi); that is
to say : (i) “ Distribution of legislative powers.”—As a preliminary to the study of this and the following section, chapters X. and XI. (particularly the former) should be carefully read. In chapter X. we have endeavored to collect from the cases-particularly those which have been decided by the Judicial Committee of the Privy Council—what has been authoritatively laid down as to the nature of the division effected by the B. N. A. Act, and have noted also certain general rules of construction applicable to the interpretation of these two very difficult sections of the Act.
(ii) “Powers of the parliament.”—These powers are not exhausted by the various sub-sections. See notes to section 41, ante, p. 289, and section 132, post. Other sections, too, have been noted in which power has been expressly given to the parliament of Canada (the same is true of the provincial legislatures as well) to alter certain provisions of the B. N. A. Act in reference to the conduct of its business. But, apart altogether from these various sections dealing with special matters, the opening words of
section 91 clearly assign the unenumerated “residuum” of subject matters, proper to be legislatively treated by a colonial legislature, to the parliament of Canada, and various Acts of the Dominion parliament have been upheld although it was not possible to classify their provisions as falling within any of the various sub-sections of section 91.
For instance, in Russell v. The Queen (8), the Judicial Committee of the Privy Council upheld the provisions of the Canada Temperance Act upon this ground:
“If the Act does not fall within any of the classes of subjects in section 92, no furtlier question will remain, for it cannot be contended .. that, if the Act does not come within one of the classes of subjects assigned to the provincial legislatures, the parliament of Canada had not by its general power · to make laws for the peace, order, and good government of Canada,' full legislative authority to pass it."
In Citizens v. Parsons (t), the power of the Dominion parliament to incorporate companies with powers extending over the whole Dominion, or over more than one province, was clearly recognized as existing under the general words of this section. The following passage is taken from the judgment of Sir Montague Smith, in delivering the judgment of the Privy Council :
"Taschereau, J., in the course of his vigorous judgment, seeks to place the plaintiff in the action against the Citizens Company in a dilemma. He thinks that the assertion of the right of the province to legislate with regard to the contracts of insurance companies amounts to a denial of the right of the Dominion parliament to do so, and that this is, in effect, to deny the riglıt of that parliament to incorporate the Citizens Company, so that the plaintiff was suing a non-existent defendant. Their Lordships cannot think that this dilemma is established. The learned judge assumes that the power of the Dominion government to incorporate Companies to carry on business in the Dominion is derived from one of the enumerated classes of subjects, viz., 'the regulation of trade and commerce,' and then argues
(8) 7 App. Cas. 829.
(t) 7 App. Ca 3. 96.
that if the authority to incorporate companies is given by this clause, the exclusive power of regulating them must also be given by it, so that the denial of one power involves the denial of the other. But, in the first place, it is not necessary to rest the authority of the Dominion parliament to incorporate companies on this specific and enumerated power. The authority would belong to it by its general power over all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces; and the only subject on this head assigned to the provincial legislature being the incorporation of companies with provincial objects,’ it follows that the incorporation of companies with objects other than provincial falls within the general powers of the parliament of Canada."
In Re Briton Medical and General Life Association (1), it was held that the Dominion Acts which require a deposit with the Minister of Finance by foreign corporations seeking to do business within Canada, were intra vires.
In Re Wetherell and Jones (v1, the power of the Dominion parliament to pass an Act in reference to the taking of evidence in the various provinces for use before foreign tribunals, was upheld, as coming within the general words of this section 91. The provincial legislatures, it was held, have no power to pass such Acts, as in their operation, they are of extra-provincial pertinence, and do not relate to the administration of justice, or to property and civil rights in the province. It may be noted, too, that such laws in no way offend against the rules which have been laid down as to the territorial limitation upon the legislative power of a colony. The extra-territorial effect to be given to proceedings taken under such Acts depends upon the law of the country in which the evidence is to be used. Mr. Justice Torrance, of the Quebec Superior Court, had arrived at the same conclusion in Ex parte Smith (w), which came
(4) 12 0. R. 441. See further, on this subject of the incorporation, etc., of companies, the notes to s. 92, s-s. 10 and 11.
(2) 40. R. 713.
before him in 1872. He speaks of the Dominion Act in question, as an Act in relation to a matter of international comity.”
(iii) “ The Queen."-See notes to sections 9, 58 and 69, ante.
(iv) “ The Senate.”-See section 21, et seq.
(vi) “ The peace, order, and good government.”—This is an expression very frequently used in Imperial Acts creative of colonial constitutions (r), and it also occurs in many of the commissions to the early governors. The same words are used in 34 & 35 Vic., c. 28, giving the Dominion parliament legislative power over the territories. Their very wide scope is thus referred to in Riel v. Regina (y) *by Lord Chancellor Halsbury, in delivering the judgment of the Judicial Committee of the Privy Council:
It is not denied that the place in question was one in respect of which the parliament of Canada was authorized to make such provision, but it appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order and good government, cannot, as matters of law, be provisions for peace, order and good government in the territories to which the statute relates, and further that, if a court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order and good govercment, they would be entitled to regard any statute directed to those objects, but which the court should think likely to fail of that effect, as ultra rires, and beyond the competency of the Dominion parliament to enact. Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country, bave been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the
::) See note (1) p. 54, ante.
(y) 10 App. Cas. 675.