clude provincial or municipal legislation by creating new crimes is a question.

"This being the view which I take, I think that the act of keeping a common gaming house cannot be made an offence by provincial statute or by municipal by-law, but that it can be punished only as an offence against the general criminal law by indictment or such other procedure as the parliament of Canada may provide."

It will be noticed that the language of this judgment goes beyond what was necessary to the decision of the case, and the part italicised conflicts with sec. 129 of the B. N. A. Act. See ante, p. 410. On appeal, however, to the full Court, Taylor, C.J., intimates his entire concurrence with the view expressed by Killam, J. He speaks of the offence as one which might have been dealt with under the Dominion statute R. S. C. c. 158. Referring to Regina v. Wason (p), before the Court of Appeal for Ontario, he points out that the offence created by the provincial Act there impugned formed no part of the criminal law previously existing, and that the apparent object of the Act was to protect private rights rather than punish public wrongs. Mr. Justice Bain, referring to the same case, says:

66

The remarks of all the judges clearly imply that had the Act in question been one that was punishable as a crime under the general criminal law of the Dominion, the matter would have been ultra vires of the legislature."

Mr. Justice Dubuc did not dissent from the judgment of the court, but expressed his doubts in these words :

"It is objected that keeping a gambling house is a criminal offence over which the Dominion parliament has exclusive jurisdiction. It is, undoubtedly, a criminal offence; but I am inclined to think that such houses might also be regarded as centres of disorder and immorality in the community, which municipal corporations have a right and even a duty to suppress."

We might remark, in reference to this case, that the

(p) 17 O. A. R. 221.

ultimate decision of the point raised by Mr. Justice Dubuc will depend somewhat upon the scope given to section 92, sub-section 8" municipal institutions in the province." If the views expressed by the Court of Appeal for Ontario in Re Local Option Act (q), receive final sanction, and the term "municipal institutions" be held to cover, in the newly acquired provinces, what the Court of Appeal has held it to cover in the province of Ontario, then the view to which Mr. Justice Dubuc inclined would be supported by the fact that prior to Confederation, the power to put down such establishments was vested in municipal bodies, in Upper Canada at least. If, however, the powers of a municipal body cannot, so far as those powers are conferred by a provincial legislature, extend beyond the limits of the powers directly exerciseable by such legislature (r) under the other sub-sections of section 92, it will have to be considered whether any sub-section does support the grant to a municipal body of what have been called police powers. This must be discussed later, but, in either view, the point raised by Mr. Justice Dubuc would necessitate consideration of what was said by the Privy Council in Russell v. Reg., that, in one aspect, a subject may fall within section 91, and, in another, within section 92, and of how far that principle can apply to the determination of the scope of this sub-section 27 and sub-section 15 of section 92.

Provincial statutes regulating the killing and possession of game at certain seasons of the year, were held by the Court of Queen's Bench in Manitoba, not to fall within this sub-section (8). At common law, no prohibition whatever exists in regard to the taking of game at any season of the year; no public general statute of the Dominion purports

(q) 18 O. A. R. 572; see notes to s. 91, s-s. 2, ante. p. 369 and to s. 92, s-s. 8, post.

(r) See Leprohon v. Ottawa, 2 O. A. R. 522, referred to in the notes to s-s. 8 of s. 92, post.

(8) Reg. v. Robertson, 3 Man. L. R. 613; see also notes to s-s. 16 of s. 92, post.

to make criminal interference with wild animals; and therefore the matter is under the B. N. A. Act, left to be dealt with by each province as a matter of a merely local or private nature. This view is suggested by the judgment of the court in that case; that, if by reason of inter-provincial migration of birds and other game, the subject should become one of the Dominion or quasi-national importance, it would then be in order for the Dominion government, if deemed advisable, to enact laws, making acts, which might tend to the extermination or undue decrease of game, criminal.

That provincial legislatures have exclusive authority to regulate the procedure in prosecutions for offences against provincial statutes is now recognized as the law in all the provinces.

In Regina v. Roddy (t), it was held that a provincial statute could so far create a crime as to make applicable to the prosecution therefor the rules of evidence, procedure, etc., laid down by Dominion legislation, to the exclusion of any provincial law; but this decision has been clearly overruled by Regina v. Wason (u). This case will be found referred to more at length in the notes to sub-section 15 of section 92. It is a clear authority that the provincial legislatures have full power to regulate procedure in all prosecutions arising under provincial Acts. As will be seen, the authorities in the other provinces are to the same effect.

On the other hand, in Regina v. Lake (v), it was held that a provincial legislature has no power to enact that an offence against a Dominion Act (in that case the Canada Temperance Act), may be treated as, and be proceeded upon, under a provincial statute; and in Regina v. Eli (w), also a prosecution under the Canada Temperance Act, it was held

(t) 41 U. C. Q. B. 291; see Reg. v. Bittle, 21 O. R. 605.

(u) 17 O. A. R. 221.

(r) 43 U. C. Q. B. 515.

(w) 13 O. A. R. 526.

that all procedure connected with the infliction of punishment for offences against that Act must be fixed by the Dominion parliament, and that no appeal lay to the Court of Appeal under the procedure as to appeals laid down by provincial statutes. To the same effect are many dieta of judges in the other provinces in cases involving the other aspect of this question of procedure. The latest enunciation of the rule is in The Queen v. De Coste (r), in which the Supreme Court of Nova Scotia held that a provincial legislature has no power to authorize the removal by certiorari of a conviction under the Canada Temperance Act. This agrees with the decision in all the provinces.

We should note, also, that in Ward v. Reid (y), it was held by the Supreme Court of New Brunswick, that the Dominion Act, 32 & 33 Vic. c. 31, s. 78, which provided that penalties against justices of the peace for the nonreturn of convictions, may be recovered in an action of debt by any person suing for the same in any court of record, was within the competence of the Dominion parliament, and that a provincial enactment declaring that county courts should not have jurisdiction in such cases, was thereby overborne. It is submitted that the Dominion Act can only be held to apply to convictions for offences under Dominion legislation, and can have no application to convictions for offences against provincial laws.

Although we defer consideration of the excepted matter of the constitution of courts of criminal jurisdiction, we should here make reference to some cases in which question has arisen as to the nature of the legislation impugned, whether relative to the "constitution' of the court or to procedure.

In Regina v. Bradshaw (), it was held that trial with or without jury is a question of procedure, and is not

(x) 21 N. S. R. 216.

(y) 22 N. B. Rep. 279; 3 Cart. 405.

(z) 38 U. C. Q. B. 564.

a matter relating to the "organization" of courts. The validity of Dominion legislation adopting, for purposes of criminal trials, provincial law in reference to the selection. of jurors was upheld in Reg. v. O'Rourke (a), a case sufficiently referred to in Reg. v. Plante, about to be noted.

In reference to the provision in the Dominion Criminal Procedure Act (see R. S. C., c. 174, s. 160), adopting the provincial jury law, this saving clause is inserted: "subject always to any provision in any Act of the parliament of Canada, and in so far as such laws are not inconsistent with any such Act." Section 166 of the same statute makes provision for a mixed jury, when duly demanded in the province of Quebec, and section 167 makes a somewhat similar provision for the province of Manitoba. In the latter province, prior to 1890, the jury laws were adapted and conformed to the requirements of the Criminal Procedure Act. There were provisions for the selecting, summoning and impanelling of French-speaking jurors in case a mixed jury was required, but in 1890 these provisions were repealed. In Queen v. Plante (b), the defendant. demanded a mixed jury, or a jury composed of at least six persons skilled in the language of the defence, as prescribed for in section 167 of the Criminal Procedure Act, but such a jury could not be obtained. Upon a case reserved, the majority of the court gave judgment, quashing the case, upon the ground that, as judgment had been given on demurrer at the trial upon the point raised, it had become matter of record and could not therefore be reserved, a writ of error being the only remedy. Mr. Justice Dubuc dissented from this view, and therefore found it necessary to consider the constitutional question. involved. After referring to Regina v. O'Rourke and the views of Wilson, C.J., and Hagarty, C.J., therein expressed, his judgment proceeds:

(a) 1 O. R. 465; 32 U. C. C. P. 388; see note (h) ante, p. 202. (b) 7 Man. L. R. 537.

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