"I perfectly agree with those views. I think that the jury, when empanelled and sworn, became part of the constitution of the court; but, at the same time, I am of opinion that the selecting and summoning of jurors are matters of criminal procedure over which the Dominion parliament has exclusive jurisdiction. It being so, section 169 of the Criminal Procedure Act, by which the power to select and summon jurors is delegated to the province, must be held to be intra vires. As, therefore, the provinces exercise the power of selecting and summoning jurors only by delegation of the Dominion parliament, and as, by section 160, the delegation is made 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,' it follows that section 167 of the Criminal Procedure Act, by which, in Manitoba, that power, delegated to the province, of selecting and summoning jurors is qualified in providing for a mixed jury when duly demanded, is also intra vires.

66

The authority to delegate implies the authority to qualify and restrict the power delegated. By section 160, in delegating to the provinces the power of selecting and summoning jurors, the parliament of Canada reserved to itself the right to make provisions in regard to the same. The parliament of Canada, by said section 167, has prescribed and determined what kind of jury shall, in certain cases, be required for criminal assize. It follows that any jury summoned to serve at a criminal assize, and different in its composition from the jury required by the provisions of section 167, may be, by any prisoner entitled to the benefit of such provisions, challenged as not properly and duly summoned " (c).

28. The Establishment, Maintenance, and Management of Penitentiaries.

29. Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces

(c) See also Reg. v. Foley, 2 Cart. 658 (n).

Referring to the various sub-sections of section 92, the only express exceptions are those mentioned in sub-sections 1 and 10. With reference to the latter we need say nothing here, as the notes to that sub-section discuss the matter with sufficient fullness. As to the former, it is submitted that this sub-section 29 does not apply to warrant the Dominion parliament in amending the provincial constitutions "as regards the office of Lieutenant-Governor." Any such legislation would be repugnant to the spirit, if not the express terms, of the B. N. A. Act. The office of the Lieutenant-Governor is, as we have frequently remarked, a link in the chain of connection between the provinces and the Empire, and the whole spirit of the B. N. A. Act is that this is one of those fundamental matters in connection with the scheme of Canadian political organization, which is matter of Imperial concern. This is recognized in that passage of the judgment of the Privy Council in Liquidators of Maritime Bank v. Receiver-General of New Brunswick (d), in which their Lordships say that the Dominion government is, in relation to a Lieutenant-Governor, "a governing body, who have no powers and no functions except as representatives of the Crown."

And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.

As to the wide effect given to this concluding clause in the earlier decisions in our courts, see chapter X., ante, p. 207. Its reference to sub-section 16 of section 92 is now clearly settled by authority. In L'Union St. Jacques v.

(d) Times L. R. Vol. VIII. 677; see ante, p. 307.

Bélisle (e), Lord Selborne lays it down that the onus is on the party who contends that any matter, "being of a private nature," does also come within the class of subjects specially enumerated in the 91st section. Note, too, the way in which the reporter quotes this clause, putting "matters of a local or private nature in inverted commas as a quotation from section 92, sub-section 16. See also Dow v. Black (f), and Citizens v. Parsons (g) where the grammatical connection with sub-section 16 of section 92 is clearly pointed out. In note (xi) to section 91, ante, p. 352, we have pointed out the bearing of this clause on the question as to the power of the Dominion parliament to pass "private Acts," and the notes to sub-section 16 of section 92 contain further reference to it.

Subjects of

exclusive Pro

vincial Legis

Exclusive Powers of Provincial Legis

latures.

92. In each Province the Legislature

lation. may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say:

As to the powers, other than legislative, and the privileges and immunities of provincial legislatures, see the notes to section 69, ante, p. 326. The notes to the opening clause of section 91 should be read preparatory to the consideration of the various sub-sections of this section 92.

1. The Amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the office of Lieutenant-Gov

ernor.

(e) L. R. 6 P. C. 31.

(f) L. R. 6 P. C. 272, at p. 282.

(g) 7 App. Cas. 96, at p. 108.

When, in the early 'fifties, it was considered desirable to make the Legislative Council of (Old) Canada elective, it was thought that nothing short of Imperial legislation could effect the change; that any colonial legislation to that end would be "repugnant" to the provisions of the Union Act, 1840, which prescribed the form of political organization in the province. Accordingly, an Imperial Act (17 & 18 Vic. c. 118) was passed (h) authorizing the parliament of Canada to make the desired change. The Act authorized further alteration, from time to time, but with the proviso that any Bill for such purpose should be reserved for the signification of Her Majesty's pleasure thereon; and it also repealed certain clauses of the Union Act limiting the power of the Canadian parliament in the matter of making alteration in the membership of the Legislative Assembly of the Province.

When, in the early sixties, the legislature of South Australia desired to alter the constitution of the Legislative Council and House of Assembly of that colony, Imperial intervention was not sought. Doubts were, in consequence, raised as to the validity of the colonial Acts by which the desired change had been enacted, and, to set at rest these doubts, 26 & 27 Vic. c. 84 (Imp.) was passed, by which it was enacted:

"All laws heretofore passed or purporting to have been passed by any colonial legislature with the object of declaring or altering the constitution of such legislature, or of any branch thereof, or the mode of appointing or electing the members of the same, shall have, and be deemed to have had, from the date at which the same shall have received the assent of Her Majesty, or of the Governor of the colony on behalf of Her Majesty, the same force and effect for all purposes whatever as if the said legislature had possessed full powers of enacting laws for the objects aforesaid, and as if all formalities and conditions by Act of parliament or otherwise prescribed in respect of the passing of such laws had been duly observed."

(h) See it printed in full in Houston's "Const. Doc. of Can." at p. 177.

but this Act though applicable to all the colonies of the Empire was retrospective, merely, in its operation.

In the next year, however, was passed the Colonial Laws Validity Act, 1865, to many of the provisions of which we have already referred. The Act is one of such importance, that, although we have quoted nearly every section of it in various parts of this book, we have given it a place in the appendix, in order that it may be studied in its entirety. Upon our present subject, the important clause is the 5th, enacting that

"Every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of parliament, letters patent, order in council, or colonial law for the time being in force in the colony."

Such was the position of affairs at the time the B. N. A. Act, 1867, was passed. What is the effect of this later Imperial Act, in respect of the applicability, to the legislative bodies now existing, under it, in Canada, of this clause of the Colonial Laws Validity Act, 1865. We have already discussed this question, to a slight extent, in reference to the power of the Dominion parliament-see ante, p. 280— and have pointed out that under the words "to make laws respecting the constitution" no power is conferred by the clause upon any colonial legislative body to enlarge the sphere of its legislative authority. A fortiori, the fact that by the B. N. A. Act, the field for the exercise, in Canada, of colonial legislative power is exhaustively divided, into divisions exclusive each of the other, clearly prevents any such enlargement, by any one of our legislatures, of the sphere of its authority. The word "constitution," therefore, must be limited to the defining how, within its allotted sphere, the work of government, legislative and executive, is to be carried on what is to be the machinery of government.