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the argument is pushed to this length, that the constitutions of the pre-Confederation provinces were, by the B. N. A. Act, completely wiped out, and that the powers, both legislative and executive, of the post-Federation provinces --and without regard to any necessary connection between these two departments of government—are such only as are to be found expressly set out in the B. N. A. Act. If that is the result of the enactment, never did legislation fail more egregiously in carrying out of the design of its promoters. The Quebec Resolutions convey no hint that the negotiating provinces desired more than to establish a “federal” union on terms which would be just to the provinces, and leave their autonomy, as to matters local, unimpaired. But these Resolutions, if proper to be referred to at all, can perhaps be cited to aid only in the construction of doubtful or ambiguous phraseology in the B. N. A. Act (e), and, therefore, the terms of the Act itself must be looked at carefully on this point. But, first, it is necessary to advert to the inaccuracy of the phrase, "residuum of power.” Aş has already been pointed out, there is not, under a federal system, any necessary division of power, in the proper sense of the term; the essential division which exists, being a division of the subjects proper for governmental regulation, into two classes of mattersmatters of “national,” and matters of “local” concern. Just what matters belong to the one class, and what to the other, is a question upon which, as we have said, opinion may vary, but whether the matters of “national” concern are enumerated, and the residuum left as of “local” concern (as by the U. S. constitution), or the matters of "local" concern enumerated, and the residuum left as of “national” concern (as is partially the case with us), is matter of indifference, so long as the enumerated class is sufficiently comprehensive to satisfy public opinion, at the time, as to the proper line of division. But what is essen
(e) See post, Chap. X.
tial, is, that to the full limits of the matters entrusted to each government, national or local, the power of governmental action should be full and complete. It will be noticed, of course, that the division effected by the B. N. A. Act is a division of matters for legislative action, but this must involve a division along the same line for executive action. Any other arrangement would be a clear departure from that principle of the British constitution, upon which we have dwelt at some length in earlier pages—the supremacy of the maker of a law over the executor of that lawa principle which is dominant in every Anglo-Saxon community, unless, indeed, Canada is now, as is claimed, the exception.
That principle, as we have pointed out, clearly obtained in the pre-Confederation provinces as the result of the long struggle for “responsible government,” and it is important therefore to ascertain whether, under the B. N. A, Act, the provincial constitutions continue; for if so, then the same connection between the legislature and the executive, which existed before confederation, must still continue. with respect to the subjects of provincial cognizance.
Any complication which may exist in connection with this question has arisen from what has been termed “the necessities of the draftsman.” One cause of the support given in the two parts of (old) Canada, to the scheme propounded by the Quebec Resolutions, was that it made provision for the severing of the tie of legislative union between them; and the carrying out, in one Act of parliainent, of this design and the larger federal scheme, necessitated first the severance of that tie, and then the creation by the Act of a federal union between the four provinces. But, while on the one hand this necessity, and the mode of meeting it, adopted in the Act, has provided a small peg on which to hang an 'argument adverse to the provinces (f),
(f) As a matter of construction, it would appear that secs. 5, 6 and 7, point merely to the territorial limits to be assigned to the different provinces of the Confederation.
it has also provided several others, upon which a very strong argument may be heaped, in support of the full autonomy of the provinces in relation to the subjects allotted to them. Old Canada being thus divided into its original divisions,—with new names,-it became necessary to make provision for the establishment of new governmental machinery, legislative and executive, in Ontario and Quebec. Eliminate from the Act all clauses inserted to this end; consider Ontario and Quebec as having had governmental machinery such as existed in the Maritime Provinces; and the Act would clearly appear as an Act for the establishment of feileral machinery only, for drawing the line of division between matters proper for the consideration of the “ general” government, and those proper for the consideration of the “local ” governments, and for the making over to the federal government of certain portions of the assets and revenue-producing powers of the provinces. The very use of the term federal in connection with the creation of a central government for territory occupied by previously existing governments, mutually independent, would seem to imply the continued existence of the individual governments, parties to the fierlus; and the fact that no provisions were made for Nova Scotia and New Brunswick, similar to those made for Ontario and Quebec, would appear to point to the conclusion that the governmental machinery of those provinces was to continue as before, employed, of course, upon a somewhat smaller range of matters.
The type of governmental organization in the preConfederation provinces was one and the same a single executive head (assisted by an executive council), and a legislature (9)--and the principle upon which the whole worked in the actual government of the provinces was the principle of executive responsibility to the electorate
(9) The existence or non-existence of a second chamber is in no way material.
through the legislature. The B. N. A. Act makes provision, as to all the provinces, for a single executive head in each, but judging from the absence of any provision for the appointment of the Governor-General, it may be doubted if such provision would have been erpressly made in regard to the Lieut.-Governors, had it not been intended to alter the mode of appointment, so as to make each provincial executive head, a link in the chain of federal connection (h). As to the “powers, authorities, and functions” of that executive head, they are particularly mentioned only as to Ontario and Quebec (i), and as to those two provinces only so far as they were dependent for their existence upon statutes, either of the Imperial parliament or the parliaments of (Old) Canada. This latter limitation has been urged as supporting the view that certain of the “
powers, authorities, and functions”—those depending for their efficacy upon the common luu-exercisable by the Governors (or Lieutenant-Governors) of the pre-Confederation provinces, are now, even as to matters within the legislative authority of Ontario and Quebec, exercisable only by the Governor-General.
We shall deal with this contention in a moment, merely remarking now that such a construction of the Act, would create diversity in the position of the different provinces, and would be a departure from the principle insisted on, as apparent throughout the British constitution—the co-extensive and complementary sphere in government, of the executive and legislative departments. The matter material to be now noted is, that these statutory powers had been conferred upon the holder of a particular office which was now to be divided, and therefore a statutory re-allotment, so to speak, had to be made. The language of the section to which we are now referring (sec. 65), and of what may be called its companion section (sec. 12), bears out, too, our
(n) Compare secs. 10 and 58, B. N. A. Act, 1867. (i) B. N. A. Act, sec. 65.
criticism of the phrase, “division of power," inasmuch as both sections carefully avoid using any such term as "division.” Treating the “powers, authorities, and functions” conferred by previous legislation as a sum total, they carefully provide that all these powers, etc., so far as they are capable of being exercised after the union, in relation to the government of the Dominion and the provinces respectively, shall be vested in the Governor-General, or in the Lieutenant-Governors, as the case may require.
To revert now to the argument founded on the limitation of sections 12 and 65 to statutory "powers,” etc. We have already indicated “the necessities of the draftsman," as the reason for their insertion in the Act. But for that necessity, they would not have appeared, and we should have to look to some other part of the Act in order to ascertain the position of the executive head of the different provinces, as, indeed, we have to do with reference to Nova Scotia and New Brunswick. If there were no express provision, we should still contend that, as executive head of the province, a Lieutenant-Governor is invested with all the "powers, authorities, and functions” necessary to carry on the government of the province—that wherever provincial legislation requires, in order to its complete and efficient enforcement, the sanction of executive action, all the "powers, authorities, and functions” (prerogative and otherwise) necessary to such enforcement, reside in, and are exerciseable by, the executive head of the provincial government (j). But we are not limited to this application of legal principles, incontestable though they be. Sec. 129 of the B. N. A. Act is clear
this matter: "Except as otherwise provided by this Act, all laws in force in Canada, Nova Scotia or New Brunswick, at the Union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers and authorities, and all officers, judicial, administra
(1) See judgment of Burton, J.A., in Atty.-Gen'l (Can.) v. Atty.Gen'l (Ont.), 19 O. A. R. 38.