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that a provincial statute cannot prejudicially affect the rights of a person living out of the province in respect to personal property within. If, however, this is to be taken as more than a decision as to the proper interpretation to be given to the language of the provincial Act there in question, we find it very difficult to agree with it. Although, in a sense, that the law of the domicile governs as to personal property is a rule of private international law which has been admitted into the jurisprudence of many modern states, it is only so in the absence of express legislation in the country in which it is sought to be enforced, and, viewing the matter as a question of power, it seems to us that provincial legislation altering the law in this respect would fall within sub-section 16 of section 92. It may be thought that this view is inconsistent with what has been laid down in chapter IX., ante. The question is certainly one of considerable difficulty, but it seems to us that there is a clear distinction between rights arising from contract accrued abroad irrespective altogether of the locality of the property covered by the contract, and rights to be enjoyed by foreigners in respect to property situate in the province. There is no doubt a well recognized distinction between land and movables, but a reference to Von Savigny and other writers on this question of international law, will show that the rule is not by any means universal; and that, in tle jurisprudence of many modern states, the lex loci governs as well in reference to movables as to land and other immovable property.
We may also refer to the language of the Chancellor of Ontario, in Re North Perth («). The particular passage to which we refer will be found quoted at length, ante, p. 287. What is there said—although spoken in reference to rights enjoyed by voters as citizens of Canada-accords with the view above expressed, that this sub-section is not to be taken as dealing with a man's rights in relation to the
(d) 21 O. R. 538.
organized political institutions of a province, but, as the Chancellor puts it, “regards mainly the meum and tuum as between citizens." See also the language of the Judicial Committee of the Privy Council in Thèberge v. Landry (e).
In reference to the second limitation above noted, that while this sub-section is to be read in the very wide sense indicated by the Committee in Citizens v. Parsons, it is subject always to be cut down and limited by Dominion laws passed in relation to matters falling fairly within any of the sub-sections of section 91, it may, as we have intimated in the notes to the opening clause of section 91 (1), be deemed questionable whether this sub-section 13 can be limited in its scope by anything short of general legislation by the Dominion parliament in reference to the various matters comprised in the several sub-sections of section 91. That question has been fully discussed in those notes; but we may here mention that, in the various decisions in which Dominion legislation has been upheld notwithstanding the provisions of this sub-section, such legislation has been general legislation. The decision of the Supreme Court in Quirt v. The Queen (g), is we think the only exception. The decision of the Privy Council in Colonial Building Association v. Attorney-General (Quebec) (h), while it, in effect, upheld the validity of a Dominion Act incorporating the appellant company, lays down that the company, so incorporated, is subject to the local laws of the province in which its business may be carried onsuch, for instance, as laws limiting the right of a corporation to hold land. The case of Citizens v. Parsons (i), affords another instance—the appellant company in that case being held to be subject to provincial laws as to the form and effect of contracts entered into by it within the
(e) 2 App. Cas. 102; see ante, p. 288. (h) 9 App. Cas. 157. (f) Ante, p. 350, et seq.
(i) 7 App. Cas. 96; seeunte, p. 353. (9) 19 S. C. R. 510.
province. Upon this question further reference may be had to the notes to sub-sections 10 and 16 of this section 92.
Reverting, now, to the question of the extent to which Dominion legislation of a general character, in reference to matters falling within any of the sub-sections of section 91, may override provincial law as to property and civil rights, we may refer to Cushing v. Dupuy (j), in which the Judicial Committee of the Privy Council determined the scope proper to be given to the terms “ bankruptcy and insolvency,” in sub-section 21 of section 91. The
passage will be found quoted in the notes to that sub-section. We may refer also to Doyle v. Bell (k), in which it was held by the Court of Appeal for Ontario that Dominion legislation in reference to the conduct of elections of members of the House of Commons of Canada, does not infringe upon the powers of a provincial legislature under this sub-section—or, perhaps we should rather say, that this sub-section must be read subject to the provisions of any Dominion Act dealing with that subject. It should be noticed, however, that the language of the judges in that case recognizes the distinction, afterwards so clearly pointed out by the Chancellor in Re North Perth, that the rights of an inhabitant of Ontario in connection with Dominion elections, is one of his political rights in Canada, rather than a civil right in any one province. Hagarty, C.J.O., however, refers to a number of the sub-sections of section 91 ; any legislation upon which must necessarily deal with rights of property and civil rights in the different provinces, and to a certain extent control and modify the provincial law which ordinarily
In Russell v. The Queen (1), the Judicial Committee of the Privy Council held that the Canada Temperance Act is not an Act in relation to “property and civil rights in the province”: (3) 5 App. Cas. 409.
(k) 11 O. A. R. 326.
(1) 7 App. Cas. 829. Can. Con.-30
“ Their Lordships cannot think that the Temperance Act in question properly belongs to the class of subjects, 'property and civil rights. It has, in its legal aspect, an obvious and close similarity to laws which place restriction on the sale or custody of poisonous drugs, or of dangerously explosive substances, These things, as well as intoxicating liquors, can, of course, be held as property, but a law placing restrictions on their sale, custody, or removal, on the ground that the free sale or use of them is dangerous to public safety, and making it a criminal offence punishable by fine or imprisonment to violate these restrictions cannot properly be deemed a law in relation to property in the sense in which those words are used in the 91st section. What parliament is dealing with, in legislation of this kind, is not a matter in relation to property and its riglits, but one relating to public order and safety. That is the primary matter dealt with, and though incidentally the free use of things in which men may have property is interfered with, that incidental interference does not alter the character of the law. Upon the same considerations, the Act in question cannot be regarded as legislation in regard to civil rights. In however large a sense these words are used it could not have been intended to prevent the parliament of Canada from declaring and enacting certain uses of property, and certain acts in relation to property, to be criminal and wrongful. Laws which make it a criminal offence for a man wilfully to set fire to his own house on the ground that such an act endangers the public safety, or to overwork his horse on the ground of cruelty to the animal, though affecting, in some sense, property, and the right of a man to do as he pleases with his own, cannot properly be regarded as being legislation in relation to property or to civil rights. Nor could a law which restricted the sale or exposure of cattle having a contagious disease, be so regarded. Laws of this nature, designed for the promotion of public order, safety, or morals, and which subject those who contravene them to criminul prosecution and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of parliament to make laws for the order and good government of Canada, and have direct relation to criminal law, which is one of the enumer
ated classes of subjects assigned exclusively to the parliament of Canada. It was said in the course of the judgment of this Board in the case of the Citizens v. Parsons, that the two sections must be read together and the language of one interpreted, and, where necessary, modified by that of the other. Few, if any, laws could be made by parliament for the peace, order, and good government of Canada, which did not in some incidental way affect property and civil rights; and it could not have been intended, when assuring to the province exclusive legislative authority on the subject of property and civil rights, to exclude the parliament from the exercise of this general power whenever any such incidental interference would result from it. The true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subject to which it really belongs.”
There is much in this language which supports what we have said in regard to Dominion legislation being limited to general legislation upon the matters entrusted to it, as being matters of common concern to the whole country.
It would seem, therefore, upon review of these authorities that the words of this sub-section are to be interpreted in their largest sense, subject only to the territorial limit to which we have referred ; and subject, also, to the abstraction therefrom of so much of the field naturally covered by them as is necessary to afford scope for the operation of the powers bestowed upon the Dominion parliament by the various sub-sections of section 91. Just to what extent such withdrawal from provincial jurisdiction may take place, depends upon the construction to be given to section 91 and its various sub-sections. We may refer in this connection to what was said in chapter X., ante, p. 213, et seq., as to the possibility of legislation by one legislature, Dominion or provincial, limiting the range open to the other. In this view it would appear that this subsection 13, is one, the scope of which will, from time to time, grow narrower as the necessity for general legislation by the Dominion parliament, upon matters covered by the various sub-sections of section 91, increases.