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In the notes to other sections and sub-sections we have cited the various cases in which this sub-section 13 of section 92 has been invoked, and need here, therefore, merely indicate the cases and the various sub-sections under which they will be found noted (m).
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure
in Civil Matters in those Courts. Our judicial system has already received attention to the extent of an entire chapter (n), and in the notes to subsection 27 of section 91 we have necessarily had to deal with some phases of the criminal law, for which reasons we need here deal merely with certain other details of the general subject and collect those authorities which have not yet been cited. As, however, we refrained, in commenting upon sub-section 27 of section 91, from discussing “the constitution of courts of criminal jurisdiction,” there excluded, here included, we may here refer to the difficulties which have arisen in connection with the administration of criminal justice, using the word “criminal” in the restricted sense which, as has been pointed out, it bears in Canadian jurisprudence. The constitution of courts of criminal jurisdiction is subject to the provisions of section 101, of which more anon-with the provincial governments; the pro
(m) Re Simmons and Dalton, 12 O. R. 505, ante, p. 286; Slavin v. Orillia, 36 U. C. Q. B. 159, ante, p. 359 ; Beard v. Steele, 34 U. C. Q. B. 43, ante, p. 374; Reg. v. Robertson, 6 S. C. R. 52, ante, p. 385 ; Merchants Bank v. Smith, 8 S. C. R. 512, ante, p. 387; Clarkson v. Ontario Bank, 15 0. A. R. 166, ante, p. 395 ; Re Wallace-Heustis Co., 3 Cart. 374, ante, p. 400; McDiarmid v. Hughes, 16 0. R. 570, ante, p. 456 ; Monkhouse v. G. T. R. 8 O. A. R. 637, ante, p. 457 ; C. S, Ry. v. Jackson, 17 S. C. R. 316, ante, p. 458; McArthur v. N. & P. Junc. Ry, 17 O. A. R. 86, ante, p. 458 ; Reg. v. Wason, 17 0. A. R. 221, post, p. 478; Reg. v. Robertson, 3 Man. L. R. 613, post, p. 480.
(n) Chapter XI., ante, p. 223.
cedure in criminal matters is exclusively with the Dominion government; and already it is apparent that it is, in many, if not most, instances, almost impossible to decide with any reasonable certainty whether a law relates to "constitution" or "procedure." In this sub-section, it should be pointed out, the full rounded phrase is used—“constitution, maintenance, and organization”—and the difficulty perhaps is rather to decide between “organization” and "procedure.” The authorities which deal with the question of jurors and the position of the jury in relation to the organization of a court have already been cited (0). A jury, empanelled and sworn, is part of the “organization” of the court; the selecting and summoning of the members of the jury is “ procedure”! Whether a man accused of crime is to be tried with or without a jury is question of “procedure” and can only be determined by the parliament of Canada (p). Consequently, in Reg. v. Toland (q) it has just been held that an Ontario Statute (35 Vic. c. 18, sec. 2) purporting to give to a police magistrate power to try offences under the Dominion Act respecting forgery is ultra vires, there being no jury in connection with that tribunal, It would appear that there is here occasion for "remedial” legislation by the parliament of Canada; otherwise the power to constitute courts of criminal jurisdiction is seriously circumscribed. In its organization of those courts, a province may find it difficult to keep pace with the requirements of Dominion laws as to “procedure," unless the parliament of Canada delegates to the provinces the regulation of all procedure in criminal matters, just as it has practically done in the matter of the selecting and summoning of jurors. Another course is open to the Dominion government, for by section 101 (see post) the parliament of Canada may, “notwithstanding anything in this Act,” constitute a Iditional courts for the better administration of the laws of Canada, and whether the jurisdiction of such “additional”
(o) ante, p. 416, et seq. (p) Reg. v. Bradshaw, 38 U.C. Q.B. 564.
(9) Not yet reported; July, 1892.
courts would be, or could be made to be, exclusive, would not be of much practical moment, as by attention to “procedure” the provincial guns could be effectually spiked.
In treating of the question of the jurisdiction of courts, Dominion and provincial, we ventured to lay it down that the jurisdictional line in the case of the former is the line which divides those subject matters over which the Dominion parliament has jurisdiction from those committed to provincial legislatures, while as to provincial courts, whether old or new, no such jurisdictional line exists. Herein lies the anomaly of our system. The legislative and executive departments of the federal government are, so far as regards the judicial branch of the latter, and in the absence of resort to section 101, divorced, and the enforcement of the laws of Canada-i..., Dominion laws-through the courts is in the hands of the provincial governments. To counterbalance one anomaly by another the appointment of part of the organization of the provincial courts is with the Dominion government !
In Regina v. Horner (r), the Court of Queen’s Bench (Quebec), upheld the Act of that province respecting district magistrates and magistrates' courts, and the power of the provincial executive to appoint such magistrates. Reference is made by Mr. Justice Ramsay, in delivering the judgment of the court, to Regina v. Coote (s), decided in the Privy Council, as expressly recognizing the power of provincial legislatures to create new courts for the execution of the criminal law, as also to nominate the magistrates to sit in such courts. “So much being established almost all difficulty disappears. The Privy Council recognizes the general principle that the executive power is derived from the legislative power unless there be some restraining enactment.” It appears, we should perhaps say, from the report of the case, that the Act in question expressly provided for the appointment of such magistrates by the LieutenantGovernor in Council.
(r) 2 Steph. Dig. 450 ; 2 Cart. 317.
(8) L. R. 4.P. C. 599.
To speak now of courts of civil jurisdiction, we may note that in Ganong v. Bayley (t), in the New Brunswick Supreme Court, it was held by the majority of the court that an Act of the New Brunswick legislature establishing commissioners' courts in that province, and for the appointment by the Lieutenant-Governer in Council of commissioners to preside therein, was valid. The power of the local legislature to establish courts seems to have been treated as beyond question, the point more fully discussed being as to the validity of the Act in so far as it conferred on the Lieutenant-Governor of the province power to appoint the judges who should preside in such courts, and the case, therefore, should perhaps be noted rather as an affirmance of the doctrine that an Act of provincial legislation in reference to the exercise of the prerogatives of the Crown in relation to matters falling within the legislative competence of such legislature, is a proper exercise of its legislative power. The opinions of Chief Justice Allen and Mr. Justice Duff, who dissented from the judgment of the majority of the court, are placed upon the ground that the exercise of this prerogative is, by the B. N. A. Act, vested exclusively in the Governor-General as Her Majesty's only representative in Canada. But, in view of the authorities noted under section 58, ante, this view is untenable.
As to the appointment of judges and officers connected with the administration of justice reference may be had to chapter XI. (ante, p. 238, et seq.), and to the cases in the foot note (u).
The question of the power of a provincial legislature to regulate procedure affecting penal laws which such legislature is authorized to enact (u), came before the Que
(1) 1 Pug & Burb. 324; 2 Cart. 509.
(11) Reg. v. Reno, 4 P. R. (Ont.) 281 ; Reg. v. Bennett, 10. R. 415; Richardson v. Ransom, 10 O. R. 387; E.r parte Williamson, 24 N. B. 64; and Ex prle Perkins, ib. 66.
(v) See s-s. 15, post.
bec Courts in three early cases, and was very emphatically affirmed. In Pope v. Griffith (w), a case arising under the Quebec License Act, Mr. Justice Ramsay says:
" Appellant at once admits that the local legislature have the power to attach a fine, penalty, or imprisonment, to the sale or keeping of spirituous liquors without a license; but that having done that, a crime was created, and that all the procedure connected with the infliction of punishment for this crime must necessarily be fixed by parliament, and could not be fixed by the legislature of the province. In support of this pretension appellant maintains that every infraction of a public law to which any penalty is attached is a crime.
Whatever may be the definition of a crime, I would remind those who lean too much upon definitions of their danger; it will not be denied that, in one sense of the word, the act of which the appellant is accused, is a crime ; but it is equally plain that it is not a crime in the sense of sub-section 27, section 91 of the B. N. A. Act. Now, if the signification attached to the word “ criminal” is restricted when referring to law in this sub-section, why should it be used in a different sense when applied to procedure? It cannot be presumed that in one short paragraph, particularly a paragraph of an enumeration of powers, the legislature should have intended to apply two different meanings to the same word, especially when by doing so they would be transferring the legislation with regard to a purely local matter to parliament. The rule is all the other way.”
In Ex parte Duncan (2), Mr. Justice Dunkin held that 34 Vic. c. 2 (Quebec) taking away the right to certiorari, to remove proceedings in civil matters before a district magistrate, was valid, and that under the term "civil matters," a proceeding before a district magistrate for the enforcement of penalties under a license law of the province would be included.
“These words .civil' and 'criminal' are used in a sense which excludes from the idea conveyed by the latter and includes within that conveyed by the former this matter of punishment
(w) 16 L. C. Jur. 169; 2 Cart. 291. (1) 16 L. C. Jur. 188; 2 Cart. 297.