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by fine, penalty, or imprisonment, for enforcing any law' which, under this 92nd section, a province alone can legally enact. Jurisdiction is characterized simply as being civil or else criminal. Crime-of whatever kind or degree can be created, its punishment assigned, and procedure relative to it laid down by parliament alone. No enactment of a local legislature can give to any Act that quality, or subject it to that punishment, or bring it within the purview of that procedure. But every local legislature without let or hindrance from parliament- and therefore without need of aid from parliament-can impose pun. ishment by fine, penalty, or imprisonment, for enforcing certain laws, which it alone can make.
Whatever infractions of law, whether as to matters of Dominion or provincial (y) legislation, parliament sees fit to designate as crimes, it-and it alone--can so declare, and as such punish, and to that end regulate procedure. Whatever infractions of any provincial law coming within the purview of this 92nd section, parliament may not see fit thus to deal with, the interested province may punish by fine, penalty, or imprisonment; but its so doing does not make the offence to be thus punished a crime, nor the procedure laid down in order to its punishment procedure in a criminal matter. On the contrary, such whole matter must remain a ciril matter, within what is here the true meaning of these respective terms.
In Page v. Griffith (z), Mr. Justice Sanborn expresses the same opinion, intimating that, in his view, the power to prescribe procedure in criminal matters refers to “the general public criminal law comprised in the criminal statutes of the Dominion and in the common law. This view is confirmed by the Criminal Procedure Act, which has no reference whatever to local penal laws, but to laws in force throughout the Dominion," and in Cote v. Chaveau (a), the law is laid down to the same effect by Mr. Justice Casault.
(y) See ante, p. 414.
Having held valid the provincial game laws, the full Court of Queen's Bench of Manitoba, in 1886 (6), adopted the view which was then practically recognized in all the other provinces, that procedure in connection with prosecutions under such laws is matter of exclusively provincial jurisdiction. We say practically recognized, although the question was only in 1890 authoritatively passed upon in Ontario by the Court of Appeal for that province in Reg. v. Wason (c), a case which will call for more extended notice in the notes to sub-section 15, post.
In Reg. v. Bittle (d), the Divisional Court of the Common Pleas Division, reviewed the decisions upon this question. MacMahon, J., delivering the judgment of the court, upholding the validity of R. S. O. c. 61, s. 9, which provides that, in proceedings under provincial Acts, the defendant is neither a competent nor compellable witness, refers to the diversity of nomenclature applied to provincial laws falling within this sub-section—"provincial criminal laws (7 App. Cas. 840); “penal laws” (2 Cart. 291); "a civil matter within the true meaning of these respective terms” (2 Cart. 297)—adopts the language of Hodge v. Reg., that, however styled, such laws are “not in conflict with No. 27 of section 91," and concludes:
“ It is manifestly clear from the authorities that the procedure by the tribunals intrusted with adjudicating on the offences so created cannot be prescribed by the Dominion parlia ment."
It was held in Manitoba, by Mr. Justice Killam (e), that the provisions of the Dominon Act (46 Vic. c. 17) (f), for the reception in evidence of certified copies of documents
(9) Reg. v. Robertson, 3 Man. L R. 613; see notes to s.s. 15, post. (c) 17 0. A. R. 221. (d) 21 O. R. 605. (e) McKilligan v. Machar, 3 Man. L. R. 418.
(f) Sue R. S. C. c. 139; see particularly section 10, which makes applicable to proceedings under Dominion law, provincial laws of evidence “ subject to the provisions of this and other Acts of the parliament of Canada."
and records in the Dominion Lands Office, were ultra vires, so far as they might be taken to apply to suits merely for the cancellation, as clouds upon title, of conveyances registered under the Lands Registration Act of Manitoba. As the point is of some importance, and, so far as we are aware, has not been touched upon in any other case, we quote somewhat at length from his judgment:
“It does not appear to me that the Dominion parliament could make any binding provision as to the nature of the evidence to be received in a case like the present. The suit is one to determine the right to, or property in, certain lands in this province. The decision of the question may involve to a certain extent the interpretation of statutes of the parliament of Canada, and of orders of the Governor-General in Council ; but the suit is not instituted under any authority of the Dominion parliament. Whether there had been, at a certain date, a grant from the Crown, represented by the Governor-General, of lands held for the benefit of the Dominion, inust be determined by a consideration of certain statutes and Orders in Council, as well as of evidence of acts done under them. This court, in interpreting those statutes and Orders in Council, has to apply the ordinary rules of interpretation. In so far as the Dominion parliament lays down rules to show the meaning of its own statutes they will be used for the purpose, just as any statement in any document of the meaning of certain phrases or words therein, will be used in the interpretation of the document. This, however, in no way shows that the Dominion parliament could lay down rules as to the method of proving acts done under its statutes, or Orders of the Governor-General in Council. Whether the registration of an instrument appearing to show a claim adverse to that of the real owner of land, forms a cloud upon the title of the owner which should be removed by a decree of this court, is a matter upon which the provincial legislature alone could legislate; though in such a suit, title may be deduced from the Crown, holding originally for the Dominion. The provincial legislature has the authority to regulate the administration of justice in the province, including procedure in civil matters in the courts; though it has in some cases been held that the Dominion parliament could establish courts for the determination of matters arising under
statutes within its powers, or, perhaps, regulate to some extent, procedure in the ordinary courts, in suits upon subjects within its legislative authority.”
Whittier v. Diblee (9), is simply a quere whether the Dominion Act, 32 & 33 Vic. c. 39, relating to costs against justices is not ultra vires of the federal parliament as relating to procedure in a civil matter. It is difficult to suggest any principle in denial of the right of the Dominion parliament, as part of general legislation in regard to a criminal law, to pass an Act protecting magistrates in the exercise of their criminal jurisdiction in the proper sense of that term.
We have already noted some cases which deal with the question of the position of imprisoned debtors, and may here refer to some others dealing with the same topic. Prior to Confederation, there were no county courts in Nova Scotia. By an Act in force in the Province of Nova Scotia at the Union, every debtor imprisoned under process in any court, was entitled to apply for and, on certain conditions, to obtain his discharge. Doubts having been expressed as to the jurisdiction of the county courts established after Confederation to entertain such application, an Act of the provincial legislature was passed making the above provisions applicable to persons imprisoned by county courts; and this Act was held (1) to be valid, as being a matter relating to procedure in “civil” matters in provincial courts. With this case should be compared the Queen v. Chandler (i), an earlier decision of the New Brunswick Supreme Court, which with other cases will be found noted more fully in sub-section 21 of section 91.
The Supreme Court of New Brunswick, in Ex parte Ellis (j), upheld the validity of a provincial Act for the
(9) 2 Pug. 243; 2 Cart. 492.
imprisonment of a person making default in payment of a sum of money due on a judgment in certain cases as being a matter relating to proceeding in “civil” matters and not falling within the criminal law, or the law relating to bankruptcy and insolvency. Allen, C.J., says :
· Now surely the enforcing the payment of a judgment is a civil right, and the mode of enforcing it a part of the administration of justice, and procedure in civil matters in the province; all of which are expressly within the jurisdiction of the provincial legislature. Having therefore the right to legislate on these subjects, the 15th sub-section gives them power to enforce any such laws by imposing imprisonment. It would seem, therefore, that the powers conferred by this Act are directly within the 92nd section of the B. N. A. Act." Mr. Justice Weldon dissented from the judgment of the majority of the court, the legislation impugned being, in his opinion, legislation relating to the criminal law.
Other cases in which reference has been made to this sub-section will be found in the foot note (k). Those subsections of section 91 which involve “procedure” as an essential part of any legislation thereon are treated of generally in chapter XI, ante, p. 236, and more particularly in the notes to the sub-sections themselves.
(k) Wilson v. McGuire, 2 0. R. 118, ante, p. 232; Peak v. Shields, 8 S. C. R. 591, ante, p. 235 ; Reg. v. Bush, 15 O. R. 398, ante, p. 239; Re N. Perth, 21 O. R. 538, ante, p. 240; Valin v. Langlois, 5 App. Cas. 115, ante, p. 287 ; Re Wetherell and Jones, 4 0. R. 713, ante, p. 346 ; Cushing v. Dupuy, 5 App. Cas. 409, ante, p. 391 ; Crombie v. Jackson, 34 U. C. Q. B. 575, ante, p. 393; Armstrong v. McCutchin, 2 Cart. 494, ante, p. 397 ; Reg. v. Boardman, 30 U. C. Q. B. 553, ante, p. 410; Reg. v. Lawrence, 43 U. C. Q. B. 164, ante, p. 411; Reg. v. Roddy, 41 U.C.Q. B. 291, ante, p. 415; Ward v. Reid, 3 Cart. 405, ante. p. 416; Atty.-Genl. of Quebec v. Reed, 10 App. Cas. 141, ante, p. 431 ; Plummer Wagon Co. v. Wilson, 3 Man. L. R. 68, ante, p. 433 ; Dulmage v. Douglas, 3 Man. L. R. 562, ante, p. 434 ; Crawford v. Duffield, 5 Man. L. R. 121, ante, p. 434 ; Reg. ex rel. McGuire v. Birkett, 21 O. R. 162, ante, p. 445 ; McArthur v. N. & P. Junc. Ry. 17 0. A. R. 86, ante, p. 458; Reg. v. Amer, 42 U. C. Q. B. 391, ante, p. 259 ; Lenoir v. Ritchie, 3 S. C. R. 575, ante, p. 317 ; Re Squier, 46 U. C. Q. B. 474 ; see notes to section 96, post.