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ment with the view which had also been expressed in earlier cases in that province that a local legislature has no power to impose hard labor as a term of imprisonment under this sub-section 15; but the contrary has now been distinctly held by the Judicial Committee of the Privy Council in Hodge v. The Queen, which also supports the cumulative reading of the word “or” (xx).

16. Generally all matters of a merely local or private nature in the Province.

This sub-section must be read in connection with-perhaps we should say, subject to-the concluding paragraph of section 91:

"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 has been pointed out, the grammatical connection of this concluding paragraph of section 91 with this sub-section 16 is now clearly established by authority. In note (xi) to the opening paragraph of section 91 we referred to the concluding paragraph of that section as weakening somewhat the argument that the legislative power conferred on the Dominion parliament should be limited to the passing of general laws, to operate throughout Canada or for the general benefit of Canada as a whole; because it would seem to be implied that matters would come before the Dominion parliament for legislative action which upon

see:

(xx) For other cases in which this sub-section has received attention,

Reg. v. Lawrence, 43 U. C. Q. B. 164, ante, p. 411;
Reg. v. Shaw, 7 Man. L. R. 518, ante, p. 412;
Reg. v. Roddy, 41 U. C. Q. B. 291, ante, p. 415;

Reg. v. Lake, 43 U. C. Q. B. 515, ante, p. 415;

Pope v. Griffith, 2 Cart. 291, ante, p. 472;
Ex parte Duncan, 2 Cart. 297, ante, p. 472;
Page v. Griffith, 2 Cart. 308, ante, p. 473.

their face, so to speak, would appear to be matters of a merely local or private concern in one province. It may be argued, however, that what is meant by the concluding paragraph of section 91 is simply this: that if a Dominion law, ex hypothesi of a general character, should affect local and private interests in one province in a particular manner, or to a degree peculiar to such province, such law must not on that account be deemed to be a law relating to a matter of a merely local or private nature in such province, and therefore invalid. For example, a general law in relation to sea-coast fisheries might peculiarly or even exclusively affect one province-and so as to the establishment of lighthouses, inter-provincial or international ferries, and other matters which might be named. We have already discussed various aspects of this question (y). It is involved in the larger question as to "concurrent" powers (so-called), and as to the difference in the range of matters. open to one legislature in the absence or presence of legislation enacted by the other. If the powers of the parliament of Canada are, in every instance, powers of genera] legislation only, it would appear that all laws for the peace, order, and good government of a province as a self-governing unit, passed in relation to matters not covered by general legislation by the parliament of Canada upon those matters of common concern committed to it, would be laws of a "merely local or private nature in the province." In this view no difficulty would arise from the limitation upon the scope of the term "municipal institutions"; for as a province could itself pass, so it could delegate to a municipal body power to pass, any laws in relation to local selfgovernment not overborne by general laws passed by the parliament of Canada in the interests of the Dominion as a whole. In this connection we may refer to what was laid down by Lord Selborne in L'Union St. Jacques v. Bélisle (*):

(y) See ante, p. 213, et seq.; and note (xi) to sec. 91, ante, p. 350. (2) L. R. 6 P. C. 31.

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"The onus is on the respondent to show that this, being of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 91st section."

a passage which is immediately followed by that other which we have already quoted, to the effect that, in the various sub-sections of section 91, there is no indication in any instance of anything being contemplated beyond what may be properly described as general legislation.

The main difficulty about the whole matter is that the residuum" of subject matters is assigned to the parliament of Canada. But here again it may be argued that the legislation must be general, for the peace, order and good government of Canada as a federal Dominion, and that, in truth, the "residuum," at any given moment, must be with the provinces, the matters comprised in such “residuum" being deemed matters of a local or private nature in each province as would be evidenced by the absence of general federal legislation thereon.

The whole subject is one upon which much may be said, but, confining our attention now to this sub-section 16, we proceed to indicate what particular provincial legislative Acts have been held to fall within it.

In L'Union St. Jacques v. Bélisle, above referred to, an Act of the Quebec legislature, passed in aid of a society which was in financial straits, forcing commutation upon certain annuitants, was held to be an Act relating to a matter of a merely local or private concern in the province. It was contended-held in the judgment appealed from-that the legislation was insolvency legislation, and the Judicial Committee intimated that if a Dominion Act had been in existence making such acts on the part of the society as were authorized by the statute in question, acts of insolvency rendering all societies who committed them. liable to be wound up under insolvency proceedings, it might be that the statute in question would have been

ultra vires; but that, as no such general Dominion legislation was in existence, the Quebec statute was intra vires as relating to a matter which, as the law stood, must be taken to be a matter of local concern in Quebec.

In Dow v. Black (a), an Act of the New Brunswick legislature authorizing a levy to pay a "bonus" to a railway extending beyond the boundaries of the province was upheld under this sub-section.

In Hodge v. The Queen (b), the regulation of taverns, etc., was held to fall within this sub-section, although in the earlier case of Russell v. The Queen (c), the local option" character of the Canada Temperance Act did not, in the opinion of the Committee, make that Act other than one for the peace, order and good government of Canada, falling within the residuary clause of section 91:

"The Act as soon as it was passed became a law for the whole Dominion, and the enactment of the first part, relating to the machinery for bringing the second part into force, took effect, and might be put in motion at once and everywhere within it. The manner of bringing the prohibitions and penalties into force, which parliament has thought fit to adopt, does not alter its general and uniform character. Parliament deals with the subject as one of general concern to the Dominion, upon which uniformity of legislation is desirable, and the parliament alone can so deal with it."

In Hodge v. The Queen the regulations there supported were said not to conflict with the Canada Temperance Act, "which was not locally adopted." In a number of the cases which dealt with the question of the power of a provincial legislature to deal with certain phases of the liquor traffic, dicta are to be found to the effect that the exercise of regulative power falls within this sub-section as a

(a) L. R. 6 P. C. 272. (b) App. Cas. 117. (c) 7 App. Cas. 829.

matter of "police" (d), for the repression of disorderly and riotous conduct such as would injuriously affect local morals and local good government; but there can be no doubt that upon the adoption of the Canada Temperance Act all such provincial powers in relation to that traffic would be overborne.

And so as to "nuisances," it was held in Ex parte Pillow (e), that the power of a provincial legislature to pass, or to authorize a municipal body to pass, laws for their abatement as being injurious to the public health of the community, was not in conflict with the power of the parliament of Canada to pass, as part of the criminal law of the Dominion, a general law as to nuisances.

In Bennett v. The Pharmaceutical Association (ƒ), it was held by Chief Justice Dorion:

"The determining of the age or other qualifications, required by those residing in the province of Quebec, to manage their own business, or to exercise certain professions or certain branches of business attended with danger or risk for the public, are local subjects in the nature of internal police regulations; and in passing laws upon those subjects, even if those laws incidentally affect trade and commerce, it must be held that this incidental power is included in the right to deal with the subjects placed especially under their control, the exercise of which can not be considered to be unconstitutional. The Pharmacy Act of 1875, in so far as this case is concerned, does not regulate trade and commerce. It merely determined the status of persons exercising the business of chemist and druggist. This is a civil right coming clearly within the powers of the local legislature."

(d) See the cases collected in the notes to s. 91, s-s. 2, ante, p. 359, In Slavin v. Orillia, the late Sir Wm. Richards collects a number of American authorities as to "police" powers.

et seq.

(e) 27 L. C. Jur. 216; 3 Cart. 357. See also Reg. v. Wason, noted under s-s. 15; it would support laws as to "nuisances" as being for the protection of property and civil rights.

(f) 1 Dor. 336; 2 Cart. 250.

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