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tion. The Manitoba Act, 1870, was afterwards confirmed by Imperial legislation, and put beyond the legislative competence of the Dominion parliament to alter it in any particular; and the time within which the Manitoba School Act might have been disallowed by the Governor-General in Council has long since expired.
In view, however, of this decision much discussion has taken place in reference to the powers of the GovernorGeneral in Council under sub-section 3, and of the parliament of Canada under sub-section 4. So far as the province of Manitoba is concerned, it is to be noticed, that the opening clause of sub-section 3 of section 93 of the B. N. A. Act is not contained in the corresponding sub-section of the Manitoba Act, 1870, and, therefore, the fact that, since its admission to the Dominion, there has been legislation in that province which might be contended to have established a system of separate schools there, can have no bearing upon this question. As to that province the pronouncement of the Privy Council is decisive, that the Manitoba Public Schools Act does not affect, prejudicially or otherwise, any right or privilege protected by section 22 of the Manitoba Act, 1870.
It may not, however, be out of place to consider the position of all the provinces in reference to this matter of an appeal to the Governor-General in Council, and of the power of the Dominion parliament to pass “remedial” laws. The provision as to an appeal to the Governor-General in Council is a very peculiar one, because no provision whatever is made for the enforcement of the decision of the Dominion executive, otherwise than by legislation by the Dominion parliament under sub-section 4. The language of the Committee, in Barrett v. Winnipeg, leads one to infer that, in their opinion, the functions of the Governor-General in Council are not of a judicial character, that is to say, that it does not properly devolve upon the Dominion executive to consider the constitutionality of provincial enact
ments, or of the decision of the “provincial authority” (whatever that may be taken to mean) mentioned in the subsection. The appeal, therefore, would seem to be limited to supervising and suggesting alterations to provincial enactments, “affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects, in relation to education." In the event of the ruling, decision, or whatever it may be called, of the Dominion executive not being duly executed by the provincial authorities, the provisions of sub-section 4, may be invoked. But as a condition precedent to any right to interfere with provincial legislation, one must be able to predicate that in the province concerned there exists any “right or privilege' enjoyed by the Protestant or Roman Catholic minority in such province, and that the provincial legislation complained of affects such right or privilege. It is to be noted that the word 'prejudicially' does not occur in this subsection, and this bears out the view for which we have been contending, that interference on the part of the Dominion authorities can properly take place only in connection with valid provincial legislation. Legislation prejudicially affecting such right or privilege is void. Legislation affecting it otherwise than prejudicially is valid, but may be clumsy and unworkable. Such defects the parliament of Canada can remedy.
We have attempted in a former place to summarize the rights and privileges enjoyed by the religious minorities of Ontario and Quebec, and, as to the other provinces, the posi'tion would seem to be, at best—from the separatist standpoint—that indicated in the judgment of the Privy Council in Winnipeg v. Barrett, although, perhaps, it is matter of doubt whether the rights and privileges there enumerated as to Manitoba, exist to their full extent in the other provinces. In fact, the judgment in Er parte Renaud (affirmed, as we have seen, in the Privy Council) seems to indicate that in the provinces other than Ontario, Quebec, and Manitoba, religious denominations have no "right or
privilege” by law in respect to education, within the meaning of, and requiring the protection of, the various subsections of section 93. The question which suggests itself as doubtful is as to the power to entirely prohibit denominational schools, or, in other words, to compel universal attendance at state schools.
The North-West Territories.
The parliament of Canaila having power (subject always to the parímount legislative supremacy of the Imperial parliament) to pass laws for the “peace, order and good government” of these territories, not as yet elevated to provincial dignity (s), the position of affairs there is as yet embryonic. In respect to educational matters, the powers of the Legislative Assembly are at present circumscribed, as will appear from the following section of the North-West Territories Act-R. S. C., c. 50.
14. The Lieutenant-Governor in Council (t) shall pass all necessary ordinances in respect to education; but it shall therein always be provided, that a majority of the ratepayers of any district or portion of the Territories, or of any less portion or sub-division thereof, by whatever name the same is known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefor; and also that the minority of the ratepayers therein, whether Protestant or Roman Catholic, may establish separate schools therein —and in such case, the ratepayers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessments of such rates as they impose upon themselves in respect thereof :
2. The power to pass ordinances, conferred upon the Lieutenant-Governor by this section is hereby declared to have been vested in him from the seventh day of May, 1880.
(s) See ante, p. 347. The position of these Territories will be dealt with more at length in Part IV.
(1) Now the Legislative Assembly. See post.
It is much to be hoped that when (as will doubtless soon be the case) new provinces are erected in these Territories, they will be given full control of educational matters. In expressing this hope we perhaps “travel beyond the record.”
Uniformity of Laws in Ontario, Nova
Scotia and New Brunswick.
for uniformity of Laws in
94. Notwithstanding anything in this Legislatiom Act, the Parliament of Canada may make thiree Proprovision for the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and of the procedure of all or any of the Courts in those three Provinces; and from and after the passing of any Act in that behalf the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making provision for such uniformity shall not have effect in any Province unless and until it is adopted and enacted as law by the Legislature thereof.
Nothing has ever been done toward carrying out this idea. The only use to which the section has been put has been in utilizing the expression “property and civil rights” which occurs in it as a key to the interpretation of the same term in sub-section 13 of section 92. The passage in Citizens v. Parsons is quoted at length in the notes to that sub-section.
Concurrent powers of Legislation respecting Agriculture, &c.
Agriculture and Immigration. 95. In each Province the Legislature may make laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from time to time make laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parlia
ment of Canada. See ante, p. 215, as to the bearing of this section on the general question of “concurrent” powers.
Appointment of Judges.
96. The Governor-General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
97. Until the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick, and the procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor-General shall be selected