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(with a certificate of the Secretary of State of the day on which the Act was received by him) being signified by the Governor-General, by speech or message to each of the Houses of the Parliament, or by proclamation, shall annul the Act from and after the day of such signification (s).
57. A bill reserved for the signification of the Queen's Signification of Queen's pleasure shall not have any force unless and until within two pleasure on years from the day on which it was presented to the GovernorGeneral for the Queen's assent, the Governor-General signifies, by speech or message, to each of the Houses of the Parliament or by proclamation, that it has received the assent of the Queen in Council (t).
An entry of every such speech, message, or proclamation shall be made in the Journal of each House, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the records of Canada.
without such disallowance, the executive department of the Imperial government can no longer interfere with the operation of the Act; nothing short of "repugnant" Imperial legislation can weaken its validity.
(s) The power of disallowance bears no necessary relation to the question of legislative competence. As expressed by the Chancellor of Ontarios it "may operate in the plane of political expediency and in that of jural capacity"; but the jurisdiction of the courts to pass upon the question of the legislative competence of the federal parliament to enact a particular law operates in the plane of jural capacity alone and is not affected in any way by the non-exercise of the power of disallowance under this section 56.o
(t) Such assent cannot validate an ultra vires enactment.10
Pardoning Power Case, 20 O. R. at p. 245; 5 Cart. at p. 546.
See Mr. Lefroy's 11th Proposition. The dicta are largely in reference to the disallowance of provincial statutes, as to which see notes to s. 90, post.
10 See note to s. 56, supra.
V. PROVINCIAL CONSTITUTION (u).
58. For each Province there shall be an officer, styled Governors of the Lieutenant-Governor, appointed by the Governor-General in Council by instrument under the Great Seal of Canada.
(u) In dealing with those sections (58 to 90) of the B. N. A. Act which make provision for the provincial constitutions, the scheme propounded by the Quebec Resolutions1 must be borne in mind. One cause of the support given in the two parts of (old) Canada to the federation proposal was that it severed the tie of legislative union between them. The carrying out of this design and the larger federal scheme in one Act necessitated, first, the severance of that tie, and then the creation of a federal union of four provinces. Old Canada being thus divided into its original component parts (with new names), new governmental machinery, legislative and executive, had to be provided for Ontario and Quebec. Eliminate from the B. N. A. Act all clauses inserted to this end, and it then clearly appears as an Act establishing federal machinery and connection only, defining the line of division for legislative purposes between the federal and local governments, and assigning to the federal government certain portions of the assets and revenue producing powers of the federating provinces.3
Ever since the passage of the B. N. A. Act a peaceful warfare has been waged as to the position of the provinces in the Canadian constitutional system,-a conflict not yet
1 See Appendix.
2 E.g., ss. 63 and 65 (as to the executive machinery) and ss. 69 to 87 both inclusive (as to the constitution of the legislatures of Ontario and Quebec). Section 89, now effete, is silent as to New Brunswick, because of the provision made in the last clause of s. 88. See notes to s. 88. post.
See the Liquidator's Case, fully quoted infra. The Orders in Council admitting British Columbia and P. E. Island to the Canadian Union, simply continue the previous constitutions, executive and legislative, of those provinces. For Manitoba, of course, new machinery
was provided; see post.
perhaps ended but now become hopeless to those who would deny the full autonomy of the provinces in relation to all matters committed to the legislative authority of the provincial assemblies. Within the limits of subjects and area as defined by the B. N. A. Act, the legislative power of these assemblies is exclusive and supreme. Within those limits they possess full control of the executive government of the provinces, and may deal as they think fit with the Crown's prerogatives in relation to provincial matters. And even those prerogatives which have not been made the subject of statutory regulation are to be exercised by the LieutenantGovernors as the Crown's representatives in the provinces So far as they are capable of exercise in relation to provincial government.s This, according to the weight of judicial opinion, is the result of the decision of the Privy Council in the Liquidators' Case. The particular point involved was as to the right of the provincial executive of New Brunswick to enforce the Crown's prerogative right to priority over other creditors in the winding-up of a bank; but the committee's judgment deals with the general question and affirms with final authority the full autonomy of the provinces:
"The Supreme Court of Canada had previously ruled in Reg. v. Bank of N. S.10 that the Crown, as a simple contract creditor for public moneys of the Dominion deposited with a provincial bank, is entitled to priority over other creditors of equal degree. The decision appears to their Lordships to be in strict accordance with constitutional law. The property and revenues of the Dominion are vested
As to the territorial limitation, see ante, p. 62 et seq.
'Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart.144; Liquidator's Case, (1892) A. C. 437; 61 L. J. P. C. 75; 5 Cart. 1. See ante, p. 57 et seq.
Pardoning Power Case, 23 S. C. R. 458; 5 Cart. 517; Q. C., Case, (1898) A. C. 247; 67 L. J. P. C. 17. And see ante, p. 89.
7 Exchange Bank v. Reg., 11 App. Cas. 157; 55 L. J. P. C. 5, and cases in last note.
See ante, p. 89, where the subject is more fully discussed. It touches Dominion executive government as well as provincial.
10 11 S. C. R. 1; 4 Cart. 391.
in the Sovereign subject to the disposal and appropriation of the legislature of Canada; and the prerogative of the Queen, when it has not been expressly limited by local law. or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain. In Exchange Bank of Canada v. Reg., this Board disposed of the appeal on that footing, although their Lordships reversed the judgment of the court below, and negatived the preference claimed by the Dominion government, upon the ground that by the law of the province of Quebec the prerogative was limited to the case of the common debtor being an officer liable to account to the Crown for public moneys collected or held by him. The appellants did not impeach the authority of these cases, and they also conceded that, until the passage of the B. N. A. Act, 1867, there was precisely the same relation between the Crown and the province which now subsists between the Crown and the Dominion; but they maintained that the effect of the statute had been to sever all connection between the Crown and the provinces, to make the government of the Dominion the only government of Her Majesty in North America, and to reduce the provinces to the rank of inde pendent municipal institutions. For these propositions their Lordships have been unable to find either principle or authority. Their Lordships do not think it necessary to examine in minute detail the provisions of the Act of 1867, which nowhere professed to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces. The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, intrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. That object was accomplished by distributing between the Dominion and the provinces all powers, executive and legislative, and all public
1 See ante, p. 86.
11 App. Cas. 157; 55 L. J. P. C. 5.
property and revenues which had previously belonged to the provinces, so that the Dominion government should be vested with such of those powers, property, and revenues as were necessary for the due performance of its constitutional functions, and that the remainder should be retained by the provinces for the purposes of provincial government. But, in so far as regards those matters which by section 92 are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion and as supreme as it was before the passing of the Act. In Hodge v. Reg., Lord Fitzgerald, delivering the opinion of this Board, said: "When the B. N. A. Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the province and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from, or as agents of, the Imperial parliament, but authority as plenary and as ample within the limits prescribed by section 92, as the Imperial parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial parliament, or the parliament of the Dominion.' The Act places the constitution of all provinces within the Dominion on the same level; and what is true with respect to the legislature of Ontario has equal application to the legislature of New Brunswick. It is clear, therefore, that the provincial legislature of New Brunswick does not occupy the subordinate position which was ascribed to it in the argument of the appellants. It derives no authority from the government of Canada, and its status is in no way analogous to that of a municipal institution, which is an authority constituted for purposes of local administration. It possesses powers, not of administration merely, but of legislation in the strictest sense of that word; and, within the limits assigned by section 92 of the Act of 1867, these powers are exclusive and supreme.
9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144.