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court and assign them to another. The converse proposition, however, is not sustainable; at least not to its full extent. As the jurisdiction of Dominion courts, so far as it is conferred by the parliament of Canada, is limited to matters within the legislative competence of that parliament, provincial legislatures are powerless to abridge it. But to the extent to which provincial legislatures might choose to confer a special jurisdiction upon a Dominion court, it may again abridge that jurisdiction. On the other hand, the right of appeal to the Supreme Court of Canada conferred by the parliament of Canada cannot be limited or abridged by provincial legislation."


The result of the authorities may be shortly summarized: (a) The parliament of Canada can alone legislate as to procedure in criminal matters, i.e., proceedings to enforce the "criminal" law as that term in No. 27 of section 91 is properly to be interpreted.

(b) The parliament of Canada may also, when provision as to procedure is necessary to proper and comprehensive legislation upon any of the branches of jurisprudence wrapped up in the various classes of section 91, or is reasonably ancillary thereto, legislate to that extent as to procedure in civil matters.

(c) Subject to the last paragraph, jurisdiction to legislate as to procedure in all civil matters," whether relating to sub

in right of the Dominion is plaintiff or petitioner may be brought in the Exchequer Court."-head note. See also the judgment of Taschereau, J., in Valin v. Langlois, 3 S. C. R. at p. 74; 1 Cart. at p. 207. See, also, however, the judgment of Wilson. C.J., in Crombie v. Jackson (34 U. C. Q. B. at p. 579; 1 Cart. at p. 686), as stated in Lefroy, p. 441; and of Thompson, J., in Pineo v. Gavaza (18 N. S. at p. 489), as stated in Lefroy at p. 442.

* Clarkson v. Ryan, 17 S. C. R. 251; 4 Cart. 439; and see L'Assn. de St. J. B. v. Brault, 31 S. C. R. 172.

p. 299.


As to what is "procedure" and what "organization," see ante.

• In ss. 91 and 92 "matters" is used in two very different senses. "Civil matters" is but another way of saying civil actions, suits, or other judicial proceedings; while "matters over which, etc.," refers to subject matters for legislative action.

jects of Dominion or provincial competence, is with the provincial legislatures.

(d) Pro hac vice the enforcement of provincial penal laws

is a civil matter.

(a) Procedure in Criminal Matters:

The enforcement of all Dominion penal law, whether embodied in the Criminal Code or in separate enactment, is procedure in criminal matters. It has been so held in several cases under the Canada Temperance Acts, provincial legislation as to procedure in such prosecutions being ultra vires.1o A Dominion Act, however, which provided that on the trial of cases under provincial liquor license Acts the defendant should be competent to give evidence, was held ultra vires.1

(b) Dominion Legislation Regulating Procedure in Civil Matters:

So far as procedure is a necessary and practically component part of legislation relative to any of the classes of matters within the competence of the Dominion parliament, it is an accessory which follows its principal.

No. 27 of section 91 is an express indication that procedure is an essential part of "criminal law." As to laws relating to matters other than crimes, a perusal of the various


10 Reg. v. Prittie, 42 U. C. Q. B. 612; 2 Cart. 606; Reg. v. Lake, 43 U. C. Q. B. 515; 2 Cart. 616; Reg. v. Eli, 13 O. A. R. 526 (appeals) McDonald v. McGuish, (1883) 5 R. & G. 1 (appeals); Reg. v. Wolfe, (1886) 7 R. & G. 24 (appeals); Reg. v. De Coste, (1888) 21 N. S. 216 (removal by certiorari). In Russell v. Reg. (see extract ante, p. 171), the P. C. referred to the C. T. Act as having direct relation to the criminal law; but the Act as a whole is now grounded solely on the " peace, order and good government" clause of s. 91: see Local Prohibition Case, (1896) A. C. 348; 65 L. J. P. C. 26; 5 Cart. 295.

Reg. v. Bittle, 21 O. R. 605. On the other hand, it had previously been held that such a prosecution was for a "crime" within the meaning of the Ontario Act, which made the defendant a competent witness on the trial of any matter "not being a crime:" Reg. v. Hart, 20 O. R. 611; a prosecution under a city by-law forbidding wooden buildings within certain limits. See also Reg. v. Roddy, 41 U. C. Q. B. 291; 1 Cart. 709; Reg. v. Becker, 20 O. R. 676; Reg. v. Rowe, 12 C. L. T. 95; Lefroy, 464.

classes of section 91 discloses many matters any legislation on which must almost necessarily involve procedure. Maritime law is a branch of jurisprudence which falls within

Navigation and Shipping," and its peculiar peremptory in rem procedure is a distinguishing feature, practically creative of rights and obligations. And so of divorce law, patent law, insolvency law, and election law; and other branches of jurisprudence may perhaps be found to be wrapped up in some of the other classes of section 91.

It is now authoritatively settled that Dominion legislation regulating procedure in any such cases is of paramount authority and will displace the provincial procedure which, in the absence of federal law, would otherwise govern.3

(c) Procedure in Civil Cases:

This is clearly assigned to the provinces by this item No. 14. The admissibility of evidence is a question of procedure and, subject to what has just been stated, is to be determined. by provincial law.3a

(d) Provincial Penal Law:

That provincial legislatures have exclusive authority to regulate the procedure in prosecutions for offences against provincial statutes is now recognized as the law in all the provinces. The provisions of Dominion statutes regulating appeals from summary convictions do not apply to offences against provincial law; the provincial enactments alone

2 The cases will be found collected in the notes to the various classes involving these topics.

See ante. p. 183. where the general rule, of which the above kind of legislation furnishes many examples, is discussed.


a McKilligan v. Machar, 3 Man. L. R. 418.

Pope v. Griffith, 16 L. C. Jur. 169; 2 Cart. 291 (a proceeding under the Quebec License Act); Ex parte Duncan, ib., 188, 297 (provincial Act taking away the right to certiorari to remove proceedings under Quebec License Act; Page v. Griffith. 17 L. C. Jur. 302; 2 Cart. 308; Coté v. Chavreau. 7 Q. L. R. 258; 2 Cart. 311: Reg. v. Robertson. 3 Man. L. R. 613 (proceedings under provincial game laws; see ante, p. 238): Reg. v. Wason, 17 O. A. R. 221; 4 Cart. 578; Reg. v. Ronan, 23 N. S. 421; Reg. v. Bittle, 21 O. R. 605 (competency of witnesses); Reg. er rel. Brown v. Simpson Co., 28 O. R. 231 (appeal by case stated): Lecours v. Hurtubise, 2 Can. Crim. Cas. 521 (appeals).

16. Generally all matters of a merely local or private nature in the province. (i)

govern. And a Dominion statute making the defendant a competent witness upon the trial of such cases has been held ultra vires.

It has been suggested that provincial legislation under No. 15 of section 92 can only be special legislation applying to particular offences; but the above authorities are all opposed to that view. The Supreme Court of Canada, without any hint of such a limitation, has upheld a general enactment by the Ontario legislature empowering the LieutenantGovernor to remit fines, etc., imposed under provincial legislation.s

The power is conferred with perhaps somewhat too minute attention to details," but it is a large general power of legislation10 and is not to be treated as if the class enumeration were itself criminal legislation The punishment may be by fine or imprisonment or both;1 the imprisonment may be with or without hard labor; and the penalty imposed may be forfeiture of goods. The fine, in whole or in parf, may go to private parties, informers or others.*

(i) In 1896, their Lordships of the Privy Council assigned this class to the position it must now be taken to

Ex parte Duncan, Reg. v. Wason, Reg. ex rel. Brown v. Simp

son Co., Lecours v. Hurtubise, all ubi supra.


Reg. v. Bittle, 21 O. R. 605. See ante, p. 311.

Reg. v. Boardman, 30 U. C. Q. B. 553; 1 Cart. 676; Tarte

v. Beique, 6 Mont. L. R. 289.

Pardoning Power Case, 23 S. C. R. 458; 5 Cart. 517.

See Mr. Edward Blake's argument in Reg. v. Wason, ubi supra. 10 Hodge v. Reg., 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144; Reg. v. Frawley, 7 O. A. R. 246; 2 Cart. 576; and cases noted ante, p. 69, et seq.

Aubrey v. Genest. Q. L. R. 4 Q. B. 523, agreeing with Paige v. Griffith, 18 L. C. Jur. 119; 2 Cart. 324; and contrary to Er p. Papin, 15 L. C. Jur. 334; 2 Cart. 320; 16 L. C. Jur. 319; 2 Cart. 322. 2 Hodge v. Reg., ubi supra. Contra. Blouin v. Quebec, 7 Q. L. R. 18; 2 Cart. 368.

King v. Gardner, 25 N. S. 48.

Bennett v. Pharm. Assn., 1 Dorion 336; 2 Cart. 250. But see Ex p. Armitage, 5 Can. Crim. Cas. 343.

occupy in the scheme of distribution effected by sections 91 and 92:

"In section 92, No. 16 appears to them to have the same office which the general enactment with respect to matters concerning the peace, order, and good government of Canada, so far as supplementary of the enumerated subjects, fulfils in section 91. It assigns to the provincial legislature all natters, in a provincial sense local or private, which have been omitted from the preceding enumeration; and, although its terms are wide enough to cover, they were obviously not meant to include, provincial legislation in relation to the ciasses of subjects already enumerated."

Their Lordships had held in an earlier part of the same judgment that the parliament of Canada does not derive jurisdiction from the "peace, order, and good government" clause of section 91 to deal with any matter which is in substance local or provincial and does not truly affect the interest of the Dominion as a whole; to which they added:

"Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion and to justify the Canadian parliament in passing laws for their regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial and has become matter of national concern in such sense as to bring it within the jurisdiction of the parliament of Canada."

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The views expressed in the above case were carried to their logical conclusion in the Manitoba Liquor Act case, and provincial power to prohibit the traffic in liquor upheld under this class No. 16 of section 92. All provincial Acts regulating or prohibiting the traffic in particular commodities, so

Local Prohibition Case, (1896) A. C. 348; 65 L. J. P. C. 26; 5 Cart. 295. See, also, as to the scope of this class, ante, p. 187. Then follows the passage relating to carrying firearms quoted ante, p. 245.

† (1902) A. C. 73; 71 L. J. P. C. 28.

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