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Prop. 26 Powers of Parliament and of the Local Legislatures under the British North America Act,1 published after Russell v. The Queen, and before Bank of Toronto v. Lambe. Judge Travis, however, would seem to have very much misread the judgments of their lordships, the true effect of which a brief consideration of his comments, with those of Mr. Justice Loranger, in the pamphlet already several times referred to, may serve to make manifest.

Judge
Travis'

Privy Council decisions.

It must be first pointed out, however, that in criticisms of some places in his treatise Judge Travis speaks as though he understands their lordships as holding that any Act which a single provincial legislature could not pass, the Dominion parliament could pass, which, it is submitted, is not their holding at all; while in other places he speaks as understanding them to mean that any legislation which neither a single provincial legislature, nor more than one acting conjointly, could enact, the Dominion parliament could enact, and this, with submission, is what

3

they certainly do hold." Thus he says that," "unless the language of the Privy Council is unintelligible," they hold that "with reference to an Act of Parliament it is necessarily intra vires Parliament, because it is an Act that the local legislature of a province cannot pass;" while, elsewhere," he

1St. John, N.B., 1884, esp. at p. 135, et seq. The same principle was, he considers, (p. 174), "foreshadowed and, in effect, acted on in Dobie v. The Temporalities Board, 7 App. Cas. 136, 1 Cart. 351, (1882).

2Letters upon the Interpretation of the Federal Constitution, Quebec, 1884.

3See Proposition 33 and the notes thereto.

4 See Proposition 27 and the notes thereto.

5 Ad loc. cit., p. 140.

6P. 154.

The Tem

Board.

speaks of them as holding "that all Acts that the Prop. 26. local legislatures, alone or conjointly, cannot pass can be passed by Parliament," and he submits1 that "there are Acts which the local legislatures cannot enact, and which the parliament of the Dominion cannot enact either." And referring to their lordships' judgment in Dobie v. The Temporalities Dobie v. Board, and what he considers the effect of it, he poralities says:-"If by simply grouping two or more provinces together, an Act relating to property and civil rights in those provinces is intra vires Parliament,.. the principle does not stop there; but, carried to its legitimate sequence, it sweeps away almost every vestige of legislative power that the legislatures possess. . . By simply adding two prov- Judge inces together, Parliament, by the same principle, criticisms. could as well legislate on the solemnization of marriage. . . and on virtually all the other subjects in section 92, as it could on property and civil rights, under the holding in Dobie v. The Temporalities Board."

Then, reverting apparently to the misconception already pointed out, he asks" :-"New Brunswick

1 At p. 149.

2Cf. per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at p. 546, 2 Cart. at p. 43, (1880):-"It is contended that inasmuch as the local legislatures could not provide as is done by this Act, Parliament necessarily must have the power it exercised. The Proposition, as a general one, must be admitted, but there may be, and, I think, there are, exceptions, and that this," (referring to the Canada Temperance Act, 1878), "may fairly be considered one of them." And the same learned judge speaks again in a similar manner in AttorneyGeneral v. Mercer, S.C.R. at pp. 656-7, 3 Cart. at p. 43, (1881), and in Queddy River Driving Boom Co. v. Davidson, 10 S.C.R. at p. 236, 3 Cart. at p. 258, (1883). And so per Weatherbe, J., in The Queen v. Ronan, 23 N.S. at p. 448. (1891), and per Meagher, J., S.C. at p. 460. But see per Henry, J., himself, in Valin. v. Langlois, 3 S.C. R. at p. 65, I Cart. at p. 201, (1879).

37 App. Cas. 136, 1 Cart. 351, (1882).

*At p. 154.

5 At pp. 166-7.

Travis'

Prop. 26 could not pass an Act to raise a revenue for provincial purposes from tavern licenses in New Brunswick and Nova Scotia, could Parliament do it? New Brunswick could not pass an Act on solemnization of marriage, pure and simple, for New Brunswick and Nova Scotia, could Parliament do it?" and so

Dobie v.

ralities

Board.

on.

Now, in the first place, in Dobie v. The Temporalities Board,' their lordships especially point out that, in their opinion, the provincial Act under consideration did not fall within any of the classes enumerated in section 92, and thereby assigned to the provincial legislatures; and that it did not, in The Tempo their view, "deal directly with property and civil rights, but with the civil rights of a corporation, and of individuals, present or future, for whose benefit the corporation was created and exists," and that "the corporation and the corporate trust, the matters to which its provisions relate, are in reality not divisible according to the limits of provincial authority," and that therefore it was difficult to understand how the maxim juncta juvant was applicable, for2:— "If the legislatures of Ontario and Quebec were allowed jointly to abolish the Board of 1858, which is one corporation in and for both provinces, they could only create in its room two corporations, one of which would exist in and for Ontario and be a foreigner in Quebec, and the other of which would be foreign to Ontario, but a domestic institution in Quebec." Hence it is clear that their lordships by no means there held, as Judge Travis represents, that Parliament could pass an Act directly relating to property and civil rights in the provinces of

17 App. Cas. 136, 1 Cart. 351, (1882).

27 App. Cas. at p. 152, I Cart. at p. 371.

1

The Tempo

Board.

Ontario and Quebec, or that legislative power Prop. 26 over that subject, or rather subjects, did not lie in the united jurisdictions of the legislatures of those two provinces. They were not dealing with an Act Dobie ". upon matters coming within the classes of subjects ralities enumerated in section 92 at all. And, secondly, their lordships nowhere say that because no single province can pass an Act in relation to the classes of matters enumerated in section 92, but embracing another province as well as itself, therefore Parliament can do so.2 Their lordships, however strictly their language may be construed, do not say that power so to legislate by a single Act, or by Acts of any single legislative body, exists anywhere;3 what they do say is that legislative power over such sub

1If their lordships had so held, it would have been difficult to account for the form of section 94 of the British North America Act, the intent B.N.A. Act, of which, it is submitted, is to provide that Parliament may do what, sect. 94. under sections 91 and 92 alone, it could not do, namely, legislate directly for the purpose mentioned upon property and civil rights, and legal procedure in civil matters, in the provinces named, but still subject to the restriction that such Dominion Act should not have effect in any such province unless adopted as law by the provincial legislature, after which the power of Parliament to legislate in relation to any matter comprised in any such Act should be unrestricted. And see per Strong, V.C., in Re Goodhue, 19 Gr. at p. 452, I Cart. at P. 573, (1872), and Proposition 68 and the notes thereto.

2In the argument in Hodge v. The Queen, before the Privy Council, in 1883, (Dom. Sess. Pap., 1884, Vol. 17, No. 30, at p. 27), Sir Arthur Hobhouse, one of the Board, observes :-" Russell v. The Queen does not intend to decide that if the subject is one attributed to the provincial legislature, the Dominion can get seizin of it by extending the extent of it beyond the provinces ;" and no dissent is expressed to this by any of their lordships. And see the notes to Propositions 27 and 28, infra. See, also, Proposition 33 and notes thereto.

In this sense it is no doubt quite true, as Mr. Edward Blake says in his argument in St. Catharines Milling and Lumber Co. v. The Queen, sometimes termed the Ontario Lands case, that :— "Inherent in the federal form there is with its advantages, great as they are, what may be deemed a defect,-it has the defects of its qualities; and there are some things which cannot at all be done, or at any rate done by the central authority in a federal union, which cannot at all be done modo et formâ in which they may be done in a legislative union :" see this argument as printed by the press of "The Budget," 64 Bay Street, Toronto, 1888, at p. 8. And so per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C.R. at p. 241, (1895), whose views conflict with those of Hughes, C.J., in Clemens v. Bemer, 7 C. L.J. at p. 127, (1871), q.v.

Prop. 26 ject, or rather subjects, exists somewhere, for "the Federation Act exhausts the whole range of legislative power," and where it exists, it is submitted, clearly is in the different provincial legislatures legislating in concert each for its own province.'

J.'s pamphlet.

1

And if Judge Travis has misread the judgments of the Privy Council in one way, Mr. Justice Loranger, Loranger, in what may be termed in some respects his rival pamphlet, already several times referred to, has, it is humbly submitted, misread them in another way. For he advances3 as a line of demarcation between the legislative power of the

Judge
Travis'

Own
views.

2

1 When Judge Travis, having disposed of what he terms "the horrid perversion" of the British North America Act by the Privy Council, proceeds himself to formulate "tests to be applied in order to decide whether an Act is intra vires Parliament or not," he does so in terms which are very confused, and certainly throw no light upon the words of the Act, so far as the opening words of section 91 are concerned. They are, as put at pp. 150-1 of the treatise, as follows:-"Does the Act in question, bona fide, and as legitimate legislation on the subjects-matter in question, come within any of the subjects-matter enumerated in or covered by section 91, that is to say, all matters not coming within section 92, and on the enumerated subjects in section 91, whether they come within the subjects-matter in section 92 or not? If so, then that is good legislation within the power of Parliament, under the express language of the Act." "That," he adds, "we take it, as between sections 91 and 92 of the Act, covers the whole ground.' "See to like effect at pp. 178-9. It would seem, however, from a general study of his treatise, that Judge Travis' view is that the Dominion parliament can only legis late for the peace, order, and good governinent of Canada, (save as to matters coming within the classes of subjects enumerated in section 91), provided they do not in such legislation at all touch or interfere with matters assigned to the provincial legislatures under section 92. This, however, would probably be impossible, and thus the opening words of section 91 would be denuded of all practical effect as conferring legislative power. See the notes to Proposition 37. It is scarcely necessary to point out that the Canada Temperance Act, 1878, interfered with the power of the provincial legislatures to legislate for raising a revenue for provincial purposes by means of tavern licenses, and affected property and civil rights in the provinces; but in Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (1882), the Judicial Committee held, nevertheless, that it was intra vires of the Dominion parliament under its general authority to make laws for the peace, order, and good government of Canada. Cf. per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C. R. at pp. 240-1, (1895).

2 Letters upon the Interpretation of the Federal Constitution (first letter), Quebec, 1884.

3 At pp. 56-7.

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