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provinces and of the Dominion a proposition which Prop. 26 is certainly at variance with the Privy Council decisions, to which, however, he does not at all refer, namely, that if a subject-matter "interests," or "affects," less than all the provinces it is local, and must be left to be disposed of by the legislatures, and that it is only if it "affects" or "interests" all the provinces that it is within the competence of Parliament. The Act in question in Dobie v. The Temporalities Board1 affected only two provinces, yet because neither one nor both of those provinces The general could have given legislative force to its provisions, power of the Judicial Committee held that the Dominion parliament alone could enact them.

2

3

legislative

Parliament.

Thrasher

The leading Proposition points out that distribution of legislative power which, as Crease, J., says in the Thrasher Case, "may one day, though in the The perhaps distant future, expand into national life." Case. Section 91 of the British North America Act, he says in the same case, he has from the first examination into the Act regarded "as the legal keystone of Confederation, without which the whole fabric. built up with such exceeding care would infallibly tumble to pieces from absolute lack of power of cohesion." And, again, this section, he says, appears to him "to contain the legal germ of development of the Union in the future, clearly shadowed forth in the early speeches of Sir John Macdonald." Lord And he cites words of Lord Carnarvon, in introduc

17 App. Cas. 136, 1 Cart. 351, (1882). And see Proposition 51 and the notes thereto.

21 B.C. (Irving) at p. 195, (1882).

3 At p. 199.

*At p. 200.

"At p. 202.

Carnarvon.

of Dominion powers.

Prop. 26 ing the Act into the House of Lords,1 in reference, as he says, to this 91st section :-" In this is, I think, comprised the main theory and constitution of federal government; on this depends the practical working of the new system. The real object which we have in view is to give to the central government Importance those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces; and at the same time to retain for each province so ample a measure of municipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community."

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It is in the sense of the leading Proposition that, as stated by Ritchie, C.J., in Valin v. Langlois3:"The British North America Act vests in the Dominion parliament plenary power of legislation, in no way limited or circumscribed, and as large,

1Hans., 3rd Ser., Vol. 185, p. 563.

"The

2 Crease, J., goes so far as to say (S.C. at p. 199): very groundwork and pith of the Constitution is that the Dominion is dominus," and that "on this very point of supremacy of the Dominion where federal and provincial laws conflict, and even sometimes where they may concur, in my humble opinion, depends the stability and ultimate success of this great Confederation." It seems indeed to be established law, as expressed in Proposition 46, that where over matters with which provincial legislatures have power to deal provincial legislation directly conflicts with enactments of the Dominion parliament, whether strictly relating to the enumerated classes of subjects in section 91, or by way of provisions ancillary to legislation on the said classes of subjects, the provincial legislation must yield to that of the Dominion parliament; and this, together with the existence of the federal veto power, which has been treated of in connection with Proposition 10, may be thought to justify such language, notwithstanding that it is equally well established, as shown in the notes to Proposition 61, that if, on due construction of the British North America Act, a legislative power falls within section 92, it is not to be restricted or its existence denied because by some possibility it may limit the range which otherwise would be open to the Dominion parliament.

33 S.C.R. at p. 16, 1 Cart. at p. 173, (1879).

and of the same nature and extent, as the parlia- Prop. 26 ment of Great Britain, by whom the power to legislate was conferred, itself had1;" and that, as Gwynne, J., expresses it in Citizens Insurance Co. v. Parsons, the Dominion parliament has "the supreme jurisdiction to legislate upon all subjects. whatsoever, except as to certain specific matters. particularly enumerated, purely of a local, domestic, and private nature, which were assigned to the provinces."'s

Dominion

under the

power.

It was under this general legislative power of the Instances of Dominion parliament that the Dominion Act, 31 legislation Vict., c. 76, whereby authority is conferred upon general Courts and judges in Canada to make orders for the examination in the Dominion of any witness or party in relation to any civil or commercial matters pending before any British or foreign tribunal, was held to be intra vires, in Ex parte Smith. It was objected that it was matter of procedure, and therefore within the jurisdiction of the provincial House; but Torrance, J., held that it was "a matter of international comity, and the Act is one upon which the Dominion parliament might very properly pass."

1See, also, Proposition 17 and the notes thereto.

24 S.C.R. at p. 333, 1 Cart. at p. 338, (1880).

So, also, per Fournier, J., in Severn v. The Queen, 2 S.C.R. at p. 120, 1 Cart. at p. 464, (1878); per Dorion, C.J., in Ex parte Dansereau, 19 L.C.J. at pp. 231-2, 2 Cart. at p. 190, (1875). In The North British and Mercantile Fire and Life Ins. Co. v. Lambe, (Bank of Toronto v. Lambe), M. L.R. 1 Q.B. at p. 166, 4 Cart. at p. 60, (1885), Tessier, J., draws an inference in favour of a liberal interpretation of provincial powers from the fact that the special powers of the Dominion parliament in certain cases are specified in section 91 of the British North America Act, as in a treaty between two independent parties which specifies the rights belonging to each of the two," instead of the section merely defining the powers of the provincial legislatures, and then saying that all other powers belonged to the federal parliament. But it is submitted that the specification of certain powers of Parliament in section 91 was made rather in the interest, if one may so say, of Parliament than of the provinces: see supra p. 308, n. I.

416 L.C.J. 140, 2 Cart. 330, (1872).

Prop. 26

Powers of parliament are subject

to provisions

of B.N.A.

Act itself.

Great Seal

case.

To it also, in Canadian Pacific R.W. Co. v. Northern Pacific R.W. Co.,1 Killam, J., says may be attributed the provision of the General Railway Act of Canada, 51 Vict., c. 29, that no provincial railway shall cross a Dominion railway without making application to the Railway Committee of the Privy Council of Canada, though he suggests that it may also be upheld as incidental to the powers of the Dominion parliament to authorize the construction of certain railways.

Of course, as the leading Proposition indicates,* the powers conferred upon the Dominion parliament are subject to the express provisions of the British North America Act. For example, as put by O'Connor, J., in Gibson v. M'Donald3:—“ The exclusive right to appoint the judges is reserved to, and vested in, the government of the Dominion, and even the parliament of the Dominion cannot divest the government of that power, for it cannot

15 M. R. at p. 313, (1888). The Canada Temperance Act, 1878, of course affords the most striking example of the exercise of the general powers of Parliament: see p. 311, supra. It would seem, also, that it must have been under them that the law officers of the Crown in England held, as stated in a despatch from the Secretary of State, of March 29th, 1877, that it could empower the Lieutenant-Governor of Nova Scotia Nova Scotia, to alter the Great Seal of the province, and also could validate the past use of the old Great Seal of the province after and contrary to the injunctions of a royal warrant, directing, in 1869, the use in future of a new seal and the return of the old seal, and could make good all documents passed under it; though Mr. Edward Blake, as Minister of Justice, doubted whether it had such power: Can. Sess. Pap., 1877, No. 86, pp. 48-9. And see supra p. 115, note. The despatch there referred to (of August 23rd, 1869) says:-"I am advised that, the assent of the Crown being first obtained, local Acts afterwards assented to by the Crown would be a legal mode of empowering this alteration,” (sc., of the provincial Great Seal),"to be made in those provinces where it is not at present legal;" it would seem from the later despatch above referred to, that by "local Acts" here was probably meant Dominion Acts, and not provincial Acts, as stated supra p. 115, note. Nevertheless, it is submitted upon the authorities cited in the notes to Propositions 7, 8, and 9, that such power would belong to the provincial legislatures. 2And cf. supra pp. 238-41, 250-1.

87 O. R. at p. 419, 3 Cart. at p. 328, (1885). As to removal of judges, see supra p. 128, n. 1.

1

so change the British North America Act." And Prop. 26 so in the matter of the Grand Trunk R.W. Co., the Credit Valley R.W. Co., and the Northern R.W. Co., Taschereau, J., held in the Supreme Court of Canada that section 101 of the British North America Act gives the Dominion parliament power to grant an appeal from provincial Courts of last resort only, and that, therefore, 42 Vict., c. 39, s. 6, D., was ultra vires. And there are, of course, other ways in which, as Wilson, J., says in Regina v. Taylor, "from the inherent condition of a dependency," the powers of the Dominion parliament are "necessarily and impliedly restricted."4

Parliament

tend beyond

Again, as the leading Proposition also indicates, Powers of the legislative powers of the Dominion parliament do not exdo not, any more than those existing in any other territorial country, extend beyond its own territory; and here Canada.

1Doutre's Constitution of Canada, at pp. 337-9.

2See further, as to section 101, McLaren v. Caldwell, 3 C. L.T. 343, (1883); also 11 C.L.T. at p. 147; and an article on the power of provincial legislatures to limit appeals to the Supreme Court, 2 C.L.T. 416.

336 U.C.R. at p. 191, (1875).

*As to the Imperial veto power, see supra at pp. 202-3; as to the Sovereign authority of the Imperial parliament generally, see Proposition 12 and the notes thereto; as to control by Imperial treaties, see supra pp. 255-9.

5" The statutes of this realm have no power, are of no force, beyond the dominions of Her Majesty, not even to bind the subjects of the realm, unless they are expressly mentioned, or can be necessarily implied, and I apprehend it becomes, therefore, a rule in construing a statute not to extend its powers beyond the realm, whether to create a disability or to confer a privilege :" per L. C. Baron Pollock, Jeffery v. Boosey, 4 H.L. R. at p. 939, (1854). "Statutes must be understood in general to apply to those only who owe obedience to the laws, and whose interests it is the duty of the legislature to protect. Natural-born subjects, and persons domiciled or resident within the Kingdom, owe obedience to the laws of the Kingdom, and are within the benefits conferred by the legislature :" per Jervis, L.J., S. C. at pp. 946-7. Cf. per Lord St. Leonards, S. C. at p. 955, who adds :-"When I say that the legislature must prima facie be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance." And so per Parke, B., S. C. at p. 926, and Lord

limits of

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