Prop. 4 regarded to be, and was at the time of the passing of the British North America Act. By so doing we shall receive light and assistance in construing the latter Act." So per In con- sect. 91. But must not carry the matter too far. So, too, in Queen v. Robertson,1 Ritchie, C.J., looks to the laws in relation to the fisheries, which the local legislatures were previously to, and at the time of, Confederation in the habit of enacting, for their regulation, preservation, and protection, as throwing light upon the proper interpretation of No. 12 of section 91, whereby power to legislate in relation to sea coast and inland fisheries is vested in the Dominion parliament.2 And we seem to see an example of the absurd length to which a system of interpreting the words in sections 91 and 92 of the British North America Act, conferring legislative powers, by a reference to the state of the law at the time of the Union, may be carried, in Re Lake Winnipeg Transportation Lumber & Trading Co., where it appears (at page 260) that it was contended that section 5, sub-section (c), of the Dominion Winding-Up Act, R.S.C., chapter 129, which provides that a company is to be deemed insolvent if it exhibits a statement showing its inability to meet its liabilties, was ultra vires, because "while the parliament of Canada has exclusive power to legislate respecting 'insolvency,' all that is meant is that it may enforce and deal with the law of insolvency as it stood on the day the British North America Act was passed, but cannot alter that law." The judge, however, (Taylor, 16 S.C.R. at p. 121, 2 Cart. at p. 93, (1882). 2And so per Gwynne, J., in S.C. 6 S.C. R. at pp. 69-70, 2 Cart. at p. 122, seq.; per Fisher, J., in Robertson v. Steadman, 3 Pugs. at p. 637, (1876), and in Steadman v. Robertson, 2 P. & B. 594. 37 M.R. 255, (1891). C.J.), without discussing the matter, decides against Prop. 4 the contention. Council. Finally, to conclude this line of authorities by reference to a case before the highest tribunal, in Attorney-General of Quebec v. The Queen Insur- The Privy ance Co.,1 where the question arose whether an Act of the Quebec legislature, entitled "An Act to compel assurers to take out a license" (39 Vict., chapter 7), was in truth a license Act at all, or whether it was not in reality a Stamp Act, the Privy Council distinctly admitted that, if as a fact it could be shown that by the existing legislation in England and America licenses were constantly by light of granted on similar terms, it was a fair argument to say that No. 9 of section 92, giving legislative power over licenses as therein stated, should be construed with reference to the other subsisting legislation." Seem to admit principle of interpreting English and American legislation. To turn now to the other side of the question, Difficulties obvious difficulties arise in relying upon the state of in the matter legislation and other circumstances in the provinces prior to Confederation when seeking to interpret the British North America Act. For instance, the state of things existing in some of the provinces State of prior to Confederation were in some instances Confedera different from those existing in others of the in different provinces, and where this was the case, either the 13 App. Cas. at p. 1099, I Cart. at pp. 128-9, (1878). For other citations bearing in the same direction as the above, see per Spragge, C.J., in Reg. v. Frawley, 7 O. A. R. at p. 267, 2 Cart. at P. 584, (1882); per Cross, J., in Pillow v. City of Montreal, M.L. R. IQ.B. at p. 410, (1885); per Gwynne, J., Queen v. Robertson, 6 S.C.R. at p. 70, 2 Cart. at p. 122, seq., (1880); per Ramsay, J., in Corporation of Three Rivers v. Sulte, 5 L.N. at p. 333, 2 Cart. at P. 285, (1882); per Ritchie, C.J., Attorney-General v. Mercer, 5 S.C.R. at p. 624, 3 Cart. at p. 17, (1881), in which last case, when before the Privy Council, it may be noted that the Judicial Committee makes some slight reference to the state of things before Confederation, though apparently laying little stress upon it: S.C. 8 App. Cas. at pp. 777-8, 3 Cart. at p. 14. things before tion differed provinces. Per Dorion, Prop. 4 interpretation of the British North America Act must vary according to the province to which it is being applied, or we must select some particular province or provinces in seeking for light in construing it, or, lastly, we must take up the bold and comprehensive position assumed by Dorion, C.J., in the Quebec Court of Queen's Bench, in Cooey v. The Corporation of the County of Brome,1 where he says:— "In the absence of any expression to restrict the powers so conferred," (sc., by Nos. 8 and 16 of section 92 of the British North America Act), "they must be understood to comprise all those matters which, at the time the Union was effected, had been considered by the existing legislatures as belonging to municipal institutions, and as being of a local or provincial character." And see the words of Armour, J., in Re Harris and the Corporation of the City of Hamilton, quoted supra p. 49. Per This difficulty in the matter is pointed out by Strong, J. Strong, J., in his judgment in Severn v. The Queen2 where he says, referring to the reasoning of Richards, C.J., in this case, and in Slavin v. The Village of Orillia, above cited3:"I am unable to accede to the doctrine that we are to attribute to the words 'other licenses' the same meaning as though the expression had been such other licenses. as were formerly imposed in the provinces,' or equivalent words. The result of such construction would be that the same words would have a different meaning in different provinces, and that "Other licenses." No. 9, sect. 92. See supra, p. 27, n. 1. 1This judgment does not appear to be anywhere reported, but the above passage is quoted in Lepine v. Laurent, 17 Q. L. R. at p. 229. 22 S. C. R. at pp. 109-10, 1 Cart. at p. 453, (1878). In the Debates before Confederation in the parliament of Canada, Attorney-General Macdonald remarks (p. 41):—“ At present there is a good deal of diversity. In one of the colonies, for instance, they have no municipal system at all. In another the municipal system is merely permissive, and has not been adopted to any extent.' 336 U.C. R. at p. 176, 1 Cart. at p. 703. See supra p. 44. provincial are co-equal ordinate. the several provincial legislatures would have Prop. 4 different powers of taxation, though the power is included in the same grant. This, it appears to me, would be in direct contravention of the principle which forbids a different interpretation being given to a general law in different localities, however much local laws or usages may favour such diverse interpretations. However, apart from authority, I cannot think this was the intention Powers of of the Imperial parliament. I think everything legislatures indicates that co-equal and co-ordinate legislative and copowers in every particular were conferred by the Act on the provinces,1 and I know of no principle of interpretation which would authorize such a reading of the British North America Act as that proposed. Had such been the design of the framers of the Act, the meaning of which I can only discover from the words in which it is expressed, we should have found the case provided for." And Ritchie, C.J., observes in the same case:-J. "With all respect for the province of Ontario, I do not think the Act should be read by the light of an Ontario candle alone, that is, by the state of the law at the time of Confederation in that province, B.N.A. Act without reference to what the law was in other parts an Ontario of the Dominion. If the law at the time of Confederation is to be looked at as affording a key to the construction of the statute, then the state of the law throughout the Dominion must, I think, be looked at, and not that of any individual province, as I Cannot think it clear that the statute was to have a uniform different construction throughout the whole Dominion, and different 1See Proposition 65 and the notes thereto. 2And see to the same effect per Begbie, C.J., in Weiler v. Richards, 26 C.L.J. 338, at p. 340. 32 S.C.R. at p. 99, 1 Cart. at p. 442. Per Ritchie, C.J. Cannot read by light of candle alone. attribute powers to provinces. Prop. 4 the powers of all the local legislatures were to be alike."1 He also adds in the same passage: "We are not, in my opinion, to look to the state things in the of the law at the time of Confederation in the Nor can state of United any light. States throw adjoining Republic, or the difficulties there experienced, as affording any guide to the construction of the British North America Act." Per J. It is indeed difficult to dissent from the dictum of Taschereau, Taschereau, J., in Attorney-General v. Mercer:"It seems to me that any argument which, under the British North America Act, does not and cannot federation apply equally to all the provinces must be contrary sound, to the spirit and intent of the British North America. Argument based on ante-Con law, if must apply equally to all Act." provinces. But perhaps in one or other province may sometimes justify a Dominion enactment as simply to it. But that the state of law in some one or other province either before or after Confederation may state of law sometimes properly be regarded as showing that some provision in a Dominion Act is merely to be considered as a conforming on the part of the Dominion parliament with the provincial law in eâdem materiâ, and therefore should not be held to be ultra vires, seems conforming to have been the view of Hagarty, C.J.O., in McArthur v. Northern & Pacific Junction Railway Co., where the question was, whether section 27 of R.S.C., c. 109, imposing a six months' limitation for actions for injuries sustained by railways was ultra vires or not, and the learned Chief Justice says: "When we find the Dominion Act using the same words as to the six months' limitation as appear in the Consolidated Statutes of Canada and also in the Ontario Act, we should regard them as Per 1See Proposition 65 and the notes thereto. 25 S.C.R. at p. 669, 3 Cart. at p. 52, (1881). |