A colonial legislature cannot repeal or amend Imperial Acts extending to a colony unless empowered so to do by express permissive Imperial legislation. This would appear to be the clear result of the authorities. But it is remarkable that at each step in Canada's constitutional progress it has been contended that the Imperial parliament in legalizing such step had surrendered, so far as related to Canada, some portion of its paramount legislative authority; that, at least so far as concerns Imperial Acts of express colonial application but of date anterior to the "constitutional" Act then in force, the power to amend or repeal had been conferred upon Canadian legislatures. To this extent the contention has received the support of individual judges," but the decisions of the courts have been uniformly adverse. In the Maritime Provinces, where Imperial Acts relating to navigation were frequently invoked in the Vice-Admiralty Courts, a clearer view seems to have prevailed as to the The Friend's Adventure, ib. 200; The Fama, ib. 112. Congdon's N. S. Dig. col. 1336 et seq. Stevens, N. B. Dig. sub-titl. "British Statute." And for some cases involving the question of repugnancy between British and Canadian Statutes, see: Reg. v. Annie Allen, 5 Ex. Ct. R. 144. Reg. v. O'Dea, 3 Can. Crim. Cas. 402; 9 Que. Q. B. 158. Reg. v. Slavin, ib. 205. The Bermuda, Stewart (N. S. Adm.) 245-Prize Acts. The Farewell, 7 Q. L. R. 380; 2 Cart. 378. Holmes v. Temple, 8 Q. L. R. 351; 2 Cart. 396. 'See cases in note ante, p. 25. E.g., 9 & 10 Vic. c. 94, (empowering the colonies to repeal Imperial Tariff Acts), and the various Admiralty and Merchants' Shipping Acts: as to which last see Algoma Central Ry. Co. v. Reg., (1902) 7 Ex. Ct. Rep. 239. In his reference to The Royal, (1883) 9 Q. L. R. 148, Mr. Lefroy apparently overlooks the permissive sections of the Imperial Merchants' Shipping Acts of 1854; see his "Legislative Power in Canada," p. 212. Macaulay, J., in Gordon v. Fuller, infra; Draper, C.J., in Reg. v. Taylor, infra. See also the judgment of Gwynne, J., In re Bigamy sections of the Criminal Code, 27 S. C. R. 461. operation, within the colonies, of such Acts; and numerous cases are to be found in which, without question, effect was given to their provisions. The view, however, was pressed in argument there, just as it was in the courts of the upper province, that a provincial Act assented to by the Crown was of equal validity with an Imperial Act and, if later in point of time than an Imperial Act with which it might appear to clash, should be given effect to in preference to such Imperial Act. But no judicial utterance supports such a view. In a case in the courts of Upper Canada an affidavit was tendered in proof of a debt sued for by a British merchant, and reliance was placed on an Imperial statute of Geo. II.. expressly providing for such method of proof in colonial actions. It was contended that the Upper Canadian assembly had repealed the Imperial Act by legislation inconsistent with it. The legislative power of the assembly rested then upon the Constitutional Act, 1791, which provided that all laws passed by the assembly should be valid and binding if not repugnant to the Act itself. Macaulay, J. (afterwards C.J.), upheld this contention, saying, "I cannot but regard the provincial statute, when duly passed, of equal force within the province with British statutes." The question in his view, therefore, would be one of date as between the two conflicting statutes, an Imperial and a provincial; whichever was the later would prevail. The Imperial "repugnancy" statute then in force 10 declared null and void to all intents and purposes whatsoever all colonial laws repugnant to Imperial Acts "made or to be made" extending to the colonies. This statute, Macaulay, J., thought, applied only to laws passed in the old colonies under government by commission or charter, and not to the Acts of a legislative assembly created by Imperial legislation. The majority of the court, however, held 205. The Bermuda, Stewart, 245. Gordon v. Fuller, (1836) 5 U. C. Q. B. (O.S.) 174. 'See Reg. v. Sherman, 17 U. C. C. P. 167; Reg. v. Slavin, ib. 10 6 Geo. IV. c. 114; passed, it will be noticed, after the Constitutional Act, 1791. otherwise. Adopting the view that the " repugnancy" Act just mentioned applied to all colonial legislation, Robinson, C.J., pointed out that nothing could be more repugnant to an Imperial Act than an attempted repeal of it. Again it was seriously argued that, in spite of express words extending it to all parts of the Empire, the Imperial Foreign Enlistment Act of 1819 was not in force in Canada because Canada had at the date of its passage a local legislature. This view was negatived by the judgment of the court and the enlistment in Canada of recruits for the American army held to be unlawful. Somewhat the same views have been advanced since the B. N. A. Act became law. The word "exclusive" in the section (91) declaring the legislative power of the Dominion parliament has been adverted to 2 as "intended as a more definite or extended renunciation on the part of the parliament of Great Britain than was contained in the Renunciation Act of Geo. III.3 or the Colonial Laws Validity Act of 1865." + But this view has not met with support in later cases. The same word occurs in section 92, which sets forth the matters for provincial legislation, and it is used in both sections to describe the Dominion and provincial spheres as mutually exclusive. 5 It has, however, been strongly urged officially that the B. N. A. Act, 1867, has so far modified the Colonial Laws Validity Act, 1865, in its application to Canada that Imperial 1 Reg. v. Schram, (1864) 14 U. C. C. P. 318. See also the ineffectual argument of counsel in Bartley v. Hodges, 1 B. & S. 375; 30 L. J. Q. B. 352. By Draper, C.J., in Reg. v. Taylor, 36 U. C. Q. B. at p. 220. See ante, p. 11. The Act is in the Appendix B. Smiles v. Belford, (1876) 1 O. A. R. 436; 1 Cart. 576; Reg. v. Coll. of Phys., (1879) 44 U. C. Q. B. 564; 1 Cart. 761; Tai Sing v. McGuire (1878), 1 B. C. 107; Metherell v. Coll. of Phys. (1892), 2 B. C. 189; and see Lefroy, "Legislative Power in Canada," p. 210, et seq. In Smiles v. Belford, Moss (Thos.), J.A.-afterwards C.J.O. -expressed his belief that Draper, C.J., had not deliberately entertained the view indicated above, but had merely thrown out a suggestion in that direction. See also opinion of Sir Roundell Palmer and Sir Farrer Herschell: Dom. Sess. Pap., 1890, Vol. 15, No. 35. Acts extending to Canada, but of date prior to 1867, may be, in effect, repealed or amended by Canadian legislation; but this view has not met with favor at the hands of the Imperial law officers of the Crown,' and seems to be entirely opposed to the strong current of English and Canadian authority. It would seem almost needless to add that the repeal by the British parliament of an Imperial Act extending to a colony is operative in such colony. It was so decided in an old cases in which an effort was made to subject the Bank of Upper Canada to the disabilities imposed by the English Bubble Acts. The earlier Act had been expressly repealed in 1825, thus wiping out both Acts as the later Act was a mere supplement" to the earlier. By reason of such repeal the Acts were held to be no longer in force in Canada. A more recent and striking authority holds that an amendment of an Imperial Act (extending to a colony) by a subsequent Imperial Act, not directly but by implication, is operative in such colony. (2) Imperial Acts which, as part of the law of England, have been carried to a colony by its first settlers, or which, by the action of the Home authorities or by colonial adoption, have been established as the basic law of the colony. This branch of the subject is concerned with Imperial Acts, and those only, which have no expressed reference to the colonies in general or to any colony in particular. To what extent are such Acts in force in a colony? 66 "A question of this kind," said Chief Justice Robinson,10 arising in any British colony, must depend upon the manner in which the law of England has become the law of that 6 Report of Sir John Thompson, Minister of Justice, in Dom. Sess. Pap., 1890, Vol. 15, No. 35, on the copyright question. See also Dom. Sess. Pap., 1892, Vol. 12, No. 81, and 1894, No. 5. 1lb. See also Algoma Central Ry. Co. v. Reg. (1902), 7 Ex. Ct. Rep. 239. Bank of U. C. v. Bethune, 4 U. C. Q. B. (O.S.) 165. 10 Doe dem. Anderson v. Todd, (1845) 2 U. C. Q. B. 82. particular colony; whether it has been merely assumed to be in force upon common law principles, as in the case of new and uninhabited lands found and planted by British subjects; or whether it has been introduced by some positive enactment of the Mother Country, or of the colony, or (as may be done in the case of a conquered country) imposed by the mere act or regulation of the King in the exercise of his royal prerogative." Many of the English statutes in times past held to be in force here are not now operative in Canada, the subjects with which they deal having received attention at the hands of Canadian legislatures. It is only in the absence of Canadian legislation on the subject that any question can arise as to the effect here of such an Imperial Act.1 A brief review of the authorities is attempted in order to arrive at the principles upon which they rest and not in order to indicate what particular Imperial Acts are to-day in force in the different Canadian provinces. As to colonies acquired by settlement the law has been thus recently stated in the Transvaal Raid case:3 "Settlers from this country as a general proposition take with them as part of the law which is to govern them in their new home all the laws of the parent country which are applicable and may reasonably be applied to the condition in which they exist. But the law may also be applied by the exercise of legislative power given to the governor of a new colony in any way he pleases within the limits of his authority." 1 Falkland Islands Co. v. Reg., 2 Moo. P. C. (N.S.) 266; Harris v. Davis, 10 App. Cas. 259; 54 L. J. P. C. 15, etc., etc. 2 In Appendix E will be found a tabulated list of English statutes as to which question has been raised in the courts. 3 Reg. v. Jameson, (1896) 2 Q. B. 425; 65 L. J. M. C. 218. And see Kielley v. Carson, 4 Moo. P. C. 63. Begbie, C.J., with quaint humor, says (Reynolds v. Vaughan, 1 B. C. pt. 1, p. 3): "An Englishman going to found a colony may be supposed to know the common law by common sense, and to carry the statutes (in the form of Chitty) in his hands." He thought, however, that "Orders in council are something extra," even when passed under the authority of an Imperial statute itself in force in t colony. |