exhibited in the Canadian cases these questions call for careful consideration:

1. As a question of legislative competence, is there any territorial limitation at all in the case of a colony to which the Colonial Laws Validity Act' applies?

Two cases decided by the Privy Council since 1865 seem to authoritatively affirm that the same territorial limitation exists as before the passage of the Colonial Laws Validity Act. In the earlier cases the opinion was expressed (obiter, it is true, but without qualification) that the legislature of Victoria could not confer on the courts of that colony jurisdiction to try offences committed on the high seas. In the later case it was held that the legislature of New South Wales could not affix criminal character to an act committed beyond the limits of the colony by one who, apparently, was not resident or domiciled in it. In neither of these cases does any suggestion appear that the Colonial Laws Validity Act had any bearing on the questions decided.10

2. Is there any territorial limitation in regard to Canadian legislation under the B. N. A. Act?

By some Canadian judges the view has been strongly expressed that in this matter of "extra-territorial" legislation

7

28 & 29 Vic. c. 63 (Imp.). See ante, p. 57. 'Reg. v. Mount, (1875) L. R. 6 P. C. 283.

'McLeod v. Atty.-Gen. (N.S.W.), (1891) A. C. 455; 60 L. J. P. O. 55.

10 In 1861, the parliament of (Old) Canada passed an Act to give jurisdiction to Canadian magistrates in reference to certain offences committed in New Brunswick. This Act was disallowed by order of the Queen in Council upon the report of the law officers of the Crown, who advised that "such a change cannot be legally effected by an Act of the colonial legislature, the jurisdiction of which is confined within the limits of the colony:" see Jour. Leg. Ass. Can., 1862, p. 101. Most of the authorities are discussed in Re Bigamy sections of Criminal Code, 27 S. C. R. 461. Ashbury v. Ellis, (1893) A. C. 339; 62 L. J. P. C. 107; 5 Cart. 636; Stairs v. Allen, 28 N. B. 410; Deacon v. Chadwick, 1 O. L. R. 346; and the cases as to colonial legislation relating to naturalization and aliens (see B. N. A. Act, s. 91, No. 25), should be read in this connection.

1In Reg. v. Brierly, 14 O. R. 525; 4 Cart. 665, Boyd, C., seems to be of opinion that " extra-territorial" legislation means legislation

CAN. CON.-5

Canadian legislatures are in precisely the same position as the Imperial parliament. If so, Canadian courts must enforce such legislation, leaving it, not to the Dominion or provincial government concerned, but to the Imperial authorities to answer any remonstrance from a foreign power. The question has been recently considered by the Supreme Court of Canada3 and the judgment of the majority affirms the validity of certain sections of the Criminal Code which make it "bigamy " for a British subject resident in Canada to commit the offence abroad, provided he leaves Canada with intent to commit it. The views of some of the judges, however, would support a much more comprehensive enactment; more comprehensive, even, than the existing British statute on the subject.*

Privy Council decisions lend no sanction to the view that under the B. N. A. Act Canadian legislatures stand upon a footing different from that of the other self-governing

which it is attempted to enforce abroad. Does not this unduly limit its meaning? In the books it is constantly used to describe the attempt by the legislature of one state to determine the legal relation to arise in that state from acts done and contracts entered into in another.

'See particularly the judgments of Gwynne, J., and Girouard, J., in Re Bigamy sections of Criminal Code, 27 S. C. R. 461, and of Boyd, C., in Reg. v. Brierly, ubi supra. It is submitted that the limitation of the lines of judicial investigation open to a Canadian judge to a consideration of the express provisions of the B. N. A. Act on the one hand, and of the Colonial Laws Validity Act on the other, is to leave untouched those implied restrictions to which reference has been made in an earlier part of this chapter-such, e.g., as those indicated in Craw v. Ramsay, ante, p. 60.

3 Re Bigamy sections of the Criminal Code, 27 S. C. R. 461. There were two conflicting decisions on the subject in Ontario (Reg. v. Brierly, 14 O. R. 525, Chy. Div., in which the sections were held intra vires, and Reg. v. Plowman, 25 O. R. 656, Q. B. D., in which they were held ultra vires), and the Dominion government referred the question to the Supreme Court. No one appeared to argue against the constitutionality of the sections. The result has been to give the question a wider range than ever. The dissenting judgment of Strong, C.J., is, it is submitted, in accord with the views held in England, judicially and officially. See post.

See Rex v. Russell, (1901) A. C. 446; 70 L. J. K. B. 998.

colonies. Provincial legislatures have been more than once described as acting within limits of subjects and area."

And the law officers of the Crown in England have not, so far as appears, considered that the B. N. A. Act has worked any change. The Dominion parliament in 1869 passed an Act respecting perjury, the third section of which purported to affix penal consequences to the making abroad of affidavits for use in Canada. In a despatch to the Governor-General, the Colonial Secretary adverted to this section as assuming "to affix criminal character to acts committed beyond the limits of the Dominion of Canada," and "as such a provision is beyond the legislative power of the Canadian Parliament," he suggested amendment. The Act was amended in the very next session, so as to limit the operation of the third section to affidavits made in one province of the Dominion for use in another province."

In courts of justice in England and other British colcnies, Canadian law (statutory and common) is entitled to at least as full recognition as is accorded to the laws of any foreign nation on principles of international comity. On

8

Hodge v. Reg., (1883) 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144; quoted with approval and applied to all the provinces in Liquidators of Mar. Bank v. Rec.-Gen. of N. B., (1892) A. C. 437; 61 L. J. P. C. 75; 5 Cart. 1. If it be said that this has reference to the provincial area as distinguished from the Dominion, how does it touch the argument? Moreover the passage in Hodge's Case is also quoted and applied in Powell v. Apollo Candle Co., 10 App. Cas. 282; 54 L. J. P. C. 7; 3 Cart. 432; and the legislature of New South Wales (where there was no division of the field as in Canada), described as "restricted in the area of its powers." The word " area " has the same meaning in all these passages, namely, geographical area. See also the passage quoted from Phillips v. Eyre, ante, p. 57-8. 'Can. Sess. Pap., 1870, No. 39; see Todd, "Parl. Gov't in Brit. Col." 150.

133 Vic. c. 26 (Dom.), amending 32 & 33 Vic. c. 23, s. 3. As already intimated there is a wide discussion of this whole question as to "extra-territorial " legislation in Re Bigamy sections, supra, and most of the authorities are there reviewed; for which reason they are omitted from this edition. The opinion of the law officers of the Crown on a somewhat cognate question, viz., the power of Canadian parliaments to repeal or amend Imperial Acts of date anterior to 1867. is referred to ante, p. 37-8.

Phillips v. Eyre, L. R. 4 Q. B. at p. 241; 38 L. J. Q. B. 123; Reg. v. Brierly, 14 O. R. at p. 534; 4 Cart. 665.

9

appeals to the Privy Council, judicial recognition is, of course, accorded them; in other cases, they must be proved as fact. The 6th section of the Colonial Laws Validity Act, 1865,10 provides for a simple method of proof of colonial statutes, viz., a copy of the Act certified as such by the proper officer of the legislature whose enactment it is.

1

The Privy Council has moreover laid down this broad proposition: that the law contained in an Act of the legislature of a colony ratified by the express sanction of Her Majesty is, in every case to which it is applicable, of binding authority, equally in the Queen's High Courts in England, and in Vice-Admiralty Courts in the colonies. In an action therefore in an English court or the court of another colony, the law of Canada would be given effect to, either on the doctrine of comity or on the stronger doctrine enunciated by the Privy Council in the case just mentioned.

Cameron v. Kyte, 3 Knapp. P. C. at p. 345.

10 28 & 29 Vic. c. 63 (Imp.). See Appendix B.

'Redpath v. Allen, L. R. 4 P. C. 511. The expression "ratified by the express sanction of Her Majesty" would seem to be rhetorical, meaning not disallowed."

66

CHAPTER V.

THE B. N. A. АСТ, 1867.

30-31 VIC. c. 3 (IMP.).

An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for purposes connected therewith. (a)

(a) A Constitutional Act.—In most of the cases under the B. N. A. Act the problem has been to reconcile those sections (91 et seq.) which divide the field for legislative purposes between the Dominion and the provinces, and a number of principles or rules of interpretation have been laid down in dealing with such cases.1 But the cases are few in which the question is touched as to the view to be taken of the Act as being, what it clearly is, a great constitutional charter. The Privy Council has, indeed, laid down that courts of law must treat the provisions of this Act by the same methods of construction and exposition which they apply to other statutes. Nevertheless their Lordships have not been unmindful of the high political nature of some of its provisions. For example, in construing section 109 which reserves certain sources of revenue to the provinces, the Privy Council has said:

"The general subject of the whole section is of a high political nature; it is the attribution of royal territorial rights for purposes of revenue and government."

The same remark might well be applied, with but slight alteration, to those sections of the Act which distribute plen

1See the notes to s. 91, post, p. 196.

'Bank of Toronto v. Lambe, 12 App. Cas. 575; 56 L. J. P. C. 87; 4 Cart. 7.

'Mercer v. Atty.-Gen'l. (Ont.), 8 App. Cas. 767; 52 L. J. P. C. 84; 3 Cart. 1.