Power to pass laws implies power to execute. Prop. 8-9 law that, after a colony has received legislative institutions, the Crown (subject to the special provisions of any Act of parliament) stands in the same relation to that colony as it does to the United Kingdom: In re The Lord Bishop of Natal, 3 Mo. P.C.N.S., at p. 148. Effective colonial legislation as to pardon may be attributed to the fact that the Crown is a constituent of the local law-making body The power to pass laws implies necessarily the power to execute or suspend the execution of those laws, else the concession of self-government in domestic affairs is a delusion. The sovereign power is a unity, and, though distributed in different channels and under different names, it must be politically and organically identical throughout the Empire. Every act of government involves some output of prerogative power. Prerogatives of the Crown may not have been in any sense communicated to the Lieutenant-Governor as representative of the Queen; and yet the delegation of law-making and other sovereign powers by the Imperial parliament to the legislature of Ontario may suffice to enable that body, by a deposit of power, to clothe the chief provincial functionary with all needful commuting and dispensing capacity, in order to complete its system of government." Per Burton, J.A. In the Ontario Court of Appeal,1 Burton, J.A., also expresses his opinion that the legislative and executive powers granted to the provinces were intended to be co-extensive, and, as was seen in the notes to Proposition 7,2 goes beyond this, and holds, as it would seem, that the Lieutenant-Governor is vested, virtute officii, with the administration of all 119 O.A. R. at p. 38, (1892). 2Supra pp. 113-4. Supreme Canada. the royal prerogatives, so far as they are capable of Prop. 8-9 being exercised in relation to the government of the provinces. The remaining judges in this Court, however, while agreeing in holding the Act intra vires, decide the matter on narrower grounds, as do The also the judges of the Supreme Court of Canada, Court of to which the case was afterwards carried,1 though Strong, C.J., as will be seen, when considering Proposition 9, does refer to the matter of legislative power over the royal prerogative.2 Gwynne, J., however, may be thought to countenance the view expressed in Proposition 8, when he says, referring to section 2 of the Ontario Act in question :—“ If that section had been passed so as to enact that the Lieutenant-Governor should have the power of commuting and remitting sentences passed under the authority of item 15 of section 92 of the British North America Act, there would have been, I apprehend, no objection raised to such an enactment." Per Gwynne, J. Davey. And before proceeding further to review our own decisions in reference to the point under discussion, it may be observed that the opinion of Sir Horace Sir Horace Davey and Mr. Haldane, to whom questions were submitted by the Ontario government, dated December 9th, 1887, in reference to the appointment of Queen's Counsel, seems to support our leading proposition as applied to legislative powers conferred by section 92 of the British North America Act, even where the executive power in question is clearly of a prerogative character. It does not, however, go the full length of upholding the supposed 123 S.C.R. 458. 2See infra pp. 180-1. 3 Ont. Sess. Pap., 1888, No. 37, at p. 30. As to power to appoint Queen's Counsel. Prop. 8-9 wholesale distribution of prerogative powers by that Act, though the matter may be one of little present practical importance. The questions submitted to them were whether a LieutenantGovernor of a province in Canada has power, as it were, ex officio, to appoint Queen's Counsel, and whether a provincial legislature has power to authorize the Lieutenant-Governor to make such appointments. They advised that the appointment of Queen's Counsel is the appointment to an office, and that under section 92, No. 4, (the establishment and tenure of provincial offices, and the appointment and payment of provincial officers), the provincial legislature has power to authorize Lieutenant-Governors to make such appointments for the purpose of the provincial Courts, but they say: "We feel some doubt as to the power of the Lieutenant-Governor of any province, other than Ontario or Quebec, to create Queen's Counsel with or without the incidental privilege of pre-audience. But in regard to Ontario and Quebec, we think, having regard to section 134 of the British North America Act, that the LieutenantGovernors of the provinces can create Queen's Counsel for the purposes of the provincial Courts. Whether the Lieutenant-Governors can regulate the precedence of the members of the provincial Bars inter se is, in our opinion, one (sic) of some difficulty. On the whole, we think not.”1 1 And see Todd's Parl. Gov. in Brit. Col., 2nd ed., p. 327, for the case of an Act of the South Australia legislature being disallowed by the Imperial government as an encroachment upon the undoubted prerogative of the Queen, as the fountain of honour, to determine the precedence of her subjects.' Also see ib., p. 339, seq., in reference to the matter of the Nova Scotia Great Seal, especially at p. 340, where Nova Scotia a despatch of the Secretary of State for the Colonies of August 23rd, 1869, (Can. Sess. Pap., 1877, No. 86, p. 7), is cited, wherein he expressed his conviction that the right of Her Majesty exclusively to Great Seal Case. officers of And with this may be compared the opinion of Prop. 8-9 the law officers of the Crown in England given in 1872, on a case stated by Sir John Macdonald, in which they advised that-" The Governor-General The law has now power as Her Majesty's representative the Crown. to appoint Queen's Counsel, but a LieutenantGovernor appointed since the Union came into effect has no such power of appointment," but "the legislature of a province can confer by statute on its Lieutenant-Governor the power of appointing Queen's Counsel."1 Lewis' ment of encies. And in Sir George Cornewall Lewis' Essay on the Sir G. C. Government of Dependencies more than one pass- "Governage may be found which supports our leading propo- Depend. sition. Thus he says:-An Act of legislation by a sovereign government implies the necessity of future executive acts, and every executive act presupposes a prior legislative Act which is carried into execution." And again3:-" With respect to the comparative importance of the legislative and executive powers, it may be observed that a sovereign government possesses both, and that, inasmuch as each of these powers implies the other, neither can exist alone The power of making laws implies the power of determining the delegation of executive functions to subordinate officers, since it is by means of laws that the delegation is made." order and to change at will the Great Seals of the provinces, having been an existing right before the passing of the British North America Act, cannot be deemed to have been taken away by implication to be inferred from section 136 of that Act. See, also, ib., p. 596; and Doutre's Constitution of Canada, pp. 375-6. See supra pp. 104, n. 2, 114. 1Can. Sess. Pap., 1873, No. 50, p. 3. See supra p. 88, infra p. 136. 2Ed. 1891, by C. P. Lucas, at p. 16. 3 Ib. at p. 66. Prop. 8-9 Other cases Prop. 8. He Proceeding now to consider such decided cases not already referred to as illustrate our leading supporting proposition, one of the earliest is Queen v. Reno,1 where Draper, C.J., held that an Act of the Ontario legislature continuing in force an Act of the old province of Canada which authorized the government to appoint police magistrates was valid. held that the latter Act related to the administration of justice, and was within the power of the legislature of Ontario. We may compare with this Regina v. Bennett, where it was likewise held by the Ontario Queen's Bench Division that the right of provincial legislatures to legislate in relation to the administration of justice includes a right to make provision for the appointment of police magistrates and justices of the peace by the Lieutenant-Governor, though, per Cameron, J., it did not follow that it included the right to create Queen's Counsel, the status of whom "is one of mere honour and dignity, and not necessarily connected with the administration of justice."3 Reg. v. In re Wilson v. 4 On the same principle, in In re Wilson v. McGuire, the majority of the Ontario Court of Queen's Bench held that provincial legislatures have complete jurisdiction over Division Courts, and may appoint the officers to preside over them, Hagarty, C.J., observing :-"As they (i.e., the local legislatures) have power to abolish such Courts, and to 14 O.P. R. 281, I Cart. 810, (1868). 21 O.R. 445, 2 Cart. 634, (1882). 31 O. R. at p. 460, 2 Cart. at p. 640. As to this matter of Queen's Counsel, see also per Taschereau, J., in Lenoir v. Ritchie, 3 S.C.R. at pp. 627-9, 1 Cart. at pp. 534-5, (1879), and passim in that case; also Hodgins' Prov. Legisl., etc., Vol. 1, pp. 26-7; ibid., Vol. 2, pp. 25, 26-7. And see supra p. 88, n. 2. 42 O.R. 118, 2 Cart. 665, (1883). Cf. Ganong v. Bayley, P. & B. 324, 2 Cart. 509, (1877). See infra pp. 169.70. |