Prop. 8-9 Sir John Thompson then discusses an objection raised in the Quebec Order in Council, that the advice to the Governor-General to disallow the Act of 1888 had been unduly delayed, showing it to be founded on a misconception of facts, and continues: down in memo randum of "The Quebec Order in Council next proceeds to state a grievance which seems to differ materially from the one just noticed, inasmuch as it is a complaint that in dealing with the disallowed Act your Rules laid Excellency's advisers acted with too much expedition. Reference is therein made to a memorandum 1868 as to of the Minister of Justice, dated the 9th day of June, 1868, recommending the course which should be pursued in reference to a review of provincial statutes, and the government of Quebec declare that in the recent case of disallowance those rules have not been observed.1 disallowance of statutes, "The only rule to which this complaint can refer, by any possibility, is the following: 666 That where a measure is considered only partially defective, or where objectionable, as being Ex. gr.,that prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication before dis should be had with the provincial government with objections should be submitted allowance, respect to such measure, and that in such case the Act should not be disallowed, if the general interests permit such a course, until the local government has had an opportunity of considering and discussing the objections taken, and the local legislature has also an opportunity of remedying the defects found to exist.' "The undersigned does not understand that the adoption of those general rules in 1868 in any way 1 Printed in Hodgins' Prov. Legisl., Vol. 1, p. 1. trol veto interests demanded limited or controlled the exercise of your Excel. Prop. 8-9 lency's power of disallowance. They were suggestions for the guidance of the Minister of Justice of Do not conthat time, and for his successors in office, and, in so power. far as provincial governments were concerned, they were merely indications of a line of action which your Excellency's advisers at that period thought suitable to be adopted. They were not in any sense. an agreement with provincial governments1, and at any time when they may be departed from, it would seem that the provincial Executives have no reason to complain of the exercise of your Excellency's powers by any other method. In the present instance it seems apparent that the complaint of departure from these rules is hardly well founded. It can hardly be contended that in dealing with the The general objectionable statute, the provincial Executive was at liberty to proceed with the utmost expedition, of the but that the federal Executive was bound to pursue of 1888. Quebec Act a course of remonstrance and delay, which would have led to great confusion and public injury if the view held by the federal Executive was right. It can hardly be contended that if your Excellency's advisers thought the important provisions of the disallowed Act to be unconstitutional, and in excess of the powers of the legislature, they should have allowed the Act to be proclaimed, the judges to be appointed by the Lieutenant-Governor, the Circuit Court to be abolished by proclamation, the new tribunal to exercise its large powers in a great section of the province of Quebec without authority, suitors to be involved in expense, judgments to be rendered and enforced, seizures made, property sold, With regard to this remark of Sir J. Thompson, it would seem clear that Ministers could not bind the Crown by any such agreement. See per Higinbotham, C.J., Attorney-General v. Goldsbrough, 15 V. L.R. at p. 645, (1889). prompt disallowance Prop. 8-9 personal liberty restricted, while your Excellency's advisers would be remonstrating with the provincial Executive, and waiting for the legislative session of 1889, in order to give that legislature an opportunity of remedying the defects found to exist." "It seems to the undersigned that, quoting the language of the rule which it is claimed was violated, the general interests' did not permit such a course.' "Under the circumstances which the undersigned has presented in this report, he ventures to submit that the government of the province of Quebec was under an erroneous impression in supposing that, in disallowing the District Magistrates' Act of 1888, your Excellency's government was actuated by any disposition whatever to limit the actual right of that province to adopt any law deemed necessary for the good government and prosperity of the province, within the limits of its powers and attributes."" In answer to the above report of Sir John Thompson, the Lieutenant-Governor of Quebec forwarded to the Dominion government a report of the President of the Executive Council of the province, upon which the Minister of Justice made a further report further on July 15th, 1889, in the course of which he said1: -"In the document now under review, the President District of the Executive Council states that he does not Magistrates Act, 1888. Sir J. Thompson's report on the Quebec clearly see from the report of the undersigned, approved on January 22nd last, whether the undersigned maintains the opinion that the local legislatures have no power to create Courts, of no matter how small jurisdiction, whose judges shall be 1 Through the courtesy of the Department of Justice at Ottawa, the writer has had an opportunity of perusing all reports of Ministers of Justice upon provincial legislation from 1887, when Mr. W. E. Hodgins' wo terminates, to the present time. that Provincial power of some judicial denied. appointed by the local Executives. In the previous Prop. 8-9 report of the undersigned, no question was raised as to the provincial power to create such Courts, and as to whether the power might not be validly conferred on the local Executives to appoint magistrates or judges for Courts of small jurisdiction, and different from the Courts mentioned in the clause of the British North America Act, which confers the appointing appointing power on the Governor-General. The officers not undersigned distinctly declared in that report that was not a matter involved in the discussion, as the legislature of Quebec, in enacting the District Magistrates' Act, and the Quebec government, in making the appointments, had clearly invaded the powers of Parliament and of your Excellency, even though the power to appoint some classes of officers, with judicial functions, might be with the local authority. The contention which is made in the document under review does not, in the opinion of the undersigned, refute the view set forth in his previous report . . That view has been taken by nearly all the Ministers of Justice since the union of the provinces, namely, that the words of B.N.A. Act. the British North America Act referring to 'Judges of the Superior, District, and County Courts' include all classes of judges like those designated, and not merely the judges of the particular Courts which at the time of the passage of the British North America Act happened to bear those names." And, again, in his report as Minister of Justice on the New Brunswick Acts for 1889, Sir John Thompson objected to section 4 of c. 23, an Act respecting Criminal Courts, which provided that the LieutenantGovernor in Council might appoint stipendiary or police magistrates within any county, saying:"The undersigned again desires to express his Sect. 96 of Prop. 8-9 doubts as to the right of the Lieutenant-Governor to appoint, or of a provincial legislature to authorize the appointment of, justices of the peace or other judicial officers. The question is one of difficulty, and there have been decisions both ways, but no final Court of appeal has expressly formulated a judgment upon it," and referring to a recent case, on Reg. v. which is evidently Reg. v. Bush, (above referred to at pp. 137-9,) he strongly objects to the argument based in the judgments in that case on the acquiescence of the Dominion parliament.1 Sir J. Thompson Bush. Prop. 9. Legislative power over the Proceeding to Proposition 9, it is one easily deducible from Propositions 7 and 8, and affords a convenient opportunity to briefly discuss the subject of legislative power over the royal prerogative. The words of the Proposition are suggested by those of Taschereau, J., in Lenoir v. Ritchie, where prerogative. he says :-" Admitting the theory that the pro royal 1As to which, see Propositions 14 and 15. In the recent Nova Scotia case of Thomas v. Haliburton, 26 N.S. at p. 74, (1893), Graham, E.J., says :-" I think that it was the intention of the British North America Act that crimes of this nature," (sc., libels, forgery, tampering with witnesses), "should be tried by judges appointed and paid by the federal authorities, and not by appointees of the provincial legislature. That it is a usurpation of jurisdiction, which, if allowed in this case," (where the provincial legislature had enacted that the House of Assembly should be a court to adjudicate upon and punish libels upon members during the session of the legislature), "may be delegated to municipal bodies by the same legislature: Reg. v. Toland, 22 O. R. 505, citing Reg. v. Boucher, Cass. Sup. Ct. Dig., p. 325." The A suggestion as to powers question of the power of provincial legislatures to appoint police of appointing magistrates is discussed at length by Mr. Marsh, Q.C., in 8 C. L. T. 97, justices of seq., concluding in the negative. May not, however, the true solution the peace lie in the application of our leading proposition to Nos. 14 and 15 of section 92 of the British North America Act, so that provincial legislatures may be found to have power to appoint, or authorize the appointment of, justices of what may be termed the provincial peace, for the enforcement of laws, under No. 15 of section 92, while the Dominion parliament alone has such powers as to the Dominion peace, that is, as to justices to enforce criminal laws, within the meaning of No. 27 of section 91, (as to which see supra pp. 35-7, 49-51), saving always the Queen's prerogative, where that has not been controlled by valid legislative enactment ? 23 S.C.R. at pp. 623-4, 1 Cart. at p. 530, (1879). |
