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of the judicial function of declaring an Act ultra vires. As expressed by the Chancellor of Ontario, in a recent Case (1"), the supervision, touching provincial legislation, entrusted to the Dominion government, works in the plane of political expediency as well as that of jural capacity, while the question for the courts is as to the latter merely. The framing of the Quebec Resolutions, upon which the B. N. A. Act is founded, was the work of the most eminent legal ininds of that day in Canada, and a glance at the debates upon those Resolutions will show that they thoroughly appreciated the distinction, pointed out in these later days by the Chancellor. Throughout the debates, it was clearly recognized that the exercise by the Dominion government of the power of disallowance, was to be exercised in support of federal unity,—.4., to preserve the minorities in different parts of the confederated provinces, from oppression at the hands of the majorities. That it was not intended to obviate the necessity for resort to the courts, is apparent from the following extract. Complaint was made that while the Dominion government was invested with this veto power, no authority was provided to supervise its exercise; and the question was further asked, what check will there be upon Dominion legislation? The speaker (y) presumed, for the purpose of his argument, that in each of these cases, the only check would be through the Imperial government.
“ Hox. ATTORNEY-GENERAL Cartier.— The delegates understood the matter better than that. Neither the Imperial government nor the general government will interfere, but the courts of justice will decide all questions in relation to which there may be differences between the two powers.
· A voice. The Commissioner's courts !
Hon. Mr. Dorion.—Undoubtedly. One magistrate will decide that the law passed by the federal legislature is not law,
(r) Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.), 20 O. R. at p. 245.
(y) Hon. A. A. Dorion; afterwards Sir A. A. Dorion, Chief Justice of Quebec. See Confed. Deb. p. 690.
whilst another will decide that it is law, and thus the difference, instead of being between the legislatures, will be between the several courts of justice.
“Hon. ATTORNEY-GENERAL CARTIER.---Should the general legislature pass a law beyond the limits of its functions, it will be null and void, pleno jure'.
“Hon. Mr. Dorion.-Yes, I understand that; and it is doubtless to decide questions of this kind that it is proposed to establish federal courts.”
The fact is that the power of disallowance vested in the Governor-General in Council, is precisely analagous to the power of disallowance vested in the Queen in Council over Dominion legislation. The power in each case is subject to the limitations prescribed by those "conventions of the constitution " to which Prof. Dicey so frequently refers. An act of the Dominion parliament may run the gauntlet of the home government, and yet be afterwards declared by the courts to be invalid. As is well known, the supervision exercised by the law officers of the Crown in England, is directed to seeing that any colonial Act, submitted for their consideration, is not repugnant to any Imperial legislation ; and they do not pretend to examine Dominion Acts in order to determine the question of their validity, as being within the range of subject matters confided to the parliament of Canada by section 91 of the B. N. A. Act. And with regard to the disallowance by the governor in council of provincial Acts, the exercise of this power by reason of the provincial Act being thought ultra vires, has almost entirely ceased, and the supervision now works almost exclusively “in the plane of political expediency."
Note to p. 172 ante.-- The first chapter of Prof. Dicey's book-"On the Nature of Parliamentary Sovereignty”'-contains nothing which might not be, with equal truth, said of the legislative bodies throughout Canada. What he writes at p. 58 in disproof of “the alleged legal limitations on the legislative sovereignty of parliament,"'-namely, limitations arising out of the precepts of the moral law, the prerogatives of the Crown, and the binding effect upon parliament of preceding Acts
of parliament–is all equally applicable to the position of Canadian legislatures. And with reference to them, too, it may be said, that there is no competing legislative power either in the Crown, in either branch of the legislature (where the legislature happens to be bicameral), in the constituencies, or in the law courts.
The second chapter “is to illustrate the characteristics of such sovereignty, by comparing the essential features of a sovereign parliament like that of England, with the traits that mark non-sovereign law. making bodies,"--among which he classes colonial legislatures. Yet, on a later page (105) he lays it down :
"When English statesmen gave parliamentary government to the colonies, they almost, as a matter of course, bestowed upon colonial legislatures, authority to deal with every law, whether constitutional or not, which affected the colony, subject, of course, to the proviso, rather implied than expressed, that this power should not be used in a way inconsistent with the supremacy of the British parliament. The colonial legislatures in short are, within their own sphere, copies of the Imperial parliament. They are, within their own sphere, covereign bodies, but their freedom of action is controlled by their subordination to the parliament of the United Kingdom.”
To charge the men who had in hand the framing of the scheme of confederation, with " misconception of the nature of federalism" comes with rather bad grace from Prof. Dicey. He speaks (p. 133) of a federal state as "a political contrivance intended to reconcile national unity and power with the maintenance of state rights.' • The end aimed at,” he says, "tixes the essential character of federalism.” A very clear statement this; and yet, the Professor apparently 'fails to note that 'state rights’ may be para pbrased and generalized as · local self-government, and that his definition of federalism is clearly applicable to those “conventions” of the British constitution which regulate the relations between Great Britain and her colonies. We might refer, too, to another passage in which he is historically inaccurate. He treats (page 144) the division of power between the legislative and executive departments of government, under the American system, and the restrictions, which appear in their “Constitution," upon interference with individual rights, as being part and parcel of—"connected with”the same federal idea of division. In this he is clearly astray. Several of the constitutions which existed in the individual states prior to the adoption of the Constitution of the United States," exhibit both these characteristics—the first, because that was thought to be the English principle, and the second, because of the prevalence then of the doctrines of Rousseau and Montesquieu.
COLONIAL LEGISLATIVE POWER.
We have now pointed out that, in common with other British colonies, legislative power in Canada is subject to certain limitations, arising from the colonial relationship. Not only must the assent of the Crown as a constituent branch of the legislature be given (u); the Act so assented to must run the gauntlet of the Home Government (a); having done so, it may still, by judicial decision, be declared absolutely void and inoperative by reason, and to the extent, of its “repugnancy" to Imperial legislation having the force of law in Canada (b).
Much must be hereafter said in reference to the division, in Canada, of the subject matters proper for legislative action, between the parliament of Canada on the one hand, and the legislative assemblies of the respective provinces on the other; but for the purpose of the enquiry to which this chapter is to be devoted, this division of the field may be lisregarded. We desire to treat of the power of legislation as a totality, and to ascertain what, if any, further bounds are set to that power in this British colony.
It may be argued that this question is settled by the Colonial Laws Validity Act, 1865 (c), and that as any colonial law is to be held inoperative to the extent of its
(a) See Chap. VII. ante, p. 147. (b) See Chap. IV. ante, p. 58, et seq. (c) 28 & 29 Vic. c. 63 (Imp.).
repugnancy, but not otherwise, it impliedly follows that all colonial laws not open to the charge of repugnancy must be hell operative, and that therefore the power of legislation is—subject only to the limitations already adverted to -as full as that of the Imperial parliament, and that colonial laws are equally obligatory on courts of justice. But a proposition formerly (12) laid down must not be overlooked ; namely, that in the last analysis our rights, legally speaking, are held under Imperial grant, and to our right to legislate this proposition is particularly applicable. In other words, we must always refer to the colonial "Charter" -proclamation, commission, or Imperial Act-containing the grant of legislative power, to ascertain its extent; and beyond the limits therein laid down, the power cannot extend. For us, this Charter is the B. N. A. Act, and the terms of the grant are of the widest possible description (saving always Imperial sovereignty), and—subject to the division of the field between the Dominion and the provinces and subject always to the checks to which we have referred—the power of legislation is supreme in relation to all matters within the limits of colonial legislative power. This principle is fully recognized in the judgment of the Judicial Committee of the Privy Council in a case involving consideration of the position of the Legislature in IndiaQueen v. Burah (c). Lord Selborne, delivering the unanimous opinion of the Committee, referred to the judgment of the court below, as in effect treating the Indian Legislature as an agent or delegate, acting under a mandate from the Imperial parliament, and dissented from that judgment in the following forcible language:
“But their Lordships are of opinion that the doctrine of the majority of the court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial parliament which created it, and it can, of course, do
(d) Chap. IV. ante, p. 56.
(c) L. R. 3 App. Cas. 901.