construction:" per Harrison, C.J., in Leprohon v. Prop. 11 City of Ottawa.1

Governor

not extend

As Ritchie, C.J., says in the Queen v. Chandler, 2 delivering the judgment of the Supreme Court of New Brunswick:-"No power is given to the The Governor-General to extend the authority of the General canlocal legislature, or enable it to override the powers of Imperial statute, which would be the necessary legislatures. result if the local legislature could, by assuming the right to legislate on a prohibited subject, have their action legalized, and validity given to their Acts by the simple confirmation of the GovernorGeneral, thus making the individual act of the local legislature, or of the Governor-General, or their united acts, superior to the parliament of Great Britain. 3

140 U.C. R. at p. 490, I Cart. at p. 647, (1877). 21 Hann. at p. 558, 2 Cart. at p. 437, (1869).

3See, however, supra pp. 90-2.

PROPOSITION 12.

12. The powers of legislation conferred upon the Dominion Parliament and the Provincial Legislatures, respectively, by the British North America Act, are conferred subject to the sovereign authority of the Imperial Parliament.

The words of this Proposition are suggested by a passage in the judgment of Ritchie, C.J., in City of Fredericton v. The Queen.1 And, in like manner, in Attorney-General of Canada v. Attorney-General of Ontario, Boyd, C., says that :-"In relation to Supremacy the supreme authority of the British parliament, parliament. Canada, in its composite character, forms a complete and separate subordinate government;" and Crease, J., in the Thrasher Case, that the Imperial parliament has "an absolute and complete sovereign power."

of Imperial

3

13 S.C.R. at pp. 529-30, 2 Cart. at p. 30, (1880). Cf. per Taschereau, J., S.C., 3 S.Č. R. at pp. 557-8, 2 Cart. at p. 51 ; per Ġwynne, J., S.C., 3 S.C. R. at p. 561, 3 Cart. at p. 54.

220 O. R. at p. 245, (1890).

31 B.C. (Irving) at p. 214, (1882). In the New South Wales case of Apollo Candle Co. 7. Powell, 4 N.S.W. at p. 167, (1883), Sir J. Martin, C.J., says :-" There is no legislature within the wide bounds of the British Empire which is not in subordination to and under the control of that Imperial parliament, and which does not derive its jurisdiction from that source." And on the whole subject of the Imperial supremacy over the self-governing_colonies, see Todd's Parl. Gov. in Brit. Col., 2nd ed., esp. ch. 7. For an appeal since Confederation by one of our provincial governments to the supreme jurisdiction of the Imperial parliament, see in connection with the Nova Scotia Great Seal Case, Can. Sess. Pap., 1877, No. 86, p. 16. As to this case see, also, supra pp. 104, n. 2, 114, n. I, 134, n. I.

Laws Val

And so in Ex parte Renaud,1 Ritchie, C.J., assert- Prop. 12 ing the supreme legislative power and control of the parliament of Great Britain over colonial legislatures, The Colonial refers to the Colonial Laws Validity Act, 28-29 Vict., idity Act. c. 63, s. 2, (1865), as being a clear statutory recognition of such supremacy. This enactment provides that:-" Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of parliament extending to the colony to which such law may relate, or repugnant to any law or regulation made under authority of such Act of parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."

3

Bank v.

Accordingly, in the Merchants Bank of Canada v. Merchants Gillespie, both Strong, J., and Henry, J., expressed Gillespie. the view that the Dominion Winding-Up Act, 45 Vict., c. 23, (D.), would have been ultra vires if it had purported to include within its provisions the company in question there, which had been incorporated in England, in 1874, under the Imperial Joint Stock Companies Acts, 1862 and 1867, and had never been incorporated in Canada, the provisions of the Dominion Act being in conflict with those of the said Imperial Acts, especially those of the Act of 1862. And Strong, J., goes further, and observes that if Per extended to such a foreign corporation the Act in

11 Pugs. at p. 274, 2 Cart. at p. 447, (1873).

2See, also, as to this Act, Reg. v. Brierly, 14 O. R. at p. 531, et seq., 4 Cart. at p. 670, et seq., (1887). And for other declarations by the parliament of Great Britain of its authority over the colonies, see Imp. 6 Geo. III., c. 12, and section 46 of the Quebec Act, 31 Geo. III., c. 31. See, also, Stokes on the Colonies, (1783), at pp. 29-30.

310 S.C.R. 312, (1885).

4At p. 324.

Strong, J

Prop. 12 question would be ultra vires, even apart from the Imperial Act, 28-29 Vict., c. 63, "upon the interpretation of the clauses as to the general powers of the Dominion parliament in the British North America Act," thus apparently indicating his view that it never was intended by section 91 of the British North America Act that the Dominion parliament should have power to enact Acts repugnant to any Imperial Act extending to Canada.

The

Nevertheless, in Angers v. The Queen Insurance Co.,1 the view that "in order to reconcile these two sections," (sc., sections 91 and 92 of the British North America Act), "the word 'exclusively' must be construed as referring to the Imperial power," is mentioned by Taschereau, J., as "stated somewhere." parliament. He adds, however :- 66 I do not concur in this view. The word was taken from the resolutions on Confederation sent from Canada, and it was certainly not the intention to refer them to the Imperial power."

supremacy

of

Imperial

Reg. v. Taylor.

3

There can be no doubt that Taschereau, J., here has reference to the views expressed by Draper, C.J., in Regina v. Taylor. In that case, in the Court below, Wilson, C.J., had expressly referred to the powers of the Dominion parliament as being "sub

116 C.L.J. at p. 204, I Cart. at p. 149, (1877).

2No. 29 of the Quebec Resolutions commences :-"The general parliament shall have power to make laws for the peace, welfare, and good government of the federated provinces (saving the Sovereignty of England), and especially laws respecting the following subjects," etc., and concludes, "and generally all matters of a general character, not specially and exclusively reserved for the local governments and legis. latures." The clause in brackets is not in the British North America Act itself, but, as Mr. Clement says, (Canadian Constitution at p. 184):— "It was no doubt deemed unnecessary to insert any words of express restriction upon this point, as it is an implied restriction upon all colonial legislation."

336 U.C.R. 183, (1875). See this case further referred to supra pp. 27-8, n. I.

4 Ibid., at p. 191.

And

Draper,

"exclusive

B.N.A. Act

Imperial

"

ject to the Imperial authority as declared by Prop. 12 Imperial Act 28 and 29 Vict., c. 63, s. 3." again, as "subordinate, of course, to the Imperial parliament." But Draper, C.J., on appeal to the View of full Court, referring to the expression in section 91 C.J., that of the British North America Act, "exclusive legis- in sect. 91 of lative authority" of the Dominion of Canada, refers to says:—" Exclusive of what? Surely not of the parliament. subordinate provincial legislatures whose powers had yet to be conferred, and who would have no absolute powers until they were in some form defined and granted. Would not this declaration seem rather intended as a more definite and extended renunciation on the part of the parliament of Great Britain of its power over the internal affairs of the new Dominion than was contained in the Imperial statute of 18 Geo. III., c. 12, and 2829 Vict., c. 63, ss. 3, 4, and 5?3 . . It appears to me that section 91 does mention some classes of subjects as belonging to the exclusive legislative authority' of the parliament of the Dominion which, in part at least, form part of matters coming within. some class or classes of subjects, enumerated in section 92." And it should be added that Strong, J., expresses his entire concurrence in this judgment of Draper, C.J., although not specifically referring to

1Possibly this is a misprint for section 2. However, section 3 provides:"No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of parliament, order, or regulation, as aforesaid.”

236 U.C.R. at p. 220.

Section 4 provides that no colonial law shall be void by reason only of inconsistency with the Governor's instructions. Section 5 provides that colonial legislatures may establish, etc., Courts of law, and representative colonial legislatures may make laws respecting the constitution, powers, and procedure of such legislatures.

*See Proposition 41 and the notes thereto.