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power over the sixteen classes of subjects assigned to them, and the Dominion parliament exclusive power over all other matters relating to the good government of Canada. But it must have been foreseen that this sharp and definite distinction had not been and could not be attained, and that some of the classes of subjects assigned to the provincial legislatures unavoidably ran into, and were embraced by some of the enumerated classes of subjects in section 91 ; hence an endeavor appears to have been made to provide for cases of apparent conflict; and it would seem that with this object it was declared in the second branch of the 91st section, " for greater certainty, but not so as to restrict the generality of the foregoing terms of this section," that (notwithstanding anything in the Act) the exclusive legislative authority of the parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. With the same object, apparently, the paragraph at the end of section 91 was introduced, though it may be observed that this paragraph applies in its grammatical construction only to No. 16 of section 92.
" Notwithstanding this endeavor to give pre-eminence to the Dominion parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the legislature could not have intended that the powers exclusively assigned to the provincial legislature, should be absorbed in those given to the Dominion parliament. Take as one instance, the subject “marriage and divorce,' contained in the enumeration of subjects in section 91 ; it is evident that solemnization of marriage would come within this general description; yet ‘solemnization of marriage in the province’ is enumerated among the classes of subjects in section 92, and no one can doubt, notwithstanding the general language of section 91, that this subject is still within the exclusive authority of the legislatures of the provinces (1). So the raising of money by any mode or system of taxation' is enumerated among the classes of subjects in section 91; but, though the description is sufficiently large and general to include direct taxation within the province, in order to the raising of a revenue for provincial purposes, assigned to the
(r) See 3 S. C. R. at pp. 568-9, where Mr. Justice Gwynne seeks to fit the formula above quoted to these two sub-sections.
(8) See notes to sec. 91, s-s. 3, post.
between the formula already quotes, and the method of
provincial legislatures by section 92, it obviously could not have been intended that in this instance also, the general power should override the particular one (s). With regard to certain classes of subjects, therefore, generally described in section 91, legisla
power may reside as to some matters falling within the general description of these subjects, in the legislatures of the provinces. In these cases it is the duty of the courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each legislature, and to define in the particular
case before them, the limits of their respective powers. It could not have been the intention that a conflict should exist ; and in order to prevent such a result, the two sections must be read together, and the language of one interpreted and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to all of them. In performing this difficult duty, it will be a wise course for those on whom it is thrown, to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for a decision of the particular question
The first question to be decided is, whether the Act impeached in the present appeal (t) falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the legislatures of the provinces; for if it does not, it can be of no validity, and no other question would then arise. It is only when an Act of the provincial legislature prima facie falls within one of these classes of subjects, that the further questions arise, viz: whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and whether the power of the prorincial legislature is, or is not, thereby orerborne.”
The part italicized constitutes the essential distinction
enquiry adopted by the Judicial Committee of the Privy
(t) A provincial Act.
Council. The formula did away with all necessity for the third enquiry, and, by consequence, with, as we have said, all necessity for a reconciliation of the various sub-sections of sections 91 and 92.
The statute impugned in the case from which we have quoted, was a provincial Act, but in another case in the same volume (u), the very same method of enquiry was adopted in reference to a Dominion Act, and has since been reaffirmed by the same tribunal as proper in regard to both Dominion and Provincial legislation. The propriety of this method of enquiry was finally established when the exhaustive character of the division effected by the B. N. A. Act was definitely enunciated (2').
Although the Judicial Committee of the Privy Council has frequently reiterated the caution against “entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand,” and in a late case (w) has laid down, that courts of law “must treat the provisions of the Act in question by the same methods of construction and exposition which they apply to other statutes,” their judgments do lay down a number of rules of construction applicable to the elucidation of these two sections of the B. N. A. Act, which, even if not exclusively applicable to this statute, are certainly peculiarly helpful in interpreting its meaning.
(a) The sections must be read together, and the language of the one interpreted and, where necessary, modified by that of the other (r).
This rule is not to be limited to a comparison and reconciliation of one sub-section of section 91, with apparently conflicting sub-section of section 92. In order
(u) Russell v. Reg., 7 App. Cas. 829 ; at p. 836.
(.x) Citizens v. Parsons, 7 App. Cas. 96; see the entire passage quoted, ante, p. 207, et seq.
to arrive at the meaning of any sub-section of (say) section 91, the other sub-sections of that same section must be examined. As a result of such examination, there has been sugrested what may be called a sub-rule of construction which has been applied in a number of cases to limit the scope of some, at least, of the sub-sections of section 91. In one of the earliest cases (y) which came before the Judicial Committee of the Privy Council, involving consideration of sub-section 21, of section 91,—“ bankruptcy and insolvency ”—the Committee speaking generally of
section 91 say:
" Their Lordships observe that the scheme of enumeration in that section is to mention various categories of general subjects which may be dealt with by legislation. There is no indication in any instance of anything being contemplated, except what may be properly described as general legislation ; such legislation as is well expressed by Mr. Justice Caron, when he speaks of the general laws governing Faillite, bankruptcy and insolvency, all which are well-known legal terms expressing systems of legislation, with which the subjects of this country and probably of most other civilized countries are perfectly
This language was used, as we have said, in reference to section 91 generally, and has never been adversely criticized in subsequent judgments of the Committee. The principle has been applied to a number of the other subsections of section 91. In the very case from which the rule is quoted, the meaning of the terms, “ regulation of trade and commerce” (ə) was restricted: (1) because their collocation with classes of subjects of national and general concern, affords an indication that regulations relating to general trade and commerce were in the mind of the legislature when conferring this power on the Dominion parliament; and (2) because unless intended to have a limited meaning they would have rendered unnecessary the sub
(4) L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31 at p. 36. (z) 8-8. 2; see the notes to this s-s.
sections dealing with, e.g., banking, weights and measures, negotiable instruments, etc. (a). So in reference to legislation relating to navigation and shipping (b); but just how far this rule of construction is to be applied to each one of the various sub-sections of section 91, is matter of doubt, as a reference to the various cases which have arisen and been decided under those various sub-sections will disclose.
Reverting however to the rule above laid down, so far as it enjoins a comparison of the various sub-sections of section 91 with apparently conflicting sub-sections of section 92, and vice versa, we may point out that the passage we have quoted from Citizens v. Parsons affords two instances of its application, and we need not in this place enlarge upon the rule, as very few cases arise which do not call for its application.
(b) In orler to arrive at the proper meaning of the various sub-sections of these two sections, other parts of the B. N. A. Act, and of other Imperiul Acts, in pari materia may
be looked at (0)
For example, in construing sub-section 2 of section 91, the meaning proper to be given to the terms, “regulation of trade and commerce,” was to a certain extent determined by the meaning given to a somewhat similar phrase in the Union Act which joined Scotland to England in legislative union («l), and the meaning to be given to the 13th subsection of section 92, “property and civil rights in the province,” was elucidated by reference to the same phrase in section 94 of the B. N. A. Act, and in section 8 of the Quebec Act, 1774 (e).
(c) The true nature and character of the legislation in the particular instance amuler discussion, must always be
(a) 7 App. Cas. at p. 112.