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Imperial parliament

interfere

Prop. 12 Queen, voted by the House of Commons of Canada, on the subject of the New Brunswick School Act of 1871, that:--"Legislation by the Imperial parliament, does not now curtailing the powers vested in a province by the British North America Act would be an undue self-govern- interference with the provincial constitutions and with the terms on which the provinces consented to become members of the Dominion."

with local

affairs of

ing colonies.

So per Sir
John

2

And in Hodge v. The Queen,1 Burton, J.A., says "The Imperial parliament has the power, no doubt, to pass laws such as those passed by the local legislatures and affecting all Her Majesty's subjects in the province, but it is equally clear that it is a power existing in name only, and one which it would never attempt to exercise, and therefore the parliament of the province cannot in that sense be spoken of as exercising a delegated authority." To which may be added the words of Sir John Thompson, in his report to the GovernorThompson. General of August 3rd, 1889, in reference to the Dominion Copyright Act of 1889, presently to be referred to more at large :-"It has never been claimed that the powers of the parliament of Canada are exclusive of the powers of the parliament of Great Britain, and nobody can doubt that the parliament of Great Britain can at any time, (limitations of good faith and national honour not being considered), repeal or amend the British North America Act, or exercise, in relation to Canada, its legislative powers over the subjects therein mentioned. Subject to the same limitations, Her Majesty's government can, of course, disallow any Act of the parliament of Canada. It is respectfully

17 O.A. R. at p. 278, 3 Cart. at p. 182, (1882).
2 Dom. Sess. Pap. 1890, Vol. 15, No. 35, p. 8.

submitted that the Canadian parliament, except as Prop. 12 to the control which may be exercised by the Imperial parliament by a statute subsequent to the British North America Act, and except as to the power of disallowance, possesses unlimited power over all the subjects mentioned in the 91st section, and that it is necessary that it should do so for the well-being of Canada, and for the enjoyment of selfgovernment by its people."

tention as to

power to

Confedera.

Imperial

in Canadian

matters.

It will be observed that Sir J. Thompson, in His conspeaking of the control exercised by the Imperial Canadian parliament, refers only to statutes passed by it repeal antesubsequently to the British North America Act. tion This is significant of the contention pressed by him legislation in this report, that it is in the power of the Domin- local ion parliament, and the provincial legislatures, respectively, to repeal Imperial statutes passed prior to the Confederation Act, and dealing with any of the subjects within the legislative powers granted to them by that Act. This contention Mr. Mr. Bourinot has stated, in some recent Articles on Federal Government in Canada, was directly raised for the first time in the debates in the Dominion parliament on the Quebec Jesuits' Estates Act.1 Mr. Bourinot says:" It must be here mentioned that the Imperial government refused its assent to the Canadian Copyright Act of 1872 because it was repugnant, in the opinion of the law officers of the Crown, to the provisions of an Imperial statute of 1842, 5-6 Vict., chapter 45, extending to the colony.2

19 C.L.T. at pp. 193, 198, et seq. See, also, Todd's Parl. Gov. in Brit. Col., 2nd ed. at p. 502, et seq., where the passage from Sir J. Thompson's speech, referred to by Mr. Bourinot, is quoted.

Dom. Sess. Pap., 1875, No. 28. Lord Carnarvon, in his despatch to the Governor-General of June 15th, 1874, here referred to, says :"The Imperial Copyright Act, 5-6 Vict., chapter 45, is, as you are aware, still in force in its integrity throughout the British dominions

Bourinot.

tion first

raised in
debate on

Jesuits'
Estates

sions on

which it is rested.

Prop. 12 On the other hand, in the debate on the constitutionality of the Quebec Jesuits Bill it was contended This conten- by the Minister of Justice that a provincial legislature legislating upon subjects placed under its jurisdiction by the British North America Act has the power to repeal an Imperial statute passed prior to the British North America Act affecting those subjects:' (Can. Hans., March 27th, 1889). In support of this position, he referred to three. The deci. decisions of the Judicial Committee of the Privy Council. One of these, Harris v. Davies,1 held that the legislature of New South Wales had power to repeal a statute of James I. with respect to costs in case of a verdict for slander. The second case was that of the Apollo Candle Co., in which the principles laid down in Regina v. Burah and in Hodge v. Reginam' were affirmed. The third and most important case as respects Canada was Riel v. Reginam, in which it was practically decided that the Canadian parliament had power to pass legislation, changing or repealing (if necessary) certain statutes passed for the regulation of the trial of offences in Rupert's Land before it became a part of the Canadian domain. This contention is

5

2

in so far as it prohibits the printing in any part of such dominions of a book in which there is subsisting copyright under that Act, without the assent of the owner of the copyright.' And of the British North America Act, he says, its effect is "to enable the parliament of Canada to deal with colonial copyrights within the Dominion, but it is clear it was not contemplated to interfere with the rights secured to authors by the Imperial Act of 5-6 Vict., c. 45, or to override the provision of that Act." See, also, Dom. Sess. Pap., 1890, Vol. 15, No. 35, at p. 2; and infra p. 231, n. I.

110 App. Cas. 279, (1885).

210 App. Cas. 282, 3 Cart. 432, (1885).

33 App. Cas. 889, 3 Cart. 409, (1878).
49 App. Cas. 117, 3 Cart. 144, (1883).
510 App. Cas. 675, 4 Cart. 1, (1885).

of authority

thus directly raised for the first time, but it is not Prop. 12 supported by the several authorities who have referred to the relations between the parent state The weight and her Dependencies. The question is too impor- is against it. tant to be treated summarily in this brief review, especially as it will come up formally in connection with the Copyright Act of 1889, in which the same conflict as in 1875 arises."1

spondence

Imperial

Over

Copyright

On February 10th, 1890, a Return was made to The corre the Dominion parliament of the correspondence with which had taken place between the Dominion and government Imperial authorities with reference to this Copyright Canadian Act of 1889, 52 Vict., c. 29, (D.). It opens with a Act, 1889. memorial transmitted by the Colonial Office from the English Copyright Association and the Musical Copyright Association, claiming that the Act was ultra vires, and asking the Imperial authorities to withhold the royal assent. This memorial quotes. the Opinion of Sir Roundell Palmer, and Sir Farrer opinion of Herschell, given to the Copyright Association in Palmer reference to the Canadian Copyright Act of 1868. borne). In this Opinion these eminent lawyers state :-" It is abundantly clear that the provision in the Act of the Imperial legislature, 30-31 Vict., c. 3, by which the Dominion of Canada was constituted, declaring that the exclusive legislative authority of the Dominion Exclusive" parliament extends (amongst other things) to copy- of B.N.A. rights, has reference only to the exclusive jurisdiction.

66

1Mr. Bourinot cites against the contention in question, Hearn's Government of England, Appendix 2, where, (at p. 597), it is stated that, shortly after its creation, the parliament of the Australian colony of Victoria, in an Act consolidating the law of evidence, assumed to repeal certain Imperial Acts containing provisions relating to the admission of evidence in any Court of law in Her Majesty's dominions, and afterwards on the Colonial Office objecting to the Act on this ground, though it was not disallowed, repealed it, thus admitting that it had exceeded its powers.

Dom. Sess. Pap., 1890, Vol. 15, No. 35. There are subsequent returns, ibid., 1892, Vol. 12, No. 81, and 1894, No. 50.

Sir Roundell

(Lord Sel

in section 91

Act

Has reference to powers of provincial

Prop. 12 in Canada of the Dominion legislature as distinguished from the legislatures of the provinces of which it is composed;" and they held that the Copyright Act of the Dominion parliament of 1868, legislatures 31 Vict., c. 54, gave a copyright throughout Canada to works published in any part of the Dominion, but that it was not competent to, and did not, affect the protection against piracy afforded by the Imperial Act throughout the whole British dominions in respect of works published in the United Kingdom.1 In his report to the Governor-General of August 3rd, 1889, included in this Return, Sir John Thompson observes, after stating that the Copyright Act of Act of 1889. 1889, being the Act in question, was understood not to conflict in any way with any Imperial legislation passed since the adoption of the British North. America Act :-"The remaining question, therefore, Contends for simply is as to the right of the parliament of repeal ante. Canada under the British North America Act to make regulations in Canada regarding copyright Imperial legislation as in Canada, notwithstanding that these regulations in Canada. may differ from those existing under Imperial

Sir J. Thompson's report on

Copyright

power to

Confeder

ation

to copyright

legislation adopted prior to the British North America Act. The view which the undersigned respectfully presents is that as regards all those subjects in respect to which powers were given to the Canadian parliament by the British North America Act, the true construction of the British North America Act is that Parliament may properly legis late without any limitation of its competency excepting the limitation which Her Majesty can always impose by disallowance, (whether the Act be within. the power of parliament or not), and excepting also as to control by Imperial legislation subsequent to the British North America Act and applicable to Canada. As to this latter it may be considered, in 1See, also, infra p. 231, n. 1.

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