long as it is dealt with in its local or provincial aspect, are intra vires. If licensed for purposes of provincial revenue the regulation is good under No. 9 of section 92, "shop, saloon, tavern, auctioneer, and other licenses, etc.;"8 if simply subjected to regulation or prohibited under penalty the legislation is valid under this class No. 16.o

Whether a matter is of a merely local or private nature from a provincial standpoint, or whether it has developed into irational or extra-provincial magnitude, must, it seems, be determined by the courts.10 In an early case1 the Privy Council held that the onus is on those who assert that any matter, of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 91st section; and the onus would, it is submitted, be still more hard to satisfy if such a matter were sought to be placed under the "peace, order, and good government" clause of section 91.2

Other matters which have been held to fall within this elass:3

An Act of the Quebec legislature, passed in aid of a society in financial straits, forcing commutation upon certain annuitants.*

See notes to that class, ante, p. 266.

These two aspects of the question cover all the cases on the subject of the liquor traffic. The recent pronouncement of the P. C. in the Man. Liquor Act Case, ubi supra, as to the present position of the question renders it unnecessary to refer to the long list of earlier cases upon it.

10 See ante, p. 191.

1 L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31; 1 Cart. 63;, referred to with approval in Dow v. Black, L. R. 6 P. C. 272: 44 L. J. P. C. 52; 1 Cart. 95.

2 Local Prohibition Case. Man. Liquor Act Case, ubi supra. As to local legislation implementing federal: see note ante, p. 292, and Toronto v. Bell Tel. Co., passage quoted ante, p. 278.

3

In many of these cases other classes were also indicated which would uphold the impugned Act; but in all of them it was intimated that at all events No. 16 would cover the legislation.

4 L'Union St. Jacques v. Belisle, L. R. 6 P. C. 31: 1 Cart. 63. See also No. 21 of s. 91. As to "private bills" legislation, see ante, p. 165.

Education. (j)

93. In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions:

An Act of the New Brunswick legislature authorizing a levy to pay a bonus to a railway company operating a line to connect with a railway in Maine.5

Provincial Acts respecting nuisances.
Provincial game laws.

6

A territorial ordinance relating to ferries.

A provincial Act validating an agreement between a municipality and an electric light company."

A provincial Sabbath observance law.10

2

3

(j) Upon the admission of Prince Edward Island1 and British Columbia, this section as it stands was, with other parts of the B. N. A. Act, made applicable to those provinces as if they had been originally parties to the Union. As will appear, it was somewhat modified in Manitoba's case. The North-West Territories are, of course, in a restricted position with regard to this question owing to the legislative supremacy exercised over these territories by the Dominion parliament. Although, therefore, it is thought advisable to treat the whole subject in this place, it will be equally advisable to consider the matter by provinces.

6

p. 204.

Dow v. Black, ubi supra. See also No. 2 of s. 92.

Ex p. Pillow, 27 L. C. Jur. 216; 3 Cart. 357. See also ante,

Reg. v. Robertson. 3 Man. L. R. 613: see No. 13 of s. 92, ante, p. 289.

8 Dinner v. Humberstone, 26 S. C. R. 252; and see Cleveland v. Melbourne, 2 Cart. 241; 4 Leg. News, 277 (tollbridge case).

Hull Elec. v. Ottawa Elec., (1902) A. C. 237: 71 L. J. P. C. 58. And see ante, p. 267, as to local works and undertakings.

10 Er p. Green, 35 N. B. 137; see ante, p. 239. and cf. Reg. v. Halifax Tram. Co., 30 N. S. 469, ante, p. 239. But see now the recent decision of the Privy Council in the Lord's Day Case (July, 1903). 1 See post.

2 See post.

See post. p. 321.

See post, p. 322.

317

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union;

Ontario and Quebec.

At the date of Confederation that part of the then province of Canada known as Upper Canada had a Roman Catholic separate school system established by law. Immediately prior to Confederation it was in contemplation to pass an Act placing the denominational minorities of what is now the province of Quebec in the same position as the Roman Catholic minority of the Upper Province, but no Canadian legislation took place upon the subject, the end aimed at being secured by sub-section 2 of this section 93. It is applicable to only the one province of Quebec, and it puts the two provinces of Quebec and Ontario upon so much the same footing that one is justified in dealing with these two provinces together.

Prior to Confederation the position of the Roman Catholic minority in Upper Canada, under the Roman Catholic Separate School Act, had been considered in the courts of that part of the province, and the view taken by those courts is thus summed up by Hagarty, C.J.:

"As Burns, J., remarked in Re Ridsdale & Brush:7 "The legislature intended the provisions creating the common school system, and for working and carrying that out, were to be the rule, and that all the provisions for the separate schools were only exceptions to the rule, and carved out

526 Vic. c. 5: 'An Act to restore to Roman Catholics in Upper Canada certain rights in respect to separate schools." There was also upon the statute book of (old) Canada an Act conferring rights and privileges upon Protestants and "colored people' in regard to the establishment of separate schools. The separate schools of the "colored people," not being denominational, are not protected by the B. N. A. Act.

6 Free v. McHugh, 24 U. C. C. P. at p. 20.
722 U. C. Q. B. 124.

(2) All the powers, privileges, and duties at the union. by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the

of it for the convenience of such separatists as availed themselves of the provisions in their favor;' and my brother Gwynne, commenting on these words in Harding v. Mayville, says that it lies on the plaintiff claiming exemption as a separatist to aver and prove all those exceptional matters, taking him out of the general rule.'"

8

These exceptional and special rights-privileges enjoyed by religious minorities in the different districts of the provinces over and above those rights enjoyed at common law or under statutory enactment by the inhabitants of the province at large-are the rights and privileges protected by this 93rd section. Having in view what is laid down by the Privy Council, they may be shortly stated as follows:

1. The right to establish denominational schools;

2. The right to invoke state aid in the collection of taxes necessary for the support of such schools from their sup

porters;

3. The privilege of exemption from taxation for the support of the public schools of the province;

4. The privilege of having taught in such separate schools the religious tenets of their denomination; to which should perhaps be added the right or privilege which any member of any denomination has to choose which he will support, the separate schools of his denomination or the public schools of the province. Any legislation of a compulsory character would, it is submitted, be unconstitutional as prejudicially affecting the right or privilege which such persons had by law at the date of Confederation.10

0

21 U. C. C. P. at p. 511.

Winnipeg v. Barrett, (1892) A. C. 445: 61 L. J. P. C. 58; 5 Cart. 32; Brophy v. Atty.-Gen. (Man.), (1895) A. C. 202; 64 L. J. P. C. 70; 5 Cart. 156.

10 See post, p. 322.

same are hereby extended to the dissentient schools

of the Queen's Protestant and Roman Catholic subjects in Quebec;

Provincial legislatures have full power of legislation in relation to education and educational systems in the province, including the separate school system therein, so long as such legislation does not offend against the provisions of sub-section 1, that is to say, does not prejudicially affect any right or privilege thereby protected.1

It has been contended that owing to the appeal provided for by sub-section 3, and the power given to the parliament of Canada to pass remedial laws in certain cases under subsection 4, the question of the validity of separate school legislation has been entirely withdrawn from the courts, but this view has been decisively negatived by the Privy Council:

Board v. Grainger, 25 Grant. 570; 1 Cart. 816; per Blake, V.C., who refers to s.-ss. 3 and 4 as indicative of the expectations of the framers of the B. N. A. Act that there would be legislation by provincial legislatures in relation to denominational schools. The validity of such legislation is, in a sense, recognized by the deliverance by the Divisional Court of the Chancery Division of an opinion (In re R. C. Sep. Schools, 18 O. R. 606; see also Trustees of R. C. Sep. School v. Arthur, 21 O. R. 60) on certain questions submitted to that tribunal as to the effect to be given to certain clauses of the Assessment Act of Ontario working amendment of the separate school law as it existed at the union by making more elaborate provision for classifying ratepayers into two classes, supporters of public, and supporters of separate, schools; although no discussion seems to have taken place, and no expression of opinion is to be found in the judgment, upon this constitutional question. The matter however appears so clearly upon the construction of the statute that no doubt has ever been expressed as to the correctness of the views enunciated by Vice-Chancellor Blake. As put by him in the case cited: "It would be a most unfortunate result of this enactment if it were found that it precluded the remedying defects in, or improving the machinery for, working out the separate school system. . . It is therefore clear that the provincial legislature has some power to legislate as to denominational schools; and it is scarcely possible to conceive a case in which it could, and should, more properly interfere than where, as here, it is asked to remove an ambiguity in the working of the Act, and to give to separate schools the same class of machinery for carrying on its work, as is given to the public schoolsa machinery which, after much thought and many years experience, is found to be the best and simplest we have yet had."