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We have not seen the commission to the Deputy Lieutenant-Governor, and it may possibly be that it is nothing more than the appointment of a subordinate officer to perform certain of the executive functions of the LieutenantGovernor (such, for instance, as to perform the ceremony of opening the session, and others which might be named), and is not in truth the appointment of a deputy in the proper sense of that term. There are, however, some of the duties of a Lieutenant-Governor which the B. N. A. Act expressly provides are to be performed by him, and any general delegation of the duties of his office to a deputy, would seem contrary to both the spirit and the terms of the B. N. A. Act.
68. Unless and until the Executive Seats of ProGovernment (i) of any Province otherwise directs with respect to that Province, the seats of Government (ii) of the Provinces shall be as follows, namely,—of Ontario, the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax; and of New Brunswick, the City of Fredericton.
(i) “ The executive government.”—This is a somewhat peculiar provision. The idea probably was to provide for a change of the seat of government upon a sudden emergency which might not allow of the calling together of the legislature. There is no doubt, however, that this is one of those clauses relating to the provincial constitution which may be altered by the legislature of a province, under section 92, sub-section 1. A provincial assembly, therefore, may, if so minded, take from the executive this power.
The seats of government of the provinces and territories acquired since Confederation are as follows:
Of Manitoba, Winnipeg; of the North West Territories, Regina ; of Prince Edward Island, Charlottetown; and of British Columbia, Victoria.
(ii) “ The seats of government.”— See notes to section 16, ante, p. 260.
Legislature for Ontario.
Legislative Power (i).
1.-ONTARIO. 69. There shall be a Legislature for Ontario consisting of the LieutenantGovernor (i) and of one House (ii), styled
the Legislative Assembly of Ontario. (i) “ Legislative power.”—The nature of the legislative power which resides in provincial legislative assemblies · has been fully discussed in previous pages, and we need here only summarise the position shortly. The limitations upon that power are: First, in respect of the subject matters; Second, the territorial limitation ; Third, those general and implied limitations (such as the necessary saving of Imperial sovereignty) before referred to. But, as expressed by Lord Selborne in Hodge v. Queen (f), "within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial parliament or the parliament of the Dominion.” See chapter IX., ante,
To the cases there collected there should now be added a reference to Liquidators of Maritime Bank v. Receiver-General of New Brunswick (9), in which the above passage is quoted with approval, and the Committee lay it down that “in so far as regards those matters which by section 92 were specially reserved for provincial legislation, the legislature of each province continued to be free from the control of the Dominion, and as supreme as it was before the passing of the Act.” See also notes to section 58, ante.
(f) 9 App. Cas. 116.
(9) Times L. R. Vol. VIII., p. 677.
(ii) “ The Lieutenant-Governor."-- Compare the language of section 17. Owing to the difference in the phraseology employed, it has been contended that the Queen does not form a constituent part of the provincial legislatures, but in the present state of the authorities, this view can hardly be said to be tenable. It is laid down by Chitty, that the Crown has a part in legislation throughout the Empire, and we have already (h) quoted the passage from that writer in which it is laid down, that all executive officers act under commission from, and in due subordination to the executive head of the Empire. The Lieutenant-Governor acts under Her Majesty's commission in carrying on the government of the province over which he presides, and is as fully Her Majesty's representative as is the Governor-General in reference to the Dominion at large. The assent, therefore, given by the Lieutenant-Governor to Acts of the legislative assembly, is the assent of the Crown. This is distinctly recognized in Théberge v. Landry, where an Act of the Quebec legislature is described by Lord Chancellor Cairns as—“an Act which is assented to on the part of the Crown, and to which the Crown therefore is a party.” For a further reference to this case see notes to section 41, ante, p. 288. Whether, therefore, Acts of a legislative assembly are promulgated as the Acts of the Lieutenant-Governor, by and with the advice and consent, etc., or as the Acts of the Queen, by and with such consent, would seem matter of indifference. Again we are able to quote, from the latest deliverance of the Judicial Committee of the Privy Council, language authoritatively enunciating the views above expressed :
" It would require very express language, such as is not to be found in the Act of 1867, to warrant the inference that the Imperial legislature meant to vest in the provinces of Canada, the right of exercising supreme legislative powers in which the British Sovereign was to have no share" (i).
(h) Ante p. 252.
(i) Liquidators, etc. v. Rec.-Gen. of New Brunswick, Times L. R.Vol. VIII., p. 677. This passage immediately precedes that quoted ante, p. 307.
(iii) “ One house.”—This form of a legislature was the deliberate choice of the Upper Canada representatives in the old parliament of Canada. Lower Canada (now Quebec) chose the bi-cameral form: see section 71, post. Nova Scotia and New Brunswick prior to Confederation had that form, and the constitution of the legislatures in those provinces was continued by the B. N. A. Act—S
-see notes to section 88, post. Prince Edward Island was in like position upon its admission in 1873! Upon the formation of the province of Manitoba, a second chamber was established, but was afterwards abolished by an Act of the Manitoba legislature, 39 Vic. c. 29, under the powers conferred by section 92, sub-section 1. At the time of its admission to the Union, British Columbia had a legislature somewhat similar to that of Ontario, consisting of one house only.
It may here be noticed that no section of the B. N. A. Act makes any express provision (such as is made in reference to the Dominion parliament,--see notes to section 18, ante, p. 261) as to the “ privileges, immunities, and powers ' of the provincial legislative assemblies and the members thereof, respectively. In common with all legislative bodies they have certain incidental and inherent powers,—" such ils are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute ” (1). “Whatever in a reasonable sense is necessary for those purposes, is impliedly granted whenever any such legislative body is established by competent authority ; for these purposes, protective and self-defensive powers only and not punitive are necessary ” (k). This question however arises,-can they, as law-making bodies, give themselves, and their members, other and greater powers, etc., than these? It is submitted that according to the weight of authority they can do so. Indeed, some sanction is given by Kielley v. Carson (a case from Newfoundland),
(j) Kielley v. Carson, 4 M00., P. C. 88.
to the contention that usage in a colony, judicially sanctioned there, might raise a presumption that the power (e.g., of committal for contempt of the colonial assembly) had been, as Forsyth puts it, duly communicated by law, or, as we would prefer to put it, had been recognized as part of the law introduced into the colony upon its settlement. But however that may be (?), the authorities do lay it down-although no doubt obiter dicta—that the power to make laws for a colony carries with it the power to make laws as to the privileges and immunities of the law-making body and its members (m). We have already quoted the fifth section of the Colonial Laws Validity Act, 1865,—see notes to section 35, conte, p. 280, and have discussed its bearing upon Dominion legislation. It is not, however, necesary to rely upon this Act, so far as concerns the position of the provincial legislative assemblies; in fact, this section of the Colonial Laws Validity Act, was passed to remove doubt," and as we have said, the weight of judicial authority was in favour of the view, that colonial legislatures have power to define their own privileges and immunities. The same rule would apply to a provincial legislature. It cannot, it is true, enlarge its sphere of legislative activity, but it can make laws as to how and under what safe-guards it shall do its work within the sphere assigned. Such a law would be " in relation to the classes of matters "coming within section 92 of the B. N. A. Act,—treating those classes as a whole. Moreover, sub-section 1 of section 92, giving provincial assemblies power to amend the provincial constitutions, would seem to be sufficiently wide to embrace legislation
(2) Only on such ground is Reg. v. Gamble, 9 U.C. Q. B.546, support. able. This view is very strongly combatted by Mr. Justice Ramsay, in Ex parte Dansereau, 2 Cart. 165, 19 L. C. Jur. 210. His judgment was overruled by the majority of the Court, but upon the ground that an Act of the Quebec Legislative Assembly which purported to confer powers, etc., other than those annexed by the common law to a legislature, such as that of Quebec, was (contrary to his view) intra vires, supporting the view expressed in the text.
(m) See Barton v. Taylor, ubi supra, and cases there noted.