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the Speaker (iii), the absence of the Speaker (iv), the quorum and the mode of voting (v), as if those provisions were here re-enacted and made applicable in
terms to each such Legislative Assembly. (i) “ The following provisions.”—The provisions referred to are contained in sections 44 to 49 (both inclusive). Upon nearly, if not quite, all of these matters, the assemblies of the various provinces have exercised the legislative power given by section 92, sub-section 1. See notes to section 35, ante, p. 280, for some observations as to the powers, in this regard, of the Dominion parliament.
(ii) “ The election of a Speaker.”—See sections 44 and 45.
(iii) “ The duties of « Speaker.”—See section 46, and the notes thereto, where we have pointed out that the B. N. A. Act contains no further definition of the duties of a Speaker, and where a contrast is drawn between the position of a Speaker in a Canadian legislature, and that of a Speaker under the American system.
(iv) “ The absence of the Np uker.”—See section 47, and notes.
(v) “ The Quorum and the more of roting."-See sections 48 and 49; with which compare sections 35 and 36, relating to the Senate, and sections 78 and 79, as to the Legislative Council of Quebec.
Constitutions of Legislatures of Nova Scotia and New Brunswick.
4.-NOVA SCOTIA AND NEW BRUNSWICK.
88. The constitution of the Legislature of each of the provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this Act (i), continue (ii) as it exists at the Union until altered under the authority of this Act; and the
House of Assembly of New Brunswick (iii) existing at the passing of this Act shall, unless sooner dissolved, continue for the period for which it was elected.
(i) “Subject to the provisions of this Act.”—That is to say, subject to the limitation of the “sphere of authority ” of the legislatures in these provinces under the B. N. A. Act, and subject also to the difference in the mode of appointment of the Lieutenant-Governor. In all other respects, the constitutions of these provinces may be, from time to time, altered by the provincial legislatures, under the terms of section 92, sub-section 1.
(ii) “Shall continue." --See chapter III., Inte, p. 52, et seq.; also section 64 and notes thereto.
(iii) The House of Assembly of New Brunswick."-See ante, p. 52, where the difference in the provisions made for New Brunswick, and for Nova Scotia—see section 89—is referred to.
5.-ONTARIO, QUEBEC, AND NOVA
SCOTIA. 89. Each of the Lieutenant-Govern- First elecors of Ontario, Quebec, and Nova Scotia shall cause writs to be issued for the first election of members of the Legislative Assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such Returning Officer as the Governor-General directs, and so that the first election of member of Assembly for any Electoral District or any subdivision thereof shall be held at the same time and at the same places as the election for a member to serve in the
House of Commons of Canada for that
Electoral District. (i) “ First elections.”—This section is now effete. See notes to last section.
6.—THE FOUR PROVINCES.
Application to Legisla. tures of provisions respecting
90. The following provisions of this
Act respecting the Parliament of Canada, money votes, namely,—the provisions relating to ap
propriation and tax bills, the recommendation of money votes, the assent to bills, the disallowance of Acts, and the signification of pleasure on bills reserved,-shall extend and apply to the Legislatures of the sereral Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant-Governor of the Province for the GovernorGeneral, of the Governor-General for the Queen and for a Secretary of State, of one year (ii) for two years, and of the
Province for Canada. (i) The following provisions.”—In reference to some of the sections of the B. N. A. Act—those making provision for the constitution, both legislative and executive, of Ontario and Quebec—we have spoken of the “ necessities of the craftsman,” as the reason for their introduction. See ante, p. 46. The insertion of this clause in the Act in its present shape might more properly be said to have been caused by the laziness of the draftsman. Applying its provisions, literally, certainly makes some of the provisions to
which it refers read very peculiarly, and affords an argument in support of the view which would belittle the position of provincial legislatures, and of the LieutenantGovernors of the provinces. Let us take them in their order:
(1) “ The provisions relating to appropriation and tax bills.”—See section 53. This section can only be made to affect those provinces in which a bi-cameral legislature exists. Should any of the provinces which now have one house decide to alter their constitution in this respect, it might perhaps be difficult to say which one of the two houses would answer to the House of Commons, for both houses might possibly be elective.
(2) “ The recommendation of money votes.”—See section 5+, ante. What has been said as to section 53 applies with equal force to any attempt to paraphrase section 54.
(3) “ Assent to bills.”—See section 55. To paraphrase this section in accordance with the literal provisions of section 90, would indicate that, in the view of the framers of the B. V. A. Act, the Lieutenant-Governor's assent to Acts of a provincial legislature is not the assent of the Queen but of the Governor-General. The case of Théberge v. Landry (o), before the Judicial Committee of the Privy Council, in which it was held that the Lieutenant-Governor's assent was the assent of the Crown, has been alreally referred to; see also the provisions as to the summoning of the provincial legislature of Ontario and Quebec (section 82, ante, p. 333), and the provisions in reference to the appointment of members of the Legislative Council of Quebec, (section 72, cente, p. 329). As has been frequently pointed out, all executive officers throughout the Empire act under commnission direct from the executive head of the Empire, although their appointment may be through the medium of certain other executive Officers. The dispute has now been given its quietus by the recent judgment of the
(u) 2 App. Cas. 10.
Judicial Committee of the Privy Council in Liquidators, etc. v. Receiver General of New Brunswick, Times L. R., Vol. VIII., p. 677. See the passages quoted in note (v) to section 58, and note (ii) to section 69.
(4) “ The disalluuunce of Acts.”—This matter has been already fully dealt with. In chapter VIII, ante, p. 172, will be found a criticism of Professor Dicey's statement that the reto power was lodged with the Dominion Government in order to obviate the necessity for resort to the courts for the determination of these constitutional questions; and by reference to the debates upon the Quebec Resolutions, we endeavoured to point out that the framers of those resolutions knew perfectly well what the position of affairs would be, upon the carrying out of the scheme therein contained. The views of judges since Confederation, cannot of course be cited against Professor Dicey's statement. We may refer however to Leprohon v. Ottawa (p), in which the judges of the Court of Appeal for Ontario, laid down without hesitation, that the fact that a provincial law hall not been disallowed by the Dominion authorities, could in no way affect the question as to its legal validity: Hagarty, C.J., says : “ I do not see how the existence of such power can affect the constitutionality of the enactment"; and Mr. Justice Burton uses this language:
Whether allowed or not, to the extent that provincial Acts transcend the competence of the provincial legislature, they are voidl.” To refer again to the language of the Chancellor of Ontario, in Attorney-General (Canada) v. Attorney-General (Ontario) (9), the power of disallowance is one which may operate both in the plane of political expediency, and in that of jural capacity. Its exercise in these days is largely contined to the former. The result is very fairly summed up by Lord Hobhouse, in delivering the
(p) 20. A. R. 522. See also Reg. v. Chandler, referred to in the notes to sec. 91, 8-3. 21, post.
(9) 20 O. R. at p. 245.