PROPOSITIONS 27 AND 28. 27. [With the exception of laws in relation to agriculture and immigration,] if the subject-matter of an Act is within the jurisdiction of the Dominion Parliament, it is not, [in its entirety], within the jurisdiction of the Provincial Legislatures, [whether acting severally or in concert with each other, though some of the provisions of such Act, ancillary to the main subject of legislation, may be within such Provincial jurisdiction]; and if the subject-matter of an Act is not within the jurisdiction of the Provincial Legislatures, [acting either severally or in concert with each other], it is within the jurisdiction of the Dominion Parlia ment. 28. With the exception of agriculture and immigration, there is no subjectmatter over which there can, [speaking strictly, be said to] exist concurrent powers of legislation; and even then, should there be conflict, the authority of the Parliament of Canada is supreme, by Prop. 27-8 express provision of section 95 of the British North America Act.1 Valin v. Langlois in the Privy Council. principle of The above Propositions are obviously so closely connected that they may well be treated of together. The first clause of Proposition 27, with the exception of the words in brackets, are taken from the judgment of the Privy Council in Valin v. Langlois; while that "that which is excluded by the 91st section," (sc., of the British North America Act), "is not anything else than matters coming within the The classes of subjects assigned exclusively to the legisthe decision. latures of the provinces," is the basis upon which their lordships reasoned in that case, and is indeed involved in Proposition 26, the notes to which should be read in connection with the Propositions under consideration. Thus in Valin v. Langlois, holding that legislation in relation to Dominion controverted elections did not come within any of the classes of subjects enumerated in section 92, they held, as consequent therefrom, that the Dominion Controverted Elections Act, 1874, 37 Vict., c. 10, 1 While this portion of the present work is going through the press, judgments are pending in the appeals to the Privy Council in Huson v. The Township of South Norwich, 24 S.C. R. 145, and In re Prohibitory Liquor Laws, ib. 170. It may be anticipated that their lordships' judgments will have an important bearing upon the subjects here discussed, and the reader is requested to consult the table of Addenda, and also Appendix A. 25 App. Cas. at p. 119, 1 Cart. at p. 163, (1879). In Belanger v. Caron, 5 Q.L. R. at p. 27, (1879), Stuart, J., says :-"To assert an authority in the Dominion parliament to legislate on any subject is to deny any power in the provincial legislatures to legislate on the same subject; and it is equally true that any subject upon which the provincial legislatures can legislate, the Dominion parliament is disqualified from legislating upon it." The notes to these Propositions, however, will show that it is only in a very qualified sense that such language can be accepted. 35 App. Cas. at p. 119, 1 Cart. at p. 163. was intra vires,1 and that there was nothing to raise a Prop. 27-8 doubt about the power of the Dominion parliament to impose, as in that Act, new duties upon the existing provincial Courts, or to give them new powers as to matters which did not come within the classes of subjects assigned exclusively to the legislatures of the provinces. And these dicta in Valin v. Langlois are referred to by Hagarty, C.J.O., As applied in Clarkson v. The Ontario Bank, where he says:-C.J.O. "It seems to me that if the Act before us be intra vires of Ontario, as not coming under the exclusive right of the Dominion, it must be held on the same chain of reasoning to be ultra vires the legislative power of the Dominion."3 by Hagarty, variance There would certainly seem to be nothing in the Not at two Propositions under discussion at variance with with 1It had been previously so held in the Court of Review in Montreal in Ryan v. Devlin, 20 L.C.J. 77, (1875), and Owens v. Cushing, ib. at p. 86, (1875), and also in Dubuc v. Vallee, 5 Q.L.R. 34, (1879), where Caron, J., held that the Dominion Act in question had not, properly understood, added any new jurisdiction to the provincial Courts, but had constituted those Courts, or one of their judges, a federal Court for the administration of the Act, as it had a right to do under section 101 of the British North America Act. It had also been held intra vires in Ontario in the Niagara Election Case, 29 C. P. 261, (1878). On the other hand, in Belanger v. Caron, 5 Q. L. R. 19, (1879), Guay v. Blanchet, 5 Q.L.R. 43, (1879), and Deslauriers v. Larue, 5 Q.L.R. 191, (1879), cases in the Quebec Superior Court, the holding had been the other way. In Guay v. Blanchet, (at p. 51), Casault, J., observes, that if, in giving this jurisdiction to provincial Courts, Parlia ment could be said to have only created a federal Court for a federal object, it could give the jurisdiction to try all Dominion election petitions exclusively to one provincial Court, and direct it to sit for this purpose at Montreal or Toronto, Winnipeg or Victoria,-"for the creation or constitution of a Court includes its jurisdiction and the place where it shall sit, as well as its composition." 215 O.A.R. at pp. 177, 181, 4 Cart. at pp. 511, 516, (1888). 3Cf. per Burton, J.A., in Re Grand Junction R.W. Co. v. The County of Peterborough, 6 O.A. R. at pp. 344-5, (1881). But as to the power of the Dominion parliament to embody like provisions to those of the Ontario Act in question in Clarkson v. The Ontario Bank, as ancillary to an Act in relation to Bankruptcy and Insolvency, see Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189, and Proposition 37 and the notes thereto. L'Union v. Belisle. In legislating may intrude on Prop. 27-8 the decision of the Privy Council in L'Union St. Jacques de Montreal v. Belisle.1 The most that can be deduced from their lordships' judgment in that case is that the Dominion parliament might enact a general law which would embrace within its. scope the subject-matter of the local law in question, not that it would have been competent for Parliament to enact the very law which they there held to be intra vires of the provincial legislature. And, indeed, as is expressed in Proposition 37, in assigning Parliament to the Dominion parliament legislative jurisdiction incidentally in reference to the general subjects of legislation specifically referred to in section 91, the Imperial Act by necessary implication intended to confer on it legislative power to interfere with matters otherwise assigned to provincial legislatures by section 92, so far as a general law relating to those subjects might affect them, and the notes to that Proposition may well be read in connection with what is here being discussed. In them will be found special reference to the recent decision of the Privy Council in reference to the Ontario Assignment for Creditors Act, to be deemed Attorney-General of Ontario v. Attorney-General of Canada, with respect to which, Taschereau, J., Parliament, says in Huson v. The Township of South Norwich3: the provincial area, But the latter is not limited by the unexercised power of -"It results from that case, if I do not misunderstand it, that there are, under the British North America Act, subjects which may be dealt with by both legislative powers, and that the provincial field is not to be deemed limited by the possible range of unexercised power by the Dominion par 1L.R. 6 P.C. 31, 1 Cart. 63, (1873). See Proposition 62 and the notes thereto. 2[1894] A. C. 189. 324 S.C. R. at pp. 155-6, (1895). The South liament, so that a power conferred upon the latter, Prop. 27-8 but not acted upon, may, in certain cases, be exercised by the provincial legislatures, if it fall within any of the classes of subjects enumerated in section Huson v. 92 . . And where would the provinces be on this Township of question of the liquor traffic if it were not so? At Norwich. the mercy of the federal power, that is to say, at the mercy of each other That is surely not Canada's constitution. The inaction of the Dominion lawgiver cannot have such consequences. cannot be that, simply because the Dominion authority will not prohibit all over the Dominion, the trade must be permitted everywhere in the provinces." It to pass The The power with prohibitory liquor laws. And so in this same case of Huson v. Township of South Norwich, Strong, C.J., whom Fournier, J., concurred, says1:-" It appears to me that there are in the Dominion and the provinces respectively several and distinct powers authorizing each, within its own sphere, to enact the same legislation on this subject of prohibitory liquor laws restraining sale by retail; that is to say, the Dominion may, as has already been conclusively decided, enact a prohibitory law for the whole Dominion, whilst the provincial legislatures may also enact similar laws, restricted, of course, to their own jurisdictions. . To neither of the legislatures is the subject of prohibitory liquor laws in terms assigned. Then what reason is there why a local legislature, in execution of the police power con 124 S.C.R. at pp. 147-8, (1895). "The reference is, of course, to Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (1882). As to police power in Canada, and that the provinces do not possess it exclusively in "the wide meaning which the jurisprudence of the United States has given to it," see per Sedgewick, J., in In re Prohibitory Liquor Laws, 24 S.C. R. at p. 248. See, also, p. 360, n. 2, infra. |