subject. The Imperial Act, however, provides Prop. 27-8 against such intermediate legislation, and gives to Parliament and the local legislatures exclusive jurisdiction, not contingent upon previous legislation by either." Dominion intrusions on area. Now, the point of contrast between the Constitution of the United States and of the Dominion here referred to will be discussed in the notes to Proposition 61, infra; but it is submitted, and would appear from the authorities already cited, that it can by no means be said that the jurisdiction of provincial legislatures is never contingent upon previous legislation by the Dominion parliament. provincial In the recent argument before the Privy Council on December 12th, 1893, in Attorney-General of Ontario v. Attorney-General of Canada,3 Lord Watson is reported to have spoken very instructively on this subject, as follows:-"The view I have rather taken of it is this, that within the area. given to the Dominion parliament by section 91 there Lord is a legislative area part of which is their own exclusively, but that area may include, in addition, certain ancillary provisions which touch and trench. upon the provincial law, and as long as there are enactments in that part of the area it would exclude the right of the province to legislate to the effect of destroying,--derogating from,-their enactment. It would take away their power as effectually as if it belonged to the primary area. If there had been 1 Burton, J. A., refers to this same feature of the Constitution of the United States in Leprohon v. City of Ottawa, 2 O.A. R. at p. 542, I Cart. at p. 615, (1878). 2See, also, Propositions 37, 46, and 62, and the notes thereto. [1894] A.C. 189. *The following extracts are taken from a transcript of the shorthand notes of the argument in the office of the Attorney-General at Toronto. Watson. Lord Prop. 27-8 no legislation, then my impression was that within what I call the secondary area, the provincial parliament was free to legislate." And when Sir R. Webster, arguendo, said :-"By the frame of section 91, you are to read out of section 92 anything which is enumerated in section 91," Lord Watson replied: "That is rather suggesting this: the area of the legislative power is defined and capable of definition, and is absolutely exclusive in all cases. That is not the view which has been suggested by the decisions of this Board. The decisions of this Board rather point to this,—that there is a certain extent of that legislation which Ancillary might be reserved to the province, but there are many ancillary regulations which might be made. in carrying out their primary object, and the power given to them," (sc., the Dominion parliament), “in which they can override the provincial authorities. But the provincial authority is there."1 legislation. Sir Horace 2 And there is also a passage from the very lucid argument of Sir Horace Davey before the Privy Council in Hodge v. The Queen, which may well be noted in this connection. He says:-"It has been said in effect that the 91st and 92nd sections of the British North America Act (I do not know that the particular language has been used) are mutually exclusive. My lords, that is true in one sense, and it is untrue in another. I 1This last extract seems somewhat confusedly reported, but the meaning evidently is that while there may be a portion of the legislative power assigned to the provinces, which the Dominion parliament could never properly assume to exercise as being ancillary to the exercise of the powers assigned to it by section 91, yet other portion it may so exercise. See the notes to Propositions 37 and 46; an article in 30 C.L.J., p. 182; and Todd's Parl. Gov. in Brit. Col., 2nd ed. at pp. 437-8. See, also, supra p. 308, n. 1. 2 Reported Dom. Sess. Pap., 1884, Vol. 17, No. 30, at pp. 99-100. power to peace, order, government, quite agree that an Act passed as 'The Temper- Prop. 27-8 ance Act' was for the peace, order, and good government of Canada, in relation to matters not on the expressly mentioned in section 92 extending to the legislate for whole Dominion, would be, as it was held to be in and good Russell's case, 7 App. Cas. 829, within the competence of the legislature, but it does not by any means follow that an Act passed by the provincial legislature, local in its character and area, for a similar subject, would not be within the competence of the provincial legislature. It does not by any means follow, because if you consider the latter words of the 91st section, they are these:-'Any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclu- And on the sively to the legislatures of the provinces,' that is to words of say, that the provincial legislature cannot legislate on a matter which is expressly mentioned in the enumeration in section 91 confining their legislation to the province,1 and say that this is of a local or private nature; but where the Dominion legislation. is not on any matter which is expressly mentioned in the enumeration of section 91, but is made under the general power to make laws for the peace, order, and good government of Canada, it does not by any means follow that the provincial legislature cannot make a local law of a similar character. . . To illustrate what I mean, the provincial legislature could not pass a local Act as regards beacons, buoys, and lighthouses, and say that it is merely of a local character. I suppose that would be so. 1See Proposition 59 and the notes thereto. concluding sect. 91. Prop. 27-8 But it does not follow from that, that they might not pass—although the Dominion legislature might pass a general Act for the whole Dominion, dealing with the subject of temperance-that the local legislature therefore might not pass a local Act dealing to a certain extent with the same subject.”1 In a partial sense, there power These two passages further illustrate, as Prois concurrent positions 37 and 62 above referred to clearly sugbetween gest, that in the partial sense indicated therein there is concurrent legislative power in Parliament and the provincial legislatures in many cases.2 Parliament and the legislature in many cases. Russell v. And, in the same way, inasmuch as, -as expressed in Proposition 41,-with regard to certain classes of 1It should be carefully noted that in Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (1882), their lordships by no means say that a provincial legislature could not pass an Act for the province containing similar provisions to those of the prohibitory and penal parts of the Canada Temperance Act, 1878, in their application to localities adopting that Act in the prescribed manner. What their lordships there hold is (1) that the provincial legislatures could not even by concerted action have passed the Canada Temperance Act, the objects and scope of which were general, namely, to promote temperance by means of a uniform law throughout the Dominion; and (2) that the principle of The Queen. local option embodied in that Act did not make it legislation upon a matter of a merely local nature. It will be remembered that the matters assigned to provincial legislatures by No. 16 of section 92 of the British North America Act are all matters of a "merely" local or private nature in the province. This word "merely " is not present in any of the other classes of subjects enumerated in that section. Hence there is nothing in the view above expounded by Sir H. Davey, or in the judgment in Russell v. The Queen, rightly regarded, at variance with the important rule embodied in Proposition 33, that the Federal parliament cannot extend its own jurisdiction by a territorial extension of its law and legislate on subjects constitutionally provincial by enacting them for the whole Dominion: see the notes to that Proposition. See, also, note 2, infra, and p. 348, n. 1, supra. 2So per Taschereau, J., in Huson v. The Township of South Norwich, 24 S.C. R. at p. 160, (1895) :—“There are a large number of subjects which are generally accepted as falling under the denomination of police regulations over which the provincial legislatures have control within their territorial limits, which yet may be legislated upon by the federal parliament for the Dominion at large. Take, for instance, the closing of stores and cessation of trade on Sundays. Parliament, I take it for granted, has the power to legislate on the subject for the Dominion; but, until it does so, the provinces have, each for itself, the same power." And as to police power, see supra p. 351, n. 3; and the argument in In re Dominion License Acts: Dom. Sess. Pap., 1885, at pp. 165 and 172, et seq. however, general apportioned them. subjects generally described in section 91 of the Prop. 27-8 British North America Act legislative power may reside as to some matters falling within the general description of these subjects in the legislatures of the provinces, there may be said to be concurrent Sometimes, jurisdiction as to such subjects in Parliament and a broad the provincial legislatures in this sense, that legis- subject is lative power as to a certain department, or certain between departments of broad general subjects of legislation, is vested in the one, and as to the remaining departments in the other. Thus there would appear to be concurrent power of legislation in respect to the imposition of direct taxation in this sense, and in Thus as to this sense only, that power to legislate in this way taxation. is in part vested in one and in part in the other. As stated by the Privy Council in Bank of Toronto v. Lambe1:-"As regards direct taxation within the province to raise revenue for provincial purposes, that subject falls wholly within the jurisdiction of the provincial legislatures;" while all other power to impose direct taxation is exclusively in the Dominion parliament under No. 3 of section 91, "the raising of money by any mode or system of taxation."2 112 App. Cas. at p. 585, 4 Cart. at p. 20, (1887). 2See per Taschereau, J., in Angers v. The Queen Insurance Co., 16 C.L.J.N.S. at pp. 204-5, I Cart. at pp. 149-50, and per Ritchie, C.J., in Severn v. The Queen, 2 S.C. R. at p. 101, 1 Cart. at p. 445, (1878), where taxation by means of licenses, as in No. 9 of section 92, is spoken of as being indirect taxation: as to this, however, see Queen v. McDougall, 22 N.S. 462, (1889); per Strong, J., Pigeon v. The Recorders Court and City of Montreal, 17 S.C. R. at pp. 503-4, 4 Cart. at pp. 447 8, (1890); per Osler, J.A., in Regina v. Halliday, 21 O.A. R. at p. 47, (1893); Lambe v. Fortier, 5 R.J.Q. 47, (1894); and Appendix A to this work. The above would also seem the explanation of the words of Cross, J., in Bank of Toronto v. Lambe, M. L. R. 1 Q. B. at p. 151, 4 Cart. at p. 47, (1885), when he says of the division of legislative powers under the British North America Act, that it has been so contrived as to be in part exclusive to each, and in some particulars it must be conceded common to each." See, also, as to concurrent power of taxation, Todd's Parl. Gov. in Brit. Col., 2nd ed. 46 direct |
