PROPOSITIONS 32, 33, AND 34. 32. The Parliament of Canada cannot under colour of general legislation deal with what are provincial matters only; and, conversely, Provincial Legislatures cannot under the mere pretence of legislating upon one of the matters enumerated in section 92 really legislate upon a matter assigned to the jurisdiction of the Parliament of Canada. 33. The Federal Parliament cannot extend its own jurisdiction by the territorial extension of its laws, and legislate on subjects constitutionally provincial, by enacting them for the whole Dominion, as a Provincial Legislature cannot extend its jurisdiction over matters constitutionally federal, by a territorial limitation of its laws, and legislate on matters left to the Federal power by enacting them for one province only, as, for instance, incorporating a bank for a province. 34. If the Dominion Parliament, or the Provincial Legislatures, as the case may be, have no power to legislate directly upon a given subject-matter, neither may they do so indirectly.' Prop. 32-4 legislation. The above Propositions may, perhaps, be correctly described, by way of distinction from the others formulated in this book, as having to do with deliberate attempts on the part of Dominion parliament, or provincial legislature, to trespass the one upon the other's area of legislative power. The Prop. 32. first of them is concerned with colourable legislation —that is, legislation ostensibly under one or other of the powers conferred by the British North Colourable America Act on the enacting body, but, in truth and fact, relating to some subject which is not within the jurisdiction of that body. There appear to be few reported cases in which a Court has actually held an Act to be merely colourably constitutional in this sense, but Attorney-General for Quebec v. The Queen Insurance Co. is such a case. There the Privy Council held that a certain Quebec Act, entitled "An Act to compel assurers to take out a license," and which purported to be, on the face of it, an exercise of the power conferred by Angers v. No. 9 of section 92 of the British North America Ins. Co. Act to make laws in relation to shop, saloon, tavern, auctioneer, and other licenses, was not, in substance, a license Act at all, but a simple Stamp Act on policies, and was indirect taxation, and ultra vires. Queen Harrison, As stated by Harrison, C.J., in Regina v. Law- Per rence3:"It never could have been the design of C.J., in the Imperial legislature, as manifested by the Lawrence. 1See supra p. 348, n. 1. 23 App. Cas. 1090, I Cart. 117, (1878). $43 U.C.R. at pp. 174-5, I Cart. at pp. 744-5, (1878), cited per Graham, E. J., in Thomas v. Haliburton, 26 N.S. at p. 73, (1893). Reg. v. Prop. 32-4 language which it has used in the British North America Act, to permit any legislative body, under pretence of exercising only its own exclusive legislative powers, to cover ground which, in truth, by the Constitution belongs to another."1 The Privy The Queen, The Privy Council incidentally refer to the subject Russell . in Russell v. The Queen, where they observe, referring to the Canada Temperance Act, 1878, then under discussion:-"There is no ground or pretence for saying that the evil or vice struck at by the Act. in question is local, or exists only in one province, and that Parliament, under colour of general legislation, is dealing with a provincial matter only. It is, therefore, unnecessary to discuss the considerations which a state of circumstances of this kind might present. The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion." And in Investment And in much the same way in The Colonial Building and Building and Investment Association v. The AttorneyAssociation General of Quebec, where their lordships held that General of the mere fact that a Dominion company chose to 7. Attorney Quebec. 3 limit its operations to one province only did not invalidate its charter, they say:-"It is unnecessary to consider what remedy, if any, could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object, for the only evidence given in the case discloses no ground for 1There is, of course, nothing in this, or in the Propositions under discussion, inconsistent with Proposition 20, the purport of which is that we have no right to enquire what motive induced the legislature to exercise its powers, assuming that, apart from any question of ulterior motives, the legislation is intra vires. See at pp. 277-8, supra. 27 App. Cas. at pp. 841-2, 2 Cart. at pp. 25-6, (1882). 39 App. Cas. at p. 165, 3 Cart. at p. 128, (1883). 4 See Proposition 57 and the notes thereto. suggesting fraud in obtaining the Act," (sc., of Prop. 32-4 incorporation); the case here suggested apparently being one in which Parliament had been induced-while ostensibly exercising its proper power of incorporating Dominion companies1—to, in fact, incorporate a company with a provincial No. 11, object, thus infringing upon the exclusive jurisdic- B.N.A. Act. tion of the provinces under No. II of section 92 of the British North America Act.2 sect. 92, J., in Molson And it is to this passage in The Colonial Building and Investment Association v. The Attorney-General of Quebec that Ramsay, J., refers in Molson v. Lambe,3 where, speaking of the wholesale liquor shop license exacted from brewers by the Quebec License Act, 1878, he says:-" If it can be defended Per Ramsay, at all, it is under sub-section 9 of section 92 of the v. Lambe. British North America Act. It is an impost by way of license for the purpose of raising a revenue on what is admitted to be the ordinary trade of a brewer. This, I think, is constitutional, when it is No. 9, sect. fairly imposed; that is, when it appears that there Act. 1As to the Dominion powers in respect to the incorporation of companies, see Propositions 55, 56, and 57, and the notes thereto. 92, B.N.A. *In Citizens Insurance Co. v. Parsons, 4 S.C.R. at p. 310, 1 Cart. at p. 329, (1880), Taschereau, J., mentions the case of a Bill to incorporate the Christian Brothers as a Dominion body, which was referred to the Supreme Court of Canada by the Senate in 1876, and was reported ultra vires by them: (Journal of Senate, 1876, pp. 156, 206); and says:-"This bill purported to incorporate a company of teachers for the Dominion, and consequently as such infringed upon the powers Dominion of the provincial legislatures, in which is vested by section 93 of the bill to British North America Act the exclusive control over education; incorporate and the the learned judges, by declaring it unconstitutional, recognized the Christian principle that, for a matter constitutionally provincial, the Federal Brothers. parliament has not the power to incorporate a company for the Dominion. And that that is so seems to me clear. It may be Declared added that their lordships' reasons in the matter are not given at ultra vires length, but they expressly state their opinion to be that the bill is "a by Supreme Court. measure which falls within the class of subjects exclusively allotted to provincial legislatures under section 93 of the British North America Act:" Journal of Senate, 1876, Vol. 10, at pp. 206-7. 3M.L. R. 2 Q. B. at pp. 398-9, 4 Cart. at p. 364, (1886). under licensing. Prop. 32-4 is no fraudulent use of the British North America Act. If it appeared that the local Act was only nominally legislating for the purpose of raising a revenue, and that the statute was really contrived Prohibiting as a prohibitory measure, another consideration. pretence of might, perhaps, come in. I only allude to this as a precaution, for there is no suggestion of any misuse of the legislative power, and I am not aware that the use of a legislative power to get round the constitutional Act has, as yet, been formally insisted upon as deciding as to the constitutionality of an Act, although it has been suggested that a case might occur in which that point would have to be considered. . . It seems, however, to be a necessary consequence of deciding, from the object of the law, that the Courts must say whether the object is real or delusive." Per Strong, 7. The Queen. 2 In like manner, in Severn v. The Queen, Strong, J., says:—“The imposition of licenses authorized by this sub-section 9 of section 92 is, it will be observed, confined to licenses for the purposes of revenue, and it is not to be assumed that the provincial legislatures will abuse the power, or exercise it in such a way as to destroy any trade or occupation. Should it appear explicitly on the face of any legislative Act that a license tax was imposed with such an object, it would not be a tax authorized by this section, and it might be liable to be pronounced extra vires." 1See Proposition 36 and the notes thereto. 22 S. C. R. at pp. 108-9, 1 Cart. at pp. 452-3, (1878). 3 And see to like effect as to a supposed merely colourable use of No. 9 of section 92, per Mackay, J., in Ex parte Leveillé, 2 Stev. Dig. at p. 447, 2 Cart. at p. 351, (1877); per Ramsay, J., in Angers v. Queen Insurance Co., 22 L.C.J. at p. 310, 1 Cart. at p. 135, (1878); per Harrison, C.J., in Regina v. Lawrence, 43 U.C.R. at pp. 174-5, I |
