may be so devised as to temperance. promote No doubt, however, as Sedgewick, J., observes in Prop. 32-4 In re Prohibitory Liquor Laws,1 after expressing the view that the effect of No. 9 of section 92 of the License Act British North America Act is practically to give the regulation of the liquor traffic to the legislatures: "So long as such regulating legislation has, as its main object, the raising of revenue, it may contain all possible safeguards and restrictions as ancillary to the main object, the effect of which may be to repress drunkenness and promote peace, order, and good government generally." Cart. at pp. 744-5, (1878); per Gwynne, J., in Sulte v. The Corporation of Three Rivers, 11 S.C.R. at p. 46, 4 Cart. at p. 325, (1885); per Weatherbe, J., in The Queen v. McKenzie, 23 N.S. at p. 11, (1890); per Sedgewick, J., In re Prohibitory Liquor Laws, 24 S.C.R. at p. 240, (1895); and Hodgins' Provincial Legislation, Vol. 1, at pp. 215-7, where we find an Ontario Act respecting license duties actually disallowed on the ground that it was not passed, as it professed to be, "with the single object of raising a revenue from licenses," but that "the real object aimed at was, "if possible, to make the Dominion Liquor License Act, 1883, inoperative, by imposing a heavy and cumulative tax on persons taking out licenses under it," pending the determination of the question of its constitutional validity. 124 S.C.R. at p. 240, (1895). 66 was 2Sedgewick, J., specially refers several times in his judgment to the decision of the Privy Council in Russell v. The Queen, 7 App. Cas. 829, 2 Cart. 12, (1882), and therefore it is somewhat strange to find him following up his statement, above mentioned, that the effect of No. 9 of section 92 is practically to give the regulation of the liquor traffic to the legislatures, by saying (24 S.C.R. at p. 244):"I can only suggest that the limitation," (sc., "in order to the raising of a revenue for provincial, local, or municipal purposes "), imposed for the very purpose of clearly limiting the provinces to regulation only." In Russell v. The Queen their lordships say expressly :"It is to be observed that the power of granting licenses is not assigned to the provincial legislatures for the purpose of regulating trade, but in order to the raising of a revenue for provincial, local, or municipal purposes." With deference, it is submitted that the probable explanation of No. 9 of section 92 is that it was intended by it to authorize the provinces to raise a revenue by the licenses referred to, although some doubt might exist as to whether this was not indirect taxation. And so per Spragge, C.J., in Regina v. Frawley, 7 A. R. at p. 264, 2 Cart. at p. 581; per Maclaren, Q.C., arguendo in In re Prohibitory Liquor Laws, 24 S.C. R. at p. 179; per Davey, Q.C., arguendo in the matter of the Dominion License Acts, 1883-4 see the transcript from Marten and Meredith's shorthand notes, at pp. 126, 131. See also supra at p. 361, n. 2. As Sedgewick, J., points out, (24 S.C.R. at p. 244), the limitation in No. 9 of section 92, above referred to, (6 was an Pretended legislation on commerce. 3 2 Prop. 32-4 To return, in Citizens Insurance Co. v. Parsons,1 Fournier, J., says :--" The Federal parliament could not, under the pretence of legislating on commerce, entirely control a subject-matter which comes under the jurisdiction of the province;" while, conversely, in In re Slavin and The Village of Orillia, Richards, C.J., refers to the words of McLean, J., in the License Cases, that notwithstanding that the power of regulation of foreign commerce rests with Congress, A parallel and not with the States; still, "if a foreign article be injurious to the health or morals of the community, a State may, in the exercise of that great and conservative police power which lies at the foundation of its prosperity, prohibit the sale of it1;" adding:— "Such a regulation must be made in good faith, and have for its sole object the preservation of the health and morals of society." from the United Per 5 In like manner, in Regina v. Lawrence, Harrison, C.J., delivering the judgment of the Court of Queen's Lawrence. Bench for Ontario, observes :-" While two legislative bodies exist, each having distinct and exclusive legislative powers, there must be care exercised by each to avoid encroachment by either body upon the exclusive powers of the other, and this must be addition made in London, with the assent of the colonial delegates there, just before the Act became law." See Pope's Life of Sir J. Macdonald, Vol. 1, App. xiv., at p. 383; Pope's Confederation Documents, at p. 106. 14 S.C.R. at p. 257, I Cart. at p. 303, (1880). 236 U.C. R. at p. 173, 1 Cart. at p. 700, (1875). As to the power to prohibit the importation, manufacture, or sale of intoxicating liquors in Canada, see Huson v. The Township of South Norwich, 24 S.C.R. 145; In re Prohibitory Liquor Laws, ibid. 170; and Appendix A. See also supra p. 348, n. I. 543 U.C. R. at pp. 174-5, I Cart. at pp. 744-5, (1878). interference criminal prevented by the Courts, whether the encroachment Prop. 32-4 assume the guise of an honest neutral or the garb of an aggressive enemy. . . The whole domain of crime and criminal procedure is the exclusive property of the Dominion parliament, and to allow Provincial the parliament of a province to declare that an act with which, by the general law, is a crime, triable and law, punishable as a crime, with the ordinary safeguards of the Constitution affecting procedure as to crime, shall be something other than, or less than, a crime, and so triable before and punishable by magistrates, as if not a crime, would be destructive of the checks provided by the general law for the constitutional liberty of the subject." And the Court held that a Under provincial legislature could not, under pretence of exercise of legislating under No. 15 of section 92 to enforce a sect. 92 of law as to shop, saloon, tavern, auctioneer, and other licenses, legislate with regard to acts which are criminal offences at common law, and wholly collateral to a prosecution for the violation of such a provincial liquor license Act. pretended No. 15 of B.N.A. Act. Street, J., Wason. And so, too, in Regina v. Wason, Street, J., So per says:-"There are good reasons for holding that in Reg. v. the provincial legislatures could not by the mere act of passing a statute forbidding the doing of something already an offence, and affecting property and civil rights in the province, confer upon themselves jurisdiction to inflict a new punishment for the offence, and justify it upon the ground that they were merely enforcing their own statute. The foundation for the jurisdiction claimed would be 1See, likewise, per Harrison, C.J., in Regina v. Roddy, 41 U.C.R. at p. 297, I Cart. at p. 715, (1877). 217 O. R. at p. 63, 4 Cart. at p. 616, (1889). S.C. in App. 17 O.A.R. 221, 4 Cart. 578. Prop. 32-4 defective, because of its dealing with matters of criminal law."1 But legisla ture may use phrases It should not, however, apparently be deemed cautionary in any way necessarily a device to make unconstideclaring no tutional legislation colourably valid, for a legislature transcend its to insert in its enactments such cautionary phrases powers. as "in matters within the legislative jurisdiction intention to of the province," "so far as this legislature has power thus to enact," "subject always to the royal prerogative, as heretofore," etc.; nor is the Court in such cases called upon by analysis or criticism of possible powers and functions, which may be embraced in the words used to discriminate as to what are within and what without the scope of the enactment; any particular case is to be dealt with as and when it arises. If no attempt has been made to act upon or enforce enactments thus guarded, it would seem premature to ask for a declaration of their invalidity. Such is the view of Boyd, C., in Attorney-General of Canada v. Attorney 1Nevertheless, as this case of Regina v. Wason itself shows, the Dominion parliament and provincial legislatures may in many cases have the right to legislate, from different aspects, to prevent and punish similar acts. See Proposition 35 and the notes thereto, where Regina v. Wason is further referred to. See, also, supra pp. 51, n. 1, and p. 360, n. 2, and infra pp. 383-5. For further dicta as to the obligation of bona fides in the exercise of the legislative powers conferred by the British North America Act, and against legislation merely colourably within such powers, see per Ritchie, J., in Keefe v. McLennan, 2 R. & G. at pp. 11-12, 2 Cart. at p. 409, (1876); per Ritchie, J., in Murdoch v. Windsor and Annapolis R. W. Co., Russ. Eq. at p. 140, 3 Cart. at p. 371, (1877); per Spragge, C.J.O., in Peak v. Shields, 6 O.A. R. at p. 647, 3 Cart. at p. 276, (1881); per Taschereau, J., in Reed v. The Attorney-General of Quebec, 8 S.C.R. at p. 426, 3 Cart. at p. 205, (1883); per Gwynne, J., in Danaher v. Peters, 17 S.C. R. at p. 54, 4 Cart. at p. 436, (1889). And in this connection may be noted the dicta of Hagarty, C.J.O., in Clarkson v. The Ontario Bank, 15 O.A. R. at p. 181, 4 Cart. at p. 517, (1888), to the effect that a legislature cannot by piecemeal in separate Acts legislate in relation to matters which it could not deal with as a whole in one Act. The actual decision in this case was, of course, overruled by Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189. 2 3 General of Ontario,1 and in the same case in appeal, Prop. 32-4 Burton, J.A., and Fournier, J., express their agreement. On the other hand, Gwynne, J., takes a different view, saying:-" I think that the use of such a formula cannot divest the Court of power to pronounce an Act to be ultra vires if the subjectmatter dealt with be not within the jurisdiction of the legislature to legislate upon; that is to say, if an Act of a provincial legislature deals in any way with such a subject-matter, the Act, not being intra vires, must be ultra vires. . . . The formula used does not divest the Act of its character of being an Act of the legislature, nor can it make the subject with which it proceeds to deal to be within the jurisdiction, if in point of law it is not." 5 Taschereau, zens Ins. Co. Passing to Proposition 33 (which might indeed Prop. 33. be deduced from Propositions 27 and 28), it is in the words of Taschereau, J., in Citizens Insurance Co. v. Parsons, who adds in explanation :-"The Per British North America Act is not susceptible of a J., in Citi different construction without eliminating from v. Parsons. section 91 thereof the controlling enactment that the general power of the central parliament to make laws for the peace, order, and good government of the whole Dominion, does not extend to the subjects left to the provincial legislative power, and that, notwithstanding anything in the Act, the authority of the central parliament over the matters enumer 120 O.R. at p. 246, (1890). 219 O.A. R. at p. 38. $23 S.C.R. at p. 472, (1894). 423 S.C.R. at p. 475. 54 S.C. R. at p. 310, I Cart. at p. 329, (1880). And so per Gwynne, J., in In re Prohibitory Liquor Laws, 24 S.C. R. at p. 223, (1895). |