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6. The Census and Statistics.
We have not found any expression of judicial opinion as to the scope of this sub-section 6, although a number of questions suggest themselves. It must be construed so as to exclude provincial legislation upon whatever matters are properly included in it; and it seems to us that any construction other than "the Census, and Statistics in relation thereto" would land us in difficulties. So construed, it has reference to the census required to be taken every ten years by section 8 of the B. N. A. Act, and to the compilation of statistics in reference to nationality and creed, the increase or decrease of population, and kindred matters. In the Quebec Resolutions the words "and statistics" do not appear. No wider interpretation is needed to enable the Dominion parliament to institute enquiries and compile statistics as to any matters upon which information is desired in order to intelligent legislation upon the various subjects committed to its legislative care. Acts authorizing such proceedings would be laws "relating to" such subjects. Any wider interpretation would have the absurd effect of condemning provincial legislatures to legislate in the dark upon many very important matters.
7. Militia, Military and Naval Service, and Defence.
See notes to section 15, ante, p. 259. This is perhaps the matter in which, above all others, the Imperial authorities continue to exercise supervision over colonial legislation, and in respect to which, also, the British parliament passes Acts of express colonial application. The Commander-in-Chief of the Canadian forces is appointed by the Imperial authorities. At the same time, the laws relating to the volunteer forces of Canada are largely of Canadian enactment, but, as we have said, they are very carefully scrutinized by the Imperial authorities; the idea being
to have a uniform system of defence throughout the Empire.
In Holmes v. Temple (o), it was held (in Quebec) that the provisions of the Imperial "Army Act, 1881," do not apply to Canada, so as to make persons not connected with the active Militia of the Dominion liable in respect of acts which are offences under the Imperial Act but not under the Militia Act of Canada. The whole subject of Imperial defence is of such a complicated nature, and so many of the provisions of Imperial Acts are in force in all portions of the Empire, that it is not thought desirable to discuss the matter at any length here (p). We simply note the only case which has been decided in Canada since Confederation (q) in reference to the subject, and in reference to this case it should be remarked that, apparently, Mr. Justice Chauveau held the view that the legislative authority of the Dominion parliament under this sub-section is "exclusive" as between that parliament and the parliament of the United Kingdom-a view which cannot of course be maintained. He treats the English Army Act of 1881 as applicable in Canada only to the extent to which it is expressly made so by the Canadian Militia Act (31 Vic. c. 40). The proper position is clearly this: so far as Imperial legislation upon this subject is, within the meaning of the Colonial Laws Validity Act, 1865, made applicable to the colonies generally, or to Canada in particular, any Canadian legislation repugnant thereto, in whole or in part, must be held to be void and inoperative to the extent of such repugnancy, but not otherwise-that is to say, in so far as Canadian legislation is supplementary to and not inconsistent with Imperial legislation upon the subject, this subsection 7 distinctly affirms the authority of the Dominion parliament, as distinguished from provincial assemblies, to pass such legislation.
(0) 8 Q. L. R. 351; 2 Cart. 396.
(p) See Todd "Parl. Govt. Brit. Col." 274, et seq.
(q) See Reg. v. Schram, 14 U. C. C. P. 318 (1864), noted ante, p. 65.
8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada.
Compare section 92, sub-section 4.
In Evans v. Hudon (r), in the Superior Court of Quebec, it was held that a provincial legislature has no power to declare liable to seizure the salaries of employees of the Federal government, the exemption of such salaries being "a matter of public order.”
Much the same question came before the courts in Ontario in the case of Leprohon v. Ottawa (s), in which it was held by the Court of Appeal, reversing the decision of the Court of Queen's Bench, that provincial powers of taxation do not extend over the salaries of the executive staff of the Dominion. The decision is based, not so much on the limited effect of sub-section 2 of section 92, as upon the broader ground that the provincial legislature has no power to impose a burden upon any of the instruments by which the Dominion government is carried on, and cannot invest a municipal corporation of its own creation with a power which it cannot itself directly exercise. The arguments in support of the contrary view will be found in the opinions delivered in support of the judgment of the Court of Queen's Bench. The question has never been further litigated. This case is noteworthy for the free use, made by the judges, of the decisions of the Supreme Court of the United States upon similar questions which have arisen there. The whole matter is one of inuch interest as indi
cative of the distinct separation of the governmental organization of the Dominion and of the provinces respectively, and of their mutual independence.
So far as the Dominion government is concerned, the severance of the tie of territorial connection with one province and the creation of a distinct, exclusively federal, territory as the seat of the Dominion government, would, (s) 2 O. A. R. 522.
(r) 22 L. C. Jur. 268; 2 Cart. 346.
to some extent, do away with this difficulty. As the law now stands, in, at least, Ontario and Quebec, federal officials are exempt from provincial burdens, while for provincial officers there is no escape from the burden of federal tariffs. As dealing with a somewhat kindred topic, see the notes to section 125. post.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping (i).
11. Quarantine and the establishment and maintenance of Marine Hospitals.
(i) "Navigation and Shipping."-This is one of those subjects in respect of which colonial legislative power is limited by reason of the existence of Imperial legislation upon the subject applicable to, and in force in, the different colonies of the Empire. It is beyond the scope of this work to attempt any treatment of this large branch of English jurisprudence; we must simply note the line of division between the Dominion parliament and the provincial legislature in respect of the varions matters which may appear in some aspects to fall within this sub-section, and, in other aspects, within some one or more of the various sub-sections of section 92.
The line of argument which led the Judicial Committee. of the Privy Council in Citizens v. Parsons (t), to limit subsection 2, "the regulation of trade and commerce," to regulations relating to general trade and commerce, would appear to be equally applicable to limit this sub-section 10. See sub-sections 9, 11, and 13, all of which would be unnecessary if the wider meaning were intended to be given to this sub-section 10. See also section 92, sub-section 10, and section 108, and the various cases there noted.
(t) 7 App. Cas. 96.
In MacMillan v. The South-West Boom Company (u), it was held by the Supreme Court of New Brunswick that a provincial enactment (37 Vic. c. 107) authorizing the erection of booms in a navigable river, does not conflict with the power of the parliament of Canada with respect to “navigation and shipping"; those words being used in the sense in which they are used in the several Acts of the Imperial parliament, relating to navigation and shipping, in the Act of the Dominion parliament, 31 Vic. c. 58, namely, as giving the right to prescribe rules and regulations for vessels navigating the waters of the Dominion, and not excluding, for all purposes, provincial jurisdiction over navigable waters. Allan, C.J., says:
"A local legislature, therefore, clearly, has a right to incorporate a Boom Company, where its objects, as in this case, are entirely provincial, and the erection of the booms, piers, etc., necessary for giving effect to such Act of incorporation, are undoubtedly local works, necessary and useful only for this lumbering business in one section of the province--the river Miramichi. The Acts then are entirely within the powers given to the provincial legislature unless the construction of the word, "navigation," is as has been contended for the plaintiff's counsel; for, in that case, the general power over local works and undertakings must yield to the particular power given to the Dominion parliament over the subject matter of navigation. But I think that it is not the proper construction of the term, and therefore the Acts in question are not ultra vires.”
It was held in McDougall v. Union Navigation Co. (), that the power to incorporate navigation companies, the operations of which are limited to a particular province, belongs exclusively to the legislature of such province.
In Normand v. St. Lawrence Navigation Co. (w), the grant, by the province of Quebec, of a water lot extending
(u) 1 Pug. & Burb. 715; 2 Cart. 542. Such an enactment however cannot authorize any obtruction to navigation. See post.
(v) 21 L. C. Jur. 63; 2 Cart. 228.
(w) 5 Q. L. R. 215; 2 Cart. 231.