until we reach sub-section 14 of section 92, and to confine our remarks upon this sub-section to "criminal law" and "procedure in criminal matters." The subject has been already adverted to in chapter XI., ante, p. 235, et seq., to which reference should be had.

In its widest and strictly legal sense (f) the term "criminal law" would include all that class of mattersoffences against the provisions of provincial law-covered by sub-section 15 of section 92, and, the jurisdiction being in each case exclusive, the meaning of the term must be here limited.

It will facilitate our enquiry if we refer shortly to the sources of our criminal law-using that term in its widest sense-and to the position at the time the Union took effect. As the basis we take the common law of England. In chapter V. we have endeavored to point out to what extent English common and statutory law was deemed to be introduced into the various provinces of British North America. As to the common law of England relating to crimes, their trial and punishment, no discussion was necessary. That law was undoubtedly in force in the maritime provinces and in Quebec as then constituted. By the Quebec Act, 1774 (g), the criminal law of England was to continue to be administered in the province, and be “observed as law as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted." As was pointed out, in Upper Canada the question of applicability seems not to have been considered open in determining the operation within that province of English criminal law (h), but in the maritime provinces this question had to be considered in all cases, criminal as well as civil.

But, the "criminal law of England" had become in those days largely statutory, and no disti netion in principle can

(1) See Reg. v. Boardman and Reg. v. Roddy, post.

(g) 14 Geo. III. c. 83.

(h) See ante, p. 123.

be pointed out as separating statutory criminal law from the old common law upon the subject of crimes, their trial and punishment. All sorts of regulations were laid down to guide the daily conduct of men, and their observance was enforced by penalties, inflicted in personam or in rem, until the severity of English law became notorious. As Sir Thomas May points out (i), the criminal code down to the reform era of the 'thirties was largely protective of the rights of property, regardless, in such case, of any question of moral turpitude. Such was the law introduced into the colonies of British North America, and down to Confederation there existed no necessity for distinguishing the various parts of the criminal code, whether as passed for the putting down of public wrongs or as directed toward the upholding of private rights. "Crimes" was a most comprehensive term, and its definition by Richards, C.J., in 1868 (j) may be taken as a correct exposition of the law as it stood at the date of Confederation:

"When a party may be punished for an offence against a public Act of a public nature, for which he may be tried summarily and a penalty imposed, the proceeding to recover such a penalty is a criminal proceeding, . then the offence for

which the penalty was imposed must be a crime."

This, as we have said, covers enactments such as those which, by the express provision of sub-section 15 of section 92, a provincial legislature may pass "for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section." So far as concerns legislation since Confederation, it may be now taken as clearly established that provincial penal laws within the limits defined are not "criminal law," nor is the procedure for their enforcement "procedure in criminal matters" within the meaning of this sub-section 27. As to the "common law" upon the

(i) May's "Const. Hist. of Eng." Vol. III. p. 393, et seq.

(j) In Re Lucas & M'Glashan, 27 U. C. Q. B. 81; see also Reg. v. Roddy, 41 U. C. Q. B. 291.

subject of crimes, their trial and punishment, there seems to be a consensus of judicial opinion that, under this subsection this became so far as still extant in the different provinces-a body of Dominion law. But how about the great body of provincial statutory "criminal" law—as it would then be properly termed-in force in the different provinces at Confederation? Upon this question there is no expression of judicial opinion, so far as we have been able to find, and yet it seems to us clear that section 129 of the B. N. A. Act (see post), makes a definite division of that whole body of existing "criminal" law, and that, without doubt, whatever enactments prior to Confederation could now, were they non-existent, be passed by a provincial legislature must, since the Union, be deemed to be a body of "provincial" law, and the procedure for their enforcement must be regulated by provincial statutes applicable, generally, to prosecutions under post-Confederation provincial Acts. We may say, also, that much may be advanced in favor of the view that even the common law of England upon this subject-so far as still extant in Canada-is capable of division along a similar line (k), but judicial opinion is, as we have said, in favor of the view that this is by the B. N. A. Act assigned in its entirety to the parliament of Canada. We now proceed to examine the cases which have involved consideration of this sub-section, first, however, remarking that the notes to sub-section 15 of section 92 should be read in connection with what is here laid down, for nearly every case has involved a comparison between that sub-section and this.

In Reg. v. Boardman (), Chief Justice Richards, delivering the judgment of the court, refers to a passage from the judgment of Martin, B., in Attorney-General v. Radloff (m), in which that judge, speaking of " the intrin

(k) See per Osler, J.A., in Reg. v. Wason, 17 O. A. R. 221, at p. 241. (1) 30 U. C. Q. B. 553.

(m) 10 Exch. 96.

sic and essential nature of the act itself "-smugglingsays "that it cannot be denominated a 'crime' according to the ordinary and common usage of language, and the understanding of mankind." Chief Justice Richards says: "I refer to this language as indicating the popular idea of criminal law, in which view it may have been used in the statute."

but, without enlarging further upon this suggestion, he held that, at all events, whatever comes properly within sub-section 15 of section 92 must be excluded from the "criminal law" confided to the parliament of Canada by this sub-section 27. A clause in the Liquor License Act of Ontario directed against any person who, having violated the Act, should compromise the offence, and against any person who should be a party to such compromise, was upheld. But in Regina v. Lawrence (n) it was held that a provision of the same Act, that any person who, in a prosecution under the Act, tampers with a witness, should be guilty of an offence under the Act, and liable to a penalty, and regulating the mode of enforcing such penalty, was ultra vires of a provincial legislature, because the offences dealt with are offences at common law. Harrison, C.J., says:

"There are many acts, not being crimes, which are triable before, and punishable by, magistrates, which, although called offences, are not crimes, and which by the proper legislative authority may be made the subject of summary magisterial jurisdiction, either with or without appeal, but these are not to be mistaken for acts in themselves crimes, and the subject of indictment, and of conviction under indictment, either at the common law or by statute. Such acts as these may by the provincial legislature be made the subject of punishment by fine, penalty or imprisonment, when this is done for the purpose of enforcing any law of the province made in relation to any matter coming within any of the classes of subjects exclusively assigned to the provincial legislatures. The constitutionality of this clause is called in question because it is affirmed that the

(n) 43 U. C. Q. B. 164, affirming judgment of Gwynne, J.

acts with which it deals are, and each of them is, the subject of an indictment by the criminal (sic) law, and so not the subject of the exercise of power by the provincial legislature. If this contention be well founded in fact we are of opinion that it is a good contention in law.”

Upon a review of the authorities it was held that the offence legislated against by the Act in question, was an offence which might be the subject of an indictment at common law, and was therefore beyond the power of a provincial legislature. Regina v. Boardman, and Regina v. Lawrence are hard to reconcile. The former can be upheld only on the view that the compounding of a misdemeanor is not an offence by the common law, and can, therefore, for the purpose of securing proper enforcement of a provincial law, be made punishable by provincial legislation.

To the like effect, in Regina v. Shaw (0) it was held by the Court of Queen's Bench in Manitoba, that keeping a gambling-house is an offence against the common law, and that consequently it can only be dealt with by the parliament of Canada, and cannot be made an offence by a provincial Municipal Act or by a by-law passed under the authority of such Act. Mr. Justice Killam says:

"It was an offence at common law to keep a gambling house. This offence, it appears to me, comes within the subject of criminal law referred to in section 91, sub-section 27 of the B. N. A. Act. That term must, in my opinion, include every act or omission which was regarded as criminal by the laws of the provinces when the Union Act was passed, and which was not merely an offence against a by-law of a local authority. If this were not to be the rule of construction, more difficulty than ever would arise in drawing the line between the jurisdiction of the Dominion and the provincial legislatures. This gives us one clear line of demarcation which it would be dangerous to obliterate. I think it must be deemed to be one line which was intended to exist. How far parliament can ex

(0) 7 Man. L. R, 518.