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Prop. 38 would require omniscience to foresee what in the course of time may arise to call for legislative interference. All that the framers of it could be expected to do would be what they have done in sections 91 and 92, lay down clear principles of distinction between the classes of subjects which were to be dealt with by the several legislatures, enunciate clear principles to guide them in their respective legislation, and compile the other sections of the Act with special, though inferential, reference to the guiding principles so laid down, and especially guarding against clashing of authority."

Elasticity

of our Constitution.

And in North British and Mercantile, etc., Insurance Co. v. Lambe,1 Tessier, J., says :-" In my opinion, the Confederation Act is a model of legislation which I have always admired. It required a great effort of science, intelligence, and experience to include in one law of 147 sections the regulation of interests so varied of several provinces covering an immense territory with different systems of law. The general terms employed show that the wish has been to give a general elasticity in our constitution. It is for our Courts to give a reasonable interpretation in order to reconcile all interests, and not create and favour those which are likely to raise conflicts." "Much must of necessity, as occasion arises, be left to be supplied by judicial interpretation": per Harrison, C.J., in Ulrich v. The National Insurance Co.3

"The Imperial Act," says Peters, J., in Kelly v.

1M.L.R. I Q.B. at p. 167, 4 Cart. at p. 60, (1885).

2 And so per Tessier, J., also in Poulin v. The Corporation of Quebec, 7 Q.L. R. at p. 339, 3 Cart. at p. 239, (1881).

342 U.C. R. at p. 156, (1877).

1

2

function of

Sulivan, has bone and sinew, but, like the dry Prop. 38 bones of the valley, it has yet to be clothed by many a judicial decision from all parts of the Dominion, tempered and corrected by the supreme tribunal, before its true form and features will become perfectly developed"; to which we may add the words The of Crease, J., in Regina v. Wing Chong, that "it is the Courts. natural that in the working out of such a constitution in a new and growing country, questions should be continually cropping up, and call upon the Courts to define gradually and with greater exactness, as time progresses and population expands, the relative powers given by the Act to the Dominion and provinces respectively."

3

Act an

And, in one of his short but trenchant articles in the Legal News, "R." has touched upon this matter, saying in reference to the British North America Act" Plainly it is an outline the details of which are to be filled up on the suggestion of practical necessities. That this should be the case The B.N.A. is evident to those who remember the circumstances outline. of Confederation. The assent of the people of the four provinces had to be obtained. Manifestly it would have been impossible to get them to understand, and not less difficult to get them to adopt, a multitude of details. It was comparatively easy to indicate in general terms the powers of each government, and this is what was done. No one ever seriously contended that even the catalogues of sections 91 and 92 were perfectly conclusive. Therefore there must exist a doctrine resulting from, but

12 P.E.I. at pp. 90-1, (1875).

22 B.C. (Irving) at p. 156.

37 L.N. at p. 49. "R" is, on good authority, believed to be the late Judge Ramsay.

Prop. 38 undeveloped in, the words of the Act. In practice, it may be added, the Privy Council has frequently laid down principles of the most abstract kind. It is difficult to conceive how, with any hope of avoiding, even by hair-breadth escapes, contradictions in the last degrees unsatisfactory and disquieting to litigants, the Courts are to proceed without adopting broad principles."1

tion.

Difficulty of At the same time, as pointed out by the Privy interpreta Council in Citizens Insurance Co. v. Parsons, the very general language in which some of the powers of legislation are described in sections 91 and 92 of the British North America Act gives rise to considerable difficulty of interpretations; and on the argument before the Board in the matter of the Dominion License Acts, Sir Montague Smith said: "It is the great misfortune of this Act that they have used such extremely general terms.”

And before passing on to the next Proposition there are two passages in Story on the Constitution of the United States which are very apposite to the matters now under discussion. In the first he says: "It is to be taken that the sovereign

1In the Australian case of Ex parte Wallace & Co., 13 N.S. W., L. 1, (1892), Innes, J., says (at pp. 13-4):-"Our Constitution Act is not so rigid and inexpansive that the varying circumstances in the development of our political system are not to have some effect on it.

. . It is well known that it is moulded on the lines of the English constitution, and in matters not expressly referred to we follow the precedents of the English constitution." For an article on the English Character of Canadian Institutions, by J. G. Bourinot, C.M.G., see Contemporary Review for October, 1892.

27 App. Cas. at p. 107, 1 Cart. at p. 271, (1881).

See, also, per Ritchie, C.J., in The Queen v. Robertson, 6 S.C.R. at p. 111, 2 Cart. at p. 83, (1882).

*Transcript from Marten & Meredith's shorthand notes, at p. 127. 55th ed., Vol. 2, at p. 5. See, also, ibid., pp. 569-70, note.

Constitu

interpreta

power, the people, in adopting the constitution and Prop. 38 thereby giving to the Courts the function of interpretation, intended that interpretation should, within reasonable limits, be influenced by the demands of public policy and the public welfare, Story on the according to changes of time and circumstances; tion. and that the Courts should not be tied down by the special state of things existing in times of a new and untried experiment in government. On that theory the Federal Supreme Court has often acted; so has Congress, and so has the Executive. There is reason for saying that the term 'police powers cannot be held to mean at the present day all that it meant a hundred years ago." However, with reference to our constitution what is stated in Public feeling may Proposition 3 and the notes thereto must be remem- influence its bered. And Story himself adds in the other pas- tion, sage referred to, a useful warning1:-"If the constitution is to be only what the administration of the day may wish it to be, and is to assume any and all shapes which may suit the opinions and theories of public men as they successively direct the public counsels, it will be difficult, indeed, to ascertain what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing to-day and another thing to-morrow, and, again, another thing on each succeeding day. The Which, past will furnish no guide, the future no security. It will be the reverse of a law, and entail upon the certain. country the curse of that miserable servitude so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government." And the same learned writer in another place observes:-" It has been justly remarked that the

1 Ibid. at p. 150.

2 Ibid. at p. 654.

however,

must be

uniform and

Time required to

Prop. 38 erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution mature the founded upon the total or partial incorporation of a number of distinct sovereignties. Time alone can mature and perfect so compound a system; liquidate the meaning of all the parts; and adjust them to each other in a harmonious and consistent whole."1

system.

1 Pomeroy, in his work on Constitutional Law, 8th Ed., p. 12, s. 17, says :-"In discussing the powers, capacities, incapacities, rights, and duties of the governmental agents, all appeals to general ideas of civil polity, all references to the analogies of other forms and other nations, from whom we may be supposed to have drawn some of our methods, all purely historical deductions, are and must be constantly restrained and limited by the letter itself of the written instrument. On the other hand, this written instrument is so much one of enumeration rather than of description; is so much an expression of general grants of power rather than the embodiment, in a codified form, of minute detail, that an appeal to history, to the analogies of other political organizations, and to fundamental ideas of civil polity, of justice and equity, is not entirely superseded, nay, is often absolutely neces ary." See, however, Proposition 3 and the notes thereto.

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