39-41 mentioned as a subject for the exclusive jurisdiction Prop. of the Dominion we must necessarily understand that the organization of an insolvent Court, and administration of justice and proceedings connected Powers in with insolvency, are excepted from the general words excepted of that sub-section. But to that extent only can the in sect. 92. Dominion parliament assume to interfere. Adopting the same rule of construction, sub-section 15 of section 92 must, in my opinion, be read as an exception or modification of sub-section 27 of section. 91, which vests in the Dominion parliament the power to deal generally with the criminal law."1 sect. 91 out of those tion to be the terms of What is laid down in Propositions 39 and 40 is a very different thing from what is said by Gray, J., in the Thrasher Case, namely, "that the provisions of any particular section of the Act must be read, as affected by and subject to the Interpretageneral objects, uses, and powers for which the confined to Union was made, and for maintaining which the Act. efficiently the British North America Act was passed." In the course of the argument in Russell v. The Queen, Sir Montague Smith observed :— "I do not think there is anything so obscure in the construction of the Act with regard to the distribu. tion of power and the dominium given to the Dominion of Canada that renders it necessary to go into the history of it." 4 Passing now to Proposition 41, it is taken, with Prop. 41. the exception of the words in square brackets, from 1It may be observed that in the Quebec Resolution No. 43 (15) the words are:-" Property and civil rights, excepting those portions thereof assigned to the general parliament." See, also, supra pp. 362-3; also pp. 433-4, and 440, n. 5. 21 B.C. (Irving) at p. 225, (1882). 3 As to which see Propositions 2, 3, and 4, and the notes thereto. *Second day, at p. 68. See p. 398, n. 1, supra. Prop. 39-41 Broad classes of sect. 91 the judgment of the Privy Council in the Citizens Insurance Co. v. Parsons, and expresses the conclusion at which the Judicial Committee arrived from the consideration of the fact, that notwithstanding the endeavour of section 91 of the British North America Act to give pre-eminence to the Dominion parliament in case of a conflict of powers, it is obvious that in some cases in which. this apparent conflict exists the legislature could not have intended that the powers exclusively assigned to the provincial legislature should be absorbed in those given to the Dominion parliament. For example, they say that solemnization of marriage would come within the general descripNot intended tion 'marriage and divorce,' which is contained in the enumeration of subjects in section 91, yet 'solemnization of marriage in the province' is enumerated among the classes of subjects in section 92, and no one can doubt, notwithstanding the general words of section 91, that this subject is still within the exclusive authority of the legislatures of the provinces. So the raising of money by to absorb those in sect. 92. 17 App. Cas. at p. 108, 1 Cart. at p. 273, (1881). 2See supra at pp. 427-9, and p. 430, n. 4. 3 As to marriage and divorce' and 'solemnization of marriage in the province,' reference may be made to the speech of SolicitorGeneral Langevin in the Debates on Confederation in the parliament of Canada, (at p. 388), where he says:—“The word 'marriage' has been 'Marriage placed in the draft of the proposed constitution to invest the Federal and Divorce' parliament with the right of declaring what marriages shall be held and Sol- and deemed to be valid throughout the whole extent of the confed. of marriage.' eracy, without, however, interfering in any particular with the doc emnization trines or rights of the religious creeds to which the contracting parties may belong. It appears from the official report of the debate that the above words were read by the speaker from some written document, and when asked by the present author to explain the source of this extract, Sir Hector Langevin most kindly supplied the following information in a letter of August 25th, 1894 :-"I was entrusted by my leaders, Sir John A. Macdonald and Sir George Cartier, with the explanation not only of the general features of the proposed constitution, but also of some very important details which they could not have given in their own speeches without having lengthened their Prop. 39-41 limit and any mode or system of taxation is enumerated. among the classes of subjects in section 91, but the description is sufficiently large and general to include direct taxation within the province in order to the raising of a revenue for provincial purposes' assigned to the provincial legislature by section 92, and it obviously could not have been Courts must intended that in this instance also the general define." power should override the particular one. In these cases their lordships add :-"It is the duty of the Courts, however difficult it may be, to ascertain in what degree and to what extent authority to deal with matters falling within these classes of subjects exists in each legislature, and to define in the particular case before them the limits of their respective ment." debates on speeches unduly. My explanations were those of the government, and on the question of marriage and divorce, in order that there might be Sir Hector no equivocation or misunderstanding, it was agreed between my Langevin's colleagues and myself that I would put in writing those eight lines Speech in that you quote in your letter, and are found at p. 388 of the English Confedera version, and p. 395 of the French version, of the Confederation tion. Debates of 1865. Those eight lines cover and give the meaning that the conference of 1864 put on the words 'marriage and divorce,' which meaning was confirmed by the adoption of the proposed constitution in 1865, and later on in London, when all and every detail of the draft of the constitution were discussed and finally delivered to the government of Great Britain and passed by the Imperial parliaReference may also be made to the opinion of the Law Officers of the Crown in England in 1870, (Dom. Sess. Pap., 1877, No. 89, p. 340), to the effect that under the solemnization of marriage in the province,' the provincial legislatures have the power of legislating upon the subject of the publication of and the issue of mar- Law officers riage licenses; while marriage and divorce,' in section 91, "signify of the Crown all matters relating to the status of marriage, between what persons and under what circumstances it shall be created, and (if at all) destroyed." This opinion is quoted at length by Doutre on the_Constitution of Canada, at p. 238. See, also, supra at p. 63. Mr. Todd, (Parliamentary Government in the British Colonies, 2nd ed., at pp. 197-8), mentions certain Acts of colonial legislatures relating to marriage and divorce which have been from time to time disallowed in England. And see ibid. at p. 794, et seq., on the general subject. See, also, per Gwynne, J., in City of Fredericton v. The Queen, 3 S.C. R. at pp. 568-70, 2 Cart. at p. 60, (1880), and the letter of an "Exile" in 18 C.L.J. at p. 246, commenting on the language of the Privy Council in Citizens Insurance Co. v. Parsons, quoted in the text; also, McDougall v. Campbell, 41 U.C. R. at pp. 337 and 341, as to power over the subject of granting alimony being in the provincial legislatures. 39-41 powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result the two sections must be read together, and the language of one interpreted and, where necessary, modified by that of the other." And so in Lambe v. The Canadian Bank of Commerce, Rainville, J., says, after referring to the opening clauses of section 91:-" It would seem, A reasonable then, that with regard to all matters specially mention must be tioned in section 91 the provincial legislatures have interpreta reached. The ideal in view. no power, even if there should be found in the 29 classes matters which by section 92 seem to be exclusively assigned to the provincial legislatures. However, as was stated by the Privy Council in the case of the Citizens Insurance Co. v. Parsons these two sections must not be interpreted so absolutely, and a reasonable interpretation must be assigned to them in cases where the same matters are designated in the classes of these two sections."s 1The above words are referred to and commented on by Ritchie, C.J., in Queen v. Robertson, 6 S.C.R. at pp. 111-6, 2 Cart. at p. 83, (1882). 213 R. L. 146 at p. 152, (1883). In the argument before the Supreme Court of Canada in the Matter of the Dominion License Acts, 1883-4, (Dom. Sess. Pap., 1885, No. 85, at p. 136), Mr. G. F. Gregory, of counsel for New Brunswick and Nova Scotia, thus expresses the ideal aim in the matter:-" It will be for Parliament and the respective legislatures in the first instance, and for the Courts as a last resort, to attach such a limited meaning to the classes of subjects mentioned in these sections respectively," (sc., sections 91 and 92 of the British North America Act),“ as will make them distinct, and as each subject of legislation is presented to determine as best they can what class of legislation it falls in, Parliament and the legislatures being held to a bona fide exercise of their powers within their respective limits. . . . In this way the Courts of Appeal and of last resort will from time to time put down milestones and landmarks to mark the division line between these two classes of subjects. It may not be an absolutely straight line, but it will be as useful and practical, whether it be a straight line or otherwise, so long as it becomes a certain line; and by degrees this line will become marked by the milestones which the Courts will lay down, so that eventually those classes will be so understood by every one that we can easily determine within which class of subjects a matter of legislation falls." And so per Ramsay, J., in North British and Mercantile, etc., Insur Prop. 39-41 meaning of be restricted. Shortly after their above judgment in Citizens Insurance Co. v. Parsons, the Privy Council, in Dobie v. The Temporalities Board,1 referred to the principles laid down therein, and said that they saw no reason to modify them in any respect, and so again, in Bank of Toronto v. Lambe,2 they referred to this subject, and to their language in Citizens In- The literal surance Co. v. Parsons, and say :-" Their lordships words must adhere to that view, and hold that as regards direct taxation within the province to raise a revenue for provincial purposes that subject falls wholly within the jurisdiction of the provincial legislatures." In such cases, to quote another expression of the Privy Council in Bank of Toronto v. Lambe3 :— "The literal meaning of the words in section 91 should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures." As Begbie, C.J., puts it in The Queen v. Howe1:—“ We must put a reasonable construction on these two sets of general words." of subjects in 92. As it has been often expressed the subjects Overlapping enumerated in sections 91 and 92 in many cases sects. 91 and "overlap," or to use an expression of Lord Watson's on the argument before the Privy Council on the Manitoba School case, 1894, Brophy v. Attorney ance Co. v. Lambe, M. L.R. 1 Q.B. at p. 169, 4 Cart. at p. 62:"The work of reconciling these conflicting expressions must go on till all the possible cases have been disposed of." 17 App. Cas. at p. 148, 1 Cart. at p. 366, (1882). 212 App. Cas. at p. 585, 4 Cart. at p. 20, (1887). 312 App. Cas. at p. 586, 4 Cart. at p. 21. *2 B.C. (Hunter) at pp. 38-9, (1890). See, also, per Begbie, C.J., in Poole v. The City of Victoria, 2 B.C. (Hunter) at p. 275, (1892). *As per Cross, J., in North British & Mercantile Fire and Life Insurance Co. v. Lambe, M.L.R. 1 Q.B. at p. 151, 4 Cart. at p. 47, (1885). And see supra pp. 353-5. |