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PROPOSITION 43.

43. In determining the validity of a Dominion Act, the first question to be determined is, whether the Act falls within any of the classes of subjects enumerated in section 92, and assigned exclusively to the legislatures of the provinces. If it does, then the further question will arise, whether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, and so does not still belong to the Dominion Parliament. But if the Act does not fall within any of the classes of subjects in section 92, no further question will remain.

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Russell v.

The above Proposition is taken from the judgment of the Privy Council in Russell v. The Queen, who The Queen. there refer again to their judgment in Citizens Insurance Co. v. Parsons, where they enunciate what is really the same rule as applied to an enquiry into the validity of a provincial Act. Their lordships add:" It cannot be contended, and, indeed, was not contended at their lordships' bar, that, if the Act does not come within one of the classes of subjects

1See Proposition 66 and the notes thereto.

27 App. Cas. at p. 836, 2 Cart. at p. 19, (1882).

37 App. Cas. at p. 109, I Cart. at p. 273, (1881). See Proposition 58.

Prop. 43 assigned to the provincial legislatures, the parliament of Canada had not, by its general power, to make laws for the peace, order, and good government of Canada, full authority to pass it."1

Variation in rule as stated in Citizens Ins. Co. v. Parsons.

The explanation.

In the form of the rule as stated in Citizens Insurance Co. v. Parsons, the words which take the place of "and so does not still belong to the Dominion parliament" in the Proposition under discussion are, "and whether the power of the provincial legislature is or is not thereby overborne"; and on the argument before the Privy Council in Russell v. The Queen, in 1882, 2 Sir Montague Smith said, referring to the judgment of the board in Citizens Insurance Co. v. Parsons::- "That decision left open the question whether the special powers of section 92 may not in some cases be overborne by the more general powers of section 91... We expressly said that the question did not arise whether, when it," (sc., the subject-matter of an Act)," was apparently within one and also within the other, the 91st section might not overbear it. That question did not arise in that case. There we held, rightly or wrongly, that what was done was not a regulation of trade and commerce. We decided that it did fall within that sub-section of section 92 as to property and civil rights. The question of one over-riding the other did not arise. If it had been an interference with the regulation of trade and commerce, a question would have arisen which did not arise.

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1As to which see Proposition 26 and the notes thereto.
21st day, at pp. 10, 54. See supra p. 398, n. I.

3 See Proposition 58, infra. Reference may be made as to the variation in the way in which the rule is stated in the two cases to the remarks of Mr. G. F. Gregory, arguendo, before the Supreme Court of Canada, in the Matter of the Dominion License Acts, 1883-4: Dom. Sess. Pap., 1885, No. 85. at p. 130 On the argument in the same

But as the authorities noted under Proposition 41, Prop. 43 q.v., show the subject-matter of a provincial Act may fall within one of the general subjects enumerated in section 91, in a broad interpretation of the latter, and yet the provincial legislature may have exclusive power to deal with it. "The exceeding generality of the words must be applied with very considerable modifications indeed ": per Crease, J., in the Thrasher Case.1

rule or test.

In Propositions 43 and 58, then, we have the rule Gwynne, J.'s correctly expressed rather than in the words of Gwynne, J., in City of Fredericton v. The Queen, 2 repeated by him in Citizens Insurance Co. v. Parsons,3 and The Queen v. Robertson, and which he says appear to him to furnish an unerring guide in determining whether any given subject of legislation is within the jurisdiction of the provincial legislatures

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the rule.

case before the Privy Council, Sir Farrer Herschell puts the rule thus :— "For determining the question whether any matter is a matter within Sir F. Herthe exclusive jurisdiction of the province, the proper course is first to schell's look at section 92, to see whether it comes within any of the clauses statement of enumerated there. If it does not, then there is an end of the contention that it is within the exclusive legislature of the province. But even if you do find it in section 92, then you have to look to section 91 and see whether you find it in section 91, because if it be in section 91, then so far section 91 over-rides and limits section 92. Unless you can read the two together, and give a so much larger meaning to the words in section 91 that you can still leave section 92 to have effect, I should think section 91 over-rode section 92, because it says that it is hereby declared that notwithstanding anything in this Act,'-that must include the words in section 92,-'the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated,'-so that I should have said if there was any inconsistency between section 92 and 91, section 91 overrode section 92": Printed transcript from Marten & Meredith's shorthand notes, pp. 31, 89-90. At p. 63, where Sir Farrer Herschell again speaks of section 91 over-riding section 92, Lord Hobhouse, one of the Board, corrects him, saying:-" It,"(sc., section 91)," may override the construction of section 92." See, also, supra at pp. 427.9.

11 B.C. (Irving) at p. 206, (1882).

23 S.C.R. at pp. 564-5, 2 Cart. at p. 56, (1880).

34 S.C.R. at pp. 329-30, I Cart. at p. 335.

46 S.C. R. at p. 64, 2 Cart. at p. 118.

to it.

Prop. 43 or of Parliament, namely:— " All subjects of whatever nature, not exclusively assigned to the local legislatures, are placed under the supreme control of the Dominion parliament, and no matter is exclusively assigned to the local legislatures unless it be within one of the subjects expressly enumerated in Objections section 92, and, at the same time, [is outside of the several items enumerated in section 91, that is to say,'] does not involve any interference with any of the subjects enumerated in section 91." For not only does this seem to ignore what is stated in Proposition 41, just referred to, but Proposition 61 and the notes thereto show that it is at least liable to mislead to say that provincial legislation may never involve any interference with Dominion subjects.2

Per Ritchie,
C.J.

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In The Queen v. Robertson, Ritchie, C.J., indeed. says:" In construing the British North America. Act, no hard and fast canon or rule of construction can be laid down and adopted, by which all Acts passed as well by the parliament of Canada as by the local legislatures upon all and every question that

1The words in square brackets are inserted in the rule as enunciated by_the learned judge in The Queen v. Robertson, 6 S.C.R. at p. 64, 2 Cart. at p. 118.

In the recent case of In re Prohibitory Liquor Laws, 24 S. C. R. at p 213, (1895), Gwynne, J., thus expresses the rule, as being, "according to the canons of construction, as laid down by this Court in City of Fredericton v. The Queen, and by the Judicial Committee of the Privy Council in Russell v. The Queen,' "between which," he adds, "I do not find there is any substantial difference":-" Even though a particular subject of legislation may be capable of being construed to come within section 92, reading that section by itself, still, if that subject comes within any of the items enumerated in section 91, it is taken out of the operation of section 92, which in such case has to be construed as not comprehending such subject." Of course if the subject-matter falls within the enumerated subjects in section 91, as strictly defined in their meaning under the Act, then the power of the provincial legislature is overborne.

36 S.C. R. at p. 110, 2 Cart. at pp. 81-2.

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may arise, can be effectually tested as to their being Prop. 43 or not being intra vires of the legislature passing them." He goes on to say: "The nearest approach to a rule of general application that has occurred to me for reconciling the apparently conflicting legislative powers under the British North America Act, is what Property and civil rights. I suggested in the cases of Valin v. Langlois,1 and the Citizens Insurance Co. v. Parsons, with respect to property and civil rights over which exclusive legislative authority is given to the local legislatures, that as there are many matters involving property and civil rights expressly reserved to the Dominion parliament, the power of the local legislatures must, to a certain extent, be subject to the general and special legislative powers of the Dominion parliament.3

13 S.C.R. at p. 15, I Cart. at p. 172, (1879). 24 S.C.R. at p. 242, 1 Cart. at p. 292, (1880). See supra pp. 425.438.

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