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tive and ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made, subject nevertheless (except with respect to such as are enacted by, or exist under, Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished or altered by the Parliament of Canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under this Act."
The language of this section is very comprehensive. It continued the whole body of pre-existing laws and legal institutions, “except as otherwise provided by this Act "; and excepting Imperial Acts and institutions existing under Imperial Acts, it divided the entire field of law (in its widest sense) between the Dominion and the provinces,
according to the authority of the parliament or of that legislature under this Act.” This body of law would inclu le every branch of jurisprudence—the lex prerogativa as well as the other branches. Combined with sec. 12, it carries the whole executive power incident to the legislative sphere of authority of the Dominion parliament, to the Dominion; and, combined with sec. 65, it has precisely the same result in relation to the government of the provinces (k:).
With regard to the executive council in each province -in other words, the Cabinet—we have to point out that no provision is made for such a council in New Brunswick or Nova Scotia, beyond what may be gathered from the express enactment that the constitution of the executive authority in those two provinces, should continue as before the passing of the B. N. A. Act; while, in regard to Ontario and Quebec, the appointment of the first officers who are to constitute the executive council in those provinces is provided for. There is this difference, too, to be remarked between the section of the Act which provides for the
(k) Dobie v. Temporalities Board, L. R. 7 App. Cas. 136; and see. notes to B. N. A. Act, secs. 12, 65 and 129, post.
Privy Council of the Dominion (sec. 11) and the corresponding section as to the executive councils of Ontario and Quebec (sec. 63), namely, that the latter seems to take it for granted (if we may use the expression), that there is to be an executive council in those two provinces; while the forier distinctly provides that "there shall be " a Privy Council for Canada. It may here be remarked that nowhere in any statute book will be found any Act which lays down that such executive council shall continue to hold office only so long as it commands the confidence of the legislature; but the existence of that “convention of the constitution," and its raison d'etre, have been already dealt with at sufficient length, and no one, we fancy, would argue that any significance attaches to its absence from the B. N. A. Act.. As put by Lord Russell, in his famous dispatch (), of September 7th, 1839, conveying to Lord Sydenham his "instructions” as to the government of Upper Canada : “It is evidently impossible to reduce into the form of a positive enactment, a constitutional principle of this nature.” But not only is the appointment of the first members of the Cabinet provided for in the case of Ontario and Quebec, but provision is also made as to their “rights, powers, duties, functions, responsibilities or authorities”. the draftsman was certainly exhaustive in his phraseology -and what has just been said as to the sections dealing with the powers, authorities and functions of the executive head, is equally applicable to sec. 135, which makes this provision as to the executive officers under him. All the “powers, etc., etc.,” which the executive officials named, had in relation to the government of Canada, are to be vested in the officers of the provincial governments, in relation to those governments. There is no division of power, but of sphere of authority only.
Equally significant of the continued existence of the pre-Confederation constitutions, are the clauses of the
(l) Can. Ass. Jour., 1841, pp. 390.6, App. BB.
B. N. A. Act, dealing with the constitution of the legislative authority in the provinces (m). For Ontario and Quebec, legislatures had to be provided. The constitution of those legislatures is, of course, entirely the creation of the B. N. A. Act; but, so far as the creative clauses are concerned, there is nothing to indicate any difference in principle, between the constitution of those legislatures, and the constitution of other colonial legislatures, beyond the absence in the “constitutional” statutes relating to those other colonies, of any division of the sphere of their legislative authority. But for Nova Scotia and New Brunswick no legislatures were created, it being provided (just as had been provided with regard to the executive) that the constitution of the legislature of each of those provinces should continue as it existed at the Union. The House of Assembly of Nova Scotia, as it happened, had been dissolved, so that new provincial elections were necessary, and, in order to save expense, it was provided (nn) that such new elections should take place at the same time as the first elections for the House of Commons of the Dominion. But, as to New Brunswick, its House of Assemlıly was still alive, and it was expressly provided that it should continue (unless sooner dissolved) for the period for which it had been elected. As to both Nova Scotia and New Brunswick, the B. N. A. Act contains no provision for the summoning of their Assemblies, for the length of time they should live, for yearly sessions, or as to the conduct of their business; as to all of which matters, minute provision is macle as to the legislatures of Ontario and Quebec (0)
The group of clauses (p) of the Act, dealing with the division of the assets of the provinces, between those provinces and the Dominion, bears throughout marks of the
(m) Secs. 69-9).
(1) B. N. A. Act, sec. $9. (0) Note. however, sec. 9', s-s. 1, post. (p) Group VIII , secs. 102-126.
draftsman's idea that the pre-Confederation provinces continued ;—they “shall retain all their respective public property not otherwise disposed of in this Act” (q); and certain duties and revenues are “reserved to the respective legislatures of the provinces (1).”
The division of the group of miscellaneous provisions (s) into “general,” and “Ontario and Quebec" is in itself significant, and the absence of provisions for New Brunswick and Nova Scotia, similar to those made to meet the needs of the newly created governments of Ontario and Quebec-provisions as to the executive staff; as to the Great Seals to be used ; as to the construction of temporary Acts of the parliament of old Canada, etc.—would seem to make it perfectly clear that the constitutions of the preConfederation provinces "by the sea," at all events, were not intended to be destroyed, and at most, it can only be said, that the constitution of old Canada was re-cast and made into two, each on the same pattern as the one had previously exhibited.
Upon consideration, it would appear that the really essential point to be determined in connection with this controversy, is the actual presence in the provincial machinery of government in their constitutions, in other words,) of the same working principle as was present in the constitution of the pre-Confederation provinces. As to, Nova Scotia and New Brunswick, there can be no doubt, as the B. N. A. Act is distinct, that the constitution of the executive and legislative authority in those provinces—and these two departments comprise the whole round of government-shall continue; and the controversy must therefore be limited to Ontario and Quebec. And as to these two provinces, it has already been remarked that the clauses which create their legislative and executive machinery
(9) Sec. 117.
(s) Group IX.; secs. 127-144.
differ in no essential respects from the similar clauses in other Imperial Acts creative of colonial constitutions, the presence in which of the principle of the co-extensive and complementary nature of the executive and legislative powers in government, cannot be gainsaid. No Act, Imperial or Colonial, has ever expressly so enacted; but it is the legal principle of the British constitution, and of the colonial constitutions of the Empire as well. And when we find, as a comparison of the various “constitutional Acts" for the colonies will show, that the machinery of government provided by those Acts is "all of a piece,” an argument is afforded in favor of, rather than against, the existence of the same working principle in each. Compare, for instance, the clauses of the B. N. A. Act, creating the executive and legislative machinery of the Dominion government, with those creating the like machinery of the governments of Ontario and Quebec, and both sets of clauses with the similar provisions of the Acts relating to (say) the Australasian colonies, and no essential difference can be found (t)nothing to indicate that in one the law-making power is supreme over the authority which executes that law, and that in another the two are not co-terminous. The fact is, that government is one, and indivisible. The "sanction" of a law is executive action, and no impossible attempt to create two independent powers in relation to any given subject matter, is made by any
of these “Constitutional Acts.”
(t) Compare B. N. A. Act with the Union Act (3 & 4 Vic. c. 35), and with the Constitutional Acts of New South Wales (5 & 6 Vic. c. 76; 7 & 8 Vic. c. 74 ; 13 & 14 Vic. c. 59, etc.); of Victoria (13 & 14 Vic. c. 59; 18 & 19 Vic. c. 55, etc.); of Newfoundland (5 & 6 Vic. c. 120; 10 & 11 Vic, c. 44), and of Queensland (24 & 25 Vic. c. 44). See Forsyth, Constitutional Law, p. 27, for an enumeration of the various “Constitutional Acts" for the colonies.