Prop. 4 laws which at the time the Confederation Act was passed, in the English constitution, were reserved for the consideration of the English parliament alone. The English parliament always has, up to this time, whatever some people may think ought to be done, treated the regulation of the liquor trafficas indeed it is as a matter of general public interest, and not as one either in the permission of the traffic, or the prohibition of the traffic, concerning localities only, and to be dealt with solely by localities, and therefore prima facie one would naturally suppose regarded as that a matter of this kind would be one which we have good reason to think would be left for the administration of the legislature of the Dominion as opposed to the legislatures of the provinces."1 Not a local matter in England. But, after all, state of things in Canada more But Mr. Davey, of counsel for the respondent, naturally rejoins to this:-" If in Canada, as well important. before the Confederation as since, that licensing power was exercised, not by the supreme legislature, but by the municipal authorities, it is none the less a municipal institution, because, in Great Britain, the municipality does not exercise that function." C. J., looks Yet in Bank of Toronto v. Lambe, in order to ascertain what is the character of the duties which But Dorion, the provinces are authorized to raise by means of to England the licenses in No. 9 of section 92, Dorion, C.J., as to licenses sect. 92, in No. 9 of deems it necessary to enquire, and does enquire B.N.A. Act. at great length, "how these license duties and other similar taxes were considered in England before and at the time the British North America Act was passed," and observes that "In the absence of any expressions to distinguish them from the same 1 Dom. Sess. Pap., 1884, Vol. 17, No. 30, p. 61. 2 Ibid., at p. 92. 3M.L.R. IQ.B. at p. 139, seq., 4 Cart. at p. 37, seq., (1885), sub nom. 'North British and Mercantile Ins. Co. v. Lambe.' imposts levied in England, we must hold that they Prop. 4 were of the same character." So in the argument before the Council as to and insol Sir R. urges state England sidered. And again, in the argument before the Judicial Committee on the reference as to the Ontario Act respecting assignment for creditors, Attorney- Privy General of Ontario v. Attorney-General of bankruptcy Canada, which took place in November, 1893, vency. Sir R. Webster, who was of counsel for the Dominion parliament, observed:-"This is after all an Imperial Act," (sc., the British North America Webster Act). "This is an Act which uses language which of things in may to a certain extent be more apt in relation to must be conthe state of things in Great Britain or England' than in the provinces." And the law officers of the Crown in England, in 1869-70, when the question. as to the power to legislate upon publication of So, also, banns, and marriage licenses, was referred to them, of the Crown observe in their Opinion :-"The phrase, 'The laws ing of respecting the solemnization of marriages in nization of England,' occurs in the preamble of the Marriage Act (4 Geo. IV., c. 76), an Act which is very largely concerned with matters relating to banns and licenses, and this is, therefore, a strong authority to show that the same words used in the British North America Act, 1867, were intended to have the same meaning."s And in connection with the subject which we have been discussing, it is proper to notice those cases which deal with the question how far it is right. to look to the rights and privileges of the colonial legislatures as they existed prior to 1867 in order to 1M.L. R. 1 Q.B. at p. 141, 4 Cart. at p. 39. [1894] A. C. 189. The writer has had an opportunity of studying a transcript from the shorthand notes of this argument. 3Dom. Sess. Pap., 1877, No. 89, p. 340; quoted Doutre on the Constitution of Canada, p. 238. law officers as to mean "solem marriage." Prop. 4 determine what rights and privileges the provincial legislatures have under the British North America. Act.1 herent rights legislatures, law-making B.N.A. Act. 3 In Ex parte Dansereau2 this subject, in connection with the local legislature of the province of Quebec, was dealt with by several of the judges. Thus As to in- Sanborn, J., says: "The late province of Lower of provincial Canada was constituted a separate province by the other than Act of 1791, with a governor, a legislative council, powers under and a legislative assembly, and it has never lost its identity This Act" (sc., the British North America Act), "according to my understanding of Sanborn, J. it, distributed powers already existing, to be exercised within their prescribed limits, to different legislatures constituting one central legislature and several subordinate ones, all upon the same model, without destroying the autonomy of the provinces, before Con or breaking the continuity of the prescriptive rights and traditions of the respective provinces. In a Per Looks to powers existing federation. 1As to it not being in the power of provincial legislatures to pass Acts defining their own privileges and powers, see Hodgins' Provincial Legislation, Vol. 1, pp. 48-61, 137, 236, 375, 596; ib., Vol. 2, pp. 86, 93. But see Clement's Canadian Constitution, at pp. 326-8. As to the power of the Dominion parliament in this respect, see section 18 of the British North America Act, and Mr. Clement's notes thereto : ib., at p. 262, seq. See, also, ib. at pp. 280-1; and the notes to Proposition 66, infra. 219 L.C.J. 210, 2 Cart. 165, (1875). As to the judgment of Dorion, C.J., in this case, in his pamphlet entitled "Letters upon the Interpretation of the Federal Constitution,' (first letter), before referred to, Mr. Justice Loranger, (at pp. 41-2), quotes passages as from that judgment which are not to be found in it as reported in 19 L.C.J. 210, 2 Cart. 165. According to Mr. Justice Loranger, Dorion, C.J., used the following words:-"I do not read that the intention of the new constitution was to begin an entirely new form of government, or to deprive the legislature of any of the powers which existed before, but to effect a division of them. Some of them are given to the local legislatures, but I find none of them curtailed. In substituting the new legislation for the old, the new legislature has, in all those things which are special to the province of Quebec, all the rights of the old legislature, and they must continue to remain in the province of Quebec, as they existed under the old constitution." 419 L. C.J. at pp. 235-6, 2 Cart. at pp. 197-8. did not continuity prescriptive provinces. the previous the We must the past certain sense the powers of the Federal parliament Prop. 4 were derived from the provinces, subject, of course, to the whole being a colonial dependency of the B.N.A. Act British Crown. The provinces of Quebec and break Ontario are, by the sixth section of the Act, declared of the to be the same that formerly comprised Upper rights of and Lower Canada. This recognizes their previous existence prior to the Union Act of 1840. All through the Act these provinces are recognized as having a previous existence and a constitutional It recognizes history, upon which the new fabric is based. Their existence of laws remain unchanged, and the constitution is preserved. The offices are the same in name and duties, except as to the office of LieutenantGovernor, who is placed in the same relation to the province of Quebec that the Governor-General sustained to the late province of Canada. I think it not ignore would be a great mistake to ignore the past govern- governmental powers conferred upon, and exercised in, powers. the province, now called Quebec, in determining the nature and privileges of the legislative assembly of the province." Again, Monk, J., observes1:- So per "It seems plain to my mind that the House does Monk, J. possess from necessity, and by implied and inherent prerogative, independent of usage or precedent, the powers claimed in the present instance," (namely, the power to examine witnesses and punish persons inherent who disobey such summons, and to regulate this necessity. right by statute). "But if we hesitate in regard to this view of the subject, does there not exist a usage -a jurisprudence, so to speak-in matters relating to the powers of the local parliament of Quebec, which must go far to remove all doubt in reference to these powers, as claimed in the present instance? . . . And, first, I would remark that we need not, 1S.C. 19 L.C.J. at pp. 245-6, 2 Cart. at pp. 215-17. mental Powers by Prop. 4 we cannot, go back to the middle ages exploring and searching for a lex et consuetudo parliamenti can claim by usage. Traced from first organization colonial under the Crown. At any rate In the United States they date the laws and usages provincial legislatures of Congress from the formation of their Constitusuch powers tion, and we may safely, and must from necessity, trace ours from the organization of our government under the British Crown to the present day We go back scarcely a century, but even within that short period we find the laws, usages, and powers of our parliament constantly and decisively asserted. of the We have the case of Mr. Young in 1793, that of Mr. governments Monk in 1817, those of Messrs. Tracey and DuverBritish nay in 1832, of Brodeur and Levoie in later times. . There are more and many other instances, not necessary to mention here, in which this inherent and necessary power of parliament has been repeatedly exercised. Some of these cases were questioned were brought before judicial authority -but the course and proceedings of parliament were sustained, or, at least, have never been overruled. All this looks like a lex et consuetudo parliaconsuetudo menti . . . Inasmuch as the Confederation Act, in parliamenti. this respect at least, has left us where we were— that is, independent, supreme, within our own sphere interfered of legislation-it cannot be said to have interfered B.N.A. Act. With these laws and usages of parliament such as they existed in 1867. Thus, then, as I view this part of the case before us, the authority and inherent privileges of the House of Assembly have virtually continued, though occasionally in abeyance, through all the changes of our Constitution, and they exist now in as full force as they did for a long time, and immediately previous to Confederation." A sort of lex et Not with by On the other hand, in Cotte's case, in which 119 L.C.J. at p. 215, 2 Cart. at pp. 223-4, (1875). See as to the view here expressed by Ramsay, J., supra p. 10, seq. |