CHAPTER XI.

DISTRIBUTION OF LEGISLATIVE POWERS.

In the distribution of the legislative powers entrusted to the general parliament and the local legislatures respectively, the constitution makes such an enumeration as seems well adapted to secure the unity and stability of the dominion and at the same time give every necessary freedom to the several provinces in the management of their local and municipal affairs. In arranging this part of the constitution, its framers had before them the experience of eighty years' working of the federal system of the United States, and were able to judge in what essential and fundamental respects that system appeared to be defective. The doctrine of state sovereignty had been pressed to extreme lengths in the United States, and had formed one of the most powerful arguments of the advocates of secession. This doctrine

1 Sir J. A. Macdonald, Conf. Deb., 1865, p. 32: “I am strongly of opinion that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada, the defects which time and events have shown to exist in the American constitution," &c.

had its origin in the fact that all powers, not expressly conferred upon the general government, are reserved in the constitution to the states. Now, in the federal constitution of Canada the very reverse principle obtains, with the avowed object of strengthening the basis of the confederation, and preventing conflict as far as practicable between the provinces that compose the union." This constitution emanates from the sovereign authority of the imperial' parliament, which has acted in accordance with the wishes of the people of the several provinces, as expressed through the constitutional medium of their respective legislatures. This imperial charter, the emanation of the combined wisdom of the imperial parliament and the subordinate legislatures of the several provinces affected, confers upon the general government the exclusive legislative authority over all matters respecting the public debt, regulation of trade and commerce, postal service, navigation and shipping, Indians, census and statistics, and all other matters of national import and significance. On the other hand the local

1 The 10th art. of the Am. Cons. reads: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This art. did not appear in the first constitution of 1787, but was agreed to with other amendments by the first congress in 1789, and subsequently ratified by the States. See Smith's Cons., Manual and Digest, 4th ed., published by order of Congress, 1877.

2 Sir J. A. Macdonald, Conf. Deb., 1865, p. 33: "We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. We have avoided all conflict of jurisdiction and authority," etc.

B. N. A. Act, 1867, s. 91. See appendix to this work.

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legislatures may exclusively make laws in relation to municipal institutions, management and sale of public lands belonging to the province, incorporation of companies with provincial objects, property and civil rights in the province, and "generally all matters of a merely local or private nature in the province." e." The provincial legislatures have also exclusive powers of legislation in educational matters, subject only to the right of the dominion parliament to make remedial laws under certain circumstances. The object of this provision is to secure, as far as practicable, by statute, to a religious minority of a province, the same rights, privileges and protection which it may have enjoyed at the time of the union. The local legislatures may, however, legislate as to separate schools, provided that the legislation be not such as prejudicially affects the rights or privileges theretofore possessed by such schools, and they may pass laws interfering with unimportant matters such as the election of trustees, or the every-day detail of the working of such schools, as settled by statute prior to confederation. The general parliament and local legislatures have also concurrent powers of legislation respecting

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1 B. N. A. Act, s. 92.

2 Sec. 93.

3 See New Brunswick School Law Controversy. Todd, Parl. Gov. in the Colonies, pp. 346-352, Can. Sess. P. 1877, No. 89. A reference to the correspondence on this vexed question clearly shows that both the imperial and dominion authorities concurred in the view that it is not proper for the federal authority to attempt to interfere with the details or accessories of a measure of the local legislature, the principles and objects of which are entirely within its competency.

* Board of School Trustees vs. Granger et al., 25 Grant, Ch. 570.

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agriculture and immigration, provided the provincial law is not repugnant to any Act of the parliament of Canada. The powers of the provincial governments are distinctly specified in the Act of Union, whereas those of the general government cover the whole ground of legislation not so expressly reserved to the provincial authorities. The dominion government is authorized in express terms "to make laws for the peace, order and good government of Canada in relation to all matters. not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces"; and in addition to this specific provision it is enacted that "any matter coming within any of the classes of subjects enumerated in the section (that is, the 91st respecting the powers of the general parliament) shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects assigned exclusively to the legislatures of the provinces."

It must necessarily happen that, from time to time, in the operation of a written constitution like that of Can

1 B. N. A. Act, s. 95.

"The government of the United States is one of enumerated powers, and the governments of the States possess all the general powers of legislation. Here (in Canada) we have the exact opposite. The powers of the provincial governments are enumerated, and the dominion government possesses the general powers of legislation." Ritchie C. J., Can. Sup. Court R., 13th April, 1880, vol. iii., p. 536.

3 See infra, p. 136. Judgment of privy council re "Canada Temperance Act," showing the large powers given to the dominion government by this provision of the B. N. A. Act, 1867.

ada, doubts will arise as to the jurisdiction of the general government and local legislatures over such matters as are not very clearly defined in the sections enumerating the powers of the respective legislative authorities. No grave difficulty should arise in arriving sooner or later, as a rule, at a satisfactory solution by means of the decisions of the judicial committee of the privy council, and of the higher courts of the dominion. An act establishing a supreme court for Canada was passed in the session of 1875, in accordance with the 101st section of the British North America Act, 1867, which provides "for the constitution, maintenance and organization of a general court of appeal for Canada." 1 This court has an appellate jurisdiction in cases of controverted elections, and may examine and report upon any private bill or petition for the same. The governor in council may refer any matter to this court for an opinion. It shall also have jurisdiction in cases of controversies between the dominion and the provinces, and between the provinces themselves, on condition that the legislature of a province shall pass an act agreeing to such jurisdiction.2

Many important cases of doubt as to the construction to be placed on the 91st and 92nd sections of the British North America Act, 1867, have already been referred to

1 38 Vict., c. 11. Lord Durham, in his report (p. 123), recommended the establishment of a "Supreme Court of Appeal for all the North American colonies." The provincial courts have equal power to declare any Canadian statute unconstitutional; the supreme court is the court of appeal for all the provinces of the dominion.

2 Ss. 52, 53, 54. The legislature of Ontario in 1877 passed 40 Vict., c. 5, authorizing such references.