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2. Public Works and Means of Communication.—The Dominion has jurisdiction in all works that fall within any of the following classes :
(a) Ferries between a province and any British or foreign country or between two provinces. s. 91 (13).
(b) Beacons, buoys, lighthouses, and Sable Island. S. 91 (9).
(c) Establishment and maintenance of marine hospitals. s. 91 (11). But each province has committed to it "the establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary institutes as and for the province other than marine hospitals." s. 92 (7).
(d) The postal service. s. 91 (5).
(e) Lines of steam or other ships, railways, canals, telegraphs and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province. s. 92 (10).
(f) Lines of steam ships between the province and any British or foreign country. s. 92 (10).
(g) Such works as, although wholly situate within the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage or for the advantage of two or more provinces. s. 92 (10). Marine Matters. To the Dominion is committed:
This clause gives power to confer jurisdiction on Admiralty Courts, but such jurisdiction must be restricted to the territorial limits of the Dominion, i.e. to within three marine miles from the coasts'.
The Supreme Court of Canada held that this clause excludes a province from conferring on a boom company power to obstruct a tidal navigable river.
1 The Farewell, 7 Quebec L. R. 380; 2 Cart. 378.
2 See Queddy Boom Co. v. Davidson, 10 C. S. C. 222. In McMillan v. South-west Boom Co. N. B., Pugsley & Burbidge, 715; 2 Cart. 542, the opposite view was laid down.
(b) The Sea-coast. s. 91 (12).
(c) Inland Fisheries.
The meaning of "inland fisheries" was discussed in The Queen v. Robertson'. "I am of opinion," said Ritchie, C. J. "that the legislation in regard to inland and sea fisheries contemplated by the B. N. A. Act was not in reference to 'property and civil rights,' that is to say, not as to the ownership of the beds of the rivers or of the fisheries or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection, and preservation, matters of a national and general concern and important to the public, such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries: in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large who are interested in the fisheries as a source of national and provincial wealth: in other words, laws in relation to the fisheries such as those which the local Legislatures were, previously to and at the time of Confederation, in the habit of enacting for their regulation, preservation and protection, with which the property in the fish or the right to take the fish out of the water to be appropriated to the party so taking the fish has nothing whatever to do, the property in the fishing or the right to take the fish being as much the property of the province or the individual as the dry land or the land covered with water." The grant by the Dominion Minister of Marine and Fisheries of a right to fish in a provincial river was therefore held invalid.
4. Matters of State Management. The Dominion has exclusive jurisdiction in regard to :—
(a) The Census. s. 91 (6).
1 6 Can. S. C. R. 52; 2 Cart. 65.
Statistics. s. 91 (6).
Weights and Measures. s. 91 (17).
5. The Civil Service. For carrying on the necessary departments of state the Dominion has the following powers:1. The fixing of and providing for the salaries of the Governor-General (s. 105) and of the Lieutenant-Governors.
2. The fixing of and providing for the salaries, allowances and pensions of the judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick) and of Admiralty Courts in cases where the judges are paid by salary. s. 100.
3. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada. s. 91 (8).
The provinces have also powers regarding "the establishment and tenure of provincial officers and the appointment and payment of provincial offices." s. 92 (3).
ADMINISTRATION OF JUSTICE.
The powers assigned to the Dominion and the provinces are as follows:
"The constitution, mainte-
Criminal Law except the con-
The administration of justice in the province, including the constitution, maintenance and organisation of provincial courts both of civil and criminal jurisdiction, including procedure in civil matters in those courts. S. 92 (14)
Establishment, maintenance and management of penitentiaries. s. 91 (28).
The trial of
elections and proceedings incis. 41.
The establishment, mainten- Prisons. ance and management of public reformatory prisons in and for the province. s. 92 (6).
The imposition of punishment Enforcing by fine, penalty or imprisonment laws. provincial for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in section 92. (15).
Courts of Appeal. By the 38 Vic. c. 2, passed in the Court of Appeal. year 1875, a Supreme and an Exchequer Court were established for the Dominion', and in 1877 a Court of Maritime Jurisdiction was created for Ontario.
Administration of justice in the province. The power Adminiof the Governor-General under s. 96 to appoint judges is Justice. limited to judges of the Superior, District and County Courts in each province. For inferior courts the right of appointing belongs under s. 92 (14) to the province; but the Lieutenant-Governor as such and without legislative authority cannot appoint justices of the peace, since he is not authorized as is the Governor-General to exercise that prerogative of the Crown. The taking of evidence to be used in an action pending in a foreign tribunal is a matter of Dominion and not of provincial regulation*.
Criminal Law. The 15th clause of s. 92 confers a Criminal Law. limited jurisdiction in criminal matters on the local Legislatures, and the right of the Dominion to legislate on Criminal Law under s. 91 (27) is subject to this provincial right.
1 See ante p. 216. 2 R. v. Bennett, 1 Ont. Rep. 445; 2 Cart. 634; Wilson v. McGuire, 2 Ont. Rep. 118; 2 Cart. 605. 3 Doutre, p. 54. 4 Re Wetherell & Jones, 4 Ont. Rep. 713.
Enforcement of Tempe.
This limited power of criminal jurisdiction does not authorize a provincial Legislature to enforce a law of the province, made in relation to matters within the exclusive jurisdiction of a provincial Legislature, by declaring acts to be offences which are criminal offences at common law. When therefore the Ontario Legislature provided that tampering with a witness in the case of prosecutions under the Liquor License Act should involve a penalty, the Ontario Court of Queen's Bench held the proviso ultra vires, inasmuch as tampering with a witness was an offence at common law1. In this case an attempt was made, similar to that in English cases, to distinguish between acts that are offences, viz. those punishable by magistrates, and acts that are crimes, viz. those punishable on indictment, and it was suggested that the former were within the jurisdiction of the local Legislatures; but the decision was ultimately based on the principle that the act in question was a crime by common law and therefore not within provincial jurisdiction.
The validity of clauses in provincial laws relating to temperance has been questioned.
In some cases it has been held that the method adopted for enforcing the Act in question was ultra vires, and in other cases that it was valid'.
A provincial law forbidding the compromise of offences against a law regulating tavern and shop licenses, and enacting that any party to such a compromise should on conviction be liable to imprisonment, was held not to be ultra vires".
1 R. v. Lawrence, 43 U. C. Q. B. 164.
2 See remarks of Martin B. in A. G. v. Radloff, 10 Ex. p. 96.
3 R. v. Prittie, 42 U. C. Q. B. 612; 2 Cart. 606; R. v. Lake, 43 U. C. Q. B. 515; 2 Cart. 616.
4 License Commissioners of Prince Edward v. County of Prince Edward,
O. 26 Grant, 452; 2 Cart. 678.
5 Regina v. Boardman, 30 U. C. Q. B. 553; 1 Cart. 676.