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This limited power of criminal jurisdiction does not Rules of extend to the alteration of the rules of evidence existing for the protection of persons accused of offences; a man therefore cannot be compelled to criminate himself, even though the offence be one created by a provincial Legislature1.
In so far as a province has power to enact penal laws, it Procedure. has an implied power to regulate the procedure requisite for enforcing such laws2.
The point has been raised in Quebec, whether a provincial PunishLegislature has power to punish by both fine and imprisonment or by one only of these modes. In one case the latter view was taken, but in a subsequent case it was held that the word or in s. 92 (15) is not used in a disjunctive sense.
A province it has been held may enforce its penal laws by hard labour in addition to imprisonment®.
Though this power of making criminal laws is vested in the Dominion, the Attorney-General of the province is the proper officer to prosecute in the courts of justice in the province'.
Election Petitions. By section 41 of the Act it was pro- Election vided that until the Parliament of the Dominion should petitions. otherwise determine, the old mode of hearing Election Petitions was to continue, and it was held that this gave jurisdiction to the Dominion Parliament.
By an Act passed in 1874° the existing provincial courts were constituted courts for the trial of Election Petitions,
1 Regina v. Roddy, 41 U. C. Q. B. 291; 1 Cart. 709.
2 Pope v. Griffith, 16 L. C. Jurist 169; 2 Cart. 291. Ex parte Duncan 16 L. C. Jurist 188; 2 Cart. 297. Page v. Griffith, 17 L. C. Jurist 302; 2 Cart. 308.
3 Ex parte Papin, 15 L. C. Jurist 334; 16 L. C. Jurist 319; 2 Cart. pp. 320-323. 4 Paige v. Griffith, 18 L. C. Jurist 119; 2 Cart. 324.
5 See the English Cases of Fowler v. Padget, 7 T. R. 514 and Ditcher v.
7 A. G. v. Niagara Falls Inter. Bridge Co., 20 Grant 31; 1 Cart. 813.
in civil suits.
but it was objected that this was an interference "with the
Procedure. An Act of N. B. abolishing imprisonment
The Dominion has sole jurisdiction regarding
Naturalisation and Aliens. s. 91 (25).
2. Indians and lands reserved for Indians. s. 91 (24). By "lands reserved for Indians" is meant lands reserved for the use of Indians and not surrendered by them. Such lands are sometimes described as "Indian Reserves." Lands surrendered by them and to which their title is extinguished come within the jurisdiction of the province".
3. Marriage and Divorce, except the solemnization of marriage within a province, which falls under provincial legislation. s. 92 (12); s. 91 (26).
In and for each province the Legislature may exclusively make laws in relation to education, subject to the following conditions:
(1) All rights and privileges which any class of persons had at the time of the Union in denominational schools are not to be affected prejudicially.
(2) Privileges enjoyed by Roman Catholic schools in
1 Valin v. Langlois, supra.
2 Armstrong v. McCutchin, N. B. 2 Pugsley, 381; 2 Cart. 494.
3 Church v. Fenton, 28 U. C. C. P. 384; 1 Cart. 831.
Upper Canada are extended to the dissentient schools of
(3) An appeal to the Governor-General in Council is allowed against any provincial Act or decision affecting any right of the Protestant or Roman Catholic minority of the Queen's subjects in the province. s. 93.
A province has, subject to the above powers, a right of Denomilegislating in regard to denominational schools, so long as Schools. such legislation is not "prejudicial" to any right or privilege existing at the time of the Union. An Ontario Act providing for the election of trustees of certain Roman Catholic schools was on this ground held valid'.
The rights and privileges protected are only those which at the time of the Union existed in each province by virtue of positive legal enactment, and not privileges enjoyed under exceptional and accidental circumstances and without legal rights2.
The right of appeal referred to in subsection (3) only refers to legislative Acts or their equivalents, and not to the every-day details of the working of the school.
In case any provincial law requisite for carrying out the Dominion above provisions is not made, or in case the decision of the powers. Governor-General in Council in an appeal under this section is not duly executed, power is given to the Parliament of Canada to make remedial laws for carrying out the above provisions and for executing the said decision. s. 93 (4).
To the Dominion is given jurisdiction in
Property and civil rights in the province. s. 92 (13).
1 Separate School Trustees of Belleville v. Grainger, O. 25 Grant 570; 1 Cart. 816. 2 Ex parte Renaud, N. B. 1 Pugsley 273; 2 Cart. 445.
Legislation limited by
express powers of
Property includes property in fisheries and the transfer or transmission of rights in fisheries, as well as toll bridges belonging to a municipality in the province3.
In 1881 the important question arose whether a "debt " belonging to a person domiciled elsewhere could be said to domiciled come under the head of property or civil rights within the
Debts belonging to persons
province in view of the acknowledged rule that the locality of a debt is determined by the domicile of the creditor. The Ontario Court of Queen's Bench on the ground that the rule was not of universal application* refused to limit the clause in this way, and held, that where debts or other obligations arose out of, or were authorized to be contracted under, a local Act passed in relation to a matter within the powers of a local Legislature, such debts or obligations may be dealt with by subsequent Acts of the same Legislature, notwithstanding that by a fiction of law such debts may be domiciled out of the province.
The power of the provinces to legislate on property and civil rights is limited by several of the rights given to the Dominion, as for instance by the right to legislate on bankruptcy and insolvency, since, to use the words of the
Property and civil rights. Property and civil rights are assigned to the provinces: bankruptcy and insolvency to the Dominion. The right to legislate on property and civil rights is restricted to property in the province, and to rights existing in the province. Within such limits a local Legislature has unrestricted power. The Legislature of Ontario was therefore held to be within its power in passing a private Act dividing, at the request of the children, a testator's property in a way different to that prescribed by the will1.
1 Re Goodhue, 19 Grant 366; 1 Cart. 560.
2 Queen v. Robertson, 6 Can. S. C. R. 52, 2 Cart. 65.
3 Municipality of Cleveland v. Municipality of Melbourne, Q. 4 Legal News, 277; 2 Cart. 241.
See Nickle v. Douglas, 35 U. C. Q. B. 126, 37 U. C. Q. B. 51.
Judicial Committee, "it is impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights'."
Patents, copyrights, lands reserved for Indians as well as other specific subjects enumerated in the 91st section, relate to property and civil rights, and therefore it is only as regards property and civil rights other than the property and civil rights assigned to the Dominion Parliament that fall within the jurisdiction of the provincial Legislatures.
In some cases a province may avoid any conflict by Saving inserting a special clause in the provincial Act. A grant of shore or of land extending into the water, with a proviso that the grant was not to give any right to interfere with "commerce and navigation," was held valid, inasmuch as this proviso reserved all Dominion rights2.
The provincial rights are limited also by the implied Implied power of the Dominion to legislate on property and civil rights so far as that is necessary to exercise jurisdiction over the subjects assigned to it.
powers of Dominion.
On this ground the Dominion Act, 34 Vic. c. 5, s. 46, authorizing the transfer of warehouse receipts to banks by direct endorsement was held valid, inasmuch as such legis. lative power was implied in the right to regulate trade, commerce and banking3.
The validity of the Canadian Temperance Act 1878, which authorized the inhabitants of a city or county under certain. restrictions to prohibit the sale of intoxicating liquors, was challenged on this ground amongst others, that it affected "property and civil rights" in the provinces, but the Judicial
1 Cushing v. Dupuy, 5 App. Cas. 409; 1 Cart. 252: and see Kinney v. Dudman, N. S. 2 Russell & Chesley 19; 2 Cart. 412.
2 Normand v. St Lawrence Navigation Co. Q. 5 L. R. 215; 2 Cart. 231. 3 Smith v. the Merchants' Bank, O. 28 Grant, 629; 1 Cart. 828, and see Crombie v. Jackson, 34 U. C. Q. B. 575; 1 Cart. 685.