CHAPTER XXI. IMPERIAL CONTROL OVER THE DOMINION. tions. THE legislative powers conferred on the Dominion Parliament and the provincial Legislatures, though of a very wide character, are limited in several ways: (1) they do not Limitaexhaust the whole sphere of legislation, (2) they are concurrent with and are not exclusive of the legislative powers of the Imperial Parliament, (3) where an Imperial and a Colonial Statute conflict, the former is to prevail, and (4) the Crown may veto any Act of the Dominion Parliament. 1. Limitations on Dominion Legislation. Powers. Though power is given, in general terms, to the Dominion General by section 91 of the B. N. A. Act 1867 "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," yet other sections of this Act and at least one other Act of Parliament, apart from the clauses defining the legislative powers of the Provinces, restrict the powers of the Dominion Parliament. The most important limitations are as follow: Constitu 1. The Dominion has but a limited power of altering its Altering constitution. It may prescribe the qualification of voters tion. and regulate the method of election, but it cannot abolish either House of Parliament, or alter the constitution of the Senate, or affect the veto of the Crown. Even its power of altering the number of members of the House of Commons has to be exercised in accordance with certain principles laid down in the Act. A province has greater power to alter its constitution than has the Dominion. Provincial 2. After the Dominion grants a constitution to a new tions. Province it cannot alter such constitution'. Constitu Protective duties. Public lands. Acts of Seat of Government. Imperial lation. 3. The Dominion cannot impose any protective duties as between provinces. 4. The Dominion cannot tax any lands or property belonging to Canada or any Province3. 5. Acts of the Parliament of Great Britain or of the Parliament of Great Britain and Ireland which were in force in any of the provinces at the time of the Union, can be repealed, abolished or altered only by Imperial legislation. 6. The seat of the Government can be altered only by the Crown'. 2. Concurrent Power of Legislation. The Imperial Parliament has concurrent legislative power on all matters within the legislative jurisdiction of Canada and its Provinces. It is true that in Holmes v. Temple, the Judge of the Quebec Sessions held that "exclusive" meant exclusive of the Imperial Parliament, and dismissed a prosecution for persuading a soldier to desert, brought under the Imperial Army Act of 1881, on the ground that the Dominion Parliament had "exclusive" jurisdiction in matters relating to "militia, military and naval service and defence";" but the Ontario Court of Queen's Bench in another case laid down the true principle, viz. that the word "exclusive" as 8 R. v. College of Physicians and Surgeons of Ontario, 44 U. C. Q. B. 564; 1 Cart. 761. applied to Dominion powers of legislation in the Act sive" tion. By section 93 of the British North America Act 1867, "Exclupower is given to Provincial Legislatures to "exclusively Legisla make laws in relation to Education," and in 1874 the Ontario Legislature under this clause amended and consolidated the laws relating to the Medical profession in the Province. The year after the passing of the Act of 1867, the Imperial Parliament by the 31 & 32 Vic. c. 79, enacted, that any person registered under the Medical Act of 1858 should upon payment of the fees required, and upon proof of his registration, be entitled to be registered in any Colony of the Crown. In 1879 a medical practitioner duly registered under the Imperial Act applied to the College of Physicians and Surgeons of Ontario to be registered in the Province. The College refused to do so, and in the subsequent legal proceedings it was urged, that by the 93rd section of the Act 1867 the registration of doctors was within the exclusive jurisdiction of the provinces, and that the Imperial Act could only be taken to apply where there was no provincial legislation. In giving the judgment of the Court, Hagarty, C. J., remarked, "The case of the defendants was argued in a very fair and candid spirit admitting, as of course was necessary with the Federation Act before us, that if the Imperial Parliament distinctly legislate for us they can do so notwithstanding any previous enactment or alleged surrender of the power of exclusive legislation on any subject. But it was ably urged that as the subject of Education was one in which the exclusive right was given to the Province, we should read the Imperial Act as not interfering with the right so granted. To this it may be argued that where the Federation Act speaks of any such exclusive right, it means exclusive as opposed to any attempt to legislate by the Dominion Parliament." Imperial Acts passed since Union. Veto of Crown. A similar view was expressed in Smiles v. Belford1 in regard to the Dominion power of legislating on copyright, which by section 91 of the Act of 1867 is placed within the "exclusive" jurisdiction of the Dominion Parliament and yet was affected by Imperial Acts passed after the Union. The following are some of the chief Acts passed since the Union by the Imperial Parliament relating to Canada. Merchant Shipping Acts, 32 & 33 Vic. c. 11; 34 & 35 Vic. c. 110; 39 & 40 Vic. c. 80; 43 & 44 Vic. c. 16; Ib. c. 18; Ib. c. 22; Ib. c. 43; 45 & 46 Vic. c. 76; 46 & 47 Vic. c. 41. Naturalisation Acts, 33 & 34 Vic. c. 14; 33 & 34 Vic. c. 102. Extradition Act, 33 & 34 Vic. c. 52. Foreign Enlistment Act, 33 & 34 Vic. c. 90. Act relating to Treaty of Washington, 35 & 36 Vic. c. 45. Unseaworthy Ships Act, 38 & 39 Vic. c. 88. Confirmation of Marriages on Her Majesty's Ships Act, 42 & 43 Vic. c. 29. Shipping Casualties Investigations Act, 42 & 43 Vic. c. 72. Companies Colonial Registers Act, 46 & 47 Vic. c. 30. Submarine Telegraph Act, 48 & 49 Vic. c. 49. Medical Act 1886, 49 & 50 Vic. c. 48. Submarine Telegraphs Act, 50 Vic. c. 3. 3. Powers of the Crown. (a). PROVINCIAL BILLS. The Crown has no power of vetoing a provincial bill. Power is given to a Lieutenant-Governor, when a bill is 1 1 Ont. App. Rep. 436; 1 Cart. 576. presented to him for his assent, to reserve the same for the signification of the pleasure of his Excellency the Governor-General'. If within one year from the date of such reservation the Governor-General does not issue a proclamation intimating that it has received his assent, the bill never comes into force2. vation. Instead of reserving the bill the Lieutenant-Governor Resermay assent to it, but the Governor-General has the power to disallow the bill at any time within one year from its passing3. If the Governor-General does not disallow the Act within such year then it can be questioned only in an action in which it is alleged that the subject-matter was not within the legislative powers of the province. It is however open to the Governor-General to com- Consulting Home municate with the Imperial Government in regard to the Governdisallowance of a provincial law. For instance, when the ment. Ontario Legislature passed an Act conferring upon the Legislative Assembly the same privileges as those enjoyed by the Dominion House of Commons, the competency of the Legislature to pass this Act was doubted, and on the recommendation of the Dominion Minister of Justice, the question was referred to the English law officers of the Crown. They were of opinion that the Act was ultra vires, and it was therefore disallowed by the Governor-General in Council". to obtain inter Attempts have been made in several cases by the Attempts Dominion House of Commons, and by parties interested in Imperial provincial legislation, to persuade the Imperial Government ference. to interfere with provincial legislation. When New Brunswick in 1871 passed an Act relating to common schools, not only did the Dominion House of Commons ask the GovernorGeneral to take the opinion of the law officers of the Crown 3 See ante, 165. 1 B. N. A. Act, s. 90. 4 Todd, p. 365. 2 Ib. |