CHAPTER XIX. DIVISION OF LEGISLATIVE POWER. LEGISLATIVE power over Canada is shared amongst the following authorities: (1) the Lieutenant-Governors and the Provincial Legislatures, (2) the Governor-General and the Dominion Parliament, and (3) the Crown and the Imperial Parliament. The provinces can legislate on matters which are either specifically enumerated or are governed by general clauses; the Imperial Parliament has an implied exclusive jurisdiction on matters expressly or impliedly reserved: the balance of legislative power belongs to the Dominion. But even in those matters committed to the Dominion and the provinces the Imperial Parliament retains a concurrent jurisdiction. It is difficult to refer the distribution of legislative power to any one principle. The provisions of the Union Act of 1867 were based on certain resolutions agreed to by the Imperial Government and the Canadian provinces, and it is not surprising to find a singular want of principle in the framework of the Act. An attempt has been made in it to enumerate the respective powers assigned to the Dominion and to the provinces, but the impossibility of enumerating all the possible subjects on which legislation might be required forced the framers to insert two general clauses, one giving power to the provinces to legislate on "all matters of a merely local or private nature in the province," and the other conferring on the Dominion power to legislate "for the peace, order and good government of Canada in relation to all matters" not assigned to the provinces. The result is that the interpretation of the Union Act is much more difficult than the interpretation of the constitution of the United States. The following remarks of the Judicial Committee of the Privy Council in the Citizens Insurance Co. v. Parsons1 shew the view that has been taken by the courts as to the relation of the important sections containing the enumeration of the chief legislative powers of the Dominion and the provinces. "The scheme of this legislation as expressed in the first branch of sect. 91 is to give to the Dominion Parliament authority to make laws for the good government of Canada in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislature. If the 91st section had stopped here and if the classes of subjects enumerated in sect. 92 had been altogether distinct and different from those in sect. 91, no conflict of legislative authority could have arisen. The Provincial Legislatures would have had exclusive legislative power over the 16 classes of subjects assigned to them, and the Dominion Parliament exclusive power over all other matters relating to the good government of Canada. "But it must have been foreseen that this sharp and definite distinction had not been and could not be attained, and that some of the classes of subjects assigned to the Provincial Legislatures unavoidably ran into and were embraced in some of the enumerated classes of subjects in sect. 91: hence an endeavour appears to have been made to provide for cases of apparent conflict: and it would seem that with this object it was declared in the second branch of the 91st section "for greater certainty but not so as to restrict the generality of the foregoing terms of this section" that (not 1 L. R. 7 App. Cas. 96. withstanding anything in the Act) the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. With the same object apparently the paragraph at the end of sect. 91 was introduced, though it may be observed that this paragraph applies in its grammatical construction to No. 16 of sect. 92. "Notwithstanding this endeavour to give pre-eminence to the Dominion Parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the Legislature could not have intended that the powers exclusively assigned to the provincial Legislature should be absorbed in those given to the Dominion Parliament. Take as one instance the subject 'marriage and divorce,' contained in the enumeration of subjects in sect. 91: it is evident that solemnization of marriage would come within this general description; yet 'solemnization of marriage in the province' is enumerated among the classes of subjects in sect. 92, and no one can doubt, notwithstanding the general language of sect. 91, that this subject is still within the exclusive authority of the Legislatures of the provinces. So 'the raising of money by any mode or system of taxation' is enumerated among the classes of subjects in sect. 91: but though the description is sufficiently large and general to include 'direct taxation within the province in order to the raising of a revenue for provincial purposes' assigned to provincial Legislatures by sect. 92, it obviously could not have been intended that in this instance also the general power should override the particular one. With regard to certain classes of subjects, therefore, generally described in sect. 91, legislative power may reside as to some matters falling within the general description of these subjects in the Legislatures of the provinces. In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters Co-ordinate power of Parlia ment. falling within these classes of subjects exists in each Legislature, and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result the two sections must be read together, and the language of the one interpreted, and where necessary modified, by that of the other. In this way it may in most cases be found possible to arrive at a reasonable and practicable construction of the language of the sections so as to reconcile the respective powers they contain and give effect to all of them. In performing this difficult duty it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon the interpretation of the statute than is necessary for the decision of the particular question in hand." Before attempting to arrange or discuss the various legislative powers, attention may be called to some general principles that ought to be borne in mind, and which are suggested either by the Act itself or by judicial decisions of the Judicial Committee and of the Canadian Courts. 1. Though the 91st section of the Act professes to give exclusive" legislative authority to the Dominion ParliaImperial ment on the matters specified, such authority is “exclusive” only of provincial Legislatures, and does not affect the supreme legislative power possessed by the Imperial Parliament over all the dominions of the Crown. In other words, the Imperial Parliament still retains co-ordinate legislative power in all matters assigned to either the Dominion or the provincial Legislatures'. Conflict of Colonial tion. 2. By the Imperial Act 28 and 29 Vic. c. 63, intituled An Act to remove Doubts as to the validity of Colonial Laws," it is enacted that any Colonial law "repugnant to the provisions of any Act of Parliament extending to the 1 See for a fuller discussion of this point post c. xxi. colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall to the extent of such repugnancy" be void. In the case of The Farewell' the judge of the Quebec ViceAdmiralty Court applied the above statute, and held that a clause of the Merchant Shipping Act of 1854 superseded the Dominion Pilotage Act of 1873. Legisla supreme limits of 3. The provincial Legislatures "are in no sense delegates Provincial of or acting under any mandate from the Imperial Parliament. tures When the British North America Act enacted that there within should be a Legislature for Ontario, and that its Legislative legislative Assembly should have exclusive authority to make laws for power. the province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local Legislature is supreme, and has the same authority as the Imperial Parliament or the Parliament of the Dominion would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect"." power of 4. Power to legislate on a particular subject implies the Implied right to legislate on incidental subjects necessary to an exer- Legisla cise of such power. "We consider as a proper rule of interpretation in all these cases that when a power is given either to the 17 Quebec L. R. 380, 2 Cart. 378. 2 P. C. in Hodge v. The Queen, L. R. 9 App. Cases, at p. 132. tion. |