General powers of Dominion or to the provincial Legislatures to legislate on certain subjects coming clearly within the class of subjects which either Legislature has a right to deal with, such power includes all the incidental subjects of legislation which are necessary to carry on the object which the B.N.A. Act declared should be carried on by that Legislature. The determining of the age or of other qualifications required by those residing in the province of Quebec to manage their own business, or to exercise certain professions or certain branches of business attended with danger or risk for the public, are local subjects in the nature of internal police regulations; and in passing laws upon those subjects, even if those laws incidentally affect trade and commerce, it must be held that this incidental power is included in the right to deal with the subjects specially placed under their control, the exercise of which cannot be considered to be unconstitutional 1.” 5. If a matter does not fall within any of the classes of Dominion, subjects assigned exclusively to the Legislatures of the provinces, then it is within the general power given to the Parliament of Canada "to make laws for the peace, order, and good government of Canada." On this ground an Act of the Canadian Parliament introducing throughout the Dominion uniform legislation for the promotion of temperance by prohibiting the sale of liquors, except under certain restrictions, where the inhabitants of a county or city adopted its provisions, is not ultra vires. This principle must however be taken subject to the qualification that the matter in question does not fall within any of the restrictions imposed by the Act on the powers of the Dominion Parliament. The Dominion Parliament cannot for instance change 1 Dorion, C. J., in Bennett v. Pharmaceutical Association of Quebec, 1 Dorion Quebec Appeals 336, 2 Cart. 250. See also Ex parte Leveillé. Q. 2 Stephens Dig. 445, 2 Cart. 349. 2 Russell v. the Queen, 46 L. T., N. S. 889. 8 the seat of government', nor alter the constitution of the Senate, except by providing for the representation of new provinces, nor alter the constitution of a new province nor impose protective duties as between provinces, nor increase its own powers; all these matters are within the exclusive jurisdiction of the Queen and English Parliament. powers of 6. The Courts in deciding upon the relative powers of Former the Dominion and provincial Legislatures will have regard Provinces. to the powers of the provinces at the time of the Confederation". 7. When the validity of an Act is in question the first Method of interpretapoint to be decided is this: does the subject-matter fall tion. within any of the matters assigned to the provinces? If it does not and it is a provincial Act, then such Act is ultra vires; but if it prima facie falls within one of such classes, then the further question arises, viz. "whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in sect. 91, and whether the power of the provincial Legislature is not thereby overborne ?" Instead of following the order in which the legislative powers are expressly or impliedly mentioned in the Act, the following attempt is made to group the various powers under definite heads. 1. AMENDMENT OF THE CONSTITUTION. Certain important but limited powers are given to the Dominion Parliament and to the provincial Legislatures to enable them from time to time to amend their Constitutions. 1 B. N. A. Act, s. 16. 2 34 & 35 Vic. (i.) c. 28. s. 2. 3 Ib. s. 6. 4 The Corporation of Three Rivers v. Sulte, Q. 5 Legal News, 330. 5 Citizens' Insurance Co. v. Parsons, 45 L. T., N. S. 721, Cart. 265; Dobie v. The Temporalities Board, 7 App. Cas. 136, 1 Cart. 351; Bank of Toronto v. Lambe, L. R. 12 App. Cas. 575. The GovernorGeneral and LieutenantGovernors. The The Provincial tive Council. The Governor. The salary of the Governor-General may be varied by the Dominion Parliament', but otherwise the Parliament has no legal control over his office. The salaries of the Lieutenant-Governors are fixed and provided for by Parliament. The provinces have no legal control over the office of Lieutenant-Governor3, but the Governor-General is by constitutional custom required to rely on the advice of his ministers in making or revoking an appointment*. The Senate. The only powers conferred on the Dominion Parliament over the Senate are those for varying the number necessary to form a quorum and of hearing and determining any question that arises relating to the qualification of a senator or to a vacancy in the Senate. The Parliament cannot abolish the Senate, nor alter the number of members', except by providing for the representation of new provinces or of territories not in a province; nor prescribe what qualifications a senator should possess: all these matters are settled by the Act of Union and subsequent Acts, and can only be altered by the Imperial Parliament. The Legislative Council. The provinces, on the other Legisla hand, have power not only to alter the constitution of the Legislative Council but even to abolish it. By section 92 a provincial Legislature may amend from time to time the constitution of the province notwithstanding anything in the Act. The only legislative Council constituted in detail in the Union Act is that of Quebec, as the constitutions of the Legislative Councils in Nova Scotia and New Brunswick were continued as they existed at the time the Act passed. Manitoba has taken advantage of the above power and abolished its upper House 10. The Lower House. The House of Commons. As regards the House of Com mons the Dominion Parliament has power to legislate on the following subjects: The distribution of seats, the qualifications and disqualifications of members, the voters at elections, the oaths to be taken by voters, returning officers, their powers and duties, proceedings at elections1, periods during which elections may be continued, trial of controverted elections", vacating of seats of members, execution of new writs in case of seats vacated otherwise than by dissolution3. The number of members may be increased every decennial census subject to the conditions specified in section 51. Parliament may also make provision for the absence of the Speaker of the House of Commons*. vincial House. The Legislative Assembly. The provincial Legislatures The Propossess the same powers for altering the constitution of the Lower Assembly that they have for altering the constitution of the Legislative Council, except that where the Legislative Assembly is the only House it cannot be abolished. It is true that there is no express provision in the Act against the abolition of a provincial Assembly, but in such a case it must be remembered not only that such an abolition would be inconsistent with the provisions of the Act, but that the power of a province to affect its constitution is a power to "amend" not to "abolish." The Union Act implies a Legislature of some kind in each province. of Parlia Privileges. The Dominion Parliament has power from Privileges time to time to define by Act the privileges, immunities and ment. powers to be enjoyed by the Senate and House of Commons, and by the members thereof respectively, but the privileges 1 As to punishment of bribery at elections, see Doyle v. Belle, 11 Ont., App. Rep. 32. 2 See ante, p. 137. 3 B. N. A. Act, ib. s. 41. 4 Ib. s. 47. Privileges of Provin immunities and powers so conferred are not to exceed those enjoyed by the English House of Commons at the time of the passing of such Act'. No express power was given to the provincial Legislatures cial Legis- to define their privileges, but Acts for that purpose have been latures. passed by Ontario, Quebec, Manitoba and British Columbia?. Powers of Neither the Dominion Parliament nor the provincial Parlia- Legislatures can increase or vary the powers expressly or impliedly conferred on the Dominion and the provinces respectively by the Imperial Parliament. ment. Dominion cannot vincial Constitu The Dominion Parliament has no power to alter the alter Pro- constitution of any of the provinces admitted into the Union. And by the Imperial Act 34 Vic. c. 28, s. 6, it is not for instance competent for the Parliament to alter the 32 and 33 Vic. c. 3, providing a constitution for Manitoba, or any other Act establishing new provinces in the Dominion. tion. The Parliament of Canada may with the consent of the Legislature of a province alter the limits of a province upon the terms and conditions agreed on by such Legislature, 34 Vie. (i), c. 28. The 34 Vic. (i.), c. 28, conferred on the Parliament of Canada power to make provisions from time to time for the administration, peace, order, and good government of any territory not for the time being included in any province. A clause in the order in Council surrendering the NorthWest Territory and Ruperts-land to the Dominion confers a similar power as regards these Territories, but the same order in Council imposes certain conditions, relating chiefly to the Hudson's Bay Company, that are binding on the Dominion Parliament and cannot be altered by it. 3 2. NEW PROVINCES AND TERRITORIES. At the time of the incorporation of the North-West 2 See ante, p. 67. 1 38 & 39 Vic. (i.) c. 38, s. 1. 3 See Appendix. |