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counties are ex officio officers of the Supreme and Exchequer Courts.
"The process of the Supreme Court and the process of the Exchequer Court shall run throughout Canada and shall be tested in the name of the Chief Justice, or in case of a vacancy in the office of Chief Justice in the name of the senior puisne judge of the court, and shall be directed to the sheriff of any county or other judicial division into which any province is divided: and the sheriffs of the said respective counties or divisions shall be deemed to be taken to be ex officio officers of the Supreme and Exchequer Courts respectively and shall perform the duties and functions of sheriffs in connection with the said courts: and in any case when the sheriff is disqualified such process shall be directed to any of the coroners of the county or district'.”
ii. Courts for the trial of Controverted Elections.
An account has already been given of the provisions of the Act which assigns the trial of election petitions to certain courts of the provinces. The judges of these courts when sitting for the purpose of trying election petitions form a Dominion and not a Provincial Court, and therefore it is within the power of the Dominion to prescribe the procedure to be observed.
iii. Maritime Court of Ontario.
In 1877 the Dominion Parliament constituted a court of Maritime Jurisdiction for the province of Ontario.
The court has jurisdiction in matters arising out of or connected with navigation, shipping, trade or commerce on any river, lake, canal, or inland water of which the whole or part is in the province of Ontario3.
An appeal lies to the Supreme Court from all decisions. having the force of a final order.
R. S. C. c. 135, ss. 66 & 75. 2 See ante, p. 137. 3 R. S. C. c. 137, s. 14.
2. APPOINTMENT OF JUDGES.
The judges of the Supreme, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick) are appointed by the Governor-General, and their salaries are paid by the Dominion'.
The judges of the Supreme Courts hold office during good behaviour, but they are removeable by the GovernorGeneral on address of the Senate and House of Commons'.
Judges of the County Courts also hold office during good behaviour, and during residence within their districts".
They may be removed by Order in Council for (a) inability or old age or ill health, (b) incapacity or misbehaviour. An inquiry must be held before removal, and reasonable notice be given to the judge of such inquiry. The inquiry is to be held by a Commission, which may consist of the judges of the Supreme Courts either of Canada or of any province.
3. APPEALS TO THE PRIVY COUNCIL.
An appeal lies from the Supreme Court of Canada to the Judicial Committee of the Privy Council, by permission of the Judicial Committee. The Canadian Act establishing the Supreme Court enacted that the judgment of the Court should be final and conclusive "saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative." These last-mentioned words were held to leave entirely untouched and to have preserved Her Majesty's prerogative to allow an appeal.
1 B. N. A. Act, 1867, ss. 96-100. R. S. C. c. 138.
2 B. N. A. Act, s. 99.
3 R. S. C. c. 138.
6 Johnston v. Minister and Trustees of
5 R. S. C. c. 135, s. 71.
St Andrew's Church, L. R. 3 App. Cas. 159.
By the Canadian Insolvency Act' it was enacted, that the court to which an appeal could be made under the Act should be final, no saving clause being inserted regarding the prerogative but on the ground that the rights of the Crown could be taken away only by express words, and as there were no words in the Act that could be held to derogate from the prerogative of the Crown, the Judicial Committee held that Her Majesty's right to allow appeals as of grace in insolvency matters was not affected'.
There is however no prerogative right in the Crown to review the judgment of a Supreme Court in Canada upon an election petition. The subject-matter of the jurisdiction delegated to courts in regard to elections to a Legislative Assembly is of a special nature, and the transfer of such jurisdiction from the Legislature itself to a court of law does not imply that the final decision should belong to the Queen in Council3.
In advising Her Majesty whether to allow an appeal or not, the Judicial Committee will have regard not merely to the amount in dispute but to the importance of the questions involved.
1 38 Vic. c. 16.
3 Théberge v. Landry, 2 App. Cas. 102.
2 Cushing v. Dupuy, 5 App. Cas. 409.
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. Parsons' 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.