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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 Imperial Parlia
Conflict of Imperial and
falling within these classes of subjects exists in each Legis-
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 Parliament 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'.
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.
3. The provincial Legislatures "are in no sense delegates Provincial Legislaof 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 limits of 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"."
4. Power to legislate on a particular subject implies the Implied right to legislate on incidental subjects necessary to an exercise of such power.
power of Legislation.
"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.
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 "."
General powers of
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, Cart. 349.
"Russell v. the Queen, 46 L. T., N. S. 889.
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 province3, 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.
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 point 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.
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.
3 Ib. s. 6.
1 B. N. A. Act, s. 16. 2 34 & 35 Vic. (i.) c. 28. s. 2.
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.