« PrejšnjaNaprej »
money the signification of pleasure on Bills reserved,1-shall votes, &c. extend and apply to the Legislatures of the several Provinces as if those provisions were here re-enacted and made
ance of Provincial Acts. Sir John Macdonald laid down in a Memorandum in 1868 the general course that should be pursued with regard to this subject by the Dominion Government. 'In deciding whether any Acts of a Provincial Legislature should be disallowed or sanctioned, the Government must not only consider whether it affects the interests of the whole Dominion or not; but also whether it be unconstitutional, whether it exceeds the jurisdiction conferred on Local Legislatures, and, in cases where the jurisdiction is concurrent, whether it clashes with the legislation of the General Parliament; as it is of importance that the course of local legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution. Only in cases where the law and general interests of the Dominion imperatively demand it, the undersigned recommends that the following course be pursued: That, on receipt by your Excellency of the Acts passed by any Province, they be referred to the Minister of Justice for report, and that he with all convenient speed do report as to these Acts, which he considers free from objection of any kind; and, if such report be approved by your Excellency in Council, that such approval be forthwith communicated to the Provincial Government.
'That he make a separate report or separate reports on those Acts which he may consider:
1. As being altogether illegal and unconstitutional.
'2. As illegal or unconstitutional in part.
'3. In cases of concurrent jurisdiction, as clashing with the legislation of the General Parliament.
4. As affecting the interests of the Dominion generally: and that in such report or reports he gives his reasons for his opinions. "That when a measure is considered only partially defective, or when objectionable, as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication shall be had with the Provincial Government with respect to such measure, and that in such case the Act should not be disallowed if the general interests permit such a course, until the Local Government has an opportunity of considering and discussing the objection taken, and the Local Legislature has also an opportunity of remedying the defects found to exist.'. (Can. Sess. Papers, 1870, No. 35. See The Correspondence and Reports of the Minister of Justice and Orders in Council upon the Subject of Dominion and Provincial Legislation, by W. E. Hodgins, 1867-1903. Continued by F. H. Gisborne, 1904-6. Monro, Constitution of Canada, p. 260, points out that from 1867 to 1882, out of 6,000 Acts only 31 were disallowed; 14, however, were disallowed from 1883 to 1887.)
1 The power of reserving Bills was only given with the view of pro tecting Imperial interests and the maintenance of Imperial policy. Accordingly, in any Province the Lieutenant-Governor shall only reserve a Bill in his capacity as an officer of the Dominion and under instructions from the Governor-General,' (Sir John Macdonald in Can. Sess. Papers, 1886.)
applicable in terms to the respective Provinces and the
91. It shall be lawful for the Queen, by and with the Legisla advice and consent of the Senate and House of Commons, thority of to make laws for the peace, order, and good government ment of of Canada in relation to all matters not coming within the Canada. classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say :
1. The Public Debt and Property:
2. The regulation of Trade and Commerce:1
3. The raising of money by any mode or system of Taxation: 2
4. The borrowing of money on the Public Credit :
5. Postal Service:
6. The Census and Statistics :
7. Militia, Military and Naval Service, and Defence:
1 Compare language of American Constitution, Article 1, Sec. 8 (subsec. 3): 'The Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian tribes,' and that of the Commonwealth Constitution, Sec. 51 (subsec. 1), which gives power to Parliament to make 'laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries and among the States'.
* The Commonwealth Statute adds: 'but so as not to discriminate between States and parts of States.'
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada:
9. Beacons, Buoys, Lighthouses, and Sable Island: 10. Navigation and Shipping:
11. Quarantine and the establishment and maintenance of Marine Hospitals:
12. Sea Coast and Inland Fisheries:
13. Ferries between a Province and any British or Foreign Country, or between two Provinces:
14. Currency and Coinage :
15. Banking,1 Incorporation of Banks, and the issue of Paper Money:
16. Savings Banks:
17. Weights and Measures:
18. Bills of Exchange and Promissory Notes:
20. Legal Tender:
21. Bankruptcy and Insolvency:
22. Patents of Invention and Discovery:
24. Indians and Lands reserved for the Indians: 2
25. Naturalization and Aliens:
26. Marriage and Divorce:
27. The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters:
28. The establishment, maintenance, and management of Penitentiaries :
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces:
1 Compare language of the Commonwealth statute: 'Banking, other than State Banking.'
2 This section only applies while the lands are held in Indian occupation. (St. Catherine's Milling and Lumber Co. v. The Queen, 14 App. Cas. 46.)
And any matter coming within any of the Classes of Subjects enumerated in this section shall not be deemed to come within the Class of matters of a local or private nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.1
Exclusive Powers of Provincial Legislatures.
92. In each Province the Legislature may exclusively Subjects make laws in relation to matters coming within the Classes sive Pro of Subjects next hereinafter enumerated; that is to say:1. The amendment 2 from time to time, notwithstanding tion. anything in this Act, of the Constitution of the Province, except as regards the Office of LieutenantGovernor:3
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes:
3. The borrowing of money on the sole credit of the Province:
4. The establishment and tenure of Provincial Offices, and the appointment and payment of Provincial officers: 5. The management and sale of the Public Lands belonging to the Province,5 and of the timber and wood thereon:
6. The establishment, maintenance, and management of public and reformatory prisons in and for the Province.
7. The establishment, maintenance, and management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Provinces, other than Marine Hospitals:
8. Municipal Institutions in the Province:
1 On this section generally see note on Sections 91 and 92.
2 Under this provision, Manitoba, New Brunswick, and Prince Edward Island have abolished their Legislative Councils.
For notes 3 and 4 see Appendix, p. 297.
5 Public Lands' include mines and minerals. (Attorney General of British Columbia v. Attorney-General of Canada, 14 App. Cas. 295) Compare Sec. 109.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences, in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes:
10. Local works and undertakings, other than such as are of the following classes:
a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province:
b. Lines of Steam Ships between the Province and any British or Foreign Country:
c. Such works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces:
11. The Incorporation of Companies with Provincial Objects:
12. The Solemnization of Marriage in the Province: 13. Property and civil rights in the Province:
14. The Administration of Justice in the Province, in
cluding the constitution, maintenance, and organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including procedure in civil matters in those Courts:
15. The imposition of punishment by fine, penalty, or imprisonment for enforcing any Law of the Province made in relation to any matter coming within any of the classes of subjects enumerated in this Section: 16. Generally all matters of a merely local or private nature in the Province.2
1 Compare Sec. 51 (subsections xxxii-xxxiv) of Commonwealth Act. 2 The respective functions of the Dominion Parliament and of the Provincial Legislatures under Secs. 91 and 92 have given rise to much controversy and litigation. The general intention is to give to the Dominion Parliament authority to make laws for the general good government of the