Education. 93. In and for each Province the Legislature may ex- Legisla clusively make laws in relation to Education, subject and according to the following provisions: (1) Nothing in any such law shall prejudicially affect country in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislatures. Were it possible to isolate and treat on a wholly separate footing the sixteen classes of subjects assigned to the Provincial Legislatures the case would be simple enough; but in fact some of the classes of subjects so assigned unavoidably run into and are embraced by some of the classes of subjects expressly assigned to the Dominion Parliament. To meet this difficulty in case of such overlapping pre-eminence was given to the Dominion Parliament. Notwithstanding, however, this provision, the Act cannot intend that the powers exclusively assigned to the Provincial Legislatures should be in consequence absorbed in those given to the Dominion Parliament. With regard, then, to certain classes of subjects, generally described in Section 91, legislative power continues to reside with regard to certain matters, falling within their general description, in the Legislatures of the Provinces. The language of the two sections must be read together and that of one interpreted and if necessary modified by the other. Thus a Provincial Act to secure uniform conditions in policies of fire insurance was held to be within the power of a Provincial Legislature notwithstanding the general power of the Dominion Parliament for the regulation of trade and commerce. Conversely, a general Temperance Act was held good; on the ground that it related to the peace, order, and good government of Canada, or to trade and commerce, although, in a sense, it dealt with 'property and civil rights'. Laws, it was said, designed for the promotion of public order, safety, and morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. Few if any laws could be made by Parliament for the peace, order, and good government of Canada which did not in some incidental way affect property and civil rights; it could not have been intended, when assuring to the Provinces exclusive legislative authority in the subjects of property and civil rights, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it. Confusion has perhaps been caused by the British North America Act refusing to recognize, except in the case of agriculture and immigration, concurrent powers in the Dominion Parliament and Provincial Legislatures; but inasmuch as subjects, which, in one aspect and for one purpose, fall within one section of the Act, may, in another aspect and for another purpose, fall within the other, the existence of concurrent authorities has not in fact been prevented. Thus while the Dominion Parliament deals with temperance legislation generally, a provincial statute may make regulations in the nature of police or municipal regulations of a merely local character, for the good government of taverns, &c., so long, of course, as they do not conflict with the general statute. tion respecting Education. any right or privilege with respect to Denominational Schools which any class of persons have by law in the Province at the Union;1 (2) All the powers, privileges, and duties at the Union by law conferred and imposed in Upper Canada on the Whatever may have been the intentions of the framers of the law, the Provincial Legislatures possess as plenary and ample powers within the limits prescribed by Section 92 as the Imperial Parliament in the plenitude of its power possessed or 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. Leading cases on the general interpretation to be placed on Sections 91 and 92 are Citizens and Queen Insurance Companies v. Parsons, Cartwright's Cases under B. N. A. Act, vol. i, 265; Russell v. The Queen, vol. i, 12; Hodge v. The Queen, vol. iii, 144; Attorney-General of Ontario v. Attorney-General of the Dominion, reported in Wheeler's Confederation Law of Canada, pp. 1042-74. A conference of representatives of the Dominion and the Provinces was held in March, 1910, with the object of arriving at an agreement as to the relative jurisdiction of Parliament and the Provincial Legislatures over commercial, financial, mining, and other companies. No agreement was arrived at, but there seems good ground for the opinion of the wellinformed Toronto correspondent of the Times that 'owing to the exercise of equal powers by the federal and the provincial authorities much uncertainty and confusion now prevail in this important field of legislation'. It would require a treatise to deal with the details of the subsections of these clauses as illustrated by the numerous cases. See the exhaustive notes in Wheeler, op. cit., and the cases under them in Cartwright, op. cit. See addendum to note on p. 297. 1 There must have been a right 'by law' and not merely by usage at the time of the Union. (See Maher v. Town of Portland, reported in Wheeler's Confederation Law of Canada, pp. 339-67.) Under the twenty-second section of the Manitoba Act, 1870, the provisions with regard to education were as follows: 'In and for the Province the said Legislature may exclusively make laws in relation to education, subject and according to the following provisions: (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools, which any class of persons have by law or practice in the Province at the Union. '(2) An appeal shall lie to the Governor-General in Council from any Act or decision of the Legislature of the Province, or of any Provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. '(3) In case any such provincial law, as from time to time seems to the Governor-General in Council requisite for the due execution of the provi separate Schools and School Trustees of the Queen's Roman Catholic Subjects, shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec ; (3) Where in any Province a system of separate or sions of this section, is not made, or in case any decision of the GovernorGeneral in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case and so far only as the circumstances of such case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section.' At the time of the entrance of Manitoba into the Union, there was no law or regulation or ordinance in force respecting education. There were in fact denominational schools existing; but the Public Schools Act of 1890 having introduced a general system of secular education the Privy Council held in City of Winnipeg v. Barrett, Wheeler, op. cit., pp. 371-6, that the establishment of a national system of education upon an unsectarian basis might exist side by side with the right to set up and maintain denominational schools, and that the existence of the latter did not necessarily imply or involve immunity from taxation for the purposes of the former. That a system of denominational education had been established subsequent to the Union did not change the situation. In the subsequent case of Brophy v. Attorney-General of Manitoba, Wheeler, op. cit., pp. 376-88, it was held that the right of appeal under subsection 2, and the power reserved to the Dominion Parliament under subsection 3, were not bound by the provision of subsection 1, with regard to the state of things existing at the Union, but could be enforced generally when equitable grounds existed. The effect of the Privy Council decision was thus to shift the burden of action upon the shoulders of the Dominion Government, which was placed in a very difficult position. They found themselves in conflict either with the Manitoba Government or with the Roman Catholic hierarchy. Still the methods adopted by Sir Mackenzie Bowell's administration were needlessly unconciliatory and aggressive. A remedial order was promptly served upon the Manitoba authorities, which was met by a refusal couched in moderate and conciliatory language. The attempt to force through the Dominion Parliament a remedial Bill in 1896 was one of the causes which led to the downfall of the Conservative Ministry. The measure was unpopular with many Protestant supporters of the Government, and, in the face of deliberate obstruction, Parliament came to an end by effluxion of time before its enactment as law. In the following year a compromise was arrived at between the new Liberal Government and the Manitoba Ministry. Under this, religious teaching can be given in the public schools under certain circumstances and under certain conditions by clergymen or Roman Catholic teachers. There are excellent chapters on 'The School Question' and 'The School Settlement' in Willison's Sir W. Laurier and the Liberal Party, vol. ii, 201-77. It is noteworthy that when in 1905 the new Provinces of Saskatchewan Legisla uniformi Dissentient Schools exists by law at the Union or is thereafter established by the Legislature of the Province, an appeal1 shall lie to the Governor-General in Council from any act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's Subjects in relation to Education; (4) In case any such Provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this Section is not made, or in case any decision of the GovernorGeneral in Council on any appeal under this Section is not duly executed by the proper Provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this Section, and of any decision of the Governor-General in Council under this Section. Uniformity of Laws in Ontario, Nova Scotia, and New 94. Notwithstanding anything in this Act, the Parliation for ment of Canada may make provision for the uniformity of ty of laws all or any of the laws relative to property and civil Provinces. rights in Ontario, Nova Scotia, and New Brunswick, and of in three the procedure of all or any of the Courts in those three Provinces, and from and after the passing of any Act in and Alberta were set on foot, the Dominion Government sought to secure for denominational schools a position similar to what they possess in Quebec and Ontario. The proposal was fiercely opposed; and finally a compromise was arrived at, under which power was given to bodies representing denominational schools to appoint teachers to give religious instruction at prescribed times. Roman Catholic trustees selected under the Separate Schools Act of 1863 having refused to conduct their schools in accordance with regulations made by the Department of Education, the Ontario Legislature thereupon passed an Act (5 G. V, ch 45) giving the Minister power to appoint a commission in which should vest the powers of the trustees. It was held that such Act was ultra vires, since it prejudicially affected the right or privilege conferred by the Act of 1863. (Trustees of the Roman Catholic Separate Schools of Ottawa v. Ottawa Corporation, A. C. 1917, p. 76.) 1 An amendment to this effect to No. 43 subsection (6) of the Quebec Resolution was moved by Mr. Galt at the Conference in London on December 4th, 1866, and carried. (See Pope's Confederation Documents, 1895, p. 112.) that behalf, the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making provision for such uniformity shall not have effect in any Province unless and until it is adopted and enacted as law by the Legislature thereof. Agriculture and Immigration. rent lation re 95. In each Province the Legislature may make laws in Concurrelation to Agriculture in the Province, and to Immigration powers into the Province; and it is hereby declared that the Parlia- of Legisment of Canada may from time to time make laws in specting Agriculrelation to Agriculture in all or any of the Provinces, and ture, &c. to Immigration into all or any of the Provinces; and any law of the Legislature of a Province, relative to Agriculture or to Immigration, shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VII. JUDICATURE. ment of 96. The Governor-General shall appoint the Judges of Appointthe Superior, District, and County Courts in each Province, Judges. except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the laws relative to property and civil rights Selection of Judges in Ontario, Nova Scotia, and New Brunswick, and the pro- in Onta cedure of the Courts in those Provinces, are made uniform, rio, &c.; the Judges of the Courts of those Provinces appointed by the Governor-General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected In Quebec. from the Bar of that Province. office of 99. The Judges of the Superior Courts shall hold office Tenure of during good behaviour, but shall be removable by the Judges of Governor-General on address of the Senate and House of Superior Commons. Courts. 100. The salaries, allowances, and pensions of the Salaries, Judges of the Superior, District, and County Courts (except Judges. &c., of |