APPENDIX III BRITISH NORTH AMERICA ACT, 1867 SECTIONS 91 TO 95. DISTRIBUTION of Legislative POWERS. Powers of the Parliament. Section 91. It shall be lawful for the Queen, by and with the APP. III. advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, Legislative in relation to all matters not coming within the classes of Parliament authority of subjects by this Act assigned exclusively to the Legislatures of of Canada. 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. 3. The raising of money by any mode or system of taxation. 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. 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. II. 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. APP. III. Subjects of exclusive provincial 15. Banking, incorporation of banks, and the issue of paper 27. The criminal law, except the constitution of 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. 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. Exclusive Powers of Provincial Legislatures. Section 92. In each province the Legislature may exclusively make laws in relation to matters coming within the classes of legislation. subjects next hereinafter enumerated; that is to say— 1. The amendment from time to time, notwithstanding any- 3. The borrowing of money on the sole credit of the province. 5. The management and sale of the public lands belonging to 7. The establishment, maintenance, and management of tions in and for the province, other than marine APP. III. hospitals. 8. Municipal institutions in the province. 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 a. Lines of steam or other ships, railways, canals, b. Lines of steam ships between the province and any c. Such works as, although wholly situate within the II. The incorporation of companies with provincial objects. 14. The administration of justice in the province, including the courts, both of civil and criminal jurisdiction, and includ- 15. The imposition of punishment by fine, penalty, or im- 16. Generally all matters of a merely local or private nature in the province. Education. Section 93. In and for each province the Legislature may Legislation exclusively make laws in relation to education, subject and respecting 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 in the province at the union: (2) All the powers, privileges, and duties at the union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the same are hereby extended to the education. APP. III. Legislation for uniformity of laws in three provinces. Concurrent powers of Legislature respecting dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec : (3) Where in any province a system of separate or dissentient schools exists by law at the union or is thereafter established by the Legislature of the province, an appeal 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 Governor-General 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 Brunswick. Section 94. Notwithstanding anything in this Act, the Parliament of Canada may make provision for the uniformity of all or of the laws relative to property and civil rights in Ontario, any Nova Scotia, and New Brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any Act in 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. Section 95. In each province the Legislature may make laws in relation to agriculture in the province, and to immigration into the province; and it is hereby declared that the Parliament and immigra. of Canada may from time to time make laws in relation to agriculture tion. agriculture in all or any of the provinces, and 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. JUDICIAL CONSTRUCTION OF THE ABOVE SECTIONS. According to the ordinary rules of law, any Act passed by the Dominion Parliament on a matter which s. 92 of the British North America Act places within the exclusive legislative authority of the Provincial Legislature, and on the other hand any Act passed by the Provincial Legislature which is not within the authority conferred by s. 92 is ultra vires and void. And the validity of the Act can be raised in and determined by any court which has to deal with a case affected by the Act'. Various decisions therefore on the validity of Acts, both of the Dominion Parliament and the Provincial Legislatures, have been given by the Judicial Committee of the Privy Council, and still more by the Canadian courts, both those of the provinces and the Supreme Court of Canada 2. The decisions, especially those of the Judicial Committee, have laid down such clear principles that the appeals to the Queen in Council touching the validity of any Act have, of late years, been comparatively few. The principles laid down are as follows:- The Courts of Canada have decided that 'exclusive' in ss. 91 and 92 refers solely to the division of legislative powers between the Dominion Parliament and the Provincial Legislatures, and does not affect the power of the Imperial Parliament 3. The Judicial Committee has laid down that the legislative powers conferred both on the Dominion Parliament and the Provincial Legislature are plenary and not delegated powers, that therefore the principle of delegatus delegare non potest does not apply, and that although the limits of legislation are prescribed, yet within those limits the right of legislation is absolute, and the Local Legislature is supreme, and has the same authority as the Imperial Parliament to give a municipal body power to make by-laws*. The Judicial Committee also refused to entertain an argument derived from the possible abuse of power by the Provincial Legislature, saying that they could not conceive that when the Imperial Parliament conferred wide powers of local government 1 See Pope v. Griffith, 2 Cart. 291 (Q. B., Que.). • Collected in Cartwright's cases on British North America Act, 4 vols. (1882-92). Some illustrative cases are briefly stated below. 3 Smiles v. Belford, 1 Cart. 576 (Ct. of App., Ont.); R. v. Coll. of Phys. and Surgs., Ontario, 1 Cart. 761 (Q. B., Ont.). Hodge v. The Queen, L.R. 9 A. C. 117. See also R. v. Burah, L.R. 3 A.C. 889 as to India; and re Goodhue, 1 Cart. 560 (Ct. of App., Ont.). Powell v. Apollo Candle Co., L. R. 10 A. C. 282. See also Phillips v. Eyre, L. R. 6 Q. B. 1. APP. III. |