Puslapio vaizdai
PDF
„ePub“

constitution of the province, but this power does not extend to the office of lieutenant-governor because he represents the crown. On the other hand, a provincial legislature may increase the powers and duties germane to the office. The general power, outside this limitation, is not free from obscurities. It cannot be exercised in the widest sense, otherwise it might be used to destroy the federation. It would also appear that a province has not the power to legislate by the initiative and referendum. Legislature', as used in the British North America Act of 1867, connotes a representative house, and the power granted to a province of amending its constitution does not include such an absolute change in the provincial constitution as would destroy the nature of the legislature and give the legislative power to those possessed of the provincial franchise who are not a legislature' within the meaning of the constitution. The privy council raised more technical objections, as such proceedings appeared to affect vitally the office of lieutenant-governor.4

The privileges of the Canadian legislatures are on a clear foundation. The extraordinary privileges of the British house of commons are part of the lex et consuetudo parliamenti, and can only be claimed by Canadian legislatures under statutory enactment. When this legislation validly takes place there is no ambiguity. The privileges of the dominion parliament are governed by the British North America Acts of 1867 and of 1875,5 the latter of which gives the Canadian parliament power

1 Attorney-General for Canada v. Attorney-General for Ontario (1890), 20 Ontario Reports, 222.

2 Cf. Ramsay J. in ex parte Dansereau, 19 L. C. J. 210, 224–5.

3 Re Initiative and Referendum Act, 1916, 27 Manitoba Law Reports, 1. 4 Re Manitoba Initiative and Referendum Act, [1919] A. C. 935; 35 Times Law Reports, pp. 630 ff.

5 Kennedy, op. cit., pp. 667, 695. The Act of 1875 was passed because in 1868 and in 1873 dominion legislation had conferred powers on committees to examine witnesses on oath, a privilege not possessed by the imperial parliament in 1867 (Canada Sessional Papers, 1876, No. 45).

to bring its practice into line with contemporary practice in the British parliament. In the provinces after federation legislation conferring privileges met with varying success at the hands of the dominion cabinet. There was a tendency for the minister of justice to consider such legislation ultra vires, but there was no consistency of treatment. The matter was finally settled in 1896, when the judicial committee of the privy council laid it down that, as the powers of the legislatures at federation were continued, among which was full authority to enact such laws as they pleased on the subject of their privileges, provincial legislation in this connexion was valid. They also held that the power was competent under the constitutional authority granted the provinces to change their constitution.1 All the provinces have laid down their parliamentary privileges by legislation, which is now beyond dispute.

Canada does not possess a system of federal courts such as exists in the United States. The constitution, however, makes provision for the creation of such a system by the parliament of the dominion. The provinces have exclusive power to constitute and to organize courts for provincial purposes of both civil and criminal jurisdiction. The provincial legislatures can regulate the procedure in civil matters. The dominion. parliament may impose new duties upon existing provincial courts, and may give them new powers in the matter of subjects not assigned exclusively to the provinces. The constitution provides that the judges of the superior, district, and county courts in the provinces must be paid by the dominion, and their appointment must lie with the governor-general, subject to certain regulations connected with the provincial bars and to the exclusion of the probate courts of the Maritime Provinces.2

1 Fielding v. Thomas, [1896] A. C. 600.

2 There has been much irritation between the dominion and the provinces owing to attempts by the latter to regulate certain judicial appointments. See inter alia an important report of Sir John Thompson in Provincial Legislation, 1867–95, p. 538 and in Lefroy, Legislative Power in Canada, pp. 140 ff.

The provincial courts deal with all matters of litigation under federal and provincial law. They also hear election petitions and have jurisdiction in cases of controverted elections. They have also imposed on them the duty of giving opinions on the constitutionality of Acts for the guidance of the provincial executives, and from these opinions no appeal lies to the supreme court of Canada, not even by provincial legislation.1 Criminal law and criminal procedure are controlled exclusively by the federal government.

The tenure of judicial office is regulated by law. The judges of the superior courts hold office during good behaviour, and they can only be removed by the governor-general on address of the senate and house of commons. Their salaries do not depend on annual votes, but are placed on the civil list. The same terms of tenure are applied to judges of the supreme court by Canadian legislation.3 County court judges hold office during good behaviour and residence in their respective jurisdictions. The governor-general in council can, however, remove them for misdemeanours, incapacity, failure in the performance of duty owing to age, ill health, or any other cause. The circumstances leading up to a possible removal must be fully inquired into after due notice given to the judge concerned, who must be afforded an opportunity to be heard, to cross-examine witnesses, and to bring in evidence on his own behalf. If he is removed, the order in council covering such removal, the correspondence, reports, and evidence, must be laid before parliament within the first fifteen days of the next session.4

There are only two federal courts in Canada-the supreme court and the court of exchequer and admiralty. The latter deals with patents, trade-marks, and such-like, and has an original jurisdiction in revenue cases concurrent with the 1 Union Colliery Company v. Attorney-General for British Columbia, 27 S. C. R. 637. See, however, p. 399, note.

2 British North America Act, 1867, ss. 99, 100.

3 Revised Statutes of Canada (1906), c. 139, s. 9.

Ibid., c. 138, s. 28.

provincial courts, and to it alone belong cases against the crown and petitions of right in the federal area. The former consists of a chief justice and five puisne judges, and possesses an appellate jurisdiction, criminal and civil, throughout Canada. There is no court of criminal appeal similar to that in England, but questions of law arising in a criminal trial may be reserved and brought before the provincial court of appeal, and if that court is not unanimous, the person convicted may appeal to the supreme court of Canada. In civil cases an appeal lies, generally speaking, to the supreme court from all final judgements of the highest courts of final resort. This appellate jurisdiction varies in connexion with different provinces and is governed by federal legislation. The federal parliament has the power to allow appeals to the supreme court from provincial judgements and courts even though such judgements are not final and such courts not courts of final resort.1 Provincial legislation cannot interfere with the jurisdiction granted by federal legislation to the supreme court. No province can prevent appeals in all cases from the provincial courts, if the federal parliament has not itself limited the right of appeal. Nor can a provincial legislature grant powers of appeal where such are limited by federal authority. The supreme court has also an appellate jurisdiction in cases of controverted elections, and from its decisions in such cases the privy council will not receive appeals.3 The governor-general in council has the power to obtain opinions by direct answers from the supreme court on any question of law or fact. The answers are not binding on the governor-general in council, nor on Canadian judges in any specific cases, but they are treated as final judgements for purposes of reference to the privy council.

2

An anomalous situation exists in connexion with divorce. At 1 L'Association St. Jean-Baptiste de Montréal v. Brault, 31 S. C. R. 172. Ĉf. Revised Statutes (1906), c. 139, ss. 38, 40.

2 Crown Grain Company Limited v. Day, [1908] A. C. 504.

3 Théberge v. Laudry, 2 App. Cas. 102.

federation the exclusive right of legislating in matters of divorce was conferred on the federal parliament, but the powers to grant divorce already belonging to certain of the provinces were not abrogated. As a consequence, the courts of Nova Scotia, New Brunswick, and British Columbia continued to possess such jurisdiction, being already vested with it before entering federation.1 There was a general opinion that none of the other provinces possessed such rights. In order to destroy inequalities it seemed reasonable that the federal legislature should create uniformity. Quebec, however, proved hostile, and as no government appeared anxious to create a situation which would antagonize that province when there was another way out, the plan was adopted of granting divorces by federal legislation. The senate investigates applications and the house of commons accepts their decisions as a rule, without however surrendering its rights to review or to reject them. Recently this arrangement has received a rude shock. It now appears that the courts of Manitoba, Alberta, and Saskatchewan possess a jurisdiction in divorce. There thus arises the curious situation that citizens of Quebec, Ontario, and possibly Prince Edward Island who wish to begin divorce proceedings must resort to the cumbersome and expensive method of federal legislation. In a recent debate on a private member's bill, the late government approved the suggestion of a regular federal system of divorce. The approval is interesting, as Quebec would undoubtedly oppose legislation. It might be possible for the federal parliament to exclude Quebec from the scope of such a system, as it would appear constitutional to pass a locally restricted dominion

1 For the settling of doubts concerning British Columbia, see Watts v. Attorney-General for British Columbia, [1908] A. C. 573.

2 See Board v. Board, [1919] A. C. 956; Walker v. Walker, [1919] A. C. 947.

3 Under a statute of Prince Edward Island, 5 William IV, c. 10 (1836), the lieutenant-governor and council have jurisdiction in all matters of marriage and divorce. The power has long been disused.

« AnkstesnisTęsti »