EFFECT OF REPEAL OF DOMINION LEGISLATION UPON PRE-CONFEDERATION PROVINCIAL LEGISLATION IN EADEM MATERIA.

On November 19th, 1858, Sir James Douglas, being properly authorized on that behalf, issued a Proclamation declaring that from that date the civil and criminal laws in England, as the same existed on November 19th, 1858, and so far as the same are not from local circumstances inapplicable, should constitute the laws governing the then Colony of British Columbia. This brought into force not only the common law but the statute law. We were then equipped with a legal system.

British Columbia entered Confederation on July 20th, 1871. For some extended period afterwards the Dominion parliament from time to time made certain Dominion statutes, coming within the classes of subjects comprised within section 91 of the British North America Act, apply to the province.

In 1874 by Chapter 42 the Dominion parliament extended to the province of British Columbia certain of the criminal laws which were then in force in other provinces of the Dominion. These Dominion statutes were very largely copies of English Acts which were already in force in the province by virtue of Sir James Douglas' proclamation.

In the year 1875 the Dominion parliament passed (chap. 16) the Insolvent Act, and by section 149 of that Act purported to continue certain Acts of the former colonies of Vancouver Island and British Columbia relating to bankruptcy in force until the first day of September, after which date they were to stand

repealed.

In 1886 the first revision of the statutes of the Dominion of Canada subsequent to Confederation came into force. Section 5, sub-section 2 of chap. 4 of

the Acts of that year bringing them into force is as follows:

"On, from and after such day, all the enactments in the several Acts and parts of Acts in such amended Schedule A mentioned shall, so far as the same are within the legislative authority of the Parliament of Canada, stand and be repealed to the extent mentioned in the third column of the said Schedule A."

The Schedule itself begins on page 2247 and it is to be noted that it is a schedule of Acts and parts of Acts repealed from the date of the coming into force of the Revised Statutes of Canada, so far as the said Acts and parts of Acts relate to matters within the legislative authority of the Parliament of Canada. The Revised Statutes of British Columbia are dealt with on page 2265 and following pages, and there are very nearly three pages of Acts which the Dominion parliament purported to repeal. A great many of these Acts are without doubt repealed not because they were expressly so repealed by legislative enactment of the parliament of Canada, but because the parliament of Canada having legislative authority over the subject matter, passed legislation which was repugnant to them.

In 1888 the statutes of British Columbia were also revised and the Commissioners for that revision, following the lead of the parliament of Canada, and assuming that the parliament of Canada had authority to repeal Colonial Acts and parts of Acts, passed before Confederation, the subject matter of which was exclusively within the control of the Dominion parliament, left out of the Revision of 1888 all those Acts and sections of Acts which the Dominion parliament had purported to repeal in the Revision of 1886, giving as their reference at the end of every section "Schedule 'A' of the Revised Statutes of Canada."

In 1897 there was a further revision of the Statutes of British Columbia, and the revisers purported and intended to include in that revision (either incorporating the Acts generally in the provincial statutes or treating them separately) the whole of the

statutes of the United Kingdom which in their opinion were not from local circumstances inapplicable to the province.

In August, 1896, the Judicial Committee of the Privy Council delivered one of the most important judgments or opinions ever expressed by that tribunal in relation to the powers of the Dominion and the Province with regard to their respective legislative jurisdiction.

The subject that the Judicial Committee then had under consideration was an appeal from a judgment of the Supreme Court of Canada upon a number of questions which had been submitted to the Supreme Court by the Governor-General in Council. The case itself has been very aptly called "The Local Prohibition Case." It is more accurately entitled "The Attorney-General for Ontario against the AttorneyGeneral for the Dominion and the Distillers and Traders' Association of Ontario."1

Their lordships' judgment is occupied almost exclusively with discussing the seventh question. That

question is as follows:

'Has the Ontario Legislature jurisdiction to enact s. 18 of

Ontario Act,

54 Vict. c. 46, intituled 'An Act respecting local option in the matLiquor License Acts,' as said section is explained by Ontario Act,

53 Vict. c. 56, intituled 'An Act to improve the

ter of liquor selling'?

In the course of their judgment in that case their

lordships said:

"It has been frequently recognized by this Board and it may now be regarded as settled law that according to the scheme of the British North America Act, the enactments of the Parliament

of Canada in

ride provincial legislation. But the Dominion parliament has no authority conferred upon it by the Act to directly repeal any provincial statute whether it does or does not come within the limits of jurisdiction prescribed by section 92."

So far as these are within its competency, must over

1

[1896] A. C. 348.

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That is to say the Dominion parliament cannot repeal a provincial statute in force in the province antecedent to Confederation notwithstanding the fact that the subject-matter of the intended repeal is one wholly within the power and jurisdiction of the Dominion parliament, i:e., the classes of subjects mentioned in section 91. What then becomes of the intended repeal of the numerous Acts and parts of Acts to which reference has already been made? The conclusion seems irresistible. But the further reading of the judgment of the Privy Council upon the subject seems desirable.

"The repeal of a provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactments of the Dominion, and if the existence of such repugnance should become a matter of dispute the controversy cannot be settled by the action either of the Dominion or of the provincial legislature, but must be submitted to the judicial tribunals of the country."

Their lordships then go on to apply the principle that they have just stated to the subject matter before them, and proceed as follows:

"It appears to their lordships that neither the Parliament of Canada nor the provincial legislature have power to repeal statutes which they could not directly enact. Their lordships had occasion, in Dobie v. Temporalities Board, to consider the power of repeal competent to the legislature of a province. In that case the legislature of Quebec had repealed a statute continued in force after the Union by s. 129, which had this peculiarity, that its provisions applied both to Quebec and to Ontario, and were incapable of being severed so as to make them applicable to one of these provinces only. Their lordships held that the powers conferred upon the provincial legislatures of Ontario and Quebec to repeal and alter the statutes of the old parliament of the province of Canada are made precisely co-extensive with the powers of direct legislation with which these bodies are invested by the other clauses of the Act of 1867 '; and it was beyond the authority of the legislature of Quebec to repeal statutory enactments which affected both Quebec and Ontario. The same principle ought, in the opinion of their lordships, to be applied to the present case. The old Temperance Act of 1864 was passed for Upper Canada, or, in other words, for the province of Ontario; and its provisions, being confined to that province only, could not have been directly enacted by the parliament of Canada. In the present case, the parliament of Canada would have no power to pass a prohibitory law for

the province of Ontario; and could therefore have no authority to repeal in express terms an Act which is limited in its operation to that province. In like manner the express repeal, in the Canada Temperance Act of 1886, of liquor prohibitions adopted by a municipality in the province of Ontario under the sanction of provincial legislation, does not appear to their lordships to be within the authority of the Dominion parliament.

The question must next be considered whether the provincial enactments of s. 18 to any, and if so what, extent come into collision with the provisions of the Canadian Act of 1886. In so far as they do, provincial must yield to Dominion legislation, and must remain in abeyance unless and until the Act of 1886 is repealed by the parliament which passed it."

The last section seems to decide that which might otherwise have been a moot question, namely, what is the effect of the passage by the Dominion of repugnant legislation and of its subsequent repeal? It seems clear that the result according to their lordships' opinion is that the provincial Act remains in

abeyance until,

as they state, the Dominion legislation

is repealed by the parliament which passed it.

The Dominion parliament and the revisers of the provincial statutes in 1888 and again in 1897, in the latter case subsequent in point of time to the decision of the Judicial Committee, both assume that the force or to repeal provincial legislation in force in Dominion parliament had jurisdiction to continue in the province at the time of Confederation, which related to matters falling within section 91 of the British

North America Act.

inasmuch

Insolvent Act clearly over-rode provincial legislation From 1875 to 1880 the existence of the Dominion as it was repugnant thereto. But when that Dominion legislation, that is to say The Insolvent Act of 1875 was repealed by the parliament which passed it, the provincial legislation which had remained in abeyance during the existence of the Dominion legislation on the same subject, again came into force. No one, however, seems to have noticed this because up to 1896, without, it is true, any serious enquiry on the subject, everyone connected apparently with the