Valin v. Langlois

Valin v. Langlois
Collection
Supreme Court Judgments
Date
1879-10-28
Report
(1879) 3 SCR 1
Judges
Ritchie, William Johnstone; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Strong, Samuel Henry; Gwynne, John Wellington
On appeal from
Quebec
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Valin v. Langlois, (1879) 3 SCR 1
Date: 1879-10-28
CONTROVERTED ELECTION OF THE COUNTY OF MONTMORENCY.
P. V. VALIN
Appellant;
And
JEAN LANGLOIS
Respondent.
1879: Jun 9; 1879: Oct 28
PRESENT: Ritchie, C. J., and Fournier, Henry, Taschereau and Gwynne, J. J.: Strong, J., though present at the argument, was absent from illness when judgment was delivered.
Dominion Parliament, plenary powers of legislation of—The Dominion Controverted Elections Act 1874 Jurisdiction of Provincial Superior Courts Power of Dominion Parliament to alter or add to civil rights Procedure—British North America Act, secs. 18, 41, 91 sub-secs. 13 & 14 of sec, 92, and secs 101 & 129 Dominion Court,
The Dominion Parliament by “The Dominion Controverter Elections Act, 1874," imposed on the Provincial Superior Courts and the Judges thereof the duty of trying controverter elections of members of the House of Commons.
After the General Election of 1878, the Respondent fyled an election petition in the Superior Court for Lower Canada against the return of the Appellant as the duly elected member for the electoral district of Montmorency for the House of Commons» The Appellant objected to the jurisdiction of the Court, held by Meredith C. J. on the ground that The Dominion Controverter Elections Act, 1874," was ultra vires.
Held, affirming the judgment of Meredith, C. J., 1st. That " The Dominion Controverter Elections Act 1874" is not ultra vires of the Dominion Parliament and whether the Act established a Dominion Court or not the Dominion Parliament had a perfect right to give to the Superior Courts of the respective Provinces and the Judges thereof the power and impose upon them the duty of trying controverter elections of members of the House of Commons, and did not, in utilizing existing judicial officers and established Courts to discharge the duties assigned to them by that Act, in any particular invade the rights of the Local Legislaturas.
2. That upon the abandonment by the House of Commons of the jurisdiction exercised over controverted elections, without express legislation thereon, the power of dealing therewith would fall, ipso facto, within the jurisdiction of the Superior Courts of the Provinces by virtue of the inherent original jurisdiction of such Courts over civil rights.
3. That the Dominion Parliament has the right to interfere with civil rights, when necessary for the purpose of legislating generally and effectually in relation to matters confided to the Parliament of Canada.
4. That the exclusive power of legislation given to Provincial Legislatures by subsec. 14 of sec. 92 B. N. A. Act over procedure in civil matters, means procedure in civil matters within the powers of the Provincial Legislatures.
5. Per Ritchie, C. J., and Taschereau and Gwynne, J. J., that "The Dominion Controverted Election Act, 1874," established, as the Act of 1873 did, as respects elections, a Dominion Court.
APPEAL from a judgment rendered by Meredith, C. J., ([1]) in the Superior Court for Lower Canada District of Quebec, dismissing the preliminary objections of the Appellant to an election petition brought by the Respondent under the Dominion Controverted Elections Act 1874, against the return of the Appellant, as member of the House of Commons for the electoral District of Montmorency.
The main question which arose on the preliminary objections, and on this appeal, was, whether the Dominion Parliament could legally impose on the Superior Court of the Province of Quebec, and the Judges thereof, the duty of trying Controverted Elections of members of the House of Commons.
Mr. Pelletier, Q. C., for Appellant:—
The Dominion Controverted Elections Act of 1874 did not create a Dominion tribunal but invested with new attributes the Superior Court of the Province of Quebec and its Judges. The federal principle has for its end to preserve and protect the autonomy of the provinces, and the British North America Act has enumerated the rights and duties of every one of them. By the 92nd section of that Act, in each province, the Legislature has an unlimited authority and a power beyond control to make laws in relation to the constitution, maintenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts. If so the Federal Parliament cannot add to, take from, or extend the jurisdiction of provincial tribunals. All the Judges agree on this point. Wilson, J., in the Niagara case ([2]) holds that "The Dominion Parliament has not the power to en large or diminish the jurisdiction of the Provincial Courts." Meredith, C. J., in this case says: “I do not question the proposition, that under the Act of Con federation the Dominion Parliament cannot enlarge the jurisdiction of the Provincial Courts." Stuart, J., in the case of Belanger v. Caron ([3]), says; " There can be no doubt that the Dominion Parliament is prohibited from making laws in relation to any Court of this Province and in relation to the administration of justice by it." Casault, J., in the case of Guay v. Blanchet ([4]), says: " To concede to the Federal Parliament the power to make the Provincial tribunals, for federal objects, federal courts, is to acknowledge that it has the right to determine the questions to be liti gated, and the jurisdiction, and the manner in which the Courts are to exercise it."
McCord J. in the Bellechasse case ([5]) held that the Parliament of Canada has no power to extend the jurisdiction of the Superior Court of the Province of Quebec. Now, the Superior Court of the Province of Quebec owes its existence to an Act of the Province of Quebec, and its jurisdiction is such as the Code of Procedure established and is circumscribed by the limits of the Province. There is nothing to show that this Court ever had before Confederation the power to try an election petition, and under sec. 92, No. 14, of the British North America Act, the Provincial Legislatures have no authority to legislate upon the subject of controverted elections for the House of Commons. This power exists in the Dominion Parliament but if the Dominion Parliament has no power to give to the Superior Court the jurisdiction of the Circuit or of other Courts, on what principle can they give to such a Court, whose maintenance and organization are' exclusively under the control of the Provincial Legislature, the exclusive jurisdiction which has always belonged to the House of Commons of pronouncing upon the validity of the election of its members? Suppose the Provincial Legislature had abolished the Superior Court immediately after the passing of this Act, would the Superior Court still be said to exist under this Act? A tribunal exists only when its judgments and decisions are invested with an authority which allows them to compel their execution. The judgment of the Superior Court is not valid outside of the limits of the Province, and unless this Act extends the jurisdiction of that Court beyond the territorial limits of the Province, the Court is powerless to decree that a member has not the right to sit in the House of Commons. I submit that the Dominion Parliament has not the power of extending the jurisdiction of a Provincial Court, and that an election petition against the return of a member for the House of Commons can only be tried by a Dominion Court.
It is also contended, a new court was created. Where do we find the elements constituting such a Court? Is it because the Act refers the petitions to the Superior Court, which exists already? Is it in the fact that the Court is presided, over by a judge holding no commission, but already appointed to hold the Superior Court, or because the officers directed to act are the officers of the Superior Court, provincial employees, over "whom the Federal Government has no control? On the contrary, is it not evident that it was not the intention to create a new tribunal l as Mr. Justice McCord says, in the case 01 Deslauriers v. Larue in re The Controverted Election of Bellechasse ([6]):" That the Dominion Controverted Elections Act 1874 does not intend to create a Dominion Court is apparent from the fact that it repeals the Controverted Elections Act 1873 which did create a Dominion Court, and that instead of substituting other provisions for the same purpose, it provides by section 3, that an election petition shall be tried by a provincial court as if such petition were an ordinary cause within its jurisdiction. From the difference between the two statutes, it is evident, not only that the Federal Parliament in passing the later one did not intend to create an additional court, as it had the power to do under section 101 of the British North America Act, but that it actually intended to not create one.
See also Mr. Justice Wilson's judgment in the Niagara case ([7]).
By the Act of 1873 the Judge, as an individual, was charged to try Controverted Elections, but the Act of 1874 says it is the Superior Court which is to try elections.
By section 30 of the Dominion Act, the Court is to report to the Speaker the result of the trial. What jurisdiction can he exercise to determine as to the right to a seat in a parliament held in another Province? Then we have the 11th and 13th secs. of the Act as to fixing the time and place of trial, all of which proves sufficiently that it was the intention of the Parliament to give this Court the additional jurisdiction to try election petitions.
It is said that under the 4th section a special tribunal has been created, from the fact that it is called “Court of Record." Supposing that such be the case, that tribunal would be imperfect; for the petition would be presented before the ordinary Superior Court, and in virtue of sections 11 and 13, the Superior Court only could fix the trial. This section, moreover, is only the reproduction of sec. 29 of 31 and 32 V., c. 125, and it was never contended there that these words had made a new or distinct tribunal of the Court of Common Pleas. It is the special Court, which the Judge presides over during the trial, which section 48 constitutes a Court of Record. The Courts to which Parliament has referred the Controverted Elections are still Provincial Courts. The provisions of this section have not deprived them of their character.
See Judge casault's judgment on this point in Guay v. Blanchet ([8]).
Appellant further contends that the contestation of an election does not constitute a civil right and form de piano part of the jurisdiction of the civil courts of the Province of Quebec, and does not involve any civil plea, cause or matter, or any right, remedy, or action of a civil nature, such as contemplated by the laws from which the Superior Courts and the Judges thereof derive their jurisdiction.
It is a political right which the Respondent is praying the Court to have enforced; viz., that the Appellant be declared by the Court to be the legal representative of the electors of the constituency of Montmorency. This surely is not a civil but a political matter.
The learned counsel referred to the judgments of McCord J. in the Bellechasse case (not reported), and. of Casault, J., in the Levis case ([9]), and. commented at length on the cases therein cited in support of this branch of his argument; concluded by contending that, even if the Superior Courts had power to decide controverted elections on account of their original jurisdiction, that power would be in a latent state, since the Dominion Parliament cannot frame rules of procedure for Provincial Courts.
Mr. Langlois, Q. C, (the Respondent):—
The first case I will rely upon is the case of Bruneau v. Massue ([10]). In that case Dorion, C. J., said that the J Judges as citizen were bound to perform all the duties which are imposed upon them by either the Dominion or the Local Legislature, provided neither Legislature had exceeded the limits of its legislative power." I contend that the only answer Judges can give to Parliament is that all their time is taken up in the discharge of the administration of justice and they are unable to execute their laws, but they can't say to parliament " you have no right to call upon us to carry out your laws." But when, as in this case, the Judge says: " I voluntarily execute powers given to me by an authority who has exclusive legislative power over the subject matter, " I cannot see how it can be expected that this Court will say, this Judge wants to exercise a power he has no right to exercise.
As to the first objection that the Controverted Elections Act of 1874 does not create a Dominion Court. I admit that it does not specifically say that the Superior Court will be a Dominion Court but indirectly such a Court has been created under sec. 48. It is true it is the only section which says it is a Court of Record, but that is sufficient. It cannot be denied that the Dominion Parliament had the right to say that certain persons should perform the duties of trying election petitions. Now, this is all that has been done, for it is easy to ascertain who are the Judges of the Superior Courts, and, if so, they are empowered to act by this Statute, and they can do so constitutionally. As to the Dominion Parliament having no authority to enlarge the jurisdiction of Provincial Courts, I contend that giving to these judges the right to try election petitions does not enlarge their jurisdiction. The fact of a Judge of a Court exercising judicial powers in virtue of a Statute which the legislative body had power to pass, does not enlarge the jurisdiction of that Court. If so, any legislation on insolvency, and other matters exclusively under the control of the Dominion Parliament, would be enlarging the jurisdiction of the Courts, who are bound to administer the laws of the Dominion Parliament, as well as the laws of the Provincial Legislatures.
Whether you call petitioning against the return of a member exercising a political or civil right, it is immaterial The only distinction in law matters is between civil and criminal matters. There is no political matter in law as distinguished from civil or criminal matters.
The last objection is that which has reference to the jurisdiction of the Dominion Parliament over procedure. I submit that if the Dominion Parliament has the right to legislate who shall try election petitions, the procedure must follow the whole subject. The exclusive power of the Provincial Legislatures as to the regulation of procedure can only extend to matters over which they have exclusive authority, viz., over civil matters, and certainly not matters over which the Dominion Parliament has exclusive legislative power, such as procedure in regard to insolvency.
It was also said that certain sections of the Act show that the duties assigned are to be performed by the Court, and not by the Judge. The answer to this objection is to be found in sec. 3 of the Act which declares that the expression the Court means any one of the Judges of the Court, and it may be well to remark that all the duties imposed may be discharged by one single Judge. The election cases of Montreal Centre ([11]) and of Argenteuil ([12]) were also relied upon.
THE CHIEF JUSTICE:
This is an appeal from, the judgment of Mr. Chief Justice Meredith, dismissing the preliminary objections of the Appellant, and declaring u The Dominion Controverted Elections Act, 1874," to be not ultra vires of the Dominion Parliament; and the correctness of this determination is the only question now in controversy.
This, if not the most important, is one of the most important questions that can come before this court, inasmuch as it involves, in an eminent degree, the respective legislative rights and powers of the Dominion Parliament and the Local Legislatures, and its logical conclusion and effect must extend far beyond the question now at issue. In view of the great diversity of judicial opinion that has characterized the decisions of the provincial tribunals in some provinces, and the judges in all, while it would seem to justify the wisdom of the Dominion Parliament, in providing for the establishment of a Court of Appeal such as this, where such diversity shall be considered and an authoritative declaration of the law be enunciated, so it enhances the responsibility of those called on in the midst of such conflict of opinion to declare authoritatively the principles by which both Federal and local legislation are governed.
Previously to Confederation, the Governor or Lieutenant Governor, Council and Assembly in the respective Provinces of Canada, Nova Scotia and Nexo Brunswick, formed a legislative body of the Province, subordinate, indeed, to the Parliament of the Mother Country and subject to its control, but, with this restriction, having the same power to make laws binding within the Province that the Imperial Parliament has in the Mother Country; and the propriety and necessity of such enactments were within the competency of the Legislature alone to determine. As the House of Commons in England exercised sole jurisdiction over all matters connected with controverted elections except so far as they may have restrained themselves by statutory restrictions, the several Houses of Assembly always claimed and exercised in like manner the exclusive right to deal with, and be the sole judges of, election matters, unless restrained in like manner, and this claim, or the exercise of it, I have never heard disputed; on the contrary, it is expressly recognized as existing in the Legislative Assemblies by the Privy Council in Thé berge vs. Landry ([13]). When the Provinces of Canada, Nova Scotia and New Brunswick sought " to be " federally united into one Dominion, under the Crown " of the United Kingdom of Great Britain and " Ireland, with a constitution similar in principles "to that of the United Kingdom," it became absolutely necessary that there should be a distribution of legislative powers, and so we find the exclusive powers of the Provincial Legislatures very specially limited and defined, while legislative authority is given to the Parliament of Canada to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by the 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, it is declared that, notwithstanding anything in the act, the exclusive legislative authority of the Dominion of Canada shall extend to all matters coming within the classes of subjects next thereinafter enumerated. It will be observed that of the classes of subjects thus enumerated, either in respect to the powers of the Provincial Legislatures or those of the Parliament of Canada, there is not the slightest allusion, direct or indirect, to the rights and privileges of Parliament, or of the Local Legislatures, or to the election of Members of Parliament, or of the Houses of Assembly, or the trial of controverted elections, or proceedings incident thereto. The reason of this is very easily found in the Statute, and is simply that, before these specific powers of legislation were conferred on Parliament and on the Local Legislatures, all matters connected with the constitution of Parliament and the Provincial Constitutions had been duly provided for, separate and distinct from the distribution of legislative powers, and, of course, overriding the powers so distributed; for, until Parliament and the Local Legislatures were duly constituted, no legislative powers, if conferred, could be exercised.
Thus, we find that, immediately after declaring that there shall be one Parliament of Canada, consisting of the Queen, Senate and the House of Commons, the Imperial Act provides for the privileges of those Houses in these terms:—
The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons and by the Members thereof, respectively, shall be such as are from time to time defined by the Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.
And, after declaring what the constitution of the House of Commons shall be and defining the electoral districts of the four Provinces, it makes provision for the continuance of existing election laws until Parliament of Canada otherwise provides in these words:—
Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to the following matters, or any of them, namely:—The qualifications and disqualifications of persons to be elected or to sit or vote as Members of the House of Assembly or Legislative Assembly in the several Provinces, the voters at elections of such Members the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at elections, the periods during which the elections may be continued, the trial of controverted elections, and proceedings incident thereto, the vacating of seats of Members, and the execution of new writs in case of seats vacated otherwise than by dissolution, shall respectively apply to elections of Members to serve in the House of Commons for the same several Provinces ([14]).
And by the 31 Vic., Cap. 23, it is enacted that:
The Senate and the House of Commons, respectively, and the Members thereof, respectively, shall hold, enjoy and exercise such and the like privileges, immunities and powers as at the time of the passing of the British North America Act 1867 were held enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof, so far as the same are consistent with and not repugnant to the said Act, such privileges, &g. shall be deemed part of the General and Public Law of Canada and it shall not be necessary to plead the same, but the same shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.
In England as is well known, before 1770, controverted elections were tried and determined by the whole House of Commons, or, for a time, by special committees, and by committees of privileges and elections. This was succeeded by the Grenville Act the principle of which was to select committees for the trial of election petitions by lot. This Act, in 1773, was made perpetual, but not without the expression of very strong opinions against the limitations imposed by it upon the privileges of Parliament ([15]).
In 1839, an act passed (Sir Robert Peels Act) establishing a new system upon different principles, and it was not till 1868 after Confederation, that the jurisdiction of the House of Commons, in the trial of controverted elections was transferred by statute to the courts of law. Very much the same course of procedure, up to and after the time of Confederation, prevailed in some if not all of the Provinces.
But in 1873 the Dominion Parliament passed an Act to make better provision respecting election petitions and matters relating to controverted elections and Members of the House of Commons and established Election Courts, the judges of which Were to be judges of Supreme or Superior Courts of the Provinces, provided the Lieutenant Governors of the Provinces, respectively should by order made by and with the advice and consent of the Executive Council thereof have authorized and required such judges to perform the duties thereby assigned to them, the intervention of the Legislature not being required, or, apparently, deemed necessary. This Act was repealed by the 37 Vic, cap. 10, " An Act to make better provision for the trial of Controverted Elections of Members of the House of Commons, and respecting matters connected therewith." This last Act, it is now contended, is ultra vires. The constitutionality of the Act of 1873, though questioned, as I understand, by one judge in Quebec, is, I believe admitted, by all those who now think the Act of 1874 ultra vires to have been intra vires of the Dominion Parliament.
In determining this question of ultra vires too little consideration has, I think, been given to the constitution of the Dominion, by which the legislative power of the Local Assemblies is limited and confined to the subjects specifically assigned to them, while all other legislative powers, including what is specially assigned to the Dominion Parliament is conferred on that Parliament; differing in this respect entirely from the constitution of the United States of Ámerica, under which the State Legislatures retained all the powers of legislation which were not expressly taken away. This distinction, in my opinion, redness inapplicable those American authorities, which appear to have had so much weight with some of the learned judges who have discussed this question. And, as a consequence, too much importance has, I humbly think, been attached to section 101, which provides for the establishment of any additional courts for the better administration of the laws of Canada and to sub-sections 13 and 14 of section 92 which vest in the Provincial Legislatures the exclusive powers as to property and civil rights in the Provinces and "the administration "of justice in the Provinces, including the constitution, " maintenance and organization of Provincial Courts " both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts."
The establishment of additional courts for the better administration of the laws of Canada was primarily I think, intended to apply, when deemed necessary and expedient, rather to the general laws of the Dominion than to matters connected with the privileges immunities and powers of the Senate and House of Commons, though., of course, those might, incidentally, if so provided, come within the jurisdiction of such tribunals; that the property and civil rights referred to L were not all property and all civil rights, but that the terms "property and civil rights" must necessarily be read in a restricted and limited sense, because many matters involving property and civil rights are expressly reserved to the Dominion Parliament of which the first two items in the enumeration of the classes of subjects to which the exclusive legislation of the Parliament of Canada extends are illustrations, viz.:—1. " The public debt and property ;" 2. "The regulation of trade and commerce ;" to say nothing of " beacons, buoys, light houses, &c, " navigation and shipping," " bills of exchange and promissory notes," and many others directly affecting property and civil rights; that neither this, nor the right to organize Provincial Courts by the Provincial Legislatures was intended in any way to interfere with or give to such Provincial Legislatures, any right to restrict or limit the powers in other parts of the Statute conferred on the Dominion Parliament; that the right to direct the procedure in civil matters in those courts had reference to the procedure in matters over which the Provincial Legislature had power to give those Courts jurisdiction, and did not, in any way, interfere with, or restrict, the right and power of the Dominion Parliament to direct the mode of procedure to be adopted in cases over which it has jurisdiction, and where it was exclusively authorized and empowered to deal with the subject matter; or take from the existing courts the duty of administering the laws of the land; and that the power of the Local Legislatures was to be subject to the general and special legislative powers of the Dominion Parliament. But while the legislative rights of the Local Legislatures are in this sense subordinate to the right of the Dominion Parliament, I think such latter right must be exercised, so far as may be, consistently with the right of the Local Legislatures; and therefore the Dominion Parliament would only have the right to interfere with property or civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the Parliament of Canada.
It is, I think, to section 91, in reference to the legislative authority of the Parliament of Canada, and to sections 18 and 41, conferring privileges on the Senate and House of Commons, and legislative power over the trial of controverted elections and proceedings incident thereto that we must look to ascertain whether the Parliament of the Dominion, in enacting the 37 Vic. cap. 10, exceeded its powers, because, I think, all the other sections conferring legislative powers must be read as subordinate thereto and because I cannot discover that any of the other provisions apply, or were intended to apply, to the particular subject matter thus legislated on, and which, I think, it was intended should be alone dealt with by the Dominion Parliament in any manner it might deem most expedient for the peace, order and good government of Canada. I think that the British North America Act vests in the Dominion Parliament plenary power of legislation, in no way limited or circumscribed and as large and of the same nature and extent as the Parliament of Great Britain, by whom the power to legislate was conferred, itself had. The Parliament of Great Britain clearly intended to divest itself of all legislative power over this subject matter and it is equally clear, that what it so divested itself of, it conferred wholly and exclusively on the Parliament of the Dominion.
The Parliament of Great Britain with reference to the power and privileges of the Parliament of the Dominion of Canada, and with reference to the trial of controverted elections, has made the Parliament of the L Dominion an independent and supreme Parliament, and given to it power to legislate on those subjects in like manner as the Parliament of England could itself legislate on them. It is a constitutional grant of privileges and powers which cannot be restricted or taken away except by the authority which conferred it, and any power given to the Local Legislatures must be subordinate thereto.
The case of the Queen vs. Burah ([16]) enunciates a principle very applicable to this case. The marginal note is:
Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may be well exercised either absolutely or conditionally; in the latter case leaving to the discretion of some external authority the time and manner of carrying its legislation into effect, as also the area over which it is to extend.
And Lord Selborne, delivering the judgment of the Privy Council, said:
But their Lordships are of opinion that the doctrine of the majority of the court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the act of the Imperial Parliament which created it. and it can, of course, do nothing beyond the limits which circumscribe those powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question: and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done in legislation is within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.
Whether, therefore, the Act of 1874 established a Dominion Election Court or not I think the Parliament of the Dominion, in legislating on this matter, on which they alone in the Dominion could legislate had a perfect right, if in its wisdom it deemed it expedient so to do to confer on the Provincial Courts power and authority to deal with the subject matter as Parliament should enact; that the legislation, being within the legislative power conferred on them by the Imperial Parliament their enactments in reference thereto became the law of the land, which the Queen's Courts were bound to administer.
I am at a loss to discover how the conferring of this jurisdiction on the Judges of the Supreme and Superior Courts, and on those Courts, in any way interferes with or affects, directly or indirectly, the autonomy of the Provinces, or the right of the Local Legislatures to deal with such property and civil rights in the Provinces, and the administration of justice in the Provinces, including the constitution, maintenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in such civil matters in those courts, as the Local Legislatures have a right to deal with, reading, of course, those matters so to be dealt with, as subject and subordinate to the superior powers and authority of the Dominion Parliament over all subjects not assigned exclusively to the Legislatures of the Provinces, of which subjects pre-eminently prominent as beyond the jurisdiction or control of the Local Legislatures, stand the privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons, and by the Members thereof, respectively, and all rights connected with the qualifications and disqualifications of persons to sit or vote as Members of the House of Commons the voters at the election of such Members the Returning Officers, the proceedings at elections, and the trial of controverted elections, and all proceedings incident thereto.
Transferring this new and this peculiar jurisdiction vested in the House of Commons to the Supreme and Superior Courts, in other words, substituting those courts in place of the House of Commons in relation to these matters, with which the Local Legislatures have nothing whatever to do, can in no way, that I can perceive, militate against, or derogate from the right of the Local Legislatures to make laws in relation to all subjects or matters exclusively reserved to them. Nor can I discover that, in so substituting the Judges of the Supreme and Superior Courts the Parliament of the Dominion has in any way transcended its legislative powers. These courts are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Dominion or by the Local Legislatures, respectively. They are not mere local courts for the administration of the local laws passed by the Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the respective Provinces before Confederation existed at Confederation and were continued with all laws in force " as if the union had not been made," by the 129th sec. of the British North America Act, and subject as therein expressly provided, "to be repealed abolished or altered by the Parliament of Ganada, or by the Legislatures of the respective Provinces, according to the authority of the Parliament, or of that Legislature under this Act." They are the Queen's Courts, bound to take cognizance of and execute all laws whether enacted by the Dominion Parliament or the Local Legislatures, provided always, such laws are within the scope of their respective legislative powers.
If it is ultra vires for the Dominion Parliament to give these courts jurisdiction over this matter, which is peculiarly subject to the legislative power of the Dominion Parliament, must not the same principle apply to all matters which are in like manner exclusively within the legislative power of the Dominion Parliament; and, if so, would it not follow, that in no such case could the Dominion Parliament invoke the powers of these courts to carry out their enactments in the manner they, having the legislative right to do so, may think it just and expedient to prescribe. If so, would it not leave the legislation of the Dominion a dead letter till Parliament should establish courts throughout the Dominion for the special administration of the laws enacted by the Parliament of Canada: a state of things, I will venture to assume, never contemplated by the framers of the British North America Act, and an idea to which, I humbly think, the Act gives no countenance; on the contrary, the very section authorizing the establishment by Parliament of such courts speaks only of them as " additional courts for the better " administration of the laws of Canada. " It cannot I think be supposed for a moment that the Imperial Parliament contemplated that until an Appellate Court, or such additional courts, were established all or any of the laws of Canada enacted by the Parliament of Canada, in relation to matters exclusively confided to that Parliament, were to remain unadministered for want of any tribunals in the Dominion competent to take cognizance of them.
Whether, then, this Act is to be treated as declaring the courts named Dominion Election Courts, or whether it is to be treated as merely conferring on particular courts already organized anew and. peculiar jurisdiction, is a matter, to my mind, of no great importance, as I think, while they have clearly the power of establishing a new Dominion Court, they have likewise the power, when legislating within their jurisdiction, to require the established courts of the respective Provinces, and the judges thereof, who are appointed by the Dominion, paid out of the treasury of the Dominion, and removable only by address of the House of Commons and Senate of the Parliament of the Dominion, to enforce their legislation.
If the Dominion Parliament cannot pass this Act, this startling anomaly would be produced, that, though with respect to the rights and privileges of Parliament the Dominion of Canada are invested with the same powers as at the passing of the Act pertained to the Parliament of Great Britain. and though exclusive jurisdiction over, and the exclusive right to provide for, the trial of controverted elections is specially conferred on the Dominion Parliament, and though the constitution of the Dominion is to be similar to that of Great Britain, there are, in connection with these privileges and these elections, matters with which there is no legislative power in the .country to deal l for it is very clear that, as there is no pretence for saying that the Local Legislatures have any legislative power or authority over the subject-matters dealt with by the Act, so nothing the Local Legislatures might say or do could affect the question, and, therefore, however desirable, it might be universally admitted, that just such a tribunal for settling these questions should be established in the very terms of this Act the Dominion would be in this extraordinary position, that no legislation m the Dominion could accomplish it, for the simple reason that, if legislated on, as has been done by the Dominion Parliament, the legislation would be ultra vires; any , legislation by the Local Legislatures would, if possible, be even more objectionable, they not having a shadow of right to interfere with the rights and privileges of Parliament, or the election of Members to serve therein, or to establish any tribunal whatever to deal with or affect either, as the whole and sole legislative power to intermeddle or deal with such rights and with elections and controverted elections is conferred on and vested in the Dominion Parliament alone.
To hold that no new jurisdiction, or mode of procedure, can be imposed on the Provincial Courts by the Dominion Parliament, in its legislation on subjects exclusively within its legislative power, is to neutralize, if not to destroy, that power and to paralyze the legislation of Parliament. The Statutes of Parliament from its first session to the last, show that such an idea has never been entertained by those who took the most active part in the establishment of Confederation, and who had most to do with framing the British North America Act the large majority of whom sat in the first Parliament. A reference to that legislation will also show what a serious effect and what unreasonable consequences would flow from its adoption.
There is scarcely an Act, relating to any of the great public interests of the country which have been legislated on since Confederation, that must not in part be held ultra vires if this doctrine is well founded for m almost all these Acts provisions are to be found, not only vesting jurisdiction in the Provincial Courts, but also regulating, in many instances and particulars, the procedure in such matters in those courts, as a reference to a number I shall cite will abundantly show.
In the first session of the Dominion Parliament in the Act respecting Customs, 81 Vic, cap. 6, by sec, 100, all penalties and forfeitures relating to the Customs or to Trade and Navigation, unless other provision be made for the recovery thereof, are to be sued for by -the Attorney-General, or in the name or names of some officer of Customs, or other person thereunto authorized by the Grovernor-in-Council, and if the prosecution be brought before any County Court or Circuit it shall be heard and determined in a summary manner upon information filed in such court. And by other sections, special provisions are made for the mode of procedure in reference to cases of this description, as also for the protection of the officers, entirely different from the procedure in ordinary civil cases.
So also by the Act respecting the Inland Revenue, 81 Vic, cap. 8, provisions are made for the protection of the officers of the Inland Revenue, whereby the proceeding’s in the Provincial Courts are restrained and regulated. And by 31 Vic., c. 10, for regulating the Postal Service, the enactments of the Acts respecting Customs, more especially for the protection of officers, are extended and applied to officers employed in the Post Office.
And in the Public Works Act, 31 Vic, cap. 12 sec 48 all costs in awards made by the arbitrators under that Act where the award is in favor of the claimant, shall be taxed by the proper officer of the Court of Queen's Bench, Supreme Court or Common Pleas in the Provinces of Ontario, Nova Scotia and New Brunswick, and, in Quebec, by a Judge of the Superior Court.
So by the 31st Vic., cap. 15, sec 7, of the Act to prevent unlawful training to the use of arms, provision is made for the protection of Justices and others acting under this Act, which regulates in a very special manner the procedure in all courts where such actions may be brought. So by the 31st Vic. cap. 17, an Act for the settlement of the affairs of the Bank of Upper Canada, authority was given to the Court of Chancery, or a Judge thereof, to make orders and directions with reference to the trust therein referred to.
So by the 31st Vic, cap. 23, an Act to define the privileges, &c, of the Senate and House of Commons, and to give necessary protection to persons employed in the publication of parliamentary papers, provision is made on certificate of Speaker of either House for the immediate stay of, and putting a final end to, all civil or criminal proceedings in any court in Canada.
So under the Trade Mark and Designs Act, 1868, in case any person not being the lawful proprietor of a design be registered as proprietor thereof, the rightful owner is authorized to institute an action in the Superior Court in Quebec, in the Court of Queen's Bench in Ontario and in the Supreme Courts of Nova Scotia and New Brunswick and the course of procedure is pointed out and specially regulated,
So under 3l Vic., cap. 61, respecting fishing by foreign vessels, special provisions are made for the protection of officers by regulating the issuing of writs, and otherwise regulating the proceedings in informations and suits brought under the Act.
So with respect to the Act relating to aliens and naturalization, 31 Vic, cap. 66, duties are imposed on the Judges of any Court of Record in Canada and on the Provincial Courts therein named as to admitting and confirming aliens in all the rights and privileges of British birth, and directing the mode of procedure in such cases.
So by the Railway Act, 1868, 31 Vic, cap. 68, sec, 15, the duty of appointing arbitrators is imposed on a Judge of one of the Superior Courts in the Province in which the place giving rise to the disagreement is situated, So, also, by sub-section 13 as to ordering notices, and by sec. 15 as to appointing sworn surveyors; 19 as to taxing costs; 22, appointing, on death of arbitrator, I another; 24 and 25, vesting in Judge the summary power of determining the validity of any cause of disqualification urged against arbitrator; 27 and 28, power to Judge to issue warrant to Sheriff to put company in possession of land under award or agreement; and in many other matters in said Act quite distinct from the jurisdiction and procedure in ordinary civil cases.
32 and 33 Vic., cap. 11, patents for inventions: Provision is made for actions for infringement and impeachment of a patent, and for power of courts and procedure and pleading in such cases.
And notably, with respect to insolvency, by the first Insolvent Act 1869, and Act in amendment thereof of 1870, summary jurisdiction is given to judges and courts, and appeals to judges and from judges to courts, and Provincial Courts are clothed with powers and modes of procedure are given them, which the Local Legislatures could have no right to confer, as they have no right to legislate on the subject matter Of insolvency, And in Ontario the judges of the Superior Courts of Common Law and of the Court of Chancery, or any five of them, of whom the Chief Justice of Ontario, or the Chancellor, or the Chief Justice of the Common Pleas shall be one are required to make and settle such forms, rules and regulations as shall be followed in the proceedings in Chancery. And in Nova Scotia an entirely new jurisdiction is given in insolvency to the Probate Courts or judges of probate, which they never in any way before possessed.
And as to banks and banking, 34 Vic, cap. 5., jurisdiction in a summary manner is given to the Superior Courts of Law and Equity to adjudicate as to the parties legally entitled to shares, and the mode of procedure is there pointed out.
And as to the Public Lands of the Dominion, 35 Vic, cap. 23, a summary remedy is given to a judge of any court, haying competent jurisdiction in cases respecting real estate, to grant an order which shall have the force of a writ of Hab. Fac. Pos., upon proof to his satisfaction that land forfeited should properly revert to the Crown, to deliver up the same, &c, and the mode of procedure is provided by the Act.
37 Vic, cap. 45, Inspection of Staple Articles, as to actions or suits against any person for anything done in pursuance of this Act limitations and restrictions are imposed and directions given as to procedure before and at trial and on giving judgment.
I do not, of course, put forward this legislation as in itself in any way determining, or even as confirmatory of the right of the Dominion Parliament so to legislate, for it is too clear that if they do not possess the legislative power, neither the exercise nor the continued exercise of a power not belonging" to them could confer it or make their legislation binding. But I put forward these Acts as illustrative of the powerlessness, or perhaps I should rather say helplessness, of the Dominion Parliament, if they have not the right to legislate without control in the most full and ample manner over all matters specially or generally confided to them by the Imperial Parliament, and over which all must admit they have sole control, without being met by so effectual an obstruction, in giving effect to such legislation, as by closing the Queen's Courts against the administration of laws so enacted by and under the authority of the Parliament of Great Britain, by virtue of which the Dominion and Provincial constitutions now exist and also as illustrative of the utter want in the Dominion if the Dominion Parliament does not possess it, of any legislative power to meet emergencies requiring legislative control in matters so unequivocally affecting the peace, good order and government of Canada, so clearly taken from the Provincial Assemblies and confided to the Parliament and Government of Canada.
But I have had no great difficulty in arriving at the conclusion that this Act substantially establishes as the Act of 1873 did as respects elections, a Dominion Court, though it utilizes for that purpose the Provincial Courts and their Judges. In considering the British North America Act, in the view just presented, as also the Dominion Act on the point to be now discussed, the following extract from the judgment of Turner, L. J., in Hawkins vs Gathercole ([17]) may not be inapplicable here. He says:
But, in construing Acts of Parliament, the words which are used are not alone to be regarded; regard must also be had to the intent and meaning of the legislature. The rule on this subject is well expressed in the case of Stradling vs. Morgan in Plowden's Reports, in which case it is said at page 204: " The judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded Acts which were general in words to be but particular where the intent was particular." And, after referring to several cases, the report contains the following remarkable passage, at page 205: " From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter, they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature, which they have collected, sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the legislature which they have always taken according to the necessity of the mutter and. according to that which is consonant to reason and good discretion.
The same doctrine is to be found in Eyston vs. Studd and the note appended to it, also in Plowden ([18]), and many other cases. The passages to which I have referred, I have selected as containing the best summary with which I am acquainted of the law upon this subject. In determining the question before us, we have, therefore, to consider, not merely the words of the Act of Parliament, but the intent of the Legislature, tobe collected from the cause and necessity of the Act being made, from a comparison of its several parts, and from foreign meaning and extraneous circumstances, so far as they can justly be considered to throw light upon the subject.
In seeking to discover the intention of the Dominion Parliament, if Parliament had no power to add to the jurisdiction of a Provincial Court, or in any way interfere with its procedure, one is struck at the outset with the strong, if not irresistible, inference that this raises that the intentions of Parliament must have been to establish an independent tribunal in the nature of a Dominion Court and not to add to the jurisdiction, or affect the procedure, of Provincial Courts, because, it must, I think, be assumed that Parliament intended to do what they have a right to do to legislate legally and effectively, rather than that they intended to do what they had no right to do, and which, if they did do, must necessarily be void and of no effect; and having established a Court by the Act of 1873 which it seems to be admitted is intra vires, is it reasonable to suppose that Parliament would repeal a valid enactment, and for the accomplishment of substantially the same object, substitute in its place a law beyond their powers to enact, and which, therefore, could be nothing but a dead letter on the Statute Book. But, as for the reasons I have stated I think even if a distinct and independent court is not created, the Act is not beyond the power of Parliament, I cannot invoke this inference, as it appears to me those holding the contrary opinion might and should do.
But, independent of all this, the Act seems to contain within itself everything necessary to constitute a court.
The jurisdiction is special and peculiar, distinct from, and independent of, any power or authority with which any of the courts, or the judges referred to in it, were previously clothed. The act conferring this jurisdiction provides all necessary materials for the full and complete exercise of such jurisdiction in a very special manner, wholly independent of, and distinct from, and at variance with the exercise of the ordinary jurisdiction and procedure of the courts.
The rights which are to be determined through the instrumentality of this new jurisdiction are political, rather than civil rights, within the usual meaning of that term or within the meaning of that term as used in the British North America Act, which, as I have said, applies, in my opinion, to mere limited civil rights, and thus we find them treated in the case of Thé berge vs. Landry ([19]) which was an application to the Privy Council for special leave to appeal from the decision of the Superior Court of Quebec under the Controverted Election Act, 1875, declaring an election void, which was refused.
The Lord Chancellor in that case speaks of the Quebec Controverted Election Acts thus:
These two Acts of Parliament, the Acts of 1872-75, are Acts peculiar in their character. They are not Acts constituting or providing for the decision of mere ordinary civil rights, they are Acts creating an entirely new and up to that time unknown, jurisdiction in a particular court of the colony, for the purpose of taking oat, with its own consent of the Legislative Assembly, and vesting in that court that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly,of deciding election petitions, and determining the status of those who claimed to be Members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusivè and enable the constitution of the Legislative Assembly to be distinctly and speedily known.
Now, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the privileges of the electors, and of the Legislative Assembly, to which they elect Members. Those rights and privileges have always, in every colony, following the example of the Mother Country, been jealously maintained and guarded by the Legislative Assembly; above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly in complete independence of the Crown, so far as they properly exist, and it would be a result somewhat surprising and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court, which the Legislative Assembly had put in its place, but belonged to the Crown in Council with the advice of the advisers of the Crown at home to be determined without reference either to the judgment of the Legislative Assembly, or of that court which the Legislative Assembly had substituted in its place.
The object of the Act of 1873 and that of 1874 was the same, the recitals in both are precisely alike, and the provisions are in many respects substantially the same. That object was to establish and substitute entirely new tribunals for the trial of Election Petitions in lieu of the committees theretofore dealing with such matters, and both Acts alike contained all provisions necessary, not only to give such new tribunals full jurisdiction, but also all necessary and suitable provisions to enable them, and the judges thereof, effectually to exercise such jurisdiction, not only with reference to the principles but also to the rules and practice by which they should be governed and act in dealing with election petitions. The object of the two Acts being then precisely the same, the accomplishment of the desired result being by instrumentalities substantially much the same if as I understand it is, generally conceded by those that hold the Act of 1874 ultra vires, that the Act of 1873 established an independent Do N minion Court, and was within the power of the Dominion Parliament, I am somewhat at a loss to understand how it can be said that the tribunals established by the Act of 1874 are not equally within the power of the Dominion Parliament.
The judges cannot sit in controverted election matters under the general jurisdiction of their respective courts, for those courts have no jurisdiction in such cases, and therefore, in discharging the duties imposed by this Act they do not and cannot do so as judges of the respective courts to which they belong, but they act as Election Judges appointed by and under the Act, outside of and distinct from the jurisdiction they exercise in their respective Provincial Courts, which is left untouched by this Act.
Without relying too much on the Statute of 1873, which, though a repealed statute, being in pari material with that of 1874 might properly be referred to for the purpose of construing the latter ([20]), I think a careful and critical examination of the Act of 1874 will exhibit an evident intention that, as the first did, so does the last establish an independent Dominion Election Court.
This is more especially noticeable with reference to the enactments under the headings "interpretation "clauses," " procédure," "jurisdiction and rules of court," " reception and jurisdiction of the judge " witnesses," and the provision as to who may practice as agent or attorney or as counsel in such courts in the case of such petitions, and all matters relating thereto before the court or judge. I will only notice more particularly some of them, 1st. The power given to make rules. It provides that the judges of the several courts in each Province respectively, or a majority, which, in Ontario would include the judges of the Court of Error and Appeal, Queen's Bench, Common Pleas and Court of Chancery, shall make such rules, and until such rules are made " the principles, practice and rules on which " petitions touching the election of Members of the " House of Commons in England are, at the passing " of this Act, dealt with, shall be observed, &c." 2nd. As to the reception, expenses and jurisdiction of the judge. The judge is to be received not as a judge of the Superior Court in that character but as a judge of the Election Court, in like manner as if he were about to hold a sitting at nisi pries, or a sitting of the Provincial Court of which he is a member, showing that the Legislature did not contemplate that he was then actually about to sit as a member of the Provincial Court, but as being about to try an election petitions, and when about to do this he is to be treated as if he were about to hold a sitting of the Provincial Court of which he is a member, and when his powers in such a trial, and in other proceedings under this Act, are defined, he is not treated simply as a judge of one of the Superior Courts upon whom, as such, further jurisdiction is conferred, but similar powers, as such judge, are given him in the court held by him and that court so held by him is declared to be a Court of Record indicating I think very clearly, that the court was treated by the Legislature as distinct from a Provincial Court, and required this statutory declaration to make it a Court of Record, and that the judge was not to be considered as then acting as a judge of a Provincial Court nor the trial as a trial in such a court. The words of the clause are these ([21]):
On the trial of an Election Petition, and in other proceedings under this Act, the judge shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority as a judge of one of the Superior Courts of Law or Equity for the Province in which such election was held, sitting in term, or presiding at the trial of an ordinary civil suit and the Court held by him for such trial shall be a Court of Record.
So in like manner, are the witnesses treated as being subpoenaed, sworn and treated, not as being actually within the jurisdiction of the Provincial Courts, but section 49 declares that they
Shall be subpoenaed and sworn in the same manner, as nearly as circumstances will admit as in cases within the jurisdiction of the Superior Courts of Law or Equity in the same Province; and shall be subject to the same penalties for perjury.
So, again, in the provision made for regulating the persons entitled to practice as attorneys or barristers before the tribunal thus established such tribunal is very clearly distinguished from the Provincial Courts The clause is this ([22]);
Any person who, according to the law of the Province in which the petition is to be tried, is entitled to practice as an attorney at law or Solicitor, before the Superior Courts of such Province, and who is not a Member of the House of Commons, may practice as attorney or agent, and any person, who, according to such law, is entitled to practice as a barrister at law, or advocate, before such Courts, and who is not a member of the House of Commons, may practice as Counsel, in the case of such petition, and all matters relating thereto, before the Court or Judge in such Province.
Reading these special provisions in connection with the Act of 1873 and what has been said of the Act generally, I think it is not arriving at a forced or unnatural conclusion to say that that Parliament intended to establish Dominion Tribunals exceptional in their jurisdiction, perfect in their procedure, and with all materials for exercising such jurisdiction, and having nothing in common with the Provincial Courts; that these judges and courts were merely utilized outside their respective jurisdictions for giving full effect to these statutory tribunals to deal with this purely Dominion matter.
An objection has been suggested by a learned judge, for whose opinion I have the very highest respect and which has been treated as of much force by another learned judge of a different Province, and on that account I will notice it. it is said that if this is a court distinct from the courts of which the judges are primarily members, the judges have never been appointed thereto by the Crown, nor sworn as judges thereof, and therefore they are not judges of this new tribunal, if, as such, it exists. But, in my humble opinion, there is no force in this objection. The judges require no new appointment from the Crown, they are Statutory Judges in Controverted Election matters by virtue of an express enactment by competent legislative authority. The statutes make the judges for the time being of the Provincial Courts judges of these peculiar and special courts. The Crown has assented to that statute, therefore they are judges by virtue of the law of the Dominion and with the Royal sanction and approval. As to their not being sworn, the statute has not provided they should be sworn. If, being sworn judges already, the Legislature was willing to entrust them with the power conferred by this Act, without requiring them to be sworn anew, how does this invalidate the Act, and how can the judges refuse to discharge the duties thus by law imposed on them, because, it may be, the Parliament might, or ought to have gone further and required the judges to be specially sworn faithfully to discharge these special duties. Under the law of 1873, the judges in all the Provinces acted in what, it is admitted, were new Dominion Courts, without being specially appointed or sworn, the statute not requiring either, and I have yet to learn that their proceedings on that account ever have been or ever could be questioned.
As, then, I can see no reasons why the Dominion Parliament should not delegate to the Judges of the several Provinces, individually, or collectively, or both, whom they appoint and pay, and can by address remove, power to determine controverted elections, the doing of which, not being inconsistent, or in any way in conflict with their duties as judges of their respective courts, but, on the contrary, as shown by the present legislation of all the Provinces, in reference to controverted elections in the Local Legislatures, in so acting they are most suitable and proper tribunals, and as the Imperial Parliament has left it to the Parliament of Canadá to provide for the trial of controverted elections and proceedings incident thereto, and they have discharged this duty by the Statute of 1874, utilizing existing judicial officers and established courts, by engrafting on, or establishing independent of those courts throughout their respective Provinces tribunals eminently qualified to discharge the important duties assigned to them, they have not, in so doing, in my opinion in any particular invaded the rights of the Local Legislatures, or brought the new jurisdiction, or the procedure under it, in any way in conflict with the jurisdiction or procedure of any of the courts of the Provinces; and therefore the Dominion Parliament in enacting the Act of 1874, have not, in my opinion, exceeded the express power conferred on them to provide for the trial of controverted elections and proceeding's incident thereto; and, therefore, I think this appeal must Be dismissed with costs and the case remitted to the court below, to be proceeded with according to the due course, of law.
FOURNIER, J:
L'unique question soumise par le present appel est de savoir, si le parlement fédéral avait le pouvoir de passer l'acte des élections contestés de 1874.
Cette question dont on ne peut exagérer l'importance a été trés savamment discutée et décidée en sens inverse par les différentes cours provinciales devant lesquelles elle a été portée.
Les raisons données de part et d'autre sont exposées avec les plus grands développements, et sont certainement dignes de toute l'attention possible; mais après la revue si complete qui en a été faite par l'honorable juge en chef il n'y aurait aucune utilité à les résumer ici de nouveau. Pour cette raison je me contenterai de donner succinctement les principaux motifs qui m'ont fait adopter la même conclusion que mes honorables collègues.
C'est en 1873, que le Parlement fédéral exerçant pour la première fois, le pouvoir qui lui est conféré par la section méme de l'acte de l'Amériqne Britannique du Nord, de législater sur le sujet des elections contestées a adopéé et consacré par le statut 36 Vict., ch. 28, le principe de référer an pouvoir judiciaire la decision des élections contestées qui jusqu'alors avaient été décidées par les chambres ou leurs comités à l'exclusion des tribunaux ordinaires. La loi dont la légalité est attaquée en cette cause a révoquC le premier statut, en conservant toutefois le principe de la référence au pouvoir judiciaire ainsi qu'un grand nombre de ses autres dispositions
Plusieurs des honorables juges appelés à décider cette question sont entrés dans un examen critique très détaillé des principales dispositions de ces deux lois, afin de prouver que la première (celle de 1873) était constitutionnelle en créant une cour spéciale d'élection, en vertu de l'article 10 de l'acte de l'Amérique Britannique du Nord tandis que la seconde est inconstitutionnelle en assumant le pouvoir d'étendre la juridiction de certaines cours provinciales à la décision des élections contestées,—sujet qui nétait pas auparavant de leur competence.
Je ne crois pas devoir entrer dans l'examen des raiSons invoquées pour établir cette divergence; non plus que dans l'examen de cette autre question de savoir, si l'acte de 1874 ne constitue pas, comme celui de 1873, une cour fédérale, et que partant la loi, se trouvant dans les limites du pouvoir accodéé au Parlement Fédéral par l'article 101 de créer des tribunaux additionnels cette loi doit en conséquence être déclare constitutionnelle.
Il me suffira de dire que, si la proposition que le. gouvernement fédéral ne peut imposer de nouveaux devoirs aux cours et aux juges existant lors de la Confédération est correcte, ces deux actes sont exposés aux mêmes objections, car dans l'un et l'autre les tribunaux provinciaux et le personnel qui les compose sont soumis à l'accomplissement de nouveaux devoirs. Il importe pen "Dour la décision de la veritable contestation soulevée dans ce débat, que les nouveaux devoirs judiciaires soient imposes aux juges et aux cours dans un cas, comme par l'acte de 1873, sous la denomination de cour d'élection; ou qu'ils le soient dans l'autre, comme par l'acte de 1874, aux cours provinciales et aux juges sous les dénominations par lesquelles ils sont designés dans les lois provinciales qui leur ont donné l'existence. Au fond la question est toujours la même, car que l'on prenne les juges collectivement comme cour, ou en leur qualité individuelle de membres de la cour, il faut toujours en venir à la question de savoir quel pouvoir a le parlement fédéral de leur imposer de nouveaux devoirs.
Aussi la question se réduit-elle pour moi, simplement à savoir si le parlement fédéral a le pouvoir qui lui a été si emphatiquement et si énergiquement nié par certains honorables juges dont je respecte infiniment l'opinion, d'imposer de nouveaux devoirs aux juges et aux tribunaux provinciaux et même d'étendre leur juridiction s'il en est besoin. Je regrette d'avoir à dire que j'entretiens sur ce sujet une opinion diamétralement opposée à la leur.
Si je n'hésite pas à faire cette déclaration, c'est qu'un nombre en coré plus considérable d'honorables juges out adopté cette manière de voir qui, du reste, me semble d'accord avec l'esprit et la lettre de Ia constitution
Si la proposition que j’émets plus haut n’était pas correcte, il s'ensuivrait nécessairement que les auteurs de la Confédération auraient omis de créer, pour l'exécutons des lois fédérales, un pouvoir judiciaire coexistant avec le nouvel ordre de choses.
Cependant, comme nous l'indique le préambule de l'acte de l'Amérique Britannique du Nord, leur premier devoir était de doter l'union fédérale des provinces d'une constitution reposant sur les mémes principes que celle du Royaume-Uni. Un des éléments essentiels de la constitution britannique, comme de tout gouvernement régulier, c'est la création d'un pouvoir judiciaire qui forme, avec les pouvoirs législatif et exécutif, les trois éléments indispensables de tout gouvernement. Ontils commis une faute d'une aussi haute gravité, pouvant avoir de si funestes consequences sur leur œuvre, que celle de n'avoir pas pensé à la création d'un pouvoir judiciaire? D'après certaines opinions, cette étrange omission aurait été faite, et il y aurait eu ainsi entre le ler juillet 1867 époque a laquelle l'acte de l'Amérique du Nord est entré en force, et la réunion du parlement fédéral en novembre 1861 un interrègne de quatre mois pendant lequel ii ne se serait pas trouvé un soul tribunal compétent pour faire exécuter les lois fédérales.
Cependant des l'instant que Ia nouvelle constitution est entrée en force, le gouvernement fédéral devenait propriétaire de toutes les propriétés publiques énumérées dans la cédule 8 do l'acte do l’Amerique Britannique du Nordi en memo temps qu'il était chargé par la 122e section de l'exécution des lois de douanes, d'accise et par la 41e sec. des lois électorales qui demeuraient en force.
Il se serait donc, dans ce cas, trouvé dans l'impossibilité soit de protéger ses propriétés, soit de collecter les revenus, l'accès aux tribunaux provinciaux lui étant interdit.
Mais on répond à cet argument en alléguant qu'une aussi grande faute n'a pas été commise, que bien an contraire, par l'article 101, le gouvernement du Canada est investi du pouvoir do créer une cour d'appel et des tribunaux additionnels pour la meilleure administration de ses lois, quo des pouvoirs suffisants sous ce rapport lui ont été donnés précisément parce que le pouvoir exclusif d'organiser des tribunaux pour les provinces était réserve aux législatures,—qu'ainsi les deux gouvernements out chacun leurs attributions particulières et exclusives pour Ia creation do tribunaux. L'article 101 no justifie pas cette conclusion, ii n'établit pas dans le present un pouvoir judiciaire—il no donne quo la faculté d'établir, suivant los besoins et los circonstances, une cour d'appel et des tribunaux additionnels pour la meilleure administration do ses lois. D'après los termes do cette section ii en existait donc déjà pour l'exécution des lois fédérales, puisque cette faculté n'est donnée quo pour être exercée lorsque l'occasion le. requerra, comme dit l'article c'est-à-dire dans le cas ou les tribunaux existant deviendraient, pour une raison ou pour une autre, incapables de faire exécuter les lois fédérales. Si cette section n'admettait pas l'existence d'un pouvoir judiciaire fédéral elle eut été autrement rédigée e il était aussi facile de décrotter de suite l'existence dune cour d'appel ou de tout autre tribunal, que d'en permettre la creation dans l'avenir. Si la chose n'a pas été faite c'est sans doute parceque on reconnaissait que le pouvoir judiciaire dont on conservait l'existence par la section 129 pourrait encore suffire aux besoins du pays pour longtemps, et on laissait prudemment à l'avenir le soin d'exercer le pouvoir de créer de nouveaux tribunaux suivant les circonstances. Ce n'est certainement pas sur la section 101, qui n'accorde qu'un pouvoir facultatif, qu'on peut s'appuyer pour prouver que les auteurs de la Confédération ont crée un pouvoir judicaire qui pouvait répondre aux besoins immédiats de la Confédération. C'est par d'autres sections que l'organisation judiciaire a été effectivement établie et complétée, de manière à entrer en existence en même temps que l'acte constitutionnel lui-même.
Cette organisation résulté de diverses dispositions de l'acte de l'A. B. N. auxquelles je ferai allusion après avoir mentionné celles sur lesquelles on s'appuie le plus fortement pour en contester l'existence.
Les adversaires de la constitutionalité de la loi en question fondent leurs principaux arguments sur les sous-ss. 13 et 14 de la s. 92 attribuant exclusivement aux legislatures la juridiction sur La propriété et les droits civils dans la province, et l'administration de la justice dans la province y compris Ta création, le main- tien et l'organisation de tribunaux de justice pour Ta province, ayant juridiction civile et criminelle, y compris la procédure’ en matières civiles dans ces tribunaux, J'admets sans hésitation le contrôle exelusif des législatures sur ces deux categories de sujets. A elles seules appartient sans doute le droit de régler les droits civils L dans la province, comme l'organisation de tribunaux de justice pour la province; et le parlement fédéral commettrait certainement un excès de pouvoir s'il législatait sur ces matières pour la province. Mais s'en suit-il nécessairement que ce dernier n'a aucune juridiction sur les droits civils ne concernant que la Pusssance en général, de même que sur l'organisation et le maintien des tribunaux en autant que la Puissance y est intéressée. Y atil pour celle-ci dans les deux paragraphes une exclusion absolue de toute juridiction? Je ne le pense pas. Il me semble, au contraire, que les termes mêmes s'opposent à une interpretation aussi restrictive. En effet, les mots pour la province ajoutés à Ta suite des pouvoirs donnés sur les droits civils et l'organisation des tribunaux, restreignent bien pour les législatures, l'exercice de ces pouvoirs aux limites de la province, mais ne comportent pas l'exclusion de l'exercice par le parlement fédéral d'une juridiction semblable sur les diverses categories de droits civils qui lui sont attribués. Rien n'est plus clair ni plus certain que les législatures n'ont pas une juridiction complete sur les droits civils. Si tel était le cas, les termes droits civils, comprenant par opposition an droit criminel tous les droits dont un sujet peut jouir, il s'en suivrait que les provinces auraient une juridiction illimitée sur tout ce qui ne dépendrait pas du droit criminel. La distinction que l'on a voulu faire entre les droits civils et les droits politiques n'est fondée sur aucune autorité positive. Les termes droits politiques n'ont pas dans le droit anglais une signification consacrée par la loi ou par les décisions judiciaires. Pour exprimer la même idée Blackstone emploie indifféremment les mots liberté civile ou liberté politique. Sa sub division des droits en quatre catégories na pas d'autre raison que celle d'en faciliter l'exposition, comme ii le dit:" in order to "consider them with any tolerable ease and perspicuity, i it will be necessary to distribute them methodically "unnder proper heads." La décision du Conseil Privé dans la cause de Landry vs. Théberge ([23]) n'a pas établi non plus, comme on le prétend, une distinction entre les droits civils et les droits politiques Lord Cairns dit en parlant des deux lois de Québec sur les élections contestées, qu'elles n'avaient pas pour objet de pourvoir à la décision de droits civils ordinaires (of Títere ordinary civil rights); et ii qualifie aussi cette législation comme extrêmement particulière, (extremely peculiar), mais il ne dit pas qu'elle a pour objet de statuer sur les droits politiques comme sujet distinct des droits civils. Il ne fait même pas usage des mots droits politiques dans son jugement. Le langage qu'il tient à ce sujet est conforme à ce que dit Blackstone au sujet de sa division des rights. Pour achever de démontrer que les termes droits civils, dans le paragraphe 13, ne peuvent avoir la signification étendue qu'on veut leur donner, ii suffit de rappeler que la banqueroute et la faillite, les brevets d'invention et de découverte, los droits d'auteurs, le mariage et le divorce et beaucoup d'autres sujets qui, sans nul doute, sont compris dans les termes génériques de droits civils, sont cependant exclusivement du ressort du parlement fédéral.
Il serait donc plus correct de dire, que le pouvoir législatif au sujet des droits civils a été partagé entre le par