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PREROGATIVES OF THE CROWN.
In Denton v. Daley at the February term (1880) of the County Court, Digby, Nova Scotia, it was held that the power to appoint Justices of the Peace is one of the prerogatives of the Crown; That there is nothing in the B. N. A. Act inconsistent with the retention of this prerogative in Her Majesty's hands and the exercise of it by her duly constituted representative, the Governor General alone; That the power of the Lieutenant Governor is limited by his commission ; that the commission to the Lieutenant Governor of the Province of Nova Scotia does not constitute him the Deputy of the Governor General to appoint Justices of the Peace for that Province; That the power to appoint Justices of the Peace in the Province of Nova Scotia rests solely with the Governor General. Held, also, that the criminal law, with the administration of which the Justices of the Peace have peculiarly to deal, is a subject of exclusive legislation by the Dominion Parliament. The facts of the case and the grounds for the decision fully appear from the following extract from the Judgment of Savary, County Judge:
On the dissolution of the former provincial Constitutions a new charter was given to the united Provinces, in which one representative of the Crown alone, under her Majesty, rules; new and subordinate governments being accorded to the different Provinces composing the federation. The Defendant not having acknowledged the jurisdiction by appearing in the Court below, as soon as it is made clear by proper proof to the Court of Review that the gentlemen acting as Justices derive their commission not from the Governor General, but from the Lieutenant Governor, the enquiry is pertinently made, in fact forced upon us, whether the latter high functionary had the power to issue such commissions. That such a power is one of the prerogatives of the Crown, a glance at the nature and history of the office is hardly necessary to show. We hear of the Queen's Peace, and of the honorable, and in England still much honored, title of Her Majesty's Justices of the Peace. “The sovereign" is the fountain of justice and the general conservator “of the peace.” Blackstone's Com., Book 1, pages 266, 350. “Before “the present constitution of Justices was invented, there were peculiar “officers appointed by the common law for the maintenance of the “public peace. Of these some had, and still have, this power annexed “to other offices which they hold; others had it merely by itself, and “were thence named custodes or conservatores pacis. Those that “were so virtute officii still continue.” At length an Act of Parliament was passed in the 1st year of the reign of Edward III. ordaining “that, for the better maintaining and keeping of “the Peace in every County, good men and lawful, which were no main“tainers of evil or barrators in the county, should be assigned to keep “the peace. And in this manner and upon this occasion was the election “of the Conservators of the Peace taken from the people and given to “the king; this assignment being construed to be by the King's com“mission. But still they were only called conservators, wardens or “keepers of the Peace, till the Statute 34 Edw. III., c. 1, gave them the “power of trying felonies; and then they acquired the more honor“able appellation of Justices. These Justices are appointed by the “King's special commission under the great seal, id., p 351.” Now, as an indispensable incident to British institutions our immigrant ancestors brought with them to the colonies this office of Justice of the Peace, with the mode of appointment, and all its other incidents. Before confederation the power was vested in the Governor General as the Queen's Representative by the express terms of the Royal Commission constituting him the Governor in chief of each Province. In the commission to Lord Monck, published in full in the Journals of the House of Assembly for 1862, Appendix No. 34, p. 1, we find the following clause: No. 8. “And we do hereby authorize and em“power you to constitute and appoint Judges, and, in cases requisite, “commissioners of Oyer and Terminer, Justices of the Peace, and “other necessary officers and ministers in our said Province, for the bet“ter administration of justice and putting the laws into execution.” “And in section 21 of the Commission we read: “And in case of your “death, incapacity or absence out of our said Province, we do by these “presents give and grant all and singular the powers and authorities herein to you granted to our Lieutenant Governor for the time “being of our said Province.” It was under this latter clause of the Royal Commission that the Lieutenant Governors under our old Constitution appointed Justices of the Peace. Let us now consider the effect of the B. N. A. Act 1867; and in view of its provisions and policy, there are two propositions which I may lay down with equal certainty. The first is, that the Parliament and Government of the Dominion constitute the supreme legislative and executive authority, subject only to the Imperial Parliament and Sovereign of the empire; that the former Provincial Legislatures and governments were merged in those of the Dominion; while the newly established local ones are, as it were, carved out of the latter, and are strictly limited in their powers to such as are conferred on them by the British North America Act.
The second is that, unlike the theory of the American Constitution by which the Parliaments of the various Sovereign States, or rather the sovereign people of each State, through their Representatives, conferred certain limited and defined powers upon the Federal Government and Congress, so that every power not expressly thus conferred is supposed still to reside in the different States, that unlike this theory every authority not expressly or by necessary implication conferred upon the local governments and legislatures by the British America Act resides in those of the Dominion. Moreover, unless the Sovereign has, by express words of a Statute to which she is a party, parted with a prerogative it still belongs to her, and no presumption to the contrary can arise. These propositions are forcibly illustrated in the judgment of the Hon. Mr. Justice Gwynne in the recent case of Lenoir vs. Ritchie reported in Canada Law Journal Vol. 15, N.S., p. 314. We turn, then, to the British America Act, and, the presumption being the other way, we must seek for some express language, transferring the prerogative, or authorizing the local and subordinate Governments to exercise it. Of course we consult those clauses of the Act which relate to the executive authority. The first of these is sect. 9, simply ordaining that the Executive Government continues vested in the Queen. Then comes section 12, enacting that all powers, authorities and functions vested in or exerciseable by the then Governors or Lieutenant Governors, under Acts of certain Parliaments, are to be exerciseable by the Governor General, so far as the same continue in existence and are capable of being exercised after the union, in relation to the Government of Canada. Under sect. 14, it is competent for the Queen by Her Royal Commission to authorize the Governor General from time to time to appoint any person or persons to be his Deputy or Deputies in any part of Canada, to exercise such of his powers as he deems it expedient to assign to him or them ; but this, as will presently be seen, although authorized thereto, he has not, in relation to this matter, done. Section 64 refers to the constitution, and not to the powers of the local Executives; and we have sect. 65 to the same effect as section 14, in respect to the exercise of the powers therein referred to, so far as the same are capable of being exercised in relation to the newly constituted Provinces.
Finally we have sect. 96, ordaining that the Governor General shall appoint the Judges of the Superior and County Courts, except the Judges of Probate of Nova Scotia and New Brunswick. In one sense, perhaps, the Court of a Justice of the Peace is as much a County Court as a Court of Probate, but, as the Act is to be construed in the light of the then existing laws, I should confine the application of this clause to the County Courts strictly so-called, then and subsequently established. But that even this is open to some question, the dissentient opinions of the Supreme Court of New Brunswick as to the validity of a local Statute establishing Parish Courts, with jurisdiction in respect to petty debts and torts, so far as it vested the appointment of the Commissioners, or Judges of those Courts, in the Lieutenant Governor, sufficiently shows. Gamong v. Bailey, Stevens Dig. 274. We find, therefore, in the Act, nothing inconsistent with the retention of this prerogative in Her Majesty's hands and the exercise of it by her duly constituted representative, the Governor General alone. But we do find, as a striking illustration of where it was intended that the Sovereign legislative and executive power of Canada, should reside; that the criminal law is a subject of exclusive legislation by the Dominion Parliament; and it is with the administration of criminal law that Justices of the Peace have peculiarly to deal. Turn we now to the Royal Commissions to the Governors General of the Dominion; and we find in that to Lord Monck, published in the Sessional Papers of the House of Commons of 1867–8, Vol. 1, No. 7, paper 22, clause 3, the following: “And we do further authorize and empower you to exercise all such “powers as we may be at any time entitled to exercise in respect of the “constitution and appointment of Judges; and in cases requisite Com“missioners of Oyer and Terminer, Justices of the Peace and other “necessary officers and Ministers of our said Dominion of Canada, for “the better administration of justice and putting the laws into execu“tion.” By Section 9 provision is made for the exercise of his functions in case of his death, incapacity, or absence from the Dominion. In Section 10 of the instructions accompanying this commission, and published in the succeeding pages of the volume, it is enjoined that all commissions to be granted to any Judge, Justice of the Peace, or other necessary officer, unless otherwise provided by law, shall be granted during pleasure only. The corresponding clause in the commission to Sir John Young (Lord Lisgar), published in Sessional Papers of 1879, is as follows: “And we do further authorize and empower you to “constitute and appoint in our name, and on our behalf, all such “Judges, Commissioners, Justices of the Peace, and other necessary “officers and Ministers of our said Dominion, as may be lawfully “constituted or appointed by us.” The same clause is repeated in the Commission to the Earl of E
Dufferin, laid on the Table of the House of Commons on the 15th day of February, 1875, in response to an address of that body of the 8th of the same month: and accompanying the commission appointing the present distinguished and noble Representative of the Crown to his high office, there is the draft of Letters patent, dated 5th October, 1878, passed under the great seal of the United Kingdom, constituting the office of Governor-General, and defining once for all, the powers and authorities to be exercised by His Excellency and all his successors. A copy of this document was transmitted and laid on the table of the Senate on the 19th day of February, 1879, and this instrument also contains the authority in question. Through the courtesy of the Honorable Provincial Secretary and his Deputy I have been able to peruse a certified copy of the Commission to His Honor the Lieutenant Governor; and I find that like the new and short commission to the present Governor General, referring for the powers and authorities conferred on him to the draft Letters patent constituting the office, so this document in general terms authorises and requires him to do and execute “all things that shall belong to ” his “ said command and the trust” reposed in him, according to the several powers and directions granted or appointed him by virtue of this “our present commission,” and of the British America Act according to the instructions therewith or from time to time given him. The powers, therefore, conferred on His Honor are limited by the British North America Act—the charter of our constitution; but I deferred giving judgment in this cause till I could peruse this commission, which I took for granted like those to Lord Monck before, and the Governor General since Confederation, had been made public by communication to the Legislature. For I would in its absence have felt inclined to presume that under the authority given to the Governors General pursuant to Section 14 of the British America Act, and contained in Section 8 of Lord Monck's, Lord Lisgar's, and the Earl of Dufferin's commissions, and of the Letters patent of 5th October, 1878, His Honor had been constituted His Excellency's Deputy for this Province to appoint Justices of the Peace, and perhaps also Sheriffs and Coroners, concerning the validity of whose appointment by the local authorities under the B. N. A. Act without such deputation many respectable Lawyers entertain considerable doubt; in which, however, as it respects this Province, I do not share. See Canada Law Journal Editorial, N. S., Vol. 16, p. 44. I do not wish it to be understood that I base this decision upon that of Lenoir v. Ritchie, for I am alive to