Constitution of Canada

CONSTITUTION OF CANADA.

PREFACE,

THE design of this work is not to be a commentary upon the text of the Federal compact, but, to bring together, by the side of the text, the decisions of the Courts, with the dicta of judges and statesmen; and to discover the principles which will aid those engaged in framing Federal or Provincial laws, and the legal profession generally in the interpretation of the Constitution of the Country.

Previous to "The British North America Act, 1867," the Provincial Courts did not consider they possessed the power of enquiring and deciding whether the laws of their respective Legislatures were constitutional or not. Occasional attempts were made to test the validity of statutes, but they were ineffectual in their results. It has been and is quite different under the Federal Act. The Supreme Court of Canada and the Privy Council in England, have both concurred in recognizing the right, assumed by the Provincial Courts of original and appellate jurisdiction, to pass upon the constitutionality of the laws enacted by the Provincial Legislatures and the Parliament of Canada. This was anticipated by the framers of the Act, as appears by the Debates in the House of Commons.

On the 4th of March, 1867, when the Bill was under discussion, in the Imperial Parliament, Mr. Cardwell said: "As matters now stand, if the Legislatures of Canada acted ultra vires, the question would first be raised in the Colonial Law Courts, and would ultimately be settled by the Privy Council at home."

Important decisions of the Privy Council, of the Supreme Court of Canada, and of the various Provincial Courts, have been already re

ported, pronouncing upon the validity of the Dominion and Provincial Statute Laws, and, on many points settling the principles that should be applied in the construction of the Confederation Act, and defining the limit and scope of Federal and Provincial Legislation.

It may be thought by some, inadvisable, to have noted so many decisions of the Federal Court of the United States, but it will be remarked, how frequently our Judges have been compelled, in the absence of other precedents, to look to the decisions of the highest Court of that Confederacy; for, that Republic also consists of Federal Union of separate Sovereign States with a written constitution prescribing the sphere of action of the Central Government and of the Local Governments; and this necessarily required continual appeals to the Judiciary to define, determine, and settle, the line of demarkation between these two jurisdictions. Several cases have been reported more at length than many may, at first sight, deem expedient or desirable for a work of this kind; but it must be borne in mind that these are recent and important cases, involving many issues of great moment, which have been discussed with great ability by the Judges of the Court of last resort in this Dominion.

But, for those who do not lose sight of the fact that we are on the threshold of a new system of national existence, and, from want of an experience that time alone can give, are deprived of any great number of judicial decisions, no apology will be necessary.

The Quebec Resolutions of 1864, and the Constitution of the United States have been added, for the reason, that a ready reference to them is useful, if not necessary, in the study of the Constitutional Act of Canada.

It is but just to acknowledge, here, the efficient assistance afforded in our preparation of this work by L. H. Pignolet, Esq., of the Montreal Bar, and by A. A. Stockton, Esq., of the St. John, N. B., Bar, to whom the Author tenders his cordial thanks and this expression of his gratitude.