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QUEBEC

65. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the RESOLUTIONS. period of ten years from the time when the Union takes effect, an additional allowance of $63,000 per annum shall be made to that Province. But that so long as the liability of that Province remains under $7,000,000, a deduction equal to the interest on such deficiency shall be made from the $63,000. (B. N. A. Act, s. 119.)

66. In consideration of the surrender to the General Government, by Newfoundland, of all its rights in Mines and Minerals, and of all the ungranted and unoccupied Lands of the Crown, it is agreed that the sum of $150,000 shall each year be paid to that Province by semi-annual payments; provided that that Colony shall retain the right of opening, constructing and controlling roads and bridges through any of the said lands, subject to any laws which the General Parliament may pass in respect of the same.

67. All engagements that may, before the Union, be entered into with the Imperial Government for the defence of the country, shall be assumed by the General Government.

68, The General Government shall secure without delay, the completion of the Intercolonial Railway from Rivière du Loup, through New Brunswick, to Truro in Nova Scotia. (B. N. A. Act, s. 145.)

69. The communications with the North-West Territory, and the improvements required for the development of the trade of the Great West with the seaboard, are regarded by this Conference as subjects of the highest importance to the Federated Provinces, and shall be prosecuted at the earliest possible period that the state of the finances will permit.

70. The sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference.

71. That Her Majesty the Queen be solicited to determine the rank and naine of the Federated Provinces.

72. The proceedings of the Conference shall be authenticated by the signatures of the Delegates. and submitted by each Delegation to its own Government, and the Chairman is authorized to submit a copy to the Governor-General for transmission to the Secretary of State for the Colonies.

APPENDIX. II

RUSSELL

v.

This Appendix contains the argument in Russell v. The Queen as THE QUEEN. reported 7 App. Cas. 829, the report of that case as printed in this volume having been taken from the Law Times which did not give any argument.

ARGUMENT.

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Mr. Benjamin, Q.C., and Mr. Reginald Brown for the appellant, contended that the Dominion Parliament had no power to pass the Act in question: see Citizens Insurance Company v. Parsons (1), according to which it is not necessary to shew that the Act comes exclusively within sect. 91 of the B. N. A. Act, 1867, for the two sections may be read together. Reference was made to sects. 91 and 92, sub-sects. 9, 13, 16, to sects. 94 and 121. The rules laid down in Parsons' Case (1) are that it must be ascertained (1) whether the subject comes within any of the classes enumerated under sect. 92; (2) if so, does it also come within any of the classes enumerated under sect. 91; (3) if it is within both, is the power of the Provincial Legislature overborne by the power of the Dominion Parliament. Up to the time of the passing of the Act of 1867 the Legislatures of the several Provinces had always exercised the power of dealing with the sale of liquors within their Provinces, and with the granting of licenses for the purposes of local revenue. They distributed the right of granting such licenses amongst the various municipalities for purely local purposes: see New Brunswick Acts, 11 Vict. c. 61, s. 59; 17 Vict. c. 15, s. 21; 22 Vict. c. 8, s. 74;30 Vict. c. 10, s. 32. All provided fees for licenses. Under the Provincial Acts prior to 1867, the municipalities had a revenue, the power of legislating with regard to which is preserved to the Provincial Legislatures by sub-sect. 9 of sect. 92. These licensing powers were continued in the municipalities by sect. 29 of 39 Vict. c. 105 (Consolidated Statutes of New Brunswick, 1876), and were in force up to the 1st of May, 1879. The Local Legislatures had exclusive power to raise money by licenses, and the Dominion cannot interfere therewith by legislating with regard to the commodities which are the subjects of licenses. The Legislature having treated this as

(1) 7 App. Cas. 96, 107; ante, vol. 1, p. 265.

RUSSELL

2'.

THE QUEEN

a local matter, can the Courts say that it is not? This is a law in relation to licenses of a local nature; if a criminal law it comes under sub-sect. 15 of sect. 92. It is not a law for the peace, order and good government of Canada, for it is a law relating to a locality. ARGUMENT, If it applied to the whole Dominion without local option, it would then be within the power of the Dominion Parliament. Reference was made to Keefe v. McLennan (1) decided 12th December, 1876, and L'Union St. Jacques de Montreal v. Belisle (2). Even if the Dominion Parliament possessed the powers which it assumed to exercise by this Act, it had no power to delegate them and to give local authorities the right to say whether the provisions of the Act should be operative or not.

(SIR MONTAGUE E. SMITH:-Their Lordships do not require to hear the respondent's counsel in reference to sub-sects. 9 and 13, but only in regard to sub-sect. 16.)

Mr. Maclaren, Q.C., and Mr. Fullarton for the respondent :— The words "matters of a merely local or private nature in the Province" mean matters, the interest or effect of which does not transcend the locality or the private person. If a matter can only affect the particular locality directly or indirectly, then it is left to local legislation. If, on the other hand, such private or local matter falls within any of the subjects enumerated in sect. 91, provincial legislation cannot deal with it. Drunkenness affects the whole community, its character, health, and efficiency more than any other matter; and giving local option does not render the Act which deals with such a matter local in its nature. On the contrary, local option is usually given where the subject is of great general interest, opinion divided as to the change, and large interests threatened thereby. This is the case here. One test whether a matter is "merely" (a restrictive word) local or private is the magnitude of the interests involved, such as temperance, education, public rights, health etc. Reference was made to the Quebec Resolutions (No. 45), which are referred to in the preamble of the Act of 1867 as the foundation of the Act: See Doutre's Constitution of Canada, Appendix page 389. The Resolution No 45 is given effect to by the words in sect. 91: 66 Notwithstanding anything in this Act," etc., Reference was then made to The Queen v. Justices of King's (3); The Queen v. Taylor (4); Cooey v. Municipality of the Corpor

etc.

(1) 2 R. & C. 5; ante, p. 400.

(2) L. R. 6 P. C. 31; ante, vol. 1. p. 63.

(3) 2 Pug. 535; ante, p. 499.

(4) 36 U. C. Q. B. 218.

RUSSELL

v.

ation of Brome (1); Hart et la Corporation du Comté de Missisquoi 2); Poitras v. Corporation of Quebec (3); The Queen v. Boardman THE QUEEN. (4). The condition annexed to the legislation involved in giving ARGUMENT. local option does not imply any delegation of legislative power. The Queen v. Burah (5).

Further, the case comes within the words, "regulation of trade and commerce" in sect. 91, sub-s. 2. The Act, moreover, is a criminal statute, creating a new offence, the whole tenor being of a criminal nature; see 31 Vict. c. 1 (Interpretation Act), s. 7, sub-s. 20 (Canada) making this offence a misdemeanor. It is therefore within sect. 91, sub-s. 20. (SIR JAMES HANNEN:-If the subject matter be purely provincial, could the Dominion Parliament take possession of it by making it criminal?) The following are instances of Acts originally of merely municipal character, but since the B. N. A. Act, 1867, dealt with by Dominion legislation: cf. 32 & 33 Vict. c. 28, c. 27, and c. 22, ss. 25, 26, as respectively affecting 29 & 30 Vict. c. 51 (Canada), s. 284, sub-ss. 8, 9: s. 269, sub-s. 5, and sub-ss. 13, 14.

Brown replied.

(1) 21 L. C. J. 183;'ante; p. 385.
(2) 2 Q. L. R. 170; ante, p. 382.
(3) 9 Rev. Leg. 531; ante, p. 376, n.

(4) 30 U. C. Q. B. 553; an te, 1, p. 676.

(5) 3 App. Cas. 889, 906.

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(13)

90. 91

(1)

(2)

....

.514, 689.

.4, 18, 19, 22, 23, 26, 35, 41, 47, 51, 52, 55-60, 62, 83-85. 106, 110, 15, 118-120, 122, 234, 262, 264, 267, 268, 287, 292, 296, 299, 312, 336, 339, 350, 385, 391, 393, 397, 398, 413, 417, 425, 441,

495, 504, 532, 542, 546, 556, 584, 648, 653.

.163.

...35, 41, 47, 344, 383, 393, 402, 504.

(3) ....383, 402.

(7)

(10)

(12) ....86, 107, 108, 110, 112, 120,

273, 440, 441, 443, 444, 517.

278, 547.

..59, 60, 107.

19, 21, 23, 42, 62, 86, 106, 108, 110, 278, 289, 386, 534, 556.

(14) ....299, 423, 491, 510, 512, 515, 518, 519, 522, 534, 597, 604, 636, 637, 642, 648, 663, 668, 671, ...23, 42, 294, 295, 297, 299, 313, 321, 322, 325, 358,

(15)

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..399.

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549.

(3)

.464, 465, 475.

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.40, 414.

..224.

.317-319, 510, 511, 512, 515, 519, 520, 522-524,

642, 667, 671, 676.

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.408, 515, 519.

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