A Treatise on Criminal Law as Applicable to the Dominion of Canada

legislate so as to impose punishment, by way of fine or imprisonment, for enforcing the laws they make in relation to those subjects, although such legislation makes the act prohibited a crime. (a) In this case it was held that under s. 92, Nos. 9 and 16, of the British North America Act, 1867, the Local Legislature not only had the power but the exclusive right to legislate in relation to shop, tavern, and other licenses, in order to raise a revenue, and that, having such right of legislation on this subject, they had also power under No. 15 to enact that any person who, having violated any of the provisions of the Act, should compromise the offence, and any person who should be a party to such compromise should, on conviction, be imprisoned in the common gaol for three months, and that such enactment was not opposed to s. 91, No. 27, by which the criminal law is assigned exclusively to the Dominion Parliament. (b) But under No. 15, the punishment imposed by the Local Legislatures cannot be cumulative. It must be either fine, penalty, or imprisonment, and it cannot be both fine and imprisonment. (c)

In another case it has been held that, notwithstanding this section, an indictment signed by an advocate prosecuting for the crown, and as representing the AttorneyGeneral for the Province of Quebec, and not as representing the Minister of Justice for the Dominion, is valid. (d)

By the 33 Vic. c. 3, a Constitution similar to that existing in the other Provinces was granted to Manitoba, a Legislative Council and Assembly were created, and certain powers of legislation conferred on them.

While on the subject of our new Constitution and the

(a) Reg. v. Boardman, 30 U. C. Q. B. 555-6, per Richards, C. J. (b) Ib. 553.

(d) Reg. v. Downey, 13 L. C. J. 193; see also Reg. v. Reno and Anderson, 4 U. C. P. R. 281; Clemens, q. t. v. Bemer, 7 C. L. J. N. S. 126. Reg. v. Pattee, 5 U. C. P. R. 292.

British North America Act, 1867, we may be permitted to treat of the powers which this Act confers on the Parliament of Canada to imprison for contempt, this being, in fact, a consideration of the English parliamentary law prevailing in the colonies. Under s. 18, taken in connection with the 31 Vic. c. 23, the Senate, House of Commons, and the members thereof respectively, now hold, exercise and enjoy the like privileges, immunities and powers enjoyed by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland at the time of the passing of the Act, including the power of imprisoning for contempt (a): and incident to this power there is vested in the Dominion Parliament the right of judging for itself what constitutes a contempt, and of ordering the commitment to prison of persons adjudged by the House to be guilty of a contempt and breach of privilege, by a general warrant, stating simply that a contempt has been committed, without setting forth the specific grounds of the commitment. (b)

The power of imprisoning for contempt inherent in the House of Commons in England, by virtue of the law and custom of Parliament, can only be conferred on colonial Assemblies by express grant. (c) As, therefore, no such grant has been made to the Local Legislatures of the several Provinces of the Dominion, they do not possess the powers enjoyed in this respect by the Senate and House of Commons.

There is no power to imprison for contempt annexed as a necessary incident essential to the existence of a Colonial House of Assembly, by the grant of a Constitution and independent legislative powers, nor is this

(a) See The Speaker of the Legislative Assembly of Victoria, v. Glass, L. R. 3 P. C. App. 560.

(b) Ib.

power conferred as a legal incident or attribute by law annexed to the grant of the Assembly, nor does it exist by analogy to the law and custom of Parliament as part of the common law inherent in the two Houses of Parliament in the United Kingdom, or to a Court of Justice, which is a Court of Record, a Colonial House of Assembly having no judicial functions. (a)

Nor does it make any difference whether the contempt is committed in the face of the House, while sitting, or out of it, by a member or by a stranger. In Doyle v. Falconer, a member while addressing the House was called to order by the Speaker; he then used contemptuous language to the latter while in the execution of his office, and after being formally adjudged guilty of contempt by the House, he was committed by the Speaker's warrant: Held that the commitment was illegal. But a power to imprison for contempt must be distinguished from the power to preserve order and remove obstructions in the House. The latter power is a necessary incident to the creation of a Colonial Legislative Assembly (b); and although the Local Legislatures in the several Provinces of the Dominion have no power to imprison by way of punishing a contempt, yet if a member of any of these Houses is guilty of disorderly conduct in the House while sitting, and it is necessary for the preservation of order that he should be removed, he may be excluded for a time, or even expelled. The law would sanction the use of that degree of force which might be necessary to remove the person offending from the House, and to keep him excluded. The same rule would apply a fortiori to obstructions caused by any person not

(a) Doyle v. Falconer, L. R. 1 P. C. App. 328; Kielley v. Carson, 4 Moore's P. C. cases, 63: Fenton v. Hampton, 11 Moore's P. C. cases, 347; Hill v. Weldon, 3 Kerr, 1 et seq., overruling, Re Tracey, S. L. C. A. 479; McNab v. Bidwell, Draper, 152; Beaumont v. Barrett, 1 Moore's P. C. cases, 59.

(b) Doyle v. Falconer, L. R. 1 P. C. App. 328.

a member; and whenever the violation of order amounts to a breach of the peace or other legal offence, recourse may be had to the ordinary tribunals. (a)

The difference between the Dominion and respective Local Legislatures, with regard to the power of imprisoning for contempt, arises from the fact that the Imperial Parliament has, by s. 18 of the Act above referred to, empowered the former to define their privileges and immunities, while no such authority has been conferred on the latter.

When the Imperial authorities grant to a colony a Representative Assembly, with independent powers of legislation and the privilege of self-government, they cannot recall or abridge the rights once conferred (b): and the colonists will thereafter enjoy the right to legislate for themselves, subject in certain cases to the control of the Imperial Parliament. But a Colonial Act, repugnant to an Imperial statute or order made, by authority of such statute, applicable to the colony by express words or necessary intendment, is void so far as such repugnancy extends, and no farther. (c)

It has been held in several cases that the Imperial Parliament still retains power to enact laws binding upon the colonies (d): and such laws are in force in the colonies, in so far as it was the intention of Parliament that these statutes should extend to them (e): and as ceded colonies, any positive enactment of the mother country, or any mere act or regulation of the Queen, in the exercise of her royal prerogative, would have the force of law

(a) Dogle v. Falconer, L. R. 1 P. C. App. 340, per Sir J. W. Colvile. (b) Phillips v. Eyre, L. R. 6 Q. B. 19, per Willes, J. (Ex. Chr.)

(d) Smith v. McGowan, 11 U. C. Q. B. 399; Gabriel v. Derbishire, 1 U. C. C. P. 422.

(e) Jouett v. Lockwood, 2 Kerr, 683, per Chipman, C. J.; and see Imp. Stat. 28 & 29 Vic. c. 63.

here. (a) The comity of nations, however, prevails to some extent between Colonial Parliaments and the tribunals of the mother country, and when the law of a colony conflicts with that of England in respect of acts done within the jurisdiction of the colony, if an action does not lie for a wrongful act in the colony, none can be maintained in England. (b)

It seems there are some subjects pertaining to the interests of the Empire at large, as well as our own Dominion, on which a right of legislation is reserved to the Imperial Parliament. Among these the foreign relations of the colonies may certainly be included.

In giving judgment in Reg. v. Schram, (c) after stating that by the Union Act, Imp. Stat. 3 & 4 Vic. c. 35, power was given to the Local Legislatures to pass laws for the peace, welfare, and good government of the Province of Canada, such laws not being repugnant to that Act, or to such parts of 31 Geo. 3, c. 31, as were not repealed, or to any Act of the Imperial Parliament, made, or to be made, and not thereby repealed, which did or should by express enactment, or by necessary intendment, extend to the Provinces of Upper or Lower Canada, or either of them, Richards, C. J., said: "The very words of the statute 3 & 4 Vic. c. 35, seem to imply that the power to legislate on some matters was and is reserved to the Imperial Parliament, though this Province may be affected by such legislation. As long as it is admitted that the Home Government, by whom the supreme power of the empire is exercised, is the proper channel through which all our relations and intercourse with foreign governments are to be carried on, the power to pass laws to bind the whole nation, so far as regards those relations,

(a) Doe dem Anderson v. Todd, 2 U. C. Q. B. 83-4; per Robinson, C. J. (b) Phillips v. Eyre, L. R. 4 Q. B. 225.

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