The Canadian constitution in form and in fact 1923

Front matter

IMMUN

Columbia Cuiversity Lectures

THE CANADIAN CONSTITUTION IN FORM AND IN FACT

Preface

These four lectures delivered in Kent Hall in Columbia University in the City of New York, April and May, 1923, are intended to explain in some detail the actual as compared with the apparent Constitution of Canada.

It-is hoped that they may in some degree show the real democracy underlying the traditional and external monarchical form of government.

I have thought it well to confine myself in the text to somewhat general statements, reserving particulars and illustrations for the notes—which thus become rather longer and more comprehensive than is usual.

I have avoided, in great measure, drawing comparisons between the Constitution of the United States and that of Canada: it is an interesting and useful task to trace and discriminate the different methods by which two free peoples living side by side have solved their common problem of freedom combined with obedience to law—the strong temptation to enter upon this field, I have been occasionally unable to resist.

It may not be quite wise with the poet to say

For forms of government let fools contest That which is best administered is best;

but it is certainly true that the happiness and liberty of a people do not depend upon the form—‘the letter killeth, but the spirit giveth life.”

Being wholly convinced that the future of the world and of our civilization depends upon the harmonious thought, speech and action of the great English-speaking peoples— and that a thorough knowledge of each other as well in their government as in their business and daily walk and conversation would be of advantage to all, I offer these _ lectures to my brethren of the United States.

NOTE

Those who desire a more extended and intimate knowledge of the Constitution of Canada would do well to consult:

Todd’s Parliamentary Government in the British Colonies, 2nd Edition, London, Longmans, Green & Co., 1894

Bourinot’s Parliamentary Procedure and Practice in Canada, 4th Edition, Toronto, Canada Law Book Company, 1916

Bourinot’s Manual of the Constitutional History of Canada, New Edition, Toronto, The Copp, Clark Company, Ltd., 1901

Clement’s The Law of the Canadian Constitution, 3rd Edition, Toronto, The Carswell Company, Ltd., 1916

Cameron’s The Canadian Constitution, Winnipeg, Butterworth & Co. (Canada), Ltd., 1915

Lefroy’s A Short Treatise on Canadian Constitutional Law, Toronto, The Carswell Company, Ltd., 1918 (with Professor W. P. M. Kennedy’s Historical Note)

Lefroy’s The Law of Legislative Power in Canada, Toronto, The Toronto Law Book and Publishing Co., 1897-8

Egerton and Grant’s Canadian Constitutional Development, ‘Toronto, The Musson Book Co., Ltd., 1907 (?)

Lefroy’s Leading Cases in Cunadide Constitutional Law, McWilliams’ (2nd) Edition, Toronto, The Carswell Co., Ltd., 1920

Teece’s A Comparison Between the Federal Constiemen of Canada and Australia, Sydney, N. E. Smith, Ltd., 1902

Kennedy’s Documents of the Canadian Constitution, Toronto, Oxford University Press, 1918

Kennedy’s The Constitution of Canada, Oxford University Press, 1922

Riddell’s The Constitution of Canada in its History and Practical Working (Dodge Lectures, Yale University), New Haven, Yale University

Press, 1917 Borden’s Canadian Constitutional Studies, University of Toronto Press, 1922

Smith’s Federalism in North America, Boston, The Chapman Law Publishing Company, 1923

Contents

III. The Elected Legislative Houses. ....... a2

THE CONSTITUTION OF CANADA IN FORM AND IN FACT

Chapter I

The Dominion of Canada is composed of nine Provinces, one Territory (Yukon) and the “Northwest Territories” .! The Provinces have substantially the same jurisdiction, rights and powers; while the Dominion has jurisdiction, rights and powers of its own.

In considering the Constitution of Canada, it must always be kept in mind that much is unwritten, with the result that much of what is written is or may be misleading. There is real danger of one who is accustomed to a written Constitution, misunderstanding the effect of the Statutes, etc., constituting the written part of the Constitution of Canada. ~The word “Constitution” has a different connotation in American and in Canadian (i.e., British) usage. Speaking somewhat generally—in the United States, “the ‘Constitution’ is a written document containing so many letters, words and sentences, which authoritatively and without appeal dictates what shall and what shall not be done”; in Canada, the Constitution is “the totality of the principles more or less vaguely and generally stated upon which we think the people should be governed.” In Canada anything unconstitutional is wrong, however legal it may be; in the United States anything unconstitutional is illegal, however right and even advisable it may be; in the United States anything unconstitutional is illegal, in Canada to say that a measure is unconstitutional rather suggests that it is legal, but inadvisable.”

WRITTEN CONSTITUTION

The Written Constitution of Canada is to be found in The British North America Act, 1867 (in citation usually contracted to “B. N. A. Act”) and amending Acts.

The B. N. A. Act is in form and legal effect a Statute of the Imperial Parliament at Westminster; in fact, it is a contract agreed upon by Canadian statesmen and given legal validity by the Imperial Parliament.

For various reasons,’ the former Provinces, Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, were dissatisfied with their condition; and after a conference in Charlottetown, P. E. I., of representative statesmen from the “Maritime Provinces,” (which was visited by representatives from Canada), representatives from the five Provinces met in Quebec, in October, 1864, and passed Resolutions which formed the basis of the British North America Act, 1867.4

Prince Edward Island and Newfoundland declined to become part of the proposed confederation or Union; and the Act was drawn up and passed, forming Canada, Nova Scotia and New Brunswick into the “Dominion of Canada”, with four separate Provinces. The Act provided for the admission of Newfoundland, Prince Edward Island and British Columbia into the Union, on an Address from the Parliament of Canada and the Legislature of the Province. The two latter have taken advantage of this provision, but Newfoundland still stands apart.®

AMENDMENTS TO THE WRITTEN CONSTITUTION OF THE DOMINION

There is no provision in the B. N. A. Act for amendments thereto; the reason is historical.

The old Province of Lower Canada which expired as a legal entity in 1841 by the effect of the Union Act® which united the Provinces of Upper Canada and Lower Canada into the Province of Canada, was largely populated by French-Canadians almost all of whom were Catholic and much attached to their old law and customs; the remainder of the people of the new Dominion were largely English-speaking and Protestant, in general attached to English law and customs. While the French-Canadians were willing to enter into a contract with their English-speaking brethren, they were not willing to enter into a contract which could be varied by the more numerous English without their consent.

There is, however, no difficulty in having an Amendment made if and when desired. An Address to the Sovereign is passed by both Houses of Parliament at Ottawa asking for the Amendment specified. According to the unwritten Constitution, the vote on the Address must be unanimous (or practically unanimous) or it will not be forwarded to London. When the Address is received by the Colonial Secretary in London, the desired amendment to the B. N. A. Act is passed by the Imperial Parliament as of course and without debate. This is, in substance, simply giving legal validity to an amendment agreed upon by the parties to the original contract, which they desire to amend.’

AMENDMENTS TO THE CONSTITUTION OF THE PROVINCES

The scheme of Confederation being that there should be a number of Provinces, each with jurisdiction over matters of local concern, property, civil rights, etc., in the Province, and it being intended that the former Province of Lower Canada should be one of such Provinces, there was no objection on the part of the French-Canadians to allowing the Provinces to change their written Constitution in most particulars. One matter, however, it was agreed on all hands must be provided for—Canada was to remain British; she was not, however democraric, to become Republican. The Preamble to the B. N. A. Act expressly declares the undoubted fact that the desire of the Provinces was “to be federally united under the Crown of the United Kingdom”; and the Provinces were guaranteed against any change in this relationship, just as the Constitution of the United States guarantees to every State a republican form of government.®

The B. N. A. Act therefore provides that “in each Province, the Legislature may exclusively make laws in relation to... The Amendment from time to time... of the Constitution of the Province except as regards the office of the Lieutenant-Governor.” While the Lieutenant-Governor of the Province is appointed by the Dominion, he directly represents the Sovereign in the Province, and his office, as at present constituted, is a guaranty of the Province remaining under the Crown of the United Kingdom and a part of the British Commonwealth.

Many changes have been made by the Provinces: Second Chambers have been abolished, leaving the Legislature with only one House; certain named persons have been declared members of the Legislative Assembly without election; the term of a Legislature has been extended by the Legislature itself, etc., etc.; but an attempt to give the people the power to make or repeal laws by direct vote by Initiative and Referendum proved futile, as the Courts held that this would interfere with the office of the Lieuten - ant-Governor who was the official head of the Legislature.®

LEGISLATIVE POWERS IN CANADA NOT DELEGATED

The legal conception of the powers of the Parliament of the Dominion and the Legislatures of the Provinces is that they are a grant by the Imperial Parliament through the B. N. A. Act and amending Acts. It might consequently be considered that these powers are delegated and are limited by the maxim, Delegatus non potest delegare. But that view has been authoritatively and definitely negatived. “It rests upon a mistaken view of . . . the nature and principles of legislation. The ... 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 these 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 [the Imperial] Parliament itself.” 1° And “the power ... of [the Imperial] Parliament is so transcendent and absolute that it cannot be confined either for causes or persons, within any bounds. . . . It has sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws concerning matters of all possible denominations.”#4 “In short, the Legislature within its jurisdiction can do everything that is not naturally impossible and is restrained by no rule, human or divine.” ”

In respect of Canada, the whole ambit of legislation concerning matters of all possible denominations in Canada is divided between the Dominion and the Provinces, as in the United States between the United States and the States: differing however from the rule in the United States, any subject not expressly allotted to the Provinces falls to the Dominion.

Speaking generally, the Provinces have jurisdiction in civil law and matters of a local or private nature, the Dominion in criminal law and matters of a general nature affecting the whole of Canada.®

There is nothing in the way of “Constitution Limitations” in Canada any more than there is in England: once the subject of legislation is found to be within the jurisdiction of Dominion or of Province, the power must be held to be absolute. When a question arises whether the prescribed limits have been exceeded, the Courts must of necessity determine that question by looking to the terms of the B. N. A. Act and amending Acts. If what has been done is legislation within the scope of the words giving the power, the Court must so decide; but it is not for any Court of Justice to inquire further. Where there is jurisdiction over the subject matter, considerations of hardship or injustice have no weight.

As the legislatures of the Dominion and the Provinces are not delegates, they may and often do intrust Commissioners with the exercise of their powers.!*

NOTES TO CHAPTER I

10f these, Nova Scotia and New Brunswick were separate Provinces before the coming into force, July 1, 1867, of the British North America Act (1867), 30, 31 Vict. C. 3, (Imp.). Ontario and Quebec from 1791, Canada or Constitutional Act, 31 Geo. III, C. 31 (Imp.), until 1841, The Union Act, (1840), 3, 4 Vict. C. 35 (Imp.), were separate Provinces as Upper Canada and Lower Canada, having been formed by the division into two parts of the old Province of Quebec which had been created by The Quebec Act (1774), 14 Geo. III, C. 83, (Imp.): that former Province of Quebec was an enlargement to the West and South of the original “Government” of Quebec (see the Royal Proclamation of October 7, 1763); but it had been seriously diminished in area de facto and more de jure by the Definitive Treaty of September 3, 1783. (De jure and de facto became one under “Jay’s Treaty” of Amity, Commerce and Navigation, of November 19, 1794).

The original Dominion of Canada, formed July 1, 1867; by the B. N. A. Act, was composed of four Provinces, Ontario, Quebec, Nova Scotia and New Brunswick.

Manitoba became the fifth Province, being carved out of the immense Hudson Bay Territory bought by the Dominion in 1870 and formed into a Province by the Dominion Act of May 12, 1870, 33 Vict. C. 3, (Dom.).

In 1871, British Columbia became the sixth Province. It had been formed in 1866 by the union of the two provinces of British Columbia and Vancouver Island under the Act (1866) 29, 30 Vict. C. 67, (Imp.).

In 1873, Prince Edward Island became the seventh Province. Imperial Order-in-Council at Windsor, June 26, 1873.

In 1905, Alberta and Saskatchewan became the eighth and ninth Proyinces, being formed from part of the Northwestern Territory, etc., by the Dominion Acts, (1905), 4, 5 Edw. VII, CC. 3 and 42, (Dom.).

The Yukon Territory bordering on Alaska was originally formed as the

“Yukon Judicial District” by the Proclamation of the Governor-in-Council (Dominion) of August 16, 1897; and became the Yukon Territory, June 18, 1898, under the Act, (1898), 61 Vict. C. 6, (Dom.).

All the remainder of Canada is “The Northwest Territories,” (1905), 4, 5, Edw. VII, C. 27, (Dom.); (1906), R.S. C. C. 62, the District of Keewatin having disappeared under the Dominion Proclamation of July 24, 1905, authorized by the Act, R. S. C., (1887), C. 53, Sec. 3 (2), (Dom.).

2My own language in substance in “The Constitution of Canada in its History and Practical Working” (Dodge Lectures, Yale University) Yale University Press, 1917, p. 52. See Bell vs. Town of Burlington, (1915), 34 Ont. L. Rep., 619, at p. 622, per Riddell, J. (Appellate Division, Supreme Court of Ontario).

The American use of the word “constitutional,” “unconstitutional,” etc., is perhaps being more extensively followed by Canadian lawyers and statesmen by reason of the constant reference to American authorities: careful speakers and writers, however, use the terminology, intra vires, ulira vires, etc. It may assist an American to understand our use of the words “constitutional” and “unconstitutional” if he considers the “Electoral College.” The Electoral College was expressly adopted to avoid the dangers of the election of the President of the United States by popular vote—the people would be led by a few active and designing men (Pinckney of South Carolina), the ignorance of the people would find it in the power of one set of men dispersed through the Union and acting in concert to delude the people into any appointment (Gerry of Massachusetts) and it would be as unnatural to refer the choice of Chief Magistrate to the people as it would be to refer a trial of colour to a blind man (Mason of Virginia). Accordingly, it was decided that the election of the President should be placed in the hands of a select body of gentlemen; in theory, these gentlemen were to exercise an independent judgment as to the best man for the position. The nation was to trust to their impartiality, integrity, intelligence and patriotism to make the best choice possible; and naturally their character, their independence of partyism and faction, their judgment and candor were all important. We know the fact; we know that the personality of the elector does not count; we know in advance how the elector will vote; as soon as we know who the electors are, we know who is to be the President.

No one doubts that if the Electoral College in 1912 had elected Mr. Taft, the election would have been legal and “constitutional” in the United States sense, but it would have been “unconstitutional” in the Canadian (British) sense. “It isn’t done.” See a paper “The Second President Lincoln,” Trans. Royal Society of Canada, Vol. 15, 3rd Series, 1921, section II, pp. 135, sqq.

3The “Trent Affair” of 1861 showed a possibility of trouble with the United States; the agitation for the revocation of the Elgin-Marcy Reciprocity Treaty of 1854 indicated the necessity of the trade routes being east and west instead of north and south; there was no little truculence amongst certain classes in the United States toward Britain during and succeeding the Civil War, and some politicians urged the acquisition of Canada— “Annexation” ;—it may be remembered that the Fenian Invasions of 1866 and 1867 were from the United States, and that General Grant said that if Sherman could not conquer Canada in thirty days, he should lose his commission—the Provinces felt the need of a common defence and a common trade policy without hampering inter-provincial custom houses; the Province of Canada was distracted over the question of representation in Parliament of the two parts, Upper Canada or Canada West (afterwards Ontario) and Lower Canada or Canada East (afterwards Quebec); the Maritime Provinces wanted railway connection with the west and Canada with the east. Such were some of the moving influences which brought about Confederation.

4“The B. N.A. Act . . . should be viewed as a Treaty” (Lord Carnarvon). There was no change made at Westminster in the Bill drawn up by the Colonial representatives. Stanley, the Colonial Secretary, indeed suggested that the term “Kingdom of Canada” intended to be used, might be unpalatable to the United States, and the term “Dominion of Canada” was substituted to avoid hurting the supposed susceptibilities of our neighbours to the south. The word “Dominion” was adopted from Psalms, 72, 8—“dominion from sea to sea and from the river unto the ends of the earth,” an aspiration and a prophecy.

5What was actually done was that the authorities of the Dominion and of the Province arranged terms by negotiation, the Parliaments passed an Address to the Queen, and thereupon the “Queen by and with the advice of Her Majesty’s Most Honourable Privy Council” passed an order in Council “to admit the Province into the Union . . . on such terms and conditions in each case as are in the addresses expressed and as the Queen thinks fit to approve,” B. N. A. Act (1867), C. 146—all this was mere matter of routine except the negotiation of the terms by Dominion and Province.

6The Union Act, (1840), 3, 4, Vict. C. 35, (Imp.) by section 1, empowered Her Majesty to declare or to authorize the Governor-General of the two Provinces of Upper Canada and Lower Canada to declare that the two Provinces from and after a certain day to be stated in the Proclamation, should form and constitute one Province, called the Province of Canada. The Act was assented to, July 23, 1840; the Queen, with the advice of Her Privy Council (in other words, the Imperial Government) on August 10, 1840, authorized the Governor-General to declare by Proclamation that the two Provinces should form and be one Province; Lord Sydenham, the Governor- General, by Proclamation dated February 3, 1841, fixed February 7, 1841, for the Union.

Thereafter until July 1, 1867, there was the one Province of Canada; but each part had geographically and for many purposes a separate name, i.e., Upper Canada or Canada West and Lower Canada or Canada East.

7There have been a number of Amendments to the B. N. A. Act of more or less importance: it may. be of interest to mention them.

1869,

1—When Canada bought the enormous Rupert’s Land from the Hudson Bay Company for £300,000, the Imperial Treasury was asked to guarantee the loan to be effected by Canada for paying the Company; and agreed to do so On condition that the sum should be a first charge on the Consolidated

Revenue Fund of Canada. This was agreed to, and the Imperial Parliament passed an Act to prevent the Dominion by any Statute impairing such priority, (1869) 32, 33 Vict. C. ror (Imp.).

This limitation of the powers of the Dominion was for financial reasons for a temporary purpose, and is not of consequence.

1870,

2—A similar Act was passed in 1870 in respect of the guaranty by the Imperial Treasury of £1,100,000 to be borrowed for the construction of fortifications, (1870) 33, 34 Vict. C. 82 (Imp.). (A similar Act was passed in 1892, 55, 56 Vict. C. 32 (Imp.), when the Imperial Treasury had agreed to loan up to £150,000 to enable the Province of British Columbia to settle “crofters” from Scotland in that Province, the Province to repay the loan by debentures charged upon the Revenues of the Province. Section 4 of this Act prevented the Province impairing the validity or priority of this charge without the consent of the Treasury).

1871,

3—In 1871, an Act was passed to remove the doubt that had arisen in respect to the power of the Dominion to establish Provinces and to provide for the representation of such Provinces. (1871) 34 Vict. C. 28, (Imp.). (The Act also declared valid certain statutes of the Dominion as to Rupert’s Land and Manitoba.)

1875,

4—Doubts having arisen as to the privileges, immunities and powers of the Canadian Houses of Parliament and the members thereof, an Act was passed in 1875 to remove such doubts. (1875) 38, 39 Vict. C. 38, (Imp.).

1895,

5— The Parliament of Canada in 1894 passed an Act, 57, 58 Vict. C. 11, (Dom.), providing for the appointment of a Deputy Speaker of the Senate during the absence or illness of the Speaker; but in view of the provision in the B. N. A. Act, sec. 34, for the appointment of a Speaker only, there was doubt expressed as to the power to appoint a Deputy; and the Canadian Act contained a provision, sec. 4, that it should “not come into force until Her Majesty’s pleasure thereon has been signified by proclamation in the Canada Gazette.” Thereupon was passed the Act (1895) 59 Vict. C. 3, (Imp.), to remove such doubt; and the Canadian Act came into force. 1907,

6—The B. N. A. Act, secs. 118, 119, provides for certain yearly payments by the Dominion to the original four Provinces; and there were, dehors the B.N.A. Act, provisions for paying certain sums annually to the other Provinces; the Provinces complained of the inadequacy of such payments, and after considerable agitation and negotiation, another basis of payment was atrived at. An Act was thereupon passed, (1907), 7 Edw. VII, C. 11 (Imp.), providing for grants on the new basis.

1915,

q—The B. N. A. Act, sec. 21, provides for 72 Senators; the number was increased on the admission of new Provinces into the Union, and a readjustment became advisable. Moreover the provision in the B. N. A. Act, sec. 51,

—_ for the decennial readjustment according to population of the representation in the House of Commons was found to work a hardship in a small Province with practically stationary population. An Act was accordingly passed, (1915) 5, 6, Geo. V, C. 45, (Imp.), fixing the number of Senators and providing that each Province should have at least as many members of the House of Commons as it had Senators.

IgI6, 8—The B. N. A. Act, sec. 30, provides that “Every House of Commons shall continue for five years . . . and no longer”; all parties in 1915 when the

War was raging, agreed that it would not be well to have a General Election at that time; and both Houses of Parliament at Ottawa presented an Address, passed unanimously, to the King to have the term of the existing Parliament extended; otherwise, under the provisions of sec. 50 of the B. N. A. Act there must be an election. Accordingly the Act (1916) 6, 7, Geo. V, C. 19 (Imp.) was passed, June I, 1916, extending the term of the existing Parliament until October 7, 1917. At the next sittings of the Canadian Parliament, a Resolution was introduced into the House of Commons at Ottawa by the Government for an Address asking another extension; but while the Government had a majority, 82 to 62, there was a substantial minority; and the matter was dropped, Sir Robert Borden, the then Prime Minister, saying that in the absence of “unanimity or practical unanimity”, the resolution should not be acted upon. Accordingly there was a General Election in 1917.

Of these Amendments it will be observed Nos. 1, 2 and 8, were for a temporary purpose and have no lasting effect; Nos. 3, 4, and 5, are rather declaratory than amending; No. 6 carried into effect a financial arrangement between the Dominion and the Provinces, and No. 7 gives legal validity to a scheme for representation, etc., determined upon in the Dominion. Only No.7 is really a “Constitutional Amendment” in any practical sense.

8Constitution of the United States, article IV, section 4 “The United States shall guarantee to every State in this Union, a Republican Form of Government. . .”

9Prince Edward Island, coming into the Dominion in 1873 withtwo Houses, abolished her Legislative Council in the same year; Manitoba, formed in 1870 with two Houses,abolished her Legislative Council in 1876; New Brunswick, one of the original four Provinces of the Dominion in 1867 with two Houses, abolished her Legislative Council in 1891. There are but two Provinces now with two Houses, viz., Nova Scotia and Quebec: Ontario, Alberta and Saskatchewan never had a Second Chamber, and British Columbia abolished hers in 1871 before entering the Dominion.

In 1918, the Legislature of Ontario passed an Act, 8 Geo. V,C. 4, (Ont.), continuing its own life until it should have held one session after the close of the war. One member of the Assembly spoke against the extension on the ground that it was unconstitutional; and beyond question such an Act would be unconstitutional in our sense in the absence of extraordinary circumstances: it never would be unconstitutional in the American sense of the word. (This was much like legislation in Britain and in Newfoundland, (1918)

THE CONSTITUTION II

8, 9 Geo. V, C. 2, (Nfld.).) In Britain the maximum duration of a Parliament was in 1715 fixed at seven years by the Act, 1 Geo. I, Stat. 2, C. 38, (Imp.); this term was shortened to five years by the Act (1911), 1, 2 Geo. V, C. 13, (Imp.). During the war, Parliament extended its own life to five years and eight months by the Act, (1915) 5, 6, Geo. V, C. 100, (Imp.); then to six years and three months, (1916), 6, 7, Geo. V, C. 44, (Imp.), and the following year to six years and:ten months, (1917), 7 Geo. V, C. 13, (Imp.). It must be remembered that this Parliament had been elected under the Act of r9rt for five years as a maximum.

Alberta by the Act of 1917, C. 38, (Alta.), enacted that twelve of the members of the Legislative Assembly named who had enlisted for Overseas Service should be members of the next Legislative Assembly for the Constituencies which they represented in the existing Assembly.

The Act mentioned in the Text as having been held wlira vires (“unconstitutional” in the American sense of the word) was “The Initiative and Referendum Act” of Manitoba, (1916), 6 Geo. V, C. 59, (Man.); it provides that a proposed law may be submitted in a Petition to the Legislative Assembly of electors not less in number than eight per cent of the number of the votes polled at the last election; unless this law be enacted by the Assembly in the same Session substantially as submitted, it must be submitted to a vote of the electors at the next General Election (unless a special Referendum vote be asked for in the Petition, in which case the vote is usually to be taken within six months of the presentation of the Petition). If approved by the vote, it becomes law within 30 days subject to the powers of veto and disallowance provided in the B. N. A. Act. A number of electors equivalent to not less than five per cent of the number of votes at the last election may petition for the repeal of any law, and much the same process may then be gone through. There are also certain provisions not of importance here.

The Court of Appeal of Manitoba, reversing the pro forma judgment of the Chief Justice of the King’s Bench, held this legislation ulira vires of the Province; re The Initiative and Referendum Act (1916) 27 Man. L. R., 1; and this decision was affirmed by the Judicial Committee of the Privy Council, (1919) A. C., 935, on the ground that the Act “would compel the Lieutenant-Governor to submit the proposed law to a body totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters.”