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REPORT Of a Committee of the Honourable the Privy Council of Canada, respecting the Acts of the Province… British Columbia. Legislative Assembly. 1880

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 43 Vic. Correspondence—Acts of 1879. 451
REPORT
Of a Committee of the Honourable the Privy Council of Canada, respecting the
Acts of the Province of British Columbia, passed during the Session of 1879.
By Command.
GEO. A. WALKEM,
Attorney- General.
Copy of a Report of a   Committee of the Honourable the Privy  Council approved by His
Excellency the Governor-General in Council, on the 15th May, 1880.
On a Report, dated 8th May, 1880, from the Hon. the Minister of Justice, upon two
Acts passed by the Legislature of the Province of British Columbia in the year 1879,
received by the Hon. the Secretary of State on the 2nd day of July, 1879, as follows:—
Chap. 12. "An Act to amend tbe practice and procedure of the Supreme Court of
British Columbia, and for purposes relating to the better administration of justice."
Chap. 13. "Judicial District Act, 1879."
On the recommendation of tho Hon. the Minister of Justice, the Committee advise
that the above two Acts be left to their operation.
Certified.
(Signed)       J. 0. Cote,
Clerk Privy Council.
Department op Justice,
Ottawa, 8th May, 1880.
1 have the honour to report upon two Acts passed by the Legislature of British
Columbia in the year 1879, received by the Secretary of State on the 2nd day of-July,
1879, as follows :—
Chap. 12. "An Act to amend the practice and procedure of the Supreme Court of
British Columbia, and for other purposes relating to the better administration of justice."
A very strong protest against this Act, by reason of the provisions of the 17th
section, has been received from the three Judges of the Supreme Court of British
Columbia.
Tho 17th section empowers the Lieutenant-Governor, by Order in Council, to make
rules, to be styled "Rules of Court," for carrying the Act into force, for regulating the
sittings of the Court, &c, for pleading, practice, and procedure, duties of officers, rights
of counsel, &c.
The Judges, in effect, contend that they are by this section placed more under the
control of the Local Government than they should be, claiming that they are Dominion
officers and that their independence as Judges may be interfered with by the powers
given the Lieutenant-Governor in Council under the 17th section of the Act.
With the exception of the 14th section, to which reference will be made below, the
Judges do not make any other objection to tbe Act, and from the correspondence transmitted it appears that, with tho exception of the 14th and 17th sections, the Act was
substantially framed by tbe Judges themselves.
The legislative authority over the administration of justice in the Province, including the constitution, maintenance, and organization of Provincial Courts, both of civil
and criminal jurisdiction, and including procedure in civil matters in those Courts which
is vested in the Provincial Legislatures, seems clearly to authorize the making of the
provisions contained in tbe 17th section, and unless there be grave reason to the contrary course which has been adopted by this Government heretofore-in dealing with
Provincial legislation, would seem to require .that provisions so clearly within the. 452 Correspondence—Acts of 1879. 1880
powers of the Local Legislature should be left to their operation, notwithstanding that
they, or some of them, may not accord with the views which will be entertained respecting the expediency of such provisions.
Had the Provincial Legislature seen fit to confer on the Judges themselves the
power of making the Rules of Court, as has been done in England, in Ontario and other
Provinces, and as was done by the Parliament of Canada when establishing Supreme
and Exchequer Courts, such a course would, I think, have been more satisfactory.
The Attorney-General of British Columbia has, however, made a report setting out
the reasons why power was given to the Governor in Council, instead of Judges, to make
the Rules of Court. A copy of this report was transmitted b}7 the Lieutenant-Governor
to this Government.
The llth section is as follows:—"Courts of Assize and Nisi Prius, or of Oyer and
"Terminer and General Gaol Delivery, may be held with or without commissions, at
"such times and places as tbe Lieutenant-Governor may direct; and when no such commis-
"sions are issued, the said Courts, or either of them, shall be presided over by the Chief
"Justice or one of the other Judges of the said Supreme Court, either of whom, as the
" case may be, may, in civil proceedings, reserve the giving of his final decision on
"questions raised at the trial, and his decision, whenever given, shall be considered as if
"given at the time of the trial."
The Judges are of opinion that so far as this section assumes to change the present
practice of holding Courts for the trial of criminal cases, it is beyond the powers of the
Provincial Legislature, as affecting procedure in criminal matters.
In the case of the Queen v. Arner, reported in 42, Q. B. Reports of Ontario, page 391.
Mr Justice—now Chief Justice—Adam Wilson, expresses opinions which go far to show
that the provisions of the section now under consideration are within the competency
of a Provincial Legislature. The matter is by no means so clear as to warrant me in
recommending the disallowance of the Act.
On the whole, therefore, I recommend that the Act be left to its operation.
Chap. 13. "Judicial District Act, 1879."
This Act has also been protested against by the Judges.
Their protest is against three Acts which they declare should be taken as one piece
of legislation, namely,—
The "Better Administration of Justice Act, 1878,"
The "Judicature Act, 1879" (being Chap. 12, above referred to), and
The "Judicial District Act, 1879."
Their protest is dated in Victoria, B.C., 29th April, 1879, and was not, of course,
received here until the month of May, 1879.
The " Better Administration of Justice Act, 1878," was left to its operation by
Order in Council, dated 17th March, 2879, therefore the protest, so far as it refers to that
Act, cannot now be considered.
The "Judicial District Act, 1879," seems to be a necessary adjunct to the "Better
Administration of Justice, 1878," and as the policy of that Act has been adopted by the
Parliament of Canada and provision has been made for the salaries of two additional
Judges provided for by that Act, no other course seems open than to leave the Act now
under consideration to its opieration, and I recommend accordingly.
(Signed)        Jas. Macdonald,
Minister of Justice.
Copy of a Report of a  Committee of the Honourable the Privy Council, approved by His
Excellency the Governor-General in Council on the 15th May, 1880.
On a Report, dated 8th May, 1880, from the Honourable the Minister of Justice,
upon the Statutes passed by the Legislature of the Province of British Columbia in the
year 1879, received by the Honourable the Secretary of State on the 2nd dav of July,
1879.
The Committee advise that the Statutes mentioned in said Report be left to their
operation as therein recommended.
Certified,
(Signed) J. O. Cote,
Clerk, Privy Council. 43 Vic. Correspondence—Acts of 1879. 453
Department op Justice,
Ottawa, 8th May, 1880.
I have the honour to report upon the Statutes passed by the Legislature of the
Province of British Columbia in the year 1879, received by the Honourable the
Secretary of State on the 2nd day of July, J879, as follows:—
Chap. 1. "An Act to further amend the 'Bills of Sale Ordinance, 1870.'"
This Act requires no special observation. I recommend that it be left to its operation.
Chap. 2. "An Act to enable the Lieutenant-Governor in Council to grant Charters
for the erection of Toll Bridges."
It appiears from a communication sent to the Honourable the Minister of the
Interior, from certain inhabitants at Victoria, B. C, that certain persons had applied to
the Lieutenant-Governor in Council for a charter giving them authority to build a bridge
over a part of the Victoria Harbour, and a strong protest was made against the building
of any such bridge.
The Premier of British Columbia, the Hon. G. A. Walkem, while here, in February
last, informed me that his Government had done nothing toward granting the application, and that as the waters of the harbour, where the bridge was proposed to be built,
were navigable, he did not claim for his Government the power to authorize the erection
of the bridge.
It will be observed that the Act is expressly confined to such bridges as are under
the control of the Legislature of British Columbia. The Statute does not even assume
to empower the Provincial Government to authorize the construction of a bridge which
might interfere with navigation; and it is quite clear that express words in the Statute
assuming to give such authority would be of no effect, as any person attempting to
obstruct by a bridge or otherwise, without the authority of the Parliament of Canada,
the navigation of any river, harbour, bay, arm of the sea, or other navigable water,
could be prevented by injunction from causing the obstruction, and in certain events the
obstruction, if erected, might, as any other nuisance, be abated by the public without
process of law.
I recommend that the Act be left to its operation.
Chap. 3. "An Act to protect Winter Stock Ranges."
This Act will bo reported upon on a future occasion.
Chap. 4. "An Act to repeal the 'Cemetery Ordinance, 1870.'"
Chap. 5. "The Cemetery Act, 1879."
Chap. 6. "An Act to provide for the management of certain Cemeteries in the
Province of British Columbia."
Chap. 7. " An Act for the protection and relief of the Nanaimo Fire Brigade."
Chap. 8. "An Act to amend the 'Constitution Amendment Act, 1878.' "
I recommend that these Acts be left to their operation.
Chap. 9. "An Act respecting Coroners."
I recommend that this Act be left to its operation, as Acts of a similar nature in
other Provinces have not been interfered with.
I desire to point out, however, that the right of a Provincial Legislature to legislate
respecting Coroners has, in certain respects, been questioned, as entrenching upon the
subject of criminal law and criminal procedure.
Chap. 10. "An Act respecting the costs of Arbitrations."
Chap. 11. "An Act respecting the costs of levying Distresses for Rents and
Penalties."
I recommend that these Acts be left to their operation.
Chap. 12 and chap. 13. These Acts have been reported on separately.
Chap. 14. "An Act to amend the 'Sumass Dyking Act, 1878.'"
I recommend that this Act be left to its operation.
Chap. 15. "An Act respecting the 'Sumass Dyking Act, 1878.'"
This will be reported upon hereafter. 454 Correspondence—Acts of 1879. 1880
Chap. 16. "An Act respecting the Fees of Sheriffs, Justices of the Peace, and Constables, and for other purposes."
Chap. 17. "An Act to amend the 'Fence Ordinance, 1869.'"
Chap. 18. "An Act to amend the 'British Columbia Line Fences and Water
Courses Act, 1876.'"
Chap. 19. "An Act to provide for the proper management of Gaols."
Chap. 20. " An Act respecting the Graving Dock at Esquimalt."
Chap. 21. "An Act to amend the 'Land Act, 1875.'"
Chap. 22. "An Act to amend Section 4 of the 'Land Registry Ordinance, 1870.'"
I recommend that these Acts be left to their operation.
Chap. 23. "An Act to amend the 'Licences Ordinance, 1867.'"
This Act will be reported upon at another time.
Chap. 24. "An Act to establish Liens in favour of Mechanics and others."
Chap. 25. "An Act to cancel certain Debentures issued under the authority of the
British Columbia Loan Acts, 1874 and 1876, and to repeal the 'British Columbia Loan
Act, 1876.'"
Chap. 26. "An Act respecting the Magistracy."
Chap. 27. "An Act to authorize the Lieutenant-Governor to execute Marriage
Licences, and for other purposes relating to Marriages."
Chap. 28. "An Act to amend the 'Municipality Act, 1872.'"
Chap. 29. "An Act respecting the Civil Service, the collection and management of
the Revenue, and the duties and liability of the Auditor and Accountants."
I recommend that these Acts be left to their operation.
Chap. 30. "The Public School Act, 1879."
Section 25 of this Act is clearly beyond the power of the Legislature to pass, as it
expressly assumes to make a person wilfully making a false declaration of his right to
vote at the election of the school trustees guilty of a misdemeanour. The provisions of
the section were evidently overlooked when passing through the House.
I recommend that the attention of the Lieutenant-Governor be called thereto, with
a request that his Government will, in due time, promote the repeal of this section.
Meantime, I recommend that the Act be left to its operation.
Chap. 31. "An Act respecting Law Stamps."
Chap. 32. "An Act respecting the printing and distributing of the Statutes, Journals, and Sessional Papers of the Legislative Assembly."
Chap. 33. " An Act for granting certain sums of money required for defraying the
expenses of Civil Government for the eighteen months ending 30th June, 1880, and for
other piurposes."
Chap. 34. "An Act to amend the 'Assessment Act, 1876,' and the 'Assessment
Amendment Act, 1877.'"
Chap. 35. "An Act to amend Sections 9 and 13 of the 'Assessment Amendment
Act, 1878,' and Section 1 of the 'School Tax Act, 1878.'"
Chap. 36. "An Act to repeal Section 6 of the ' School Tax Act, 1876.'"
Chap. 37. "An Act respecting the collection of School Tax and Mining Licences."
I recommend that these several Acts be left to their operation.
(Signed) Jas. Macdonald,
Minister of Justice.

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