1775. In Ontario, however, the 40 Geo. 3, c. 1, was subsequently passed, and introduced the criminal law of England as it stood on the 17th day of September, 1792, "and as the same has since been repealed, altered, varied, modified or affected by any Act of the Imperial Parliament having force of law in Upper Canada, or by any Act of the Parliament of the late Province of Upper Canada, or of the Province of Canada, still having force of law, or by the Consolidated Statutes relating to Upper Canada, exclusively, or to the Province of Canada."

The criminal law, therefore, in the Provinces of Ontario and Quebec, has been introduced by express statutes, but in the former, by the 40 Geo. 3, c. 1, it was brought down to a more recent date than in the latter.

The authority for the introduction of the English criminal laws into Nova Scotia and New Brunswick has been already shewn.

With regard to the Province of Manitoba, Imperial legislation has from time to time taken place, with, however, very little practical effect. This legislation is comprised in three statutes, the first of which was passed in 1803, the second in 1821, and the last in 1850. The first was the 43 Geo. 3, c. 138, and it enacted that all offences committed within any of the Indian territories, or parts of America not within the limits of either of the Provinces of Lower or Upper Canada, or of any civil government of the United States of America, shall be and be deemed to be offences of the same nature, and shall be tried in the same manner, and subject to the same punishment as if the same had been committed within the Provinces of Upper and Lower Canada. It also gave power to the Governor of Lower Canada to appoint persons to act as Justices in the Indian territories, for the purposes,

not of trying, but merely of hearing and committing for trial in Lower Canada; and the Governor of that Province, if the case seemed to require it, could order the trial to take place in Upper Canada. The second statute (1 & 2 Geo. 4, c. 66) extended the Act of 1803 to all the territories of the Hudson Bay Company. It conferred power on the Crown to appoint Justices of the Peace in those territories, in special terms, including the territories of the Hudson Bay Company, with power to such Justices to take evidence in the country, to be used in the Courts of Upper and Lower Canada. It gave further authority to the Crown to issue commissions under the Great Seal, empowering Justices to hold Courts of Record for the trial of criminal offences, notwithstanding anything contained in the Hudson Bay Company's charter. The times and places for holding these Courts were to be determined by His Majesty; but their power was not to extend to the trial of capital offences. The third in this series of statutes is the 22 & 23 Vic. c. 26. This Act recites the main provisions of the 43 Geo. 3, and of the 1 & 2 Geo. 4, and empowers the Crown, either by commission or Order in Council, to authorize such justices as might be appointed to try, in a summary way, all crimes, misdemeanors and offences whatsoever, and to punish by fine or imprisonment, or both. In cases punishable by death, or in which, in the Justices' opinion, fine and imprisonment were inadequate to the offence, they might either try the offender in the ordinary way, or send him to Upper Canada to be tried there, under the Act of Geo. 4, or if they saw fit, to British Columbia, to be tried by any Court having cognizance of like offences committed there. This last mentioned Act, however, in the final section, is declared not to extend to the territories of the Hudson Bay Company.

By an Order in Council following the 33 Vic. c. 3, the Province of Manitoba was formed out of the territories referred to in the above statutes, and by a statute of the Parliament of Canada (34 Vic. c. 14) the entire body of the modern criminal law of England, as existing in the rest of the Dominion, has been extended to this Province (a). Under the latter statute, the Imperial enactments above referred to, have been superseded as to the Province of Manitoba, and the justices in that Province have the same power and jurisdiction over persons charged with indictable offences committed therein, as justices in other parts of the Dominion have over persons committing offences within their several jurisdictions.

By s. 2, the Court known as the General Court has power to hear, try and determine, in due course of law, all treasons, felonies and indictable offences committed in any part of the said Province or in the territory which has now become the said Province. This statute assimilates the procedure in criminal cases to that existing in the other Provinces and obviates the necessity for any recourse to the Imperial statutes before mentioned.

Indeed it would seem that under this statute, and the British North America Act, 1867, the officers and courts in Manitoba have now exclusive jurisdiction over all offences committed therein.

It may be observed, before proceeding to treat of the representative assemblies existing in the several Provinces of the Dominion, that the Crown has power to create a local Legislative Assembly in a colony, whether conquered, ceded, or settled. (b)

In 1791, by the Imperial Act 31 Geo. 3, c. 31, the former Province of Quebec was divided into the two Pro

(a) See charge of Mr. Justice Johnson to the Grand Jury, Spring Assizes, 1871. (b) Phillips v. Eyre, L. R. 7 Q. B. 1. (Ex. Chr.)

vinces of Upper and Lower Canada, a separate Constitution and independent powers of legislation were granted to each, this power of legislation being vested in the Legislative Council and Assembly of each Province, and requiring the assent of the Crown, expressed through the Governor, to any measure becoming law. Prior to the passing of this statute, the legislative power was vested in the Governor and Council. In 1840, the 3 & 4 Vic. c. 35, made provision for the re-union of the Provinces of Upper and Lower Canada, and repealed the 31 Geo. 3, c. 31, as to the grant of a separate Constitution and legislative powers. It enacted that there should be within the Province of Canada one Legislative Council and one Assembly, to be called, "The Legislative Council and Assembly of Canada," and provided that Her Majesty should have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of Canada, subject to certain limitations contained in the Act. From 1840 till the 1st of July, 1867, the right of legislation in the Provinces of Ontario and Quebec was founded on the Act of Union. On the 2nd of October, 1758, a Legislative General Assembly, having independent powers of legislation, was granted to the Province of Nova Scotia, of which New Brunswick then formed a part, (a) and on the 16th of August, 1784, a separate and distinct Legislative General Assembly, with the like rights, privileges and powers as had been before conferred on and enjoyed by the House of Assembly in Nova Scotia was granted to New Brunswick. (b)

By the British North America Act, 1867, the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick,

(a) Hill v. Weldon, 3 Kerr, 43 per Chipman, C. J. (b) Ib, 44, per Chipman, C. J.

were federally united into one Dominion, under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution, to a great extent a written one, (a) and similar in principle to that of England. By this Act power is given to the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada. The right to legislate as to the criminal law, including also the procedure in criminal matters, is vested in the Dominion Parliament, to the exclusion of the Local Legislatures of the several Provinces. The Act has, in this respect, entirely changed the Legislative Constitution of each Province; the Imperial Parliament has intervened, and, by virtue of its supreme legislative power, has taken from the subordinate legislative bodies of the Provinces the plenary powers to make laws which they formerly possessed. Where, under the terms of this Act, the power of legislation is granted to be exercised exclusively by one body, the subject so exclusively assigned is as completely taken from the others as if they had been expressly forbidden to act on it, and if they do legislate beyond their powers, or in defiance of the restrictions placed on them, their enactments are no more binding than rules or regulations promulgated by any other unauthorized body. (b) When, however, the Local Legislatures have power to legislate on any particular subject, it does not follow that they have no power to make any violation of their provisions in relation thereto a crime even in the technical sense of the term. No doubt it was intended that the Local Legislatures should not only have the power, but the exclusive right, to legislate on some subjects; and they have power to

(a) Reg. v. Chandler, 1 Hannay, 54, per Ritchie, C. J. (b) Ib. 557, per Ritchie, C. J.