CO885-(10-11) — Page 669

11868.

No. 533.

(CANADA.)

| PUBLIC RECORD OFFICE

‚། T;། T

سائنس

C.O.

Reference :-

885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

3

MY LORD DUKE,

LAW OFFICERS to COLONIAL OFFICE.

Temple, October 23, 1868. We are honoured with your Grace's commanda, signified in Mr. Elliot's letter of the 2nd October instant, stating that he was directed by your Grace to transmit to us the copy of an Act passed by the Parliament of Canada, intituled “An Act "respecting the Department of Justice."

Mr. Elliot was also pleased to state that by the 3rd section of that Act it is (amongst other things) provided that the Attorney General of Canada “shall be "intrusted with the powers and duties which by the laws of the several provinces belonged to the office of Attorney General of each province up to the time when the British North America Act, 1867, came into effect, and which laws, under the provisions of the said Act, are to be administered and carried into effect by the "Government of the Dominion," and further, that he shall have "the superintendence " of the prison system of the Dominion."

Mr. Elliot was further directed to call our attention to the provisions of the 91st and 92nd sections of the British North America Act, 1867, by which certain classes of subjects are assigned to the Parliament of the Dominion, and certain other classes are reserved exclusively for provincial legislation, and to say that in the latter class are to be found"the establishment, maintenance, and management of public and reformatory prisons" and "the administration of justice in the province, including the consti- tution, maintenance, and organisation of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.” Mr. Elliot was further pleased to add that some doubt is entertained whether the above-mentioned provisions of the Act of the Parliament of Canada are not too large in their terms and inconsistent with the British North America Act, 1867, and he was directed to request that we would favour your Grace with our opinion upon the following questions:

1. Whether the allegation that the laws of the several provinces are to be adminis- tered and carried into effect by the Government of the Dominion is consistent with the provisions of the British North America Act, 1867?

2. Whether the powers vested in the Attorney General of Canada by the 3rd section of the Act are rightly vested? and

3. Whether the Act is one which Her Majesty may be properly advised to leave in operation?

In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to

Report

That with regard to the first branch of the 3rd section of the Canada statute, to which our attention is directed, it assumes, as it appears to us, 1st, that there were at the date of the Act of Union laws of the several provinces which imposed powers and duties on the Attorney General of each province; and, 2ndly, that those laws, or some of them, were under the provisions of the Act to be administered and carried into effect by the Government of the Dominion. It is probable that the first proposition is true, but we do not find that by the Act of Union Provincial laws are to be adminia- tered and carried into effect, as recited in the Colonial Act, by the Government of the Dominion, and if we are right in this view, then, as it appears to us, the part of the clause referred to is inoperative for the purpose of vesting any powers exercised at the Union by a Provincial Attorney General in the Attorney General of Canada.

If, on the other hand, there are Provincial laws which by the provisions of the Act of Union are to be administered and carried out by the Government of the Domion, it appears to us that it is competent for the Colonial Legislature to enact that the functions discharged by the Provincial Attorney General under the Provincial statute, the administration and carrying out of which is so transferred, shall henceforth be exercised by the Attorney General of Canada, and not by the Attorney General of the Province.

O 16978,-443.

25.-5/86.