[POLICE COURT, CITY OF MONTREAL.]

BEFORE SETH P. LEET, ESQUIRE, POLICE MAGISTRATE.

KENNEDY v. KOKOLEADIS.

Sunday observance-Exception of Sunday sales by certain retailers as specified in Montreal by-law-Invalidity of by-law-Sunday Observance Statute C.S.L.C. ch. 23, still in force in Quebec subject only" to Dominion legislation Subsequent ultra vires Provincial legislation is not validated by R.S.C. (1906), ch. 153-Montreal Charter, 62 Vict. (Que.) ch. 58.

1. The Sunday observance law in force in the province of Quebec at Confederation, C.S.L.C. ch. 23, is still in force in that province not only because the Dominion Parliament has sole legislative power to modify or repeal it but because it is specially continued in force by the Lord's Day Act of Canada, R.S.C. (1906), ch. 153.

2. Section 5 of the Lord's Day Act (Canada), whereby its prohibition of Sunday business is made subject to the exceptions provided in that Act or in any provincial Act or law "now or hereafter in force" does not have the effect of validating a provincial statute or by-law relating to Sunday observance which was void ab initio because it was ultra vires. 3. A by-law under the Montreal Charter, 62 Vict. (Que.) ch. 58, purporting to authorize certain Sunday sales by traders is ultra vires in so far as it is in conflict with the terms of ch. 23 of the Consolidated Statutes of Lower Canada and of the Lord's Day Act (Canada).

MONTREAL, May 13, 1910.

LEET, P.M. :—This is a prosecution brought under the Consolidated Statutes of Lower Canada, chapter 23, for having wilfully and unlawfully by the ministry and agency of a certain clerk or employee, sold and retailed goods, wares and merchandise on Sunday the twenty-seventh day of February last, 1910.

Two points were raised by the defence:

(1) That the action could not be taken without leave of the Attorney-General for the province as provided in section 17 of chapter 153 of the Revised Statutes of Canada, and

(2) That such shops were permitted to be open by a by-law of the city of Montreal, passed under the authority of the charter of the city.

The reply to this defence was

(1) The chapter 153 of the Revised Statutes, sec. 16, especially declares that "nothing therein should be construed to repeal or in any way affect any provision or any Act or law relating in any way to the observance of the Lord's Day in force in any province in Canada when this Act comes into force, and that "the offender may be proceeded against either under provisions of this Act, or under the provisions of any other Act applicable to the offence charged," and the Consolidated Statutes of Lower Canada provide that the proceedings could be instituted as this has been.

The reply to the other ground of the defence is that the legislature of the province of Quebec which granted the charter of the city of Montreal had no authority to give the city any power to pass the by-law in question.

Until the passing of the Act by the Dominion Parliament, in 1906, ch. 153, Revised Statutes of Canada, and which came into force only on the first day of March, 1907, no legislation of the Dominion Parliament had taken place in reference to the profanation of the Lord's Day or Sunday, since Confederation.

The provinces of Quebec and Ontario during this time had passed certain laws in reference thereto, among those in the province of Quebec, the charter of the city of Montreal, which gave the right to the city to regulate the sale of certain things on Sunday.

Section 16 of the R.S.C. ch. 153, it declares that "nothing herein shall be construed, repealed or in any way affect any provision of any Act or law relating in any way to the observance of the Lord's Day in force in any province in Canada when this Act comes into force."

These pleadings and the pretentions of the parties raise two important questions:

(1) Whether ch. 23 C.S.L.C. is still in force and

(2) Whether the Act of the Provincial Legislature giving the city of Montreal the right to pass the by-law in question is intra vires?

The legislature of the province of Ontario by chapter 246 of the Revised Statutes of Ontario legislated upon the question in an Act entitled: "An Act to prevent the profanation of the Lord's Day. The constitutionality of this Act was questioned, and the Court of Appeal of Ontario decided that the province of Ontario had authority to pass that Act. This judgment was taken to the Privy Council which reversed the judgment of the Court of Appeal of Ontario and decided that the Act, treated as a whole, was ultra vires of the Ontario legislature. See Attorney-General for Ontario v. The Hamilton Street Railway Company, [1903] A.C. 524, and 35 S.C. Que.

Before the Dominion Parliament passed the Act referred to above, now ch. 153 R.S.C., reference was made by the Governor-General in Council to the Supreme Court, for its opinion (see 35 Can. S.C.R. 581), and a draft bill was submitted.

Following the judgment of the Privy Council, they decided that the draft of bill submitted to them, as a whole, was also ultra vires of the Provincial Legislature and declaring that"Legislation, having for its object the compulsory observance of such day or the fixing of rules of conduct (with the usual sanctions) to be followed on that day, is legislation properly falling within the views expressed by the Judicial Committee in the Hamilton Street Railway reference before referred to and is within the jurisdiction of the Dominion Parliament." (35 S.C.R., p. 581.)

These two judgments must guide our dealings with this subject. Chapter 23 C.S.L.C., which was in force at the time of Confederation, is still in force, not only because the Dominion Parliament is the only body which had the power to repeal or modify it, but because it is specially continued in force by R.S.C. chapter 153 and it is still in force, not only for its prohibitions,

but for its procedure, and therefore the procedure in the present case is good and must stand. Also, following the said judgments, the legislation passed by the Provincial Government which would have the effect of annulling or repealing the provisions of the Consolidated Statutes of Lower Canada are ultra vires and without effect.

It is contended that the exception contained in the fifth section of chapter 153 R.S.C., "except as provided herein or in any provincial Act or law now or hereafter in force to sell, etc.," validates the Acts passed by the provincial legislature even though they were ultra vires of such legislatures.

If the exception had omitted the words "in force;" if it had been without limitation, had read except as provided herein or in any provincial Act, this contention would have been debatable, but it is only Acts that are "in force" that are excepted.. What is an Act that is in force?

It is clear that only those Acts which are enforceable can be called "in force."

An Act may not be enforceable and consequently not in force for several reasons. It may be enacted some time before it comes into force, or brought into force only by proclamation or it may have ceased to be in force by limitation of time or the happening of some event or for the very good and sufficient reasons because it is absolutely null ab initio-the authority pretending to enact it not having the power to do so, in which case it never had any legal existence and never was in force or enforceable for a moment.

I do not suppose it will be contended that the Ontario Act, the unconstitutionality of which was declared by the Privy Council in the case of the Attorney-General & Hamilton Ry. Co. above referred to was one of the Acts in force at the time of the passing of the Act, chapter 153 R.S.C. It was not the judgment of the Privy Council which rendered the Act not in force. It only declared what was always the fact, that it was never legally enacted, consequently never in force.

It is not the judgment declaring a contract made by a child five years old null, that makes it null. The judgment only declares what was always the fact.

I cannot believe the Dominion Parliament ever intended to confirm ultra vires provincial legislation. It would be undignified to do so. By deliberate purpose it appears to me, because this question of unconstitutionality had already arisen, it limited the confirmation of provincial Acts to those legally in force.

This opinion is strengthened because the exception includes acts "hereafter in force," as well as those "now" in force.

I cannot conceive that the Parliament intended to give the provincial legislatures carte blanche to pass any Act constitutional or otherwise that might have the effect of nullifying or abrogating altogether its own Act.

If this exception can be interpreted so as to confirm the power of the city of Montreal to allow certain persons to sell on Sunday, there is nothing to prevent the legislature from giving the city power to pass a by-law allowing other persons or all persons to carry on trade on Sunday, for the power given to the legislatures for the future is precisely that which it confirms for the past.

The Consolidated Statutes of Lower Canada and the Dominion Act, both specifically declare that selling goods on Sunday is illegal and is prohibited.

The recent decision in reference to the Sunday moving picture shows and which is now "en délibéré" before the Court of Appeals was referred to by both parties, but whatever the decision may be in that case, I don't think it affects this present

case.

Chapter 23 of the Consolidated Statutes of Lower Canada only relates to the selling of goods, wares and spirituous liquors on Sunday, it does not refer to the other things that are prohibited by chapter 153 of the Consolidated Statutes of Lower Canada or the recent Act of the province of Quebec.