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TMI Blog1932 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... . V, c. 16, is challenged in the present proceedings on the broad ground that the Parliament of Dominion in conferring the powers in question exceeded its legislative competence. 4. The enactments impugned are contained in Sections 151 and 207 of the statute as amended. Section 151 provides as follows: (1) If any vessel is hovering in territorial waters of Canada any officer may go on board such vessel and examine her cargo and may also examine the master or person in command upon oath touching the cargo and voyage and bring the vessel into port. (7) For the purposes of this Section and Section two hundred and seven of this Act 'Territorial waters of Canada' shall mean the waters forming part of the territory of the Dominion of Canada and the waters adjacent to the Dominion within three marine miles thereof in case(sic) of any vessel and within twelve marine miles thereof in the case of any vessel registered in Canada. 5. Section 207 enacts as follows: (l) If upon the examination of any officer of the cargo of any vessel hovering in territorial waters of Canada any dutiable goods or any goods the importation of which into Canada is prohibited are found on boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational law. Thus Sir Travers Twiss, in his treatise on International Law in the volume dealing with Peace, says at p. 265 that a State in matters of revenue and health exercises a permissive jurisdiction the extent of which does not appear to be limited within any certain marked boundaries further than that it can only be exercised over her own vessels and over such foreign vessels as are bound to her ports. 9. In Halleck's International Law, 4th Ed., p. 168, it is pointed out that beyond the generally accepted limits of territorial waters: States may exercise a qualified jurisdiction for fiscal and defence purposes-that is, for the execution of their revenue laws and to prevent 'hovering' on their coasts. 10. Again, in Hall's Foreign Powers and Jurisdiction of the British Crown, it is stated in para. 108 that the justice and necessity of taking precautionary measures outside territorial waters in order that infractions of revenue laws shall not occur upon the territory itself is in principle uncontested. 11. Without further multiplying quotations it may be sufficient to add references to Phillimore's International Law para. 198, and Wheaton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament, but authority as plenary and as ample within the limits prescribed by Section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. 16. To the Dominion Parliament these words apply a fortiori, with the substitution of Section 91 for Section 92. Their Lordships also recall the language used by Lord Chancellor Halsbury, in expressing the views of the Board on the power of the Dominion Parliament to legislate for the peace, order and good Government of Canada, in the case of Riel v. The Queen (1885) 10 App. Cas. 675 (678) : 55 L J P C 28 : 54 L T 339 : 16 Cox CC 48, at p 678: The words of the statute, said his Lordship are apt to authorise the utmost discretion of enactment for the attainment of the object pointed to. 17. Legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the Courts of this country, for in these Courts the legislation of the Imperial Parliament cannot be challenged as ultra vires-per Lord Justice-General Dunedin in Mortensen v. Peters (1906) 8 F (J C) 93 (101). It may be that legislation of the Dominion Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Imperial Parliament has contained anti-smuggling provisions authorising the seizure of vessels having dutiable goods on board when found hovering off the coasts within distances substantially in excess of the ordinary territorial limits. So far back as 1736 there is to be found in the statute 9 Geo. III, c. 9, Section 22, legislation authorising the forfeiture of dutiable goods found in vessels hovering within two. marine leagues of the shore. There are numerous subsequent enactments of a similar character, and legislation of this nature has been extended as far as to twenty-four miles from the coast. So familiar indeed are such provisions in the history of British customs legislation that the series of measures embodying them have come to be known compendiously as the Hovering Acts. Although these Acts have now all been repealed, the Customs Consolidation Act of 1876, by Section 179, authorised the forfeiture of any ship belonging wholly or in part to British subjects, or having half the persons on board subjects of Her Majesty, if found with prohibited goods on board within three leagues of the coast of the United Kingdom. In the case of other vessels not British the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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