Mr Serjeant Buzfuz: Add categories
{{Short description|Canadian constitutional law case – 1883}}
{{Use Canadian English|date=April 2024}}
{{Use mdy dates|date=April 2024}}
{{Infobox court case
| name = Attorney General of Ontario v Mercer
| court = [[Judicial Committee of the Privy Council]]
| image = Another image from in 19th century Toronto -b.jpg
| imagealt =
| caption = Andrew Mercer's cottage, near Bay and Wellington Streets, Toronto
| full name = Attorney General of Ontario v Andrew F. Mercer
| date decided = July 18, 1883
| citations = [https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html [1883<nowiki>]</nowiki> UKPC 42], 8 App Cas 767
| judges = {{plainlist|
*[[Roundell Palmer, 1st Earl of Selborne|The Earl of Selborne, Lord Chancellor]]
*[[Barnes Peacock|Sir Barnes Peacock]]
*[[Montague Edward Smith|Sir Montague Smith]]
*[[Robert Collier, 1st Baron Monkswell|Sir Robert P. Collier]]
*[[Richard Couch (judge)|Sir Richard Couch]]
*[[Arthur Hobhouse, 1st Baron Hobhouse|Sir Arthur Hobhouse]]
}}
| number of judges = 6
| decision by = The Lord Chancellor
| prior actions = [https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v. Attorney General for Ontario''], (1881) 5 SCR 538
| appealed from = [[Supreme Court of Canada]]
| keywords = Constitutional law, Crown prerogatives, escheat
| italic title = yes
}}
'''''Attorney General of Ontario v Mercer''''' is a [[Canadian constitutional law]] decision of the [[Judicial Committee of the Privy Council]], at that time the highest court of appeal in the [[British Empire]], including Canada.
The issue in the case arose from the death of an individual, Andrew Mercer, without a will and without any heirs recognised by law. At common law, if an individual dies without heirs, the property in the estate vests in the Crown, called an "[[escheat]]". Both the federal government and the provincial government claimed the property, each relying on different sections of the ''British North America Act, 1867'' (now known as the ''[[Constitution Act, 1867]]'').
The dispute was litigated in the courts of Ontario and then the [[Supreme Court of Canada]]. The Ontario courts ruled in favour of the province, and the Supreme Court ruled in favour of the federal government. The [[Attorney General of Ontario]], [[Oliver Mowat]], QC, then appealed to the Judicial Committee, which held that the right of escheat fell to the provinces, not to the federal government.
== Facts of the case ==
Andrew Mercer was born in England, likely around 1780. He emigrated from England to [[Upper Canada]] in 1800, accompanying [[Thomas Scott (Canadian judge)|Thomas Scott]], the newly appointed Attorney General of Upper Canada. Mercer once stated that his mother was unmarried, and there was speculation that Mercer was Scott's illegitimate son. Upon arriving at [[York]], Upper Canada, Scott retained Mercer as his secretary.<ref name=dcb>Frederick H. Armstrong, [http://www.biographi.ca/en/bio/mercer_andrew_10F.html "Mercer, Andrew"], ''Dictionary of Canadian Biography'', Vol. X (1871–1880), University of Toronto / Université Laval.</ref>
Mercer lived in York (later [[Toronto]], [[Ontario]]) for the rest of his life. He held a variety of government positions, as well as some business ventures, including offering loans. He was said to be "almost parsimonious". He owned a small house near Bay Street and Wellington Street. In 1850, he hired a new housekeeper, Bridget O'Reilly, who was bad-tempered, illiterate and of a thieving disposition. She remained his housekeeper until the end of his life. In 1851, she gave birth to a boy, commonly believed to be Mercer's son, who was christened Andrew Francis Mercer. Mercer provided support for the boy as he grew up and gave him a plot of land, but never included him in a will. Mercer was reputed to have said that he "would leave his money to the government."<ref name =dcb/>
Mercer died in 1871, without a will ("[[intestate]]"). His estate was valued in the neighbourhood of $180,000, made up of land, mortgages and other loans, and stocks. It was not well organised.<ref name =dcb/>
== Decisions of the Canadian courts ==
[[File:Oliver Mowat.jpg|thumb|upright=0.75|Oliver Mowat, Attorney General for Ontario, who began the escheat proceedings]]
Following Mercer's death, the [[Attorney General of Ontario|Attorney General for Ontario]], [[Oliver Mowat]], began proceedings in the [[Court of Chancery of Upper Canada|Ontario Court of Chancery]] to claim the lands in Mercer's estate, asserting that since he had died [[Intestacy|intestate]] and without any known heirs, the land [[escheat|escheated]] to the province of Ontario. Andrew Francis Mercer contested the application, arguing that the provincial ''Escheats Act'' was unconstitutional because escheats were a matter of federal law, not provincial. The Vice-Chancellor of the Court of Chancery, [[Samuel Hume Blake|Samuel Blake]], rejected that application. Andrew Francis Mercer appealed to the [[Court of Appeal for Ontario|Ontario Court of Appeal]], which dismissed the appeal.<ref name = dcb/><ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v. Attorney General for Ontario''], (1881) 5 SCR 538, at p. 539.</ref>
Andrew Francis Mercer then appealed to the [[Supreme Court of Canada]]. The dispute was now seen as a major case in relation to the powers of the federal government and the provincial governments. The [[Minister of Justice and Attorney General of Canada|Attorney General of Canada]] joined in the appeal, arguing that escheats of land were within federal jurisdiction, not provincial, and therefore the land should escheat to the federal government. The Attorney General for Ontario opposed the appeal. The [[List of ministers of justice of Quebec|Attorney General of Quebec]] intervened in the case, in support of provincial jurisdiction.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 540, 544, 573, 584, 593.</ref>
All of the parties were represented by senior counsel. The Deputy Minister of Justice, [[Zebulon Aiton Lash]], QC, argued the case for the federal government, while [[William McDougall (politician, born 1822)|William McDougall]], QC, a [[Father of Confederation]] and former federal Cabinet minister, argued for Andrew Francis Mercer. The Attorney General for Ontario was represented by [[Edward Blake]], QC, one of the leading Ontario barristers, formerly [[List of premiers of Ontario|Premier of Ontario]], formerly federal Attorney General, and brother of Vice-Chancellor Blake, whose decision was under appeal. Blake was joined by [[James Bethune]], QC, of his firm. The Attorney General of Quebec, [[Louis-Onésime Loranger]], personally argued the position of Quebec.<ref name=Counsel>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 540–623.</ref><ref>Theodore D. Regehr, [http://www.biographi.ca/en/bio/lash_zebulon_aiton_14E.html "Lash, Zebulon Aiton"], ''Dictionary of Canadian Biography'', vol. XIV (1911–1920), University of Toronto / Université Laval.</ref><ref>Suzanne Zeller, [http://www.biographi.ca/en/bio/6901?revision_id=29501 "McDougall, William"], ''Dictionary of Canadian Biography'', vol. XIII (1901–1910), University of Toronto / Université Laval.</ref><ref>Ben Forster and Jonathan Swainger, [http://www.biographi.ca/en/bio/blake_edward_14E.html "Blake, Edward"], ''Dictionary of Canadian Biography'', vol. 14 (1911–1920), University of Toronto / Université Laval.</ref>
McDougall, counsel for Andrew Francis Mercer, advised the Court that his client favoured the federal government because he understood that the federal government would likely transfer all of the property to him if successful, under a pre-Confederation policy that the federal government would respect. All counsel made extensive arguments, ranging over the feudal origins of property under English law, [[royal prerogative|Crown prerogatives]], the constitutional history of the British North American provinces up to [[Canadian Confederation|Confederation]], and the powers of the federal and provincial governments under the ''British North America Act, 1867'' (now known as the ''[[Constitution Act, 1867]]'').<ref name=Counsel/>
The Supreme Court allowed the appeal by a majority of four judges, with two dissenting. The four judges in the majority (Justices [[Télesphore Fournier|Fournier]], [[William Alexander Henry|Henry]], [[Henri-Elzéar Taschereau|Taschereau]] and [[John Wellington Gwynne|Gwynne]]) agreed that the right of escheat is one of the royal prerogatives and a form of revenue. It therefore was a federal matter under [[Section 102 of the Constitution Act, 1867|s. 102 of the ''Constitution Act, 1867'']] which assigned revenues to the federal government. As well, they questioned whether the provinces could benefit from the royal prerogative of escheats, since they considered the Crown was represented by the federal government, and not by the provinces.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 648–712.</ref>
The two dissenting judges, Chief Justice [[William Johnstone Ritchie|Ritchie]] and Justice [[William Johnstone Ritchie|Strong]], took the view that escheats were part of property in land, and therefore assigned to the provinces by [[Section 109 of the Constitution Act, 1867|s. 109 of the ''Constitution Act, 1867'']]. Section 109 provides that the provinces continued to hold "All Lands, Mines, Minerals, and Royalties" belonging to the provinces before Confederation, which would include the Crown’s right of escheat in land. They would have upheld the constitutionality of the provincial statute.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 623–648.</ref>
<gallery>
Zebulon Aiton Lash (cropped).png|Zebulon Lash, QC, Deputy Attorney General of Canada
William McDougall.jpg|William McDougall, QC, counsel for Andrew Francis Mercer
DENT(1881)_2.507_EDWARD_BLAKE.jpg|Edward Blake, QC, counsel for Ontario
JamesBethune23.jpg|James Bethune, QC, also counsel for Ontario
Louis-Onézime Loranger.png|Louis-Onézime Loranger, Attorney General for Quebec
</gallery>
== Decision of the Judicial Committee ==
[[File:1stEarlOfSelborne.jpg|thumb|upright=0.75|The Earl of Selborne, Lord Chancellor of England, who gave judgment in favour of Ontario]]
[[File:Horace Davey, Baron Davey (1833-1907), by George Frederick Watts.jpg|thumb|upright=0.75|Horace Davey, counsel for Ontario]]
[[File:Farrer Lord Herschell, Bassano.jpg|thumb|upright=0.75|Farrer Herschell, Solicitor General for England and counsel for the federal government]]
[[File:LordStHelier.jpg|thumb|upright=0.75|Francis Jeune, junior counsel for the federal government]]
Attorney General Mowat appealed to the [[Judicial Committee of the Privy Council|Judicial Committee]]. Mowat appeared personally to argue the appeal, along with [[Horace Davey, Baron Davey|Horace Davey]], QC, a leading member of the English bar, and two junior counsel, one from Canada and one from England. The federal government, handling the appeal on behalf of Andrew F. Mercer, was represented by the [[Solicitor General for England and Wales|Solicitor General for England]], [[Farrer Herschell, 1st Baron Herschell|Farrer Herschell, QC]], and the federal Deputy Attorney General, Zebulon Lash, with [[Francis Jeune, 1st Baron St Helier|Francis Jeune]] as junior counsel.<ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], [1883] UKPC 42, 8 AC 767 (PC), pp. 768, 770 (AC).</ref>
[[Roundell Palmer, 1st Earl of Selborne|Lord Selbourne]], the [[Lord Chancellor]], gave the decision of the Judicial Committee in favour of Ontario's appeal. An expert in [[Equity (law)|equity law]], he reviewed the historical origins of the doctrine of escheat, as an aspect of feudal tenure and the position of the Crown as the ultimate lord of the property. If there was a complete failure of the tenant's line, the land escheats, or returns to the Crown. The income from an escheat was one of the casual revenues of the Crown.<ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], pp. 771–774 (AC).</ref>
He then turned to the major issue: was an escheat part of the revenues assigned to the federal government by s. 102 of the ''Constitution Act, 1867'', or was it one of the types of property reserved to the provinces by s. 109 of the act? He noted that s. 102 stated that the revenues transferred to the federal government did not include revenues the the Act "reserved to the respective Legislatures of the Provinces". He concluded that phrase referred to the "lands, mines, minerals, and royalties" held by the provinces under s. 109 of the Act. Finally, he held that the escheat of land was one of the "royalties" included in s. 109. The escheat in land therefore belonged to Ontario, as held by the Ontario courts. <ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], pp. 775–779 (AC).</ref>
As was the practice of the Judicial Committee at that time, there were no concurring or dissenting reasons from other members of the committee.
== Consequences ==
Much of the estate was spent on the legal costs. Following the decision, Mowat agreed to give Andrew Francis Mercer $30,000 from the proceeds of the estate, but most of that went to cover his legal expenses. The government used $10,000 of the proceeds to set up the Andrew Mercer Eye and Ear Infirmary at the Toronto General Hospital. Another amount, $106,000, was used to set up the Andrew Mercer Ontario Reformatory for Females. The Reformatory opened in 1880 and continued in existence until 1969.<ref name = dcb/>
The Supreme Court has cited ''Attorney General of Ontario v Mercer'' several times since it was decided, most recently in 2002.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1944/index.do ''Bank of Montreal v. Dynex Petroleum Ltd.], 2002 SCC 7, [2002] 1 SCR 146.</ref>
This case is included in the three volume set of significant decisions of the Judicial Committee on the construction and interpretation of the ''Constitution Act, 1867'', prepared on the direction of the then [[Minister of Justice and Attorney General of Canada|Minister of Justice and Attorney General]], [[Stuart Garson|Stuart Sinclair Garson]], QC. Following the abolition of Canadian appeals to the Judicial Committee, Garson directed that the [[Department of Justice (Canada)|Department of Justice]] prepare the collection "for the convenience of the Bench and Bar in Canada".<ref name = Olmstead>Richard A. Olmsted, Q.C. (ed.), ''Decisions of the Judicial Committee of the Privy Council relating to the British North America Act, 1867 and the Canadian Constitution, 1867–1954'', vol. 1 (Ottawa: Queen's Printer and Controller of Stationery, 1954), p. iii.</ref> This case was included in the first volume of the set.<ref>Olmsted, ''Decisions of the Judicial Committee of the Privy Council'', vol. 1, p. 171.</ref>
== References ==
{{Reflist}}
{{DEFAULTSORT:Attorney General of ONtario}}
[[Category:Canadian constitutional case law]]
[[Category:Canadian federalism case law]]
[[Category:Judicial Committee of the Privy Council cases on appeal from Canada]]
[[Category:1883 in Canadian case law]]
Okumaya devam et...
{{Short description|Canadian constitutional law case – 1883}}
{{Use Canadian English|date=April 2024}}
{{Use mdy dates|date=April 2024}}
{{Infobox court case
| name = Attorney General of Ontario v Mercer
| court = [[Judicial Committee of the Privy Council]]
| image = Another image from in 19th century Toronto -b.jpg
| imagealt =
| caption = Andrew Mercer's cottage, near Bay and Wellington Streets, Toronto
| full name = Attorney General of Ontario v Andrew F. Mercer
| date decided = July 18, 1883
| citations = [https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html [1883<nowiki>]</nowiki> UKPC 42], 8 App Cas 767
| judges = {{plainlist|
*[[Roundell Palmer, 1st Earl of Selborne|The Earl of Selborne, Lord Chancellor]]
*[[Barnes Peacock|Sir Barnes Peacock]]
*[[Montague Edward Smith|Sir Montague Smith]]
*[[Robert Collier, 1st Baron Monkswell|Sir Robert P. Collier]]
*[[Richard Couch (judge)|Sir Richard Couch]]
*[[Arthur Hobhouse, 1st Baron Hobhouse|Sir Arthur Hobhouse]]
}}
| number of judges = 6
| decision by = The Lord Chancellor
| prior actions = [https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v. Attorney General for Ontario''], (1881) 5 SCR 538
| appealed from = [[Supreme Court of Canada]]
| keywords = Constitutional law, Crown prerogatives, escheat
| italic title = yes
}}
'''''Attorney General of Ontario v Mercer''''' is a [[Canadian constitutional law]] decision of the [[Judicial Committee of the Privy Council]], at that time the highest court of appeal in the [[British Empire]], including Canada.
The issue in the case arose from the death of an individual, Andrew Mercer, without a will and without any heirs recognised by law. At common law, if an individual dies without heirs, the property in the estate vests in the Crown, called an "[[escheat]]". Both the federal government and the provincial government claimed the property, each relying on different sections of the ''British North America Act, 1867'' (now known as the ''[[Constitution Act, 1867]]'').
The dispute was litigated in the courts of Ontario and then the [[Supreme Court of Canada]]. The Ontario courts ruled in favour of the province, and the Supreme Court ruled in favour of the federal government. The [[Attorney General of Ontario]], [[Oliver Mowat]], QC, then appealed to the Judicial Committee, which held that the right of escheat fell to the provinces, not to the federal government.
== Facts of the case ==
Andrew Mercer was born in England, likely around 1780. He emigrated from England to [[Upper Canada]] in 1800, accompanying [[Thomas Scott (Canadian judge)|Thomas Scott]], the newly appointed Attorney General of Upper Canada. Mercer once stated that his mother was unmarried, and there was speculation that Mercer was Scott's illegitimate son. Upon arriving at [[York]], Upper Canada, Scott retained Mercer as his secretary.<ref name=dcb>Frederick H. Armstrong, [http://www.biographi.ca/en/bio/mercer_andrew_10F.html "Mercer, Andrew"], ''Dictionary of Canadian Biography'', Vol. X (1871–1880), University of Toronto / Université Laval.</ref>
Mercer lived in York (later [[Toronto]], [[Ontario]]) for the rest of his life. He held a variety of government positions, as well as some business ventures, including offering loans. He was said to be "almost parsimonious". He owned a small house near Bay Street and Wellington Street. In 1850, he hired a new housekeeper, Bridget O'Reilly, who was bad-tempered, illiterate and of a thieving disposition. She remained his housekeeper until the end of his life. In 1851, she gave birth to a boy, commonly believed to be Mercer's son, who was christened Andrew Francis Mercer. Mercer provided support for the boy as he grew up and gave him a plot of land, but never included him in a will. Mercer was reputed to have said that he "would leave his money to the government."<ref name =dcb/>
Mercer died in 1871, without a will ("[[intestate]]"). His estate was valued in the neighbourhood of $180,000, made up of land, mortgages and other loans, and stocks. It was not well organised.<ref name =dcb/>
== Decisions of the Canadian courts ==
[[File:Oliver Mowat.jpg|thumb|upright=0.75|Oliver Mowat, Attorney General for Ontario, who began the escheat proceedings]]
Following Mercer's death, the [[Attorney General of Ontario|Attorney General for Ontario]], [[Oliver Mowat]], began proceedings in the [[Court of Chancery of Upper Canada|Ontario Court of Chancery]] to claim the lands in Mercer's estate, asserting that since he had died [[Intestacy|intestate]] and without any known heirs, the land [[escheat|escheated]] to the province of Ontario. Andrew Francis Mercer contested the application, arguing that the provincial ''Escheats Act'' was unconstitutional because escheats were a matter of federal law, not provincial. The Vice-Chancellor of the Court of Chancery, [[Samuel Hume Blake|Samuel Blake]], rejected that application. Andrew Francis Mercer appealed to the [[Court of Appeal for Ontario|Ontario Court of Appeal]], which dismissed the appeal.<ref name = dcb/><ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v. Attorney General for Ontario''], (1881) 5 SCR 538, at p. 539.</ref>
Andrew Francis Mercer then appealed to the [[Supreme Court of Canada]]. The dispute was now seen as a major case in relation to the powers of the federal government and the provincial governments. The [[Minister of Justice and Attorney General of Canada|Attorney General of Canada]] joined in the appeal, arguing that escheats of land were within federal jurisdiction, not provincial, and therefore the land should escheat to the federal government. The Attorney General for Ontario opposed the appeal. The [[List of ministers of justice of Quebec|Attorney General of Quebec]] intervened in the case, in support of provincial jurisdiction.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 540, 544, 573, 584, 593.</ref>
All of the parties were represented by senior counsel. The Deputy Minister of Justice, [[Zebulon Aiton Lash]], QC, argued the case for the federal government, while [[William McDougall (politician, born 1822)|William McDougall]], QC, a [[Father of Confederation]] and former federal Cabinet minister, argued for Andrew Francis Mercer. The Attorney General for Ontario was represented by [[Edward Blake]], QC, one of the leading Ontario barristers, formerly [[List of premiers of Ontario|Premier of Ontario]], formerly federal Attorney General, and brother of Vice-Chancellor Blake, whose decision was under appeal. Blake was joined by [[James Bethune]], QC, of his firm. The Attorney General of Quebec, [[Louis-Onésime Loranger]], personally argued the position of Quebec.<ref name=Counsel>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 540–623.</ref><ref>Theodore D. Regehr, [http://www.biographi.ca/en/bio/lash_zebulon_aiton_14E.html "Lash, Zebulon Aiton"], ''Dictionary of Canadian Biography'', vol. XIV (1911–1920), University of Toronto / Université Laval.</ref><ref>Suzanne Zeller, [http://www.biographi.ca/en/bio/6901?revision_id=29501 "McDougall, William"], ''Dictionary of Canadian Biography'', vol. XIII (1901–1910), University of Toronto / Université Laval.</ref><ref>Ben Forster and Jonathan Swainger, [http://www.biographi.ca/en/bio/blake_edward_14E.html "Blake, Edward"], ''Dictionary of Canadian Biography'', vol. 14 (1911–1920), University of Toronto / Université Laval.</ref>
McDougall, counsel for Andrew Francis Mercer, advised the Court that his client favoured the federal government because he understood that the federal government would likely transfer all of the property to him if successful, under a pre-Confederation policy that the federal government would respect. All counsel made extensive arguments, ranging over the feudal origins of property under English law, [[royal prerogative|Crown prerogatives]], the constitutional history of the British North American provinces up to [[Canadian Confederation|Confederation]], and the powers of the federal and provincial governments under the ''British North America Act, 1867'' (now known as the ''[[Constitution Act, 1867]]'').<ref name=Counsel/>
The Supreme Court allowed the appeal by a majority of four judges, with two dissenting. The four judges in the majority (Justices [[Télesphore Fournier|Fournier]], [[William Alexander Henry|Henry]], [[Henri-Elzéar Taschereau|Taschereau]] and [[John Wellington Gwynne|Gwynne]]) agreed that the right of escheat is one of the royal prerogatives and a form of revenue. It therefore was a federal matter under [[Section 102 of the Constitution Act, 1867|s. 102 of the ''Constitution Act, 1867'']] which assigned revenues to the federal government. As well, they questioned whether the provinces could benefit from the royal prerogative of escheats, since they considered the Crown was represented by the federal government, and not by the provinces.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 648–712.</ref>
The two dissenting judges, Chief Justice [[William Johnstone Ritchie|Ritchie]] and Justice [[William Johnstone Ritchie|Strong]], took the view that escheats were part of property in land, and therefore assigned to the provinces by [[Section 109 of the Constitution Act, 1867|s. 109 of the ''Constitution Act, 1867'']]. Section 109 provides that the provinces continued to hold "All Lands, Mines, Minerals, and Royalties" belonging to the provinces before Confederation, which would include the Crown’s right of escheat in land. They would have upheld the constitutionality of the provincial statute.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2817/index.do ''Mercer v Attorney General for Ontario''], pp. 623–648.</ref>
<gallery>
Zebulon Aiton Lash (cropped).png|Zebulon Lash, QC, Deputy Attorney General of Canada
William McDougall.jpg|William McDougall, QC, counsel for Andrew Francis Mercer
DENT(1881)_2.507_EDWARD_BLAKE.jpg|Edward Blake, QC, counsel for Ontario
JamesBethune23.jpg|James Bethune, QC, also counsel for Ontario
Louis-Onézime Loranger.png|Louis-Onézime Loranger, Attorney General for Quebec
</gallery>
== Decision of the Judicial Committee ==
[[File:1stEarlOfSelborne.jpg|thumb|upright=0.75|The Earl of Selborne, Lord Chancellor of England, who gave judgment in favour of Ontario]]
[[File:Horace Davey, Baron Davey (1833-1907), by George Frederick Watts.jpg|thumb|upright=0.75|Horace Davey, counsel for Ontario]]
[[File:Farrer Lord Herschell, Bassano.jpg|thumb|upright=0.75|Farrer Herschell, Solicitor General for England and counsel for the federal government]]
[[File:LordStHelier.jpg|thumb|upright=0.75|Francis Jeune, junior counsel for the federal government]]
Attorney General Mowat appealed to the [[Judicial Committee of the Privy Council|Judicial Committee]]. Mowat appeared personally to argue the appeal, along with [[Horace Davey, Baron Davey|Horace Davey]], QC, a leading member of the English bar, and two junior counsel, one from Canada and one from England. The federal government, handling the appeal on behalf of Andrew F. Mercer, was represented by the [[Solicitor General for England and Wales|Solicitor General for England]], [[Farrer Herschell, 1st Baron Herschell|Farrer Herschell, QC]], and the federal Deputy Attorney General, Zebulon Lash, with [[Francis Jeune, 1st Baron St Helier|Francis Jeune]] as junior counsel.<ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], [1883] UKPC 42, 8 AC 767 (PC), pp. 768, 770 (AC).</ref>
[[Roundell Palmer, 1st Earl of Selborne|Lord Selbourne]], the [[Lord Chancellor]], gave the decision of the Judicial Committee in favour of Ontario's appeal. An expert in [[Equity (law)|equity law]], he reviewed the historical origins of the doctrine of escheat, as an aspect of feudal tenure and the position of the Crown as the ultimate lord of the property. If there was a complete failure of the tenant's line, the land escheats, or returns to the Crown. The income from an escheat was one of the casual revenues of the Crown.<ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], pp. 771–774 (AC).</ref>
He then turned to the major issue: was an escheat part of the revenues assigned to the federal government by s. 102 of the ''Constitution Act, 1867'', or was it one of the types of property reserved to the provinces by s. 109 of the act? He noted that s. 102 stated that the revenues transferred to the federal government did not include revenues the the Act "reserved to the respective Legislatures of the Provinces". He concluded that phrase referred to the "lands, mines, minerals, and royalties" held by the provinces under s. 109 of the Act. Finally, he held that the escheat of land was one of the "royalties" included in s. 109. The escheat in land therefore belonged to Ontario, as held by the Ontario courts. <ref>[https://www.bailii.org/uk/cases/UKPC/1883/1883_42.html ''Attorney General of Ontario v Mercer''], pp. 775–779 (AC).</ref>
As was the practice of the Judicial Committee at that time, there were no concurring or dissenting reasons from other members of the committee.
== Consequences ==
Much of the estate was spent on the legal costs. Following the decision, Mowat agreed to give Andrew Francis Mercer $30,000 from the proceeds of the estate, but most of that went to cover his legal expenses. The government used $10,000 of the proceeds to set up the Andrew Mercer Eye and Ear Infirmary at the Toronto General Hospital. Another amount, $106,000, was used to set up the Andrew Mercer Ontario Reformatory for Females. The Reformatory opened in 1880 and continued in existence until 1969.<ref name = dcb/>
The Supreme Court has cited ''Attorney General of Ontario v Mercer'' several times since it was decided, most recently in 2002.<ref>[https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1944/index.do ''Bank of Montreal v. Dynex Petroleum Ltd.], 2002 SCC 7, [2002] 1 SCR 146.</ref>
This case is included in the three volume set of significant decisions of the Judicial Committee on the construction and interpretation of the ''Constitution Act, 1867'', prepared on the direction of the then [[Minister of Justice and Attorney General of Canada|Minister of Justice and Attorney General]], [[Stuart Garson|Stuart Sinclair Garson]], QC. Following the abolition of Canadian appeals to the Judicial Committee, Garson directed that the [[Department of Justice (Canada)|Department of Justice]] prepare the collection "for the convenience of the Bench and Bar in Canada".<ref name = Olmstead>Richard A. Olmsted, Q.C. (ed.), ''Decisions of the Judicial Committee of the Privy Council relating to the British North America Act, 1867 and the Canadian Constitution, 1867–1954'', vol. 1 (Ottawa: Queen's Printer and Controller of Stationery, 1954), p. iii.</ref> This case was included in the first volume of the set.<ref>Olmsted, ''Decisions of the Judicial Committee of the Privy Council'', vol. 1, p. 171.</ref>
== References ==
{{Reflist}}
{{DEFAULTSORT:Attorney General of ONtario}}
[[Category:Canadian constitutional case law]]
[[Category:Canadian federalism case law]]
[[Category:Judicial Committee of the Privy Council cases on appeal from Canada]]
[[Category:1883 in Canadian case law]]
Okumaya devam et...