January 19, 1911

LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

The stand taken by Great Britain was that it was not necessary for Great Britain to enter into such an agreement because there had been a very careful investigation into the working of the match factories in that country and a report had been handed in, and I venture to read a few words from that report:

In 1900 regulations were made and enforced. These regulations have had the effect of almost wholly suppressing the disease in England. In the five years that have elapsed since the alterations which they required having been made, there have been only five cases of necrosis and three of these were mild, the persons affected recovering and finding employment. Of the other two cases, both of which were fatal, one was that of a woman who was employed in a factory where no white phosphorus had been used for four years,

It is hardly fair to charge her case up to white phosphorus :

-and the other was that of a woman who had been guilty of direct infraction of one of the most important of the regulations.

The report concludes :

There have been no cases in 1906.

And so, the state of affairs in England was not such as to require Great Britain to agree to this convention, and so she declined to sign at that time. But, she went more than half way and she offered to sign if all the other nations concerned would sign. Sweden declined, Spain declined, Portugal declined, Japan declined, Norway declined even to send representatives to the convention, and Austro-Hun-gary and Belgium took the same stand as Great Britain. We find, therefore, that but a small portion of the continent of Europe had agreed to this convention, and when eventually, Great Britain offered to subscribe if the others would subscribe, thj others still held out and are holding out to this day. The countries subscribing were : France, Germany, Holland, Denmark, Switzerland, Wurtemburg, and Italy, and of these seven the first five already had this law on their statute-books, and so their signature bound them in no way to dp more than they were doing. That left Luxemburg which had not a match factory within its boundary, and Italy. So, Great Britain's offer to the nations' of Europe was not accepted by the nations of Europe and Great Britain did not sign. A year or two later on, and as the Minister of Labour says, a deputation came to the government of England, a deputation of match manufacturers asking them to pass this legislation, and I will not go beyond the words of the minister himself who said there were nine manufacturers representing all the match manufacturers of England ; that one of them Bryant & May had a formula which they had arranged with

their colleagues to use. And so. these gentlemen having the formula among the nine, being threatened by the importations from Sweden as referred to by the minister, calmly and coolly sacrificed themselves on the altar of patriotism by having an - Act passed which gave them a monopoly for all time to coma, shut out all competition on the part of others, and left these nine patriots in exclusive control of the English market. The minister has been so anxious that we should follow the English example that I think he had better study the circumstances under which England did consent, and see how the people of England were buncoed 'by the government when they passed such a Bill, and sea that Canada delays, as England did, until all the match manufacturers come to the government and agree in asking this.; then, perhaps, the government ought to consider their application. The minister pointed out that although on the face of this legislation it so invitas criticism that the press throughout the land have 'been charging him with having been the recipient of a gold brick at the hands of the Diamond Match Company, the minister triumphantly pointed out this cannot be the case, because in the United States where the Diamond Match Trust stands side by side with the Standard Oil Company-a company that is morally certain to receive at least justice when it seeks legislation- the Diamond Match Company having applied for legislation in the United States was as the minister knows unable to obtain it from the federal power because as they admitted they had no jurisdiction, but indirectly they endeavoured to give the benefits the Diamond Match Company wished by imposing taxes. And, even then despite all the influence of the Diamond Match Company it was apparently unable to pass its Bill until it assigned to trustees the secret formula which places it in the position of making every other match manufacturer on the continent pay toll to it until a better formula is discovered. The minister places great stress on the fact that the formula has been assigned to three gentlemen whose names are above the possibility of reproach, giving them the power to do what is proper between the parties. Would the minister, or would I, would any man if the owner of a valuable formula of that kind assign it with authority to others to do what was proper and would he think it proper to hand that over without any consideration to any company who wished to use it. Surely the first element of propsr conduct would be to do what is right by those who owned the formula. The first thing these trustees do is to exact a royalty ; and in the case of matches which sell by the million, it is a matter of no importance what the royalty is on each

box, but the business is so immense that if the Diamond Match Company can secure that royalty, they will have secured something well worth having, and if they can obtain a monopoly in Canada that is surely something worthy of consideration, and one of those things which will add to the increased cost of living. Surely the Minister of Labour will not deny that by compelling every manufacturer in Canada to use a formula owned by an American trust company and pay that trust a royalty and by compelling -him also to show the extent of the market lie can supply, he will be putting the manufacturer here completely at the mercy of this powerful trust of the United States ; and in so doing the hon. minister will surely not say that he is thereby reducing the cost of living.

I have spoken of the report by the government commission in Great Britain which was appointed to inquire into the effects and ravages of necrosis in that country, and that report shows that practically by British legislation necrosis has become a thing of the past in the mother land. I think I have shown why the manufacturers of England might well ask for legislation which would give the nine manufacturers in that country a monopoly for all time to come.

I find by referring to the dictionary of chemistry by Thorpe-an authority which will not be questioned-that this whole matter was threshed out in England from 1840 to 1865, and that although necrosis was a very common and hideous disease there prior to that time, by recent regulations, the English authorities have practically stamped it out: Away back as far as 1879 in Germany, out of 5,724 workmen coming in contact with phosphorus, only nine cases of necrosis were observed and only three of deaths from this illness. But still, insignificant even as that number was, Germany made regulations in 1884 which practically stamped out the disease in that country.

The hon. minister has said that when his attention was called to this appalling state of affairs, when he learned of the ravages of necrosis, he took steps to ascertain by communication with the provincial authorities whether any legislation had been passed by any province bearing on this subject. Does not this strike you, Sir, as a singular commentary on the way our ministers carry on the public business? Instead of employing clerks to write letters to provincial secretaries, would it not have , been much simpler to have turned up the revised statutes of each province and find out if they contained any7 legislation on this subject? All the minister would have to do would bp to look at the statutes and thus save himself the trouble of dictating bombastic . letters to the various provincial secretaries.

In the statutes of Ontario, there is a Factory Act, and he would probably find such an Act in the statutes of every province in the Dominion. In the Ontario Factory Act, chapter 256, he will find sanitary conditions imposed on all factories. He will find that ventilation, which in England was considered the principal remedy, is insisted on in the Ontario Act besides other regulations for the prevention of disease which have been found very effective. In the schedule at the end of that Act, page 3119 of the statutes, are included all those factories to which it applies, and I find match factories specifically named.

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

Can the hon. gentleman give a reference to legislation by any of the provinces on this subject of phosphorus necrosis?

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

Does my hon. friend suppose for a moment that if the province of Ontario were to pass an Act to suppress necrosis, they could suppress it by giving the courts jurisdiction to grant an injunction against the presence of necrosis or to order its deportation? Does it not strike him that a practical government would pass an Act requiring the factories to do what would put an end to necrosis and would not require to mention the word at all. It is perfectly true that there is not a word in the statutes against necrosis, and I am not aware that there is a word in it against any disease known to the medical faculty, but the Act provides regulations which will prevent disease, and if this government, which takes such an interest in this matter, would draw the attention of the various provincial authorities to the information it has at hand, and point out any proper precautions that could be taken to prevent this disease, no doubt the provincial authorities would be ready to adopt any regulation which would have this effect. It would be very unfair to them to suppose for a moment that they would refuse to do so. The fact that this Ontario Act has been before the courts frequently and has always been declared intra vires, the fact that it provides sanitary regulations to protect the public health against all disease-these surely show that every province has the right to legislate with regard to sanitary conditions in its factories, and the fact that this Act to which I have referred is on the Ontario statutes is another argument against this House having the right to pass what is practically a factory Act.

The question of. public health has been dealt with by our provinces again and again, and the right of the provinces to deal with them has been held in the case of Rinfret vs. Pope in the province of Quebec. That question has been held to be a matter for provincial jurisdiction, and consequently Mr. NORTHRTJP.

this House has no jurisdiction to deal with it.

A word or two as to the question of jurisdiction under the head of trade and commerce^ If the hon. minister will look at the British North America Act, he will find that, on the one hand, the Dominion parliament has the power to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the class of subjects assigned to the provincial legislatures. So the minister is quite mistaken and the Deputy Minister of Justice is quite mistaken if he thinks there is any clause in the British North America Act that gives this House power to legislate, to make laws for the peace, order and good government of Canada. There is a long list of subjects assigned to this parliament and a long list assigned to the legislatures. Besides this, we have power to pass laws for the peace, order and good government of Canada in relation to all matters that do not come within the class of subjects by this Act assigned exclusively to the legislatures of each province. Each province is allowed to legislate in regard to local works and undertakings, to property and civil rights and generally in relation to all matters of a merely local or private nature in the province. Did the minister ever stop to consider what the meaning of these words, 1 the regulation of trade and commerce ' would be ? They have received a judicial interpretation and I venture to say that any one's common sense would teach him just what the Lord Chancellor of England concluded, that is that if this parliament is given power to regulate the trade and commerce of Canada, the power to regulate implied a continued opportunity to regulate; there is all the difference in the world betwen regulation and prohibition. In case there is any doubt, we have the opinion of the Privy Council in the case of the city of Toronto and Virgo in VII. Appeal Cases in these terms

Their lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.

In the case of the Attorney General of Ontario vs. the Attorney General of the Dominion, the courts held that:

A power to regulate, naturally, if not necessarily, assumes, unless it is enlarged by,.the context, the conservation of the thing which is to be made the subject of regulation.

So the Minister of Labour, when he speaks of regulating trade, is in reality proposing to prohibit trade. This sta-

tute prohibits the manufacture of a certain kind of matches in Canada. I contend that when we speak of trade, the manufacturer is not a trader; the decisions are clear on that point, in the same way that the man who issues an insurance policy, an indemnity against fire, is not a trader, and the courts have so held. The manufacturer may become a trader when he comes to sell what is manufactured, but this Act does not deal with the selling, but with the manufacture, and so even on that narrow ground, you really do not touch trade and commerce and cannot properly regulate the manufacture.

In Todd there is a very full discussion based on some cases in the House of Lords, particularly the Citizens Insurance case,

7 House of Lords. I quote from Todd's Parliamentary Government in the British Colonies, second edition. The remarks he makes are based on the Citizens Insurance Company, 7 Law Reports Appeal, page 118. I am reading only Todd's comment which is interspersed with extracts from the case:- .

In the interpretation of the words ' trade and commerce ', in section 91 of the British North America Act, the Judicial Committee of the Privy Council, in rendering judgment in Citizens' Insurance Company's case, construed the words ' regulation of trade and commerce ' by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of interprovincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion. Their lordships abstain on the present occasion from any attempt to define the limits, the authority of the Dominion parliament in this direction. It is enough for the decision of the present case to say that, in their view its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province, and, therefore, that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by No. 13 of section 92.

Although that was an insurance case, the principle laid down seems the same, that the Dominion has no power to regulate the contracts of a particular business or trade, and so here I say the Dominion has no power to say to a particular trade: You must cease to manufacture. I have here the particular case to which Todd was referring:-

In the head note to this same case the Citizens' Insurance Company of Canada, the reporter gives this summary:

In No. 2 of section 91, the words ' regulation of trade and commerce' include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of interprovincial concern, and, it may be, general regulation of trade affecting the whole Dominion.

I think these few extracts from the various judgments show clearly that the meaning was to regulate trade and commerce, not to regulate this and that other little matter but to regulate trade in the interests of the whole country.

The minister, and I think the deputy Minister of Justice, in his opinion, spoke of the right to pass the legislation on the ground that it is for the peace, order and good government of Canada. In one of these cases the same argument was used by counsel as by the minister that the Dominion had a perfect right to pass certain legislation because it was for the peace, order and good government of *Canada, and their Lordships taking that up, showed its absurdity on this ground that there was really no possible class of cases submitted to the local legislature that you could not change from their jurisdiction and hand them over to the jurisdiction of the Dominion if that wide meaning was given that the Dominion could legislate for anything touching the peace, order and good government of Canada; and then their Lordships pointed out that there were no such words in the British North America Act, but that we could legislate for the peace, order and good government of Canada only in relation to all matters not coming within the class of subjects assigned by this statute to the local legislature. The Minister of Agriculture (Mr. Fisher) seems to have a slightly different view from the Minister of Labour, because I notice that last year when the question o| tuberculosis was before the House and the Minister of Agriculture was urged to take steps to suppress tuberculosis in our schools, he replied, at 'Hansard, 1909,' page 1438:

There is another point I would suggest, although it is a matter coming under the domain of the provincial authorities, and that is the problem of dealing with tuberculosis in public schools.

So the Minister of Agriculture last year admitted the contention I make to-night that so far as health is concerned, he had no right to deal 'with tuberculosis in public schools, because education was left to the provinces. Precisely the same argument will apply in this case, that you have no right to deal with necrosis in a factory because that is a matter coming under the Factories Act, which is under the provincial authorities. As showing how far the local authorities have power in one of the liquor cases their Lordships of the Privy Council have said, dealing with regard to the manufacture of liquor,

and I merely give this, not as legal proof that the province has power to pass prohibition, but as showing the distance to which their Lordships of the Privy Council went on the very point I urge before this House to-night, that is the power of the provinces to deal with manufacture where it is a provincial and in no sense a Dominion matter. They say:

In the absence of conflicting legislation by the parliament of Canada, their lordships are oi opinion that the provincial legislatures a have jurisdiction to that effect (to pro-lubit the manufacture of intoxicating liquors) if it were shown that the manufacture was earned on under such circumstances and conditions as to make its prohibition a merely local matter in the province.

They point out that the parliament of Canada had certain rights to pass laws touching liquor from the standpoint of revenue and of trade and commerce, but where, as was pointed out, it was merely a question of manufacturing, then the province itself would have power to proInbit if it was only a local matter.

Take the case of a match factory. I quite understand that if the danger from matches Jay in their use by the public at large, pos-sibiy an argument might be raised by the Minister of Labour that it was a matter with which this House could deal, because it was a matter of Dominion concern, but there is no pretense that the danger is to the public; the danger is to the manufacturers themselves, to the people working m the factory in Deseronto, or Hull, or Halifax, or wherever it may be. The people working in that local factory are the people this House is asked to protect. I submit with all deference, and ask the leader of the House (Sir Wilfrid Laurier) to consider the question: Is it reasonably clear that this House has jurisdiction to interfere in the management of this local factory, whose whole business of manufacture is carried on within the small space of half an acre or so of ground? There is no question of trade or commerce involved; they have the right to manufacture under' provincial law.

I do not wish to occupy the time of the House longer, but I hope I have convinced the Minister of Labour (Mr. King) that if he is to follow the example he asks us to follow, that of the mother land, he will have to get a requisition from the manufacturers themselves. Then it will be his duty to see whether there is any ulterior motive, or what it was that may have influenced the manufacturers of that country. He will have to consider whether this is a gold brick that is handed out-as I think it clearly is-by the Diamond Match Company. Then he will have to consider whether this legislation is in the interests' of the country as a whole. And, while he Mr. NORTHRUP.

is making such ample inquiries, he might seek to learn who this Diamond Match Company are. I know nothing about the matter personally, but my information is that this is, beyond comparison, the largest match company in the United States. I do not think the minister will contradict that statement. I speak subject to correction, and have had no means of learning the facts, because our trade and navigation returns are made up in such a way that it is impossible to learn what the importation of matches really is, but I am informed, and would like to know whether it is a fact, that not a dollar's worth of matches manufactured by the Diamond Match Company has come into Canada, except in the short time that elapsed between the burning down of the Eddy Company's factory and the rebuilding thereof. If these are facts they are very significant. Supposing that this House has jurisdiction, I hope the minister will consider what he is submitting our manufacturers of matches to. He is asking the small manufacturers to put themselves within the grasp of a mighty trust by compelling them to manufacture under a formula which this trust allows them to use, and to use, of course, on the trust's own terms. If they manufacture under a fixed royalty, it must be made known to the trust where the business is being done, and so the manufacturer must make known to a competitor who is strong enough to crush him in a week the very facts that it is necessary for the success of his business that he should withhold. And so the victim is subject to conditions for the calculation of the royalty that are more onerous and dangerous than the payment of the royalty itself. I trust the Minister of Labour will satisfy himself whether he has the right to pass this legislation, and also whether it will be beneficial to this country, and, after that, whether the evils of which he speaks cannot be prevented by the provincial authorities. I trust he will do this before he asks this House to pass this legislation.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

I followed very closely the argument of my hon. friend from East Hastings (Mr. Northrup). For this evening, at all events, it would be sufficient, I am sure, if, without going into the merits of the question of the advisability of passing this legislation, which may be more fully considered when we come to the second reading of the Bill. I confine myself to considering whether we have, or have not, 'the right to pass this proposed legislation. The hon. gentleman has argued that it is beyond our powers, and that such legislation, if it can be passed at all, can only be passed by the provinces. Perhaps it will be sufficient for the present' purposes for me to state, as

stated already by my 'hon. friend the Minister of Labour (Mr. King), that, before introducing this Bill, he consulted the Department of Justice, and the Department of Justice assured him that he had authority to pass this legislation. The Minister of Justice (Sir Allen Aylesworth), is a good lawyer; my hon. friend from East Hastings (Mr. Northrup), is a good lawyer. This is not the first time when good lawyers have differed in opinion. Perhaps my hon. friend will permit me to say that when we find the Minister of Justice on one side of a question and an eminent member of the House and of the legal profession on the other side, it will be safer for us to follow the view of the Minister of Justice. .If the Minister of Justice is astray in his opinion, and, following that opinion, we pass legislation which is beyond our authority, the worst that can happen will be that the manufacturers of matches who, my hon. friend says, would be oppressed by that enactment, will not obey it, but will go on manufacturing, as they are doing to-day,-that is, the Bill will be a dead letter. But what are we to do when eminent members of the legal profession differ ? I think we can safely trust to the legal advisor of the government and the House, until his opinion is set aside by the courts of law. In the opinion of the Minister of Justice, if it has been properly stated, we have the power to pass this law. But my hon. friend (Mr. Northrup), as a member of the legal profession, will agree with me that no legal opinion should be criticised unless we have it in writing before us. If the opinion of the Deputy Minister of Justice has been correctly stated, that we have jurisdiction in this matter, because -this is a proposed law for the good of the country, I can only say that, that does not commend itself to my judgment. But for other reasons, I think the hon. Minister of Justice is quite correct, and in this respect I differ with my hon. friend. This is a Bill to prohibit the manufacture and importation of matches made with white phosphorus. We have discussed simply the prohibition as to manufacture. But, if it be the opinion of the people of this country that the use of matches manufactured with white phosphorus is injurious to health, the power to prevent the importation of such matches must reside some. where.

It either resides in the Dominion parliament or in the local legislature. Now, my hon. friend will' not differ with me when I assert that the power to prohibit the importation of matches resides with this parliament, and does not reside with the local legislatures. So far, therefore, we have jurisdiction in this parliament to prevent the importation or manufacture. That is enough to give us jurisdiction here. Later

on in the Bill we shall have to consider whether we can prevent the manufacture as well as the importation. It seems to me that if we have power in this parliament to prohibit the importation of matches, therefore we have in this parliament power to say: You shall not manufacture matches in this country. It seems to me that the authority to prohibit importation carries with it the authority to prohibit the manufacture. At all events, I would take that ground. But I will go a step further. My hon. friend has stated that whilst we have jurisdiction in this matter on all matters of trade, the manufacturer is not a trader. Well, my hon. friend will agree that this is a very technical view to take of the matter. It is true, he says, that the manufacturer becomes a trader when he sells. But let me observe that the manufacture is made to be sold, the manufacturer has no other object than to sell his goods; therefore, if that is the object of his business, he is a trader in the broad sense of the term. The manufacturer being certainly a trader, therefore we have power in this Bill to regulate this opera tion of making matches. My hon. friend said, also, that we could not consider the question in this way, because, whilst we have power to regulate trade and commerce, this is a law to regulate a manufacture. It is simply a law to prohibit the manufacture of matches in a certain way. This also seems to me highly technical. It is very true that the object of the law is to prevent a certain kind of manufacture, but it is also true that it is a regulation which would compel the manufacturer to use certain ingredients instead of others, and would prohibit him from manufacturing them with phosphorus and force him to manufacture with something else. Therefore, it seems to me that from this point of view, also, the matter is one which comes properly within our purview. The object of the present Bill Is to prevent the saie of certain matches, which is enough to give us jurisdiction, and I think that alone would warrant us in passing this resolution. The Bill will come again before us for a second reading, and for my part I shall read again the argument of my hon. friend to see whether my more deliberate judgment confirms me in this view. One other observation upon the merits of this Bill. My hon. friend said that this was a measure which would result in profit to a certain manufacturing company which holds a patent in the United States. But I think that point has been answered already by the hon. member for Leeds (Mr. Taylor), who has said that this company, which has a patent under the laws of Ontario, has not used its patent, and therefore it has lost its power, and we have the ' right to use the patent. So, on the whole.

I think we can proceed with this legislation.

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

Let me say, first, that I think the Minister of Labour fell into error when he cited the leader of the opposition as an authority for the proposition that this was a Bill for the regulation of trade and commerce. It is true that in so far as the Bill does prohibit the importation of these matches, it is dealing with the regulation of trade and commerce, and is to that extent within our jurisdiction. But I would like to point out that the leader of the opposition did not express any opinion upon the question of our jurisdiction to deal with this matter the other day, and that although rule 50 of the House required Bills relating to trade to be introduced by a resolution, that did not imply that it was a Bill for the regulation of trade and commerce, because the rule prescribes that any Bill that relates to trade and commerce shall be introduced through a resolution. Now, you may have many Bills that relate to trade and commerce, the purpose whereof will not be the regulation of trade and commerce. For my part, I would be disposed to think, differing in that respect from the Prime Minister, that in so far as this legislation going further than dealing with the question of prohibition of importation, it can be justified as being within the jurisdiction of this parliament, it would be in virtue of the general clauses which give the jurisdiction to legislate in regard to the peace, order and good government of Canada, and more especially the clause at the end, which gives jurisdiction in all matters not specially reserved to the provinces. But it would seem to me clear that this legislation cannot be justified as being a regulation of trade and commerce. Now, I am not without knowing that when we were first called upon to apply the British North America Act there was a pretty general impression that the regulation of trade and commerce meant the regulation of the carrying on of all the operations of buying and selling, so much so that it was urged in our province that the legislature could not deal with laws limiting the location in which a butcher's stali could be established, because it was said that that was a regulation of trade and commerce. Now, as my hon. friend from Hasting (Mr. Northrup) has pointed out, I think their lordships of the Privy Council have made it clear that what is meant by a regulation of trade and commerce is a regulation of trade and commerce in general, not the making of laws to govern one particular trade. In the case of the insurance company, I think they made it clear that though the carrying on for profit of the business of insurance was a trade, or commercial business, it was within the power Sir WILFRID LAURIER.

of the provinces to legislate as to what sort of contract should be made in the prosecution of that business. The objection made was precisely this: You are regulating trade and commerce. Their lordships said: No, such legislation is not regulating trade and commerce in general; it is not regulating interprovincial trade, nor trade with other countries, nor making any regulation with regard to trade in general applicable throughout the Dominion. I think here, if wi are dealing with trade at all, we are clearly dealing with what is going to be prohibited in one particular manufacture, and if a manufacture is to be considered a trade, then we are making a law for one trade. Now, how it can be said that in doing that we are regulating trade and commerce in the' general way in which the Privy Council says the provision that we have power to regulate trade and commerce is to be interpreted, I fail to see. Now, the Prime Minister has justified this Bill by saying that it was a Bill to prohibit the selling of those matches, and that it has been conceded by the hon. member for Hastings that the operation of buying and selling was an operation of trade, whether a manufacture or not.

I have looked at the Bill and the resolution, and I have been rather struck with the fact that the clause of the English Bill does prohibit the importation, manufacture and sale, while neither the resolution nor the Bill, as I read them and I think I have read them correctly, prohibits the sale of these articles. Even if this Bill should be passed, although there would be a prohibition in it against the importation and manufacture there would be no prohibition against the sale of matches of this kind. As far as the argument in favour of our jurisdiction rests upon prohibition of the sale it necessarily falls because we are not trying to prohibit the sale by the Bill. 1 would not perhaps like to be quite as positive as my hon. friend from East Hastings, but it would seem to me that if we have jurisdiction it must be because of the fact that you do not find in the subjects exclusively allotted to the provinces the subject matter of the protection of health. In that connection a very Serious question arises whether you do not find this within the subjects exclusively allotted to the provinces by reason of the fact that after the particular things that are found in section 92 enumerating the powers of the provinces you have the last one which is general, ' All matters of a merely local or private nature in the province/ and as has been pointed out by the hon. member for East Hastings what this Bill, outside of the question of importation, deals with is purely and simply a question in the interest of health and in the interest of the health of a limited

class of people employed in a factory in a particular locality or in a number of factories in different localities. It seems-to me, prima facie, that there is a very serious question whether in undertaking to do this we are not undertaking to determine what, from the point of view of the protection of the health of a certain number of individuals belonging to a certain class of the community, shall be permitted in a factory in a particular locality. I do not want to go into the merits of the matter, but it would seem to me that the decision of this question, whether this is to be prohibited or not, depends upon a careful investigation of the manner in which particular manufactories are carried on, so much so, that I would conclude from what I have listened to from the Minister of Labour-and listened to with a great deal of admiration-that it might be a perfectly true thing that while in one factory the using of white phosphorus under certain conditions would be extremely dangerous, in another factory by taking proper precautions it might be perfectly safe. If that is a correct view of it we are undertaking to determine whether or not a thing should be permitted when whether it would be proper to permit it depends to a large extent on the particular conditions of the different factories. I am not speaking of this for the purpose of discussing the merits at all, but I mention it because it seems to me to give considerable force to the proposition that the regulating of things of this kind is dealing with things of a purely local nature within the province. I do not flatter myself that any greater weight would be attached to my own opinion than to the opinion of my hon. friend from East Hastings, and of course I do not expect to outweigh in the scale the opinion of my right hon. friend the leader of the House (Sir Wilfrid Laurier) or that of my hon. friend the Minister of Justice (Sir Allen Aylesworth), but I did gather, and I do not say it at all by way of depreciating the opinion, but merely for the sake of correctness, that the opinion which the hon. Minister of Labour had received was that of the Deputy Minister of Justice. I do not want to depreciate that opinion in any way because that gentleman is one for whom I have the very highest respect and I would treat any opinion given by him with a great deal of deference. But while I am quite sure that this House would feel justified, as the leader of the House has pointed out this evening, in following the advice of the Minister of Justice, I think it is a perfectly proper thing, when there does exist what I think after what has been said by both sides may fairly be conceded to be a grave doubt as to our jurisdiction in this matter, that the Minister of Justice, should give consideration to what has been submitted. None of

us pretends to infallibility on these matters. It is a general saying that doctors differ, some people say that lawyers could not live at all if they did not differ, and I suppose it is expected that they shall differ. With the merits of the question I understand that we will have occasion to deal when the Bill comes up. Upon those merits I have only to say that in so far as the purpose which is sought to be attained by this legislation is concerned the minister would have the hearty sympathy of every member of this House. I am sure that we are all desirous of assisting the Department of Labour in doing everything not only that may be absolutely necessary, but that may be substantially useful for the protection of the health of all classes of this community and more particularly I think it is fair to say of those classes who are more exposed and have the least within their own hands, the power to control the conditions under which they live." Upon that I think there will be no possible difference in this House. But the matter when we come to deal with it upon its merits, resolves itself into the question: Is it necessary to go as far as to absolutely prohibit this manufacture in order to attain the results sought to be attained? If it is so, I, for my part, would not hesitate to adopt it. On the other hand, I think we ought to look into the matter carefully because it is possible that the facts would bear out the conclusion of the Royal Commission in England, cited by my hon. friend from East Hastings and also by the Minister of Labour, that by taking proper precautions, which might properly form the subject matter, of factory Acts within the provinces, this material could be safely utilized, and if so 1 think we ought to hesitate before making an absolute prohibition.

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CON

Adam Brown Crosby

Conservative (1867-1942)

Mr. A. B. CROSBY (Halifax).

Mr. Chair, man, I just want to say a word in regard to this Bill. We have a match factory at Halifax. I listened to the very able manner in which the hon. Minister of Labou-(Mr. King) introduced his resolution, and his presentation of the matter would almost persuade anybody that the Bill was such a one as we should adopt at once. But, having heard the lawyers on this side, and the right hon. the First Minister (Sir Wilfrid Laurier), whom I always believed was a lawyer, on the other side, there seems to be some trouble as to the constitutionality of this Bill. Of that I have no desire to speak at all. But, I want to say a word with regard to the sickness said to have been brought about by the use of white phosphorus in the making of matches. In the city of Halifax we have a factory that, 1 think, has been engaged for some sixty or seventy years in the manufacture of matches and, as far as I can discsver, there has never been any person who has been

afflicted by the use of phosphorus. The foreman of that factory is 55 years of age, I think he has worked in the factory for 40 years, and he is quite a healthy man. In fact he is so healthy that he is actively engaged in politics and he is about to run an election, which is the best evidence you can get that there is nothing the matter with his jaws. I am afraid that if you are to take it that the want of teeth indicates that a man has worked in a match factory, you will come to the conclusion that some of the hon. gentlemen on the other side of the House have been engaged in the business. In Nova Scotia we have had a Factories Act for many years, and as the inspector resides near the match factory, I am quite confident that if there was anything in that factory detrimental to the health of the employees the inspector would have reported it. The Minister of Labour laboured hard to give us evidence in support of his theory, and he told us that ol the five factories in the Dominion there had been only three fatal cases of necrosis.

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

The three fatal cases were within the last year.

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CON

Adam Brown Crosby

Conservative (1867-1942)

Mr. CROSBY.

If the Minister of Labour was going to make an argument on that point he should have traced the matter back to former years, and given us fuller information about it. I want it to be understood that the use of white phosphorus has not affected our employees in the match factory at. Halifax. I understood the Minister of Labour to say that Mr. Rowley, manager of the Eddy factory was perfectly satisfied with this Bill.

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

I did not say he was satisfied, but that he authorized me to say that the Eddy Company did not intend to offer any opposition.

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CON

Adam Brown Crosby

Conservative (1867-1942)

Mr. CROSBY.

I also understood from the minister that Mr. Corbett, of Halifax, and Mr. Flewelling of New Brunswick did not intend to oppose it, and while I am not always sure that the desire of the manufacturers should be followed, I am specially here to speak for the people who work in the factory. Now, suppose we find that the substitute for white jphosphorus is such an expensive article that the manufacturer in Halifax could not continue in the business it would mean that 15 or 20 hands skilled in this kind of work would be thrown out of employment and might not be able to find a means of livelihood elsewhere. I am not so much concerned about the company who own the match factory, because like most manufacturers, they are fairly well off-at least so the farm ers say, and we are sometimes inclined to believe what the farmers say when it suits us. This Bill, according to its terms will not come into force until 1912, and unless Mr. CROSBY.

we can find that the substitute for white phosphorus is going to put Canadian match manufacturers in as good a position to hold the market as they are in at present, I think, seeing that we have been for years and years operating under the present mode of manufacture, it would not do any harm to defer the coming into force of the Bid until 1913, when we might be able to obtain further information on the subject. I am one of those who believe that everything that is used in Canada should be manufactured in Canada, and we should be careful not to take any step that would in any possible way interfere with our existing industries. Of course, I would not advocate the manufacture of anything that would be detrimental to the health of our people, but I have a strong belief that in the city of Halifax and in the province oi Nova Scotia, under our Factories Act no injurious process of manufacture would be allowed. The entire argument of the Minister of Labour was based on conditions which were found to exist in other countries and not because of any evil condition existing in Canada, so that even if the Bill is found to be constitutional by the Department of Justice, we might at least postpone its operation until the year 1913.

"Mr. TAYLOR (Leeds). I asked the Minister of Labour if the Diamond Match Company had complied with the Patent Act and commenced manufacturing in Canada and he answered that he was not aware that they had. I understand from him that this patent was taken out nine years ago by two Frenchmen who assigned it to the Diamond people a year or two ago. Under our patent law the patentee must commence manufacture within two years, and before the minister proceeds with the second reading of the Bill I ask him to inquire at the patent office as to when this patent was obtained, and if they have complied with the law.

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

I am informed that the patent is held under section 44 of the Patent Act which does not insist upon the manufacture of the patented article, but only on the payment of certain prescribed fees. These fees have been paid I believe, and the patents will not expire until 1917.

. Mr. TAYLOR (Leeds). As I understand it they must commence, the manufacture of the patented article within two years after the issue of the patent, and unless that law has been complied with this government ought not to pass an Act to compel the manufacturers of Canada to pay a royalty to some citizens of the United States. The government are in possession of the formula, and if they have not complied with the law the government can give

that formula to the manufacturers of this country.

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

Section 44 of the Patent Act gives the power I have reference to.

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CON

John Waterhouse Daniel

Conservative (1867-1942)

Mr. DANIEL.

The hon. minister, in his introduction, mentioned the fact that what is called sesquisulphide might be used instead of white phosphorus; but if my information is correct sesquisulphide itself contains white phosphorus, so that under this resolution and the Bill founded on it, this very sulphite could not be used at all and matches could not be manufactured with it or imported. How are you going to manufacture matches in this country if white phosphorus is not to be used at all? With regard to the horrible disease sometimes caused by the use of phosphorus, I remember very well seeing cases of it in London when I was a medical student, and I quite recollect the discussion and agitation that took place there with regard to it. I have not heard much about it lately, but new regulations were enforced in the old country to put a stop to the disease, and from what was said to-night regarding the report of the Royal Commission, no doubt these regulations had the effect of largely, if not entirely, stamping it out. I did not know, until this matter came up, that there were any cases of this disease in Canada. We have had for a number of years a match factory at Hampton, 20 miles from St. John, where they have been using phosphorus, and there has never been a case of this phosphorus necrosis that I know of among the employees there. Has the minister any different information? '

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LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

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CON

John Waterhouse Daniel

Conservative (1867-1942)

Mr. DANIEL.

But it is made, with white phosphorus all the same.

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Motion agreed to, and the House went into committee. Resolution reported, read the first and second time, and concurred in.


LIB

William Lyon Mackenzie King (Minister of Labour)

Liberal

Mr. KING.

I am not aware of any.

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CON

John Waterhouse Daniel

Conservative (1867-1942)

Mr. DANIEL.

I have been connected; with the hospital of St. John a good many years, and if there had been any cases of phosphorus necrosis in the Hampton factory they would have been taken to that hospital, so that I feel quite satisfied there has been none ; and judging by the report of the Royal Commission it would seem that the disease can be eradicated from our factories, if it exists in any, by the enforcement of proper regulations. No doubt in by gone times, in t-hes j large factories where phosphorus was used, and there was very little ventilation, the fume# of the phosphorus occasioned this disease ; but down with us, under better circumstances, this disease is unknown. 1 quite agree that even if in one factorv in Canada there has been found a case of this-disease, the danger should be put a stop to by legislation if possible ; but at the same time I would like the minister to state if lie has information whether the sesquisulphide does not itself contain white phosphorus, and therefore, would be interdicted by the passing of this resolution.

movea tor Ieave to introduce Bill No. 96, to prohibit the Manufacture and Importation of Matches made with White Phosphorus.

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Motion agreed to, and Bill read the first time.


PROHIBITION OF OPIUM.

January 19, 1911