February 1, 1937

CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Hon. C. H. CAHAN (St. Lawrence-St. George):

Mr. Speaker, with all due deference to the Minister of Labour (Mr. Rogers), it seems to me that the confused remarks made by the mover of the resolution (Mr. Coldwell) have been still further confused by the address just now delivered by the minister. As a matter of fact it is not a question of the transfer of jurisdiction; that does not enter into the real picture. The British North America Act as originally drafted, interpreted and construed, was indeed a very good act. In fact I believe to this day it remains a very good act, and I doubt whether a committee of the House of Commons can be expected successfully to clarify it.

When the act was passed certain legislative authority was given to each province. Section 92 states:

In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,-

1. The amendment from time to time, notwithstanding anything in this act, of the constitution of the province, except as regards the office of lieutenant governor.

2. Direct taxation within the province in order to the raising of a revenue for provincial purposes.

3. The borrowing of money on the sole credit of the province.

4. The establishment and tenure of provincial offices and the appointment and payment of provincial officers.

5. The management and sale of the public lands belonging to the province and of the timber and wood thereon.

6 The establishment, maintenance and management of public and reformatory prisons in and for the province.

7. The establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals.

8. Municipal institutions in the province.

9. Shop, saloon, tavern, auctioneer, and other licences in order to the raising of a revenue for provincial, local or municipal purposes.

B.NA. Act-Mr. Cahan

Paragraph 10 deals at length with local works and undertakings other than those such as lines of railway crossing from one province to another. Although I should like to read it,

I shall not take time to do so. Then paragraph 11 reads:

11. The incorporation of companies with provincial objects. . . ,

12. The solemnization of marriage in the

province. [DOT]

13. Property and civil rights m the province.

Paragraph 14 is somewhat longer, having to do with the administration of justice in the province. Paragraph 15 deals with the imposition of punishment by fine, penalty or imprisonment. Paragraph 16 reads:

16. Generally all matters of a merely local or private nature in the province.

From the first to the last of the discussions in the Supreme Court of Canada and in the judicial committee of the privy council without exception it has been held that all legislative powers not found in section 92 are vested in the parliament of Canada. There is no doubt about that. Hon. members may have heard of the discussions when the British North America Act was framed and those which took place during the first twenty years of confederation. I knew personally the men from the maritime provinces who had to do with the framing of the act. Time and again in private conversation and in public I have heard them state their belief as to the meaning and intent of one section of the act. Certainly paragraph 13, dealing with property and civil rights in the province, never was understood at confederation or for twenty years thereafter as including unemployment insurance, the control and regulation of industry in the province, the hours of labour, the maximum or minimum of wages of labour. Those matters were never thought to rest within paragraph 13, property and civil rights in the province. All the remaining paragraphs, with the exception of 13, are clear. There is no ambiguity. Except for the ambiguity and confusion which is found in the words " property and civil rights in the province," there would be absolutely no doubt in the mind of any student that unemployment insurance, hours of labour, wages and the regulation of industry are within the exclusive legislative control of the parliament of Canada.

I cannot give an exact date, but I believe until about 1896 I had a copy of every decision made by the judicial committee of the privy council and a copy of the shorthand report of every argument before that body concerning the British North America Act. So far as my intelligence permitted I have made a

careful study of the matter. It was not until after Sir John Macdonald came into office in 1878 and followed Edward Blake in asserting certain powers of the dominion in respect to imperial and external affairs that the judicial committee of the privy council began, with decision after decision, to give a wider interpretation and construction to "property and civil rights," and to cut down the general power vested in the parliament of Canada under section 91.

Section 91 states:

91. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this act) the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say-

And then follow twenty-nine paragraphs. _

I think I have read every one of the decisions of the judicial committee of the privy council which were applicable to Canada, and in recent years, certainly in the last forty, it has never exercised strictly judicial functions. The judicial committee of the privy council differs from the high court of justice in England in that its decisions indicate pronouncements of what it believes to be high political principles, as apart and distinct from strictly legal interpretations. I suggest that it is not advisable for me to follow the Minister of Labour in a discussion of the recent opinions of the judicial committee of the privy council. They themselves have suggested that their opinions in respect of these references are simply advisory and that they have no legal binding obligation upon the courts of Canada. However, if the recent cabled reports are borne out by the express terms of their opinions as they will be found finally reported in the law reports, certainly I think the criticism which I have made as to decisions of the judicial committee of the privy council in the past may still be found to apply to some of the opinions recently given.

My hon. friend quoted from an address which I gave in November, 1934, and which I still think was a pretty good address. I think I gave a fairly clear summary of the decisions given, not only by our supreme court but by the judicial committee of the privy council prior to that date. There then arose certain contentions. The legal experts of the labour section of the Geneva conference contended,

B.N.A. Act-Mr. Cahan

by a series of articles pronounced and published in international journals, that under section 132 of the British North America Act, and in view of the radio decision and the aeronautics decision which had just previously been delivered-

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Were they not in 1932?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Quite so, but what is a couple of years in a matter like that? It sometimes takes a year to study these decisions of the judicial committee of the privy council before one can form any accurate idea of their meaning or intent. They had been delivered previously and they led to public discussion in legal and other journals to the effect that the parliament of Canada was not fulfilling its duty to Geneva and to the League of Nations because it had not ratified the labour conventions dealing with hours of labour and rates of wages and had not exercised its legislative authority to put them into effect.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Did they suggest that we ought to acquire jurisdiction in that way?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

They suggested we had already acquired it under and as set out in section 132. We were not thereby acquiring jurisdiction. No jurisdiction could be acquired other than the jurisdiction vested in parliament by section 132. They argued that in the opinions given in the two cases I have mentioned it was decided by the judicial committee of the privy council that that jurisdiction had been acquired.

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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

A convention which is not ratified is not a convention.

Topic:   BRITISH NORTH AMERICA ACT
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I am not going to discuss that with my hon. friend.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

I will express my views afterwards.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

The hon. member has a perfect right to discuss his views, but he has no right to make impertinent remarks.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

I may not be as bad as the hon. member for St. Lawrence-St. George.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Probably not. I know I

am always being unfair in making insolent remarks and I have no doubt my hon. friend is simply following my bad example.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

Not to the same degree.

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Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

My hon. friend's accusation that there was a deliberate attempt on the part of the government and the parliament of Canada to filch jurisdiction is not well founded and is not fairly made. If he presents 31111-29J

it as a criticism of the government of Canada under the leadership of the right hon. leader of the opposition (Mr. Bennett), then it is also a criticism of parliament itself and of a parliament in which none of the members had' the courage to register their votes against the resolutions approving these conventions or against the legislation based thereon.

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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

I did.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

My hon. friend is so singular it is possible he may have. I do not remember, but I accept his statement. Therefore what was done was merely to exhaust another possible legislative power which, if held to be within the legislative competence of parliament, would enable parliament to deal with the social and economic questions which were then worrying the people of Canada. The final decisions have now been given and1 we are back to the condition of affairs which applied when I delivered my address in November, 1934, the address so highly commended by the hon. gentleman. But where are we now? By successive decisions of the Supreme Court of Canada and the judicial committee of the privy council it has now been held that all questions relating to compulsory insurance, to salaries and wages and to hours of employment are vested in the province, since section 92 of the British North America Act states that legislation respecting property and civil rights in the province is vested in the province. This vast field of legislative action which is now declared by the courts to be vested in the province is exclusively covered by that section dealing with property and civil rights in the province and the last clause, number 16, which reads:

Generally all matters of a merely local or private nature in the province.

Nobody has contended so far, at least that I have noticed, that legislative jurisdiction with regard to wages and hours of labour is vested in the province because those are matters of a merely local or private nature. They come under an interpretation of clause number 13, which was never thought of by the framers of the British North America Act. It was not discovered until some years after the. British North America Act of 1867 had been enacted that under property and civil rights the province had exclusive jurisdiction in a vast legislative field dealing with every phase of our industrial life. Now what is required, I think, is not so much to ask the provinces to forego any legislative jurisdiction which is really vested in them. All that is necessary is a clarification of one or

B.N.A. Act-Mr. Cahan

two sections of the British North America Act-one clause of section 92, and perhaps also section 91, in the recital .preceding its first clause.

How can that best be done? We know that, in the past, in no case where parliament by a joint resolution of both houses has asked for an amendment or modification of the British North America Act, has it been denied by the imperial parliament. I suggest that the government of which my hon. friend is a member have not altogether abandoned that procedure because we had an occasion last session when a joint resolution of the Senate and the House of Commons was introduced for the purpose of securing from the imperial parliament a very radical amendment of the British North America Act, far more radical than any amendment required to enable parliament to adjust our social and economic difficulties, and what I would suggest to my hon. friend is that to follow the procedure suggested by the Minister of Labour is simply to prolong the agony, as he calls it, or perhaps it was the hon. member for Winnipeg North Centre (Mr. Woodsworth) who spoke of the problem as being agonizing. In any case the suggestion was boldly made that if something were not done we would have organized insurrection and an attempt by force of arms to disrupt this country.

Topic:   BRITISH NORTH AMERICA ACT
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CCF

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. WOODSWORTH:

Mr. Speaker, I must protest against anything of that kind being put in my mouth.

Topic:   BRITISH NORTH AMERICA ACT
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Well, I have heard this evening from some hon. gentleman that there was likely to be a complete disruption of this dominion.

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CCF

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. WOODSWORTH:

I said there was danger of secession.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Well, secession was tried in the republic to the south, and it cost a million lives; if secession were tried in this country it might cost something in proportion. Canada is not prepared for secession. No province is going into secession, and the threat of secession, by way of intimidation, is the worst possible way to try to secure conciliatory action on the part of any province or of this dominion.

To cover what is now pressing, I asked the hon. member for Winnipeg North Centre for a precise statement of the remedies which he had in view. It is confusing to talk in philosophic terms when one is dealing with the precise wording of a statute, and the hon. member did subsequently explain, in very simple language which we could all understand, that he had in view the legislative power of

this parliament to bring into being a system of compulsory unemployment insurance; second, the legislative power of this parliament to deal with hours of labour; and, third, the legislative jurisdiction of this parliament to deal with minimum wages. Now, if that is wihat is required, why not draft in simple (vords-I am sure the Department of Justice can do it, and I am quite confident there are other members of the legal fraternity who could do it-some simple amendment to the British North America Act, sections 91 and 92, which would authorize the parliament of Canada to exercise such legislative jurisdiction? Let us have it in concrete form. Let us have it expressed in a joint resolution of both houses.

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Would the hon. gentleman support such a resolution?

Topic:   BRITISH NORTH AMERICA ACT
Subtopic:   PROPOSED COMMITTEE TO RECOMMEND AMENDMENTS LOOKING TO IMPROVEMENT OF SOCIAL AND ECONOMIC CONDITIONS
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February 1, 1937