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