February 1, 1937

CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Why, certainly. I think there may be doubt as to whether this parliament is more capable of dealing competently and adequately with the question, for instance, of hours of labour and perhaps of wages, than the provincial legislatures. There is a difference of opinion about it. Arguments can be urged on both sides. There is no doubt now that any one province can legislate with regard to these matters. The contention, as I understand it, is this, that parliament should deal with wages and hours of labour in such a way that its legislation would prevail throughout the length and breadth of the whole dominion. On the other hand, there are those who suggest that the conditions complained of are not the same throughout the length and breadth of the country. I remember an argument which I listened to in my own province of Quebec, in which it was suggested that conditions were not the same in all parts of that province, and that hours of labour should be different in the northern mining country, in the lumber camps, in some of the industrial towns, and in the city of Montreal, and reasonably strong arguments were made from that point of view.

But this parliament is in favour of having uniform legislation throughout the length and breadth of Canada. At least, if I understand the expressions of opinions which were given during the last session of the late parliament, in the 1935 session, if I fully appreciate the political speeches made by the right hon. leader of the opposition of that day, and if I understand the same suggestions which have been made from the government side again this session, there is a consensus of opinion that parliament can deal more efficiently and more effectively with these matters than can

B.NA. Act-Mr. Pouliot

the several legislatures. That opinion may be due to what I have observed during my twelve years as a member of this parliament. I notice that whenever any question comes up in which the legislative competence of the dominion is pitted against the legislative jurisdiction of the province, the members of this parliament on both sides immediately assume, with a unanimity that is seldom observed, that the parliament of Canada is more intelligent, more experienced and more competent to deal with such matters than is any provincial legislature.

On the other hand I notice that in the provinces with which I have experience, especially the two larger provinces, the members of the legislature think that with regard to these matters they are closer to the people; they are closer to the soil; they know better what is needed to remedy the evils which exist. I suggest to the hon. member for Winnipeg North Centre (Mr. Woodsworth) that this parliament is not the only parliament of the country. There is a real difference of opinion as to whether this parliament is more competent to deal with certain social questions than are the legislatures of the provinces. But if we are resolved that parliament should do it, and that parliament should acquire the legislative competence to do it, the matter is really one of procuring simple amendments to the British North America Act as it exists at present, so as to make it clear that regulations of wages and hours of labour are not included exclusively in "property and civil rights," and so as to make it clear that the parliament of Canada has legislative competence to deal with the question of unemployment insurance.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

Does my hon. friend suggest that we should do it without first consulting with the provinces?

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I am not suggesting that. My hon. friend knows that one weakness I have shown in this house is in contending, whether under the federal government of my hon. friends opposite or under federal governments led by the successive prime ministers under whom I have served., that to maintain peace, order and good government in this country there should be the utmost efforts at conciliation and cooperation and joint action between the federal and provincial parliaments. But this I say, that every provincial conference which I have attended or of which I have read the proceedings, failed to arrive at concrete decisions simply because its members went off into a discussion of all sorts of philosophical and hypothetical questions with regard to government. I suggest that my

hon. friend the Minister of Justice should have his department draw up two or three simple amendments-a very few words would express them-which would give parliament beyond a doubt the jurisdiction which he desires, and have those amendments submitted to this parliament, and, if he so desires, submitted to each of the provincial governments. The discussion would then be restricted to really concise and definite propositions, and we would be more likely to reach a unanimity of opinion.

I did not intend to enter upon any such discussion as this, but I was provoked to it by what I thought was the unfair criticism on the part of the Minister of Labour (Mr. Rogers), which was due not to any malicious desire on his part to be unfairly critical of the late government, but rather to the fact that his philosophic brain has not yet taken into consideration all the points in issue in this discussion.

Mr. JEAN -FRAN QOIS POULIOT (Temis-couata): Mr. Speaker, very seldom have I followed a debate so closely as this one. This afternoon the hon. member for Rosetown-Biggar (Mr. Coldwell) was veiy interesting, the hon. member for Winnipeg North Centre (Mr. Woodsworth) very energetic, the hon. member for Peace River (Mr. Pelletier) very enthusiastic; the hon. member for Moose Jaw (Mr. Ross) spoke as a business man; the Minister of Justice (Mr. Lapointe) spoke as a statesman, as did the Minister of Labour (Mr. Rogers). And now, looking ahead of me, I see the hon. member for St. Lawrence-St. George (Mr. Cahan) to whom I have listened very attentively. He has expressed many views on this matter, both inside and outside the house, every time contradictory, and never right. It is most extraordinary that an hon. member has expressed such divergent views without once attaining the truth. It is a marvellous accomplishment. But are we serious? Yes or no?

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?

Some hon. MEMBERS:

You are not.

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?

An hon. MEMBER:

We do not take you seriously.

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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

What is that legislation which has been referred to so often this afternoon and to-night? It is a fake, a bait, a vote-catcher announced by the big broadcast of January, 1935, made by the right hon. leader of the Toiy party (Mr. Bennett). There was nothing to it; it was only another attempt to have the Canadian people forget the way he mismanaged the business of this country during the years he was in power. The same criticism applies to all his colleagues of that

B.N.A. Act-Mr. Pouliot

time with the exception, perhaps, of the exMinister of Public Works (Mr. Stewart), who looked only after his own department and had nothing to do with that so-called social legislation. I except him.

But speaking of contradictions, we just heard the hon. member for St. Lawrence-St. George say that the British North America Act was a good act; yet afterwards he said that he had found ambiguity and confusion in section 92. I am not surprised that he says that an act in which ambiguity and confusion are found is a good act. I can say the same of his speeches: they are good, but they are full of confusion and ambiguity. He said-I took a very careful note of this- "I doubt whether a committee of the house could clarify it"-that is the British North America Act-"successfully." A committee composed of the laymen who are in this house could not do that. On the other hand, the hon. gentleman said, members of the legal fraternity could draft a little amendment to suit the purposes of this resolution. It cannot be done by a committee composed of members duly elected by the people of Canada, but it can be done by civil servants. This reminds me of what has been said by the leader of the Tory party about legislation. Legislation is drafted by officers of the crown. A government submits it to the house. It is passed by parliament and then it is interpreted by the judiciary. They sometimes understand nothing in it; so much the better.

The hon. member for St. Lawrence-St. George spoke about the exclusive legislative control of the Dominion of Canada. It is not exclusive on one side only; it is exclusive on both sides. It means that on the one hand the dominion government has exclusive jurisdiction and that on the other hand each of the provinces has also exclusive jurisdiction. St. Lawrence-St. George spoke of the fathers of confederation, but he must have been very young if he had those conversations with them, because most of the fathers of confederation died a long time ago. If he was old enough to have conversations with them, especially at the time Sir John Macdonald came into power in 1878 as Prime Minister of Canada-well, he must be nearly a hundred years old. I speak of St. Lawrence-St. George.

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LIB

Frederick George Sanderson (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. DEPUTY SPEAKER:

Order. The hon. member must not refer to the hon. gentleman as "St. Lawrence-St. George;" he must say " the hon. member for St. Lawrence-St. George."

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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

I was not referring to the two saints but to the member for that constituency. However, I will say the hon. mem-

I Mr. Pouliot.J

ber for St. Lawrence-St. George; I have no objection to that. The exclusive legislative control of the dominion and the exclusive legislative control of the provinces constitute a most important point. What does it mean? It means, according to the British North America Act, that the dominion government can do certain things which the provinces cannot do, while on the other hand the provinces can do other things which the dominion government cannot do.

I do not want to recall any personal matters, but may I tell you, sir, that my grandfather fought confederation with Mackenzie and other members of the Liberal party-I mean Alexander Mackenzie and those who voted against confederation-because he found in it a disguised legislative union. And that is the Tory point of view, to have a Tory legislative union for confederation-in other words, centralization. The Liberal party fought for decentralization, and I keep as a family heirloom the text and translation of speeches made by the great leaders of the Liberal party in Ontario such as Alexander Mackenzie, Blake, Mowat and others who respected the principle of decentralization and regarded it as a Liberal principle. In the province of Quebec the Liberals think on that point just as the Liberals of Ontario do. We fear centralization; we fear that confederation might become a disguised legislative union; and the fathers of confederation wanted to make that clear, to make it definite, so that there should be no provincial encroachment upon federal powers and no federal encroachment upon provincial powers. That is clear and simple. How can it be interpreted differently?

It is most ridiculous that one of the leaders of the bar of Ontario, who is now chief justice of that great province, and one of the leaders of the bar of Quebec, a former president of the Canadian Bar Association, as well as other masters of the legal profession had to cross the sea in order to discuss before the privy council that so-called social legislation of 1935. Was that legislation based upon obligations arising from a treaty? No sir, and for a very good reason which I shall explain. Section 132 refers to the binding obligations arising from a treaty. It is said that parliament had not ratified these conventions; but how can a convention exist when it is not ratified? It reminds me of the astonishment of the hon. member for St. Lawrence-St. George last year when he heard a member in the far corner of the house speak about a unilateral agreement. The hon. member for St. Lawrence-St. George laughed at that; he thought it was nonsensical. But what did he

B.NA. Act-Mr. Pouliot

say when he argued about the binding force of a convention that had not been ratified? Is that not a unilateral convention such as he laughed at last year?

We see that the so-called social legislation which has been thrown into the waste-paper basket by the highest court, the privy council, was simply a vote-catcher. There was no treaty; there was no convention; it was only a formula drafted by the experts at Geneva, suggesting what could be done if it were desired. Did Canada sign a treaty with any other nation represented at Geneva for that so-called social legislation? No, sir; you know too well to say that. It was a matter of make believe, to make the Canadian people believe that we were bound by a treaty to pass such legislation, not in accordance with the constitution, but against the constitution. The right hon. leader of the Tory party must remember that when we were on the opposition side the member for Temiscouata told him that before declaring that he was going to amend the British North America Act, there was one thing which he should indicate, namely, what amendment or amendments he had in view. It was pointed out to him that it was a very bad thing to declare that he was going to amend the British North America Act without saying in what specific way he would do so. He had to indicate that such and such a section of the act would be amended for such and such a reason; and only these sections should be amended, not the whole act.

Personally I am not very fond of the British North America Act, and for a very good reason. I do not believe it is perfect, because it was inspired by fear, the fear of annexation. On the other hand, since it is our constitution, it must be respected to a certain extent and it must not be changed without sufficient care. Let us look at the report of the special committee on the British North America Act

a committee of this house. It is a book which I recommend to every member who has not read it or who does not belong to the committee. It contains very interesting evidence. This committee, having sat for several days, did not reach a single conclusion. No amendment was suggested and we find in the report only the answers of the representatives of each province and a resume of the evidence given by several witnesses who appeared before the committee.

I am in favour of a committee of the House of Commons to study the British North America Act, not with regard to social legislation but with regard to taxation, in

order to see how taxation should be divided, in order that each province should be at home in its field of taxation, in its sphere of action, and that the dominion government should be equally at home in its field of taxation and its sphere of action. It is not in order to create any kind of trouble between the dominion and the provinces; it is so that we may have order as between the federal government and the provinces, and that order will come when taxation is adjusted, when the provinces spend only the money they get from their own taxation and when Ottawa will not have to distribute to the provinces or municipalities money obtained by federal taxation.

I want order, and the right hon. leader of the Tory party is responsible for the disorder that exists not only in dominion but also in provincial finances, and in the municipal field as well. He has a great responsibility in that connection. He may come and say, " On my authority as a member of the bar, with a standing of many years, I tell you that we were bound by treaty in connection with that so-called legislation." That is false; there is nothing to it. To support my contention I do not have the hon. member for St. Lawrence-St. George, but I have the most intelligent judges sitting on the bench of the Supreme Court of Canada and the members of the .privy council of England, men without prejudice, who say that so-called legislation is just bunk. To show my sincerity, sir, in the votes and proceedings to-morrow you will see notices for the introduction of six bills to repeal the acts passed by the Bennett government in connection with their so-called legislation. Those bills will bear the name of the member for Temiscouata. I am being true to my word; I said those bills, which were simply fakes, should go to the waste-paper basket.

I will add a word of comment and praise with regard to the hon. member for Rosetown-Biggar (Mr. Coldwell). I know he is sincere, and I give him credit for that, but I tell him -as he knows very well-that it is impossible to have a dominion enactment with regard to hours of labour and wages. The hon. member knows very well that it is impossible even for a province to pass a statute applying similar hours of labour in every part of the province and equal wages to men engaged in the same industry in various parts of the province. It must be regulated by order in council. The member who addresses you now, Mr. Speaker, drew the attention of the house a very long time ago, before any labour member spoke about the matter, to hours of labour and wages in Quebec. Why was that done?

B.NA. Act-Mr. Pouliot

It was because I could not conceive that in my native province men should receive much less than their compatriots in other provinces, and I wanted to draw the attention of the government to the matter in order that those wrongs might be redressed.

That was done, as far as the federal government could do it. For that I wish to thank the Prime Minister (Mr. Mackenzie King) and his colleague, the Minister of Labour of the time, the Hon. Peter Heenan. They imposed conditions with regard to minimum wages and hours of labour in regard to men engaged in work being done for the dominion government. They could not go further because of a limitation imposed by a ruling of the Supreme Court of Canada. They wanted to do the right thing in order to help the people; they wanted to do something that might be useful, so they went the limit and we passed the legislation which was introduced by Mr. Heenan. Following that, those who were working for the dominion government received fair wages and were not asked to work more than a certain number of hours per day, or if they did work longer they received overtime. That was fair, I think. If we do something, sir, we must do it in such a way that it will help those concerned; I am sure my hon. friend from Rosetown-Biggar will agree with me. What is the use of passing legislation which is no good and which does not help those concerned? It is all right to express the pious wish that we could do this or that, but there is a way in which it can be done. We have the Statute of Westminster, and in this connection I am sorry to disagree with my hon. friend the Minister of Labour (Mr. Rogers). According to section 4 of the Statute of Westminster, the parliament of the United Kingdom is not to legislate for a dominion except by consent. This means that the dominion government must express its wish before any legislation, especially any sort of legislation amending the British North America Act, is passed by the United Kingdom. It is important to have that.

Supposing the British North America Act is studied by a committee of the House of Commons, or a joint committee of the commons and senate, in order that this small group of men, representing the government and the official and unofficial opposition, may discuss the matter and reach an understanding as to what is lacking in the British North America Act. They will find that the first matter to be adjusted will be that of taxation, and they will express their views fully in that regard. They will come to the house with legislation, and if all parties repre-

sented on the committee come to an agreement it will be very easy to have that legislation passed. Later the opinion of the provinces can be secured.

Sometimes there are things which are not done but which members of the house would like to have done. If we have not the power to pass legislation such as that mentioned by the hon. member for Rosetown-Biggar, the ruling of the privy council means that the provinces have that right, because it must exist somewhere. If we do not have the right the provinces have it, and if the provinces have it the people of this country should be told so, in order that the people may know that if the provinces do not pass such legislation as they desire they will be remiss in their duty. Then the matter will be clear and very easy to understand. This, it seems to me, is the thing to do. I ask hon. gentlemen on all sides of the house to consider that point very seriously, so that these things may be done by the proper authority in order that they may benefit those concerned.

Topic:   BRITISH NORTH AMERICA ACT
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. J. T. THORSON (Selkirk):

Mr. Speaker, until I listened to the hon. member for St. Lawrenee-St. George (Mr. Cahan), I had not intended to speak on this resolution. In my opinion the hon. member for St. Law-rence-St. George made a suggestion which merits the careful consideration of the house. He outlined, I believe quite accurately, the essential objectives of the British North America Act. He made specific reference to sections 91 and 92, and after reading section 92 made reference to that paragraph of section 92 which deals with property and civil rights in the province, and the last paragraph which deals with matters of a merely local or private nature in the province.

I believe it is recognized that it was in the minds of the fathers of confederation that there might be a shift of jurisdiction from the provinces to the dominion; that we were providing in our constitution for a centralized federalism; that circumstances might develop whereby matters might cease to be of a merely local or private nature in the province and become matters of national concern, and that as this change took place in the nature of the subject matter, so the courts from time to time would interpret the legislation. The hon. member for St. Lawrence-St. George stated, I believe quite accurately, that when confederation was contemplated, it was never thought that the paragraphs of section 92 dealing with property and civil rights in the province, and matters of a local or private nature in the province would include such subjects as unemployment insurance, or the

B.N.A. Act-Mr. Thorson

wages or hours of labour. On the other hand, the decisions of the privy council have practically destroyed the effect of that portion of section 91 of the British North America Act which deals with the peace, order and good government of Canada.

What is then the situation left by the recent decisions of the privy council? The decisions mean that this parliament has no jurisdiction whatsoever to deal with unemployment insurance, no jurisdiction to deal with hours of labour, and no jurisdiction to deal with the subject of wages. I think it follows also from these decisions that parliament has no jurisdiction to regulate or control industry. The recent decisions have left all these subjects within the jurisdiction of the provinces.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Except criminal law.

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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Yes, except criminal law. Nominally the provinces now have jurisdiction to deal with these subjects. They have power to deal with unemployment insurance; they have power to deal with hours of labour, wages, conditions of employment and the regulation and control of industry. But how real is that power? If any province sought to exercise it in the manner in which many hon. members and many people throughout Canada think it ought to be exercised, what would happen? It would mean that industries would boycott the province which sought to exercise its power, and the result is that only nominally does that power now reside anywhere in Canada.

Theoretically, under the decisions of the privy council the power now rests with the provinces, but as a matter of fact, since there would be fear of driving industries out of that province which might otherwise wish to exercise proper control and regulation of industry, the power does not in actual reality exist, because no province would dare to put its full power into operation and-

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Unless they all got together and passed the same statute.

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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

Yes. And what probability is there of the provinces getting together? For that reason I think the suggestion made by the hon. member for St. Lawrence-St. George merits the approval of the house; it would bring back into our constitutional scheme the original spirit of confederation. That spirit was that unless one could find within the four corners of section 92 specific jurisdiction in the hands of the provinces, then such jurisdiction automatically belonged to the dominion. If we followed the suggestion made by the hon. member for St.

Lawrence-St. George of drafting a proposed amendment to section 91 of the British North America Act-

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

And 92.

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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

-making it perfectly clear that the dominion had jurisdiction in the matter of unemployment insurance, wages, hours of labour and the control and regulation of industry generally, and then submitting an address to both houses of parliament asking that the necessary amendments be made to the British North America Act, we would then place definitely and concretely before the people of Canada a problem which from one end of the country to the other is demanding public attention. The provinces would have the opportunity of saying whether or not they approved of such an address being adopted by both houses of parliament.

Last year we set a precedent for this course of procedure. Although I did not personally approve the proposed power to be given to the provinces and was glad that the senate threw out the particular amendment then proposed, I believe that the precedent then set for proposed amendments to the British North America Act was an excellent one.

For the reasons I have briefly set forth I commend the suggestion so clearly placed before the house by the hon. member for St. Lawrence-St. George.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. R. B. BENNETT (Leader of the Opposition):

Mr. Speaker, I do not

propose at this time to discuss the British North America Act. At the appropriate time I intend to discuss the judgments of the privy council. If the Minister .of Labour (Mr. Rogers) had been a little more careful in examining what my course had been, he would not have made the observations he did. It was commonly understood, I think, by most lawyers that in view of the decision of the Supreme Court of Canada, the provincial legislature and not the federal government had the power to enact the social legislation in question. This came about by reason of a decision or opinion of the supreme court upon certain questions submitted to it by the executive. However, with the privy council decisions on the radio case and the aeronautics case we had an entirely new conception of our powers.

Lord Sankey, the chancellor in the radio case, summarized the constitutional situation with what I think was considerable care. He made certain declarations as to the power of parliament which were far wider than any that had heretofore been made. When Lord Dunedin had to deal with the aeronautics

B.NA. Act-Mr. Bennett

case and with the treaties or conventions which were under consideration, he made a declaration as to the power of this parliament wider than anything that had heretofore been made. He declared that under peace, order and good government this parliament had jurisdiction to deal with questions which might arise out of conventions or treaties. He also placed upon section 132 of the British North America Act a construction which was far wider than had ever been placed upon it before the radio case.

In my judgment that section is a limited one. It expresses itself in terms relating to the British Empire. Had my friend the Minister of Labour been a little more anxious to know the facts rather than to endeavour to make political capital, he would have found that in this chamber while his party was still in office, I took the view, before the decisions in the radio and aeronautics cases, that we had no power to deal with these matters. The Solicitor General of that day directed my attention to section 132, and his remarks will be found in Hansard, as I hope later to indicate. After these decisions, the constitutional lawyers of this country had an entirely new conception of our powers. If hon. members have any doubt on that point, let them read the opinion of Chief Justice Duff in these very references. I think it is the consensus of opinion that his judgment is at least entitled to great consideration.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

My friend should say, at least the opinions were divided.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

They were divided, but I can say this without question, that the one who had the widest experience and who was constantly in attendance at the privy council held the strong view I have indicated. We have not the text of the judgments before us and I do not intend to discuss them. There may be many additions; there may be controlling sentences and parentheses which will change entirely our conception of them. I hope so. The newspaper reports would indicate that the general trend of the judgments was to the effect. that the parliament of Canada was a very powerless institution with respect to matters affecting the welfare of Canada.

There were three points to which the Minister of Labour might have directed his attention. First, there was no concrete case before the courts. Second, the privy council have said that the opinion which they themselves have delivered has just as much value

as the judgment of the Minister of Justice or of any law officer of the crown. Third, a judgment upon a hypothetical case is worthless. That is the position we are in. If the suggestion we made had been followed, if a real case had been taken before the courts, if the facts had been presented, then we would have had a judgment. Now we have no judgment.

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Would it necessarily have

been different?

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I do not suggest for a

moment that it would necessarily be different, but I do suggest beyond all question that it would be a judgment based upon the facts of a particular case. For instance, take the marketing act. There is in that act nothing to warrant any such construction as the newspaper reports indicate. It expresses itself in exact terms; it refers only to exports and to interprovincial business. It had attached to it, for the purpose of making it complete, the statutes of the various provinces dealing with their own domestic business. This same privy council decided, not on a hypothetical case but on a real case, that the legislature of British Columbia had certain powers, which powers it exclusively enjoyed. If one takes the two together there is no doubt as to what result one might expect.

As I pointed out, in the aeronautics case there is a continuous expression of what is contained in the radio case, and upon these this legislation was submitted to this house. Had it not been for the judgments in the aeronautics and radio cases, this legislation would not have been here. When the Minister of Labour so far forgets his position as to suggest that because someone was going to and from Geneva he conceived a certain idea, it seems to me he does not do very much justice to his own intelligence,

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