February 1, 1937

LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

I read the letter sent by

the then prime minister to the provinces on the eve of his departure for Geneva.

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

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

And the reason is

perfectly obvious. If the hon. gentleman had been in the house he would have known, but he was not. This is the position. We now have an opinion, but not upon a case. This opinion has no more binding effect upon parliament than has the opinion of the Minister of Justice.

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

Ian Alistair Mackenzie (Minister of National Defence)

Liberal

Mr. MACKENZIE (Vancouver):

It is

upon the whole statutp, is it not?

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Certainly, but the opinion as to its being intra or ultra vires has no more binding effect than has the opinion of

B.N.A. Act-Mr. Bennett

the law officers of the crown. Questions were asked as to the validity or invalidity-not upon a concrete case; that is the trouble. The privy council was very clear about that and expressed itself in strong terms as to the value of answers given to questions on references.

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:

It would have a great

deal more persuasive effect.

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

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

But persuasive effect and judicial effect are two different things. There is a vast difference between a judgment and a mere opinion.

Topic:   BRITISH NORTH AMERICA ACT
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LIB-PRO

Joseph Thorarinn Thorson

Liberal Progressive

Mr. THORSON:

In reality there is no difference.

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

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

There is a very great difference. Permit me to say that at least the judicial committee has said that there is a great difference. They felt that there was a great difference. One has a probative effect and the other has not. One is binding and the other is not. One is a judgment upon which execution may issue, if it be a civil matter; the other has no effect at all; it is no greater than the opinion of the law officers of the crown.

It was upon the strength of the aeronautics and radio cases that these statutes were submitted to this house. It is suggested that the provinces might be deprived of all power by a convention or treaty between a foreign power and the dominion, but I do not think one can help but remember what the privy council has so frequently said, namely, that we must not assume that parliaments and legislatures are going to pass legislation of that kind. It must be expected that they are going to be reasonably intelligent. It must not be forgotten that the representatives in parliament represent the same constituents as do the representatives in the provincial legislatures. However, perhaps I should not make any statement until I read the judgments in detail.

I am asked: What difference would it make? I put this to my hon. friend. The Lemieux act was passed by this parliament and was acted upon for a little over twenty years. A case under it then arose which went to the privy council and the decision was given that the act_ was bad. It had been bad for twenty years, but no government had submitted it to the privy council to have a declaration made. When the case arose the result was that the act was declared invalid.

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

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

Liberal

Mr. LAPOINTE (Quebec East):

May I ask my right hon. friend a question?

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Certainly.

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): If I am not mistaken, my right hon. friend has based his argument largely upon the radio and aeronautics cases. They were on reference in exactly the same way. So, if the decisions on the present references have no worth, how were the decisions so good on the radio and aeronautics cases?

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

That is the point to which I was just coming. My hon. friend knows that in neither case was there the judgment of a court. Had there been a judgment in the aeronautics and radio cases the privy council could not at least have overruled its own judgment, but when it comes to expressing an opinion they can do anything they like because it is not a judgment. That is the reason why the court made it clear that we must have judgments. Everyone knows that is so. There may be some difficulty about some people understanding it, but there is no doubt it is a fact. In the United States they decline to submit questions to the courts on reference; the questions must arise out of concrete cases. In the United States in every one of the cases in which decisions of far-reaching consequence were given, the cases had a beginning in a federal court, often on a very small issue, and on the facts of the case as presented, the validity or otherwise of the statute was determined. If in this case unemployment insurance had been thus tested, I cannot think the judgment of the court would have been at least as reported in the newspapers. If the marketing act had been dealt with in accordance with the facts and the real significance of its provisions made known as they were applied by the various provinces in their domestic proceedings as compared with export and interprovincial business, I cannot conceive how the judgment could have been written as reported in the newspapers, and I say this with reserve as to the judgment being modified by other paragraphs that were not cabled. If the question of hours of labour and the question of wages, to which the hon. gentleman has referred, had been dealt with on the basis of privy council proceedings in the aeronautics and radio cases, we could not have had a conclusion of that sort. Unfortunately we have now a mass of opinions which are not judgments, and which have arisen because of the method of presenting the cases for consideration. The Lemieux Act is the outstanding and striking example of legislation of this parliament which in a concrete case was declared to be invalid but

B.N.A. Act-Mr. Bennett

which had been acted upon by general acceptance very beneficially over a period of about twenty years until the judgment of the privy council was rendered.

One step more. There was also this anomaly, that you had a government providing for the support of the validity of legislation which it had denounced as invalid when it was passed. Had a case been permitted to proceed to the courts you would not have had that anomaly. Had it gone to litigation you would not have had that anomaly. You would not have had the government of to-day that bitterly opposed and denounced the legislation endeavouring to support it in the manner in which it did in London. I had only reached London and made inquiries when I was told that never in the history of our time had any case been presented so inadequately.

Topic:   BRITISH NORTH AMERICA ACT
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LIB

Charles Avery Dunning (Minister of Finance and Receiver General)

Liberal

Mr. DUNNING:

That is not fair.

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

That is the opinion which prevailed, for reasons that I shall give before I conclude.

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):

My right hon. friend said otherwise last year.

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The chief justice of the supreme court of Ontario who presented the case before the supreme court here did not present it in London.

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):

Mr. St. Laurent did.

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

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

He presented only one case. The others were presented by another gentleman, an eminent lawyer, but constitutional lawyers are very few in Canada. The most eminent of them, by common consent, is a resident of Toronto, and the gentleman who presides over the supreme court of Ontario was another. Unfortunately you cannot acquire, in a week or two weeks or a month, a knowledge of all the decisions and of all the trends and tendencies in connection with the interpretation of the British North America Act. It is a long progressive study, and all you have to do is to read the judgments of the privy council and see the counsel who in succeeding years have presented the cases to realize how sound that statement is. It is not any reflection upon the capacity of anyone.

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

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

Liberal

Mr. LAPOINTE (Quebec East):

It is.

Topic:   BRITISH NORTH AMERICA ACT
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The reflection is upon

their lack of training in that particular class of work.

Topic:   BRITISH NORTH AMERICA ACT
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February 1, 1937