February 4, 1938

CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I pointed out that there is power to do it.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

The

Supreme Court Act was not framed for the purpose,, nevertheless the section which gives the power to the governor in council, section

35, says:

References by Governor in Council

Important questions of law or fact touching

(a) the interpretation of the British North America Acts, or

(b) the constitutionality or interpretation of any dominion or provincial legislation; or

(c) the appellate jurisdiction as to educational matters-

And so on. And then (d):

(d) the powers of the parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

So this provision was put in the act for the special purpose of enabling the government to do what has been done in the present instance, and I -may add that it was done after the government of the province concerned had asked the governor in council to do it before reaching a conclusion in the matter.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

But that was not so with respect to all the matters referred.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

No, but it was so with regard to two of them, and at the same time the governor in council was asked to refer the third question, the power of disallowance, to the court. Certainly if the contention of the province with respect to the power of disallowance had been upheld that would have affected all the bills.

Then my right hon. friend, and I am grateful to him for the moderation with which he dealt with this question-he even approved of the course of the government with certain reservations-said that he approved the disallowance of the three statutes which had previously been disallowed; but he said, very courteously, that as far as he was concerned, while he thought we should have disallowed the act which refused access to the courts, we should, if I remember his words aright, have let the bankers fight out the other bills themselves.

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SC

Archibald Hugh Mitchell

Social Credit

Mr. MITCHELL:

Hear, hear.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

My hon. friend says, "hear, hear." Perhaps he does not know that this denial of access to the courts was contained not only in one bill but in every one of the three statutes. The statute concerning banking included a provision denying to the bankers or other interested parties the right to go to the courts to test its validity, and the other statute for licensing bank employees contained a similar provision. If that were the only cause for disallowance it would apply to the three statutes because that provision permeated the three measures which had been enacted.

But there is more than that. I am free to admit that I thought, and the officers of my department thought, that perhaps this last enactment was less objectionable than the other two, because the two statutes con-

The Address-Mr. Lapointe (Quebec East)

cerning banking were a direct and straight invasion of federal powers, coming in conflict with federal policies and federal legislation, and were therefore subject to disallowance under all the authorities if we were to follow the decisions in matters of this kind which had been reached by every minister oi justice since confederation. I may add that before this power of disallowance was exercised, the premier of the province was asked whether he would agree to suspend the operation of those statutes pending a reference to the Supreme Court of Canada. This he bluntly refused to do. He said that the statutes would be enforced immediately; and of course there was no other course to follow on the part of the governor in council.

But my right hon. friend says, although approving of disallowance, that it was a discrimination against Alberta because the statutes of Ontario with regard to the power contracts have not been disallowed. Since my right hon. friend, who is a great authority, has made that statement, of course all the hon. gentlemen on the Cooperative Commonwealth Federation and social credit benches have had the same criticism to offer of the action of the government.

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SC

Archibald Hugh Mitchell

Social Credit

Mr. MITCHELL:

He spoke first.

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SC

René-Antoine Pelletier

Social Credit

Mr. PELLETIER:

I thought of it before he did that.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

What is that?

Mr. PELLETIER.: We felt that way before that.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

Oh, you did think of that before? I congratulate the hon. member.

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?

An hon. MEMBER:

Following the leader.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

May I say that there have been since confederation, prior to the consideration of this legislation which is being dealt with, one hundred provincial statutes disallowed, seventy-two between 1867 and 1900, and twenty-eight from 1900 until this present instance. Thousands of them were submitted after a petition had been presented for their disallowance, but the governor in council refused to disallow them.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

But a number of them were amended in consequence of representations made.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

And a number of them were amended after representations by the Minister of Justice to the provincial governments. I think I am free 51952-12

to say that, of those hundred statutes, not two are identical. There are differences in every statute. The circumstances are not always the same; the circumstances which must enter into line when the question has to be decided differ in almost every case. I think I can easily show the difference between the Ontario statutes and the statute of Alberta. In respect of the Ontario acts which were challenged, here is what I had the honour to say in my recommendation to the governor in council:

With regard to the allegation that the said act is ultra vires the legislature of the province, the undersigned is of opinion that this allegation, if well founded, would not constitute a sufficient ground for disallowance. There are cases in the earlier years of confederation in which acts were disallowed on the ground that they were ultra vires, but the more modern view is that if the act be questionable only as to its validity-

Mark those words.

-and not on the ground that it interferes with any dominion policy or interest, the question of its validity should be left to the determination of the courts. To disallow a provincial statute solely upon the ground that it is ultra vires would be to subject the provinces to the findings of the law officers of the crown upon the questions of law involved and deprive them of the right to have such questions judicially determined. Presumably the inclusion in the act of a provision that no action or other proceeding shall be brought against the said commission founded upon any such contract will not prevent the companies from having the validity of the act judicially determined by the courts of Ontario, because if the act is attacked upon the ground that it is ultra vires, surely none of its provisions could be pleaded as a bar to the judicial determination of such question. The undersigned is therefore clearly of opinion that the act should not be disallowed on this ground.

We took the stand there that the courts could redress the grievance, if there was one, with regard to the constitutionality or the validity of the acts. What has happened since proves that we were right in that assumption because the acts were successfully challenged before the courts as a result of a judgment rendered by the court of appeal of Ontario and appealed to the privy council. But the question has been settled since to the satisfaction of the parties, which shows that we were right in refusing to interfere in this matter. There was in this case, as is stated in another paragraph of the recommendation I submitted to the governor in council, no question of invasion of federal jurisdiction or federal policy or federal power. As I said last year, touching the question of unfairness or injustice, I share on this point the views expressed by Sir Allen Aylesworth when he was minister of justice. It is for the electors of

178 COMMONS

The Address-Mr. Lapointe (Quebec East)

the province to decide whether the legislation is unfair or unjust and to vote against the government that enacts such legislation.

Listen now, Mr. Speaker, to one or two of the reasons submitted in my recommendation to the governor in council with regard to the Alberta legislation.

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CCF

James Shaver Woodsworth

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

Mr. WOODSWORTH:

Just before the

minister passes from that, am I interrupting if I ask-

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

I am afraid my forty minutes will not be sufficient.

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CON

James Earl Lawson

Conservative (1867-1942)

Mr. LAWSON:

We will give you time, all the time you want.

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East):

To parliament the British North America Act thus confided powers to establish and regulate the monetary system of Canada, and the powers thus assigned are exclusive and paramount and the provincial legislatures are wholly without authority to interfere with the exercise of such powers. The statutes of Alberta in question constitute an unmistakable invasion of the legislative field thus assigned to parliament. They conflict with dominion laws and virtually supplant dominion institutions designed by parliament to facilitate the trade and commerce of the whole dominion. While the undersigned is of opinion that no project or policy of a provincial legislature should be interfered with by exercise of the power of disallowance merely on the ground that measures to promote such project or policy are of doubtful constitutional validity, a distinction is to be made where the legislature deliberately attempts to interfere with the operation of dominion laws and to substitute laws and institutions of its own for those legitimately enacted and organized by parliament, and this is particularly true where the legislature has denied recourse to the courts of justice.

Yet there is some good thing in all things that are not so good. It is interesting for us to be told that we are discriminating in favour of the province of Ontario; for quite different statements have been made elsewhere.

In the course of the debate many hon. members-not my right hon. friend, because he is too great a parliamentarian to do so-have spoken in violent terms of the "Quebec padlock law" and denounced me for not having acted with regard to it. Perhaps they will be surprised to hear that, apart from the telegrams and resolutions of every description which have been sent to me, the petition, the official, the regular and only one, that has been forwarded for the disallowance of that legislation was received three or four days ago; and the question has to be considered in the time during which a decision must be reached.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

When does the year expire?

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LIB

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

Liberal

Mr. LAPOINTE (Quebec East) :

At the end of March. I do not complain in that respect, because it will not affect the work I have to do. I do not think, however, that it is becoming, that it is quite proper, in regard to a matter that partakes of judicial interpretation-and the authorities have even discussed the question whether the function of the Minister of Justice in a matter of this kind is not judicial rather than legislative-that I should be abused before I have considered the matter, as I have been during the course of this debate. I do not think it is fair; I do not think it is conducive to the proper discharge of this part of the functions of government.

In this connection I have been asked to receive delegations, who wish to come and press upon me the advisability of recommending the disallowance of the legislation. Well, that is not the way in which a matter of this sort must be dealt with. I will not receive any delegation either for or against; and I may say to those who make the request that it would be very easy for those who think otherwise to fill all the halls of Ottawa, including the drill hall, with people who do not share the views of the persons who have made the request. It is not by such pressure either upon the Department of Justice or upon any other branch of the administration that a matter of this kind should be dealt with.

I wish now to deal with the question of unemployment insurance. The action of the government in this regard has been criticized both by the leader of the opposition (Mr. Bennett) and by the hon. member for Winnipeg North Centre (Mr. Woodsworth), and others, with respect to the preparation of an amendment to the British North America Act, with a request to the provinces to agree to such an amendment being made. The hon. member for Winnipeg North Centre has said that we should assert our power. He has said that since the imperial conference of 1936 Canada, as a nation, has attained equality in the British commonwealth, and I agree with that. But, he adds, the condition in regard to our constitution is one of inferiority. I cannot admit that this apparent inferiority is really a condition of inferiority, in view of the fact that the status of our constitution is what it is by reason of the will of the Canadian people and not because of the will of any superior authority who wishes to control and to dominate the Dominion of Canada.

When the Statute of Westminster was enacted, with the proviso that there should be nothing therein to apply to the repeal, amendment or alteration of the British North America Act, that proviso was inserted because the Dominion of Canada wanted it and not

The Address-Mr. Lapointe (Quebec East)

because the imperial parliament desired to have it. I can assure my hon. friend that the imperial parliament would be most happy if we could rid them of this necessity of having perhaps to decide as between the parliament of Canada and some provinces on the question of an amendment. The provision is there because, under our constitutional arrangement, until we ask that it be abolished it must stand. My views in the matter are well known and I have not changed them in any particular. I think that Canada should have the power to amend its own constitution. We are the only British dominion that does not possess this power; indeed, we are the only country with a federal system of government that has not in some way the power to change in some details its constitutional charter. The United States, Mexico, Venezuela, Brazil, the Argentine Republic, Australia, Switzerland-all these are federal states and their respective constitutions foresee the possibility of amendment and determine the methods and conditions that shall govern the making of amendments.

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February 4, 1938