Hon. BROOKE CLAXTON (Minister of National Health and Welfare) moved the second reading of bill No. 252, to amend the Food and Drugs Act.
' Mr. G. RUSSELL BOUCHER (Carleton): Mr. Speaker, I do not like to delay the house at this late stage to talk about something that is diseased or putrid or rotten, but those words are within the nomenclature of the bill.
I am rising to question the competency of the federal parliament to pass this bill. We all know that under section 91 of the British North America Act certain powers are given to the dominion parliament to deal specifically with matters apart from those given to the provinces under section 92. This bill, from the very best of motives, may seek to make a meritorious change in the existing law, but before making this amendment, which does go a long way, we should see whether this parliament has power to give effect to it. I have had the opportunity of referring to a number of decisions, and I think before we pass this bill we should have an opinion from the Department of Justice on the question of jurisdiction that it involves.
Briefly it appears to me that the only way in which the dominion parliament can have competence in a matter of this kind having to do with civil rights is by saying that this is not one of the specific powers delegated to the provinces by section 92 but is a specific power given by section 91 to the dominion parliament or a general power not given to the provinces by section 92.
In the case of Toronto Electric Commission v. Snider, 1925, 2 D.L.R. page 16, their lordships held that in approaching problems of jurisdiction in matters of this kind we should ask ourselves: (1) does the subject matter
fall within section 92; and (2) does the subject matter fall within section 91 of the
British North America Act? If it falls within neither of the enumerated heads, then the dominion has power under the general wording of section 91.
In the case of the Attorney General for Canada v. the Attorney General for Alberta, their lordships gave this decision:
It is their lordships' opinion, now clear, that excepting so far as the power can be involved in aid of capacity conferred independently under other words of section 91, the power to regulate trade and commerce cannot be relied upon as enabling the dominion parliament to regulate civil rights in the provinces.
, The same decision has been given in a number of other cases decided not only by the courts of Canada but in some cases by the privy council, and I mention specifically the famous Wharton case, 1914, 18 D.L.R., page 335; Rex v. Collins, 1926, 4 D.L.R., page 548, and King v. Eastern Terminal Elevator Company, 1925, 5 D.L.R., page 1. In these cases questions of this kind came specifically before the court, and it was held that as civil rights were specifically assigned to the provinces to deal with, the power of sale falls within that zone.
This bill seems to say that no one can sell or offer for sale certain commodities. It goes further than that and restricts it to food or drugs. In order to make this act effective I think the question of jurisdiction should be examined very carefully. In my opinion provincial enactments are necessary to give validity to legislation of this kind. By the act very wide power is given to the dominion to interfere with the sale of what are called drugs, and perhaps appliances, foods or materials. The meaning of "drugs" under this amendment will be greatly extended. Explanatory note 1 says:
It is therefore considered desirable that such authority be given in the interest of the public. Any regulations made under this authority will, for the most part, deal with newly-discovered drugs.
That protection may be required, but I see nothing in the bill to restrict its operation to newly discovered drugs. It goes much beyond that. I would therefore ask the minister to indicate at least the scope of the amended act and the opinion of the Department of Justice as to the competency of this parliament to pass such an act, and state whether or not to infringe upon the rights of the provinces given under the British North America Act. We should be very careful about questions of jurisdiction.