June 17, 1948

PC

Thomas Langton Church

Progressive Conservative

Mr. CHURCH:

May I ask the minister to answer the question I asked?

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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LIB

William Henry Golding (Deputy Chair of Committees of the Whole)

Liberal

The DEPUTY CHAIRMAN:

The hon.

member for Eglinton has the floor.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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LIB

James Lorimer Ilsley (Minister of Justice and Attorney General of Canada)

Liberal

Mr. ILSLEY:

The hon. member for Broadview did ask a question a while ago.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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PC

Thomas Langton Church

Progressive Conservative

Mr. CHURCH:

What are we in committee for if we cannot get an answer?

1 he DEPUTY CHAIRMAN: I would point out to the hon. member that I am trying to have discussion directed from all parts of the chamber.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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LIB

James Lorimer Ilsley (Minister of Justice and Attorney General of Canada)

Liberal

Mr. ILSLEY:

The hon. member asked me whether the government has any views on the observance of the Lord's day. I am very accommodating, many people think too much so, in airing my personal views, but I do not think they are relevant to this bill.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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PC

Thomas Langton Church

Progressive Conservative

Mr. CHURCH:

I look on this measure as simply establishing an open Sunday for the whole of Canada. There is no enforcement of the law in Canada. It is left to the attorney general or the deputy attorney general of the province, which means

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. FLEMING:

I sought to take part in the debate a few minutes ago in an endeavour to answer one or two questions which had been raised. The hon. member for Lake Centre raised the question whether the imperial act of 1781 is in effect in Ontario. The Ontario courts ruled in 1880 that it was in effect in the province. I refer to the case of Rex v. Barnes. 1880. 45 Upper Canada Queen's Bench reports, 276. where that question was raised, and the court determined that the imperial act of 1781 was in effect in the province of Ontario.

The Lord's Drey Act

I need not weary the committee by reviewing all the stages by which that came about, but it goes back to proclamations of the eighteenth century. The English law as of October 15, 1792, was adopted as the law of Ontario except as repealed, altered, varied, modified, or affected by any act of the imperial parliament still having the force of law in Ontario or any act of the late province of Upper Canada or of the province of Canada or of the province of Ontario si ill having the force of law in Ontario. That is the law of Ontario today, as set out in the Ontario statutes. Historically the laws of England, civil and criminal, were supposed to be introduced into Canada by royal proclamation of October 7. 1763. The criminal law was not displaced by the Quebec Act of 1774, 14 Geo. Ill chapter S3, but was continued in the province of Upper Canada. The legislature of the province, by the act of 1792, 32 George III. chapter 1. provided that in matters of property and civil rights the laws of England should prevail. In 1800. apparently for greater caution, the act 40 George III. chapter 1 (Upper Canada) provided that "the criminal law of England as it stood on the 17th day of September. 1792". should be the criminal law of the province. The date September 17. 1792. was the date of the first of the legislature in that year; and, according to the existing law, the statutes of the session took effect as of the first day of the session.

That is how this old act of 1781 came to be part of the law of Upper Canada, and that was not changed by the Constitutional Act of 1841. When confederation became effective, no right was reserved to the new provincial legislature to modify the old pre-confederation law.

The hon. member for Muskoka-Ontario raised the question whether this is a matter of substance or not. I think a word might be said further on that. The fact is that the legislature of Ontario some years after confederation sought to pass legislation on the subject of Sunday observance. That legislation incidentally is in many respects comparable in terms to the old imperial legislation. This act to which I am referring was enacted in the reign of Queen Victoria, and it was carried forward into the Revised Statutes of Ontario, -1897, chapter 246.

The test of the jurisdiction of the provinces went to the privy council in the year 1903 in the case of the Attorney General of Ontario v. the city of Hamilton Street Railway, 1903 Appeal Cases, pages 524. The privy council determined that the provincial legislatures had no power to pass such legislation, holding

that the law with respect to Sunday observance falls within the jurisdiction of parliament to legislate in respect of the criminal law; and consequently, the legislature of the province of Ontario has had no general jurisdiction over Sunday observance except in so far as scope is given to the legislatures of the provinces by the federal statute, the Lord's Day Act.

The statute that is now being amended is the Lord's Day Act. chapter 123 of the Revised .Statutes' of Canada. 1927, In taking the step that is involved in section 2, it does not seem to me that anything is being done that need give any member of the house reason for pause. The principal law of this country with reference to Sunday observance is today, and will continue to be under the bill before us, the federal statute, the Lord's Day Act. For more than a generation the enforcement of the act has been left by federal legislation in the hands of the attorneys general of the provinces.

Having regard to the fact that there is considerable divergence of usage in the matter of Sunday observance in different parts of Canada, I do not see what serious objection should be raised to the principle of section 16 of this act, that enforcement should be left largely i,n the hands of the provinces. The attorneys general of the provinces, as the chief law enforcement officers, are the persons, in my opinion, best qualified to take responsibility in matters of enforcement of the Lord's Day Act. In enacting this present bill it seems to me that we are not displacing any substantive law that is vital today. We are simply removing legislation that would not be enforced today by any attorney general in any province. We are bringing our laws in some measure up to date.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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PC

William Alexander McMaster

Progressive Conservative

Mr. McMASTER:

During the past fifty years we have seen the executive taking over the powers of legislation, practically taking unto themselves power to introduce nearly all our legislation and to force their followers to vote for it. Now they are going into the judicial sphere, the third main branch of our government. It is true that for some time the consent of the attorney general has been required. But there is no doubt that clause 2-and I think that is the clause with which we are dealing now-

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink
LIB

William Henry Golding (Deputy Chair of Committees of the Whole)

Liberal

The DEPUTY CHAIRMAN:

Yes.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
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PC

William Alexander McMaster

Progressive Conservative

Mr. McMASTER:

-is intended to keep in the hands of the attorney general of Ontario at least, because it is the only province to which it refers, the power to decide when a prosecution is to be instituted with regard to

Industrial Relations

the desecration of Sunday. Every argument used by the Minister of Justice as to prosecutions under the Lord's Day Act could be equally applicable to any other act. That is, anybody who thinks that anyone else has broken the law of the country can institute a prosecution, and it is only proper that he should. If the magistrate thinks that the act is one which does not justify prosecution, he can refuse to allow an information to be laid or if the matter goes on and it is found that it was instituted in a manner that was blameworthy, it may be a matter of malicious prosecution.

I submit again that every argument advanced by the Minister of Justice for the passage of this act is equally applicable to any other prosecution under the criminal code. I do not think we should pass this bill. I do not think the attorney general of each province should be the arbiter of what prosecution should be instituted.

Attorneys general change. The attorney general is a part of the executive. This is just carrying on this principle to which we have been objecting in this house on many occasions, that the executive has taken charge of the government of this country, and that the people, and even parliament, are being pushed aside. I shall oppose this bill.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink
LIB

William Henry Golding (Deputy Chair of Committees of the Whole)

Liberal

The DEPUTY CHAIRMAN:

Shall the clause carry?

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink
PC

William Alexander McMaster

Progressive Conservative

Mr. McMASTER:

On division.

Section agreed to on division.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink

Title agreed to. Bill reported. Mr. ILSLEY moved the third reading of the bill.


LIB

James Horace King (Speaker of the Senate)

Liberal

Mr. SPEAKER:

Is it the pleasure of the house to adopt the motion?

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink
PC

William Alexander McMaster

Progressive Conservative

Mr. McMASTER:

On division.

Motion agreed to on division, and bill read the third time and passed.

Topic:   LORD'S DAY ACT
Subtopic:   AMENDMENTS AS TO LEAVE TO PROSECUTE- REPEAL OP ONTARIO PRE-CONFEDERATION STATUTE
Permalink

INDUSTRIAL RELATIONS

INVESTIGATION, CONCILIATION AND SETTLEMENT OP INDUSTRIAL DISPUTES


Hon. HUMPHREY MITCHELL (Minister of Labour) moved that the house go into committee on Bill No. 195, to provide for the investigation, conciliation and settlement of industrial disputes (as amended). Motion agreed to and the house went into committee, Mr. Golding in the chair. Section 1 agreed to. On section 2-Definitions.


LIB

Howard Waldemar Winkler

Liberal

Mr. WINKLER:

I should like to move an amendment to subparagraph (ii) of paragraph

(i) of subsection 1 of section 2. That paragraph reads as follows:

(ii) A member of the medical, dental, architectural, engineering or legal profession qualified to practise under the laws of a province and employed in that capacity . . .

The result of the amendment would be merely to add the word "dietitian". There are in Canada some 650 trained dietitians who are united in an organization called the Canadian Dietetic Association. Two or three weeks ago they met in Montreal and passed certain resolutions, and it was unanimously requested that they be excluded from the operation of this act along with those other professional people mentioned. I do not wish to misinterpret or give incorrect information as to what the reasons were for refusal by the committee on industrial relations; but if I am correct, it was largely because if dietitians were brought into the section the committee felt they would also have to include nurses. Rather than carry that idea into effect, they decided not to include dietitians.

The dietitians wrote to the committee on industrial relations on May 17 of this year. I have in my hand a copy of their letter, and I should like to read merely the opening and closing paragraphs. The opening paragraph reads as follows:

The Canadian Dietetic Association strongly urges that dietitians should be included with those other professional groups such as the medical, dental, architectural, engineering and legal professions, the members of which are excluded from the definition or "employees" under the terms of paragraph 1, section 2 (i) 2 of Bill No. 195 presently under consideration by your committee and this for the reasons hereinafter set forth.

Then they set forth a number of reasons and the concluding paragraph reads:

For the foregoing reasons, the Canadian Dietetic Association submits that your committee should accede to the present request and amend Bill No. 195 so as to establish clearly that dietitians are excluded from the operation of the act as is the ease with members of other professions whose training requirements and the scope of whose work are on a similar level.

The reason submitted by the committee was,

I understand, a purely negative one. Had this been the United States of America, where similar legislation operates under the Taft-Hartley Act, the request would have received a positive interpretation. I have before me a synopsis of U.S. 3020, which is from the

Industrial Relations

Taft-Hartley Act, and I should like to quote these positive reasons:

Term "professional employee" means (S2 12):

(a) any employee engaged in work.

(i) predominantly intellectual and varied in character as opposed to routine, mental, manual, mechanical or physical work;

(ii) involving the consistent exercise of discretion and judgment in its performance.

(iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institute of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes; or

(b) any employee, who:

_ (i) has completed the courses of specialized intellectual instruction and study prescribed in clause fiv) of paragraph (a), and

(ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).

I maintain that if this proposed amendment carries it will not prejudice the position of any of those who wish to be included in this section, or of those who desire not to be included. As an organization, the dietitians maintain that they are professional people. They had a certain dignity which they wish to have recognized, and they are anxious to be placed in a position where they may command the respect of other professional people. For these reasons, and especially because of the positive request which they make, which in my opinion would not prejudice any professional group, I move, seconded by the hon. member for Prince:

That section 2, subsection 1, paragraph (i), subparagraph (ii) be amended by inserting the word "dietitian" immediately after the word "medical."

Topic:   INDUSTRIAL RELATIONS
Subtopic:   INVESTIGATION, CONCILIATION AND SETTLEMENT OP INDUSTRIAL DISPUTES
Permalink
LIB

Humphrey Mitchell (Minister of Labour)

Liberal

Mr. MITCHELL:

I think I should say right away that I cannot accept the amendment.

Topic:   INDUSTRIAL RELATIONS
Subtopic:   INVESTIGATION, CONCILIATION AND SETTLEMENT OP INDUSTRIAL DISPUTES
Permalink

June 17, 1948