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Published online by Cambridge University Press: 07 November 2014
Between 1867 and 1934 over 136 constitutional cases have faced the Privy Council with the task of saying what the Canadian constitution means. Despite those cases, or because of them, it is still quite certain that unless legislation falls clearly within one of the specific heads of s. 91 or s. 92 of the B.N.A. Act, it is virtually impossible to guess where legislative authority over any question will finally be found to reside. In practice this depends not only on the Act and the cases but in part on the way the issue is raised and presented and in part on each judge's personal inclination towards federal or provincial authority. The further circumstances that the form of the proposed reform legislation has not been finally settled at the time of writing increases the difficulty of even describing fairly the constitutional issues raised by the government's social legislation which is the subject of this paper. It is like guessing what attitude the Privy Council in England will take to a series of constitutional earthquakes that have not yet happened.
In all this uncertainty one thing at least appeared to be certain. This was that everything proposed in Mr. Bennett's policy of social reform was beyond the powers of the Dominion. Out of all those who considered the question before the current session of Parliament, only four authorities seem to have thought it possible that the Dominion might have jurisdiction. The situation was recognized by Mr. Bennett last August when he wrote to the provinces indicating his intention to call a Conference to discuss, among other matters, the question: “Are the provinces prepared to surrender their exclusive jurisdiction over legislation dealing with such social problems as old-age pensions, unemployment and social insurance, hours and conditions for work, minimum wages, etc., to the Dominion Parliament? If so, on what terms and conditions?” But the provinces' cool response to this letter led to the proposed Conference being abandoned, and in January Mr. Bennett in five radio speeches broadcast the policy of reform. In introducing the Employment and Social Insurance Act on January 29, 1935, Mr. Bennett set under way the coach and four he was starting to drive through current conceptions of the constitution, if not through the constitution itself. It might almost seem that his reading of the speeches of the Fathers of Confederation led him into the error of thinking that the constitution was what they intended it to be.
1 The paper was prepared for presentation at the annual meeting of the Canadian Political Science Association on May 30, 1935. Through the notes references to the Debates of the House of Commons of the Dominion of Canada will be given by the page number only. References to the debates of the current session have to be made to the unrevised edition and in these cases the page numbers will be preceded by the word “unrevised”.
2 E.g., Mr. Guthrie on July 18, 1924, Mr. Meighen on July 18, 1924 (p. 4763); Mr. Edwards, deputy minister of justice to Committee on Industrial and International Relations in 1926 and on May 10, 1928 and April 23, 1929; action of Interprovincial Conference held Nov. 3 to 10, 1927, referred to by Mr. King on Feb. 12, 1935 (unrevised p. 806); Reports of Select Committee of the House of Commons on Industrial and International Relations, May 16, 1928, April 30, 1929, April 30, 1930; and correspondence with the provinces read by Mr. King on Feb. 12, 1935 (unrevised p. 808); and by Mr. McIntosh (unrevised p. 906); P.C. 670 dated March 26, 1930, quoted on May 18, 1931 (p. 1716); and P.C. 2325 dated Oct. 26, 1932, quoted by Mr. Lapointe on March 25, 1935 (unrevised p. 2214); Mr. Cahan on May 23, 1929 (p. 2776); Mr. Guthrie on May 23, 1929 (p. 2777); Mr. Bennett on May 23, 1929 (p. 2787); Mr. Bennett on April 29, 1931 (p. 1099); Mr. Bennett on April 26, 1932 (p. 2404); Mr. Guthrie on Feb. 17, 1932 (p. 286); Mr. Bennett on Nov. 22, 1932 (p. 1452); Mr. Guthrie on March 22, 1933 (p. 3294); Mr. Guthrie on Feb. 5, 1934 (p. 257); Dr. Riddell speaking for Canada at Geneva ( Proceedings of I.L. Conference, 1934, p. 338 Google Scholar); Mr. Cahan speaking to Young Men's Canadian Club (Montreal Gazette, Nov. 27, 1934), quoted by Mr. Lapointe on Feb. 14, 1935 (unrevised p. 896) as referring to the “exclusive power of the provinces in matters of social reform”; Mr. Bourassa on Feb. 14, 1935 (unrevised p. 918).
3 Edward Bayly, K.C., in the factum of A.G. Ont. in the Eight Hour Day Case said that the Dominion had exclusive jurisdiction to ratify International Labour Conventions and if it did the further obligation rested on the Dominion to take whatever action is necessary to make its provisions effective, quoted by Mr. Bennett on Feb. 8, 1935 (unrevised p. 720); also quoted in Labour Gazette, 06, 1925, p. 563.Google Scholar See also Rogers, A. W., “Some Aspects of Treaty Legislation” (Canadian Bar Review, vol. IV, 1926, p. 40)Google Scholar; MacKenzie, N. A. M. in Report of the Annual Meeting of the League of Nations Society in Canada, 1934, p. 43 Google Scholar and Scott, F. R., Social Reconstruction and the B.N.A. Act (Toronto, 1934), p. 9.Google Scholar On May 18, 1931 (p. 1715) Mr. Heenan moved that Canada should take “appropriate steps” to fulfil her treaty obligations relating to hours of work. The motion was talked out, then carried the following year on Feb. 17, 1932 (p. 284), but the appropriate steps were understood to mean to refer the matter to the provinces and call an interprovincial conference.
4 Mr. Bennett's letter was dated Aug. 31, 1934, but was probably not sent until two weeks later, being published through the Canadian Press on Sept. 13, 1934.
5 Unrevised p. 305. The Act was passed by the Commons on March 12 (unrevised p. 1775). Although a draft convention was adopted in 1934 on unemployment insurance, the government did not precede the Act by ratification of the convention, presumably for the reason that as the convention deals also with relief it was feared that its ratification would support the plea of the provinces and municipalities that the government should become responsible for direct relief.
6 Unrevised p. 309.
7 Unrevised p. 309.
8 The Limitation of Hours of Work Act (Bill 21) introduced in the House on Feb. 22 and passed on March 25 was in accordance with the draft convention on the Eight Hour Day and Forty-eight Hour Week in Industrial Undertakings adopted by the I.L.O. in 1919 and since ratified by twenty countries.
9 The Weekly Rest in Industrial Undertakings Act (Bill 22) introduced in the House on Feb. 22 and passed on March 14 was in accordance with the draft convention adopted by the I.L.O. in 1921 and since ratified by twenty-four countries. Resolutions approving of this and Eight Hour Day Convention were passed by the House on Feb. 8.
10 Minimum Wages Act (Bill 40) introduced in the House on March 19 and passed on April 12 was in accordance with the draft convention adopted by the I.L.O. in 1926 and since ratified by sixteen countries. A resolution approving of this was passed by the House on March 15.
11 Mr. Bennett said in introducing the first resolution on Feb. 8, 1935 (unrevised p. 669): “Canada has not a very good record with regard to the ratification of draft conventions.” Actually her record of ratification was only better than that of six nations, though her record of social and labour legislation is considerably higher. Our accession of international virtue has raised Canada above the level of thirteen other countries. Three of the six conventions approved at the present session, namely, Concerning Seamen's Articles of Agreement, the Marking of Weight on Heavy Packages Transported by Vessels, and Protection against Accidents of Workers Employed in Loading and Unloading, concern shipping and as such are within the power of the Dominion under ss. 10 of s. 91 and are covered in the Canada Shipping Act.
12 Jan. 29, 1935 (unrevised p. 307).
13 On the only division on the third reading of any of the four bills, Messrs. Bourassa, Garland, and Pouliot voted against the adoption of the Employment and Social Insurance Act.
14 Feb. 8, 1935 (unrevised pp. 707 and 713).
15 Toronto Electric Commissioners v. Snider, (1925) A.C. 396.
16 In the matter of Legislative Jurisdiction over Hours of Labour, (1925) S.C.R. 505, Mr. Lapointe gave an account of the way the reference arose on Feb. 8, 1935 (unrevised p. 702).
17 Naturally Mr. Lapointe charged that Mr. Bennett's letter of Aug. 31, referred to in note 4 above, recognized that the Dominion did not have power to pass social legislation (unrevised p. 707); Mr. Bennett replied that the question put, not his own attitude, but that of the persons to whom it was addressed! (unrevised pp. 720, 722, 984).
18 In re Regulation and Control of Aeronautics in Canada, (1932) A.C. 54.
19 In re Regulation and Control of Radio Communication in Canada, (1932) A.C. 304.
20 Professor Vincent C. MacDonald in an article on “Canada's Power to Perform Treaty Obligations” ( Canadian Bar Review, vol. IX, 1931, pp. 581, 664 Google Scholar) argues that conventions like that in the Radio Case come within the literal meaning of s. 132, or alternatively, within that progressive and liberal construction of s. 132 which should be given to it. In this event, the distinction between the Aviation and Radio Cases would disappear and the regenerative effect of the Radio Case on the power to legislate for the peace, order, and good government of Canada would be lost. As it is, the Radio Case, he argues at p. 678, has made s. 132 redundant. The late J. S. Ewart, K.C., in an article on the Radio Case in the Canadian Bar Review, vol. X, 1932, p. 298 Google Scholar, takes the view that the case was wrongly decided. See note 37.
21 Shotwell, James T. (ed.), The Origins of the International Labor Organization (New York, 1934), vol. I, p. 155.Google Scholar At pp. 146 and following is to be found the story of the negotiations respecting this question. For the present position in the United States see Potter, Pitman B., “Inhibitions upon the Treaty Making Power of the United States” (American Journal of International Law, vol. XXVIII, 1934, p. 456).CrossRefGoogle Scholar
22 P.C. 2722, Nov. 6, 1920, referred to by Mr. King on Feb. 8, 1935 (unrevised p. 672); but see quotation from Mr. Doherty by Mr. McIntosh on Jan. 29, 1935 (unrevised p. 324).
23 Mr. King, Feb. 8, 1935 (unrevised p. 672).
24 (1925) S.C.R. 505.
25 Feb. 8, 1935 (unrevised p. 677).
26 Duff J. added to the passage at p. 510 from which the formal answer was taken: “No question is submitted as to the duty of the member arising under the succeeding clauses of the same article in the event of the competent authority or authorities giving its or their consent to the recommendation or draft convention; and upon this no opinion is expressed.”
27 Jenks, C. Wilfrid, “The Constitutional Capacity of Canada to give Effect to International Labour Conventions” (Journal of Comparative Legislation and International Law, vol. XVI, 1934, pp. 201–15Google Scholar; vol. XVII, 1935, pp. 12-30) published before the discussion of the subject in Parliament.
28 Speaking for the Court in the Eight Hour Day Case, Duff J. said, at p. 510: “Legislative jurisdiction touching the subject matter of this Convention is subject to a qualification to be mentioned, primarily vested in the provinces.” The qualification was that as a rule a province has no authority to regulate the hours of employment of the servants of the Dominion government; nor over parts of Canada not included within the limits of any province. See also Keith, A. B., Responsible Government in the Dominions (2nd ed., Oxford, 1927), vol. II, p. 921 Google Scholar: “In … the famous Eight Hours Day Convention of 1920, her [Canada's] only possible action has been to ask the provinces to consider legislation.” And in vol. I at p. 581, Professor Keith says that the interpretation now sought to be placed on article 405 is “ingenious, but it is not the natural interpretation”.
29 Duff J., at p. 510 in the Eight Hour Day Case.
30 MacDonald, , “Canada's Power to Perform Treaty Obligations”, p. 596 Google Scholar; Baker, P. J. Noel, The Present Judicial Status of the British Dominions in International Law (London, 1929), pp. 164 ff.Google Scholar, particularly pp. 183, 204, 205; MacKenzie, N. A. M., “The Treaty Making Power in Canada” (American, Journal of International Law, vol. XIX, 1925, p. 489)CrossRefGoogle Scholar; Potter, , “Inhibitions upon the Treaty Making Power of the United States”, at p. 471 Google Scholar he says, “International law recognizes no principle of separation of powers at the point of international contact”; Elliott, W. Y., The New British Empire (New York, 1932), p. 274 Google Scholar; Mr. Bennett, Feb. 8, 1935 (unrevised p. 720); Palmer, G. E. H., Consultation and Co-operation in the British Commonwealth (Oxford, 1934), p. 137.Google Scholar Contrast Clement, W. H. P., The Law of the Canadian Constitution (Toronto, 1892), p. 539 Google Scholar: “While we may legislate in aid of British treaties affecting us, we have as yet no power to make treaties with foreign countries.”
31 In Union Colliery Co. of B.C. v. Bryden, (1899) A.C. 580, Lord Watson said, at p. 585: “In so far as they possess legislative jurisdiction, the discretion committed to the parliaments, whether of the Dominion or of the provinces, is unfettered. It is the proper function of a court of law to determine what are the limits of the jurisdiction committed to them; but, when that point has been settled, courts of law have no right whatever to inquire whether their jurisdiction has been exercised wisely or not.”
32 Articles 405-16 of the Treaty.
33 Keith, A. B. in Journal of Comparative Legislation and International Law, vol. XI, 1929, p. 23.Google Scholar The only Privy Council case prior to the Aviation and Radio Cases in which the treaty-making power was passed upon was in A.G.B.C. v. A.G. Can., (1924) A.C. 203, which held statutes of B.C. invalid as contrary to the Dominion Japanese Treaty Act, 1913, passed in consequence of an Empire treaty with Japan in 1911. In Brooks-Bedlake and Whittall Ltd. v. A.G.B.C., (1923) A.C. 450, at p. 458, the Privy Council did not consider the effect of the Japanese Treaty Act on a B.C. statute making it a condition of licences to cut timber that neither Chinese nor Japanese were employed. Appellant employed both and the appeal was dismissed on the ground that the Legislature was competent to impose conditions as to the employment of Chinese.
34 The Aviation and Radio Cases; MacDonald, , “Canada's Power to Perform Treaty Obligations”, p. 679 Google Scholar; A.G.B.C. v. A.G. Can., (1924) A.C. 203; Stoke, H. W., The Foreign Relations of the Federal State (Baltimore, 1931), pp. 118, 202 Google Scholar; Keith, A. B., “Canada and the Treaty Power” (Journal of Comparative Legislation and International Law, vol. XI, 1929, p. 121).Google Scholar After referring to the decision in The King v. Stuart, (1925) D.L.R. 12, which upheld the Migratory Birds Convention Act, 1917, passed to carry into effect the convention, Professor Keith adds, at p. 124: “Just as under war conditions the Dominion could pass acts which under peace conditions would be invalid, it may well be that a treaty made by the Dominion in urgent national interests, such as that regarding migratory birds, would be upheld by the Privy Council where an invasion of provincial rights on minor issues from the national point of view would be disapproved.” Preservation of birds is in the national interest. What about the preservation of men, women, and children? He goes on: “This legal uncertainty must add to the natural considerations of constitutional propriety which urge that Canada should normally act in matters essentially provincial only with provincial assent.”
35 Keith, , Responsible Government, vol. I, p. 579 Google Scholar, writing before the decisions in the Aviation and Radio Cases, expressed the view that it would be “quite illegitimate to suggest that the Dominion Parliament can legislate to carry out treaty obligations”, but he concludes, at p. 581: “No doubt if Canada should ratify by executive action, then the Dominion could legislate, but, despite the legality of such a course, it would normally be unconstitutional.” If the consequence of ratification by executive act is a binding obligation, surely ratification following approval by Parliament would not be less legal. Ratification is essentially an executive act done in virtue of the prerogative over foreign affairs.
36 Feb. 8, 1935 (unrevised p. 708). See Corbett, P. E., “The Prime Minister on Capitalism” (Queen's Quarterly, Spring, 1935, p. 125)Google Scholar and also Sandwell, B. K., “The Provinces and the Supremacy of the Treaty Power in Canada” (Queen's Quarterly, Summer, 1930, p. 543)Google Scholar in which the argument for the provinces was anticipated five years ago, and met magnificently.
37 A. W. Rogers in “Some Aspects of Treaty Legislation”, anticipated a decision similar to that in the Radio Case, but J. S. Ewart in the article cited in note 20 takes the view that the Privy Council was wrong in holding that the Dominion could implement a convention if it did not fall within s. 132. At p. 300 he said: “If, on the other hand, the treaty is made by the Dominion, her Parliament has implementary power only so far as she is given it by s. 91 of her constitution. In other words, she cannot expand her legislative powers by agreeing that she will expand it.” At p. 302 he quotes from an article by Burdick, Charles K., “The Treaty Making Power in the United States” (Foreign Affairs, vol. X, 1932, p. 265)CrossRefGoogle Scholar, in which Elihu Root is quoted at p. 279, “So far as the real exercise of the power goes, there can be no question of state rights, because the Constitution itself, in the most explicit terms, has precluded the existence of any such question”, but as Potter (“Inhibitions upon the Treaty Making Power of the United States”) and Burdick both show, it is the usual policy of the government of the United States to abstain as far as possible, from concluding treaties with foreign powers, the provisions of which directly affect the police power of the several states. For the situation in Australia, see Bailey, H. K., “Australia's Treaty Rights and Obligations” (Journal of Comparative Legislation and International Law, vol. XI, 1929, p. 190).Google Scholar
38 The argument of Mr. Ralston on Feb. 14, 1935 (unrevised p. 915) appears unanswerable on this. It is interesting to note in passing that Article 427 was finally drafted by Sir Robert Borden (Shotwell (ed.), The Origins of the International Labor Organization, vol. I, p. 216 ff.Google Scholar).
39 Feb. 18, 1935 (unrevised p. 980).
40 The King v. Eastern Terminal Elevator Co., (1925) S.C.R. 434, at p. 437.
41 Viscount Haldane, at p. 410 of (1925) A.C.: “It is in their Lordships' opinion, now clear that, excepting so far as the power can be invoked in aid of capacity conferred independently under other words in s. 91, the power to regulate trade and commerce cannot be relied on as enabling the Dominion Parliament to regulate civil rights in the province.” See similar remarks In re Board of Commerce Act, 1919, (1922) 1 A.C. 191, at p. 197 Google Scholar, in which he said that it might be that the Dominion might “by reason of an altogether exceptional situation” oust “the exclusive character of the provincial powers under s. 92”.
42 Proprietary Articles Trade Association v. A.G. Can., (1931) A.C. 310, at p. 326. See also Transport Oil Ltd. v. Imperial Oil Ltd., (1935) 2 D.L.R. 500, Ont. C.A.
43 Notably John Deere Plow Co. v. Wharton, (1915) A.C. 330. In this Lord Haldane said, at p. 340: “This head must, like the expression ‘property and civil rights in the province’ in sec. 92, receive a limited interpretation. Their Lordships think that the power to regulate trade and commerce at all events enables the Parliament of Canada to prescribe to what extent the powers of companies the objects of which extend to the entire Dominion should be exercisable, and what limitations should be placed upon such powers.” Also Lawson v. Interior Tree Fruit and Vegetable Committee, (1931) S.C.R. 357. The Committee was instituted under the Produce Marketing Act of B.C. “with the exclusive power to control and regulate (under the Act) the marketing of all tree fruits and vegetables”, etc., and “so far as the legislative authority of the province extends” the Committee was given “power to determine at what time and in what quantity, and from and to what places, and at what price the product may be marketed, and to make orders and regulations in relation to such matters”. The Committee was also given power “for the purpose of defraying the expenses of operation to impose levies on any products marketed” and “fix license fees to be paid by shippers”. It was held that this legislation was ultra vires as referable to the exclusive Dominion power to regulate trade and commerce. And In re Grain Marketing Act, (1931) 2 W.W.R. 146, in which the Saskatchewan Grain Marketing Act, 1931, providing for the compulsory pooling of wheat, was held ultra vires.
44 A.G. Ont. v. A.G. Can., (1896) A.C. 348, at p. 362.
45 Montreal v. Montreal Street Railway, (1912) A.C. 333, at p. 344.
46 A.G. Can. v. A.G. Alta., (1916) 1 A.C. 588, at p. 596; A.G. Ont. v. Reciprocal Insurers, (1924) A.C. 328.
47 In re Board of Commerce Act, 1919, (1922) 1 A.C. 191, at p. 198.Google Scholar
48 Toronto Electric Commissioners v. Snider, (1925) A.C. 396, at p. 409.
49 The King v. Eastern Terminal Elevator Co., (1925) S.C.R. 434.
50 A.G. Can. v. A.G.B.C., (1929) A.C. 111. At p. 121 it was said: “Trade processes by which fish are converted into a commodity suitable to be placed upon the market cannot upon any reasonable principle of construction be brought within the scope of the subject expressed by the words ‘seacoast and inland fisheries’”, or by necessary implication trade and commerce.
51 Citisens Insurance Co. v. Parsons, (1881) 7 A.C. 96, at p. 113.
52 Hodge v. The Queen, (1883) 9 A.C. 117, at p. 128.
53 See dissenting opinion of Anglin C.J., at pp. 437 ff., in The King v. Eastern Terminal Elevator Co., (1925) S.C.R. 434.
54 Citizens Ins. Co. v. Parsons, (1881) 7 A.C. 96, at p. 113, approved in John Deere Plow Co. v. Wharton, (1915) A.C. 330, at p. 340, A.G. Can. v. A.G. Alta., (1916) 1 A.C. 588, and Montreal v. Montreal St. Ry., (1912) A.C. 96.
55 Duff J., at p. 371 in the Lawson Case cited in notes 43 and 62. The decisions of the United States Supreme Court on May 27, 1935, in the Schechter Case, and of the Saskatchewan Court of Appeal in Rex v. Zaslavsky, (1935) 2 W.W.R. 34, were to the same effect, the former holding the provisions of the National Industrial Recovery Act of the United States and the latter the Live Stock and Live Stock Products Act, R.S.C. (1927) c. 120 ultra vires in so far as they or the code and regulations passed under them respectively dealt with intra-state and intra-provincial trade.
56 Feb. 18, 1935 (unrevised pp. 980, 981).
57 Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy Limited, (1933) A.C. 168. The case of Workmen’s Compensation Board v. C.P.R, (1920) A.C. 184 was distinguished on the ground that “the tax in that case was assessed according to the amount of the employers’ payrolls. The tax here is imposed on the proceeds of particular transactions.” It was held that the province could as an exercise of its power to impose direct taxation for provincial purposes, assess employers, and pay benefits to employees. While both cases support the proposition that an assessment of the kind contemplated in the Employment and Social Insurance Act is an exercise of the power to tax, they are equally authority for the view that legislation to achieve a purpose of this kind falls within ss. 13 of s. 92.
58 At p. 337 in A.G. Ont. v. Reciprocal Insurers, (1924) A.C. 328.
59 Citizens Insurance Co. v. Parsons, (1881) 7 A.C. 96.
60 Union Colliery Co. v. Bryden, (1899) A.C. 580, at p. 587. The “pith and substance” rule is also referred to in P.A.T.A. v. A.G. Can., (1931) A.C. 310, at pp. 317, 325, and 327; A.G. Que. v. Queen Ins. Co., (1878) 2 A.C. 1090.
61 Great West Saddlery Co. v. The King, (1921) 2 A.C. 91.
62 Brewster v. Kidgill, (1697) 12 Mod. 166; Baker v. Greenhill, (1842) 3 Q.B. 148, at p. 163; A.G. v. Wilts United Dairies Ltd., (1921) 124 L.T. 319, at p. 322 aff’d by the House of Lords, (1922) W.N. 217, cited by counsel in the Crystal Dairy Case. There Mr. Tilley said: “The levies were compulsorily imposed under statutory powers for a public purpose, and were recoverable by action; they were therefore taxes (City of Halifax v. N.S. Car Works Ltd. (1914) A.C. 992; Cité de Montréal v. Ecc. du Séminaire (1889) 14 A.C. 660; Lawson v. Interior etc. (1931) S.C.R. 357 at p. 362).”
63 As to the “ancillary” rule see A.G. Can. v. A.G. Ont., (1894) A.C. 189, at p. 201; G.T.R. v. A.G. Can., (1907) A.C. 65, at p. 68; Toronto v. C.P.R., (1908) A.C. 54, at p. 57; A.G. Que. v. Nipissing Central Ry. Co., (1926) A.C. 715, at p. 724; A.G. Can. v. A.G.B.C., (1930) A.C. 111, at p. 118; Proprietary Articles Trade Assoc. v. A.G. Can., (1931) A.C. 310, at p. 326.
64 In The King v. Eastern Terminal Elevator Co., (1933) S.C.R. 434, at p. 447, Duff J. said: “The particular provision, if it stood alone, might, perhaps, be sustained as a tax, but it cannot be separated from its context; it is only one part of a scheme for the regulation of elevators.”
65 See In re Insurance Act of Canada, (1931) A.C. 41. In that case, the Dominion was denied the right under s. 16 of the Special War Revenue Act to exact a tax in respect of insurance placed with a company not licensed under the Insurance Act on the ground that this was not genuine taxing legislation but an effort under the guise of imposing a tax to control the business of insurance. Exactly the same reasoning was applied as in the case of the Dominion's abortive efforts to exercise similar control under the guise of legislating upon criminal law and aliens and immigration. At p. 52 Viscount Dunedin said: “Now as to the power of the Dominion Parliament to impose taxation there is no doubt. But if the tax as imposed is linked up with an object which is illegal the tax for that purpose must fail.”
66 Lord’s Day Alliance v. A.G. Man., (1925) A.C. 384, at p. 394; A.G. Ont. v. Hamilton St. Ry. Co., (1903) A.C. 524; L'Assoc. St. Jean Baptiste v. Brault, (1900) 30 S.C.R. 598, at p. 608; Ouimet v. Bazin, (1911) 46 S.C.R. 502; Re Race Tracks and Betting, (1921) 49 O.L.R. 339; Proprietary Articles Trade Assoc. v. A.G. Can., (1931) A.C. 310, at p. 324, (1929) S.C.R. 409. at p. 422, which explains the decision In re Board of Commerce Act, 1919, (1922) 1 A.C. 191, at pp. 198 and 199; Toronto City Corporation v. The King, (1932) A.C. 98, at p. 104 holding that ss. 27 of s. 91 “confers on the Dominion Parliament the exclusive right by legislation to create and define crimes”.
67 In re Insurance Act of Canada, (1931) A.C. 41, at pp. 49 and 51.Google Scholar
68 Toronto Electric Commissioners v. Snider, (1925) A.C. 396, at p. 408.
69 In re Board of Commerce Act, 1919, (1922) 1 A.C. 191.
70 Lord's Day Alliance v. A.G. Man., (1925) A.C. 384.
71 Proprietary Articles Trade Assoc. v. A.G. Can., (1931) A.C. 310, at p. 323.
72 See on this subject Jenks, C. Wilfrid, “The Dominion Jurisdiction in Criminal Law” (Canadian Bar Review, vol. XV, 1935, p. 279)Google Scholar published since the foregoing was written.
73 (1929) A.C. 111, at p. 118.
74 Cf. A.G. Ont. v. A.G. Can., (1896) A.C. 348, at p. 361; In re Board of Commerce Act, 1919, (1922) 1 A.C. 191, at p. 200.Google Scholar
75 In re Regulation and Control of Aeronautics in Canada, (1932) A.C. 54, at p. 70.Google Scholar As has been pointed out by Professor Kennedy, W. P. M. in Essays in Constitutional Law (Oxford, 1934), p. 167 Google Scholar, it is highly interesting to note that in this passage, Lord Sankey has used almost the exact words used by Lord Carnarvon in introducing the B.N.A. Act in the House of Lords in 1867. Then he said: “The real object we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces, and at the same time, to retain for each province so ample a measure of municipal liberty and self-government as will allow and indeed compel them to exercise these local powers which they can exercise with great advantage to the country.”
76 In re Regulation and Control of Radio Communication in Canada, (1932) A.C. 304, at p. 312.Google Scholar
77 Edwards v. A.G. Can., (1930) A.C. 124 in which Lord Sankey said, at p. 136: “But there are statutes and statutes and the strict construction deemed proper in the case, for example, of a penal or taxing statute or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an act passed to ensure the peace, order and good government of a British colony.”
78 SirMacdonald, John in Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865), p. 1002 Google Scholar: “The true principle of Confederation lay in giving to the central government all the principles and powers of sovereignty, and that the subordinate or individual states should have no powers but those expressly bestowed upon them. We should have thus a powerful central legislature, and a decentralised system of minor legislatures for local purposes.” See also at pp. 30, 33; Sir George Etienne Cartier (p. 60); Alexander Gait (p. 70); D'Arcy McGee (p. 145); Hon. L. A. Olivier (p. 176); quotations in Kennedy, W. P. M. (ed.), Documents of the Canadian Constitution (Toronto, 1918), pp. 597 ff.Google Scholar; and Smith, H. A., ‘The Residue of Power in Canada” (Canadian Bar Review, vol. IV, 1926, p. 432).Google Scholar
79 P. xix.
80 Mr. King, Feb. 8, 1935 (unrevised p. 714). Mr. Lapointe spoke to the same effect on Feb. 14, 1935 (unrevised pp. 892 and 897).
81 It was held in The King v. Zaslavsky, (1935) 2 W.W.R. 34 by the Saskatchewan Court of Appeal that neither the Dominion nor a province can enlarge the legislative jurisdiction of the other or surrender jurisdiction, as Lord Watson remarked in argument in C.P.R. v. Notre Dame de Bonsecours, (1899) A.C. 367 as quoted in Lefroy, A. H. F., Canada's Federal System (Toronto, 1913), p. 70.Google Scholar This view was also expressed on May 23, 1929, by Mr. Guthrie (p. 2776); by Mr. Lapointe (p. 2777) quoting Sir John Thompson quoted at p. 218 of Lefroy; and by Mr. Cahan (p. 2776); also by Mr. Cahan, April 21, 1932 (p. 2253); see also Powell v. Appollo, (1885) 10 A.C. 282; Valin v. Langlois, (1879) 5 A.C. 115; In re Gray, (1918) 57 S.C.R. 150; Lord's Day Alliance of Can. v. A.G. Man., (1925) A.C. 384, at p. 394. No reason can be seen, however, why the provinces (or Dominion) should not legislate by reference, i.e., enact as a statute of the province (or Dominion) a statute of the Dominion (or province). That is not surrender in any sense, but an exercise of that sovereignty which the legislative bodies in Canada possess (Hodge v. The Queen, (1883) 9 A.C. 117, at p. 132).
The cases have steadily increased the uncertainty as to whether or how concurrent legislation is to be enacted. While the powers distributed between the Dominion on the one hand and the provinces on the other hand cover the whole area of self-government within the whole area of Canada (A.G. Ont. v. A.G. Can., (1912) A.C. 571, at p. 591) and it is no doubt legally possible for the Dominion and provinces to exercise complete control over every aspect and ramification of social and economic life by concurrent legislation enacted by the ten legislative authorities each acting within the scope of its powers as strictly construed, the technical (not to speak of the political) difficulties of piecing together the federal and provincial powers necessary to deal with, say, the regulation of uneconomic competitive practices in industry, appear to be well-nigh insuperable. Take also the case of companies. Each authority can create companies and give them the status and capacity considered desirable, and the provinces may subject Dominion companies to regulation, but neither authority can interfere with the status and capacity of companies created by the other. The cases of John Deere Plow Co. v. Wharton, (1915) A.C. 330; Bonanza Creek v. The King, (1916) 1 A.C. 566; A.G. Can. v. A.G. Alta., (1916) 1 A.C. 588, and the Great West Saddlery Co. v. The King, (1921) 2 A.C. 91 demonstrate the difficulty of applying even these simple rules so as to determine when regulation, which is proper, becomes an interference, which is prohibited. But when we come to legislation to control the sale of shares of companies as illustrated in the cases of McKey v. Ruthenian Farmers Elevator Co. Ltd., (1924) S.C.R. 56 and A.G. Man. v. A.G. Can., (1929) A.C. 260 which held the Manitoba Sales of Shares Act of 1924 ultra vires, and Lymburn v. Mayland, (1932) A.C. 318, which held the Security Frauds Prevention Act, 1930, of Alberta intra vires, we are forced to the conclusion that anything in the nature of effective, uniform control of all operations respecting the sales of shares of Dominion and provincial companies is beyond hope of realization under our constitution as it stands.
The cases above referred to dealing with trade and commerce illustrate similar difficulties with regard to that important subject. As ProfessorScott, F. R. said (Social Reconstruction and the B.N.A. Act, p. 12)Google Scholar: “One almost reaches the ridiculous conclusion that control of Canada's grain Crop is not a matter of trade and commerce, but control of British Columbia's fruit crop is.” Another example may be given. In Spooner Oils Limited v. The Turner Valley Gas Conservation Board and A.G. Alta., (1933) S.C.R. 629 the provincial Act setting up the Board and giving it power to regulate the working of natural gas mines in the Turner Valley area was held intra vires of the province (and therefore presumptively ultra vires of the Dominion) but the provincial legislation was held ineffective as it dealt with lands held under a Dominion lease passed under a Dominion statute and regulations and was contrary to an agreement between the Dominion and province for the transfer of natural resources. See also on this Scott, F. R., “The Development of Canadian Federalism” (Papers and Proceedings of the Canadian Political Science Association, vol. III, 1931, p. 241).Google Scholar
82 See also Lord Watson in A.G. Ont. v. A.G. Can., (1896) A.C. 348, at p. 361. Viscount Haldane also refers to the cases of Russell v. The Queen, (1882) 7 A.C. 829 and Fort Francis Pulp and Paper Co. v. Manitoba Free Press, (1923) A.C. 695.
83 A.G.B.C. v. A.G. Can., (1920) A.C. 111, at p. 118. See also Fort Francis Pulp and Paper Co. v. Manitoba Free Press, (1923) A.C. 695, at pp. 705, 706, and Mr. Bennett's reference to this on March 8, 1932 (pp. 898-900).
84 Ibid., and A.G. Ont. v. A.G. Can., (1896) A.C. 348, at p. 361.
85 Per Lord Watson in A.G. Ont. v. A.G. Can., (1896) A.C. 348, at p. 361. The report on which P.C. 2722 referred to above in note 22 was based expressed the view that unemployment insurance lay within the Dominion power to pass laws for the peace, order, and good government of Canada.
86 See: Mr. Bourassa, May 23, 1929 (p. 2780); Brooke Claxton, “The Amendment of the B.N.A. Act” (McGill News, June, 1929); F. H. Underhill, note on amendment of the B.N.A. Act ( Canadian Forum, 09, 1929, p. 415–6Google Scholar); Dafoe, John W., “Revising the Constitution” (Queen's Quarterly, Winter, 1930, p. 1)Google Scholar; Scott, F. R., “The Development of Canadian Federalism” and Social Reconstruction and the B.N.A. Act Google Scholar; Dexter, Grant, “Commerce and the Canadian Constitution” (Queen's Quarterly, Spring, 1932, p. 250)Google Scholar; Dawson, R. M., Constitutional Issues in Canada (Oxford, 1933), pp. 3–4, 10 ff. Google Scholar; MacKenzie, N. A. M., “The Federal Problem and the B.N.A. Act” (Canadian Problems, papers at Conservative Summer School, Toronto, 1933, p. 247)Google Scholar; Rogers, N. McL., “Federal-Provincial Relations” (The Liberal Way: A Record of Opinion at the First Liberal Summer Conference, Toronto, 1933, p. 113)Google Scholar; Brady, A., “The Constitution and Economic Policy” (The Canadian Economy and its Problems, edited by Innis, H. A. and Plumptre, A. F. W., Toronto, 1934, p. 179)Google Scholar; Goldenberg, H. C. and Underhill, F. H., “The Problems of Constitutional Amendment in Canada” (Papers and Proceedings of the Canadian Political Science Association, vol. VI, 1934, p. 238)Google Scholar; McArthur, D., “Revision of the Canadian Constitution” (Queen's Quarterly, Spring, 1934, p. 126)Google Scholar; Magor, R. J., The Spirit of Confederation, address to the Canadian Chamber of Commerce, Winnipeg, 09, 1934 Google Scholar; Bastedo, Frank L., “Amending the B.N.A. Act” (Canadian Bar Review, vol. XII, 1934, p. 209)Google Scholar; Rogers, N. McL., “The Constitutional Impasse” (Queen's Quarterly, Winter, 1934, vol. XLI, p. 475)Google Scholar; and particularly the series of editorials in the Winnipeg Free Press extending over the last fifteen years.
87 Mr. Heaps, on Feb. 8, 1935 (unrevised p. 711).
88 Resolution moved by Mr. Woodsworth on March 20, 1924 (p. 508).
89 On Feb. 18, 1925, W. F. Maclean proposed a resolution calling for an address asking for an amendment to the B.N.A. Act permitting the Act to be amended by an absolute majority in both Houses except on questions affecting minorities (pp. 283, 307).
90 Resolution moved by Mr. Woodsworth on March 9, 1927 (p. 1036) and supported by Mr. Bourassa (p. 1047).
91 Resolution moved by Mr. Woodsworth on May 11, 1931 (p. 1466).
92 Jan, 21, 1935 (unrevised p. 67); see also March 15, 1935 (unrevised p. 1902); March 25, 1935 (unrevised p. 2226); April 9, 1934 (p. 1983).
93 April 11, 1934 (p. 2045).
94 Jan. 28, 1935 (unrevised p. 252); see also May 11, 1931 (p. 1478); and June 30, 1931 (p. 3221); and report of speech by Mr. Taschereau in Montreal Gazette for March 3, 1935.
95 Canada, Sessional Papers, 1928, no. 69, p. 11, quoted in Dawson, , Constitutional Issues in Canada, p. 22.Google Scholar
96 See particularly the valuable evidence of Professor F. R. Scott on March 26, 1935, to whom I am much indebted for assistance; see also Mr. Cahan's suggestions, May 11, 1931 (p. 1485); references in notes 86 and 95.
97 Mr. Lapointe on May 11, 1931 (p. 1479) said that he did not think unanimous consent was necessary on all points but for “essential matters … as the protection of minorities, of language, of schools”.
98 See the writer's article, “The Commonwealth and South Africa” (Queen's Quarterly, Spring, 1935, p. 110)Google Scholar; notes by Keith, Berriedale in Journal of Comparative Legislation and International Law, vol. XVI, 1934, p. 289 Google Scholar and by ProfessorKennedy, W. P. M. in University of Toronto Law Journal, vol. I, 1935, p. 147 Google Scholar and references there, the text of the Status of Union and Royal Executive Functions and Seals Act being printed at p. 149.
99 June 30, 1931 (p. 3218).
100 See: Kemp, H. R. and Rogers, N. McL., “Is a Revision of Taxation Powers Necessary?” (Papers and Proceedings of the Canadian Political Science Association, vol. III, 1931, p. 199)Google Scholar; Keirstead, W. C., “The Basis of Provincial Subsidies” (Papers and Proceedings of the Canadian Political Science Association, vol. VI, 1934, p. 134)Google Scholar; Carrothers, W. A., “Problems of the Canadian Federation” (Canadian Journal of Economics and Political Science, vol. I, 1935, p. 26)CrossRefGoogle Scholar and A Submission on Dominion-Provincial Relations and the Fiscal Disabilities of Nova Scotia within the Canadian Federation presented by Rogers, N. McL. (Halifax, 1934)Google Scholar, there reviewed; Rogers, N. McL., “A Crisis of Federal Finance” (Canadian Forum, 11 and Dec., 1934)Google Scholar; Innis, H. A. and Plumptre, A. F. W., The Canadian Economy and its Problems, p. 178 Google Scholar; Department of Economics, Queen's University, “Financial Problems of our Federal System” (Queen's Quarterly, Winter, 1933, p. 580).Google Scholar
101 Fort Francis Pulp and Paper Co. v. Manitoba Free Press, (1923) A.C. 695, at pp. 705, 706.