Hon. ERNEST LAPOINTE (Quebec East):

With the principle of a minimum

wage in industry we on this side of the house are in full accord, and I am pleased indeed that in most of the provinces of Canada, as the Minister of Justice (Mr. Guthrie) has just said-and I believe that they are the authority to deal with this question-such a provision is in force.

I do not desire to repeat in any way the arguments which I presented when another draft convention was laid on the table of this house for approval, but I wish to place before the house an aspect of the question which I have not dealt with in any way and which I believe is of the most serious importance. The government bases its claim for jurisdiction in this matter, as well as in the other draft conventions which have been submitted, on the treaty of Versailles and more particularly on the labour part of that treaty and on our adhesion to the League of Nations and our membership in the league.

I need not say that I have always been a strong supporter of the idea of the League of Nations. I supported it before it was established; I supported it when it was introduced in this parliament in 1919, and I have always supported it since. I am a believer in the principle of collective security for the establishment of peace in the world, and I do not think I am disclosing any secret in saying that so long as I was a member of the government of Canada I always worked to have our country accept the principles of the league. Indeed, on the question of the acceptance of the optional clause which bound Canada to accept the decision of the international court of justice -it was optional-Canada led the other countries of the empire in the acceptance of that clause, and I had the honour to speak for this country at one of the conferences in London which dealt with that matter. Even last week it was my privilege to address a large audience in my own city in defence of the ideas and the principle of the League of Nations. I have had the honour of serving as president of the League of Nations Society in Canada for the last two years, having only recently resigned, because I thought that in justice to the society as well as to myself I ought to have my full freedom in the discussion of certain matters connected with this question of the League of Nations.

I submit-and I am sorry to say so-that the new theory, the new doctrine which has been accepted by the government and which is being set forth for the purpose of transferring jurisdiction from the provinces to this parliament on certain matters is a blow to the prestige of the league and its work in this country. We entered the league and voted for the treaty of peace, the covenant of the League of Nations, and the international labour office, as I said, in 1919. Canada accepted that because of what was then stated was her obligation as a result of our joining these international bodies. What was stated at the time with regard to this section 405 of the treaty which the government claims gives jurisdiction to this parliament on the question of draft conventions? This is not in any way a new matter. In 1919, when the peace treaty was before the House of Commons, various documents explaining the many matters included in the treaty were at the same time laid on the table of the house. I have before me sessional papers for 1919, the special session which was held just for the purpose of approving the treaty, and there was laid on the table and printed by order of the house a certain report by the British delegates to

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the peace conference. I wish to draw the attention of the house to what they said in their report with regard to this very matter of draft conventions, and I quote from page 8 of the report as contained in the sessional papers of 1919. When section 405, the present section, came before the delegates of the peace conference, there immediately arose trouble because of the situation of federal states. The United States delegates of course had an important standing at the peace conference. President Wilson was there with his associates, and this is what the British delegates said:

The American delegation, however, found themselves unable to accept the obligations implied in the British draft on account of the limitations imposed on the central executive and legislative powers by the constitution of certain federal states, and notably of the United States themselves. They pointed out that the federal government could not accept the obligation to ratify conventions dealing with matters within the competence of the forty-eight states of the union, with which the power of labour legislation for the most part rested. Further, the federal government could not guarantee that the constituent 6tates, even if they passed the necesary legislation to give effect to a convention, would put it into effective operation, nor could it provide against the possibility of such legislation being declared unconstitutional by the supreme judicial authorities. The government could not therefore engage to do something which was not within their power to perform, and the nonperformance of which would render them liable to complaint.

The commission felt that they were here faced by a serious dilemma, which threatened to make the establishment of any real system of international labour legislation impossible. On the one hand, its range and effectiveness would be almost fatally limited if a country of such industrial importance as the United States did not participate. On the other hand, if the scheme were so weakened as to impose no obligation on states to give effect to, or even to bring before their legislative authorities, the decisions of the labour conference, it was clear that its work would tend to be confined to the mere passage of resolutions instead of resulting in the promotion of social reforms with the sanction of law behind them.

The commission spent a considerable amount of time in attempting to devise a way out of this dilemma, and is glad to be able to record that it ultimately succeeded in doing so. Article 19 as now drafted

That is section 405.

-represents a solution found by a subcommission consisting of representatives of the American, British and Belgian delegations specially appointed to consider the question. It provides that the decisions of the labour conference may take the form either of recommendations or of draft conventions. Either must be deposited with the secretary general of the League of Nations and each state undertakes to bring it within one year before its competent authorities for the enactment of legislation or other action. If no legislation

' Mr. Lapointe.]

or other action to make a recommendation effective follows, or if a draft convention fails to obtain the consent of the competent authorities concerned, no further obligation will rest on the state in question. In the case of a federal state, however, whose power to enter into conventions on labour matters is subject to limitations, its government may treat a draft convention to -which such limitations apply as a recommendation only.

Further on they said:

Though reluctant to contemplate an arrangement under which all states -would not be under identical obligations, the commission felt that it was impossible not to recognize the constitutional difficulties which undoubtedly existed in the case of certain federal states, and therefore proposed the above solution as the best possible in the circumstances.

In another house, an hon. gentleman who was responsible for the enactment of the law ratifying the treaty in 1919 said: How would the Americans act? They would certainly ratify those draft conventions and act as a nation, and not merely send those draft conventions to the various states. He was in error. This section 405 was drafted just to meet the ease of the United States, Canada and other federated states situated in similar circumstances. The Prime Minister said: Yes, but there is in the article mention of the discretion which may be used by the federal member of the league. Yes, there is a discretion, but not a discretion to do what is being done by ratifying these conventions in this dominion parliament. This is what the discretion is:

In the case of a federal state, the power of which to enter into conventions on labour matters is subject to limitations, it shall be in the discretion of that government to treat a draft convention to which such limitations apply as a recommendation only,-

No legislative action is required.

-and the provisions of this article with respect to recommendations shall apply in such case.

The above article shall be interpreted in accordance with the following principle.

That is, there is this discretion that the federal state may treat this merely as arecommendation though it is a draft convention, but when it does not treat it as a

recommendation, there is another part of this section that applies, and that part states:

In the case of a draft convention, the member will, if it obtains the consent of the authority or authorities within whose competence the matter lies, communicate the formal ratification of the convention-*

And so forth. So that the discretion iseither to treat the draft convention as a

recommendation or to accept it as a draft convention and to ratify it only if the consent of the competent authority to deal with

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it is first obtained to do so. The Prime Minister said, a former Prime Minister: But Canada is a nation, and we have the right to act as a nation. Yes, Canada is a nation, I am pleased to see that recognized even by those who did not like it when steps toward nationhood were being taken. I am proud to say Canada is a nation. But Canada is a nation as a federal state. Canada consists not only of this parliament but of the nine provincial legislatures as well. It is Canada as a federal state that is the nation, in exactly the same manner as the United States is a nation, although it consists of forty-eight states which are autonomous and upon whose powers congress cannot encroach; in exactly the same way as Brazil is a nation, as the Argentine republic is a nation, as Australia is a nation. But they are all federal states. And the fact that we are a nation does not give us the right to encroach upon the autonomy and the jurisdiction of the various provinces which form part of our confederation. No hon. member in this house who at that time agreed to enter the League of Nations did so with the idea that this would have the effect of changing the constitution of Canada, that it would have the effect of taking some powers from the provinces and transferring them to the dominion parliament. Every government that has been at the head of affairs since 1919, every Prime Minister, every minister of the crown who has dealt with this matter has taken no other attitude than the one I am taking now. Even the Supreme Court of Canada took the same stand. In another house a gentleman who has been Prime Minister and who is one of those responsible for what took place said, "I was wrong when I said that." He even said that the Supreme Court of Canada was wrong in 1925 when they gave their decision. Well, Mr. Speaker, if those gentlemen were wrong, if the government of Canada was wrong in 1919 when they told us what the obligations were that we were assuming, we accepted everything under a pretence, which I will not say was false, but which amounts to a breach of trust towards those who in good faith accepted the solemn statement and declarations of the statesmen who were speaking for the people of Canada at that time.

The radio and aviation judgments have nothing to do with this question of a draft convention for international labour. They were based on special treaties which were entered into with various other nations. If we accept this theory of the government what does it mean? Every year three or four

gentlemen leave Canada to go to Geneva to attend a labour conference. I have here the names of all the delegates to the labour conferences since 1921. There is nobody for whom I have more respect than my good friend Tom Moore, who is head of the Trades and Labour Congress of Canada. There is always a representative of the employers also, he is usually a manufacturer from Toronto or Montreal, sometimes their legal representative. And the government is represented either by one of the officers of the Department of Labour or by Doctor Riddell. They are all good fellows, but has it ever entered the mind of any Canadian that Mr. Tom Moore, or Paddy Draper, or a manufacturer of Toronto should go to Geneva and by simply assenting to or taking part in the passing of a draft convention concerning hours of labour or minimum wages or anything in the world would have the power to transfer from the provinces the jurisdiction given to them by the British North America Act? Nobody has ever dreamed that such a state of things could exist. Do you see what tremendous importance and responsibility those delegates to the international labour conference would have if the doctrine of the government is accepted as the right one?

There is more than that. Since the establishment of the international labour conference Canada has been a member of the governing body. The eight greatest industrial nations of the world had a permanent seat on the governing body, Canada being one. In 1922 I had the honour to go to the meeting of the League of Nations with the late Mr. Fielding to represent Canada, and as a labour conference took place immediately after I represented Canada at that conference. Then there was a movement to exclude Canada from the governing body, passed unanimously in the committee which dealt with the question. I opposed the report of the committee before the full conference, and I had the pleasure to get a unanimous vote rejecting the report of the committee and retaining Canada on the governing body. Since then Canada has continued to sit on the governing body until this year, but this year Canada is replaced by Russia. Of course being a member of the governing body gives prestige to a nation. The resolutions and recommendations and draft conventions that come before the conference are always prepared before the conference takes place, and the members of the governing body have indeed an important part to play there. But Canada is there no longer. Draft conventions

1738 COMMONS

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which might be brought before the international labour conference by the governing body, of which we are no longer members, but of which Russia is in our place,-whether we here accept these conventions or not is not the question at all-'would have the effect of giving to the parliament of Canada jurisdiction and power which the British North America Act does not give to this parliament. Can this be contradicted or denied? I do not think it can. And /I think that you will agree that this is a serious matter, a most serious matter with respect to the prestige of the league and of the international labour conference in this country. In point of fact newspapers that have always criticized the League of Nations, always criticized our membership in it, are taking advantage of this new position to criticize further and to discredit what Canada is doing there and to say that its constitution is 'being changed at the behest of men coming from all parts of the world. Of course I do not admit that it is right. I do not think the position taken by this house is right, and I humbly submit that it will not be accepted by the courts. I think we shall come back to the constitutional status of Canada as it is, until it is changed in an orderly way, and not simply by assuming a jurisdiction which is not ours.

Now I see my good friend from Winnipeg North Centre (Mr. Woodsworth). He used rather vehement language in regard to my stand on this matter the other day, rather passionate. I do not blame him for that, but he is certainly wrong when he takes that stand. He is not alone in taking that position; I have heard other gentlemen say, " Well, what has the constitution to do with it? When we are facing difficulties we must look after the human constitution" and so on. That is soap boxing at its worst. Certainly human measures must be adopted; we all must do our best to achieve reforms, but they must be achieved in an orderly and proper way and not simply by saying, "We are the strongest; we are going to do it whether or not the constitution says so." And, Mr. Speaker, if the hon. gentleman speaks in this house as he does; if he speaks his mind openly in various parts of the country as he does-and he does well to do so-it is because he is protected by the constitution. The constitution is our safeguard. I cannot understand gentlemen who protest against the prevailing order of things in the world being impatient with regard to the constitution, and being willing to have it set aside if they do not like some of its provisions. I am with them when they ask that changes should be made, but I ask my hon. friend

from Winnipeg North Centre what is the use' of the committee, to which has been sent his resolution, if we simply say that w-e assume responsibility, that the constitution need not be changed but that we are merely taking these steps by our own will and our own action.

I agree with my leader that before these measures were introduced in this house there should have been an understanding with the provinces. Not only is that the only legal and rational way; it would have been also the only courteous way, but instead the government are taking a position which will invite trouble, as I am sure they know. They ought to have the opinion of the courts with regard to the matter. The Prime Minister says he does not like references to the supreme court, that they do not amount to anything and that we should avoid them. Well, would it surprise you, Mr. Speaker, to learn that last year, not when my right hon. leader was head of the government but in 1934, no less than three references were submitted to the Supreme Court of Canada? I will mention them. There was a reference as to the constitutionality of the Companies Creditors Arrangement Act. There was a reference as to the constitutionality of section 110 of the Dominion Companies Act, and there was another reference with regard to the legality of certain provisions concerning the tariff -board. If these three references could be made last year in connection with matters a good deal less important than those now submitted to the house, why not take the same course with regard to these questions? We cannot refer to what takes place in a committee, of course, but the deputy minister of justice gave it as his opinion that the reference to the courts should take place afterward by way of an action instituted by some interested party, and then the courts could pronounce as to the validity and legality of the act. I submit that this should not be the situation. When matters so important as these, in connection with which industries will have to change their methods, readjustments will have to be made, and large expenditures of money may be necessary, I think the constitutionality and validity should be tested first rather than after the measures are placed on the statute books of the country.

I repeat, Mr. Speaker, that I am in favour of the principle of minimum wages. I am even in favour of this draft convention so far as it applies to dominion works or to those parts of Canada which are not part of any province. So far as the rest is concerned, I am in favour of it but it is for the provinces

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to deal with, and I have no hesitation in saying that those who are in favour of these measures will see before long that the position I take is the correct position.

Mr. J. S. WOODSWORTH (Winnipeg North Centre):

Mr. Speaker, in connection with this measure, as in connection with the other social measures that have been introduced, I welcome the action taken by the government in attempting to honour our obligations under the peace treaty. The hon. member for Quebec East (Mr. Lapointe) has asked why I have urged that a committee consider how we may best revise the British North America Act. Let me say that it must be nearly ten years since I first brought in a resolution to this effect, which resolution was sharply turned down. A few years later I again introduced a resolution along the same lines, and at that time the government promised that we would have some sort of action in the way of a conference on the matter between the dominion and the provinces. That, however, never took place, so this year I again urged that action be taken. I think it would have been well if years ago we could have had a decision with regard to the best means of amending the British North America Act, so I do not think the hon. member who has just spoken can very well say that I have been indifferent to that aspect of the matter. But it is a good many years since we first gave our solemn obligation to do something with regard to such matters as those we have before us to-day. I think the hon. member for Quebec East will admit that times do change and things do move on, and that social changes greatly change even legal interpretations.

No.

Mr. WOODSWORTH:

My legal friends may say no; that is a pose with them. After the gold case in the United States I think we all began to understand a little more clearly that political exigencies as well as a completely changed condition do make necessary changes in legal interpretations. A few years ago in Canada our supreme court decided that women were not persons under the terms of the British North America Act. That might have been quite dearly and properly the strict legal interpretation; I am told by my friends that it was. I think, however, that the great majority of the people of Canada welcomed the decision of the privy council that under changed conditions women could have a place in the Senate. We cannot forever be tied down by interpretations given many years ago. The fact is that we live in a new

world under changed conditions and in some way or other we must attempt to meet those changed conditions. The hon. member for Quebec East rather suggests that I have been guilty of soap boxing when I have not paid too great attention to the letter of the law in such matters as the one before us. Well, I should like to say to him that in my judgment the constitution was made for Canada and for the Canadian people; the Canadian people were not made for the constitution. I believe that is a sound principle.

Mr. LAPOINTE:

Absolutely.

Mr. WOODSWORTH:

And it seems to me that under those circumstances some effort must be made to enable us to live-

Mr. LAPOINTE:

Change it.

Mr. WOODSWORTH:

We are trying to

change it. Meantime, we must live. The hon. member for Quebec East was for a good many years a member of a government that made no effort to change the constitution.

It is not changed yet.

Mr. WOODSWORTH:

No, but the hon.

member made no effort to change it, and the government of which he was a member made no effort to implement the terms of the peace treaty.

Mr. LAPOINTE:

Has the hon. member

read the report which was printed following the interprovincial conference?

Mr. WOODSWORTH:

Yes.

Mr. LAPOINTE:

He must have seen that

I made some efforts there.

Mr. WOODSWORTH:

It was a very weak effort, one not worthy of the hon. member.

Mr. LAPOINTE:

Not as strong as those

of my hon. friend of course,-but I did my best.