Mr. GRAYDON:

That will be fine.

Mr. ROEBUCK:

It does not make much difference what position the leader of the opposition takes in the house, because if the party ever does take office he will disappear anyway, and somebody else will be in his place.

Mr. REID:

And that is a sobering thought.

, Mr. ROEBUCK: While I congratulate the hon. member on his freedom of thought, the good will he has expressed, and the commendation he has directed toward the bill, I do not congratulate him upon what he has attempted to do.

May I call attention to the fact that the hon. member for Lake Centre at no time in the full course of his address, mainly on the

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constitutionality of the measure, had the temerity to state as his own opinion on his responsibility as a lawyer that the measure is unconstitutional. His object throughout was to raise doubt and to ask that this be resolved by some other court than the high court of parliament. Doubts and smokescreens were what he was dealing in, not his own opinion regarding the bill.

Mr. FRASER (Peterborough West):

What is your opinion?

Mr. ROEBUCK:

I will state it before I am through. The hon. gentleman has suggested that this measure which he so highly approves be submitted to the courts, I presume before it is passed by this parliament, or at all events before it is allowed to come into effect. He refers to other legislation passed in 1935 which he thinks is in some way similar and which was referred by the present government to the Supreme Court of Canada. I would like to call his attention to the fact that that legislation was passed in 1935 and the decision of the privy council in England from which he read is dated 1937. In other words, it took two years to obtain a final decision on the legislation to which he referred.

I am wondering whether the real purpose of the suggestion that we refer this matter to the courts is along the line of a number of suggestions I have heard from the other side -something else, some other time; a matter of delay. Two years from now the hon. gentleman may not be a member of this house. No one knows just what two years may accomplish, but I do know that the members on this side believe in this legislation. They are not accepting proposals which, defer its operation two, three or more years while the matter is fought out in the courts. The Prime Minister suggested that the legislation of 1935 be submitted to the courts. Why? Because for the main part it was obviously unconstitutional.

Mr. DIEFENBAKER:

If it was obviously unconstitutional how did it come about that the hon. member, representing the province of Ontario on the submission before the privy council, argued that it was not unconstitutional?

Mr. ROEBUCK:

The hon. gentleman has asked a very good question. The Minister of Justice (Mr. St. Laurent) together with the present chief justice of the supreme court of Ontario, and I all argued in the same direction. We endeavoured, to save the Unemployment Insurance Act from a decision of unconstitutionality. Realizing the value of the legislation and the desirability of its immediate enforcement, we put up every argument we knew in order to save the legislation

1

for the people. The fact that we failed resulted in the legislation being deferred for quite a number of years. Our purpose was good, but we were not successful in law. In due season I shall state why we were not successful.

There is nothing mysterious about constitutional questions. They are problems which the ordinary man, untrained in law, can understand. Let it be understood that jurisdiction to pass laws of this or any type lies in one or other of our legislatures, either in the dominion parliament or the provincial legislatures. The authority of these two legislatures in their respective fields is plenary and complete. There is nothing that we cannot pass. The British 'North America Act exhausts the legislative powers that are possible. Anything that is humanly possible is legally possible in one or other of these legislatures. Lefroy in his "Canada's Federal System", at page 94, said:

The clauses of the B.N.A. Act relating to the distribution of legislative powers exhaust the whole range of legislative authority, so far, at any rate, as the internal affairs of Canada are concerned, and whatever is not thereby given to the provincial legislatures rests with the dominion parliament.

The inquiry is fairly simple as to whether legislation is within, the jurisdictional competence of this house. The first thing that one does is to inquire whether it has been given to the provincial legislatures. If not, then it is within dominion jurisdiction, because of the overriding power of the dominion under the residuary clauses of the British North America Act. It has been argued by my hon. friend that the provisions of this bill may fall within section 92 of the British North America Act, and are therefore within the legislative competence of the provinces. There are only three clauses in the British North America Act which even suggests the possibility that this legislation belongs to the provinces. Subsection 7 of section 92 reads:

The establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals.

The second one is subsection 13:

Property and civil rights in the province.

The third is subsection 16:

Generally all matters of a merely local or .private nature in the province.

Obviously this legislation is not charity. An eleemosynary institution is defined by Webster as an institution "relating or devoted to charity, to alms, to almsgiving." This legislation is not charity because the payments are of right. Look at section 4 of the bill,

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which states that the allowance shall be "payable" only after registration of the child, and so on. Section 13, subsection 2 refers to the recovery of undue allowance when an allowance has been paid to a person who was not "entitled" thereto.

One is not "entitled" to charity. Payments are not "payable" to one to whom you are making gifts. That is not charity. This is not an eleemosynary institution, a hospital or anything of the kind. It does not fall within that section of the act.

Then consider property and civil rights- there is no property right and there is no civil right affected in any way by this legislation. The payments are to individuals as of right as between themselves and the Dominion of Canada. No contractual rights are touched, no property rights are in any way interfered with. It does not relate to either. Property and civil rights are for the most part rights of contract, and there are no contractual rights involved 'in this instance.

My hon. friend has referred to the case of Attorney General of Canada v. the Attorney General of Ontario, which is the last, the most important and the most comprehensive decision on the question of jurisdictional rights in matters of this kind. The case grew out of the legislation brought in by Mr. Bennett's government in 1935. It was referred by a government headed by our present Prime Minister (Mr. Mackenzie King) to the Supreme Court of Canada. At that time the dominion was represented in the argument by the late Mr. Justice Rowell, until recently chief justice of Ontario; and for the leading province, the province named in the case, I appeared as the attorney general in person. So that I think I have some right to speak, not authoritatively, but with a certain background of knowledge, in discussing this measure. Few practising lawyers in Canada have had more genuine experience in constitutional matters than have the present Minister. of Justice, and may I add in all humility, myself.

Now let us'see what Lord Atkin said in the privy council with reference to the unemployment insurance measure:

There can be no doubt that prima facie, provisions as to insurance of this kind, especially where they affect the contract of employment, fall within the classes of property and civil rights in the province and would he within the exclusive competence of the provincial legislature.

That was the reason that the legislation to which my hon. friend has referred was declared beyond the competence of the dominion parliament. It was because it was insurance legislation and because it interfered with contracts

as between employer and employee, adding Statutory conditions to the contract of employment. We argued that the matter was of such great general importance that it should be included in the overriding sections of the act, but the court found there was no emergency which took it out of the province's jurisdiction and placed it in that of the dominion. Because it interfered with contracts and insurance, and therefore property and civil rights, it was beyond the competence of this parliament.

What similarity is there between that act, which was declared ultra vires of our parliament, and the one which is before us and which we are now considering? There is no insurance in this bill, none at all. There is no interference as between employer and employee. There is simply a gift by this parliament to some section of its taxpayers. It is not within provincial jurisdiction in any of its aspects.

Is it within the jurisdiction of this parliament? Again, Mr. Speaker, I refer to that very notable decision in England in 1937, Attorney General of Canada v. Attorney General of Ontario. I quote the same great jurist, Lord Atkin, on the subject. He says:

That the dominion government may impose taxation for the special purpose of creating a fund for special purposes, and may apply that fund for making contributions in the public interests to individuals, corporations or public authorities, could not as a general proposition be denied.

There you have it, appearing in the very decision which counted out Mr. Bennett's legislation because it did infringe provincial jurisdiction. You have the broadest and the clearest statement that legislation such as we have before us to-day and which does none of these things could not as a general proposition be denied.

His lordship pointed out that dominion legislation, although it deals with dominion property, may be so framed-and this is what my horn, friend read-as to invade civil rights within the province. Of course it can. Mr. Bennett>did that very thing; but we have not. We have not encroached upon classes of subjects which are reserved to provincial competence. We do none of those things.

It might be held that this legislation is within the competence of this government because of the overriding powers of the dominion for the peace, order and good government of this country. It is not necessary, however, to justify it in that way. If it is not within section 92, the section which gives

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powers to the provinces, then it does come within the overriding sections, as I have already said.

There are, however, other grounds. Subsection 2 of section 91 gives to the dominion power to raise money by any mode or system of taxation. We are going to do that; we are going to raise money by various modes and systems of taxation and expend it in this way. Then subsection 1 gives to the dominion the power for the disposal of the public debt and property. That is to say, we propose to exercise the right which the act has given to us to dispose of the money which we have raised by any system or method of taxation.

Lefroy, in his work on constitutional law, at page 493, makes this statement:

It would be impossible for parliament to legislate even under its general residuary powers bo make laws for the peace, order and good government of Canada if it was restricted from incidentally affecting property and civil rights in the different provinces.

But we are not even doing that. We have a right to affect property and civil rights, but we have not the right to legislate regarding property and civil rights: I use the language of the act. Take for instance the Canada Temperance Act, which was held within the powers of this legislature. It was because it was in the public interest, and necessary-so they thought at that time-for the peace, order and good government of Canada, to preserve public order and safety.

I could refer to a long list of decisions of the courts, all perfectly clear, all perfectly logical. Let me take a typical one: Workmen's Compensation Board v. the Canadian Pacific Railway. The act was declared to be unconstitutional because it attached terms to contracts of employment and because it sought to impose contractual details as between employers and employees. There is none of that in this act.

I rather regret the position taken by the member for Lake Centre because I have always looked upon him as a good lawyer. In the past there have been some very good lawyers on the Conservative side of the house. I need only mention Sir John A. Macdonald, Sir Robert Borden, Hon. C. H. Cahan, to whom my hon. friend has referred, and Lord Bennett. Those of these gentlemen who have passed to their reward, had they heard the Conservative party in this house to-day attacking this bill as unconstitutional, would have _turned in their graves. They would have been astonished to find the Conservative party committing itself to legal propositions of that kind.

My hon. friend quoted Mr. Bennett. Let me do the same. In the House of Commons debates on May 5, 1936, as reported at page 2848 of Hansard, Mr. Bennett said:

It does not require a parliament at Westminster to pass a statute to confer upon .this parliament jurisdiction to deal with its own [DOT] revenue.

Of course it does not. My hon. friend has referred to statements made by the Hon. C. H. Cahan, at one time member for St. Lawrence-St. George. Mr. Cahan was a very good lawyer' indeed with a very high standing. It seems remarkable that St. Lawrence-St. George should send so many distinguished representatives to this house. Mr. Cahan, referring to the unemployment insurance case before the privy council in 1937, which we have had under discussion, and at page 2576 of Hansard, on April 5, 1936, questioned the possibly serious effects of a judgment which limited at all the right of this parliament in the expenditure of its own money. The court in England had said that the dominion parliament could not use its money for the purpose of infringing the legislative authority of the provinces, and it was that proposition which the Hon. C. H. Cahan was attacking in this house, because he thought that the jurisdiction of this parliament, under the British North America Act, was wider still than the judgment of the privy council-not narrower, as my hon. friend would have it be. He said:

This opinion, if it is valid, raises grave doubt as to the validity of appropriations by this dominion parliament of current revenues for such objects as old age pensions, unemployment relief, or for giving assistance to provincial undertakings of any description. If these appropriations are illegal and beyond the competence of the dominion, grave consequences may follow.

I join with him in that statement, and much. more so were the legal propositions advanced by the opposition in connection with this bill sound law. The gravest consequences might follow. I shudder at the implications of the legal philosophy which we have heard across the floor of the house.

If it is illegal to give money to parents for the benefit of children, as is suggested, then it is unconstitutional also to build houses for families including children, and our whole housing legislation is unconstitutional, beyond the power of this parliament, and may be set aside.

The Old Age Pensions Act is threatened. My hon. friend has had the temerity to link these two acts together and to say that if the Old Age Pensions Act were in some way unconstitutional then so must this be. That is wrong. But if this is unconstitutional, then

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the Old Age Pensions Act is unconstitutional. The Old Age Pensions Act has features which this does not possess.

Votes for the department of health, for the control of disease, are unconstitutional if this is unconstitutional. What about bonuses to agriculture which we have been giving to individuals all across the Dominion of Canada? Does my hon. friend argue that we have not power in this legislature to grant those bonuses?

Somebody has said that the encroachments of the dominion government upon provincial jurisdiction would reduce the provinces to the status of county councils. Let me tell you, were the legal philosophy that we have heard expressed this day sound, this parliament would have a lame jurisdiction. Parliament would not have the power of a municipal council to expend its own money for the benefit of its own taxpayers.

Mr. MARTIN:

Grants in aid of technical education.

Mr. ROEBUCK:

Yes, of course-technical education and vocational education.

And unemployment * insurance.

Mr. ROEBUCK:

And unemployment insurance, the Canada highway act, whereby we have granted millions; farm and fishery loans; the unemployment relief act, under which we have * expended hundreds of millions of dollars-all that falls by the same logic as does the act before the house to-day. The very comparison shpws that the contention is absurd.

What a mess my friends have got themselves into constitutionally in this argument! At present we are allowing income tax payers to deduct $108 per child from their taxes as a child allowance. Now the pith and substance of that legislation would not be altered were we to charge these people their full income tax and later return money to them by way of an allowance on behalf of the child. The pith and substance would be exactly the same. The constitution of Canada, Mr. Speaker, does not make a distinction between rich and poor, as apparently does the opposition in the House of Commons. If it is ultra vires to pay children's allowances to parents whose income is below $1,200 per year, then I say it is equally ultra vires to give allowances to parents whose income is over $1,200 per year. And if that is so, then the income tax act of this parliament is unconstitutional, and should be declared so by the courts.

I have not heard the hon. member for Lake Centre proposing that we refer all those acts

and all the legislation upon the statute books of Canada which is on a par with this act-I say, I have not heard him proposing that all this legislation be referred to the courts for a decision the tenor of which we know in advance. The courts of this country are busy institutions. We have no right to impose upon them tasks which are not bona fide or to ask them to resolve doubts that do not exist.

It has been suggested by the leader of the opposition-it is so indefinite that it is hard to put your finger on it-that family allowances be geared up in some way to individual needs. Apparently that is the suggestion of a bill which he would like to introduce were he in power, a bill to give children's allowances geared up to individual needs. I suppose he would send thousands of ladies with spectacles and long noses to inquire into the private family affairs of the people of this dominion.

Mr. GRAYDON:

Section 5 does that.

Mr. ROEBUCK:

No, it does not, not by a good deal. It only prevents abuse of the act; but my hon. friend suggests that he poke his unwelcome nose-

Mr. MACKENZIE (Vancouver Centre):

Tory nose.

Mr. ROEBUCK:

Tory nose, yes, into ten thousand homes inquiring, as a means test, into how much money they have, or how much salary is earned by the bread-winner. Well, I do not like it. I am sorry to point out to him that if the hon. member for Lake Centre is a good lawyer, then that, too, would be unconstitutional. As a matter of fact there is nothing suggested from the other side of the house that is constitutional if their theory of law is right. It is all unconstitutional, and we had better fold our tent like the Arab and quietly steal away. We are no longer a parliament able to dispose of our own revenue by giving it back to our own taxpayers.

However, there is this to be said-I have already referred to it-it is not to the leader of the opposition that one looks for authoritative statements of policy, but to the leader of the party.

Mr. MACKENZIE (Vancouver Centre):

Who is he?

Mr. ROEBUCK:

I do not know.

Mr. CASSELMAN:

You will when the election comes.

Mr. ROEBUCK:

I have read something in the newspapers about it. A convention may lay down general principles with regard to

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legislation, and from the speeches of leading members of a party you may get the drift of public opinion within that party; but when you want to know what legislation would be introduced by a party in opposition should it take office, you go to the statements of the leader; because it is the leader who has the power, when the party takes office, to implement his promises, not the leader of the opposition. The present leader of the opposition, therefore, does not count. He may look upon himself as a John the Baptist, but as a matter of fact he is a voice in the wilderness, a reed shaken by the wind.

Mr. MACKENZIE (Vancouver Centre):

Forty years, too.