References re The Weekly Rest In Industrial Undertakings Act, The Minimum Wages Act, And The Limitation of Hours of Work Act

References re The Weekly Rest In Industrial Undertakings Act, The Minimum Wages Act, And The Limitation of Hours of Work Act
Collection
Supreme Court Judgments
Date
1936-06-17
Report
[1936] SCR 461
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Cannon, Lawrence Arthur Dumoulin; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
References re The Weekly Rest In Industrial Undertakings Act, The Minimum Wages Act, And The Limitation of Hours of Work Act, [1936] S.C.R. 461
Date: 1936-06-17.
In the Matter of a Reference as to Whether the Parliament of Canada Had Legislative Jurisdiction to Enact the Weekly Rest In Industrial Undertakings Act, Being Chapter 14 of The Statutes of Canada, 1935; The Minimum Wages Act, Being Chapter 44 of The Statutes of Canada, 1935; and The Limitation of Hours of Work Act, Being Chapter 63 of the Statutes of Canada, 1935.
1936: January 23, 24, 27, 29, 30, 31; 1936: June 17.
Present: Duff C.J. and Rinfret, Cannon, Crocket, Davis and Kerwin JJ.
Constitutional law—The Weekly Rest in Industrial Undertakings Act, 25-26 Geo. V, c. U—The Minimum Wages Act, 25-26 Geo. V, c. U—The Limitation of Hours of Work Act, 25-26 Geo. V, c. 63—Constitutional validity—Treaty of Peace of Versailles, 1919—Art. 405 of the Treaty—League of Nations—Draft Conventions of the International Labour Conference—Approval of Treaty by Dominion Parliament—B.N.A. Act, s. 132—Property and civil rights—B.N.A. Act. s. 92.
The Weekly Rest in Industrial Undertakings Act, which gave effect to the Draft Convention of the International Labour Conference on that subject, applies to industrial undertakings as defined in art. 1 of the Draft Convention, and requires employers to grant a rest period of at least twenty-four consecutive hours in every seven days to all employees, with the exception of persons who hold positions of supervision or management or who are employed in a confidential capacity. The rest period is, wherever possible, to be granted to the whole staff simultaneously, and to coincide with the Lord’s Day as defined by the Lord’s Day Act, R.S.C. 1927, c. 123. The Minimum Wages Act is designed to give effect to the provisions of the Draft Convention concerning the creation of minimum wage-fixing machinery adopted by the International Labour Conference in 1928. By s. 4 (1), the Governor in Council, on the recommendation of the Minister of Labour, may create and by regulation provide for the operation, by or under the Minister, of machinery whereby minimum rates of wages can be fixed for workers in specified rateable trades. Employers and workers concerned are to be associated in the operation of such machinery in such manner as the Governor in Council may by regulation determine, but in any case in equal numbers and on equal terms. “Rateable trades” are defined in accordance with the terms of the Convention as “those trades or parts of trades (in particular, home-working trades) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low.” “Trade” includes manufacture and commerce and “worker” includes any employed person not under 16 years of age. By s. 4 (2), Minimum wages so fixed are to be binding on employers and workers concerned so as not to be subject to abatement by means of individual agreement, or, except with the general or particular authorization of the Minister, by collective agreement. The Limitation of Hours of Work Act gives effect to the Draft Convention of the International Labour Conference adopted in 1919, limiting hours of work in industrial undertakings as defined in article 1 of the Convention.
Held, per Duff C.J. and Davis and Kerwin JJ., that these Acts are intra vires of the Parliament of Canada; per Rinfret, Cannon and Crocket JJ., that they are ultra vires.
Per Duff C.J. and Davis and Kerwin JJ.—From two main considerations, the conclusion follows that legislative authority in respect of international agreements is, as regards Canada, vested exclusively in the Parliament of Canada. First, by virtue of section 132 of the British North America Act, jurisdiction, legislative and executive, for the purpose of giving effect to any treaty obligation imposed upon Canada, or any one of the provinces of Canada, by force of a treaty between the British Empire and a foreign country, is committed to the Parliament and Government of Canada. This jurisdiction of the Dominion the Privy Council held, in the Aeronautics case and in the Radio case ([1932] A.C. 54 and 304) is exclusive; and consequently, under the British North America Act, the provinces have no power and never had power to legislate for the purpose of giving effect to an international agreement: that, as a subject of legislation, is excluded from the jurisdiction envisaged by section 92. Second, as a result of the constitutional development of the last thirty years (and more particularly of the last twenty years) Canada has acquired the status of an international unit, that is to say, she has been recognized by His Majesty the King, by the other nations of the British Commonwealth of Nations, and by the nations of the world, as possessing a status enabling her to enter into, on her own behalf, international arrangements, and to incur obligations under such arrangements. These arrangements may take various forms. They may take the form of treaties, in the strict sense, between heads of states, to which His Majesty the King is formally a party. They may take, inter alia, the form of agreements between governments, in which His Majesty does not formally appear, Canada being represented by the Governor General in Council or by a delegate or delegates authorized directly by him. Whatever the form of the agreement, it is now settled that, as regards Canada, it is the Canadian Government acting on its own responsibility to the Parliament of Canada which deals with the matter. If the international contract is in the form of a treaty between heads of states, His Majesty acts, as regards Canada, on the advice of His Canadian Government.
Necessarily, in virtue of the fundamental principles of our constitution, the Canadian Government in exercising these functions is under the control of Parliament. Parliament has full power by legislation to determine the «conditions under which international agreements may be entered into and to provide for giving effect to them. That this authority is exclusive would seem to follow inevitably from the circumstances that the Lieutenant-Governors of the provinces do not in any manner represent His Majesty in external affairs, and that the provincial governments are not concerned with such affairs; the effect of the two decisions above referred to is that in all these matters the authority of Parliament is not merely paramount, but exclusive. The first of the two cardinal questions raised by the contentions of the provinces has two branches, and may be stated thus: Has Parliament authority to legislate for carrying out a treaty or convention or agreement with a foreign country containing stipulations to which effect can only be given by domestic legislation changing the law of the provinces (a) in matters committed by the British North America Act (in the absence of any such international agreement) to the legislatures of the provinces exclusively, and (b) in relation to such matters where they are ex facie of domestic concern only and not of international concern, such, for example, as the matters dealt with by the conventions to which effect is given by the statutes now before the Court: the regulation of wages and of hours of labour.
The view that the exclusive authority of Parliament extends to international treaties and agreements relating to such subjects rests on the grounds now outlined. (1) As touching the view advanced that the subject-matters of the stipulations in the international agreements in question are of exclusively domestic and not at all of international concern: the language of section 132 B.N.A. Act is unqualified and that section would appear prima facie to extend to any treaty with a foreign country in relation to any subject-matter which in contemplation, of the rules of constitutional law respecting the royal prerogative concerning treaties would be a legitimate subject-matter for a treaty; and there would appear to be no authority for the proposition that treaties in relation to subjects, such as the subject-matter of the status in question’ are not within the scope of that prerogative. Legislative authority to give effect to treaties within section 132 remained, of course, after the B.N.A. Act, down to the enactment of the Statute of Westminster in the Imperial Parliament, although by section 132, it also became and is vested in the Parliament of Canada; but, since the Statute of Westminster, no Act of the Imperial Parliament can have effect in Canada without the consent of Canada. The practice of modern times and, in particular, the provisions of the Covenant of the League of Nations embodied in the Treaty of Versailles would appear to demonstrate that by common consent of the nations of the world, such matters are regarded as of high international as well as of domestic concern and proper subjects for treaty stipulation. (2) As touching the view that the legislative authority committed to the Parliament and Government of Canada by section 132 (and by the introductory clause of section 91 in relation to international matters) does not extend to matters which would fall exclusively within the legislative jurisdiction of the provinces, in the absence of any international obligation respecting them, it is to be observed: First, section 132 relates inter alia to obligations imposed upon any province of Canada by any treaty between the British Empire and a foreign country. Section 132 obviously contemplates the possibility of such an obligation arising as a diplomatic obligation under such a treaty, even although legislation might be necessary in order to attach to it the force of law. In such case, the Parliament and Government of Canada appear to be endowed with the necessary legislative and executive powers. This provision with regard to the obligations of the provinces taken together with the generality of the language employed in section 132 would seem to point rather definitely to the conclusion that the view under consideration is not tenable. Secondly, the established practice of the Parliament of Canada and the decisions of the Courts in relation to that practice do not accord with this view. Statutes giving effect to the International Waterways Treaty (1911) with the United States, and the Treaty with Japan (1913) are instances in which treaties dealing with matters of civil right within the provinces and the management of the public property of the provinces were given the force of law by Dominion statutes. The legislation concerning the Japanese Treaty was held to be valid and to nullify a statute of the province inconsistent with it by the Judicial Committee of the Privy Council in Attorney-General for British Columbia v. Attorney-General for Canada, ([1924] A.C. 203).
The jurisdiction of Parliament to enforce international obligations under agreements which are not strictly “treaties” within section 132 is co-ordinate with the jurisdiction under this last named section.
It is contended by the provinces that the Dominion cannot, by reason merely of the existence of an international agreement (within section 132 or within the residuary clause) possess legislative authority enabling the Parliament of Canada to legislate in derogation of certain fundamental terms which, it is said, were the basis of the Union of 1867, and are expressly or impliedly embodied in the B.N.A. Act. For the purposes of the present reference, it is unnecessary to make any observation upon this contention further than what has already been said, viz., that the exclusive authority of the Dominion to give the force of law to an international agreement is not affected by the circumstances alone that, in the absence of such an agreement, the exclusive legislative authority of the provinces would extend to the subject matter of it.
The second of the cardinal questions requiring determination concerns the construction and effect of article 405 of the Treaty of Versailles.
The draft conventions now in question were brought before the House of Commons and the Senate, received the assent of both Houses in the form of resolutions, which resolutions approved the ratification of them, and the statutes in question were passed for the purpose of giving legislative effect to their stipulations, the operative clauses of the statute being in each case preceded by a preamble in which it is recited that the draft conventions have been ratified by Canada. The procedure followed, if we put aside the provisions of article 405, was the usual and proper procedure for engaging in and giving effect to agreements with foreign governments. The propriety of this procedure is questioned on the ground that under the special provisions of article 405, and especially those of paragraphs 5 and 7 of the article, it was an essential condition of the jurisdiction of Parliament to legislate for the enforcement of the conventions that the conventions should have been submitted to, and should have received the assent of, the provincial legislatures before the enactment of such legislation by Parliament.
Paragraphs 5 and 7 must be read together and, reading them together, it would appear that the “competence” postulated is the “competence” to enact legislation or to take other “action” contemplated by the article.
The obligations upon consent of the competent authority or authorities to ratify and, upon like consent after ratification, “to make effective the provisions of the convention” are both treaty obligations; and the authority or authorities competent to take legislative action where legislative action may be necessary to make the provisions of the convention effective would appear plainly to be included within the authority or authorities before whom it is provided that the draft conventions shall be brought.
It follows from what has been said that this treaty obligation is an obligation within section 132 and, consequently, that the authority to make the convention effective exclusively rests in the Parliament and Government of Canada and therefore, that the Parliament of Canada is, at least, one of the authorities before which the convention must be brought under the terms of article’ 405. The provincial legislatures may also be competent authorities within the contemplation of paragraph 5 of that article, but it is unnecessary to decide that question for the purposes of this reference.
The Governor General in Council is designated by the Treaties of Peace Act, 1919, enacted under the authority of section 132, to take all such measures as may seem to him to be necessary for the purpose of carrying out the Treaties of Peace and for giving effect to the terms of such treaties. He it was, therefore, upon whom devolved the duty of performing the obligation of Canada under art. 405 to bring the draft convention before the authority or authorities possessing “competence” under the Constitution of Canada. He it was also on whom devolved the duty to communicate to the League of Nations the ratification by Canada upon the assent of the competent authority or authorities. Moreover, the Parliament of Canada, possessing exclusive jurisdiction in relation to international agreements, the creation as well as the enforcement of them, declared, by the statutes now under examination, that the conventions in question were ratified by Canada. The executive authority, therefore, charged with the duty of acting for Canada in performing the treaty obligations, of submitting the conventions to the proper constitutional authorities and of communicating ratification to the League of Nations upon the assent of those authorities, and His Majesty the King in Parliament have, in effect, combined in declaring that the ratification was assented to by the proper constitutional authorities of Canada in conformity with the stipulations of art. 405. That would appear to be sufficient to constitute a diplomatic obligation binding upon Canada to observe the provisions of the conventions.
Per Rinfret J.—Apart from any consideration resulting from their aspect as laws intended to carry out the obligations of Canada under Draft Conventions agreed upon at general conferences of the International Labour Conference of the League of Nations, the subject-matter of these Acts is undoubtedly one in relation to which, under the Constitution of our country, the legislature in each province may exclusively make laws. It follows that, in order to support the validity of the Acts, the Attorney-General of Canada has the burden of demonstrating that, in the premises, the subject-matter of the disputed legislation has, for some special reason, been transferred to the jurisdiction of the Parliament of Canada.
The Acts cannot be supported as an exercise of the (legislative powers of the Dominion either to make laws for the peace, order and good government of Canada, or for the regulation of trade and commerce, or in relation to the criminal law. These conventions are not treaties within the meaning of section 132 of the B.N.A. Act, such as was the case in the Aeronautics Reference to the Privy Council ([1932] A.C. 54); nor are they conventions belonging to that class of conventions submitted to the Privy Council in the Radio Reference ([1932] A.C. 304). So that the judgments of the Privy Council in those two References do not constitute authorities in support of the Dominion Government’s or the Dominion Parliament’s power to act alone in the performance of the obligations deriving from conventions of the present character.
Besides that, both in the Aeronautics and in the Radio references, the Privy Council, at the same time as it declared that the validity of the legislation in respect thereto could be supported as an exercise of the power derived from section 132, B.N.A. Act, or from the residuary power to make laws for the peace, order and good government of the country, also came to the conclusion) that the subject of aeronautics and the subject of radio came under one or more of the enumerated heads of section 91 of the B.N.A. Act, which is not the case here.
But the critical point in the present reference is whether the Draft Conventions were competently ratified—a point which was not raised nor decided in the Aeronautics or Radio references.
A very great distinction must be made between the power to create an international obligation and the power to perform it when once it has been created.
Under the distribution of legislative powers, the subject matters of the three Acts now submitted are assigned to the exclusive jurisdiction of the legislature in each province under the head “Property and Civil Rights in the Province,” of section 92, B.N.A. Act. A civil right does not change its nature just because it becomes the subject matter of a convention with a foreign state. It is always the same civil right. It is not within the spirit of the Constitution that the Dominion Parliament might acquire exclusive jurisdiction over such matters merely as a consequence of the fact that the Dominion Government, in regard to them, decides to enter into a convention with a foreign power. It would be directly against the intendment of the B.N.A. Act that the King or the Governor General of Canada should enter into an international agreement dealing with matters exclusively assigned to the jurisdiction of the provinces solely upon the advice of the Federal Ministers who, either by themselves or through the instrumentality of the Dominion Parliament, are prohibited by the Constitution from assuming jurisdiction over these matters.
Moreover, article 405 of the Treaty of Versailles must be interpreted as requiring, in Canada, the consent and approval of the provinces before Draft Conventions of the nature of those now submitted can be properly and competently ratified by Canada as a member of the League of Nations.
In this Court, the question as to where lies the power to create an international obligation dealing with matters within the exclusive jurisdiction of the provinces is concluded by our decision on the reference Re: Legislative Jurisdiction over Hours of Labour ([1925] S.C.R. 505).
It follows that the Draft Conventions not having received the consent and the approval of the legislatures of the provinces, nor even of the provincial governments, were not properly and competently ratified; and the Acts adopted in relation to these Draft Conventions and allegedly for the purpose of performing the obligations arising under them are ultra vires of the Parliament of Canada.
Per Cannon J.—When an Act of Parliament is challenged before this Court as unconstitutional, the article of the Constitution which is, invoked should be laid beside the statute which is challenged in order to decide whether the latter squares with the former. The only power of this Court is to announce its judgment upon the question. This Court neither approves nor condemns any legislative policy. Its office is to ascertain and declare whether the legislation is in accordance with or in contravention of the provisions of the Constitution. The question is not what power the Federal Government ought to have, but what powers, in fact, have been given to it by the B.N.A. Act. There is in this country a dual form of government, and in every province there are two governments. Our country differs from nations where all legislative power, without restriction, is vested in a parliament, or other legislative body, subject to no restriction.
If any changes are required to face new situations or to cope with the increased importance of Canada as a nation, they may be secured by an amendment to the B.N.A. Act; but neither this Court nor the Privy Council should be called upon to legislate outside of its provisions.
The labour draft conventions in this case, binding Canada independently from the rest of the Empire, do not fall under section 132, B.N.A. Act; they were not even contemplated as feasible in 1867 when that Act was passed. Radio and aeronautics are also new matters not existing at that time and had to be dealt with by the Privy Council as outside the enumerated subjects of 91 and 92 B.N.A. Act; and these two decisions must be considered as arrêts d’espèce and confined to the subject-matters which both had necessarily interprovincial and international aspects.
But the payment of wages for labour, the weekly rest and the rate of wages and length of hours of work were well known subjects in 1887 and they were, by common agreement, reserved by the Imperial Parliament to the provinces as purely local and private matters of property and civil rights.
Therefore, in the words of section 405 of the Treaty of Versailles, Canada as a federal state has only a “power to enter into convention on labour matters subject to limitations” and the draft conventions should have been treated as “recommendation only.” Such recommendation is to be submitted to the members for “consideration with a view to effect being given to it by national legislation or otherwise.” The Versailles Treaty recognizes that in certain cases, effect can be given to a labour agreement “otherwise” than by national legislation. In these cases, it does not appear that either the recommendations or the draft conventions were submitted to the provinces, i.e., the “authorities within whose competence the matter lies for the enactment of legislation or other action”; and this is fatal to the validity of the ratification of these labour conventions by the Federal authorities. As an internal matter, such changes in the (respective constitutional powers of the provinces and of the Central Government cannot be justified’ by invoking some clauses of the Treaty of Versailles. Respect of their property and civil rights was guaranteed by the British Crown to the inhabitants of the original provinces as far back as the Treaty of Paris in 1763; this was confirmed by the constitution of 1867 which cannot be changed in this essential part except by an Imperial statute, as plainly set forth in the Act of Westminster of 1031, section 7. Therefore the Parliament and the Government of Canada cannot appropriate those powers, exclusively reserved to the provinces, by the simple process of ratifying a labour convention passed at Geneva with representatives of foreign countries. Neither’ the Governor General in Council, nor Parliament, can in any way, and specifically by an agreement with a foreign power, change the constitution of Canada or take away from the provinces their competency to deal exclusively with the enumerated subjects of section 92, B.N.A. Act. Before accepting as binding any agreement under section 405 of the Treaty of Versailles, foreign powers must take notice that this country’s constitution is a federal, not a legislative union.
Per Crocket J.—The Acts passed by the Dominion Parliament embody legislation which is directly aimed at the regulation and control of contracts of employment, private as well as public, in every province of the Dominion, and thus deal in a very real and radical sense with civil rights in all the provinces of Canada alike; and the fundamental question before this Court is whether there is any authority within the B.N.A. Act for the exercise of such legislative power by the Parliament of Canada.
None of the draft conventions of the International Labour Conference of the League of Nations, upon the ratification of which by the Government of Canada it has been sought to justify the enactment of this legislation, fall within the terms of section 132 of the B.N.A. Act. Even if the Treaty of Versailles were a treaty between the British Empire, as an undivided unit, and those foreign states, whose plenipotentiaries signed it, and not a treaty purporting to have been entered into by the self-governing Dominions of the Empire as separate governments, it could not be said that there was any obligation for the performance of which the Parliament of Canada was empowered within the terms of section 132 to enact legislation as pertaining to an obligation imposed by that treaty upon Canada or any province thereof, as part of the British Empire.
As regards the residuary clause of section 91, this provision can only be invoked where the real subject matter of the legislation does not fall within the classes of subjects which are exclusively assigned to the provinces by section 92; once it appears that the real purpose and effect of a Dominion enactment is to interfere with private and civil rights in the provinces and that in that aspect it consequently falls within the sphere of legislation which has been exclusively reserved for the provinces, not only by the provisions of section 92, but by the saving clause in the introduction of section 91, such an enactment cannot be justified under the general authority conferred on the Parliament of Canada. If such legislation could be maintained on the ground that it was for the peace, order and good government of Canada, it could only be by ignoring the explicit limitation, which is placed on the so-called general authority by the residuary clause itself with the obvious intention of preventing its application in the very sense now contended for, and thus protecting the provinces in the full enjoyment of their exclusive legislative rights as permanently guaranteed to them by section 91.
Although the Government of Canada must now be held to be the proper medium for the formal conclusion of international conventions, whether they affect the Dominion as a whole or any of the provinces separately, this fact cannot be relied on as altering in any way the provisions of the B.N.A. Act as regards the distribution of legislative power as between the Dominion Parliament and the provincial legislatures or as necessarily giving to any matter, which may be made the subject of legislation in Canada, any other meaning or aspect than that which it bears in our original constitution!. Whether such a matter is one which falls under the terms of either section 91 or of section 92 or of section 132, must depend upon the real intendment of the B.N.A. Act itself, as gathered from the terms of those sections and the Act as a whole.
The legislation embodied in these three statutes is legislation which the Parliament of Canada has enacted to give effect to the draft conventions of the International Labour Conference of the League of Nations. These conventions are admittedly conventions, to which the Government of Canada were in no manner bound to« assent or to formally ratify. They were submitted to the Government of this country as mere draft conventions, and stood as such until 1935, when the Government of Canada chose to approve them, several years after the expiration of the period fixed by article 405 of the Treaty of Versailles for their submission “to the authority or authorities within whose competence the matter lies for the enactment of legislation or other action.” The provision of article 405 of the Peace Treaty of Versailles is clearly mandatory and not merely directory and the ratification of the conventions, upon which these three statutes purport to be founded, is null and void under the terms of that article. However, the provisions of the B.N.A. Act, not the terms of the Treaty of Versailles, should be looked at for the answers to the questions submitted on this reference concerning the constitutionality of these three statutes; and, accordingly, they are ultra vires of the Parliament of Canada.
REFERENCES by His Excellency the Governor General in Council to the Supreme Court of Canada, in the exercise of the powers conferred by section 55 of the Supreme Court Act (R.S.C. 1927, c. 35), of the following questions: Are The Weekly Rest in Industrial Undertakings Act, The Minimum Wages Act and The Limitation of Hours of Work Act, or any of the provisions thereof and in what particular or particulars or to what extent, ultra vires of the; Parliament of Canada?
The Order in Council referring the questions to the Court read as follows: The Committee of the Privy Council have had before them a report, dated 31st October, 1935, from the Minister of Justice, referring to the following Acts contained in the statutes of Canada, 1935, namely—
The Weekly Rest in Industrial Undertakings Act, cap. 14;
The Minimum Wages Act, cap. 44; and
The Limitation of Hours of Work Act, cap. 63,
which were respectively passed, as appears from the recitals set out in the preambles of the said Acts, for the purpose of enacting the necessary legislation to enable Canada to discharge certain obligations declared to have been assumed by Canada under the provisions of the Treaty of Peace made between the Allied and Associated Powers and Germany, signed at Versailles, on the 28th day of June, 1919, and to which Canada, as part of the British Empire, was a signatory, and also under certain draft conventions concerning (a) the application of the weekly rest in industrial undertakings, (b) the creation of minimum wage fixing machinery, and (c) the limitation of hours of work in industrial undertakings, respectively adopted by the International Labour Conference in accordance with the relevant articles of the said Treaty.
The Minister observes that doubts exist or are entertained as to whether the Parliament of Canada had jurisdiction to enact the said Acts or any of them either in whole or in part, and that it is expedient that such questions should be referred to the Supreme Court of Canada for judicial determination.
The Committee, accordingly, on the recommendation of the Minister of Justice, advise that the following questions be referred to the Supreme Court of Canada, for hearing and consideration, pursuant to section 55 of the Supreme Court Act,—
1. Is The Weekly Rest in Industrial Undertakings Act, or any of the provisions thereof and in what particular or particulars or to what extent, ultra vires of the Parliament of Canada? 2. Is The Minimum Wages Act, or any of the provisions thereof and in what particular or particulars or to what exent, ultra vires of the Parliament of Canada?
3. Is The Limitation of Hours of Work Act, or any of the provisions thereof and in what particular or particulars or to what extent, ultra vires of the Parliament of Canada?
E. J. Lemaire,
Clerk of the Privy Council.
*The judgment of Duff C.J. and Davis and Kerwin JJ. was delivered by
Duff C.J.—The validity of the legislation is attacked on various grounds which will be stated presently.
The draft convention respecting minimum wage fixing machinery was adopted by the General Council of the Labour Organization of the League of Nations on the 6th. June, 1928, and a copy was communicated to Canada on August 23rd, 1928.
Resolutions declaring it to be “expedient that Parliament do approve of” the draft convention were passed by the House of Commons (on March 15th, 1935) and by the Senate (on April 2nd, 1935).
The draft convention was, under art. 7 thereof, transformed into a “convention,” by the assent of two members of the Labour Organization on the 14th June, 1930. On the 12th April, 1935, the Governor General, by Order in Council, ordered on behalf óf Canada that the convention “be confirmed and approved” and that “formal communication” f this confirmation and approval “be made to the Secretary General of the League of Nations.” On 25th April, 1935, the formal instrument of ratification was deposited with the Secretary of the League of Nations. The statute in controversy was assented to on the 28th of June, 1935, in which there is the following preamble:
Whereas the Dominion of Canada is a signatory, as part of the British Empire, to the Treaty of Peace made between the Allied and Associated Powers and Germany, signed at Versailles, on the 28th day of June, 1919; and whereas the said Treaty of Peace was confirmed by the Treaty of Peace Act, 1919; and whereas by article 23 of the said Treaty the signatories thereto each agreed that they would endeavour to secure and maintain fair and humane conditions of labour for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and by article 427 of the said Treaty it was declared that the well-being, physical, moral and intellectual, of industrial wage-earners is of supreme importance; and whereas a Convention concerning minimum wages was adopted as a Draft Convention by the General Conference of the International Labour Organization of the League of Nations in accordance with the relevant articles of the said Treaty, which said Convention has been ratified by Canada; and whereas it is advisable to enact the necessary legislation to enable Canada to discharge the obligations assumed under the provisions of the said Treaty and the said Convention, and to provide for minimum wages in accordance with the provisions of the said Convention, and to assist in the maintenance on equitable terms of interprovincial and international trade: Therefore His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:—
The immediate question put in precise form is this: Is the statute which, by its preamble, recites the adoption of the draft convention by the General Conference of the Labour Organization and the ratification of that convention by Canada, constitutionally effective, without the assent of the provinces, to alter the law of those provinces by bringing that law into conformity with the stipulations of the convention so ratified: the matter of these stipulations being, ex hypothesi, normally, (and saving certain specific fields of legislation with which we are not concerned) a subject matter of legislation within the ex-elusive competence of the respective provincial legislatures under section 92 of the B.N.A. Act?
The principal points now in controversy arise upon these contentions of the provinces:
First, that the Governor General in Council has no authority to enter into any international engagement; second, that, since the subject matter of the convention falls within the subdivision of s. 92, which relates to property and civil rights within the provinces, the assent of the provincial legislatures was an essential condition of a valid ratification under art. 405 of the Labour Part of the Treaty.
Third, that in view of the character of its subject matter, the provinces alone are competent to give the force of law to the Convention. We shall discuss in another place (in the reasons for the answers in the Reference concerning the Natural Products Marketing Act) (p. 403) the contention that the Dominion, independently of her powers in respect of international obligations, possessed authority in the circumstances of the time to enact the statute under the residuary power to make laws for the peace, order and good government of Canada.
As a step preliminary to the examination of the arguments addressed to us in support of these contentions, some brief observations upon the legislative and executive authority of the Parliament and Government of Canada in respect of international agreements may be useful.
An interesting and valuable account was presented in argument of the development of Dominion status within the British Empire or the British Commonwealth of Nations. Stages in that development are marked by the Imperial War Conference of 1917, the proceedings in the negotiation, the signature and the ratification of the Treaty of Versailles and of the Fisheries Treaty of 1923, by the Imperial Conferences of 1923, 1926 and 1930, and finally by the Statute of Westminster, 1931. At the moment it is sufficient to observe—as to status—that two fundamental characteristics of it are defined in unmistakeable words in the Report of the Imperial Conference of 1926:
* * * we refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relations may be readily defined. They are autonomous Communities within the British. Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.
Great Britain and the Dominions (1) are united by a common allegiance to the British Crown, and (2) are “autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs…and freely associated as members of the British Commonwealth of Nations.”
The possession of equality of status with Great Britain in respect of all aspects of external as well as domestic affairs is thus affirmed in language admitting of no dispute as to its intent or effect. This equality of status, as the report later explains, does not necessarily imply identity of function. It does, however, indisputably involve two very definite things. In the legislative sphere (subject to the disabilities imposed expressly or by necessary implication by the B.N.A. Act, and the Statute of Westminster, and to whatever restrictions may be implicit in her position as a member of the British Commonwealth of Nations owing a common allegiance to the Crown) the legislative authority reposed in the Parliament and Legislatures of Canada is plenary and embraces the whole field of external as well as domestic matters; and, in the executive sphere