Reference re legislative powers as to regulation and control of aeronautics in Canada

Reference re legislative powers as to regulation and control of aeronautics in Canada
Collection
Supreme Court Judgments
Date
1930-10-07
Report
[1930] SCR 663
Judges
Anglin, Francis Alexander; Duff, Lyman Poore; Newcombe, Edmund Leslie; Rinfret, Thibaudeau; Lamont, John Henderson; Cannon, Lawrence Arthur Dumoulin
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference re legislative powers as to regulation and control of aeronautics in Canada, [1930] S.C.R. 663
Date: 1930-10-07
In The Matter of a Reference as to The Respective Legislative Powers Under The British North America Act, 1867, of The Parliament of Canada and The Legislatures of The Provinces in Relation to The Regulations and Control of Aeronautics in Canada.
1930: April 10, 11; 1930: October 7.
Present: Anglin C.J.C. and Duff, Newcombe, Rinfret, Lamont, and Cannon JJ.
Constitutional law—Aerial navigation—Dominion and provincial jurisdiction—International Convention—Paramount, not exclusive, Dominion jurisdiction—Intra-provincial aviation within provincial jurisdiction—“Navigation and Shipping”—B.N.A. Act, 1867, ss. 91, 92, 132—Supreme Court Act, R.S.C., 1927, c. 35, s. 55—Aeronautics Act, R.S.C., 1927, c. 3—Convention Relating to the Regulation of Aerial Navigation of 1919—Air Regulations, 1920.
The Dominion Parliament has not, independently of treaty, jurisdiction to legislate on the subject of air navigation generally, the word “generally” being construed as equivalent to “in every respect”; and it did not, by the International “Convention relating to the Regulation of Aerial Navigation,” acquire, under section 132 of the B.N.A. Act, exclusive authority to legislate in such a way as to carry out the obligations the Convention imposes on Canada and its provinces. But the Dominion Parliament’s jurisdiction is paramount in the exercise of its authority to carry out these obligations.
The subject of intra-provincial aviation prima facie falls within the legislative jurisdiction of the provinces under one or other of the heads of section 92 of the B.N.A. Act.
The control of aeronautics does not come within the subject of “Navigation and Shipping” assigned to the Dominion by section 91 (10) of the B.N.A. Act.
The Dominion Parliament, in relation to aeronautics, has legislative control over aircraft and aerial navigation, so far as incidentally necessary, in connection with various matters assigned under specific heads of section 91, such as “The Regulation of Trade and Commerce,” “Postal Service,” “Militia, Military and Naval Service and Defence” and “Naturalization and Aliens.”
As to the questions 3 and 4, concerning the provisions of section 4 of the Aeronautics Act and the “Air Regulations” of 1920, the members of the court (except Newcombe J. who raised a preliminary question as to the propriety of answering these questions and Cannon J.), considered that they were bound by section 55 of the Supreme Court Act to answer the questions submitted as fully as the circumstances permitted and, after examining these provisions and regulations, up-held certain of them as valid and denied the validity of others.
Per Anglin C.J.C. and Newcombe, Smith and Cannon JJ.—Legislative jurisdiction over intra-provincial flying prima facie belongs to the provinces under sub-section 13 of section 92 (Property and Civil Rights).
Per Anglin C.J.C. and Newcombe J.—Dominion powers derived under section 132 of the B.N.A. Act should be liberally interpreted to include all such as are necessary or proper for achieving the purposes defined. The Dominion is, by that section, authorized to exercise these powers for performing its treaty obligations, and equally so for performing those of a province, irrespective of the question as to where the power would have resided if section 132 had not been enacted.
Per Anglin C.J.C. and Smith J.:—Although a province may effectively legislate for the performance of treaty obligations in regard to any matter falling within section 92 of the B.N.A. Act while the field is unoccupied by the Dominion (but not otherwise), Dominion legislation, being paramount, will, when enacted, supersede that of the province about such matters.
Per Anglin C.J.C. and Smith J.—The Dominion Parliament has legislative authority to sanction the making and enforcement of the Air Regulations, respecting the granting of licences to pilots and their suspension or revocation; the regulation, etc., and licensing of all aircraft; and also the licensing, inspection and regulation of all aerodromes and air stations described in the Convention, and, as to others, so far as may be necessary to prevent air navigators being confused or misled in locating and landing at aerodromes and air stations referred to in the Convention, or in reading ground markings made in pursuance of the Convention.
Per Duff, Rinfret and Lamont JJ.—The legislative jurisdiction of the provinces under s. 92 runs through the space above the surface of provincial territory as through the surface itself and the space below; and the matters comprised within the subject of aviation primarily fall within that jurisdiction.—”Navigation and Shipping,” within the meaning of Head 10 of s. 91, does not embrace that subject. The Dominion may exercise legislative jurisdiction in relation to aviation in the course of executing its authority over various matters which fall within certain of the enumerated heads of s. 91 or within the subject of Immigration (s. 95); it may also exercise such authority under s. 132 where the conditions exist under which that section comes into play. These conditions are, first, that there exists an obligation of Canada or of a province(as part of the British Empire) towards a foreign country arising under a treaty between the Empire and a foreign country, and, second, that the obligation relates to the subject of aviation or in some manner affects it. The powers arising under that section are given for performing such obligations, and can only be validly exercised in the performance of, and for the purpose of performing, them. Legislation enacted in the valid exercise of such powers takes effect notwithstanding any conflicting law of a province; the Dominion has full competence under s. 132 to give effect by legislation to the rules embodied in the Convention of 1919, and to take measures for the effectual enforcement of them.—Any conflicting or repugnant provincial rules would be superseded by such legislation. The Heads of s. 91 which come under consideration in answering the questions submitted are no. 5, the Postal Service; no. 7, Military, Militia and Naval Service and Defence; no. 11, Quarantine; no. 25, Naturalization and Aliens; no. 2, the Regulation of Trade and Commerce; no. 3, Raising of Money by any Mode or System of Taxation. Under these Heads, the Dominion is entitled to exercise legislative control over the use of aircraft in carrying mails; over the conditions under which goods, mails or passengers may be imported and exported in aircraft into or from Canada; in respect of (in this case, in conjunction with s. 132) the prohibition of the navigation of aircraft over prescribed areas; over landing places for aircraft entering Canada and the conditions of such entry; in relation to the Air Force. The specific question as to the authority of the Dominion to control aerial locomotion between the provinces does not arise under any interrogatory submitted, upon any construction of the interrogatories. Likewise, no question arises (upon any reasonably possible construction of any of the interrogatories) in relation to Dominion legislative authority (under Head 29 of s. 91) in respect of the exceptions defined in Head 10 of s. 92, in their application or possible application to “lines” or regular services of aircraft between two provinces; or in their application to such “lines” or regular services beyond Canada. S. 4 of the Aeronautics Act, which is a re-enactment of the statute of 1919, and must not be treated as new law, cannot be regarded as having been enacted under s. 132 for the purpose of giving effect to the Convention of that year, because the Convention did not come into force until after the passing of the statute. S. 4 proceeds upon the theory that the Dominion has, independently of s. 132, complete control over the subject of aerial navigation in every respect, and by that section the Minister is given unrestricted authority to regulate and control such navigation in all its aspects, and particularly, in relation to certain matters enumerated by way of example. Parliament herein professes to exercise an authority which it does not possess, and s. 4 is, in its entirety, ultra vires; and consequently, the regulations promulgated under it. Treating, however, interrogatory no. 3 as requiring the court to express its opinion as to the severable matters enumerated in s. 4, as subjects of legislative jurisdiction, and as to the authority of Parliament, in view of the Convention of 1919, or otherwise, to enact s. 4 in relation to such severable matters or any of them, then the answer to interrogatory no. 3 is that, as regards the matters specified above (which are among the severable matters particularized in s. 4) Parliament has jurisdiction under s. 91 or s. 95; as regards identification and inspection of aircraft, and as regards inspection of aerodromes and air stations, Parliament has jurisdiction, in view of the Convention of 1919, under s. 132. While legislation under s. 132, for performing the obligations of Canada under the Convention of 1919, might properly include regulations in relation to registration and certification of aircraft and licensing of personnel and air harbours, if aptly framed to secure the performance of such obligations, and limited to that, the unrestricted powers in relation to such subjects which Parliament professes to exercise by s. 4 are neither “necessary” nor “proper” for performing those obligations. Answering question no. 4 on a similar assumption, the regulations on the subjects mentioned are not aptly framed for the purpose of performing the obligations under the Convention of 1919. The vice of the principal regulations (speaking generally) is that they are too sweeping in character to fall within the category of legislation “proper or necessary” for performing these obligations. The precise answers to questions 3 and 4 are given in the judgment.
Per Newcombe J.—The language of section 132 does not require, either expressly or by necessary implication, nor does it suggest, that a province should thereby suffer diminution of the powers expressed in its enumerations or otherwise conferred, except to admit capacity, on the part of the Dominion, which, in relation to provincial obligations, is no more than concurrent, so long as these are not performed by the province. The case of obligations to be performed for which a province has become bound by treaty to a foreign country, though perhaps difficult to realize, is expressly provided for by section 132; and while, pending provincial non-performance, power is, by that section, conferred upon the Parliament and Government of Canada, the Dominion power cannot be interpreted as meaning to deprive the province of authority to implement its obligations. If that had been the intention it would have been expressed.
Per Newcombe J.—The right of way exercised within a province by a flying machine must, in some manner, be derived from or against the owners of the property traversed, and the power legislatively to sanction such a right of way appertains prima facie to property and civil rights in the province, although it may be overborne by ancillary Dominion powers, where they exist.
Per Newcombe J.—This court ought not to determine under the present procedure question no. 2 which involves the definition of treaty obligations and the ascertainment, judicially, of the interest of foreign sovereign parties to the Convention, who are unrepresented and cannot be convened, especially so, seeing that the interpretation of the Convention is, by its article 37, to be determined by the Permanent Court of International Justice, or, previously to the establishment of that court, by arbitration. The inadvisability of that question being answered should be called to the attention of the Governor General.
Per Cannon J.—The Dominion Parliament may have paramount legislative and executive power for performing the obligations of Canada, or any province thereof, under the Convention, but has not yet found it necessary or proper to exercise such legislative power. If the provinces refuse or neglect to do their share within their legislative ambit with sufficient uniformity to honour the signature of the Dominion, the latter, being compelled to do so, may pass necessary and proper legislation to perform treaty obligations.
Per Cannon J.—Aviation was not foreseen nor considered when the enumeration of section 91 was made; and the words “Property and Civil Rights” in section 92 are wide enough to give power to the provinces to legislate, with the required uniformity, to ensure safe and satisfactory regulation of aircraft throughout the Dominion and conform to the new requirements of international law since the sovereignty of each state over the air space above its territory was proclaimed in 1919.
REFERENCE by the Governor General in Council to the Supreme Court of Canada for hearing and consideration, pursuant to the authority of s. 55 of the Supreme Court Act, R.S.C., 1927, c. 35.
The facts and questions, as stated in the Order in Council, are as follows:
“The Committee of the Privy Council have had before them a report, dated 27th February, 1929, from the Minister of Justice, submitting that by the Air Board Act, Chapter 11 of the Statutes of Canada, 1919, (1st session), (which, with amendments thereto, is consolidated in the Revised Statutes of Canada, 1927, under the title of The Aeronautics Act, Chapter 3 of the said Revised Statutes), provision was made by the constitution under the authority thereof of a Board on Aeronautics (called the Air Board) and the vesting in the Board of the administrative duties and powers thereby given to it (which duties and powers were by the National Defence Act, 1922, Chapter 34 of the Statutes of Canada, 1922, vested, by way of transfer, in the Minister of National Defence), and by the Air Regulations, 1920, and amendments thereto, approved by the Governor in Council under the authority of the said Act, for the regulation and control in a general and comprehensive way of aerial navigation within Canada and over the territorial waters thereof.
“The Minister apprehends that this legislation was enacted by Parliament by reason not only of the expediency of making provision for the regulation of a service essentially important in itself as touching closely the national life and interests, but also of the necessity of making provision for performing the obligations of Canada, as part of the British Empire under the Convention relating to the regulation of Aerial Navigation which, drawn up by a Commission constituted by the Peace Conference at Paris in 1919, was, on 13th October of that year, signed by the representatives of 26 of the Allied and Associated Powers including Canada.
“This Convention was ratified by His Majesty on behalf of the British Empire on 1st June, 1922, and is now in force, as the Minister is informed, as between the British Empire and 17 other States.
“The Minister observes that the Air Regulations, 1920, conform in essential particulars to the provisions of the said Convention, and are designed to give effect to the stipulations thereof in discharge of the obligations of Canada, as part of the British Empire, towards the other contracting States.
“The Minister states that at the conference at Ottawa between representatives of the Dominion and the several Provincial Governments in the month of November, 1927, the representatives of the Province of Quebec raised a question as to the legislative authority of the Parliament of Canada to sanction regulations for the control of aerial navigation generally within Canada, at all events in their application to flying operations carried on within a Province; and it was agreed that the question so raised was a proper question for the determination of the Supreme Court of Canada.
“The Committee, therefore, on the recommendation of the Minister of Justice, advise that Your Excellency may be pleased to refer the following questions to the Supreme Court of Canada for hearing and consideration pursuant to the provisions of section 55 of the Supreme Court Act, R.S.C., 1927, chapter 35:—
“1. Have the Parliament and Government of Canada exclusive legislative and executive authority for performing the obligations of Canada, or of any province thereof, under the Convention entitled ‘Convention relating to the Regulation of Aerial Navigation’?
“2. Is legislation of the Parliament of Canada providing for the regulation and control of aeronautics generally within Canada, including flying operations carried on entirely within the limits of a province, necessary or proper for performing the obligations of Canada, or of any province thereof, under the Convention aforementioned, within the meaning of section 132 of the British North America Act, 1867?
“3. Has the Parliament of Canada legislative authority to enact, in whole or in part, the provisions of section 4 of the Aeronautics Act, chapter 3, Revised Statutes of Canada, 1927?
“4. Has the Parliament of Canada legislative authority to sanction the making and enforcement, in whole or in part of the regulations contained in the Air Regulations, 1920, respecting—
(а) The granting of certificates or licences authorizing persons to act as pilots, navigators, engineers or inspectors of aircraft and the suspension or revocation of such licences;
(b) The regulation, identification, inspection, certification, and licensing of all aircraft; and
(c) The licensing, inspection and regulation of all aerodromes and air stations?”
Section 4 of The Aeronautics Act, R.S.C., 1927, c. 3, reads as follows:
“4. Subject to approval by the Governor in Council, the Minister shall have power to regulate and control aerial navigation over Canada and the territorial waters of Canada, and in particular, but not to restrict the generality of the a foregoing terms of this section, he may, with the approval aforesaid, make regulations with respect to
(a) licensing pilots and other persons engaged in the navigation of aircraft, and the suspension and revocation of such licences;
(b) the registration, identification, inspection, certification and licensing of all aircraft;
(c) the licensing, inspection and regulation of all aerodromes and air-stations;
(d) the conditions under which aircraft may be used for carrying goods, mails and passengers, or for the operation of any commercial service whatsoever and the licensing of any such services; (e) the conditions under which goods, mails and passengers may be imported and exported in aircraft into or from Canada or within the limits of the territorial waters of Canada, or may be transported over any part of such territory;
(f) the prohibition of navigation of aircraft over such areas as may be prescribed, either at all times or at such times or on such occasions only as may be specified in the regulation, and either absolutely or subject to such exceptions or conditions as may be so specified;
(g) the areas within which aircraft coming from any places outside of Canada are to land, and the conditions to be complied with by any such aircraft;
(h) aerial routes, their use and control;
(i) the institution and enforcement of such laws, rules and regulations as may be deemed necessary for the safe and proper navigation of aircraft in Canada or within the limits of the territorial waters of Canada; and
(j) organization, discipline, efficiency and good government generally of the officers and men employed in the Air Force.
2. Any person guilty of violating the provisions of any such regulation shall be liable, on summary conviction, to a fine not exceeding one thousand dollars, or to imprisonment for any term not exceeding six months, or to both fine and imprisonment.
3. All regulations enacted under the provisions of this Act shall be published in the Canada Gazette, and, upon being so published, shall have the same force in law as if they formed part of this Act.
4. Such regulations shall be laid before both Houses of Parliament within ten days after the publication thereof if Parliament is sitting, and if Parliament is not sitting, then within ten days after the next meeting thereof. 1919, c. 11, s. 4; 1922, c. 34, s. 7.
The Air Regulations of 1920, which are referred to in the judgments now reported, are the following:
3. (1) Except aircraft flown only for the purpose of experiment or test within three miles of an airharbour, kites and fixed balloons, no aircraft shall fly unless it has been registered as herein provided. See I.C., Art. 6.
(2) This paragraph does not apply to aircraft duly registered in some other state or a foreign country with which Canada has made a Convention relating to interstate flying. (Amendment dated Jan. 15, 1924.)
4. Subject as hereinafter provided, the Air Board may define the conditions under which, and the mode in which aircraft may be primarily registered in Canada. New.
5. No aircraft shall be primarily registered in Canada unless it belongs wholly to a British subject or British subjects, or to a company which has been incorporated in His Majesty’s Dominions, and of which the president or chairman and at least two-thirds of the directors are British subjects. See I.C., Art. 7.
6. No aircraft shall be primarily registered in Canada while it is so registered in any other of His Majesty’s dominions, or in any foreign country, but it may be primarily registered in Canada upon cancellation of an earlier registration in such other Dominion or foreign country. See I.C., Art. 8.
7. No aircraft shall be primarily registered in Canada unless either it has been built or made in Canada or any customs duties which are or would become payable upon the importation of the aircraft into Canada have been paid. New.
8. (1) Upon every registration in Canada the Minister of National Defence shall assign to the registered aircraft a registration mark and shall grant a certificate of registration for which there shall be payable a fee of $5.
(2) In the event of any change in the ownership of an aircraft registered in Canada, then
(a) The registered owner shall forthwith notify the Department of National Defence, and
(b) The registration and certificate thereof shall lapse as from the date of such change of ownership. (Amendment dated Jan. 15, 1924.)
9. When a registered aircraft has been destroyed or permanently withdrawn from use, the registered owner shall as soon as possible notify the Department of National Defence accordingly, and the registration and the certificate thereof shall lapse as from the date of such notification.
(2) Certificates of registration shall not remain valid unless endorsed by the Minister of National Defence at intervals not exceeding twelve calendar months. (Amendment dated January 15, 1924.)
10. It shall be a condition of the primary registration in Canada of any aircraft that, upon the Governor in Council declaring that a national emergency exists or is immediately apprehended, every such aircraft shall be subject to requisition in the name of His Majesty by the Air Board or any officer of the Canadian Air Force, and upon being so requisitioned shall become the property of His Majesty, subject to its return or to the payment of compensation or to both as may be provided by law. New.
(2) The registration in Canada of any aircraft primarily registered in any of His Majesty’s dominions other than Canada shall be subject to the like condition unless, under the law of that one of His Majesty’s dominions in which the aircraft was primarily registered, it is subject to a paramount right to be requisitioned on His Majesty’s behalf. New.
11. Any certificate of registration of an aircraft may be suspended or cancelled at any time by the Air Board for cause. New.
12. (1) No aircraft registered in Canada shall fly beyond Canada unless it has been certified as airworthy by the Department of National Defence.
(2) Except private aircraft flying wholly within Canada, all aircraft registered in Canada shall be certified as airworthy by the Department of National Defence.
(3) Every aircraft entering Canada from abroad shall be in possession of a certificate of airworthiness issued by the proper authority of the foreign country or of the Dominion, Colony or Possession of His Majesty in which it is registered. (Amendment dated January 15, 1924.)
15. No aircraft required to be registered shall fly unless it bears the prescribed nationality and registration marks. See I.C., Art. 10. 16. In the case of an aircraft primarily registered in Canada the nationality mark shall be the letter “G” and the registration mark the assigned combination of four capital letters commencing with the letter “C.” The marks shall be painted in black on a white ground in the following manner:—
(а) On flying machines the marks shall be painted once on the lower surface of the lower main planes and once on the upper surface of the top main planes, the top of the letters to be towards the leading edge. They shall also be painted along each side of the fuselage between the main planes and the tail planes. In case the machine is not provided with a fuselage the marks shall be painted on the nacelle.
(b) On airships the marks shall be painted near the maximum cross section on both sides so as to be visible both from the sides and from the ground and on the upper surface equidistant from the letters on the sides.
(c) On balloons the marks shall be painted on two sides near the maximum cross section so as to be visible both from the sides and ground, and on the upper surface equidistant from the marks on the sides.
(d) On flying machines and airships the nationality mark shall also be painted on the right and left sides of the lower surface of the lowest tail planes or elevators and also on the upper surface of the top tail planes or elevators, whichever are the larger. It shall also be painted on both sides, of the rudder or on the outer sides of the outer rudders if more than one rudder is fitted.
(e) On balloons the nationality mark shall also be painted on the basket.
(f) The nationality and registration marks need in no case exceed eight feet in height, but subject to this provision shall be as hereafter specified.
(g) On flying machines the height of the marks on the main planes and tail planes respectively shall be equal to four-fifths of the chord, and in the case of the rudder shall be as large as possible. The height of the marks on the fuselage or nacelle shall be four-fifths of the depth of the narrowest part of that portion of the fuselage or nacelle on which the marks are painted.
(h) On airships the nationality marks painted on the tail plane shall be equal in height to four-fifths of the chord of the tail plane and on the rudder the marks shall be as large as possible. The height of the other marks shall be equal at least to one-twelfth of the circumference at the maximum transverse cross section of the airship. On balloons the height of the nationality mark on the basket shall be four-fifths of the height of the basket, and the height of the other marks shall be equal to at least one-twelfth of the circumference of the balloon.
(i) The width of the letters shall be two-thirds of their height and the thickness shall be one-sixth of their height. The letters shall be painted in plain block type and shall be uniform in shape and size. A space equal to half the width of the letters shall be left between the letters.
(j) Except in state and commercial aircraft, the nationality and registration marks shall be underlined with a black line. The thickness of the line shall be equal to the thickness of the letter and the space between the bottom of the letters and the line shall be equal to the thickness of the line.
(k) Where the nationality and registration marks appear together, a hyphen of a length equal to the width of one of the letters shall be painted between the nationality mark and registration mark.
(l) The nationality and registration marks shall be displayed to the best possible advantage, taking into consideration the constructional features of the aircraft. The marks must be kept clean and visible. See I.C., Annex A.
17. All aircraft, except kites, shall carry affixed to the car or to the fuselage in a prominent position a metal plate inscribed with the names and residences of the owners and the nationality and registration marks of the aircraft. See I.C., Annex A, I (d).
18. No place, building, or work shall be used as an airharbour unless it has been licensed as herein provided. New.
19. Licences to airharbours may be issued by the Air Board and may be made subject to such conditions respecting the aircraft which may make use of the airharbour, the maintenance thereof, the marking of obstacles in the vicinity which may be dangerous to flying and otherwise, as the Air Board may direct. New.
21. The licence of an airharbour may be suspended or cancelled by the Air Board at any time for cause and shall cease to be valid two weeks after any change in the ownership of the airharbour, unless sooner renewed to the new owner. New.
22. Every licensed airharbour shall be marked by day and by night as may be from time to time directed by the Air Board. See I.C., Annex F, II.
23. The owner of any licensed airharbour shall be permitted to charge for the use of the harbour or for any services performed only such fees as have been approved by the Air Board for such airharbour. The tariff shall be prominently posted up at the airharbour. New.
24. (1) No person shall without authority of the Air Board—
(а) mark any unlicensed surface or place with any mark or display any signal calculated or likely to induce any person to believe that such surface or place is an airharbour or emergency alighting ground;
(b) knowingly use or permit the use as an airharbour of any unlicensed place;
(c) knowingly use or permit the use of an airharbour for any purposes other than those for which it has been licensed.
(2) The onus of proving the existence of any authority or licence shall be upon the person charged. New.
25. No water-craft shall cross or go upon that part of the water area forming part of any seaplane station which it is necessary to keep clear of obstruction in order that flying machines may take off and alight in safety, having regard to the wind and weather conditions at the time, and every person in charge of a watercraft is guilty of a breach of these regulations if such craft crosses or goes upon such area after reasonable warning by signal or otherwise. New. 26. There shall be kept at every licensed airharbour a register in which there shall be entered immediately after the alighting or taking off of an aircraft a record showing the nationality and registration marks of such aircraft, the name of the pilot and the hour of such alighting or taking off. New.
27. (1) Every licensed airharbour, and all aircraft and the goods therein shall be open to the inspection of any customs or immigration officer or any officer of or other person authorized by the Air Board, but no building used exclusively for purposes relating to the construction of aircraft or aircraft equipment shall be subject to inspection except upon the special written order of the Chairman or Vice-Chairman of the Air Board. New.
(2) All state aircraft shall have at all reasonable times, the right of access to any licensed airharbour, subject to the conditions of the licence.
(Amendment dated Jan. 15, 1924.)
28. It shall be a condition of every licence to any airharbour that in case the Governor in Council declares that a national emergency exists or is immediately apprehended, the owner of such airharbour shall comply with such directions, if any, with respect to the use of the airharbour as may be given by the Air Board or an officer of the Canadian Air Force, subject only to the payment of such compensation as may be provided by law. New.
29. At every licensed airharbour the direction of the wind shall be clearly indicated by one or more of the recognized methods, e.g., alighting tee, conical streamer, smudge fire, etc. See I.C., Annex D, 40.
30. At every licensed aerodrome and seaplane station, if an aircraft about to land or leave finds it necessary to make a circuit or partial circuit, such circuit or partial circuit shall, except in case of distress, be left-handed (anti-clockwise),
(Amendment dated Jan. 15, 1924.)
31. At every aerodrome and seaplane station licensed for use by the public at night there shall at night be exhibited a red light to indicate a left-hand circuit or a green light to indicate a right-hand circuit. See I.C., Annex D., 46 (a).
32. Every licensed aerodrome shall be considered to consist of three zones when looking up-wind. The right-hand zone shall be the taking-off zone and the left-hand shall be the alighting zone. Between these two there shall be a neutral zone. If the centre of the aerodrome is marked, the taking-off and alighting zones shall commence fifty yards to the right and left respectively of the centre of such mark. I.C., Annex D, 44.
33. No person shall act as pilot of any aircraft or as navigator, engineer or inspector of any commercial aircraft, or of any aircraft primarily registered in Canada when flying outside Canada unless such person holds a certificate issued by the Air Board authorizing him to so act. See I.C.. Art. 12.
(2) This paragraph shall not apply,—
(a) to persons under instruction flying over water or, with the consent of the owner or owners, over an airharbour and such additional surrounding area as is approved by the Air Board, or (b) to pilots, navigators and engineers of aircraft registered in another contracting state, or a foreign country with which Canada has made a convention relating to interstate flying, who hold licences authorizing them to act as such, issued by the proper authority in the contracting state or foreign country in which the aircraft is registered.
(Amendment dated Jan. 15, 1924.)
34. (1) Certificates to pilots, navigators and engineers may be issued by the Air Board and may be limited in time and to flying only under specified conditions, for specified purposes, in specified types of aircraft, on specified routes or otherwise. New.
(2) Licences issued by a duly competent authority within His Majesty’s Dominions, Colonies or Possessions, to a pilot, navigator, or engineer shall for the purpose of these regulations have the same validity and effect as if they had been issued under these Regulations. (Amendment dated Jan. 15, 1924.)
35. Certificates to inspectors may be issued by the Air Board and may be limited in time, to specified types of aircraft, or otherwise. New.
36. A fee not exceeding $5 may be charged for any certificate issued under this Part IV. New.
37. No person who is not a British subject or a subject of a foreign country which grants reciprocal aeronautical privileges to Canadians on equal terms and conditions with subjects of such foreign country shall be issued with a certificate authorizing him to act as pilot, navigator, engineer or inspector of commercial or state aircraft.
38. A certificate issued to any pilot, navigator, engineer or inspector may be suspended or cancelled at any time by the Air Board for cause, including the failure to comply beyond Canada with the provisions of Parts V, VI, VII and VIII of these regulations. New.
116. Every aircraft carrying five persons or more and bound on a flight by night, or on a continuous flight overland between two points more than 300 miles apart, or on a flight over sea between two points more than 125 miles apart, shall have on board a person holding a navigator’s certificate. See I.C., Annex E, IV.
118. Every aircraft in flight shall have on board its certificate of registration, the certificate of airworthiness, if any, the licences of all the members of the crew requiring licences, the authority and licence for the equipment and working of the wireless installation, if any, and a journey log book containing the following particulars:—
(а) The category to which the aircraft belongs; its nationality and registration marks; the full name, nationality and residence of the owner; the name of the maker, the description and the carrying capacity of the aircraft.
(b) In addition for each journey:—
(i) A record of all signals and wireless communications and observations concerning navigation;
(ii) The names, nationality and residence of the pilot and of each of the members of the crew;
(iii) The place, date and hour of departure, the route followed, and all incidents of the journey, including a lightings. (Amendments dated January 15, 1924.) 124. (1) No aircraft of a state with which Canada has not concluded a convention relating to interstate flying and no foreign military aircraft shall fly over or alight in Canada except with the express written permission of the Minister of National Defence. (Amendment dated Jan. 15, 1924.)
(2) No aircraft shall engage in the carriage of persons or goods for hire between points in Canada unless it is registered as a commercial aircraft in Canada or in some other of His Majesty’s Dominions, Colonies or Possessions, nor shall any aircraft carry out any operation for remuneration or reward wholly within Canada unless it is registered as a commercial aircraft in Canada, in some other of His Majesty’s Dominions, Colonies or Possessions, or in a contracting State to the International Convention for Air Navigation. (Amendment dated April 12, 1924.)
L. Cannon K.C. and C. P. Plaxton K.C. for the Attorney-General of Canada.
F. D. Hogg K.C. for the Attorney-General of Ontario.
Aimé Geoffrion K.C. for the Attorney-General of Quebec.
F. H. Chrysler K.C. for the Attorney-General of Manitoba.
Anglin C.J.C.—I have had the advantage of reading the carefully prepared opinions of my brothers Newcombe, Smith and Cannon.
By s. 55 of the Supreme Court Act (R.S.C., 1927, c. 35), this court is required to “hear and consider”
Important questions of law or fact touching
(a) the interpretation of the British North America Acts, or
(b) the constitutionality or interpretation of any Dominion or provincial legislation; or
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised; or
(e) any other matter, whether or not in the opinion of the court ejusdem generis with the foregoing enumerations, with reference to which the Governor in Council sees fit to submit any such question;
* * * and any question touching any of the matters aforesaid, so referred by the Governor in Council, shall be conclusively deemed to be an important question * * *;
and it is declared to be
the duty of the Court * * * to answer each question so referred; and the Court shall certify to the Governor in Council, for his information, its opinion upon each such question, with the reasons for each such answer; * * * Lord Chancellor Haldane, in the British Columbia Fisheries Case, Attorney-General for British Columbia v. Attorney-General for Canada[1], contrasting the position of this court with that of the Judicial Committee of the Privy Council, trenchantly observed that
The business of the Supreme Court of Canada is to do what is laid down as its duty by the Dominion Parliament.
While I agree with Mr. Justice Newcombe that the advisability of propounding for the consideration of the court abstract questions, or questions involving considerations of debatable fact, is, to say the least, doubtful; that it is undesirable that the court should be called upon to express opinions which may affect the rights of persons not represented before it, or touching matters of such a nature that its answers must be wholly ineffectual in regard to parties that are not, and cannot be, brought before it (e.g., foreign governments); and that, where the court is asked to hear and determine any such question, it is entirely proper for it to represent to the Governor in Council the undesirability of its being called upon to do so (Attorney-General for Ontario v. Attorney-General for Canada[2], in the present instance I do not find in the questions submitted enough that is objectionable to justify the adoption of that course. On the contrary, as I understand the questions, they can be, at least partially, answered without going beyond the clear jurisdiction of the court or expressing an opinion upon any debatable matter affecting foreign governments. So far as concerns the interests of private parties in the several provinces, the questions submitted touch them only obliquely, inasmuch as they are directed to the respective legislative powers of the Dominion and the provinces. Such private interests are probably sufficiently represented by counsel for the several provinces concerned; but, if not, by subs. 4 of s. 55, the court is empowered to direct notice to any persons interested, or, where there is a class of persons interested, to nominate one or more persons as representatives thereof, and, by subs. 5, it may, in its discretion request any counsel to argue the case as to any interest which is affected and as to which counsel does not appear. I am, accordingly, unable to accept the view that there is here such absence, or non-representation, of parties interested as would justify our declining to answer the questions submitted.
As I read the opinions of my three learned brothers, they all agree that “the Convention relating to the regulations of Aerial Navigation,” dated the 13th of October, 1919, is “a treaty between the Empire and foreign countries,” within the meaning of s. 132 of the B.N.A. Act. They are also in accord in regarding intra-provincial aviation as, prima facie, a matter of provincial legislative jurisdiction and as falling within the purview of s. 92 (13) of the B.N.A. Act; and I share those views.
When it comes, however, to the question of how far, and under what circumstances, Dominion legislative power supersedes that of the provinces in regard to aviation, my learned brothers differ, toto coelo. While Newcombe and Cannon JJ. recognize the power of Parliament, under s. 132, to legislate
* * * for (the) performing (of) the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries arising under treaties between the Empire and such foreign countries,
they are not prepared to admit that that power involves or implies the supersession of provincial by Dominion legislation under the circumstances of the case now before us.
My brother Smith, while of the opinion that the power of Parliament, under s. 132, is not “exclusive”, but merely “paramount” (so far Cannon J. agrees), holds the view that the circumstances of the present case, as disclosed in the record, justify its exercise regardless of any provincial legislation, existing, or proposed, or possible. My brother Cannon, on the other hand, thinks that, in regard to matters of provincial legislative competence, the power conferred on Parliament by s. 132 arises only in the absence of adequate provincial legislation, and that Parliament may not anticipate failure or refusal on the part of any province to pass “necessary or proper” legislation for performing its obligations under the treaty, or that identic legislation (and regulations) will not be enacted by the legislatures of the several provinces interested. Mr. Justice Newcombe, I understand, shares the views of my brother Cannon in this regard. My brother Newcombe, as I read his judgment, is further of the opinion that questions nos. 1 and 2 cannot be answered without first ascertaining in detail the precise obligations imposed by the treaty on Canada, or any of its provinces, and that this court should not be called upon to answer these questions because of the fact that the other contracting parties, viz., the foreign governments concerned, are not before it. If I found it necessary to interpret in detail the entire Convention, I would be disposed to accept my brother Newcombe’s view; but, in my opinion, it is necessary only to envisage the Convention as a whole, to ascertain its general tenor and to discern its obvious purpose and to determine a very few of the outstanding obligations imposed by it in terms so clear that their meaning admits of no dispute, and, therefore, does not require interpretation.
With regard to the power of Parliament to implement any term of a treaty, it is entirely competent to, and, indeed, it is the duty of this court, explicitly imposed by s. 55 (d) of the Supreme Court Act, to advise the Government of Canada, if duly called upon to do so, as to the meaning and effect of such treaty and as to the right of Parliament to enact legislation necessary to carry it out, whether or not the government proposes to legislate in regard thereto.
I agree with the view taken by my brother Smith as to the obligations of Canada (and its several provinces) created by the treaty in question, so far as he has found it necessary to define them, and with his conclusion as to the powers of Parliament under s. 132 of the B.N.A. Act with respect thereto.
The first question submitted, it will be noted, is framed almost in the language of s. 132, although it omits some significant phrases thereof and inserts words which may be regarded as important. For instance, the word “exclusive” is inserted. The word “exclusive” is not found in the section. Again, for the words “all powers necessary or proper” are substituted the words “legislative and executive authority”; the words of the section “as part of the British Empire, towards foreign countries” are omitted; and for the words of the section “arising under treaties between the Empire and such foreign countries” are substituted the words “under the Convention entitled ‘Convention relating to the Regulation of Aerial Navigation’”.
It will be perceived that the word “exclusive” appears to introduce an idea quite foreign to s. 132 and not warranted by anything which that section contains. I agree with the view of my brother Smith that, if the question is to be answered in the affirmative, the word “paramount” must be substituted for “exclusive”. It might also be better to insert the words “as part of the British Empire, towards Foreign Countries” immediately after the word “thereof”, so as definitely to limit the question and answer to the very matter dealt with by s. 132.
I fail to appreciate my brother Newcombe’s difficulties in regard to the meaning and scope of question no. 2, and as to the right and duty of this court to hear and consider it and to express its opinion to the best of its ability upon the matter thereby submitted to it. While the Judicial Committee is, no doubt, in a position, as it did in the British Columbia Fisheries Case,[3] to decline to answer questions which it thinks cannot conveniently be dealt with, this court has no such discretion. As to it, the statute is imperative.
Question no. 2 is distinctly directed to the validity of legislation of the character described, under the authority of s. 132 of the B.N.A. Act. The general application of the maxim audi alteram partem is beyond dispute. But, in a question of legislative power as between the Dominion and its provinces, submitted to the court by the Governor General in Council, the provinces are “the other party”—and they have been heard. As pointed out by my brother Smith, s. 37 of the Convention provides for the adjudication of disputes between contracting parties to it as to its interpretation. Nothing which this court may do in the present reference can affect any such matter.
My three brothers are also in accord with regard to the legislative control of Parliament over aircraft and aerial navigation in connection with various matters assigned by s. 91 of the B.N.A. Act to the Dominion, such as military and naval service, defence, postal service, customs, aliens, regulation of trade and commerce, etc. How far the exercise of powers necessarily incidental to such control may be made effectual, without regulating and controlling aeronautics generally, is, to say the least, questionable; but question no. 2, as I read it, is not directed to that aspect of the case, but rather to the bearing of s. 132 of the B.N.A. Act upon Dominion legislative jurisdiction. In this connection, my brother Newcombe very properly observes that
Dominion powers derived from s. 132 should be liberally interpreted to include all such as are necessary or proper for achieving the purposes defined * * * irrespective of the question as to where the power would have resided if s. 132 had not been enacted.
My brother Smith also agrees with Newcombe and Cannon JJ. in holding that the control of aeronautics in no sense comes within the subject of “Navigation and Shipping” assigned by s. 91 (10) of the B.N.A. Act to the Dominion. In that view I entirely concur.
While it is quite true that the Dominion Act of 1919 antedated the Convention under consideration, and, consequently, cannot be regarded as having been enacted by Parliament in the exercise of its jurisdiction conferred by s. 132 as legislation
necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries
under that Convention, as Mr. Justice Cannon points out, the statute which we have to consider, is not the Act of 1919, but c. 3 of R.S.C., 1927, which became law on the 1st of February, 1928, long after the date of the Convention. So far as this legislation implements the Conventional obligations its validity may probably be upheld under s. 132 of the B.N.A. Act.
I understand Mr. Justice Cannon to concur in the view of Mr. Justice Smith that
Parliament and the Government of Canada have paramount, though not exclusive, jurisdiction to legislate for the performance of all treaty obligations of Canada or any province thereof under the Convention.
Mr. Justice Cannon, however, adds that
Parliament has not yet found it necessary or proper to exercise this legislative power.
With deference, J can hardly accede to this latter view.
Dealing with s. 4 as giving to the Minister single and complete control over aerial navigation throughout Canada and the territorial waters of Canada in all respects, followed by enumeration of certain matters by way of illustration merely, such enumeration being preceded by the words “and in particular, but not to restrict the generality of the foregoing terms of this section,” I would answer question no. 3 in the negative. But, I agree with my brothers Smith and Newcombe that it is scarcely possible fully to answer question no. 3 if it requires consideration in detail of each enumerated subhead under subs. 4. The regulations adopted by the Governor General in Council, under the provisions of s. 4 of the Aeronautics Act (R.S.C. 1927, c. 3) are so general and comprehensive in their terms that it would require minute and meticulous consideration of each of them before deciding whether or not it is necessary or proper in order to implement some treaty obligation within s. 132 of the B.N.A. Act, or may be defended as an exercise of power necessarily incidental to some one of the enumerated heads of Dominion legislative jurisdiction under s. 91. I cannot, however, think that it was intended by question no. 3 to involve the court in such a detailed and minute examination of each particular regulation enacted under s. 4—still less of the possibilities under all the subheads of s. 4. Adequate argument was not directed to such details either of the section or of the regulations. I, therefore, refrain from further discussion of these matters.
As has been stated, legislative jurisdiction over intraprovincial flying—and there must be a great deal of it—prima facie belongs to the provinces under s. 92 (13), and it is only where legislation by the Dominion can be justified, either as falling directly within an enumerated head under s. 91, or as necessarily incidental to such a head, or in so far as the subject of aeronautics can be said to be of such Dominion-wide importance that provincial legislative jurisdiction over it may be regarded as ousted, or because it falls within the purview of s. 132, that such Dominion legislation can be held valid.
In order to avoid possible misapprehension, I should, perhaps, add that, in so far as the questions submitted are directed to legislative capacity of the Dominion Parliament, I am not satisfied that the establishment and maintenance of a line of aircraft covering an international or interprovincial route is not an “undertaking” within the meaning of subs. 10 (a) of s. 92 of the B.N.A. Act. Moreover, it is possible that although lines of air transportation are not physical works, the construction, maintenance and operation of flying machines may be regarded as “works” within the meaning of clause (c) of subs. 10 of s. 92. That aspect of the case, however, was not fully dealt with at bar, and, therefore, I do not give it further consideration.
As to question no. 4, I agree with the views thereon expressed by my brother Smith.
I certify the foregoing to be my opinion (and reasons therefor) upon the four questions herein submitted for hearing and consideration of the Court by His Excellency the Governor in Council.
The answers of Mr. Justice Duff (concurred in by Rinfret and Lamont JJ.) to the interrogatories submitted.
Question 1
To question 1, the answer is in the negative.
Question 2
To question 2, construing the word “generally” as meaning “in every respect”, the answer is in the negative.
Question 3
Reading section 4, as I think it ought to be read, as conferring a single indivisible authority to regulate and control, in every respect, aerial navigation over Canada, with an enumeration by way of illustration of particular matters falling within this authority, the answer to question 3 is in the negative.
Assuming, on the other hand, as some of my brethren think, that the question requires us to consider the matters mentioned in the enumerated sub-heads as severable fields for the operation of the power, and the section as comprising distinct enactments, in relation to each of these severable matters, enacted in view of the Convention relating to aerial navigation, 1919, the answer to question 3 is partly in the negative and partly in the affirmative.
In relation to the matters mentioned in sub-paragraphs (a), (h) and (i), such enactments would be invalid.
In relation to the matters within sub-paragraph (b) such enactments would be valid in respect of “identification” and “inspection”, and in other respects invalid. In relation to the matters within sub-paragraph (c) such enactments would be valid as respects “inspection” and in other respects invalid.
In relation to the matters within sub-paragraph (d) such enactments would be valid as respects the subject the carriage of mails, in other respects invalid.
In relation to the matters within sub-paragraph (e) such enactments would be valid in so far as concerns
the conditions under which goods, mails and passengers may be imported and exported in aircraft into or from Canada, or within the limits of the territorial waters of Canada;
and in so far as concerns the second part,
the conditions under which goods, mails and passengers * * * may be transported over any part of such territory,
such enactments would, in relation to the subject the transport of mails, be valid, but in relation to other matters, invalid.
In relation to the matters within sub-paragraphs (f), (g) and (j), the enactments would be valid.
Question 4
Treating this question on the assumption that it requires us to consider whether the regulations referred to, or any of them, (and, if so, which) are susceptible of legislative sanction under section 132 (in view of the Convention of 1919) or under any other power vested in the Dominion Parliament, the answers are as follows:
Sub-paragraph (a).
The regulations which deal specifically with the subjects mentioned in this paragraph are those numbered 33 to 38.
Regulation 33 would be valid in so far as it relates to flying outside Canada; but invalid in so far as it relates to commercial aircraft generally. Regulations 34 to 38, inclusive, are subsidiary regulations and would be valid if associated with a valid principal regulation.
Regulations 116 and 118 are also subsidiary regulations as to which the answer is the same.
Sub-paragraph (b).
Regulations 3, 4, 124 (2) and 10 would be invalid. Regulations 5 and 6 would be valid. Regulations 7, 8, 9, 11, 15, 16 and 17 are subsidiary regulations which would be valid if associated with a valid principal regulation. Subsections 1 and 3 of regulation 12 would be valid, and subsection 2 of that regulation invalid.
Sub-paragraph (c).
Regulations 18 to 32 deal specifically and substantively with the licensing, inspection, and in some respects with the regulation, of air harbours. The principal provisions are regulations 18, 19, 22, 23 and 24. These regulations would be invalid. Regulations 21 and 26 are subsidiary regulations, which would be valid if attached to a valid principal regulation. Regulations 25 and 29 to 32, inclusive, would be valid. Regulation 27 (1), dealing with inspection of air harbours and construction buildings would be valid. Subsection 2 of regulation 27 would be invalid. Regulation 28 would be invalid.
The judgment of Duff, Rinfret and Lamont JJ. was delivered by
Duff J.—The view presented by the Solicitor General of the questions raised by the interrogatories, which it is our duty to answer, was based primarily upon the proposition that the Dominion possesses authority to legislate upon the subject of aeronautics, in every respect, and that this authority is exclusive, or, at all events, over-rides any law of a province.
This proposition is supported upon a variety of grounds. It is contended that, in their very nature, the matters embraced within that subject cannot be local, in the provincial sense, and that accordingly the subject is beyond the ambit of section 92; that, in the alternative, it falls within one of the enumerated heads of 91, no. 10 Navigation and Shipping; that, as a sort of further alternative, so many aspects and incidents of the subject fall within various enumerated heads of section 91, such as the regulation of trade and commerce, undertakings extending beyond the limits of a province, customs, aliens, beacons and lighthouses, postal service, defence, ferries, or under immigration (s. 95), that the subject must as a whole be treated as within Dominion jurisdiction, that being, it is argued, the only interpretation under which the undoubted authority of the Dominion over the various aspects of the subject can be effectively exercised. Still again, it is said, the authority of the Dominion under section 132, to legislate for the performance of its obligations under the Convention relating to Aerial Navigation, 1919, extends over the whole field.
I am unable to agree that “navigation and shipping” would, “according to the common understanding of men,” embrace the subject of aeronautics. Nor can I agree that aerial navigation as a subject for legislation is outside the purview of s. 92 of the British North America Act, as not comprising matters which are provincial within the contemplation of that section. The provincial jurisdiction under heads 10 to 16 extends through the air space above, as well as the soil below; and the control of the province over its own property is as extensive in the case of aerodromes and aircraft as in the case of garages and automobiles. The employment of aircraft for survey, exploration, inspection and patrolling, in the management of the public domain, for police purposes, and in the interests of public health (head 7), is as strictly a provincial matter as the employment of any other local agency for such purposes. Primarily the matters embraced within the subject of aerial navigation fall within section 92.
The argument that because the Dominion has authority to legislate in relation to this subject, in several, it may be many, aspects, it therefore has authority to appropriate the whole subject to itself, is one which in various forms has been often advanced; and always rejected. It really amounts to this, that it would have been simpler and more convenient if the subject had in terms been committed to exclusive jurisdiction of the Dominion Parliament. As for section 132, the provisions of the Aeronautics Act, and the regulations thereunder, must be considered in relation to the undertakings embodied in the Convention for the purpose of testing the Dominion contention.
Section 4 of the Aeronautics Act confers upon the Minister a single, indivisible authority to regulate and control aerial navigation in Canada. What I have just said will indicate my reasons for the conclusion that it is not competent for the Dominion to exercise or authorize the Minister to exercise such a comprehensive control over that subject. In my own view, that is sufficient to dispose of question 3. But it is thought by some of my colleagues that each of the sub-paragraphs of section 4 may be treated as comprising severable fields of legislation, and that the section may be considered as involving distinct enactments in the terms of the principal clause applying to each of the severable matters therein comprised; and that by the question we are directed to say to what extent the Dominion might now authorize the Minister to exercise unrestricted control over these several matters under the powers conferred by section 132 (in view of the Convention of 1919) or under any other powers vested in the Dominion Parliament.
The section was originally enacted before the Convention came into effect and could not therefore be treated as passed in execution of any power under section 132. As reproduced in the Revised Statutes, 1927, it does not take effect as the re-enactment of a new law, and to the extent to which it was invalid in 1919, it is invalid to-day. Nevertheless some of my brethren think it is our duty to examine the sub-clauses of section 4 with a view to ascertaining to what extent the section, if enacted to-day, and with reference to the Convention of 1919, could take effect as law.
While I do not agree that this course is in conformity with the purport of the question, the point is not free from doubt, and therefore I shall proceed to discuss the questions raised by the interrogatory when so interpreted.
It will be convenient to consider, first of all, some of the matters of primary importance embraced within the subparagraphs of section 4. The most important of all are those falling within sub-paragraphs (a) (b) and (c). An unrestricted power of regulation and control is conferred upon the Minister. Such a sweeping authority in relation to the matters within these sub-paragraphs could be derived from no section or sections of the British North America Act other than section 132; and it is necessary therefore to consider whether, under that section, Parliament possesses such authority in itself, or can invest the Minister with it, in consequence of the obligations undertaken by the Dominion under the Convention.
The question in concrete form is whether the power to give the force of law to section 4 in relation to such matters is a power necessary or proper for performing the obligations of Canada under the Convention.
One observation should be made here. The powers under that section are given for performing (in the concrete case before us) the obligations under the Convention; and, in this connection, can be validly exercised only in the performance of, and for the purpose of performing, these obligations.
The subject of paragraph (a) is the licensing of personnel, which is dealt with by article 12 of the Convention. Under article 12, when read with Annex E, the obligation of each of the contracting states is to enforce in respect to certificates and licences, the conditions set forth in Annex E as regards international traffic, and, as regards domestic traffic, to enforce such conditions, not more stringent than those stated in Annex E, as the contracting state may deem adequate to ensure the safety of air traffic. No argument seems to be needed to shew that for performing that obligation the Dominion does not require an unrestricted authority to regulate and control the licensing of personnel in all respects; which would include power to select licensees upon some principle having no relation to the safety of air traffic, or indeed, to any of the conditions laid down in Annex E.
It is convenient to refer to regulation 33, which seems broadly to require a certificate from the Air Board to entitle anybody to act as pilot, engineer or inspector of any commercial aircraft, or of any Canadian aircraft flying outside Canada. It would be inadmissible to suppose that regulations 33 to 38 contemplate the issue, upon demand, of a certificate to any applicant; and indeed the enactment of regulations to that effect would constitute a grave departure from the requirements of Annex E.
The regulations appear to leave the conditions upon which licences may be granted to the unlimited discretion of the Air Board, which conditions might be framed without any reference to article 12 or Annex E. Clearly regulations 33 to 38 on any construction of them, could not be validly sanctioned under the powers given under section 132 to legislate for the performance of the obligations mentioned. Sub-paragraph (b) of section 4 deals with registration, identification, inspection, certification and licensing of aircraft. Let us first consider registration. There is an implied duty to provide for registration in accordance with the provisions of section 1 (c) of Annex A of the Convention. The main purpose of registration under the provisions of the Convention is to provide facilities for identification. There is no duty, arising out of these provisions, to impose conditions other than those indicated in the Annex. There is nothing in that part of the Convention requiring legislation in the terms of section 4, or in the terms of regulations 3 and 4, the effect of which is, that aircraft may be registered only on compliance with the conditions defined by the Air Board, and that registration is a condition of the right to fly. These regulations as they stand could not be validly sanctioned under section 132.
As to certification and licensing of aircraft, the Convention imposes no duty as to such certificates, except in relation to international navigation. No duty arises out of the Convention which would enable the Dominion to sanction the sweeping enactment of section 4 in relation to the certification and licensing. Regulation 12 (2) seems to require a certificate of air worthiness in respect of commercial aircraft and provincial aircraft registered in Canada. By regulation 13, such certificates may be issued upon compliance with specified conditions. In the result, such aircraft may not be registered, and consequently will not be permitted to fly, unless certified as air worthy upon conditions prescribed by the Air Board. These regulations are rather obscurely worded, but this seems to be the practical effect of them. There is no obligation, under the Convention, that is to say, no express obligation, to require such certification as a condition of domestic flying, and it is difficult to discover on what ground the condition imposed by these regulations, which affects all commercial aircraft flying in Canada, and all provincial aircraft, can be justified. The regulation as it stands would not be a valid one.
Sub-paragraph (c) deals with the licensing, inspecting and regulation of aerodromes and air-stations. No obligation arises under the Convention, which requires, for the performance of it, the unrestricted power of regulation in relation to these subjects given by section 4. In truth, the only undertakings on the subject of aerodromes and air-stations in the body of the Convention are undertakings against discrimination and as to places fixed for the landing of foreign aircraft; while certain duties respecting aerodromes arise out of the rules in Annex D. But there is no obligation under the Convention, the performance of which would require the enactment of sub-paragraph (c) or of regulations 18 and 19.
It seems to be sufficiently clear that neither subsections (a), (b) and (c) of section 4 which were enacted before the Convention were concluded, nor the regulations made under that section were framed with a view to providing for the performance of obligations undertaken or to be undertaken by Canada in the Convention. They appear to be framed on the theory, which the Dominion now supports as the true view, that the Dominion Parliament possesses authority to control aerial navigation in all respects. The result is that we have regulations which are framed too broadly to go into effect under section 132 of the British North America Act; but although these enactments and regulations could not now be validly sanctioned under the powers conferred by section 132, it does not follow that the Dominion may not exercise under that section very considerable powers of regulation in respect to the matters enumerated in sub-paragraphs (a), (b) and (c) of section 4. Indeed there seems to be no room for doubt that for the purpose of procuring the observance of its valid regulations, regulations, that is to say, framed for the purpose of securing the observance of its undertakings under the Convention and regulations put into force under the powers arising under section 91, the objects aimed at by the regulations of 1919 could be very largely, if not entirely, accomplished. For example, article 25 of the Convention imposes upon the Dominion a duty to take measures to insure the observance of the regulations contained in Annex D, and the prosecution and punishment of persons contravening these regulations. I can see no reason to doubt, if the Dominion considered it a suitable measure for implementing its obligations under article 25 to require, as a condition of registration, that aircraft should in design and otherwise be adapted and equipped for the observance of the rules laid down in Annex B, that such a condition might properly be exacted. To exact such a condition or other conditions aptly designed to secure the performance of obligations under the Convention, and limited to that, would of course be a vastly different thing from legislation in the form of regulations 3 and 4, which leave the conditions of the right to register, that is to say, of the right to fly, to the unbridled discretion of the Air Board. So with regard to air harbours, it is competent to the Dominion in order to secure the observance of the rules in Annex D, to require aerodromes to perform the duties expressly or impliedly imposed upon them by that Annex. For this purpose, it would be within the power of the Dominion to prohibit the use of, or suspend the use of, any locality as an aerodrome, where these duties were disregarded, and to take proper measures to maintain such control over such aerodromes as would enable the Government to make its decrees effective; and it would also seem a reasonable and proper measure, for this purpose, to require the licensing of aerodromes under such conditions as to granting licences or as to the suspension or rescission of them as should appear to be calculated to secure this object. It would, of course, be competent to the Dominion, in licensing aerodromes as landing places for aircraft entering the country, to enact such conditions as it might see fit; as well as to provide for the observance at all aerodromes of the undertakings against discrimination in charges or in facilities under article 24 of the Convention. Furthermore, I do not doubt the power of the Dominion to control the use of aerodromes in such a way as to prevent the frustration of the rules of Annex D, and, for this purpose, to prescribe conditions as to the granting suspension and cancellation of licences. I have already stated my views as to the obligations incurred by the Dominion with respect to the conditions to be imposed in respect of the licensing of personnel. As I have said, the Dominion, in my judgment, is entitled to exact, as a condition of the granting of such a licence, the minimum conditions laid down in article 12 and Annex E. But I do not doubt that the Dominion is also entitled to exact sanctions for the performance of the rules in Annex D by providing for the suspension or cancellation of licences upon a breach of such rules; and furthermore, to take any measures calculated to prevent any person acting as navigator, pilot, or member of the crew of an aeroplane not fully equipped by knowledge of the rules in Annex D, and otherwise, to perform any duty cast upon him by them.
In addition to all this, there are other regulations which could be sustained as enacted in view of the obligations imposed by the Convention in article 25. Regulation 15, for example, requires any registered aircraft to bear the prescribed nationality and registration marks. The Convention provides explicitly for the use of these marks in international navigation though not in domestic navigation. But it would obviously be proper, in order to secure identification for the purposes of enforcing, and punishing breaches of, the rules, to require that all aircraft should bear the marks of identification mentioned in regulation 15. Similar considerations apply to a number of other regulations; those, for example, requiring aircraft to land in response to signals of police officers, representatives of the Air Board, the Immigration and Customs officials, those requiring the possession and production of licences and certificates and other documents by aircraft, and generally those dealing with inspection.
As to “identification” and “inspection,” in sub-paragraphs (b) and (c), I do not doubt the authority of the Dominion to legislate fully and completely on these subjects. The reasons appear to be too obvious to require statement. As to the remaining sub-paragraphs of section 4, little need be said. The Dominion has authority to provide for the carrying of mails, to prescribe the areas in which aircraft entering Canada shall land and the conditions to be observed on such landings, and to provide for the control of the Air Force. Other matters stand in a different situation. For example, the carriage of goods and passengers, the use and control of aerial routes, and those embraced in sub-paragraph (i) which is in the following terms:
the institution and enforcement of such laws, rules and regulations as may be deemed necessary for the safe and proper navigation of aircraft in Canada or within the limits of the territorial waters of Canada.
In relation to all these last mentioned matters, the vice of section 4 is that its terms are too comprehensive. Under various heads of section 91, the Dominion, as I have already said, possesses authority to legislate in respect to certain aspects of some of these matters, but section 4 is framed in such a way as to render it impossible to treat the enactment, in its relation to the matters just mentioned, as one falling within the Dominion’s authority under, for example, the regulation of Trade and Commerce, undertakings extending beyond the limits of a province, or Defence.
Some comment is required upon sub-paragraph (f). The Dominion possesses, I am disposed to think, authority to prohibit the navigation of non-Canadian aircraft over prescribed areas, and by the terms of the Convention, where such a prohibition is put into effect, there is an obligation to treat foreign aircraft on the same terms as Canadian aircraft. In the result, I am disposed to think, section 4 could be validly enacted in respect of sub-paragraph (f).
A further comment is required in respect to regulation 33. As affecting flying outside of Canada, I am disposed to think this regulation is valid under the powers of the Dominion independently of the Convention.
No reference was made upon the argument to regulation 133, which among other things provides that the regulations shall not apply to aircraft or to air harbours to the extent to which they have been relieved by the Air Board from compliance therewith. Every regulation is subject to this declaration; and the existence of this dispensing power exercisable according to the absolute discretion of an administrative board, affecting as it does every order, prohibition and declaration in the regulations, on the subject with which it deals, adds to the difficulty of holding that these regulations could be sanctioned validly in exercise of the powers under section 132, which are given for the purpose of providing for the performance of the obligations under the Convention. There is nothing in the Convention giving any countenance to the idea that the performance by each State of its obligations is, strictly, not obligatory, but within the discretion of the State itself.
Two regulations, 10 and 28, the first classified as relating to the subject of registration, and the second as relating to the subject of air harbours, both within the scope of question 4, cannot be passed over wholly without comment. I shall quote verbatim regulation 10, the form of which is closely followed in regulation 28: 10. It shall be a condition of the primary registration in Canada of any aircraft that, upon the Governor in Council declaring that a national emergency exists or is immediately apprehended, every such aircraft shall be subject to requisition in the name of His Majesty by the Air Board or any officer of the Canadian Air Force; and upon being so requisitioned shall become the property of His Majesty subject to its return or to the payment of compensation or to both as may be provided by law. New.
(2) The registration in Canada of any aircraft primarily registered in any of His Majesty’s dominions other than Canada shall be subject to the like condition unless, under the law of that one of His Majesty’s dominions in which the aircraft was primarily registered, it is subject to a paramount right to be requisitioned on His Majesty’s behalf. (New.)
Although two of my brethren would answer question 4 (c) in a sense which recognizes regulation 10 as valid, I must say, with great respect, that neither of these regulations has any sort of relation to anything in the Convention; and that there is no section of the British North America Act other than section 132 under which they could be susceptible of valid sanction. Under them, the power of the Air Board to requisition aeroplanes and aerodromes in the name of His Majesty comes into play upon a proclamation by the Governor General declaring that a “national emergency” exists or is immediately apprehended. “Emergencies” may possess widely different degrees of gravity and urgency. But this authority is not conditioned upon the existence, in fact, of any conjuncture of the sort loosely and vaguely indicated by the words “national emergency.” According to the tenor of the regulation, the condition is fulfilled upon a proclamation that