Reference re Regulation and Control of Radio Communication

Reference re Regulation and Control of Radio Communication
Collection
Supreme Court Judgments
Date
1931-06-30
Report
[1931] SCR 541
Judges
Anglin, Francis Alexander; Newcombe, Edmund Leslie; Rinfret, Thibaudeau; Lamont, John Henderson; Smith, Robert
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference re Regulation and Control of Radio Communication, [1931] S.C.R. 541
Date: 1931-06-30
In The Matter of a Reference as to The Jurisdiction of Parliament to Regulate and Control Radio Communication.
1931: May 6, 7; 1931: June 30.
Present: Anglin C.J.C. and Newcombe, Rinfret, Lamont and Smith JJ.
Constitutional law—Radio communication—Dominion and provincial jurisdiction—B.N.A. Act, 1867, ss. 91, 92, 132.
In the existing state of radio science and in the light of the knowledge and use of the art as actually understood and worked, radio communication is subject to the legislative jurisdiction of the Dominion Parliament. Rinfret and Lamont JJ. dissenting.
Per Rinfret and Lamont JJ. dissenting.—The Dominion Parliament has not jurisdiction to legislate on the subject of radio communication in every respect. This subject falls within the primary legislative jurisdiction of the provinces either under no. 13 (property and civil rights) or under no. 10 (local works and undertakings) of section 92 of the B.N.A. Act, except in cases where the Dominion Parliament has superseding jurisdiction under some of the heads of section 91 and under section 132 (relating to treaties) of the B.N.A. Act.
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 17th February, 1931, from the Minister of Justice, submitting that His Majesty’s Government of the province of Quebec has questioned the jurisdiction of the Parliament of Canada to regulate and control radio communication and has submitted questions to the Court of King’s Bench (in appeal) of the province, whether the Radiotelegraph Act (R.S.C., 1927, chapter 195) in whole or in part, is within the jurisdiction of the Dominion to enact and whether a certain legislative scheme projected by the said Government of the Province for the regulation and control of certain radio communication, is within the jurisdiction of the Legislature of the Province to enact.
The Minister apprehends that the Radiotelegraph Act and Regulations made thereunder were enacted by reason of the expediency of making provision for the regulation of a service essentially important in itself as touching closely the national life and interest.
The Minister reports that on the 25th day of November, 1927, an international radiotelegraph convention was signed by the representatives of about eighty countries including the Dominion of Canada. The said convention was ratified by the Government of Canada and the instrument of ratification deposited pursuant to the convention at Washington on the 29th day of October, 1928. The convention went into effect on January 1, 1929. Legislation exists and is necessary to make provision for performing the obligations of Canada under the said convention. The Minister further reports that a treaty which came into force on the 1st March, 1929, was effected by the exchange of notes between the United States, Canada, Cuba and Newfoundland relative to the division between the countries of channels of communication in that part of the spectrum represented by the range of frequencies from 1,500 kilocycles to 6,000 kilocycles.
The Minister further reports that negotiations have taken place between Canada and the United States with the object of dividing between the two countries the total number of channels (96) which exist in that part of the spectrum represented by frequencies of 550 kilocycles to 1,500 kilocycles, appropriated by the International Convention hereinbefore mentioned, to the service of broadcasting. No agreement has as yet been made, but at present Canada is making use of 17 channels of which 6 are being used exclusively by Canada and of which 11 are being used by both countries.
The Minister further reports that an informal arrangement was made in 1930 between Canada and the United States with reference to the use of radiotelegraphy by aircraft passing between the two countries.
The Minister further reports that on the 31st May, 1929, a treaty was entered into between the principal maritime nations of the world relating to the safety of life at sea. Provision was made for the compulsory fitting of wireless apparatus on board certain classes of vessels.
The Minister further reports that at the Imperial Conference 1930, a committee was set up to consider questions relating to imperial communications other than transport, which committee considered a scheme for the establishment of an empire broadcasting service and considered questions relating to the establishment of telephone and telegraph services for the broadcasting of weather maps.
In December, 1928, the Government appointed a royal commission on radio broadcasting to examine into the broadcasting situation in the Dominion of Canada and to make representations to the Government as to the future administration, management, control and financing thereof. On the 11th September, 1929, the said royal commission reported.
The Minister further reports that radio provides for various forms of communication which may be classified as follows:—
(a) Radiotelegraph, which provides for the transmission of intelligence on the Morse telegraphic code;
(b) Radiotelephone, which provides for the transmission of spoken word, music and sounds of all kinds;
(c) Facsimile, which provides for the transmission of photographs, pictures, printed matter, handwriting, etc., in such a manner that they are reproduced in like form at point of reception;
(d) Television, which provides for the transmission of pictures of moving objects.
The Minister further reports that radio is used in Canada for the following purposes:—
(a) Coast stations are established to provide radio facilities whereby any ship within 500 miles of the Canadian coast can establish instant contact with the shore. Constant watch, 24 hours a day and 365 days a year, is maintained at practically all of the stations. The coast stations consist of three chains, one extending from Vancouver to Prince Rupert on the Pacific coast, another from Port Arthur at the head of the Great Lakes to Newfoundland and Labrador, and the third from Port Churchill to the eastern entrance to Hudson Straits. The 60 stations forming this system are owned by the Department of Marine. Of these, 41 are operated by the department itself while -the remaining 19 are operated by the Canadian Marconi Company under contract.
In addition a long distance station owned and operated by the Canadian Marconi Company is maintained at Louisburg, N.S., for communication with ships at long range. This station can maintain communication with ships at a distance of 2,000 miles.
(b) Direction finding stations to the number of 17 are owned and operated by the Department of Marine on the Atlantic coast. There are 4 on Hudson Bay and Strait and one on the West coast. These stations give bearings upon request to any ship.
(c) Radio beacons to the number of 17 are owned and operated by the Department of Marine. There are 9 on the East coast, 5 on the Great Lakes and 3 on the West coast. Any ship fitted with direction finding apparatus can take her own bearings from stations of this class which transmit signals automatically once every hour day or night and continuously during foggy weather.
(d) Radiotelephone stations to the number of 8 are owned and operated by the Department of Marine on the Pacific coast for communication with small craft and for life saving purposes.
(e) Special services including weather forecasts, storm warnings and time signals are also transmitted by the above mentioned stations for the benefit of ships at sea.
(ƒ) Ship Stations. There are 319 ships of Canadian registry fitted with radio apparatus. The Radiotelegraph Act calls for the compulsory fitting of certain passenger vessels with such apparatus.
(g) Public commercial stations to the number of 46 are licensed, although 9 only are as yet established for operation.. These are designed for handling paid traffic between fixed points. The principal ones in operation are those operated by the Canadian Marconi Company for communication with New York, England and Australia.
(h) Private commercial stations to the number of 131 are licensed. These are established for communication with isolated points not reached by telegraph or telephone.
(i) Experimental and amateur experimental stations to the number of 700 are licensed.
(j) The Department of National Defence maintains 104 stations and in addition operates 10 stations in the Northwest Territories on behalf of the Department of the Interior. It also operates 21 stations for airmail and forestry and has 20 aircraft fitted with radio.
(k) Broadcasting stations to the number of 67 physical stations are licensed in Canada having power rating from 50 to 5,000 watts. Owing to the limited number of frequencies or channels available for broadcasting in Canada (6 exclusive and 11 shared with the United States out of a total of 96 as explained above) 2 or 3 stations in the same centre may be required to share time and frequency. In assigning a channel to any station, the matter of geographical separation and power employed have to be considered. It is the practice, for example, not to assign the same frequency or channel to two 50 watt stations which are less than 200 miles apart or to two 500 watt stations which are less than 1,800 miles apart. (l) Receiving sets to the number of 472,531 were licensed by the Dominion in -the nine months ending December 31, 1930.
The Minister further reports that the Department of Marine maintains a service to detect and investigate interference with reception throughout Canada. Furthermore inspectors are maintained throughout Canada to administer and enforce the Radiotelegraph Act and Regulations with regard to compulsory equipment of ships, the licensing of stations and the inspection of stations to see ‘that they maintain the frequency or channel assigned to them in order that interference may not occur.
The Minister further reports that operators’ certificates of proficiency issued by the Minister of Marine are, under reciprocal arrangement with Great Britain and the other dominions and colonies, accepted.
The Minister further reports that during the fiscal year 1929-30 the prosecution of 1,267 persons in various parts of Canada for operating receiving sets without licence was undertaken. In two cases, one at Regina and another at Summerside, where adverse decisions were rendered against the Department on the ground that the statute did not in terms apply to receiving sets, the decisions were appealed and the contention of the department upheld.
The Minister further reports that the revenue collected for licence fees in the fiscal year 1929-30 was $449,010.40 and for 1930-31 (9 months) the revenue was $479,48820.
The Minister further reports that, as the use of Hertzian waves for transmission and reception of communications is a development of recent years, he has had prepared by Mr. J. W. Bain, radio engineer, Department of Marine, a memorandum of explanation of the principles underlying radio communication, which memorandum is annexed hereto.
The Minister recommends, in view of the fact that the jurisdiction of Parliament has been questioned, that the opinion of the highest judicial authority in Canada be obtained with the least possible delay and that, with this in view, the following questions be referred to ‘the Supreme Court of Canada for hearing and consideration pursuant to the authority of section 55 of the Supreme Court Act:—
1. Has the Parliament of Canada jurisdiction to regulate and control radio communication, including the transmission and reception of signs, signals, pictures and sounds of all kinds by means of Hertzian waves, and including the right to determine the character, use and location of apparatus employed?
2. If not, in what particular or particulars or to what extent is the jurisdiction of Parliament limited?
The Committee concur in the foregoing, and advise that the said questions be referred to the Supreme Court of Canada for hearing and consideration, accordingly.
W. N. Tilley K.C. and J. L. St. Jacques K.C., for the Attorney-General of Canada.
Charles Lanctôt K.C. and Aimé Geoffrion K.C. for the Attorney-General of Quebec.
Joseph Sedgwick for the Attorney-General for Ontario.
F. H. Chrysler K.C. for the Attorneys-General for Manitoba and Saskatchewan. R. B. Hanson K.C. for the Attorney-General for New Brunswick.
Brooke Claxton for the Canadian Radio League.
Anglin C.J.C.—The Governor General in Council, under the authority of section 55 of the Supreme Court Act, has referred to this court the following questions:
1. Has the Parliament of Canada jurisdiction to regulate and control radio communication, including the transmission and reception of signs, signals, pictures and sounds of all kinds by means of Hertzian waves, and including the right to determine the character, use and location of apparatus employed?
2. If not, in what particular or particulars or to what extent is the jurisdiction of Parliament limited?
Personally I should have preferred to withhold judgment on the present reference until the determination by the Privy Council of the Aviation Reference now pending before it on appeal from this court, especially in view of the insistence by counsel representing the province of Quebec that light would be thrown on the issues involved in the present reference by that decision. The majority of my colleagues, however, take the view that the public interest demands that judgment should be given during the present term, in order that the Government may be in a position to obtain the views of the Privy Council on the questions involved in this reference in time to enable it to bring down legislation at the next session of the Dominion Parliament. I somewhat reluctantly defer to that view.
I have had the advantage of reading the carefully prepared opinions of my colleagues.
Dealing with the first question, the most important thing to observe would seem to be its subject matter. It does not concern the rights of property in the instruments used for communication, their ownership, or civil rights in regard to them, but has to do entirely with the effects produced by them. In other words, it is “radio communication” that is dealt with by this question, rather than the instruments employed in making it, which are alluded to merely incidentally.
After giving the matter such consideration as time and circumstances have permitted, I am of the opinion that question no. 1 should be answered generally in the affirmative. My reason for so concluding is largely that overwhelming convenience—under the circumstances amounting to necessity—dictates that answer. In dealing with this reference, however, I desire it to be clearly understood that I do so solely in the light of the present knowledge of Hertzian waves and radio and upon the facts disclosed in the record. I fully accept the following paragraph from the judgment of my brother Newcombe:
I interpret the reference as meant to submit the questions for consideration in the light of the existing situation and the knowledge and use of the art, as practically understood and worked, and, having regard to what is stated in the case, assumed as the basis for the hearing. Therefore I proceed upon the assumption that radio communication in Canada is practically Dominion-wide; that the broadcasting of a message in a province, or in a territory of Canada, has its effect in making the message receivable as such, and is also effective by way of interference, not only within the local political area within which the transmission originates, but beyond, for distances exceeding the limits of a province, and that, consequently, if there is to be harmony or reasonable measure of utility or success in the service, it is desirable, if not essential, that the operations should be subject to prudent regulation and control.
Without entering into any lengthy discussion of the constitutional issues involved, it seems to be certain that Hertzian waves and radio were not only unknown to, but undreamt of by, the framers of the British North America Act. It is, therefore, not to be expected that language should be found in that Act explicitly covering the subject matter of the present reference. On the other hand, if the Act is to be viewed, as recently suggested by their Lordships of the Privy Council in Edwards v. Attorney-General of Canada[1].
as a living tree, capable of growth and expansion within its natural limits,
and if it
should be on all occasions interpreted in a large, liberal and comprehensive spirit, considering the magnitude of the subjects with which it purports to deal in very few words,
and bearing in mind that
we are concerned with the interpretation of an Imperial Act, but an Imperial Act creating a constitution for a new country,
every effort should be made to find in the B.N.A. Act some head of legislative jurisdiction capable of including the subject matter of this reference. If, however, it should be found impossible to assign that subject matter to any specifically enumerated head of legislative jurisdiction, either in section 91 or in section 92 of the B.N.A. Act, it would seem to be one of the subjects of residuary power under the general jurisdiction conferred on the Dominion by the opening paragraph of section 91.
It is also obvious that, for certain purposes and within certain limitations, there are several specific heads of legislative jurisdiction in section 91 broad enough to cover, in part at least, the subject of radio communication and that, in so far as the subject matter falls within those several heads, Dominion legislative jurisdiction as to it is exclusive. I refer to
5. Postal Service.
7. Militia, Military and Naval Service, and Defence.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping, (and)
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
It seems to me that, under this last head, which really brings the exceptions set out in subsection 10 of section 92 into section 91, as distinctive heads of Dominion legislative jurisdiction (City of Toronto v. Bell Telephone Co.[2]), more particularly under the word “telegraphs” in clause (a) thereof, giving to that word a reasonably broad construction of which it is susceptible (ibid and Attorney-General v. Edison Telegraphs of London[3]—we find a sound basis for holding that “radio communication” is subject to the exclusive legislative jurisdiction of the Dominion Parliament.
Reading through the various subsections of section 92, no one of them do I find broad enough to cover the subject matter of radio communication. The two subsections of section 92 relied on by counsel for the provinces were nos. 13 and 16. No doubt, in some aspects, radio communication has to do with “property and civil rights in the province”; but so have many other subjects which have been held to fall within some one of the enumerated heads of section 91, and as to which the concluding paragraph of that section establishes the exclusiveness of Dominion legislative jurisdiction over them. (The Fishenes Case[4]; Toronto Electric Commissioners v. Snider[5]). Radio communication in this respect does not differ from any of such other subjects. Bearing in mind what Lord Watson said in Attorney-General of Ontario v. Attorney-General of Canada[6], that legislation by the Dominion
in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92.
and that it is not competent to the Dominion to make laws
in relation to matters which in each province are substantially of local or private interest, upon the assumption that these matters also concern the peace, order, and good government of the Dominion.
I fail to find anything of a “local or private” nature in radio communication such as would exclude Dominion jurisdiction over it. I agree with Mr. Justice Newcombe that
“radio communication,” in the state of the science and development which it has attained, is not, substantially or otherwise, a local or private matter in the province.
Of course, it may some day become so, should radio science develop to such an extent that it will be possible so to control the effects of Hertzian waves, that those effects may be confined within the limits of a province, both as to their use and interference by them.
Subject to such possible further scientific development, I am, for the foregoing reasons, of the opinion that question no. 1 should be presently answered in the affirmative. It is, therefore, unnecessary to answer question no. 2, which is based on the assumption of a negative answer to no. 1.
My formal answers to the questions are,
Question no. 1. In view of the present state of radio science as submitted, Yes.
Question no. 2. No answer.
Newcombe J.—My trouble with this case is to know the facts. Although the narrative of the order of reference and the printed statement of principles were not at the hearing seriously disputed, one is apt to suspect that the knowledge of the art of radio, which we have derived from the submissions and what was said in the course of argument, is still incomplete and, perhaps, in some particulars, not free from error; that some accepted theories are still experimental or tentative, and that there may be possibilities of development and use, not only in the Dominion but also in a provincial field, which have not yet been fully ascertained or tested.
A difficulty also arises from the fact that the questions propounded do not apply themselves to actual legislation, but seek generally the definition of Dominion authority to “regulate and control radio communication” in, perhaps, its widest sense.
In these conditions, it is expedient to proceed with great care and certainty, or caution, and, in affirming or denying a legislative power, wisely to say nothing which may be construed to express or imply an intention to extend a ruling upon the assumed or hypothetical case submitted to a state of actual facts that may prove to be materially different, and which, though at present no more than imaginary, may yet be realized.
I interpret the reference as meant to submit the questions for consideration in the light of the existing situation and the knowledge and use of the art, as practically understood and worked, and, having regard to what is stated in the case, assumed as the basis for the hearing. Therefore I must proceed upon the assumption that radio communication in Canada is practically Dominion-wide; that the broadcasting of a message in a province, or in a territory of Canada, has its effect in making the message receivable as such, and is also effective by way of interference, not only in the local political area within which the transmission originates, but beyond, for distances exceeding the limits of a province, and that, consequently, if there is to be harmony or reasonable measure of utility or success in the service, it is desirable, if not essential, that the operations should be subject to prudent regulation and control.
Now, the power of the Dominion to regulate or control is denied, upon two grounds, by the province of Quebec and other provinces which have associated themselves with the argument of Quebec; they say that the exercise of the power, as broadly suggested by the first question, would offend against the provincial enumeration of “Property and Civil Rights in the Province”; and, secondly, or, perhaps, alternatively, that it would be obnoxious to the concluding paragraph of section 92, “Generally all Matters of a merely local or private Nature in the Province.” Exceptions are, however, conceded, and these may be introduced no better than by a quotation from Lord Herscheli’s great judgment in the first Fisheries Case[7], where, referring to section 91, he said
The earlier part of this section read in connection with the words beginning “and for greater certainty,” appears to amount to a legislative declaration that any legislation falling strictly within any of the classes specially enumerated in s. 91, is not within the legislative competence of the provincial legislatures under s. 92. In any view the enactment is express that laws in relation to matters falling within any of the classes enumerated in s. 91 are within the “exclusive” legislative authority of the Dominion Parliament. Whenever, therefore, a matter is within one of these specified classes, legislation in relation to it by a provincial legislature is in their Lordships’ opinion incompetent. It has been suggested, and this view has been adopted by some of the judges of the Supreme Court, that although any Dominion legislation dealing with the subject would override provincial legislation, the latter is nevertheless valid, unless and until the Dominion Parliament so legislates. Their Lordships think that such a view does not give their due effect to the terms of s. 91, and in particular to the word “exclusively.” It would authorize for example, the enactment of a bankruptcy law or a copyright law in any of the provinces unless and until the Dominion Parliament passed enactments dealing with those subjects. Their Lordships do not think this is consistent with the language and manifest intention of the British North America Act.
Now, referring to the text of section 91 for the enumerations that may, for present purposes, be invoked, it is enacted by the concluding words of the section that
Any matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
And it is, I would think, not doubtful that the regulation of radio communication has a Dominion aspect, or at least an overlapping relation, capable of being worked as incidental or ancillary, with respect to some of the subjects specially enumerated in section 91; for example: “2. The Regulation of Trade and Commerce; 5. Postal Service; 7. Military and Naval Service and Defence; 9. Beacons, Buoys, Lighthouses and Sable Island; 10. Navigation and Shipping; 11. Quarantine and the Establishment and Maintenance of Marine Hospitals, and 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” Most obviously in this true as applied to the three enumerations that are concerned with the safety of ships and navigation. It follows that a provincial legislature could not sanction or uphold any sort of radio communication which would interfere or conflict with competent Dominion regulations, enacted with relation to these enumerated subjects. It is expressly, and most justly, conceded by the factum of the Attorney-General of Quebec that
Where any subject is under its exclusive legislative authority the Dominion Parliament has power to regulate by substantive and by ancillary and necessary incidental legislation.
Also, by section 132, which has been judicially considered in other cases,
The Parliament and Government of Canada shall have all powers necessary or proper for performing 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.
There is the International Radiotelegraph Convention, “Done at Washington, 27th November, 1927,” between the Governments therein mentioned, including Canada, Great Britain and the United States of America, and ratified on behalf of Canada, 12th June, 1928; also an agreement between Canada, the United States, Newfoundland and Cuba, relative to the assignment of “frequencies” on the North American continent, effective as from 1st March, 1929. These and other international agreements or regulations, to which Canada adheres, are printed in the appendix of the case; and, in so far as they answer the description of the last quoted section, the Parliament and Government of Canada have, by the express enactment, all powers necessary or proper for performing the obligations of Canada, or of any province thereof, arising thereunder.
But, while Mr. Geoffrion concedes that interference internationally may be avoided under the powers conferred by section 132, he suggests that, if it be necessary to provide against interprovincial interference, the objects should be attained by arrangement between the provinces, and he refers to City of Montreal v. Montreal Street Railway[8]. That case is mentioned in the recent Aviation Case[9]; and it is distinguishable upon all the points debated with relation to the questions now submitted. I refer to it here by way of reminder that, as shewn by Lord Atkinsin’s remark at the foot of page 345, the power of Parliament to acquire jurisdiction by the exercise of its authority to make a declaration under paragraph (c) of the 10th enumeration of section 92, was not without a persuasive influence in the result which His Lordship reached; and I think all are agreed that paragraph (c) has no application to the radio powers which are now in difference.
But while the Dominion has at least the authority to regulate and control radio activities, and to provide against confusion or interference, as affecting its own enumerated subjects, and for the performance of treaty obligations, it also has the comprehensive power involved in the declaration of its authority.
in relation to all matters not coming within the classes of subjects by the British North America Act assigned exclusively to the legislatures of the provinces;
and Quebec, in effect, contends that the classes so excepted include “radio communication,” within the meaning of the first question submitted. As to this, the provincial case seems to depend upon the interpretation of the two provincial powers which I have quoted; and my view is that the subject in question has not the prescribed limitation of locality. It is said that “radio communication,” as explained by the reference, is a matter of “Property and Civil Rights in the Province,” or of a “merely local or private Nature in the Province”; and this I deny, because, upon the assumptions involved in the case, the matter substantially extends beyond provincial limits.
The words “Matters of a merely local or private Nature” are also used in the last paragraph of section 91, and Lord Watson interpreted them as meant to include and correctly to describe all the matters enumerated in the heads of section 92 as being, from a provincial point of view, of a local or private nature. Attorney-General for Ontario v. Attorney-General for the Dominion[10]; and, on the next two pages of the same case His Lordship said, referring to the general authority of Parliament under the introductory enactments of section 91,
But to those matters which are not specified among the enumerated subjects of legislation, the exception from s. 92, which is enacted by the concluding words of s. 91, has no application; and, in legislating with regard to such matters, the Dominion Parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by s. 92. These enactments appear to their Lordships to indicate that the exercise of legislative power of the Parliament of Canada in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92. To attach any other construction to the general power which, in supplement of its enumerated powers, is conferred upon the Parliament of Canada by s. 91, would, in their Lordships’ opinion, not only be contrary to the intendment of the Act, but would practically destroy the autonomy of the provinces. If it were once conceded that the Parliament of Canada has authority to make laws applicable to the whole Dominion, in relation to matters which in each province are substantially of local or private interest, upon the assumption that these matters also concern the peace, order, and good government of the Dominion, there is hardly a subject enumerated in s. 92 upon which it might not legislate, to the exclusion of the provincial legislatures.
And, as I interpret the case submitted, “radio communication,” in the state of the science and development which it has attained, is not, substantially or otherwise, a local or private matter in a province. In the course of discussion an attempt was made to distinguish between the transmission of a message and the reception of it; and it was said that the receiving instrument is property in a province, and that a message is received in a province when the instrument, being there, is adapted and worked for that purpose. But the question is directed, not to rights of property in goods or chattels situate within a province, but to “radio communication”—an effect which is not local, but interprovincial. There must be two parties to a communication; there may be many more; and, if the sender be in a foreign country, or in a province or territory of Canada, and the receiver be within another province, it is impossible, as I see it, to declare that the communication, is local, either to the transmitting or to the receiving province.
As usual, in cases where the validity of provincial legislation is attacked as engaged with a subject matter not local, the Manitoba Liquor case[11], is cited in support of the power. The passages are at pages 77-80 of Lord McNaghten’s judgment, and the meaning is relieved of some obscurity when the reasons are considered. Manifestly, His Lordship’s conclusion depends upon the text of the particular Act and he quoted and emphasized the recital and the 119th section by which there is introduced a legislative declaration that the object is to suppress the liquor traffic in Manitoba by prohibiting provincial transactions, and that, while the act is intended to prohibit transactions in liquor which take place wholly within the province, except as otherwise specially provided, and to restrict the consumption of liquor within the limits of the province,
it shall not affect and is not intended to affect bona fide transactions in liquor between a person in the province of Manitoba and a person in another province or in a foreign country, and the provisions of this Act shall be construed accordingly.
That section, his Lordship said, was as much part of the Act as any other section contained in it, and must have its full effect in exempting from the operation of the Act the transactions which came within its terms. Their Lordships were not satisfied that the legislature of Manitoba had transgressed the limits of its jurisdiction in passing the Liquor Act. But provincial legislation for the regulation and control of radio communication is a much more expansive matter and cannot, upon present information, be constructed in a manner to qualify as relating to matters of a local or private nature in the province.
The subject is one which, undoubtedly, relates to the peace, order and good government of Canada; and I am not satisfied, for any of the reasons which have been submitted, or which I have been able to discover, that it falls within any of the classes of subjects assigned exclusively to the legislatures of the provinces.
For these reasons I certify to the Governor in Council, for his information, my opinion that the first question submitted should be answered in the affirmative; and, of course, in view of that conclusion, I am not required to answer the second question.
Rinfret J.—En donnant son opinion sur les questions déférées au sujet de la loi autorisant le contrôle de l’aéro-nautique[12], mon collègue, Monsieur le Juge Duff, avec qui j’ai concouru, commence son jugement par l’exposé suivant:
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, overrides 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 section 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, 1019, extends over the whole field.
En substituant la radiocommunication à l’aviation, et en retranchant la mention relative au paragraphe 10 de l’article 91 de l’Acte de l’Amérique Britannique du Nord concernant “Navigation and Shipping”, nous avons dans le passage cite un exact résumé de l’argumentation qui a été faite de la part du procureur général du Canada dans l’affaire qui nous est actuellement soumise.
D’autre part, les procureurs généraux des provinces, pour réclamer la juridiction en faveur des gouvernements qu’ils représentaient, dans cette cause de l’aviation comme dans la présente, se sont surtout appuyés sur le paragraphe 13 (“ property and civil rights in the province”) et sur le paragraphe 10 (“local works and undertakings”) de l’article 92 de FActe constitutional.
Il en est résulté, entre la cause de l’aviation et la présente cause de la radiocommunication, une très grande analogie, au moins dans la manière dont la question nous a été présentée. On peut done regretter que nous soyons appelés à nous prononcer sur les questions qui nous sont actuellement soumises avant d’avoir eu l’avantage de connaître la décision finale du Conseil Privé dans l’affaire de l’aviation, car il me paraît évident que cette décision nous aurait apporté une aide considérable dans la solution du problème que nous avons maintenant à trancher.
De même que dans la référence sur l’aviation, il nous faut ici adapter une loi constitutionnelle datant de 1867 à un sujet qui non seulement n’avait aucune existence, ma