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Canada and International Labor Conventions

Published online by Cambridge University Press:  12 April 2017

Robert B. Stewart
Robert B. Stewart*
Affiliation:
Harvard University
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Extract

The opinion of the Judicial Committee of the Privy Council, delivered January 28, 1937, in the case of Attorney-General for Canada v. Attorney- General for Ontario,1 voids certain “new deal” measures 2 of the Dominion of Canada. This opinion is important not alone because it has given a harsh blow to social legislationin the Dominion, and because the judgment is a reminder of one of the last vestiges of Imperial authority over Canada, these aspectsof the judgment being internal to the British Commonwealth, but also important are the external aspects. These involve the power of Canada to give effect to treaty obligations assumed by the Dominion as a member of the international community.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 1 , January 1938 , pp. 36 - 62
Copyright
Copyright © American Society of International Law 1938

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References

1 1937 A. C. 326. This is only one of six opinions rendered at this time by the Judicial Committee of the Privy Council on constitutional references dealing with Canadian social legislation of1935. The other opinions are: Att. -Gen. for Canada v. Att. -Gen. for Ontario, Ibid., 355; Att. -Gen. for British Columbia v. Att. -Gen. for Canada, Ibid., 368;Att. -Gen. for British Columbia v. Att. -Gen. for Canada, Ibid., 377; Att. -Gen. for British Columbia v. Att. -Gen. for Canada, Ibid., 391; and Att. -Gen. for Ontario v. Att. -Gen. for Canada, Ibid., 405. These six judgments are the subjectof a Special Constitutional number of The Canadian Bar Review, Vol. XV, No. 6, June, 1937.

2 The Weekly Rest in Industrial Undertakings Act, 1935, The Minimum Wages Act, 1935, and The Limitation of Hours of Work Act, 1935.

3 In theory the Judicial Committee is merely adviser to the King in judicial matters. The determination of the issues before the Board takes the form, not of a decree with dissenting opinions, but of a report to His Majesty, which is then embodied in an Order in Council. In fact, of course, the Judicial Committee is a court of law. In the words of the Judicial Committee itself (in British Coal Corporation v. The King, 1935 A. C. 500, at 511) it is “in truth an appellate Court of Law” because by constitutional convention it is “unknown and unthinkable” that His Majesty in Council should not give effect to its advice. The advice of the Board, as a Committee of the King's Privy Council, in the present instance was given in the following form: “Their Lordships are of the opinion that the answer to the three questions should be that the Act in each case is ultra vires of the Parliamentof Canada, and they will humbly advise HisMajesty accordingly.” For further discussion of this point see Hector Hughes, National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations, London, 1931; Norman Bentwich, The Practice of the Privy Council in Judicial Matters, 2nd ed. , London, 1926; and W. Ivor Jennings, “The Statute of Westminster and Appeals to the Privy Council, ” Law Quarterly Review, Vol. VIII, April, 1936, pp. 173–188.

4 These are No. 7 (Minimum Age at Sea), No. 8 (Unemployment Indemnity, Shipwreck), No. 15 (Minimum Age for Trimmers and Stokers), and No. 16 (Medical Examination of Young Persons at Sea). All of these are maritime conventions and, therefore, fall within Dominion legislative authority. See I. L. O. , Industrial and Labour Information, Vol. 64, Oct. 4, 1937, Chart on “The Progress of Ratifications.”

5 Art. 405, par. 5–9.

6 Teltsik, R.,“The Ratification of International Labour Conventions,” International Labour Review, Vol. 18, 1928, pp. 718, 722.Google Scholar

7 P. C. 2722, Nov. 6, 1920.

8 For a review of these conferences see the speech of Ernest Lapointe in the Canadian House of Commons, Feb. 8, 1935, Debates, 1935, Vol. I, pp. 647–648.

9 Which in law has the force of a judgment.

10 In the Matter of Legislative Jurisdiction over Hours of Labour, 1925 S. C. R. 505.

11 The resolution approving the Weekly Rest Convention, 1921, was passed by the House of Commons Feb. 8, 1935, and by the Senate on Feb. 19, 1935. The resolution states :“That it is expedient that Parliament do approve ofthe convention concerning the application of the weekly rest in industrial undertakings adopted as a draft convention by the generalconference of the International Labour Organisation of the League of Nations at its third session in Geneva on the 17th day of November, 1921, reading as follows:” (The resolution then sets forth the terms of the convention). See Canada, Journals of theHouse of Commons, 1935, pp. 101, 104 ; Journals of the Senate, 1935, pp. 53–56. The resolutions with respect to the other two conventions are similar in form.

12 Resolution passed by the House of Commons March 15, 1935, and by the Senateon April 2, 1935. Journals of the House of Commons, 1935, pp. 234–236;Journals of the Senate, 1935, pp. 136–138, 143–l46.

13 Resolution passed by the House of Commons Feb. 8, 1935, and by the Senate on Feb. 20, 1935. Journals of the House of Commons, 1935, pp. 104, 110;Journals of the Senate, 1935, pp. 56–62, 66–73.

14 The Orders of the Governor-General in Council approving the Weekly Rest Convention and the Hours of Work Convention were adopted March 1, 1935, P. C. 543 and 544. The Order in Council approving the Minimum Wage Convention was adopted April 12, 1935, P. C. 934.

15 On the same dates, March 1 and April 12, as the respective Orders in Council were adopted.

16 International Labor Office, Official Bulletin, April 30, 1935, pp. 23–24;July 15, 1935, pp. 48–49.

17 Riddell, Dr. Walter A. Google Scholar.

18 The Hours of Work and Weekly Rest Conventions were deposited March 21, 1935, and the Minimum-Wage-Fixing Machinery Convention was deposited April 25, 1935. See League of Nations Official Journal, April, 1935, p. 502, and July, 1935, p. 899.

19 Jenks, C. Wilfred, “The Present Status of the Bennett Ratifications,” The Canadian Bar Review, Vol. XV, No. 6, special Constitutional number, June, 1937, p. 466 Google Scholar.

20 MacKenzie, N. A. M. observes that His Majesty, through the Governor-General as His representative, would seem to participate even in governmental agreements made by the Dominions. Ibid., p. 449 Google Scholar.

21 Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, 1926, p. 20.

22 Statutes of Canada, 25–26 Geo. 5, 1935, c. 14.

23 Ibid., c. 63.

24 Ibid., c. 44.

25 Canada, House of Commons, Debates, 1935, Vol. I, pp. 635–655.

26 Ibid., p. 635.

27 Revised Statutes of Canada, 1927, c. 35. Sec. 55 of this Act empowers the Governor in Council to refer to the Supreme Court for hearing and consideration certain enumerated questions of law or fact touching, among otherthings, “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.” It is further provided that the Court shall certify to the Governor in Council, for his information, its opinion upon each question thus submitted and its reasons for the answers given. This opinion “shall be pronounced in like manner as in the case of a judgment upon an appeal to the Court; and any judgewho differs from the opinion of the majority shall in a like manner certify his opinion and his reasons. … The opinion of the Court upon any such reference, although advisory only, shall, for all purposes of appeal to His Majesty in Council, be treated as a final judgment of the said Court between parties.”

28 An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government thereof;and for purposes connected therewith. Cited as the British North America Act, 1867, 30–31 Vict. 1867, c. 3.

29 This section is comparable to the Tenth Amendment of the United States Constitution. Inthis case, however, the residual powers are assigned to the central government, while the United States Constitution leaves all powers not delegated to the Federal Government and not prohibited to the States within the competence of the States.

30 Canada, House of Commons Debates, 1935, Vol. I, p. 655.

31 See Historicus, “The Privy Council and Canada, ” The Fortnightly, April, 1937, pp. 472–473.

32 1937 A. C. 326, at 349–350.

33 Canada, House of Commons, Debates, April 5, 1937, Vol. 73, pp. 2773–2798.

34 Ibid., pp. 2777–2778.

35 1936 S. C. R. 461, at 472–473.

36 The Privy Council, Record of Proceedings, Appeal No. 103 of 1936, p. 65 ff. In this case Chief Justice Duff was not considering legislation to fulfill treaties.

37 1896 A. C. 348, at 361.

38 The Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 A. C. 191, at 197.

39 Toronto Electric Commissioners v. Snider, 1925 A. C. 396, at 412.

40 1937 A. C. 326.

41 252 U. S. 416. The two cases must not be regarded as completely analogous, because of thespecial position given to treaties by the United States Constitution. All treaties made “under the authority of the United States” are declared to be “the supreme Law of the Land.”

42 U. S. Treaty Series, No. 628, 1922. The convention was signed at Washington Aug. 16, 1916;it was ratified by the President Sept. 1, 1916, and by Great Britain Oct. 20, 1916. Ratifications were exchanged at Washington Dec. 7, 1916, and the convention was proclaimed Dec. 8, 1916. United Kingdom Treaty Series, 1917, No. 7, Cd. 8476. His Majesty the King is the high contracting party on one side and the United States of America is the high contracting party on the other side.

43 40 Stat. at L. 755;Comp. Stat. , Sec. 8837a.

44 Holland, Missouri v. , 252 U. S. 432–434; this JOURNAL, Vol. 14(1920), p. 459 Google Scholar.

45 Justices Davis and Kerwin.

46 1936 S. C. R. 499;1936 D. L. R. 699.

47 Justices Rinfret, Cannon, and Crocket.

48 1937 A. C. 326, at 352.

49 Attention is frequently called to the fact that while the United States began with a Constitution emphasizing States' rights, the Supreme Court has shifted the emphasis decidedly in the opposite direction. The Canadian Constitution, which, on the other hand, was deliberately intended to form the basis of a strong national government, is now (as a result of judicial interpretation in the opposite direction) a bulwark of Provincial rights.

50 Professor Mcilwain, C. H. , “Government by Law, ” Foreign Affairs, Jan. , 1936, p. 185;and “The Reconstruction of Liberalism, ” Ibid., Oct., 1937, pp1173–174 Google Scholar.

51 Dr. O. D. Skelton has said: “Courts may modify, they cannot replace. They can revise earlier interpretations, as new arguments, new points ofview are presented, they can shift the dividing line in marginal cases; but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assignto one authority powers explicitly granted to another, or modify the provisions of the B. N. A. Act regarding the organization of theexecutive and legislative branches of the Dominion.” House of Commons (Canada), Report of Special Committee on B. N. A. Act, Ottawa, 1935, p. 24. Quoting this statement with approval, W. P. M. Kennedy adds: “Those are wise words and it is time thatthey were heeded. It is not the function of the courts to change a statute so as to bring it into line with modern demands; and too many Canadians have been deceived in argument and frustrated in hopebecause—wilfully or ignorantly—they looked on theJudicial Committee as though it possessed constituent powers—the stream of omnipotence flowing from the 'footsteps of the throne!’ … Such a process [amendment], however, is not forour courts and we have no right whatever to expect them to turn a mid-nineteenth century statute into an instrument of modern government.” The Canadian Bar Review, Vol. XV, No. 6, special Constitutional number, June, 1937, p. 398. Commenting upon the position in which the Dominion of Canada finds itself as a result of the recent opinions of the Judicial Committee of the Privy Council, Professor A. Berriedale Keith says: “It is natural that, when circumstances arise which obviously are very difficult, if not impossible, to deal with under the terms of a constitution on the basis of thetraditional interpretation, there should be a strong feeling that it is the duty of the courts to adapt the interpretation to accordwith the new circumstances. … Prima facie it would seem that some alteration (in the B. N. A. Act) is requisite to meet the emergence of new conditions which could not be conceived by the framers of the constitution, but that is a work for the statesmenand the people of the Dominion, and not for any court.”Ibid., pp. 428, 435.

52 Jenks, C. Wilfred , Journal of Comparative Legislation and International Law, Vol. XVII, 1935, pp. 27–28 Google Scholar.

53 Some persons think it absurd that a matter which is of such general importance or interest as to become the subject of international agreement should still be regarded as a matter of a “private and local nature.”

54 In re Regulation and Control of Aeronautics in Canada, 1932 A. C. 54.

55 In re Regulation and Control of Radio Communication in Canada, Ibid., 304.

56 Statutes of Canada, 1-2 Geo. 5, 1911, c. 28.

57 1936 S. C. R. 481.

58 Statutes of Canada, 3-4 Geo. 5, 1913, c. 27.

59 Brooks-Bidlake v. A. G. for B. C. , 1923 A. C. 450.

60 A. G. for B. C. v. A. G. for Canada, 1924 A. C. 203.

61 1930 S. C. R. 663.

62 1932 A. C. 54, at 74, 77. The latter part of the above statement was declared by Lord Atkin in the recent case to be “clearly obiter.”

63 1931 S. C. R. 541.

64 1932 A. C. 304, at 312.

65 Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, United Kingdom Treaty Series, 1922, No. 2, Cmd. 1609. The Irish Free State was not in existence as a separate Dominion at the time the convention was concluded.

66 Printed in Supplement to this JOURNAL, Vol. 23(1929), p. 40.

67 See Vincent, C. MacDonald, “Canada’s Power to Perform Treaty Obligations,” The Canadian Bar Review, Vol. XI, 1933, p. 665 Google Scholar.

68 1937 A. C. 326, at 351. Professor W. Ivor Jennings interprets this opinion of the JudicialCommittee to mean that the International Radiotelegraph Convention “comes to the same thing” as a treaty between the British Empire and foreign countries which imposes obligations upon Canada “as a part of the British Empire, ” because there are no Provincial powers over radio, i. e. , because the matters dealt with in the Convention “did not fall within the enumeratedclasses of subjects in section 92 or even within the enumerated classes in section 91.” If Professor Jennings’ interpretation is correct, then the Judicial Committee deserves far less criticism than it has received on the score that its opinion on the international labor conventions involves a complete reversal of its position in the Radio case.

69 See John, S. Ewart, “The Radio Case,” The Canadian Bar Review, Vol. X, 1932, pp. 298–303.Google Scholar

70 MacDonald, Vincent C. , “Canada’s Power to Perform Treaty Obligations, ” toe. cit. , pp. 581–599, 664–680 Google Scholar.

71 Ibid., p. 598.

72 These various treaties are collected and printed in convenient form by the Carnegie Endowment for International Peace in The Treaties of Peace 1919-1923 (1924). 2 vols.

73 See F. R. Scott, “The Privy Council and Mr. Bennett’s ‘New Deal’ Legislation, ” The Canadian Journal of Economics and Political Science, May, 1937, pp. 234–241. As a result of the opinion of the Judicial Committee on Jan. 28, 1937, Mr. Scott concludes, there are three categories of treaties which must now be distinguished: “First, ‘Empire Treaties’ falling under section 132: Dominion legislation implementing these is fully competent no matter how much it interferes with property and civil rights. Second, Canadian treaties or conventions whose subject matter falls within a specified head of section 91 (such as trade and commerce) or at least outside section 92 (like the Radio Convention) : Dominion legislation implementing these is also valid though it interfere with property and civil rights. Third, treaties or conventions whose subject matter falls within the provincial powers enumerated in section 92: here the implementing of the treaty requires provincial legislation, and it may be that the negotiation of the treaty requires provincial executive action as well, since the Privy Council expressly refused to decide the question whether the Dominion had any authority even to perform the executive act of entering into the treaty. As a party to a British Empire treaty Canada is therefore a unitary state; as an independent country she is composed of nine (or is it ten?) sovereign states whose assent is required before the obligations of certain treaties can be fully performed. The logical political consequence of this is that plenipotentiaries from the provinces will have to attend at the negotiation of treaties of this third category in order to insure their adoption and enforcement; which is equivalent to saying that Canada is practically incompetent to make any such treaties at all.”

74 In the generic sense.

75 Others would deny that constitutional conventions established so recently as 1923 and 1926 have already become constitutional law.

76 1936 S. C. R. 461, at 513.

77 Ibid., at 538.

78 1936 S. C. R. 522.

79 Jenks, C. Wilfred , “The Present Status of the Bennett Ratifications of International Labour Conventions, ” Canadian Bar Review, Vol. XV, No. 6, June, 1937, p. 464 Google Scholar.

80 See Quincy, Wright, The Control of American Foreign Relations, New York, 1922, pp. 38-56.Google Scholar

81 See, for example, the case involving the Legal Status of Eastern Greenland and the legal finality of the Ihlen Declaration. P. C. I. J. , Series A/B, No. 53, April 5, 1933, p. 71.

82 An. Act of the Dominion Parliament of 1912 relative to the Department of External Affairs provides : “The Minister (the Prime Minister, who is Secretary of State for External Affairs), as head of the Department, shall have the conduct of all official communications between the Government of Canada and the Government of any other country in connection with the external affairs of Canada, and shall be charged with such other duties as may be assigned to the Department by order of the Governor in Council in relation to such external affairs, or to the conduct and management of international or intercolonial negotiations so far as they may appertain to the Government of Canada.” Statutes of Canada, 1912, c. 22, s. 5; Revised Statutes of Canada, 1927, Vol. 2, c. 65, s. 5.

83 Stoke, Harold W. , The Foreign Relations of the Federal State, Baltimore, 1931, p. 114 Google Scholar.

84 Wright, Quincy , op. cit. , p. 63 Google Scholar.

85 Wheaton, Dana’s , Sec. 543, Note 250;5 Moore 230 Google Scholar.

86 6 Moore 840; U. S. Foreign Relations, 1891, pp. 727–728.

87 See League of Nations, Conference for the Codification of International Law, Responsibilities of States, C. 75. M. 69. 1929. V, pp. 121–124.

88 See Ralph, Arnold, Treaty-Making Procedure, London, 1933, Introductory Note by Arnold D. McNair, pp. 1, 4, 15.Google Scholar

89 And in the British Commonwealth generally.

90 During the discussions in the Canadian House of Commons, April 5, 1937, Mr. J. T. Thorson declared: “The time has come, Mr. Chairman, for us to face an important decision, and I submit that appeals to the Judicial Committee of the Privy Council should be abolished.” House of Commons Debates, Vol. 73, 1937, p. 2780.

91 See Kennedy, W. P. M., “The Constitution of Canada,” Politica, June, 1937, p. 356.Google Scholar

92 One judgment of the Supreme Court was altered in part. These are Appeals Nos. 100-105 of 1936: 1937 A. C. 326, 355, 368, 377, 391, 405. Only Appeal No. 100 of 1936 concerns legislative competence of the Dominion Parliament in connection with treaties. For this reason the other cases are not considered in the present discussion.

93 Appeals to the Judicial Committee in Canadian criminal cases have already been abolished. British Coal Corporation v. The King, 1935 A. C. 500. The Irish Free State has abolished all appeals.

94 The method of giving effect to agreements between the Dominion Government and the Governments of the Canadian Provinces and of altering the British North America Act may be illustrated by the form of the Act of July 10, 1930, to confirm and give effect to certain agreements entered into between the Government of the Dominion of Canada and the Governments of the Provinces of Manitoba, British Columbia, Alberta, and Saskatchewan respectively. (This Act is cited as the British NorthAmerica Act, 1930, United Kingdom, Public General Acts and Measures, 20–21 Geo. 5, 1929–30, c. 26. ) The form of the Act is as follows: “WHEREAS the agreements set out in the Schedule to this Act were entered into between the Government of the Dominion of Canada and the Governments of the Provinces of Manitoba, British Columbia, Alberta, and Saskatchewan respectively subject, however, ineach case to approval by the Parliament of Canada and the Legislature of the Province to which the agreement relates and also to confirmation by the Parliament of the United Kingdom:

“And whereas each of the said agreements has been duly approved by the Parliament of Canada and by the Legislature of the Province to which it relates:

“And whereas the Senate and Commons of Canada in Parliament assembled have submitted an address to His Majesty praying that His Majesty may graciously be pleased to give his consent to the submission of a measure to the Parliament of the United Kingdom for the confirmation of said agreements:

“Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

“1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the British North America Act, 1867, or any Act amending the same, or any Act of Parliament of Canada, or in any Orderin Council or terms or conditions of union made or approved under any such Act as aforesaid.”

The view has been expressed that the British Parliament would doubtless pass any amendment requested by the Dominion Parliament alone, and that the refusal of the Parliament at Westminster to accept the action of the Dominion Parliament as representing the wishes of the Canadian people would be “an unwarranted interference in Canadian Affairs.” See Royal Institute of International Affairs, The British Empire (London, 1937), p. 29.

95 See Historicus, “The Privy Council and Canada, ” loc. cit. , p. 473.