Social Reform and the Constitution

Abstract

Between 1867 and 1934 over 136 constitutional cases have faced the Privy Council with the task of saying what the Canadian constitution means. Despite those cases, or because of them, it is still quite certain that unless legislation falls clearly within one of the specific heads of s. 91 or s. 92 of the B.N.A. Act, it is virtually impossible to guess where legislative authority over any question will finally be found to reside. In practice this depends not only on the Act and the cases but in part on the way the issue is raised and presented and in part on each judge's personal inclination towards federal or provincial authority. The further circumstances that the form of the proposed reform legislation has not been finally settled at the time of writing increases the difficulty of even describing fairly the constitutional issues raised by the government's social legislation which is the subject of this paper. It is like guessing what attitude the Privy Council in England will take to a series of constitutional earthquakes that have not yet happened.In all this uncertainty one thing at least appeared to be certain. This was that everything proposed in Mr. Bennett's policy of social reform was beyond the powers of the Dominion. Out of all those who considered the question before the current session of Parliament, only four authorities seem to have thought it possible that the Dominion might have jurisdiction. The situation was recognized by Mr. Bennett last August when he wrote to the provinces indicating his intention to call a Conference to discuss, among other matters, the question: “Are the provinces prepared to surrender their exclusive jurisdiction over legislation dealing with such social problems as old-age pensions, unemployment and social insurance, hours and conditions for work, minimum wages, etc., to the Dominion Parliament? If so, on what terms and conditions?” But the provinces' cool response to this letter led to the proposed Conference being abandoned, and in January Mr. Bennett in five radio speeches broadcast the policy of reform. In introducing the Employment and Social Insurance Act on January 29, 1935, Mr. Bennett set under way the coach and four he was starting to drive through current conceptions of the constitution, if not through the constitution itself. It might almost seem that his reading of the speeches of the Fathers of Confederation led him into the error of thinking that the constitution was what they intended it to be.