¹ For proposals for a legislative technique, see my article “Delegation—A Way Over the Constitutional Hurdle” (Canadian Bar Review, vol. XXIII, 1945, p. 79).Google Scholar

² Cf. Finer, H. “Post-War Reconstruction in Great Britain” (Canadian Journal of Economics and Political Science, vol. VIII, no. 4, 11, 1942, pp. 493–513)CrossRefGoogle Scholar: “In this war, too many people have undergone too deep an ordeal by fire to acquiesce in the pre-war dispensation, or any mere tinkering with it, as their share in the war of democratic deliverance.”

³ “A nationally based and nation-wide social security programme can strengthen true Canadian unity. It is the practical expression of our common interest in protecting the individual against economic hazards beyond his control” ( Dominion-Provincial Conference on Reconstruction, Proposals of the Government of Canada, 08, 1945, Ottawa, 1945, p. 28).Google Scholar

⁴ E.g., the Rowell-Sirois Commission on Dominion-Provincial Relations; the recent Dominion-Provincial Conference; the Marsh and Heagerty Reports. See also individual treatises, e.g., Cassidy, H. M., Social Security and Reconstruction in Canada (Toronto, 1943)Google Scholar; Public Health and Welfare Organization (Toronto, 1945)Google Scholar; Whitton, Charlotte, The Dawn of Ampler Life (Toronto, 1943).Google Scholar

⁵ “A comparison of estimated post-war revenues with estimated post-war expenditures reveals the utter inadequacy of provincial taxing powers to support the share of the post war programme which is the provinces' constitutional responsibility.” The Honourable Stuart Garson in the House of Commons Special Committee on Reconstruction and Re-establishment, Minutes of Proceedings and Evidence, no. 19, 06 2, 1943 (Ottawa, 1943), p. 499.Google Scholar

⁶ “In general, but with honourable exceptions, the existing services are poorly organized, their administration is mediocre, their personnel is weak, and they lack life and vitality.” Cassidy, Social Security and Reconstruction in Canada.

⁷ Numerous articles of criticism have been written. See, e.g., the symposium in the Canadian Bar Review, vol. XV, by Kennedy, W. P. M., Jennings, W. Ivor, Cronkite, F. C., Scott, F. R., and othersGoogle Scholar; also Kennedy, W. P. M. “The Interpretation of the British North America Act” (Cambridge Law Journal, vol. VIII, p. 146)Google Scholar; MacDonald, V. C. “Judicial Interpretation of the Canadian Constitution” (University of Toronto Law Journal, vol. I, no. 1, 1935, p. 260)Google Scholar; Jennings, W. Ivor “Constitutional Interpretation, the Experience of Canada” (Harvard Law Review, vol. LI, p. 1)Google Scholar; Tuck, Raphael “Canada and the Judicial Committee of the Privy Council” (University of Toronto Law Journal, vol. IV, no. 2, 1941, p. 33).CrossRefGoogle Scholar

⁸ See the attempt made in 1935 by the Natural Products Marketing Act which, however, was declared invalid by the Privy Council—1937 A.C. 377.

⁹ The obvious way out of all the difficulties is to amend the British North America Act thoroughly, making a re-allocation of functions, and providing the machinery for future amendments. This, however, is by no means as simple as it sounds, for the Act contains no provision for its own alteration, and although a number of the provinces have been clamouring for such a change, the Canadian government may deem it inadvisable to amend the Act in the teeth of any strong opposition from a province.

¹⁰ Under s. 91, e.g., ss. 24, “Indians and Lands Reserved for Indians.”

¹¹ Probably under s. 92, ss. 16, “Generally all matters of a merely local or private nature in the province.”

¹² Cf. Corry, J. A., Growth of Government Activities since Confederation, supplementary study for the Royal Commission on Dominion-Provincial Relations (Ottawa, 1940), p. 95.Google Scholar

¹³ In his message in 1938 to the National Health Conference.

¹⁴ Today, this body consists of the chief medical officer of health of each of the provinces, one scientific adviser, and four lay persons representing, respectively, labour, agriculture, and women's urban and rural organizations. The Deputy Minister of National Health is chairman.

¹⁵ Grauer, A. E., Public Healthy supplementary study for the Royal Commission on Dominion-Provincial Relations (Ottawa, 1940), p. 2.Google Scholar

¹⁶ E.g. the Maternal and Child Hygiene Division, the Industrial Hygiene Division, etc. As late as 1942, the office of Director of Nutrition Services was created in the Department “to improve the nutrition of the people of Canada and to educate the public regarding the nutritional value of foods” (see Department of Pensions and National Health, Annual Report, 1932, Ottawa, 1932, p. 102).Google Scholar Other activities under Dominion authority include quarantine control, the rigid supervision of immigration, the control of food and drugs, narcotics and patent medicines, while the laboratory of hygiene, public health engineering, and medical investigation are three other important divisions.

¹⁷ Study of the Distribution of Mental Care and Public Health Services in Canada (Toronto, 1939).Google Scholar

¹⁸ These comprised approximately 25 per cent of the total population for the year 1936. The volume of medical care was found to be curtailed in reference to the medically indigent and to low-income groups, with consequent high morbidity rates among them. There was found to be a lack of bed accommodation for tuberculosis and mental illnesses, lack of visiting nurse service, and lack of an organized programme of pneumonia control.

¹⁹ Grauer, Public Health.

²⁰ He points out how, between 1927 and 1936, there were reductions in communicable diseases, due to an organized attack on them. Two large experiments in New York show the effectiveness of increased expenditures on public health. Yet in Canada, he says, “sums spent on problems of public health are not large compared with other governmental expenditures and in view of the importance of the problems” (see ibid., p. 31).

²¹ This was done in 1928 by the province of Manitoba, since which time many of the provinces, and now the Dominion, have followed its lead.

²² Dominion-Provincial Conference on Reconstruction, Proposals of the Government of Canada, 08, 1945 (Ottawa, 1945), p. 28.Google Scholar

²³ Cf. Grauer, , Public Health, p. 66.Google Scholar

²⁴ Montreal went from 219 in 1927 to 18 in 1936.

²⁵ In 1943, the death rate for Indians from tuberculosis was 757.7 per 100,000, as compared with the figure of 45.5 for the population of Canada exclusive of Indians—that is, almost seventeen times as much. See Health, Welfare and Labour, reference book for the Dominion-Provincial Conference, 08, 1945 (Ottawa, 1945), pp. 14–15.Google Scholar

²⁶ Department of National Health and Welfare, First Annual Report, 1945 (Ottawa, 1946), p. 49.Google Scholar (The figures given are for 1943.)

²⁷ Ibid.

²⁸ A co-operative venture worthy of note was the field work carried on in the province of Quebec by the Director of the Dominion Division and the Nurse-Sociologist, which greatly stimulated the interest of the medical profession; see Department of Pensions and National Health, Annual Report, 1942, p. 144.Google Scholar

²⁹ Grauer, , Public Health, p. 36.Google Scholar

³⁰ E.g., to agencies engaged in work concerning maternal and child welfare.

³¹ Grauer, , Public Health, p. 55.Google Scholar

³² Department of National Health and Welfare, First Annual Report, 1945 (Ottawa, 1946), p. 29.Google Scholar Opinion has been expressed, however, that this work could be more economically done by the provincial departments.

³³ Quebec, Ontario, and Manitoba.

³⁴ For instance, in September, 1944, an industrial nursing service was inaugurated under the direction of a public health nurse, who had had special training in the problems of nursing in industry. See Department of National Health and Welfare, First Annual Report, 1945, p. 52.Google Scholar

³⁵ Manitoba.

³⁶ Cf. Grauer, , Public Health, p. 37.Google Scholar

³⁷ Ibid., pp. 69 ff.; Cassidy, , Public Health and Weifare Organization, p. 22.Google Scholar

³⁸ The Dominion government is contemplating the construction of a national laboratory as a post-war development project. See Dominion-Provincial Conference on Reconstruction, Proposals of the Government of Canada, 08, 1945, p. 36.Google Scholar

³⁹ Cf. Canadian Public Health Association, The Development of Public Health in Canada (Toronto, 1940), pp. 176 ff.Google Scholar

⁴⁰ The province of Manitoba had previously transferred its health and welfare education to its administrative section.

⁴¹ Cf. Grauer, , Public Health, pp. 52 ff.Google Scholar

⁴² Cf. Health, Welfare, and Labour, reference book for the Dominion-Provincial Conference, 08, 1945, p. 13.Google Scholar

⁴³ The figure for Michigan in 1937-8 was 55.1 per cent; in Florida in 1938-9, it was 44.3 per cent.

⁴⁴ Cassidy, , Social Security and Reconstruction in Canada, pp. 180–1.Google Scholar See also Public Health and Welfare Organization, pp. 449 and 455.

⁴⁵ Grauer, Public Health.

⁴⁶ See infra.

⁴⁷ Cf. Report of the Royal Commission on Dominion Provincial Relations (Ottawa, 1940), book II, pp. 172–3.Google Scholar

⁴⁸ The result of the work which was done is to be found in the symposium published in June, 1942, in the Canadian Public Health Journal, but the assistance in differential diagnosis which was obtained came from the United States Public Health Service, and the Rockefeller Foundation—not from the Canadian federal centre, where we should expect to find it, although some help was received from the Department of Agriculture at Ottawa.

⁴⁹ The Dominion government has recognized the necessity for this, and in its proposals submitted to the Dominion-Provincial Conference, August, 1945, it states: “In order to assist the provincial governments in their fields, the federal government will be prepared to make its staff available in a consultative capacity, and to consider providing the staff and equipment necessary for doing those things which the provincial governments agree are capable of being done most effectively by the federal government.”

⁵⁰ This report was made by the American Public Health Association at the request of the Provincial Minister and Deputy Minister of Public Health in Manitoba.

⁵¹ At p. 26—though the Report found that the Department had strong, capable leadership, well-trained and capable personnel in key positions, and a generally excellent administrative plan (see p. 9).

⁵² See supra.

⁵³ At a meeting of the Dominion Council of Health in 1941, it was agreed that studies should be conducted with the object of formulating a plan of post-war public health (cf. Department of Pensions and National Health, Annual Report, 1942, p. 104).Google Scholar An interesting example of such a conference was the Federal-Provincial Conference of Venereal Disease Control Directors at Ottawa in August, 1944 (cf. Department of National Health and Welfare, First Annual Report, 1945, p. 60).Google Scholar

⁵⁴ House of Commons, Special Committee on Reconstruction and Re-establishment Minutes of Proceedings and Evidence, no. 19, 06 2, 1943, p. 503.Google Scholar

⁵⁵ General public health expenditure figures for 1943 show that the provinces spent nearly $10 million, while the corresponding figure for the Dominion was a mere $1,270,000.

⁵⁶ House of Commons, Special Committee on Reconstruction and Re-establishment, Minutes of Proceedings and Evidence, no. 19, 06 2, 1943, pp. 504–7.Google Scholar

⁵⁷ ProfessorGrauer, (Public Health, pp. 60 ff.)Google Scholar has brought the functions which should be assumed by the Dominion under three main headings: (a) particular health functions assigned to the Dominion (e.g., the Dominion has taken over the control of leprosy); (b) coordination of public health policy throughout the Dominion (this, I think, should include public health and personnel training); (c) inter-provincial health problems beyond the control of individual provinces. I cannot agree with Professor Grauer, however, that the Dominion should take over specific problems which affect some areas and not others—e.g., trachoma in Manitoba, or Rocky Mountain Spotted Fever in British Columbia and Alberta—on the ground that it is the Dominion responsibility to prevent communicable diseases from spreading. On the contrary, this would seem to be just the type of service with which a province—not the Dominion—is best fitted to cope, given the requisite financial assistance it needs. Dominion experts should certainly work in co-operation with the province, and from its research provide that province with the guidance it may need, but the actual administration should be in provincial hands.

⁵⁸ It should again be emphasized, however, that the standards would be rather of efficiency and achievement than of service, since problems are different in different areas, and to achieve the same result in one district may require only a fraction of the service necessary in another.

⁵⁹ We have a good example of this in the experience of the nineteen-thirties, when the Dominion was forced to assist the provinces whose resources were hopelessly inadequate. Large Dominion expenditures were made to the provinces without adequate control, or even an attempt at co-ordination of policy. Each province spent the money as it pleased, resulting in waste and the breakdown of the finances of several provinces.

⁶⁰ It is well known, for instance, that some of the special provincial taxes never reach the stated objectives (I am not referring specifically to any particular province); people talk loudly about this when they pay them, but their talking produces no change. If, however, the provincial government knew that the tax would be removed if it were not applied to its stated purpose, I suggest that the result would be wholly different.

⁶¹ ProfessorMaxwell, J. A. (Federal Subsidies to the Provincial Governments in Canada, Cambridge, Mass., 1937)CrossRefGoogle Scholar, gives an interesting account of the “shameful history of unconditional subsidies,” which he terms a history of “the provinces' search for argument in a historical grab-bag in which facts and fiction have been inextricably conjoined.” He points out how in many cases grants have been made for political reasons, and each concession has raised fresh demands, the granting of which brought no real benefit at all.

⁶² It states that the proposed grants are “to be conditional upon the Governor-in-Council being satisfied after consultation with the Dominion Council of Health that the provisions and administration of the general public health services and special services are such as would secure the effective and satisfactory use of the grants to extend and improve these services throughout the province.” See Dominion-Provincial Conference on Reconstruction, Proposals of the Government of Canada, 08, 1945, p. 35.Google Scholar

⁶³ The Sirois Commission were of the opinion that it fails to meet the test of efficiency in a federal state, and, as such, is unsatisfactory and unsuitable (see book I, pp. 254 ff., book II, pp. 21 ff., and 126 ff.). This same view is taken by ProfessorCorry, J. A. (Difficulties of Divided Jurisdiction, supplementary study for the Royal Commission on Dominion-Provincial Relations, Ottawa, 1940, pp. 28 ff.).Google Scholar On the other hand, it is recommended by Dr. Grauer, at least in the field of public health (Public Health, p. 63), the Canadian National Committee for Mental Hygiene (see Study of the Distribution of Medical Care and Public Health Services in Canada, p. 131), Dr. Cassidy (see Social Security and Reconstruction in Canada, p. 110), and Dr. Maxwell (see Federal Subsidies to the Provincial Governments in Canada), while in a very able survey, Dr. Luella Gettys reaches the conclusion that, if properly administered, the grant-in-aid has great potentialities (see The Administration of Canadian Conditional Grants—A Study in Dominion-Provincial Relationships, Chicago, 1938).Google Scholar

⁶⁴ Cf. Cassidy, , Social Security and Reconstruction in Canada, p. 109.Google Scholar

⁶⁵ Gettys, , The Administration of Canadian Conditional Grants, p. 172.Google Scholar

⁶⁶ There was an agreement into which each province was required to enter with the Dominion, which stipulated certain conditions. Periodic inspections revealed that these terms were substantially complied with.

⁶⁷ Gettys, , The Administration of Canadian Conditional Grants, p. 110.Google Scholar

⁶⁸ For instance, to become eligible for the venereal disease grant, the provinces had to fulfil certain conditions; see Grauer, , Public Health, pp. 79–80.Google Scholar

⁶⁹ See Corry, , Difficulties of Divided Jurisdiction, p. 9.Google Scholar

⁷⁰ This is borne out by the experience in the United States, where ministers do not form the connecting link between the administration and the legislature, the principle of cabinet responsibility being absent from their political system.

⁷¹ If necessary, each province may pass an act stating that the standards to be attained in the various fields shall be those decided upon by this board at Ottawa.

⁷² For instance, we might have, as subdivisions of the local health services, a council of disease control, a council of maternal and child health, etc., or they might be even further split up, e.g., a council of tuberculosis control, a council of venereal disease control, etc.

⁷³ This has already been done, informally, by the sections of Public Health Nursing in the provinces. The public health nurses in each province formulated their requirements, after which the heads of each provincial public health nursing section met, and out of their deliberations, recommendations were drawn up regarding regulations and standards which this informal council deemed necessary for the efficient working of public health nursing throughout the Dominion. These recommendations were then sent to Ottawa. If, however, this form of deliberative body can function usefully informally, there is no reason why the principle should not be formally recognized and extended to all the services, and provision made for the introduction of this system throughout the Dominion.

⁷⁴ Dominion-Provincial Conference on Reconstruction, Proposals of the Government of Canada, 08, 1945, p. 36.Google Scholar

⁷⁵ Ibid., p. 8.

⁷⁶ An outstanding example of this was the invalidation, by the Privy Council, of the Natural Products Marketing Act, 1937 A.C. 377.

⁷⁷ Cf. Corry, , Difficulties of Divided Jurisdiction, p. 13 Google Scholar: “If co-operation on the legislative level falters, it embarrasses the whole activity on the administrative level.”

⁷⁸ In the famous Natural Products Marketing Case, 1937 A.C. 377.

⁷⁹ I have attempted to illustrate these difficulties, with particular reference to the United States, in “Delegation—A Way Over the Constitutional Hurdle” ( Canadian Bar Review, vol. XXIII, 1945, pp. 82–6).Google Scholar

⁸⁰ It has been found particularly useful in regulating agricultural marketing products.

⁸¹ See, e.g., R. V. Zaslavsky, 1935, 3 D.L.R. 788. I have criticized this case elsewhere (see “Delegation—A Way Over the Constitutional Hurdle,” Canadian Bar Review, vol. XXIII, 1945, pp. 86–8).Google Scholar

⁸² “Delegation—A Way Over the Constitutional Hurdle” (Canadian Bar Review, vol. XXIII, 1945, pp. 86–8).Google Scholar

⁸³ The judicial pronouncements of that august body on this point, although entitled to great weight, have still so far been only obiter dicta.

⁸⁴ The British North America Act of 1867. Amendment of the Act would be very difficult. When we consider that it took four years to amend it in one small particular, so as to give the Dominion Parliament the power of legislation regarding unemployment insurance, we might envisage, at this rate of change, a comprehensive programme of social security perhaps during the last decade of this century. Nor is this all. The unemployment insurance amendment was recognized, throughout the whole Dominion, as vitally necessary (all the provinces, that is, were in agreement), but it is unlikely that the same degree of unanimity will be accorded to many other proposals for change, while any thoroughgoing overhaul of the Act itself will meet with the bitterest resistance from certain quarters.

⁸⁵ The act need not specify the composition of the body, but may leave it to the minister or deputy minister to make the appointments.

⁸⁶ Cf. Corry, , Difficulties of Divided Jurisdiction, pp. 43–4.Google Scholar