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CANADA'S RADIO REFERENCE CASE TO THE PRIVY COUNCIL

Regarding the Regulation of Radio in Canada

 

W.J. Wilson

 

Shortly after the close of World War I it was recognized that international attention would have to be paid to maritime mobile radio communications if safety of life at sea was to be improved. By the time of the early 1920s the knowledge of what could be accomplished using radio, and the interest of the general public in using it for broadcasting and domestic world-wide communications, was growing rapidly. It was evident by then to those in Canada's government that the regulation of radio both domestically and internationally in some form was necessary to ensure that it would develop in an orderly fashion. Then in 1927 an International Radio Telegraph Conference was called to meet in Washington to deal with the international regulation of all existing and anticipated uses of radio as foreseen in those days. Canada sent a delegation to that conference and in 1928 ratified the convention and regulations adopted by the conference.

 

Arising from these early developments, as well as from the conference preparatory discussions and final decisions, was the view, especially in Quebec, that certain aspects of these radio services conducted within provincial boundaries should be under provincial regulation. On the other hand there were those who thought it futile to subject what were essentially single undertakings to regulation by two quite separate government bodies.

 

When the subject of radio regulation came up for discussion in the House of Commons, it was evident that there were those in Quebec who wanted provincial control of radio within their province. Consequently, following discussions in the House, the matter of whether Parliament had the jurisdiction to regulate and control radio communications and if not how its jurisdiction was limited, the Governor General in Council was instructed to refer these two questions to the Supreme Court of Canada in 1931:

 

1.  Has the Parliament of Canada the 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 participants were the Attorney of Quebec and the Attorney General of Canada. After discussions that are recorded on 20 legal size pages, 3 of the 5 Supreme Court Justices were in support of the view that Parliament had full jurisdiction to regulate and control radio communi-cations in Canada. The answer to the first question being in the affirmative, it became unnecessary to answer the second. Clearly, there was no unanimity among our Justices. The result was that a decision was taken by our Government to appeal the matter to the Privy Council in London, England.

 

The Lords of the Judicial Committee of the Privy Council in their considerations took into account the report of the Justices of our Supreme Court. On February 9, 1932, Viscount Dunedin delivered their report that, among other things, the Government of Canada as a whole must cooperate with other countries for the proper carrying out of international agreements and be able to pass related legislation that should apply to all those living in Canada. It was noted that Canada had signed the General Regulations made at the Washington Conference of 1927 and had ratified the Convention on July 12, 1928.

 

Upon the whole matter their Lordships had, …"no hesitation in holding that the judgment of the majority of the Supreme Court was right and their Lordships will humbly advise His Majesty that the appeal should be dismissed". They noted in their conclusion that, ..."it is a matter of common sense that the result arrived at seems consonant with common sense."

 

W.J. (Bill) Wilson

23 May 06

 

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