1937-04-05

Mr. SPEAKER:: I have the honour to inform the house that the clerk of the house has received from the chief electoral officer certificate of the election and return of Pierre Emile Cote, Esquire, for the electoral district of Bonaventure.



NEW MEMBERS INTRODUCED

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Pierre Emile Cote, Esquire, member for the electoral district of Bonaventure, introduced by Right Hon. W. L. Mackenzie King and Hon. Ernest Lapointe.
John Allmond Marsh, Esquire, member for the electoral district of Hamilton West, introduced by Right Hon. R. B. Bennett and Mr. A. A. Brown.

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Second report of standing committee on miscellaneous private bills-Mr. McPhee.
Second report of standing committee on agriculture and colonization.-Mr. Weir.

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Mr. A. E. MacLEAN (Prince) presented the third and final report of the standing committee on marine and fisheries and moved that the report be concurred in.
Mr. STEVENS:: Personally I should like to have an opportunity of studying this report. It is very important, and I do not think it should be rushed through in this manner.
Motion stands.
[Mr. Stevens. 1



CIVIL SERVICE ACT AMENDMENT

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Mr. JEAN FRANCOIS POULIOT (Temis-couata) moved for leave to introduce Bill No. 100, to amend the Civil Service Act.
Some hon. MEMBERS:: Explain.


Mr. POULIOT:: Mr. Speaker, the only purpose of this bill is to curtail the preference in favour of men who saw service during the war in the armies of allies of his majesty, and the best explanation of the bill can be found in question No. 8 on to-day's order paper.
Motion agreed to and bill read the first time.



QUESTIONS

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(Questions answered orally are indicated by an asterisk.)

Mr. GRAYDON:: 1.	What work, if any, has been done in the way of harbour improvements at Port Credit, Ontario, since January 1, 1936?
2.	If any such work was done, what was the total cost of same?
3.	Will the government consider improving said harbour facilities during the current year?


Mr. CARDIN:: 1.	None.
2.	Answered by No. 1.
3.	The matter will have consideration.


CATTLE SHIPMENTS FROM DROUGHT AREA
Mr. EVANS:: 1.	How many cattle were shipped out of the drought area of western Canada in 1936 under the federal feeder cattle policy?
2.	What amount of money was expended by the government in giving assistance to buyers of the feeder cattle?
3.	How many cattle were shipped to each of the following provinces: Ontario, Quebec, New Brunswick, Nova Scotia, and Prince Edward Island?
4.	How many lambs were shipped out of the drouth area of western Canada under the feeder policy, and what was the amount expended by the government in assistance to buyers of these feeder lambs?


Mr. GARDINER:: 1.	21,521 cattle.
2.	$74,218.91.
3.	Ontario, 17,557 cattle; Quebec, 1,386 cattle; New Brunswick, 448 cattle; Nova Scotia, 378 cattle; Prince Edward Island, 74 cattle.
4.	(a) 53,312 lambs; (b) $13,181.88.
Note: Foregoing figures apply only to shipments made under feeder freight policy upon

Customs Tariff-Rate of Exchange
which refunds have been made to March 25, 1937. Claims still to be dealt with will increase these totals.
In addition, rebates of travelling expenses to purchasers of feeder cattle and lambs in western Canada under the feeder purchase policy both within and outside the drought areas total $24,740.95.


CHIEF JUSTICE J. H. BARRY
Mr. WALSH:: 1.	Has the Minister of Justice received any communication from the attorney general of New Brunswick with reference to a resolution adopted by the council of the barristers' society of that province, relative to Honourable J. H. Barry, chief justice of the king's bench division?
2.	If so, what is the purport of the said resolution and what, if any, action is being taken in the matter?


Mr. LAPOINTE (Quebec East):: 1.	No communication has been received from the attorney general of New Brunswick.
A resolution was received from the council of the barristers' society, New Brunswick, relative to the infirmities of the Honourable J. H. Barry, Chief Justice, king's bench division.
2.	The matter is under consideration.


GLENBURNIE, ONT., POST OFFICE
Mr. TUSTIN:: 1.	Has there been a change in the postmastership at Glenburnie (Frontenae-Adding-ton) ?
2.	If so:	(a) who was the previous postmaster; (b) who is the present postmaster?
3.	On whose recommendation was the change made?


Mr. ELLIOTT (Middlesex):: 1.	Yes.
2.	(a) Archibald Bruton, (b) Chas. Stokes.
3.	C. A. Campbell, M.P.


Mr. TUSTIN:: 1.	What rural routes are serviced from the post office at Glenburnie (Frontenac-Adding-ton) ?
2.	Have tenders lately been invited for performing said service or services?
3.	If so, -what are the names of those who submitted tenders, and what is the amount of each tender?
4.	Have the contracts been awarded, and, if so, to *whom?
5.	Who recommended the letting of the contracts?


Mr. ELLIOTT (Middlesex):: 1.	Glenburnie No. 1 rural route.
2.	Yes.
3.	Bruce Craig, Glenburnie, $390; Willard M. Coulten, Glenburnie, $400; Charles Stokes, Glenburnie, $450.
4.	Yes, to Bruce Craig.
5.	Contract was awarded to the lowest tenderer in accordance with the terms of the Post Office Act.


MOTIONS FOR PAPERS
Mr. MASSEY (for Mr. Brooks):: For a copy of all payrolls showing money expended and to whom it was paid for certain hand dredging done by the Department of Public Works at Wolfville harbour, Kings county, Nova Scotia, during the year 1936. Also a statement showing the name of party having the commission.


TORONTO-TORONTO ISLAND TUNNEL
Mr. TOLMIE (for Mr. Church):: For a copy of all correspondence, letters, telegrams, and other documents, relating to the abandonment of an agreement for the building of a tunnel between Toronto island and the mainland of Toronto, to be constructed by the federal government. Also a statement showing what was spent on said work and by whose order it was abandoned and the contracts cancelled.


MR. FRANK GAUDET
Denton Massey: For a copy of all papers, affidavits, evidence, correspondence and other documents concerning the dismissal of Mr. Frank Gaudet, former postmaster at Baraehois, parish of Shediac, Westmorland county, New Brunswick, together with a statement of cost of investigation showing to whom money was paid.


GLENBURNIE, ONT., RURAL MAIL SERVICE
Mr. LOCKHART (for Mr. Tustin):: For a copy of all correspondence, letters, telegrams and other documents relating to the post office at Glenburnie (Frontenac-Adding-ton), and the rural route service therefrom, from the 1st day of January, 1936, to the present time.


CUSTOMS TARIFF AMENDMENT
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Hon. J. L. ILSLEY (Minister of National Revenue) moved that the house go into committee at the next sitting to consider the following proposed resolution:
That it is expedient to amend section 6 of the Customs Tariff to provide that, notwithstanding the provisions of any other law, the governor in council may from time to time, and as occasion requires, and without having regard to the requirements of section 55 of the Customs Act, order and direct, subject to such exceptions as may be made, what shall be the rate of exchange fixed for any currency
Customs Act-Drawbacks
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in computing the value for duty of goods imported into Canada from any place or country, the currency of which is appreciated in terms of the Canadian dollar; and also to provide that in cases where, under such power, the governor in council shall have fixed the rate of exchange for any currency in computing the value for duty of goods imported into Canada, special or dumping duty shall not apply when the export or actual selling price is equal to or greater than the value for duty so computed, and where the same is less than the value for duty so computed, special or dumping duty applicable shall not be greater than the difference between the said export or actual selling price and the value for duty so computed.
He said: His Excellency the Governor General, having been made acquainted with the subject matter of this resolution, recommends it to the favourable consideration of the house.

Henry Herbert Stevens: Mr. Speaker, I have a couple of telegrams of considerable importance upon which I wish to direct a question to the Prime Minister (Mr. Mackenzie King). Before asking the question, may I draw his attention to three lines in the Votes and Proceedings for Friday, April 2. At page 377 I find this:
The bill, No. 84, an act to amend the Customs Act, was read the second time, considered in committee of the whole, reported with amendments, considered as amended, read the third time and passed.
This happened within a very short space of time. The bill was introduced on March 31, only four or five days ago. Without the possibility of those at a distance, such as people in Vancouver, being able to indicate even by telegram the manner in which they were affected by the bill, it was read a second time, considered in committee, read a third time and passed at one sitting, contrary to the rules of the house, because no unanimous consent was asked or given.
I have a wire from fourteen reputable firms operating in Vancouver, in which they say:
The undersigned Vancouver wholesale fruit and vegetable dealers vigorously protest the introduction of legislation designed to amend arbitrarily the value for duty purposes erroneously applied with view to having parliament retroactively validate and confirm such values in effort to bar claims for refunds of charges illegally collected.
This is signed by fourteen firms, the names of which I shall read if necessary. I also have

a telegram from Toronto. It is very long, but I believe it will be sufficient to read a line or two; I shall not weary the house by reading all of it:
We believe that Bill 84 to amend the Customs Act which received second reading on Friday, April 2, is a dangerous type of legislation due to its retroactive nature.
And so on, and so forth. The point I wish to draw to the attention of the Prime Minister is that this bill in one of its clauses gave authority to the department to disregard the errors which may have been made and which we know to have been made, while cases are before the courts and other firms have before the department appeals for refunds.


Some hon. MEMBERS:: Order.


Henry Herbert Stevens: The point I wish to make-


Some hon. MEMBERS:: Order.


Henry Herbert Stevens: I am in order; I will leave it to Mr. Speaker. The point I wish to make and upon which I desire to put a question to the Prime Minister is, first, that this very important measure containing retroactive provisions was rushed through in the short period I have indicated, and, secondly, that no unanimous consent to do so was asked or given. This is backed by the record-


Mr. LAPOINTE (Quebec East):: It is never put there.


Mr. BENNETT:: It is never put in the record.


Henry Herbert Stevens: Unanimous consent is put in.


Ernest Lapointe: It is never put in the record.


Henry Herbert Stevens: However, it was rushed through. I call the Prime Minister's attention to it and ask if he would consider such arrangements as might be made to enable those vitally affected to be heard by the senate before the bill is passed.


Right Hon. W. L. MACKENZIE KING (Prime Minister):: May I say to the hon. member that, as I recall it, the bill to which he refers was preceded by a resolution which was very fully discussed. The bill itself, when before the house, was fully discussed. On the point the hon. member is now raising may I say I do not recall his having raised any objection to the house proceeding with the bill in the manner in which it did proceed. Indeed, unanimous consent of the house was necessary in order to enable the bill to be expedited.

Seed Grain Assistance


Henry Herbert Stevens: I was sitting on a committee, the one to which I am going in a few minutes. It is a committee which sits while the house sits.


William Lyon Mackenzie King: No question was raised by anybody, and had any hon. member believed that we were proceeding with undue haste, attention would have been drawn to the fact. Unfortunately I am not in a position to control proceedings in another house. I assume the hon. member will make such representations as he wishes to hon. members there, where they can discuss the point he has just raised.



PROPOSED AMENDMENT TO THE JUDGES ACT


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On the orders of the day:
Hon. ERNEST LAPOINTE (Minister of
Justice): (Translation): Mr. Speaker, under date of Friday last, April 2, L'Action Catholi-que, of Quebec, published a dispatch from Ottawa reading as follows:
The Law will Compel Judges to Follow Privy Council Decisions
One of the most important amendments ever brought to the Judges Act in Canada has been submitted to Parliament by Hon. Ernest Lapointe. By this bill the Minister of Justice compels all judges henceforth to take account, in their judgments, of the latest decision of the privy council or of any other court of final appeal.
It is considered in the capital's legal circles that this bill will have a profound effect on the decisions that magistrates and judges will render in future, not only in Ontario but everywhere in Canada.
This report of l'Action Catholique is no doubt due to the error of one of its correspondents. I never pay attention to what the press says about me, but when the proposal of the hon. member for Broadview (Mr. Church) is laid to my door. I consider that the limit has been passed and that I must intervene. I never presented such a bill; I shall not support it, I do not endorse it, and if it ever reaches second reading I will say what I think of it.


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Hon. CHARLES A. DUNNING (Minister of Finance) moved that the house go into committee to consider the following proposed resolution:
That it is expedient to introduce a measure to authorize the guarantee by the government of
Canada of principal and interest of loans made by chartered banks and guaranteed by the provinces of Alberta, Manitoba and Saskatchewan, respectively, for the purchase of seed grain and for providing other assistance to farmers in connection with seeding operations during the spring of 1937; such loans not to exceed in the aggregate the sum of $1,600,000 in respect of Alberta, $750,000 in respect of Manitoba, and $6,600,000 in respect of Saskatchewan.
Motion agreed to and the house went into committee. Mr. Sanderson in the chair.
Mr. DUNNING:: Mr. Chairman, the bill to be founded upon the resolution follows the lines of similar legislation of a year ago. There is the exception, however, that this year the scope will be extended to the provinces of Alberta and Manitoba, following discussions and negotiations with the governments of those provinces. The guarantee by the dominion of the guarantee by the provinces of their municipalities with respect to seed grain loans involves a rate of interest to the municipalities of four per cent, and the provincial governments then arrange as to what the rate shall be as between the municipalities and the farmers securing the seed. I will give further details when we are considering the bill. For the present it is probably sufficient to say that as far as this government is concerned the banks supply the money to the municipalities on the guarantee of the provinces, guaranteed in turn by the dominion" at four per cent. The amounts named in the resolution have been arrived at after very careful examination by the federal Department of Agriculture of the representations of departments of agricul-' ture in the three western provinces. As to the term of loan, provision is made that the guarantee does not become effective, that is, the claims under the guarantee cannot be made for three years after the granting of the loan, thus giving the farmers in the drought area who secure seed a maximum of three crops before the guarantees, either of the province or of the dominion, become effective.
It may interest the house to know that with respect to last year's experience when loans up to about 84,000,000 were authorized, no guarantee has been given by the dominion up to the present, due to the fact that the province has not yet been able to supply the detailed information required. Under the plan as it worked last year in Saskatchewan sufficient repayments have been made by the farmers to reduce the liability as at the first of last month to 82,500,000. It is expected
Seed Grain Assistance

that in connection with the legislation of a year ago guarantee will be required only up to $2,500,000 instead of up to $4,000,000.


Richard Bedford Bennett: Do I understand that the guarantee of the provinces is sufficient to warrant the banks making these advances?


Charles Avery Dunning: That is the condition, yes.


Richard Bedford Bennett: Even for a loan as small as $1,600,000 in the case of Manitoba?


Charles Avery Dunning: That is so.


Richard Bedford Bennett: We are being asked to guarantee the guarantee of the provinces to the banks before they will make the loans?


Charles Avery Dunning: Yes.


Richard Bedford Bennett: In common with other hon. members, I have received a number of telegrams regarding the distribution of seed grain in the province of Saskatchewan. There are some questions I should like to have answered. First, how many acres of land in the drought area have had a succession of bad crops over a period of five years? Second, to what extent is it proposed to provide seed grain for this year? Third, how is the determination of the amount of seed required to be arrived at for the province as a whole? My next question had to do with distribution, but I think the minister has made this fairly clear. The municipalities assume responsibility for the distribution of the seed being provided to the provincial government. The reason I ask these questions is that the telegrams state that these people are unable to secure seed for seeding. They have been told they cannot get it and the only way they can bring their difficulties to the attention of parliament is by means of publicity. I know nothing of it and I merely ask for information because I cannot pledge my own word with respect to anything connected with it beyond the statements I have received. It does become important, though, to know the principle upon which the distribution is to be made. If it is to be selective, there must be a principle involved in the selection. It cannot be left to the mere whim or caprice of an individual who may like or dislike an applicant.


Charles Avery Dunning: The Minister of Agriculture (Mr. Gardiner) is more familiar with the details of this distribution than I, and I should like him to deal with that phase of it.


Mr. GARDINER:: In reply to the first question, as to the acreage affected by bad crops for five years, I can give the municipalities which have been affected over a period of six years. If the number of municipalities is multiplied by the acreage in a municipal area, the exact acreage involved will be arrived at. In 156 municipalities the average crop for six years has not been more than 5-4 bushels to the acre. That is the area affected this year by the seed allowances in Saskatchewan alone. The area in Alberta will vary in about the same proportion as the amount of the guarantee in the two provinces. The loan to Saskwatehewan is S6,600.000. to Alberta, 81,600.000 and to Manitoba 8750,000. The protests I have received have come from Saskatchewan. I have not received any from Alberta or Manitoba up to date.


Richard Bedford Bennett: Neither have I.


James Garfield Gardiner: I think I can explain
the Saskatchewan protests in this way: The amount of money asked for by Saskatchewan in the first instance was $8,750,000. This amount was based on the requests which had been made by the municipalities, it being suggested that this amount would be required in order to provide for the necessary seed and seeding supplies. After the Department of Agriculture in Ottawa had discussed the matter with the Department of Agriculture in Saskatchewan we concluded that there were considerable areas in Saskatchewan whose credit should be comparatively good. While they had had poor crops for a number of years we felt that an effort was being made to obtain as much security as possible. In connection with these municipalities we decided that the banks would be reasonably sure of getting repayment of any loans made and therefore the provincial and federal governments should not be called upon for any guarantees. A considerable cut in the amount of the guarantee was made as a result of this.
There are other sections of the province where the belief is that they should seed a bushel and a half of wheat to the acre. Most of the authorities on agriculture in that section of the country believe that they should not seed more than a bushel to the acre. Many of the best farmers do not seed more than three-quarters of a bushel to the acre in dry seasons, such as we are now experiencing, and, generally speaking, they get a better crop than those who seed the higher quantity per acre. In these particular districts an effort is being made to encourage people to seed

Seed Grain Assistance
the lesser amount. It will be seen that a reduction from a bushel and a half per acre to one bushel per acre is equal to one-third of what was originally asked for.
No effort is being made at the present time to select who shall or shall not get the seed, but when it comes to deciding whether a man should get 300 or 200 bushels of seed, it is thought that the municipal and provincial authorities should have something to say. In any event, there is a limit upon what an individual may receive.


Richard Bedford Bennett: What is the limit?


James Garfield Gardiner: The outside limit is
300 bushels, but there is also another limitation as to the number of bushels to the acre. At this stage it is not thought wise to seed anything to wheat but summer fallow.


Richard Bedford Bennett: Is that a condition of
the grant?


James Garfield Gardiner: It is not exactly a condition. The provincial department of agriculture is responsible for_ the administration. The province and the municipalities, which are cooperating with the province, decide largely upon the terms. But I may say that I had a letter of protest this morning, and one of the things the writer said to me was that he had taken a post hole digger and gone out and tested and found dust at the bottom of the hole. If that is the condition, anyone who understands the matter will realize that one of the provisos should be that the government is not guaranteeing the supplying of seed at this stage on anything but summer-fallowed land. A little later on, if weather conditions change, there is a possibility that it may be considered advisable to go a little further than that. At present it is not deemed wise, to proceed any further.


Mr. DONNELLY:: Are the mortgage companies supplying any of the seed or any of the assistance in putting in the crop this year?


James Garfield Gardiner: The federal government has not been called upon for any guarantees as far as the mortgage companies are concerned. The mortgage companies have an arrangement with the provincial government under which they put out seed on all the lands in which they are interested.


James J. Donnelly: That is aside from this entirely?


James Garfield Gardiner: Yes.


Mr. COLDWELL:: I suppose all the western members are being deluged with protests at the present time, more particularly from areas in Saskatchewan.


Charles Avery Dunning: That is bound to happen.


Major James William Coldwell: I think this is a matter which we should carefully consider. I understand the statement of the minister this morning, and I understand also the reason why it is felt necessary to discourage seeding on land which is dry. At the same time I would point out that the people on these lands have to live, and they are endeavouring more or less to meet the situation by seeding in the hope that moisture will fall a little later in the season. That of course is what has been done over a considerable period of years. But as I understand it, this is a blanket reduction in the amount of seed, feed and fuel to be given. I have in my hand a circular issued on March 20 by the deputy minister of agriculture of the province of Saskatchewan, and I will read from it, if I may, just one paragraph:
In municipalities where initial requisitions did not appear to be excessive in comparison with others, when yields and acreages are considered, we have for the present reduced wheat, barley, flax and rye to 75 per cent; seed oats to 80 per cent; feed oats, petroleum products and fodder to 60 per cent of the quantities stated in our circular 506/37. These percentage reductions average slightly over 30 per cent, although they may vary slightly per municipality-according to the class of commodity in greatest demand.
At this stage of the session some of us I think are not very clear about a number of things because we are trying to attend to too many matters at once. Is this percentage reduction on the amount of money to be granted or on the amount of wheat, oats, barley and fuel? Is it expressed in terms of dollars or in terms of bushels and quantities?


James Garfield Gardiner: There never has been any percentage of reduction in so far as the federal government is concerned. Negotiations have been going on between the municipalities and the provincial government.


Major James William Coldwell: I understand that.


James Garfield Gardiner: In the requests made by the municipalities to the province I understand that they asked for $8,700,000. The province submitted that to the federal government, the matter was discussed, and a final conclusion reached. This amount of guarantee in the present year is not a decrease, but an increase of $2,600,000 over last year. In
Seed Grain Assistance

the light of the experiences we have had, I do not think anyone in the south country will be denied seed where seed is essential. It is altogether wrong to suppose that between now and the end of seeding these people will not be fully taken care of. But it would be wrong from the point of view of this government, as representing all the people of Canada, to give out the impression that there is available $8,700,000 at this time for the supply of seed and other requirements through that country. I think the whole thing will be taken care of under the guarantee that is provided in the bill, and no one needs to worry unduly with regard to the outcome. A glance at the figures with regard to Alberta and Manitoba as compared with Saskatchewan will I think bear out my contention in that regard; for if Alberta can properly provide for her people with $1,600,000, presumably Saskatchewan can amply provide for hers with a guarantee $6,600,000.


Richard Bedford Bennett: Four times as much.


James J. Donnelly: The objections I receive from western Canada seem to be that the municipalities have figured out how much fuel and seed they need and have sent their requests to the provincial government, now, since they do not receive the exact amounts which they have asked for, or practically speaking twenty-five per cent less, the municipalities or the provincial government have decided to reduce by twenty-five per cent the imount of seed which each of these farmers shall receive. So that a man who asked for /hree hundred bushels will obtain only three-fourths of that amount. I do not think that many farmers are worried about the man who expects to seed three hundred bushels of wheat, because in the dry area anyone who requires that amount will be able to seed practically a section of land, or as much of the section as is fit to be seeded. But where a man has a hundred acres of land ready to seed the quantity has also been cut down twenty-five per cent, so that he will have enough to sow only about seventy-five acres. Not only that, but the amount of feed and fuel he is to receive in order to put in his crop has been cut by forty per cent. I understand quite well that this is not a dominion but a provincial affair, because the cut has been made by the province, but I draw attention to the objections I have received from these smaller farmers because they will not be enabled to put in enough seed to carry them through the year. I might add, with regard to the drought area, that this morning 
I received a letter saying that they have had over two feet of snow in that section, and I hope it is correct and applies to all that area, because it will mean a great difference in the prospects for the coming year. I think the government is well advised not to give too much seed and relief; on the other hand, if the prospects are for a good crop, farmers should receive enough seed and fuel assistance to enable them to put in a substantial crop, especially in districts which have had no crop for seven or eight years.


Mr. DOUGLAS:: I agree with the hon. member for Wood Mountain (Mr. Donnelly). If there is to be a reduction of the amount given to each farmer, certainly it ought to be on a graded basis with reference to the farm. As I understand it, this statement was sent out by the provincial government on January 28, 1937. to the different municipalities suggesting a basis upon which distribution would be made. It was as follows:
Total acres in farm	Per cent to	Maximum acres tounder cultivation	be seeded	be seededUnder 160 acres	three-fourths	120160 to 300 acres	two-thirds	200300 to 400 acres	three-fifths	240Over 400 acres	one-half	300That was the basis upon which	the municipalities proposed to make up their estimates. On seeding rates, it was as follows:Wheat	
1-1.1 bushels per	acreOats	
If	bushels per	acreBarley	
1J	bushels per	acreFlax	
i	bushel per	acre
The estimated amount of fuel was to be just one and a half gallons of distillate per acre; six gallons of gasoline per hundred gallons of distillate; lubricating oil, four gallons per hundred gallons of distillate. On the basis of this statement issued by the provincial government to the municipalities the requirements of the respective municipalities were sent in. As I understand it, to have satisfied them in full would have required some $8,700,000. The amount which the federal government is prepared to guarantee is the amount which is stated in the resolution, ' namely $6,600,000, which necessitated a reduction of some $2,000,000 on the part of the provincial government. That has resulted in reduction of feed and fodder of forty per cent; in tractor fuel, forty per cent; in seed wheat, twenty-five per cent; in seed oats, twenty per cent. That is practically what it amounts to. It means that if the amount permitted for seed were converted into wheat, in the event of the farmer not sowing oats, where tractor farming is prevalent, the quan-

Seed Grain Assistance
tity permitted would be 250 bushels of wheat; and if all feed were converted into tractor fuel, the total amount permitted would be $57.50.


Mr. ROSS (Moose Jaw):: How many acres?


Thomas Clement (Tommy) Douglas: That is the maximum amount permitted. The maximum is 300 acres. As the minister says, there has been an increase of two and a half millions over last year.


James Garfield Gardiner: It is $2,600,000, that is guaranteed. It is about $3,000,000 over what was actually put out.


Thomas Clement (Tommy) Douglas: But the area is considerably larger. There are more people within the area now dependent upon government assistance in the matter of feed and seed, and the cost of that seed is much higher than it was last year. Consequently it is doubtful whether there will be more feed and seed and tractor fuel issued in terms of gallons and bushels. It seems to me the hon. member for Wood Mountain has raised an important point. A man putting in 300 acres and having a reduction of forty per cent in feed and fodder, forty per cent in tractor fuel and twenty-five per cent in seed wheat and twenty per cent in seed oats will be restricted in his seeding. But when you apply a reduction of forty per cent to the man putting in 120 acres out of 160 acres-


James Garfield Gardiner: The hon. member says, when " you " do so-and-so. May I point out that it is the provincial government and the municipality that are doing all that. We here have nothing to do with all that.


Thomas Clement (Tommy) Douglas: I was not referring to the government; that is merely a manner of speaking. What I was about to point out was that there is a greater restriction imposed on the man with a quarter section than there is upon the man with either a whole or a half section when the reduction is the same. For the man with a quarter section it means that he can seed about seventy-five acres, which, even allowing for average moisture conditions, cannot possibly yield him sufficient to live on, whereas the man putting in three hundred acres is subject only to the same percentage of reduction. I have been addressing myself to the Minister of Agriculture though I know it is not his business; it is a matter for the provincial government. On the other hand, we find as a result of the survey made by the provincial government as set out in the circular issued on January 28, that $8,700,000 was required, and this sum had to be reduced because the federal government could not guarantee it. If the federal government could find it possible to guarantee a larger amount it would certainly enable the government of Saskatchewan to make a more magnanimous offer, particularly to the farmer who has only a quarter section and who, under the regulations, will be able to seed only seventy-five acres. He is the man to be kept in mind. It would not involve the guaranteeing of a much larger amount; and, after all, this is not a vote. The government is not being asked to give $6,600,000 to the province of Saskatchewan; it is merely asked to guarantee that sum, and it will not be due for three years, even in the event of non-payment. For a small percentage more it would be possible for Saskatchewan to offer at least to the small farmers a much better proposal than it can make under a forty per cent reduction in feed and fuel, and twenty-five per cent in seed.


Richard Bedford Bennett: One thing bothers me. The Minister of Agriculture has made it abundantly clear that all we have to do is to say yes or no, that we will or will not guarantee. The conditions with respect to seeding are matters between the citizens of the respective provinces and their provincial governments, and the only issue that is presented to us is that of giving our guarantee to these provinces. That is all. We have no option unless the government did what I think might be the proper thing to do in view of what the Minister of Agriculture has said, namely, to insert in the granting of the guarantee conditions that do not seem to be possible having regard to the circumstances to which he has alluded. Here is the issue that arises out of what has been said. This must have been known to everybody: since last fall the price of wheat has gone from less than $1 to $1.50, and I am told that the wheat is not all bought yet. Under these circumstances it is quite clear that any forehanded action would have contemplated at least the getting of these supplies of seed grain before now. My information is that only during the last few weeks has any effort been made to buy grain, and these efforts are being carried on now with great zeal. Surely, in view of what everyone was of the opinion would happen, the purchase of this seed grain should have been made before the market reached its present high figure. The extent to which we might have to assume responsibility for that arises out of the fact that it must have been known to everybody here that seed grain had to be provided or no crop would be put in; and inasmuch as last year we had to come to the aid of the provinces because the banks

Seed Grain Assistance
would not accept their guarantee, we had no reason to believe, in view of the reports made since, that the same condition would not again arise.
I find it difficult to understand why these provisions have not long since been made, as the money that we shall have to guarantee would have gone for the purchase of many more bushels of grain than can now be acquired. It would look as if that were responsible for cutting down the figure from $8,000,000 and something to $6,000,000 odd in Saskatchewan.
I should like to have had the acreage, because talking about municipalities means nothing to anyone. There are municipalities in which the number of acres that have been without any crop is very limited. There are some in which only half, and others in which the whole area has been affected, and I was anxious to get from the minister the information upon which the government arrived at its conclusion. I asked how many acres of land in a period of five years had been continuously non-producing. The minister said that in 156 municipalities over a period of six years the average has been 5-4 bushels per acre. That answers the question as far as years and the average under crop are concerned, but it does not give any intelligible answer to the average man as to the number of acres affected.


Charles Avery Dunning: It is exceedingly difficult to get that.


Richard Bedford Bennett: I thought the government of Saskatchewan had that information all collected long ago.


Charles Avery Dunning: It shifts from year to year.


Richard Bedford Bennett: The returns are sent in complete at the end of every year so that they know exactly how many acres continue to be without a crop over a given period, five or six years. I was told so.


Charles Avery Dunning: But they are not the same acres each year even on the same farm. It varies.


Richard Bedford Bennett: They may not be the same acres even on the same farm, but the number of acres, one hundred or whatever it is, without any crop would be known just the same.


Charles Avery Dunning: But the trouble is one hundred was not planted at all.


Richard Bedford Bennett: I realize the condition, but I thought the government would probably be in possession of information of that kind upon which to found their conclusion about their guarantee. I am inclined to
	_
agree with the minister that to say that you will guarantee the obligation of the provinces to the banks for seed grain and other assistance supplied to the settlers, regardless of any check upon the amount required, would arouse a great deal of hostile criticism in eastern Canada and other parts of the country. What the hon. members for Wood Mountain (Mr. Donnelly) and Weyburn (Mr. Douglas) have said is quite clear, that if the provincial government has cut down the small man in the same ratio as the larger, it must work to the disadvantage of the small man. I cannot conceive of any government doing that, because the anxiety of the provincial government is to secure as far as possible the welfare of the largest number, and the largest number would be those occupying the smaller areas. But that gets us back to the fact that we are guaranteeing nearly $9,000,000, and the issue is simple; shall we do so or not? No conditions are imposed as far as we are concerned. I assume however that the government does provide that it is only an ultimate liability. It may be that the Minister of Finance will see a loss at once and desire to put an appropriation into the estimates for it-


Charles Avery Dunning: I definitely allow three years in the legislation.


Richard Bedford Bennett: Well, that meets that
question, but non constat another session he may reduce it to one year in his anxiety to show a loss at once. At any rate the condition we impose is ultimate liability, I take it.


Charles Avery Dunning: Right.


Richard Bedford Bennett: That being so the only issue is, shall we give the guarantee or not? Apparently there are no conditions as between the provincial government and the federal government; that is a matter between a provincial government and the municipalities and settlers.


Charles Avery Dunning: In the nature of things we cannot follow through to the individual. When the bill is before us the Minister of Agriculture will be prepared with a complete statement.


Richard Bedford Bennett: The issue narrows itself down to whether as a matter of national policy we shall give a guarantee to the provinces, which are themselves unable to secure the necessary money from the banks. It did seem to me, in view of the fact that we must have known that this responsibility was upon us, that the purchase of this grain might have been made some time ago.

Seed Grain Assistance


James Garfield Gardiner: All the physical arrangements in connection with the placing of the seed in the proper place in elevators were made as usual between last fall and down to the present time, irrespective of who was going to pay. That is all done every year.


Richard Bedford Bennett: That is satisfactory, and meets the criticism I made a moment ago, if the arrangements were made last fall.


James Garfield Gardiner: That is the arrangement for placing the grain, not for the price to be paid. There is an understanding arrived at as to what the margin is to be between the price paid and what the market price happens to be on the day the grain is taken.


Richard Bedford Bennett: I think the minister will admit that that is not very satisfactory to the one who has to pay. The difficulty is that we have not provided against this contingency long ago but waited until the price has gone up 33 per cent or more. It is a dangerous position we are being driven into. We admit that the credit of three of our western provinces is not good enough to enable them to borrow from the banks 89-000,000.


Charles Avery Dunning: My right hon. friend will remember 1935.


Richard Bedford Bennett: Yes I do, and apparently the situation has not improved.


Charles Avery Dunning: In that case I think the federal government supplied the seed.


Richard Bedford Bennett: Yes, they bought the seed.


Charles Avery Dunning: Which is a much more expensive method.


Richard Bedford Bennett: If it is it should not be followed. But the answer as to the conditions under which we should finance the matter does not seem to be forthcoming, for the simple and obvious reason that we are not in a position to do more than say yes or no, as a matter of national policy.


Charles Avery Dunning: That is right.


Mr. QUELCH:: Mr. Chairman-


Charles Avery Dunning: If hon. members would be good enough to wait for the bill I am sure a great many of their questions would be automatically answered.


Richard Bedford Bennett: The bill will be printed to-day?


Charles Avery Dunning: Yes, and distributed. It cannot be introduced until this resolution passes. I did not want to be in the position of crowding the bill in the closing days of the session. I would rather crowd the resolution a little.


Victor Quelch: Is the $1,600,000 for Alberta the full amount that the provincial government requested the federal government to guarantee?


James Garfield Gardiner: The request was for $2,000,000, and just as in the case of Saskatchewan, finally they brought it down to $1 -
600,000.


Thomas Clement (Tommy) Douglas: When the leader of the opposition referred to the reduction in the same ratio for farms of different sizes the Minister of Finance (Mr. Dunning) shook his head. But with all deference, the only thing we can go by is the statement being sent out by the provincial department of agriculture. In their last statement they made it very clear that no difference was made as to the size of the farms, but simplv said:
In municipalities where initial requisitions (;l(l not appear to be excessive in comparison Avith others, when yields and acreages are considered, we have for the present reduced wheat, barley, flax and rye to 75 per cent; seed oats to 80 per cent; feed oats, petroleum products and fodder to 60 per cent of the quantities stated in our circular 506/37.
From which I have already quoted.


Charles Avery Dunning: The Minister of Agriculture will explain that. It can be done at this stage if necessary.


Thomas Clement (Tommy) Douglas: In one breath we are told that -the provincial government is entirely responsible, and in the next the Minister of Finance explains that the statements made in this circular will not be carried out. If there is going to be some difference in the ratio of reduction we should have a statement from the minister.


James Garfield Gardiner: Part of the reason for the change is the fact that what happens this year is the same as happens every year. Feed and fodder are provided for to the end of the financial year, and it has been the custom to extend the time beyond March 31 if weather conditions require it. If seeding operations were to start this year early in April it would not have been necessary to extend feed and fodder supplies through April. But since it appears now that it will be approximately May 1 before seeding operations get under way in the greater part of Saskatchewan, feed and fodder have to be supplied for live stock under the winter arrangement down to the time that live stock can be turned out, which is practically when seeding operations begin. For that reason when the provincial government and others responsible in the west got closer to the period it was
Seed Grain Assistance

possible to estimate the feed supplies for seeding lower than would have been the ease if they had had to start putting out seeding supplies at the first of April.


Thomas Clement (Tommy) Douglas: Does that cover petroleum as well?


James Garfield Gardiner: The petroleum will not be used until May in any case. The general reduction indicated in the letter does not apply to individual cases. That letter was not written to individuals; it was written to the councils of the rural municipalities, and it was pointed out that generally speaking it would be necessary to reduce the amounts by 25 per cent. The amount of the guarantee suggested in the original forms filled out last January was $8,700,000; the amount proposed now is three-quarters of that sum, and the municipalities were told that it would be advisable for them to try to make a cut of approximately twenty-five per cent. That does not mean that you are simply going to take every individual and cut him twenty-five per cent. When individual applications are made the council will have in mind that they must get the amount down, and they will reason with people as to the amount required, trying to get the estimate made in the first instance reduced by approximately twenty-five per cent. There will be municipalities where that will be impossible, but it is hoped that there will be other municipalities whose estimates can be reduced by fifty per cent.
Our experience over the years has shown that even when the provincial governments and municipalities have done all the cutting they thought essential, when the federal government came into the picture and brought more pressure to bear in order to get the amount cut down the amount provided has always taken care of the seed requirements. I think that will be true this year, as it has been in other years. Last year $4,000,000 was insisted upon and only $3,500,000 was required. This year the municipalities are insisting on $8,700,000, and the amount has been worked lown to $6,600,000. I am quite satisfied that as the season goes along and the pressure is kept on all along the line, this $6,600,000 will take care of the needs of the people, and every farmer will have what he is entitled to, whether he has a small or a large farm.


Mr. ISNOR:: We from the east hesitate
to ask questions pertaining to wheat or grain concerning the west, but would like to know exactly what we are voting on in this case. I do not propose to go into details as to the arrangements with the various provinces in regard to the guarantee, but I should

like some information from the Minister of Finance with regard to the use to which this $8,950,000 is to be put. Last year, I understand, the amount was $6,750,000.


Some hon. MEMBERS:: No; $4,000,000.


Gordon Benjamin Isnor: Well, that is $12,950,000 in
two years, and in 1935 we paid the cost outright, so that the dominion government is paying a very tidy sum to the three prairie provinces.


Thomas Clement (Tommy) Douglas: It has not been paid; it
is just a guarantee.


Gordon Benjamin Isnor: In 1935 a stated amount was
paid by the Dominion of Canada, as I understand it. Last year we gave a guarantee, and I should like to know from the Minister of Finance exactly the amount outstanding which is guaranteed by the dominion. In the second place I should like to know whether these loans have been made by the banks on the guarantee of the various provinces, or if they are still to be made. I am speaking to this particular legislation, because this resolution includes these words, "and interest of loans made by chartered banks." I should like to have that point cleared up, and may I point out to the hon. member who stated that this was not a debt that it is an indirect liability as long as it is guaranteed and not paid.


Charles Avery Dunning: Well, Mr. Chairman, in reply to the questions of the hon, gentleman I think I indicated previously that of the $4,000,000 which we were authorized to guarantee a year ago, as yet no guarantee has been given because the full details have not been provided as to the aggregate amount. We, do know, however, that as of the first of last month the maximum amount outstanding of that $4,000,000 was $2,500,000. In connection with that guarantee, it does not become operative as a matter of claim by the banks until the end of the three year period, and this year the same procedure will be followed.
A short time ago I remarked to the right hon. leader of the opposition that this was a more economical way of handling this problem. I made that statement for the reason that in Saskatchewan this policy has been followed provincially for a number of years. I think I introduced the bill which inaugurated this method of dealing with seed grain as against the government handing it out. That was in 1917, and at that time we had a dominion government guarantee just as is now proposed. The Minister of Agriculture will correct me if I am wrong, but over a period of years during which large amounts

Combines Investigation Act
of seed grain were supplied under this sort of plan, the experience of Saskatchewan has been that the average annual loss has amounted to some $34,000 a year. Those were the average aggregate ultimate losses. I know that the periods during which that plan was in operation did not include a period in which conditions were as bad as they have been for the last five years-


Richard Bedford Bennett: I think there have been only five years during which it has not been necessary to supply seed grain, since we acquired this territory.


Charles Avery Dunning: It has always been a problem in western Canada.


James Garfield Gardiner: I think it started back about 1870.


Charles Avery Dunning: But from my experience in the west I conscientiously believe this method of dealing with it to involve the very minimum of ultimate dominion liability. That, I think, answers the questions of my hon. friend.


Gordon Benjamin Isnor: If it is necessary to guarantee it at all, then I would say yes.


Mr. PERLEY (Qu'Appelle):: The Minister of Agriculture stated that arrangements were being made last fall to have the wheat left in the elevators in certain areas, as I understood it.	[DOT]


James Garfield Gardiner: Or shipped to those areas.


Ernest Edward Perley: What system was adopted? As I understand it, in those areas there would not be very much of a crop, and I was wondering what system was adopted in securing the wheat. What firms shipped wheat to the elevators in those areas and what arrangement was made as between the government and those firms with respect to the time when the wheat would be taken over by the government? I think there must have been some estimate made as to the acreage, apart from the estimates of the municipalities, and the minister should give us the comparative figures-


James Garfield Gardiner: If the hon. member would follow the suggestion made by the Minister of Finance, I should be quite prepared to bring down all that information when the bill is under consideration. I have not all the details here this morning, but I believe the approximate figures are available.


Mr. FAIR:: I should like to ask the Minister of Finance whether the $34,000 mentioned by the minister a few moments ago was paid by the provincial or by the federal government.


Charles Avery Dunning: It depended upon whether or not the dominion was on the guarantee. If the dominion was on the guarantee then there would be an average of $34,000 paid by each of the two guaranteeing parties. That has been the experience of the past. I do not want to hold out to this house the possibility that it may work out as well this year, having regard to the conditions that have prevailed during the last five years, but I do say that this method of maintaining individual responsibility to the extent of the ability to pay, by way of the guarantee method, is proving the most economical and effective method of governmental dealing with the matter. I may be wrong, but I think the facts support my statement.


Robert Fair: Where the farmers have had crops, has it been the experience of the minister that they have paid their debts to the province and to the dominion?


Charles Avery Dunning: My experience of farmers is that they are pretty good pay if they have anything to pay with. We must remember that there are good and bad in all classes, even among farmers. However, last year's experience wherein almost a third was paid back would indicate a sense of responsibility on the part of those who are securing seed under this plan.
Resolution reported, read the second time and concurred in. Mr. Dunning thereupon moved for leave to introduce Bill No. 101, to assist the provinces of Alberta, Manitoba and Saskatchewan in financing the cost of seed and seeding operations for the crop year 1937.
Motion agreed to and bill read the first time.



COMBINES INVESTIGATION ACT


[Stage Direction]
The house resumed from Friday, April 2, consideration in committee of Bill No. 41, to amend and consolidate the Combines Investigation Act and amending act-Mr. Rogers- Mr. Sanderson in the chair.
On section 23-No witness excused from giving evidence on ground it may incriminate him.
Mr. CAHAN:: I have nothing to add to what I have already said with regard to the section. I do not think it would help if I were to enter into a discussion of the observations of the hon. member for Selkirk (Mr. Thorson), because I believe that not only in his mind but in the minds of some others

Combines Investigation Act

there is confusion with regard to the matter under discussion. It is an elementary principle of British justice and in accord with sound public policy that no witness-and I refer to a witness, particularly-should be compelled to give evidence to convict himself of a crime, whether by oral or documentary evidence. That is a sound principle which for many generations has been sustained in the courts. I have an opinion, perhaps a personal one, that a witness before a court is fully protected in either case, that is in the case of giving oral evidence or producing documentary evidence, when and in so far as he objects on the ground that his oral answers or the documents he is asked to produce would tend to incriminate him. However, I do not intend to enter upon a prolonged legal discussion. I believe the principle I have set out is likely to be sustained, even if section 23 passes in its present form.
That is all I have to say. I had not the time to go into the numerous cases on the subject, but I have gone through them in times past, and in doing so formed the opinion I have stated. Whether it is valid or not will be determined by the courts when a prosecution to which this section applies is made.


[Stage Direction]
Section agreed to.
On section 24-Inquiries Act applicable to investigations.
Some hon. MEMBERS:: Carried.


Charles Hazlitt Cahan: Just a minute; we are not going through the bill at that rate.


William Lyon Mackenzie King: The only change is in connection with the word "commissioner."


Mr. STEWART:: Subsection 2 is new.


Charles Hazlitt Cahan: I suppose the government intends to insist upon subsection 2 as a matter of policy. It has ample majority to sustain it.


Mr. ROGERS:: It is a matter of the substance of the clause rather than one of applying the majority, except in respect of a matter which we believe is recommended by sound public policy. In the present instance we make a provision whereby the governor in council may authorize the commissioner to have and exercise any of the powers which are conferred on the dominion trade and industry commission under sections 20 and 23 of the Dominion Trade and Industry Commission Act, 1935. We feel it is wise to have that power residing in the governor in council whereby certain of the functions now entrusted
TMr. Cahan.]
to the dominion trade and industry commission may under the Combines Investigation Act be transferred to the commissioner. It is a power to be exercised at discretion.


Charles Hazlitt Cahan: In so far as it is only at discretion, it might pass.


[Stage Direction]
Section agreed to.
On section 25-Information not to be disclosed.
Some hon. MEMBERS:: Carried.


Norman McLeod Rogers: I have an amendment to this section.


Charles Hazlitt Cahan: Mr. Chairman, I do not
wish to object unnecessarily but we can insist upon the clauses being read in committee. At least we should be given sufficient time to refer to them.


Mr. POWER:: I move in amendment:
That section 25 be amended by adding thereto, as subsection (2) the following:
"Any person violating any provision of this section shall be guilty of an offence and liable upon summary conviction to a fine not exceeding $200."


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
On section 26-Proceedings in private or in public.
Charles Hazlitt Cahan: I have not the letter
before me at the moment, but one of the boards of trade sent in a memorandum with regard to this section in which they called attention to the fact that the bill authorizes a preliminary inquiry and also a subsequent inquiry upon which the final report of the commissioner would be based. The brief sent to me suggested the insertion of the words "except preliminary inquiry" after the words "proceedings" in the third line. It is suggested that the preliminary inquiry should not be made public, as in many cases such an inquiry will no doubt result in no finding by the commissioner and it would be unfortunate if the proceedings were made public. A subsequent section provides that the proceedings in the real investigation, which may be contested, shall be public or private in the discretion of the commissioner. In order that the matter might be considered, I move that the words " except preliminary inquiry " be inserted after the word " proceedings " in the third line of this section.


Henry Herbert Stevens: Mr. Chairman. I have a
suggestion to make to the minister which, if it meets with his approval, may affect somewhat the amendment just suggested. May I

Combines Investigation Act
say at once that I agree entirely with the hon. member for St. Lawrenee-St. George (Mr. Cahan) that the preliminary inquiry ought to be private. However, when we come to the major inquiry my contention is that we should fix it in the statute that such inquiry shall be public except where the commissioner deems it advisable that it should be private. For instance, confidential documents may be under consideration and it might be deemed advisable to have the hearing in private. There is considerable controversy about the question of jurisdiction between the provinces and the dominion, and one of the chief weapons that the government and parliament has to deal with matters of this kind is publicity. Generally speaking, no right cause is injured by publicity, but it must be admitted that there may be portions of private business operations which it might not be advisable to make public. This section as it now reads states that the hearing shall be private and the public part of it is at the discretion of the commissioner.


Charles Hazlitt Cahan: Section 29 contains something bearing on that.


Henry Herbert Stevens: That deals with reports;
I am speaking of hearings. The minister will get my point. First, there is the value of publicity in dealing with this class of problem, and, second, we should not provide by statute that these inquiries shall be private and then leave it to the discretion of the commissioner to decide that under certain conditions the hearing shall be conducted in public. I think we should follow the general practice of the board of railway commissioners, the tariff board and the regular courts. Presumably the matters to be dealt with under this legislation will affect the public and they should be considered in a public way. I suggest that the word "private" in the second line should be changed to "public," and the word "public" in the fourth line should be changed to "private." It is just reversing the order in which they appear in the section. I have no objection at all to the suggestion made that the preliminary inquiry should be private.


Norman McLeod Rogers: I can see the force of the
observations of my hon. friend with regard to having proceedings of this kind in public wherever possible, but I am bound to say that the experience in the administration of the act has been that there is a decided advantage in having the preliminary inquiries conducted in private.


Henry Herbert Stevens: I am not objecting to that.


Norman McLeod Rogers: And in some cases to have the further inquiry conducted in private. This is done to expedite the proceedings and also to prevent purely vexatious matters being brought out in investigations under this legislation. It does seem to be desirable to preserve the discretion provided for by this section. As to the point raised by the hon. member for St. Lawrence-St. George (Mr. Cahan), I see no reason why the amendment he proposes could not be accepted. I believe this amendment is supported by the hon. member for Kootenay East (Mr. Stevens).


Charles Hazlitt Cahan: I move accordingly.


The CHAIRMAN:: Will the hon. member kindly put his amendment in writing?


Henry Herbert Stevens: While the hon. member is writing out his amendment, I should like to say a word or two. I appreciate what the minister has said from an administrative point of view, but we must remember that this act has been and is a major statute. It is something of great importance and in my opinion it is unwise as a matter of procedure to leave too much discretion in the hands of those who are to administer it, in this case in the hands of the commissioner. I cite again the railway board, the hearings of which are generally held in public. There may be some occasions when the hearings are held privately, but generally they are public. The same applies to the tariff board. These are quasi courts; perhaps they have not all the formalities of the courts, but they consider matters brought to trial, if you like, upon which decisions are arrived at. The one thing we should endeavour to preserve is the matter of publicity in connection with the quasi judicial or judicial consideration of the matters of import which would come before this commissioner. I would preserve the right to declare that a hearing shall be private. The responsibility of deciding whether or not a hearing should be private would rest upon the shoulders of the commissioner, who wrould naturally have real cause for his decision. As the section now reads, it is mandatory that the proceedings be conducted in private.
I submit further that there is a grave danger of discrimination. It is difficult sometimes to discuss these matters without appearing to reflect on individuals. I hope that any such idea will be dismissed; we are dealing with a statute which will continue in force for many years. But one can imagine circumstances wherein, under this law, a commissioner might penalize one group or concern as against another, whereas if the wording were as I suggest, it would be in the
Combines Investigation Act

nature of a favour and the party would certainly have to demonstrate why such a favour should be granted; in other words there would have to be sound ground for the decision that a hearing should be private. The statute should be so drawn that a minimum of discretion is given, but certainly where discretion is essential it ought to be given. In my opinion the old clause which provided that "the sittings of the commission shall be public or private as the commission decides," was quite satisfactory. I think this present move is a retrograde one; we are going back to Star Chamber methods rather than accepting the modern idea of conducting national affairs in a public way. Even in respect of international issues efforts have been made to get away from secret diplomacy, which has been recognized as a cause of many difficulties. True, the League of Nations has not been an undoubted success, but its open study of international affairs has been all to the good. The same principle applies to this measure. These are days of progress, when the tendency is for businesses to be concentrated more and more under the control of great and powerful corporations: there is no need to reflect on corporations, but as they grow, and as their methods of doing business progress, surely we must keep in mind the interest of the people as primary and predominant. For that reason I strongly urge the adoption of my suggestion.


Frederick George Sanderson: Shall the amendment carry?


Mr. TAYLOR (Nanaimo):: Has it been definitely decided that the minister is not going to make any change in the question of public or private proceedings? I am inclined' to agree with the hon. member for Kootenay East (Mr. Stevens) that we shall be going 'back to stair chamber methods if we do not change this. Can the minister, assuming he is correct, give us any idea of the circumstances under which the commissioner might decide that the proceedings should be conducted in public?


Frederick George Sanderson: Order. I would draw the attention of the hon. member to the fact that the amendment is now before the committee.


James Samuel Taylor: I am quite in order, I think, Mr. Chairman.


Frederick George Sanderson: The hon. member is quite in order if he is discussing the amendment.


James Samuel Taylor: I am, precisely.


Frederick George Sanderson: Otherwise he is not in order.


James Samuel Taylor: I am objecting to the amendment going through if there is to be any alteration of the intent of this clause. I would like the minister to state specifically under what circumstances the commissioner might be justified in refusing a public investigation.


Norman McLeod Rogers: I had proposed to deal with that question before the clause as amended was carried. Again I would say that I can see a great deal to support the view that these proceedings should be held in public. But I am quite sure that the hon. member for Kootenay East (Mr. Stevens) is aware that these preliminary inquiries in the past have been necessary in many cases where there was a mere suspicion that a combine existed and that very often that suspicion was not based upon a sound foundation.


Henry Herbert Stevens: I am not questioning the preliminary.


Mr. THORSON:: And where a public hearing might do harm to the parties.


Henry Herbert Stevens: I am not questioning the preliminary inquiries; I think I made that clear. I am dealing with major inquiries.


Norman McLeod Rogers: That is the inquiry which follows the preliminary inquiry.


Henry Herbert Stevens: Quite.


Norman McLeod Rogers: In that case the practice has been, I understand, in most cases to have the proceedings in public, but I question whether it would be wise to make it mandatory that the proceedings be held in public.


Henry Herbert Stevens: Qualified as it was previously. The minister does not quite grasp the point. I am not suggesting that there should be no discretion, but what we are making mandatory now is that the proceeding shall be private except where the commissioner decides it shall be public. I am simply asking that the law as it stands shall be preserved-that it be public, and that in the discretion of the commissioner it may be private.


Mr. FACTOR:: So far as the preliminary inquiry is concerned I thoroughly agree with the hon. member for St. Lawrence-St. George (Mr. Cahan) that it should be private in all cases, because a preliminary inquiry conducted in public might do irreparable injury to the party investigated. But I must lend my support to the hon. member for Kootenay East (Mr. Stevens). Under the old section

Combines Investigation Act
it is provided that "the sittings of the commission1 shall be public or private as the commission decides." The new section makes it mandatory that the inquiry be held in private and only in public in cases wherein the commissioner so decides. I believe that the whole principle and objective of this bill so far as the main inquiry is concerned is the searchlight of publicity. I had occasion to serve on a certain committee, and I know this, that though it may have done a lot of harm in certain oases, it did more good because of that searchlight of publicity. I know of one ease in which a large corporation increased its wages because of the investigation before that committee or commission. And particularly in dealing with combines, mergers, monopolies and cartels, with which I must say we are honeycombed in this country, I submit with all due deference and respect to the Minister of Labour (Mr. Rogers) that the chief objective should be a public inquiry, although I can very well see that a public inquiry may do a lot of harm in certain cases. In other words the rule should be the public inquiry and the exception should be the private inquiry. I want to urge upon the minister that he take this contention into consideration.


Mr. BLACKMORE:: I should like to associate myself in this matter with the hon. member for Kootenay East (Mr. Stevens). I believe that that is just how an inquiry should be conducted. I have not been convinced at -all that there has been sufficient abuse in the administration of the former act to justify the change which has been suggested by the minister.


Mr. SLAGHT:: I desire to associate myself with the recommendation of the hon. member for Kootenay East (Mr. Stevens) on the ground put by the hon. member for Spadina (Mr. Factor). Increasingly in this day and age is the public dissatisfied with closed door inquiries, and therefore if we can, without injury to private interests, conduct these inquiries in public we should endeavour always to do so.


Major James William Coldwell: I was just going to say very much the same thing. In view of what appears to be the general feeling of the committee I suggest the minister would be well advised to take these representations into consideration and see that hearings in camera are not held.


Norman McLeod Rogers: I should like to make it clear that the clause as drafted does permit investigations to be held in public, and I do not think my hon. friend is entitled to assume
that they would be held in private, particularly if there was any good object to be served in having them held in public. But I quite agree that there is much to be said for transposing the words as suggested by the hon. member for Kootenay East (Mr. Stevens)' and as supported by other hon. members who>
have spoken, and I am just now trying to arrange the appropriate draft to meet it.


Charles Hazlitt Cahan: Could the section be allowed to stand until the afternoon session?


Norman McLeod Rogers: We will let it stand for the time being.


Hugh Alexander Stewart: Would not the old section meet the difficulty, with an addition so that it would read:
The sittings of the commission shall be public or private as the commission decides, except the preliminary investigation, which shall be private.
That would give the commissioner discretion to decide that even the public investigation under certain circumstances should be private.


Henry Herbert Stevens: That is a compromise, but I should like to have it mandatory, and then the commissioner might decide that a portion of the proceedings be private. That reserves all the necessary safeguards for the preservation of reasonable privacy. It is not right to empower the commissioner to have a private hearing in regard to plumbers, for instance, while in another industry, the milling industry, say, he may be at liberty to hold the investigation in public. That is an unfair procedure. Let them both be public, provided that in matters that are essentially private the commissioner shall decide. The records would show whether his decision was wisely founded.


Norman McLeod Rogers: I suggest that the clause stand for the time being while we redraft it.
Section stands.
On section 27-Access to documents received in investigation.


Charles Hazlitt Cahan: This section provides that original documents received in evidence by the commissioner shall be held by him and that he may give certified copies thereof to the witness who has produced the documents in evidence. That is not an adequate provision. So far as the commissioner is concerned, certified copies answer his purpose, because they are receivable as evidence in the subsequent criminal proceedings, if there are any, as having the same force and effect as the
Combines Investigation Act

originals. I have in imind such a case in a civil proceeding. A witness produces important original documents, some of them promissory notes, bills receivable and acceptances, which are held in court, though certified copies of them are quite sufficient for the court. But certified copies of these documents could not be used by the witness in enforcing the liabilities of third parties, either in Canada or in foreign countries. In a business that is going on from day to day it is absolutely necessary that certain classes of documents, especially negotiable documents, should be available to the witness for the ordinary conduct of his affairs, and he should not be deprived of documents that are essential to the carrying on efficiently of his ordinary business. The commissioner, by retaining copies or certified copies, has evidence of the particular matter which he wishes to establish. But the facilities nowadays for the photographic reproduction of documents are, as the minister knows in his own department, so cheap and efficient that no objection could be urged to allowing original documents to be restored to the witness-because the witness is not necessarily the criminal or the person who is believed to be criminal. The original documents might be restored to him, while the commissioner, under the old section, would be allowed to retain copies, certified, or photographic, for use in the proceedings before him and for any subsequent proceedings that might be taken before the court. In my opinion subsection 2 of the old section 27 is a very proper one:
(2) The commission shall at the same time deliver into the custody from whence they came, if not already delivered, all books, papers, records and other documents in its possession as evidence relating to the investigation, but before doing so the commission may extract from such documents and certify as true copies such relevant parts thereof as it may deem to be necessary for any purpose of this act, whereafter such parts, so certified shall have and be accorded in all courts the same probative force as the equivalent parts of the originals of which they are copies.
I would point out that this parliament is not competent to deal with the probative force of documents in the civil courts, though so far as the criminal courts are concerned it has absolute jurisdiction.


Joseph Thorarinn Thorson: And in respect of an investigation into a combine it has jurisdiction and can declare what the probative effect of a document is.


Charles Hazlitt Cahan: That would stand as before. What I am saying is that the old section should be retained, because this parliament

has jurisdiction only with regard to the probative force of documents introduced in criminal proceedings, but it is not competent with respect to civil proceedings, and certainly not with respect to civil proceedings which arise in foreign courts.
At one o'clock the committee took recess.
The committee resumed at three o'clock.


James Samuel Taylor: Did the minister make any explanation to the hon. member for St. Lawrence-St. George (Mr. Cahan) about the documents?


Norman McLeod Rogers: This clause is very closely related to clause 20, which was under consideration a day or two ago. We feel that clause 27 as drafted is of very great importance to the effective administration of the act. I do not believe that we would be justified in making any further change.


[Stage Direction]
Section agreed to.
Sections 28 to 30 inclusive agreed to.
On section 31-Reduction or removal of customs duties.
Mr. MacNICOL:: Does the Minister of Labour ask for the authority to do that?


Norman McLeod Rogers: The provision is that this will be done only by the governor in council. It is one of the alternative remedies which has been in the act almost from the beginning. It was in the 1910 act, repeated in 1923 and also in the 1935 act, and was also in the Board of Commerce Act.


John Ritchie MacNicol: I am quite in accord with it, but the order would have to come from the governor in council?


Norman McLeod Rogers: That is correct.


Major James William Coldwell: Has this power been used frequently by the minister?


Norman McLeod Rogers: It has not been actually invoked under the provisions of the combines act. I think one may say it has had its effect as a deterring influence, but other remedies have usually been applied where the act has been violated.


Major James William Coldwell: This is a very important penalty, and it is one I should like to see used. A while ago I raised the question in connection with the Coleman Lamp Company. Under such circumstances this provision would have a salutary effect, because after

Combines Investigation Act
all, manufacturing concerns which are protected by tariff have a very great advantage. This clause is one that I think the department might use, and give some tariff relief at the same time.


Norman McLeod Rogers: The power is here to be invoked when deemed expedient by the governor in council. I wholly agree with my hon. friend that the presence of this possible penalty in the act has a salutary effect, and possibly it would have an even greater effect if it were used more frequently.


John Ritchie MacNicol: I cannot let the hon. member for Rosetown-Biggar (Mr. Coldwell) get away with any statement like that. That tariff is not for the purpose of raising prices-


Some hon. MEMBERS:: Oh, oh.


John Ritchie MacNicol: It is for the purpose of providing jobs for Canadians.


[Stage Direction]
Section agreed to.
Section 31 agreed to.
On section 32-Revocation of patents.
Norman McLeod Rogers: I have an amendment to section 32-


Mr. CASSELMAN:: Would the minister mind letting this section stand? I think the hon. member for St. Lawrence-St. George (Mr. Cahan) wishes to say something on it.


Norman McLeod Rogers: I am quite willing. I thought the hon. member for St. Lawrence-St. George would be here-I had a short talk with him_ at the close of the morning session. We are meeting very largely, if not wholly, the objections which he expressed to this clause when he spoke on the second reading of the bill. His point was in effect that ample remedies with respect to abuse of patents are provided in the Patent Act, particularly since the international convention of 1925, as far as revocation of patents is concerned. However, if my hon. friend wishes this clause to stand until later in the afternoon I am content.
Section stands.
Section 33 agreed to.
On section 34-Penalty for formation or operation of combine.


John Ritchie MacNicol: Has the penalty provided in this section ever been invoked?


Norman McLeod Rogers: I might place on record a statement of the fines actually imposed in the administration of the combines act:
Western Canada fruit and vegetable wholesalers	$200,000
Amalgamated Builders' Council..	45,200
Electrical Estimators' Association.	26,200
Canadian basket pool	 1,500
Anthracite coal importers	 43,500


John Ritchie MacNicol: I am under the impression that a number of companies accused of being a combine made their arrangements on the advice of their solicitors. Some years ago a number of companies in Toronto engaged in a line associated with the building trade were brought before the courts and declared to be a combine; a number of them were fined and certain people either had to leave the country or go to gaol. In that case the companies concerned had the advice of the best solicitors they could get in Toronto. I think those solicitors, or whoever advised the company that they were making a legal arrangement, should have been fined and sent to gaol. You cannot put anything like that in this act, but when companies engage solicitors and later find that they have committed a breach of this act on the advice of their solicitors, I should like to see the penalty assessed against the solicitors rather than against the companies.


Denton Massey: May I ask the minister on what these fines are based? I notice that the fine is $1,000 in one case and $100,000 in another.


Norman McLeod Rogers: The fines are imposed, as my hon. friend is aware, after criminal proceedings have been instituted in the courts. That is to say, the fines are not imposed simply as the result of an investigation which may take place under this act; the criminal proceedings must follow before a fine or other penalty is imposed. The amount of the fine, one must assume, would depend upon the nature of the offence, the degree to which the public interest had suffered through the operation of the particular combine. I may say that the reason the maximum penalty is increased lies in the fact that business operations have expanded very greatly since the fines were first set out in the combines legislation of 1889. At that time the maximum fine was 110,000, and it is obvious that you might have a combine which would find it to its advantage to continue its operations if the fine levied were of fairly modest proportions. As I say, the increase in the penalty is designed

Combines Investigation Act
to meet the case of very large operations of this kind, but it is wholly within the discretion of the court what fines may be imposed. What we have here is a maximum.


Denton Massey: Did I understand the minister to say a moment ago that a fine of some $200,000 had been imposed upon one company in the west?


Norman McLeod Rogers: There were four individuals and four companies involved in that particular proceeding, and the total of the fines levied against the four individuals and four companies was 8200,000.


Denton Massey: Then under section 34 of this act it would be possible to impose a total fine upon four companies amounting to $400,000?


Norman McLeod Rogers: It would be possible.


Denton Massey: You could multiply the $100,000 by the number of companies within the alleged combine.


Norman McLeod Rogers: Yes.


[Stage Direction]
Section agreed to.
On section 35-Contempt of commissioner.
Denton Massey: I should like to ask the minister if I am correct in understanding this clause to mean that if the commissioner should enter the office of the company in question and encounter difficulty within that office, he could cause the arrest of the person in whose office he might be; or does this apply only during an investigation?


Norman McLeod Rogers: To take advantage of this section, Mr. Chairman, the commissioner would have to be acting in the course of proceedings taken under the act.


Denton Massey: Those proceedings would include any proceedings taken in the office of the individual or company concerned at the moment, would they not?


Norman McLeod Rogers: The proceedings taken
under the preliminary inquiry would be included, if that is what my hon. friend has in mind.


Denton Massey: No, that is not what I have in mind. Before the preliminary inquiry takes place the commissioner calls upon the individual or company concerned, wishing to see the books, and there is some trouble within that office. Would this section apply? No inquiry has been started; it is simply a visit by the commissioner.


Norman McLeod Rogers: It might apply in the case mentioned by my hon. friend, but that would be an extreme case, as he will readily understand. The commissioner must be acting pursuant to the provisions of the act before he can take advantage of this section, and obviously if he is acting pursuant to the provisions of the act it is desirable that he should be given every reasonable opportunity of obtaining the information necessary to carry on his investigation.


Denton Massey: The right hon. leader of the opposition and the hon. member for St. Lawrence-St. George were very definite in their statements in regard to what they felt were the extreme powers vested in the commissioner. The hon. member for St. Lawrence-St. George particularly mentioned his objection to the fact that a commissioner might enter the office of an alleged combine and demand the production of documents and all that sort of thing. If there were any resistance to that procedure I presume this section would apply.


Norman McLeod Rogers: This appears to relate particularly to the sittings, that is, when the proceedings are taking place in a normal inquiry. My hon. friend will note the latter part of the clause:
If in any proceedings under this act any person wilfully insults the commissioner . . . the commissioner may direct any constable to take such person into custody and remove him from the precincts and presence of the commissioner, to be detained in custody until the conclusion of the day's sitting, and such person shall be guilty of an offence and liable upon summary conviction to a fine not exceeding one hundred dollars.
I think it will be found that this section of the present bill is a repetition of the section in the 1935 act, with the word "commissioner" substituted for "commission." I am informed that this has been in the act since 1910.


Denton Massey: Not being blessedly cursed, or cursedly blessed, as the case may be, with a legal mind, I wondered if the language of the section was clear. It says, "in any proceedings under this act." Surely as soon as the commissioner arrives at the office of the alleged combine that is a proceeding under the act, is it not?


Norman McLeod Rogers: I am not sure that I can answer my hon. friend with the sort of legal interpretation he expects, but I think we may conclude that since a similar provision has been in combines legislation since 1910 it is a reasonable method of assisting the commissioner in obtaining necessary information.

Combines Investigation Act


Ernest Edward Perley: I think the hon. member is quite right in directing attention to this section, because in my judgment the words which have been inserted completely alter the meaning of the section in the sense mentioned by the hon. member for Greenwood. The words "under this act" have been inserted. Under the- law as it stands at the present time the section reads:
If in any proceedings before the commission or any commissioner any person wilfully insults the eommission-
Going to the office beforehand for the purpose of making an inquiry would not be a proceeding in that sense, but it appears to me that by inserting the words "under this act" it is intended to include the period before the inquiry begins. I do not think it was ever the intention that if, before the inquiry began, someone went to an office and asked questions and so on, that should be taken as being part of the proceedings under this act. That is the way it reads now. Why are the words "under this act" inserted now when they are not in the present act?


Norman McLeod Rogers: I should think at least a possible construction of the section would be that if the words "under this act" were omitted it would have the meaning which the right hon. gentleman desires that it should not have, namely that then the commissioner might take these measures even if he was not acting pursuant to the provisions of this bill. I have no objection at all, however, to accepting the suggestion that the phrasing of the section in the previous act should be repeated now, so that the words would be "if in any proceedings before the commissioner." Perhaps that might clarify it and remove any possible misunderstanding.


Ernest Edward Perley: Has this provision ever been invoked in so far as it relates to wilfully insulting a commissioner?


Norman McLeod Rogers: There is no record of its having been invoked. I believe it is there rather as a means of ensuring that there shall be a proper conduct of proceedings.


Henry Herbert Stevens: Is there any such provision n railway commission proceedings?


Norman McLeod Rogers: I am informed there is a similar clause.


Henry Herbert Stevens: That would be a safe precedent to follow.


Charles Gavan Power: I move:
That section 35 be amended by striking therefrom the words "under this act" in the first line thereof and substituting therefor the words "before the commissioner."


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
On section 36-Failure to attend and give evidence.
Ernest Edward Perley: Would the minister please explain the difference between this and the present law?


Norman McLeod Rogers: As indicated in the explanatory note on the opposite page, section 36 reenacts section 34 of the existing act. The only change in effect is the substitution of the word " commissioner " for the word " commission."


Henry Herbert Stevens: I have not had time to read the old section, but are not the words "the proof whereof shall lie on him" new?


Norman McLeod Rogers: I was going to explain that. The only change in effect is that which I have indicated, but in fact the words " and who, without lawful excuse, the proof whereof shall lie on him " are substituted for the words " unless he shows that there was good and sufficient cause for such failure," on the ground that the substituted words more precisely indicate the same intention.


Henry Herbert Stevens: My impression is that where a case is subject to summary conviction, as is here indicated, " the proof whereof shall lie on him " does not represent the procedure in such cases. This is a matter which has been before parliament for many years. On many occasions parliament has considered the advisability of placing the onus of proof upon the party accused. I think the common practice is the safer one to follow rather than, as in the present instance, to let the proof rest upon the one accused of the fault.


Mr ROGERS:: I do not see any material difference between the wording of the 1935 act and the bill now before the house, in connection with the point raised by the hon. member. I believe in each case the matter of proof is substantially the same. The question has been referred to the Department of Justice and the law officers of the crown have approved of the change in wording.


Ernest Edward Perley: Has there been any difficulty under the present act?


Norman McLeod Rogers: I know of no actual difficulty which has arisen through the section as previously drafted, but often during a revision
Combines Investigation Act

and consolidation an effort is made to clarify phrases which may be open to doubt. I believe the present change is for that purpose rather than in any way to change the purport of the section.


Ernest Edward Perley: I cannot see
where the change makes very much difference, and therefore I wonder why it is made. It seems to me that unless there is some reason for it it is a mistake to make an alteration.


Denton Massey: Would the minister indicate the difference between the fine or penalty for giving false evidence under this act, and that which is usual in the case of false evidence given under any other charge?


Norman McLeod Rogers: May I point out that the
penalty here indicated applies rather to the failure to attend to give evidence, and not to the giving of false evidence.


[Stage Direction]
Section agreed to.
On section 37-Refusal to make returns or give access to records.
Ernest Edward Perley: Is subsection 2 a new one?


Norman McLeod Rogers: I believe the explanatory
notes indicate no substantial change. Subsection 2 is section 37 of the existing act, amended so as to include within its scope directors or officers of a corporation who assent to or acquiesce in offences against the preceding section which are committed by the corporation or by any of its officers or employees.


[Stage Direction]
Section agreed to.
Section 38 agreed to.
On section 39-When fines payable to government of Canada.
John Ritchie MacNicol: Section 39 is a new section, and it would seem to me to be a very sound one. A few years ago a number of plumbers in Toronto, London and elsewhere established a code, having consulted with the then minister of labour in Ottawa and the best legal advice they could obtain. They believed that in so acting they were on sound ground. It turned out, however, that they had violated the Combines Investigation Act. A number of them were summoned and after trial were sentenced to pay heavy fines, which forced a number of them out of business and seriously crippled others. It was later found out, as I understand it, that apparently they had not violated the Combines Investigation Act. I believe the then Department of Justice was in agreement that the fines should be returned, but as the moneys had already been paid to the various municipalities they

could not be returned. According to the present section, if a similar circumstance arose and it was later ascertained that there had not been a combine, the federal government could return the fine. Formerly, the municipality having obtained the money, it could not be returned.


Arthur Graeme Slaght: The hon. member who has
just spoken is in error in suggesting that in the cases to which he refers it was later found that the fines had been improperly imposed. He is misinformed in that regard. Appeals were taken to the court of appeal in some of these cases and in every instance the convictions were confirmed. I was concerned in the prosecution, and my hon. friend is mistaken in thinking that there was any declaration that the fines were improperly imposed or the convictions improperly made.


John Ritchie MacNicol: This is just a ease of a solicitor on one side winning the case and the solicitor on the other side thinking that the fines were irregular. They came down to Ottawa during the tenure of office of the former government and the information given to me at that time was that the department was willing that the fines be remitted but that that could not be done.


Arthur Graeme Slaght: After all, we have to leave to the courts the matter of the validity of convictions. While my friend may have been informed that the parties who were convicted thought they were aggrieved and had persuaded some minister to sympathize with them, it would be a very evil practice for a minister to overrule court convictions and pass the money back to people on such grounds as that, whether political or otherwise.


[Stage Direction]
Section agreed to.
On section 40-Rights of action not affected.
Ernest Edward Perley: This is a new section. I should like the minister to give us some explanation.


Norman McLeod Rogers: This section provides that any rights of persons to proceed with any civil action are not intended to be removed or affected by the penalties provided in section 34 of the bill, which makes the formation or operation of a combine an indictable offence.


Ernest Edward Perley: Is that right not available to other people under the present act?


Norman McLeod Rogers: There appears to have been a measure of uncertainty about it, and this is to clarify the matter.


[Stage Direction]
Section agreed to.
Sections 41 to 44 inclusive agreed to.

Combines Investigation Act
On section 32-Revocation of patents.
Norman McLeod Rogers: During the absence of the hon. member for St. Lawrence-St. George (Mr. Cahan) this section was allowed to stand. It is our intention to move an amendment to this section. Since the bill received second reading we have gone further into the matter of the efficacy of existing remedies under the Patent Act to deal with the situation which originally we had sought to deal with by this section, that is so far as the revocation of patents is concerned. In view of this further consultation, I am now prepared to ask my colleague the Minister of Pensions and National Health (Mr. Power) to move that section 32 be deleted, leaving the effective remedy in the matter to the Patent Act.


Charles Hazlitt Cahan: I commend the action taken by the minister in this respect. So far as I could ascertain, the real trouble was not in the fact that individual owners of patent rights had a monopoly. Since the Patent Act of 1935 was enacted there has been no difficulty in obtaining a licence to manufacture from nearly every patentee in the country. The powers given to the commissioner under the Patent Act are so wide that no owner of a patent is prepared to resist the granting of a licence. The matter which the minister had in mind was not a monopoly of an individual patentee, but the supermonopoly which is sometimes created by a number of patentees combining for the purpose of restricting production, enhancing prices or maintaining too high prices. It seems to me that if the proposed amendment to the definitions is adopted, hereafter there will be no difficulty in bringing these supermonopolists within the terms of the terms and penalties prescribed by the combines act. I quite agree with the action the minister contemplates in deleting this section and relying upon the sections of the Patent Act which deal with the matter. I think he will find the difficulties will be overcome. My opinion, which is simply that of one who has studied the matter very carefully, is that the supermonopolies of whom complaint has been made would be brought within the definition of combine now proposed, and condemnation of those who are really violating the act would be permitted without any interference with the patent monopoly which might be held by a particular individual.
If the minister should find later on that the act as it is now amended does not permit of the investigation and condemnation of these supermonopolies I have in mind, I for one would be quite willing to agree to an amendment to meet that condition. I have in mind
two different classes of cases. There is the case where the holders of patent rights get together and combine, and there is the other case, which gave me a great deal of worry when I was secretary of state, where the owners of performing rights under the Copyright Act get together and combine. In either case the combination could be investigated and might be condemned without infringing upon the provisions of the Rome copyright convention or the Hague convention with regard to patents. Again, I commend the minister for having taken this attitude. I do not think he will find any difficulty in meeting some of the complaints, but if he does I shall be quite willing to sit down and try to find some remedy. I agree with the hon. member for Kootenay East (Mr. Stevens) and other hon. members who have spoken on this matter, that there exist conditions which should be subjected to investigation, condemnation and punishment.


Norman McLeod Rogers: The hon. member for St. Lawrence-St. George has stated correctly the purpose we have in view in deleting this section, and at the same time, in amending the earlier section covering definitions, to bring within its scope practices which we must all condemn.


Charles Hazlitt Cahan: I commend that.


Charles Gavan Power: I therefore move as an amendment to section 32:
That clause 32 be struck out and that the subsequent clauses of the act be renumbered in consequence thereof.
By consent of the committee there will have to he a renumbering of the clauses.


Henry Herbert Stevens: I happened to be called out on account of a long distance communication when this point arose a moment ago. In striking out clause 32 are we allowing this abuse of patent rights to run rampant?


Norman McLeod Rogers: No.


Henry Herbert Stevens: Will the minister explain the effect of the abandonment of this clause? I am not entirely satisfied with the clause, but I should not like to see it wholly deleted.


Norman McLeod Rogers: The matter received some discussion when the bill was before the house for second reading. The hon. member for St. Lawrence-St. George (Mr. Cahan), who as secretary of state previously had much to do with the Patent Act and the remedies supplied thereby, indicated that in his view those remedies were best suited to meet the situation which we had proposed to meet again in clause 32 of this bill. The international convention of 1925 on patents was also brought
Combines Investigation Act

forward as an objection to our proceeding under clause 32, that is to say, whatever action was taken with respect to revocation of a patent would have to be taken by the commissioner of patents. We are still providing, under the definitions in clause 2 of the bill, for monopolies which may result from bringing together a number of different patents and using such power to the detriment of the public. I feel sure it is the desire of the committee that we should do everything possible to meet that situation. In moving the deletion of clause 32 of this bill we are not depriving ourselves of all the remedies which we now possess. Remedies for patent abuses are provided under the Patent Act.


Mr. MULOCK:: Section 40 specifically refers to section 34. Must that be dealt with in this amendment also?


Norman McLeod Rogers: I am obliged to my hon. friend for pointing that out. We did make some inquiry with regard to that matter and are informed by the law officers of the crown that the appropriate changes will be made before the bill goes to the other house.


Henry Herbert Stevens: Before we pass this, I
should like to read a letter I have received from Box Brothers, Limited, of Treherne, Manitoba. It is right to this point:
Last spring we received a radio catalogue from Chicago. The radios illustrated were made by the Radio Corporation of America and the patents were held by the General Electric company, the Westinghouse Company, and the Hazeltinne Company. These particular radios retailed for about 25 to 30 per cent less laid down here than any radio offered in the province and a large number were being used in southern Manitoba. (Where they came from I am not prepared to say.)
We wrote to the excise department of the government enquiring if we could bring in these radios for resale. Their lengthy reply was non-committal but in view of the fact that the patents were held by companies doing business and making radios in Canada we thought it would not be an infringement of patents to bring them in. We ordered twelve, was duly informed of the amount of the duty by the customs, paid the same and we had hardly time to unpack them than the Canadian Radio Patent Limited of Toronto, through their solicitors in Winnipeg (Messrs. Swail, Gibben and Laidlaw) threatened us if we sold them. We sent our representative to see them and they made us a proposition, that if we would sign an agreement with them giving ten per cent of invoice value, pay all legal costs and agree not to import any more they would allow us to dispose of the ones we had. They cited to us what happened to others who had defied them and offered these radios for sale, particularly one firm in Winnipeg whom they pointed to with much satisfaction, as having prosecuted, got judgment, bankrupted and 
finally put them out of business. Not wishing to go singlehanded into bucking a big combine as this we submitted to their demand.
Now Mr. Stevens,-
The letter goes on,
-there are two points to this. The first is that the government shared our profit when they accepted the duty and therefore became a partner and a second is that as a citizen of this country we have every right to expect that the government will protect its citizens by informing them or refusing to accept money on goods that are according to the radio combine illegally brought into the country.
That is all that is germane to the subject. This is the same thing that I have referred to in several previous sessions and previously this session. It is the use of the patent right in order to prevent the importation of goods upon which all royalties have been paid in a country which is in the same position as ourselves with regard to the international treaty. Not only that, but these companies-five of them, as I recall-have combined in Canada and have a corporation known as Canadian Radio Patent Limited of Toronto, and that corporation carries on prosecutions against those who dare to import not only radios but electric bulbs or anything else which they consider to be an infringement of their patent-not an infringement, because the patent royalties have not been paid in the foreign country, but because the company contend they cannot be sold in Canada, that the patent right limits them here.
1	have always contended that this is wrong; it may be the law but it is inequitable and wrong. The point is that they are a combine; they have combined together to do this. While I did raise the question whether clause 32 is properly in this act-I think it should be more clearly stated in the Patent Act, perhaps

nevertheless that portion of it which deals with the combining together to achieve these ends should, in my opinion, be present in this act somewhere.


Charles Hazlitt Cahan: My hon. friend has not studied the proposed amendment to section
2	which is to come before the house in a few moments. The proposed amendment to that section, I am perfectly clear, makes such a company-I do not wish to name the combine with regard to radios-a combine and therefore illegal, and the company itself and its officers and directors who maintain these prices would be subject to imprisonment and a fine under section 34 of the act as at present numbered. I do not think the hon. member for Kootenay East has q,uite seen the force of that, and perhaps will not until we revert again to section 2, which is "definitions."

Combines Investigation Act


Henry Herbert Stevens: I thank the hon. member for bringing the amendment to my attention. As a matter of fact the amendment is not before us, and section 2 is the interpretation clause only.


Charles Hazlitt Cahan: I think the definition as amended-we discussed it the other day in the absence of the hon. member-is sufficiently wide to bring that supermonopoly, as I call it, entirely within the provisions of this act so that it may immediately be investigated and the offenders punished by the courts.


Henry Herbert Stevens: I would certainly be inclined to take the hon. member's view of that point, but I always look askance at relying upon the interpretation clause for effective prevention of an abuse which is supposed to be dealt with in an act. However, the hon. member for St. Lawrence-St. George is certainly quite capable of interpreting law and I should be inclined to accept his view if after hearing the amendment I found that it corroborates what he has said.


Charles Hazlitt Cahan: I am simply trying to find a remedy for the evil of which the hon. gentleman complains.


[Stage Direction]
Amendment agreed to.
Section 32 withdrawn.
On section 2-Definitions. "Combines."
Charles Gavan Power: I move that subsection 1 of section 2 be deleted and the following substituted therefor:
(1) "combine" means a combination of two or more persons by way of actual or tacit contract, agreement or arrangement having relation to any article or commodity whieh may be a subject of trade or commerce, or a merger, trust or monopoly, and which has or is designed to have the effect of
(i)	limiting facilities for manufacturing, producing, transporting, supplying, storing or dealing. or
(ii)	preventing, limiting or lessening manufacture or production, or
(iii)	fixing a common price or a resale price or a common rental, or
(iv)	enhancing the price, rental or cost of any article, storage or transportation, or
(v)	preventing or lessening competition in or substantially controlling, within any particular area or district or generally, manufacture, production, purchase, barter, sale, storage, transportation, insurance or supply, or
(vi)	otherwise restraining or injuring trade or commerce; and which combination, merger, trust or monopoly has operated or is likely to operate to the detriment or against the interest of the public, whether consumers, producers or others.


Charles Hazlitt Cahan: I simply say to my hon. friend from Kootenay East that I have looked carefully into this section with a view to meeting the same evil that he has in mind,
and in my opinion the supermonopoly certainly falls within this definition of combine and, therefore, the definition subjects those who form, or maintain or operate the monopoly to the penalties of section 34 of the act. That is my opinion. I am not counsel for any person, but I am merely trying to meet the object the hon. gentleman had in view.


Joseph Thorarinn Thorson: I have only one observation to make with regard to the suggested amendment. "Mergers, trusts or monopolies" are confined to "any article or commodity," so that if any of these organizations has to do not with "any article or commodity" but with a service, then it is excluded from the definition.


Charles Hazlitt Cahan: I grant that, and for my part I am prepared to include under (i), (ii), (iii) and (iv) all that is declared to be illegal in the provisions of the criminal code. But we are dealing here with commodities or articles produced, and in so far as the monopoly or the merger has anything to do with the production or sale of a commodity or of any article which can be produced or manufactured and sold, this covers it.


Joseph Thorarinn Thorson: Quite so.


Charles Hazlitt Cahan: And that is all that has ever been covered so far by the combines act. When the act was drafted in 1923 difficulties were discovered and services were not included. I am quite in accord with the adoption of this amendment, and if we adopt it, then with regard to all commodities produced or manufactured there is ample provision for investigation and for indictment and punishment. No act of this parliament has ever gone further than that and I think it is quite sufficient until we see how it works out.


Joseph Thorarinn Thorson: That is quite so with regard to any article or commodity.


Norman McLeod Rogers: This whole question of the definitions of combine, merger, trust and monopoly has received a good deal of attention since the section was last before the committee, and in the present draft we have had the advantage of that previous discussion and particularly of certain observations made by the hon. member for St. Lawrence-St. George. After all, our whole purpose in this section in the bill is to indicate in the clearest possible terms the types of business organization that will fall within the prohibitions laid down by the act. I believe the section as now drafted will make for greater clarity than the section in the original bill. With respect to mergers and monopolies, I believe that services are included.
Combines Investigation Act


Charles Hazlitt Cahan: This shows the difficulty of discussing in committee a matter so intricate. The amendment which the minister has just proposed does not cover all that I had in view.


Charles Gavan Power: I have a suggestion with regard to subsections 4 and 7.


Charles Hazlitt Cahan: The amendment proposed by the minister reads:-
(1) "combine" means a combination of two or more persons by way of actual or tacit contract, agreement or arrangement, haying relation to any article or commodity which may be a subject of trade or commerce, or a merger, trust or monopoly, and which has or is designed to have the effect of . . .
With all deference to the minister, I think that would be more clearly expressed in this form:
1. A combine means a combination of two or more persons by way of actual or tacit contract, agreement or arrangement, or a merger, trust or monopoly, having relation to any article or commodity that may be a subject of trade and commerce, and which has or is designed to have the effect of . . .
That is my opinion. I will not go further. I think that the merger or the monopoly which constitutes a combine should be one that has a relation to any article or commodity, that is to anything produced that may be a subject of trade and commerce. The application of the statute would be clearer and more effective if the suggestion I make should carry. But having spent so much time explaining my views, and simply being anxious to place the clause on a reasonable basis, I say no more.


Norman McLeod Rogers: I appreciate the explanation given by the hon. member of the difference between the wording of the amendment as it is now before the committee and the wording he has in mind. But I would point out that the wording in the amendment is designed to bring services within the definition of merger, trust or monopoly, or at least not to exclude services. There has been no difficulty in the past with respect to combinations which relate to services rather than the production of some article, but we felt it was desirable that in respect to mergers, trusts or monopolies, services should not be excluded in the definition of these terms.


Charles Hazlitt Cahan: If the object is to bring services within the term " combine " that is an innovation; it has never been in our law hitherto. If you are to introduce that innovation I suggest you should have followed the

clauses of section 498 of the criminal code. Section 49S provides expressly for services. It provides that:
Everyone is guilty of an indictable offence . . . who conspires, combines, agrees or arranges with any other person, or with any railway, steamship, steamboat or transportation company,-
Those are companies which render services.
(a)	to unduly limit the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any article or commodity which may be a subject of trade or commerce; or
(b)	to restrain or injure trade or commerce in relation to any such article or commodity; or
(c)	to unduly prevent, limit or lessen the manufacture or production of any such article or commodity, or to unreasonably enhance the price thereof;
We have included those. Then (d) says-
. . . to unduly prevent or lessen competition in the production, manufacture, purchase, barter, sale, transportation or supply of any such article or commodity, or in the price of insurance upon person or pi'operty.
We have in that clause endeavoured to provide for a monopoly of services. But we have never inserted that clause in the combines act. If it is intended to deal with services let us deal with it openly, let us realize what we are doing; let us know what a combination in respect of services is. Do not leave it in the clouds. If we are going to deal with the matter let us be perfectly frank and clear in placing this innovation in the combines act. If we are going to deal with it we ought to have an extra clause in the definition which would include (a) and (d) of section 498. If my hon. friend wishes to pass his bill through, without too much debate at this session, I think he would do well to accept the amendment in the way I suggest, and if he finds difficulty in working it out he can amend it at another session. But I deplore the suggestion that we are to introduce in this law for the first time a penalty in respect of combines in services. I do not think this parliament has jurisdiction over services except in so far as services are brought within the criminal code. Therefore when you are procuring a bill in many respects commendable, why attempt to introduce-surreptitiously, may I say without offence-a combination in respect of services which has never been in the law, and which if it is in the law can only be a combination of such services as are brought within the terms of section 498 of the criminal code?


Norman McLeod Rogers: This point did arise in
1935 when the bill of that year was before this house. The situation then was that the

Combines Investigation Act
bill as drafted did not exclude services, but the senate in its amendment sought to restrict the meaning of the word "combine" in such a way as to confine it exclusively to articles of trade and commerce. The words are these:
"Combine" means a combination having relation to any commodity which may be the subject of trade or commerce.
Then the matter came back to this house, and I quote the present Prime Minister (Mr. Mackenzie King) upon the point, as found at page 4278 of Hansard for July 4, 1935:
As I see the effect of this amendment it will rule out of consideration all service industries. Plumbing, for example, would not come within the definition as it is now set forth by the Senate, and anything in the nature of a plumbing combine or a combine of plumbers could not be investigated under the act. That is one of the service industries that have already been investigated. It seems to me that they should not be exempted because of any change in the definition, and I do not think that definition should be allowed to stand.
Then I quote the leader of the opposition:
Mr. Bennett: I am bound to say that I share the right hon. gentleman's opinion with respect to that. If the act were limited to commodities it could not deal with a combination for services or other non-physical intentions.
So that apparently this matter does not now arise for the first time.


Charles Hazlitt Cahan: But it never was inserted in a statute of Canada before.


Norman McLeod Rogers: I quite agree. On the
other hand I do not think there was the general belief that service industries were excluded.


Charles Hazlitt Cahan: I think there was. That shows the difficulty. When it came back the prime minister and the leader of the opposition were dealing with a clause which had been amended by the senate for certain purposes. But if you are to deal with combinations of services it should not be dealt with surreptitiously in an amendment introduced by the senate. Let us deal with it openly and frankly. As we never have had services included in the definition of a combine, if we introduce services now it can be done only by infringing upon provincial legislation, by entering the field of civil jurisdiction, by making certain things crimes which never before have been crimes in this country. When we do that with regard to plumbing let us do it openly and definitely and precisely, by statute. The hon. gentleman will have ample time at another session to introduce through the Minister of Justice an amendment to the criminal code covering that, and I suggest that that procedure be followed. It has been the usual procedure. There is not a
municipality, there is not a city in this dominion that has not its own provisions with regard to the plumbing trade. Let us exercise great care before entering the provincial field and saying that certain arrangements in the plumbing trade which have been legal, ever since we have had civil law in this country, shall now be declared criminal. It covers many other things in addition to plumbing, such as the baking of bread. In connection with services it covers railways, tramways and other transportation services, and deals with your elevators out in the west, which render a public service. The field is very wide and the matter very complicated. It is now entirely within provincial jurisdiction, and before we make these civil matters crimes in order to bring them within the federal jurisdiction I think much more careful study should be given than has been given so far, certainly more than has been given to the preparation of this bill.


Norman McLeod Rogers: I find that when the senate amendments came before this house in 1935 the then prime minister moved that amendments Nos. 1 and 2 be not concurred in, for the following reasons:
1.	That a combine may exist with respect to a subject matter other than a commodity, and it is the purpose of the act to deal with such a combine.


Charles Hazlitt Cahan: Quite so.


Norman McLeod Rogers: And:
2.	That it is the intention of the act to deal with a condition where a combination, merger, trust or monopoly has operated or is likely to operate to the detriment or against the interest of the public.
I do not need to go on with the other points, because it is the first point that has reference to this matter.


Charles Hazlitt Cahan: I am not going to discuss the opinion of the present leader of the opposition, because lawyers may have different opinions, but the fact that a novelty in respect of combines was introduced in the combines legislation of that day gave ample justification for the action taken in another place until the matter had been thoroughly investigated by some special committee where the evidence could be heard. We are doing all we can to assist in making progress with this bill, but why insert a provision of this kind at this time, which may and in my humble opinion should jeopardize the possibility of the bill being enacted during the present session of parliament?


[Stage Direction]
Amendment agreed to.
Combines Investigation Act
Charles Gavan Power: I have another amendment to this section, as follows:
That subsection 4 of clause 2 be amended by substituting the words "or corporation formed in" for the words "resulting from" in the first line of the subsection. The subsection would then read as follows:
(4) "merger" means the combination or corporation formed in the consolidating or amalgamating of the whole or part of the businesses of any two or more persons, or resulting from the purchase, lease or other acquisition by any person of any control over or interest in the whole or part of the business of any other person;


Charles Hazlitt Cahan: I have no objection to the
amendment. Of course I am not going to discuss the whole clause again; if the committee has decided to adopt the original clause in the bill, well and good. I do think, however, that subsection 4 might have been clarified if we had time, which we have not. That is all I wish to say. I may vote against this section, but not because of the amendment, because I do not think the amendment adds to or takes away very much one way or the other.


Joseph Thorarinn Thorson: The purpose of the
amendment is to meet the criticism that was voiced in the house the other day by the right hon. leader of the opposition, when he dealt with this particular clause.


Charles Hazlitt Cahan: Certainly. We do not object to the amendment.


Joseph Thorarinn Thorson: Exception was taken to
the word "combination" as being the same word that was used in section 2, subsection 1, paragraph (a). The purpose of the amendment is to indicate that the unit that results from an amalgamation might not be a combination of two or more persons-


Charles Hazlitt Cahan: I am not going to discuss
it; we all understand it.


[Stage Direction]
Amendment agreed to.
Charles Gavan Power: I have a further amendment to subsection 7 of this section, as follows:
That subsection (7) of clause 2 be deleted and the following be substituted therefor:
(7) "trust" and "monopoly" ifiean one or more persons who, within any particular area or district or generally, substantially control any class or species of business, or have such control over the supply or distribution of or the demand for any article or commodity as to enable such person or persons to enhance or substantially control prices of such articles or commodities.


Charles Hazlitt Cahan: In the same way, Mr. Chairman, I think this amendment is commendable. It is an improvement on subsection 7 as it

formerly stood. Possibly there is still some objection to it, but I am not going to urge any objection to-day.


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
On section 13-Officers and equipment.
Charles Gavan Power: I move that section 13 be struck out, and that the subsequent sections be renumbered in consequence thereof.


[Stage Direction]
Amendment agreed to.
On section 17-Investigations.
Charles Gavan Power: I move that section 17 be deleted and the following substituted therefor;
If on making a preliminary inquiry the commissioner decides that further investigation should be made, he shall cause an investigation to be made into and concerning all such matters as he shall consider it necessary to inquire into for the purpose of determining whether a combine exists.


Charles Hazlitt Cahan: All I have to say is that while this may be an improvement-I do not know whether I am getting too advanced in years to continue to act in the courts, but if I am ever called upon to act as counsel for a company being investigated I will simply contend, and I think successfully, that this clause is beyond the legislative jurisdiction of this parliament.


[Stage Direction]
Amendment agreed to.
Ernest Edward Perley: I am not a lawyer, but the other day the question was raised in this way:	When the commissioner finds
an inquiry frivolous, a report has to be made to the minister, but no report has to be made when the commissioner believes an investigation should be held; in the latter case he does not require the consent of the minister. That is to say, the minister is to be consulted when there is no case, but he is not to be consulted when the commissioner thinks there is a case.


Charles Hazlitt Cahan: Quite so, and it should not be that way. Certainly the commissioner should not proceed with any investigation of that kind without authority of the minister. In my view we are making too many departures from the fundamental principles of responsible government, and this is one of the most notable of them.


Norman McLeod Rogers: I believe the clause as it is now drafted is substantially the same as that in the 1935 and previous acts.


Charles Hazlitt Cahan: That may be so.

Combines Investigation Act


Norman McLeod Rogers: It is not always easy to determine whether a preliminary or a full inquiry may be required. A commissioner may proceed with a preliminary inquiry for some time, and then it may show a situation which leaves it clear to him that a full inquiry is necessary. One must relate this section back to the previous one under which an investigation is instituted either upon application of six persons or by the minister. That is to say, the commissioner does not initiate the inquiry.


Charles Hazlitt Cahan: Does the minister suggest that any six persons may initiate an inquiry that the minister is bound to carry out? Why, in walking along the street from my office to my club in Montreal I could obtain six persons who would initiate any sort of inquiry one may wish to initiate. Six persons may bring it to the notice of the minister or of the commissioner, and the commissioner may have a preliminary inquiry. But then it should be the duty of the commissioner to report to the minister as to whether or not a full and extensive inquiry shall be made. Any one of those inquiries may result in an expenditure of tens of thousands of dollars. Is that to be done without the approval of the minister? Certainly I suggest that if I were a minister, before authorizing an extensive inquiry which is likely to involve heavy expenditures of public funds, not only would I insist upon being consulted but I would take the trouble to consult my colleagues at the first meeting of council as to the necessity of carrying it out. It should not be left to the discretion of a commissioner to incur the expenditures necessary for a further and more extensive investigation, even if he is satisfied from a preliminary investigation that a further investigation should be made. I suggest that instead of the word "commissioner" the word "minister" should be inserted, and, as an amendment to the amendment, in order to place the matter upon record, I will move that the amendment to section 17 of bill 41 be still further amended by substituting the word "minister" for "commissioner" wherever it appears in the section.


Norman McLeod Rogers: I do not believe the amendment to the amendment can be accepted. It seems to me the hon. member for St. Law-rence-St. George is reopening ground which has already been covered in the discussions on sections 14 and 15. There is provision whereby any six persons, British subjects, resident in Canada, of the full age of twenty-one years, who are of the opinion that a combine exists, may apply in writing to the commissioner for
an investigation of such alleged combine, and shall place before the commissioner the evidence on which such opinion is based. Then, in a succeeding section there is the provision that the commissioner shall, on application made under the last preceding section or on direction by the minister, proceed with the inquiry. When the section was before the committee at an earlier day we excluded an inquiry which would be instituted by the commissioner of his own volition.


Charles Hazlitt Cahan: Yes.


Norman McLeod Rogers: But we retained the other two methods of instituting an inquiry, and it seems to me that under the circumstances it is desirable to have section 17 stand.


Charles Hazlitt Cahan: Then we should revert to section 15. I agree that on Friday or Saturday in debate I expressed the view that a preliminary inquiry might be started on the application of six persons, but that is a preliminary inquiry.


Norman McLeod Rogers: No, it applies to any inquiry. It is not restricted to a preliminary inquiry.


Charles Hazlitt Cahan: In section 15 we find the words "cause a preliminary inquiry to be made into and concerning such matters as he deems the circumstances warrant." In dealing with that section I regarded the situation there described as a preliminary inquiry. I did not wish to place any obstacles in the way of a preliminary inquiry, because it might well be made if six reputable citizens suggest that a crime has been committed. But when it comes to a complete inquiry involving a large expenditure of public funds I say it should not be in the discretion of the commissioner to act. He should make his preliminary inquiry, report to the minister and be in a position to satisfy the minister that a further and more extensive inquiry is necessary. Having done that the minister, not the commissioner, should authorize further proceedings. That is all I have to say.


Ernest Edward Perley: I believe our suggestions in regard to section 17 are in no way inconsistent with sections 14 and 15. I call the minister's attention to the fact that under section 14 a preliminary inquiry may take place on the application of six persons or the minister, but it may take place on the application of six persons without the minister necessarily knowing anything about it or giving his consent or approval. Under section 17, six people having applied for an investigation, the commissioner may proceed to order a complete investigation without the



UTISED IDITION

[Stage Direction]
Combines Investigation Act
[Stage Direction]
minister coming into the matter at any time. The preliminary inquiry takes place on the request of six persons, and then the investigation may proceed on the approval of the commissioner.
I submit as strongly as I can that this is a complete negation of responsible government. A preliminary investigation might take place, and then without the minister knowing anything about it a full investigation could follow. Certainly something should be inserted in section 17 whereby a complete investigation could not take place without the approval of the minister. It seems to me that that is a fundamental principle of responsible government.
Norman McLeod Rogers: It seeins to me that the minister takes the responsibility if he institutes the original preliminary inquiry.


Charles Hazlitt Cahan: No, no.


Ernest Edward Perley: The minister may not have instituted the preliminary inquiry.


Norman McLeod Rogers: It may have been done under the other provision.


Ernest Edward Perley: It may have been done under the other provision without the minister knowing anything about it.


John Horne Blackmore: I believe the point raised by the hon. member for St. Lawrence-St. George is quite sound. It seems to me that the minister should know about the investigation and that it should be done with his approval. I would go as far as to say that it should be considered by the cabinet and an order in council passed instructing the commissioner.


Norman McLeod Rogers: The commissioner acts under the authority given to him by this bill, and it does not seem to me that this implies a departure from the principles of responsible government.


Charles Hazlitt Cahan: In certain particulars his powers should be limited in the discretion of the minister.


Norman McLeod Rogers: A similar provision was in the act of 1923 and the act of 1935, and there is much to be said for continuing the same procedure at this time. These preliminary inquiries are often such that only the person conducting them can determine whether or not the inquiry should go further. Presumably he would have to place that evidence before the minister in his report.


Ernest Edward Perley: No.


Charles Hazlitt Cahan: Place the substance of it before the minister.


Ernest Edward Perley: He would not have to do that the way this section reads.


Norman McLeod Rogers: Under the proposal suggested by my hon. friends opposite the minister would be made the judge, so to speak, as to whether or not an inquiry should go beyond the preliminary stage. I wonder if that would not put a minister in a position which he ought not to occupy? After all we are creating what is in a sense a quasi judicial position and we must have some faith in the commissioner to be appointed by the governor in council. If there is any reason to believe that he is not carrying out his duties in a proper manner, his services can be dispensed with. If the discretion is left to the minister there is a possibility of charges of political persecution being made which would be unsatisfactory in the administration of the act. This provides the method by which these inquiries have been conducted in years past and I can see no good reason why it should not be continued.


Ernest Edward Perley: There might be an extraordinary case where the commissioner, without consulting the minister, goes on with a full investigation at a cost of many thousands of dollars when it should not have been made. The minister then comes to the House of Commons and says he has no responsibility whatever, since the action was taken by the commissioner under the provisions of the act,


Norman McLeod Rogers: The position of the minister is no different this year from the position of the president of the privy council with respect to the trade and industry act of 1935.


Charles Hazlitt Cahan: Section 17 as it appears in the bill reads:
If after a preliminary inquiry the commissioner decides that further investigation is justified, he shall cause an investigation to be made into and concerning aid such matters, whether of fact or of law,-
The note on the opposite page reads:-
In the existing act there is no specific provision for the course to be followed where preliminary inquiry discloses the necessity of further investigation. Such provision is made in this section.
It is not desirable that the commissioner, having undertaken a preliminary inquiry and having reported, as he must report, to his minister that a further extended investigation is necessary, should be at liberty in his own discretion to proceed with that further investigation which may involve, as has been the case recently, an expenditure of tens of thousands of dollars without first receiving

Combines Investigation Act
either the approval of the governor in council or of the minister. It is unheard of that such expenditures should be undertaken without the sanction of either the governor in council or of the minister. It is a denial of the very basis of responsible government that that possibility should exist. The minister may not wish to go to his colleagues in the privy council for their authority, and we can leave that to his discretion, but he certainly should give authority and take responsibility for the expenditure of tens of thousands of dollars.


Henry Herbert Stevens: I do not like to delay the minister, but this is a very important matter. Under section 16, if after a preliminary inquiry the commissioner decides that he should not go ahead, he must report to the minister. If after a preliminary inquiry he feels that he should go ahead, he makes no report at all to the minister but just goes on. It is an abandonment of the principle of responsible government to say that a commissioner shall go on without regard to the opinions of the governor in council, whereas when there is to be no further inquiry he must make a report to that effect. If this act is to be respected and is to be a real factor it must have behind it all the prestige and force of government. Instead of saying the minister I would say the governor in council, because these are important matters; they should have behind them all the dignity and force of government, otherwise we should not bother with them at all. I agree with the hon. member for St. Lawrence-St. George that this matter should be subject to the approval of the minister, but I would prefer making it subject to the approval of the governor in council.


Frederick George Sanderson: An amendment to the amendment to section 17 has been moved by the hon. member for St. Lawrence-St. George (Mr. Cahan), that the first two lines of section 17 be deleted and the following substituted therefor: "If after a preliminary inquiry the commissioner decides that further investigation is justified, he shall with the consent of the minister. . ."


Charles Hazlitt Cahan: Will the minister accept that amendment to the amendment?


Norman McLeod Rogers: I am afraid I must continue with the section as it is in the bill. The minister has the power at any time during the course of a proceeding to ask for an interim report and I do not think it would make for more satisfactory administration of the act to require that the commissioner shall come back to the minister after a preliminary inquiry for permission to proceed with a further investigation.


Charles Hazlitt Cahan: That is the very essence of my suggestion.


Norman McLeod Rogers: It has never been-


Charles Hazlitt Cahan: Do not bring up what has never been; we are dealing with a matter for the first time in the history of these combinations.


Norman McLeod Rogers: The question of what is or what is not a proper expression of responsible government is not new. This is simply an application of it.


Mr. BAKER:: Does the minister not want to accept the responsibility?


Norman McLeod Rogers: I believe that it is in the best interests of the administration of the act that the clause should stand as it is.


Hugh Alexander Stewart: Section 16 clearly contemplates that where there is a preliminary investigation the commissioner shall report to the minister, and the minister, the matter having been brought to his attention, may then order an investigation; he may then concur in or disapprove of the report of the commissioner. That contemplates that there shall be no further action taken. But siurely, if the concurrence of the minister is contemplated where no further action shall be taken, where the matter shall be dropped, it is equally if not more important that his concurrence should be secured before action is taken involving, as has been pointed out by the 'hon. member for St. Lawrence-St. George (Mr. Cahan), further investigation and the expenditure of money not only on the part of the government but by all those who are interested. It seems to me to be only consistent, if you are going to 'have the approval of the minister to the dropping of an investigation after the preliminary inquiry has been made, to have his approval also before an investigation is continued.


Joseph Thorarinn Thorson: Why should the minister of labour be put in the invidious position that he would be put in if the amendment proposed by the hon. member for St. Lawrence-St. George were carried? The commissioner proceeds to make an investigation either upon the application of six persons or by direction of the minister. That investigation is in the nature of a preliminary inquiry. If he finds that there is no substance to the complaint he reports to the minister that there is no need of making any further inquiry under section 16 of the bill. But if the commissioner, after making a preliminary inquiry, comes *r the conclusion that there is ground for conducting a full and thorough inquiry, why should the minister be put in the position of
Combines Investigation Act

saying that there shall be no inquiry? He ought not to be planed in that position, because he will then be asked to countermand a report from the commissioner certifying that there are proper grounds for continuing the inquiry. I think it is contrary to the principle of the act that the minister should be interposed in that way and put in the invidious position of having to decide that there should not be a full inquiry after the commissioner has certified to him that there is good ground for making a full inquiry. It would be very unwise to put the minister in that position.


Hugh Alexander Stewart: Is not the minister put in that position by subsection 2 of section 16, which the hon. member for Selkirk (Mr. Thorson) has not read, and which reads as follows:
(2) On written request of the applicants or on his own motion, the minister may review the decision of the commissioner under this section, and the decision of the minister shall be final and conclusive and shall not be subject to appeal or review.
So the minister, when there is a report from the commissioner that the preliminary investigation discloses that there is no case, has the right to review that. He has put himself in the position that he may order the investigation to continue. So he is assuming responsibility there. Why should he not assume responsibility when there is a condition that apparently warrants further action?


Charles Hazlitt Cahan: We are simply making the iwo sections consistent.


Joseph Thorarinn Thorson: There is a substantial difference, though, because paragraph 2 of section 16, which by the way I have read on a number of occasions, makes provision for the minister reviewing the report of the commissioner for the purpose of continuing an inquiry, but the amendment proposed by the hon. member for St. Lawrence-St. George would put the minister in the position of stifling an inquiry-


Charles Hazlitt Cahan: No, no.


Joseph Thorarinn Thorson: -and ordering that a further inquiry should not be made although the commissioner reports that there ought to be such further inquiry. There is a substantial difference between the two situations, and the minister ought not to be put in such a position.


Charles Hazlitt Cahan: The suggestion we have been making is that the minister should approve of the further investigation-" consent " is the word used in the amendment-because you are then face to face with an expenditure of

perhaps $200,000, as in the case of certain inquiries we have had recently, and the minister should give his consent before the commissioner is allowed to undertake the expenditure of public moneys to the extent of thousands of dollars.


Joseph Thorarinn Thorson: Will that not put the minister in the position of deciding on occasion that there should not be an inquiry?


Charles Hazlitt Cahan: Is not the minister who is administering the department placed in that position every working day of the month or j'ear?


Norman McLeod Rogers: Mr. Chairman, I have
examined rather carefully the similar provisions of the previous acts-


Charles Hazlitt Cahan: Oh well, that does not appeal to me.


Norman McLeod Rogers: -and although the hon. member for St. Lawrence-St. George suggests that we ought not to feel bound in any way by what has gone before, I submit that when one finds that the minister has not been put in that position under previous legislation there ought to be very good reason to indicate why a change should be made at this time.


Charles Hazlitt Cahan: Because previously he has always taken the responsibility.


Norman McLeod Rogers: No.


Charles Hazlitt Cahan: I beg your pardon.


Norman McLeod Rogers: The procedure has been instituted in substantially the same way. As a matter of fact, under previous legislation the commissioner had wider power than he has now in initiating an inquiry.


Charles Hazlitt Cahan: Then why place in your note 17 that:
In the existing act there is no specific provision for the course to be followed where preliminary inquiry discloses the necessity of further investigation. Such provision is made in this section.
And you proceed to make a new provision, unknown under the act before.


Norman McLeod Rogers: The explanation lies in this fact, that in the previous legislation a clear distinction was not made between the preliminary inquiry and the full inquiry. Under the previous legislation the registrar usually made the inquiry, and no intervention of the minister was necessary after the inquiry was originally instituted.


Ernest Edward Perley: I think that, if the government has decided they are going to put this legislation through the way it is, we have said all we can. As a matter of

Combines Investigation Act
fact, all that we are suggesting is that the consent of the minister shall be given before the full investigation takes place. That is a very simple thing. In all probability the commissioner, having the full confidence of the minister, will place the papers before him and briefly explain to him the situation and the minister will give his consent; but this enables him to take the responsibility and also to keep some control over the expenditure of public money in case he thinks it is not warranted in any particular instance. As far as I am concerned I cannot see why the minister objects to it, because, as my colleague from St. Lawrence-St. George has said, every minister takes responsibility of this kind every day and this would be in no way different from the many other matters that the minister has to consider and approve or otherwise.


John Horne Blackmore: It seems to me also that we are overlooking the fact that the minister would then be placed in an advisory capacity. In the case of a good many investigations which might be prosecuted there should be need for the commissioner to consult very earnestly with the minister. I do not see why the minister should have to countermand the decision of the commissioner: the two could consult and come to a decision. That is the way I look at it.


Frederick George Sanderson: Is the house ready for the question?


Richard Bedford Bennett: Mr. Chairman, I think the minister must admit that after the preliminary investigation has been made, if the commissioner concludes that it is frivolous or vexatious he makes a report to the minister, and in that report he gives fully the whole story as he finds it. Why should he be relieved from doing that when he concludes otherwise than as provided for in section 16? He concludes, we will suppose, that it is not frivolous or vexatious; why should he not do the same thing as he does when he concludes that it is vexatious? He reports to the minister in the one case, and in the other he does not. Surely that is not sound.
If it is essential that the commissioner should report to the minister, when he thinks it vexatious or frivolous, all the facts as elicited by the preliminary inquiry, obviously there is no principle that should relieve him from doing so when he concludes that he will go on. There is one answer; he is exercising the powers of a judge, and that would mean adding to the bill a provision that the office of commissioner shall only be held by a barrister of ten years' experience. That
would be the obvious answer to it all, because he is really exercising the powers of a judge in exercising these powers in a preliminary way; and before public expenditure is made he should have seen the minister responsible for that expenditure.
The essence of our parliamentary system of government is that the minister of a department primarily assumes responsibility, although the government as a whole is responsible for the expenditures of his department. After a preliminary investigation the commissioner says: I think I will go on- and he makes no report to the minister; in the other case he says: I don't think I will go on-and he reports to the minister all the facts that have been elicited. The minister then says: Well, I think, after all, you should go on

and that is the end of it, and he goes on. The minister's judgment is final. The minister says: I agree with you-and that ends it. But when he says he is going to go on, as it stands now he makes no report to the minister with respect to the preliminary investigation.


Norman McLeod Rogers: The minister may call for an interim report.


Richard Bedford Bennett: Yes, but that is not the point. In one instance he does report to the minister the result of the preliminary investigation, and in the other, although he made the preliminary investigation, he is not going to make any report to the minister; he simply goes right ahead regardless. That, I think, is the negation of our system of government, because it involves the expenditure of perhaps hundreds of thousands of dollars, and the next thing the minister knows there is an application for a governor general's warrant on the ground that the money is all gone, just as we had the other day in connection with two inquiries here-the money all gone and more needed, and therefore governor general's warrants. If the minister in the first instance had before him the report on the preliminary investigation, in which report the commisisoner said, "I have examined twenty witnesses and it seems to me that this will be an important inquiry involving so-and-so, and as there is some doubt as to law, and I am not a lawyer, I have received an opinion from the departmental solicitor to such-and-such an effect"-that, it seems to me, would be consistent with the report that he makes that negatives the inquiry being held. But when he is going to hold the inquiry, although he has made the preliminary investigation, he makes no report and the minister assumes no responsibility.
Combines Investigation Act

There is only one way to overcome the difficulty, and that is to employ a man with the qualifications of a judge to administer the act. That becomes essential now in any event, in view of the powers here conferred upon the commissioner. To leave it to a layman to administer the act is entirely wrong, because he is now virtually a judge in the very broadest sense of the term. I cannot see that it is anything but consistent to provide that the results of the preliminary inquiry should in both cases be submitted to the minister; and in one case he says no, and in the other yes. He is not bound to agree with the commissioner in either case.


Norman McLeod Rogers: I would point out once
more that the inquiry can be initiated in one of two ways:	Either by the minister, in
which case the responsibility is clear, or by six persons who make a solemn statutory declaration indicating that to the best of their belief a combine exists. Dealing with that method of initiating the inquiry, which is the one to which our attention must be confined, I would ask my right hon. friend this question:	Is it not desirable that an inquiry
instituted in that way should proceed to its natural conclusion in a report after full investigation, unless the commissioner himself finds that the application is frivolous or vexatious? Section 16 provides wholly for that eventuality; but apart from that it seems to me that there is much to be said for the commissioner proceeding with his inquiry. After all, to word it otherwise, in the manner suggested by the hon. member for St. Law-rence-St. George, would be to make the minister, as it were, a judge for the time being, to decide whether or not upon the evidence the inquiry ought to proceed further, and I doubt very much whether from the beginning that has been the purpose of the combines legislation. I do not think the minister ought to be put in that position. I am inclined to think that in a short while it might very well raise a reasonable doubt whether the administration of the act was not political, and that is not to be desired. That is why it is a salutary provision that the act itself may be invoked by six British subjects in Canada who make a solemn statutory declaration that to the best of their knowledge and belief a combine exists; and once that is done the inquiry ought to be carried through.


Charles Hazlitt Cahan: Involving any expenditure
of public money without restriction?


Norman McLeod Rogers: Whenever, for the carrying on of a full investigation, money is required to engage such persons as accountants
fMr. Bennett.]
or counsel it must be provided by order in council within an appropriation of this parliament for the purpose of the combines act.
Amendment to the amendment (Mr. Cahan) negatived, on division.
Amendment (Mr. Power) agreed to, on division.
Section 17 as amended agreed to.
On section 19-Investigation after requiring written returns.


Norman McLeod Rogers: This section stood when
the bill was before the committee at an earlier stage. We do not propose any further amendment of this clause.


[Stage Direction]
Section agreed to, on division.
Richard Bedford Bennett: I understand the minister says he is going to leave this arbitrary power in the hands of the commissioner, a similar power not being exercisable in this country in any other matter. He says:	I
am who I am. He has no document, although a constable is required to be in possession of a search warrant. A constable acts illegally if he has not the document with him. The government will not consider any amendment of that kind; is that what I understand the minister to say?


Norman McLeod Rogers: I believe this clause was considered with clause 20 at an earlier stage.


Richard Bedford Bennett: Yes.


Norman McLeod Rogers: And we have an amendment to offer to clause 20 which might now be considered.
On section 20-Investigation into business of alleged parties to combine.


Charles Gavan Power: I move:
That clause 20 be amended by deleting, in line 8, the following words, "and he or his duly authorized representative may", and substituting therefor the following:
"and whenever information or complaint has been given or made under oath to the commissioner, alleging that any person is a party or privy to or has assisted in the formation or operation of a combine, the commissioner may enter and examine, and may issue an order in writing authorizing a representative on his behalf to"


Richard Bedford Bennett: That certainly is a great improvement on the section as originally submitted, but it still leaves it open to the criticism which I made the other day and which I think is unanswerable, that the commissioner himself may enter. When an oath is made before him he becomes the investigating commissioner and the executing officer

Combines Investigation Act
at the same time. I think it is highly undesirable for him to do other than what the criminal law would provide for in such cases, namely, authorize somebody to execute his warrant. You have now provided that there shall be an oath; that is one step towards meeting the general condition that prevails in connection with search warrants. I think the minister will find it in the interest of the commissioner himself that he should not execute his own-I will not say warrant because it is not a warrant-but he should not be his own investigator with respect to the books. But when the oath is made he should be authorized to issue a warrant to someone to execute it for him. I suggest again that it is desirable that it be a constable. I only say that because of what I read from Crankshaw the other day. It is highly desirable that when one enters the premises of another the authority for so doing should be exhibited; and if possible it should be a police officer or constable who makes the entry. As pointed out in what I read the other day, that is the general view that has been held by all authorities.
This amendment goes a long way to meet the situation. You have (a) the oath and (b) the warrant-it is not called a warrant, an authorization-but you have the provision that the commissioner may himself do this. I submit that as a judicial officer he should not be the one executing his own warrant. That is what it gets down to, for if he is called upon to show his authority he has nothing. A magistrate who issues a warrant would not think of going down himself to the premises for the purpose of making a search. As I read in Crankshaw the other day, it is usually the owner who accompanies the constable for the purpose of pointing out where things are.
Is it not desirable, having regard to the not unfair attitude taken by the government, to make it impossible for the commissioner to be placed in the false position of going into premises to take away books and accounts because he has the oath of someone; but rather make the oath a condition precedent to the commissioner's authorizing a constable to give effect to what he desires to have done? It seems to me that is the logical thing, and in accordance with the general principles that govern the execution of search warrants in this country; and it does not detract from the value of the section. Instead, it eliminates the possibility of the commissioner being his own constable without having on him any lauthority tlhat indicates that he is the constable exercising his own authority.


Norman McLeod Rogers: I take it that what has now been said by the leader of the opposition (Mr. Bennett) is said with full recognition that the clause as amended does not require that the commissioner shall, so to speak, be his own constable. There is explicit provision made whereby the commissioner may issue an order in writing authorizing a representative on his behalf.


Charles Hazlitt Cahan: But that is not the only way.


Richard Bedford Bennett: I want to eliminate the possibility of trouble arising through his being his own constable by striking out the words " the commissioner may enter the premises," and say " the commissioner may issue an order in writing."


Norman McLeod Rogers: Perhaps it would meet the situation if we omit the words " may enter and examine."


Richard Bedford Bennett: Certainly, that meets the position.


Norman McLeod Rogers: Then we will make that change.


Richard Bedford Bennett: That is fair.


Charles Gavan Power: I ask permission to withdraw the former amendment to clause 20 and substitute therefor the following:
That clause 20 be amended by deleting, in line 8, the following words, "and he or his duly authorized representative may", and substituting therefor the following:
"and whenever information or complaint has been given or made under oath to the commissioner, alleging that any person is a party or privy to or has assisted in the formation or operation of a combine, the commissioner may issue an order in writing authorizing a representative on his behalf to"


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
On section 26-Proceedings in private or in public.
Charles Gavan Power: I move:
That clause 26 as it appears in the bill be deleted and the following be substituted therefor:
"26. The proceedings before the commissioner or any special commissioner shall be conducted in public, but the commissioner may order that any portion of the proceedings shall be conducted in private: provided that proceedings in a preliminary inquiry shall be conducted in private."
This is to meet the views of the hon. member for St. Lawrence-St. George (Mr. Cahan) and other hon. members. It simply reverses the wording as it was previously.
Combines Investigation Act


Frederick George Sanderson: I point out that there is an amendment which was moved by the hon. member for St. Lawrence-St. George to clause 26 a few minutes before one o'clock.


Charles Hazlitt Cahan: I withdraw it.


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
Charles Hazlitt Cahan: Now that we have amended clause 26 I direct the attention of the minister to section 30. In order to be consistent should there not be an amendment to section 30, by inserting after the word " report " in the second line the same words " excepting the report of a preliminary inquiry "?


Norman McLeod Rogers: I am advised that there is not necessarily a report after a preliminary inquiry because of the section in the Inquiries 4ct which requires that before a report is made, the firm investigated shall have an opportunity to appear with counsel. Section 3 of the Inquiries Act reads:
No report shall be made against any person mtil reasonable notice shall have been given *o him of the charge of misconduct alleged against him and he shall have been allowed full opportunity to be heard in person or by counsel.


Charles Hazlitt Cahan: That is not what I have in mind. What I have in mind is this: Just now we were dealing with the report which is made to the minister after a preliminary inquiry, and all I am asking is that that report should not be published. We have eliminated the publication of the preliminary proceedings if they are not carried into a complete investigation. Under section 16, subsection 1, the commissioner is to make a report in writing at the close of the preliminary inquiry, and all I am suggesting is that such report should not be published.


Norman McLeod Rogers: If my hon. friend will permit me, might there not be some public advantage in having a report of that kind published? Here it is left to the discretion of the minister, and let me give a situation that might arise. Let us assume that an inquiry has been instituted, and that the complaint has been found frivolous or vexatious in character, but that at the same time there has been a widespread feeling that a combine existed which was detrimental to the public interest. Might there not conceivably be some public advantage in the minister being able to publish such a report at his discretion, in order to allay public feeling with respect to this particular charge that a combine did exist?


Charles Hazlitt Cahan: I quite agree. I had in view rather that a second report was to be made to the minister; but that is not so, because the fMr. Power. 1
minister has refused to receive any report requesting his consent that the proceedings should go on. That was the report I had in mind, so I withdraw my suggestion.


Richard Bedford Bennett: Has section 31 been finally
disposed of?


Norman McLeod Rogers: Section 31 was disposed of by the committee.


Richard Bedford Bennett: Were there any amendments to it?


Norman McLeod Rogers: None.
On section 31-Reduction or removal of customs duties.


Richard Bedford Bennett: If the minister will look at the section he will see that whoever drafted it added the very words that should not be added and took out the words that should have remained. The section says "-there exists any combination, merger, trust or monopoly which promotes or is likely to promote-", Surely it is hardly necessary to point out that the definition of the word " combine " covers all that and more, and that the word " combine " is the proper word to leave in, with the new meaning that has been given 11 it. It is almost-I was going to use a strong word-but I will say the section should certainly not be left in that form. All you need say is "there exists any combine" because "combine" is now defined by section 2, and it covers everything mentioned here and more.


Norman McLeod Rogers: It is the combine that operates to the public detriment which creates the offence. Here you have rather a description of the several types of business organizations-


Richard Bedford Bennett: But having defined "combine" in section 2, you cannot have that now, without being absurd. You see, in the very beginning of section 2 you have: "(1) 'combine' means," and so on. Having defined the term, the word you use in subsequent sections is, of course, the word that covers them all. To endeavour to talk about mergers, trusts and monopolies when you have defined "combine" as meaning those things and everything else, is absurd. You use "combine" as a definitive word in every other section after the interpretation section has been passed, and it covers everything. You see, the essential word in section 2 is "combine." Here, instead of using the generic term as defined by the statute, which of course governs, you have picked out a few of the words thus covered.

Combines Investigation Act


Norman McLeod Rogers: That had relation to the original drafting of the clause.


Charles Gavan Power: I would move that in line 11 the words "combination, merger, trust or monopoly which promotes or is likely to promote unduly the advantage of manufacturers or dealers at the expense of the public" be struck out and the word "combine" substituted after the word "any."


Richard Bedford Bennett: Quite so. I do not think it is arguable. I think you should strike out the word "any" and say "a," because "combine" is defined.


Charles Gavan Power: I agree.


Richard Bedford Bennett: In view of the new definition contained in section 2 I think you should go further. I think the words that should be stricken out are "any combination, merger, trust or monopoly which promotes or is likely to promote unduly the advantage of manufacturers or dealers at the expense of the public" and substitute therefor the words "a combine," which includes not only all the mergers, trusts and monopolies that you can think of, but also everything else that has operated or is likely to operate to the detriment of or against the interest of the public, whether consumers, producers or others. Those last few words are quoted from the new definition, which is much broader than the words inserted here.


Charles Gavan Power: I am asked to move that the following words in line 11 of section 31 be stricken out: "any combination, merger, trust or monopoly which promotes or is likely"; and that the words "a combine" be substituted therefor. That does not quite meet the views of my right hon. friend, I am afraid.


Richard Bedford Bennett: I am only going to suggest to the minister, who is a trained lawyer, that it makes it a bit absurd. In the interpretation section we have defined the word "combine" as covering everything spoken of in section 31 from the word "any" down to the word "public." Now we are going to leave some in and take some out. It certainly makes the whole thing ridiculous, because I believe I could say without giving offence to anyone that it is an elementary rule that when you define a word in the interpretation section at the beginning of a statute, whenever later you desire to cover the matters mentioned in the definition in the interpretation section you use the word thus interpreted. Here we have the word "combine" interpreted to mean much more than is here indicated, and you are going to
stop now at the words "likely to promote" which are already part of section 2, the interpretation section. That makes it ridiculous.


Frederick George Sanderson: Shall the amendment to section 31 carry?


Richard Bedford Bennett: I can only say that it goes part of the way, but it does not cover the point, knowing that the word " combine " must have the same meaning wherever it is used in the statute.


Norman McLeod Rogers: I am quite prepared to accept the suggestion that we shall use here the same wording which has been used in the original section. I take it that that will cover everything we had in contemplation.


Richard Bedford Bennett: It covers more, because it covers everything involved in the interpretation of the word "combine." I do mot think I could be said to be offensive if I were to say that to use different words subsequently in another section, when " combine " has already been defined, gives only a half meaning and is poor draftsmanship. I believe I can go that far without offending anyone.


Norman McLeod Rogers: I believe we had better accept the suggestion, and we will alter it again.


Charles Gavan Power: If we were to strike out all the words after the word " exists," namely, " any combination, merger, trust or monopoly which promotes or is likely to promote unduly the advantage of manufacturers or dealers at the expense of the public,"-


Richard Bedford Bennett: Yes.


Charles Gavan Power: I can go that far.


Richard Bedford Bennett: Yes, because " combine " covers it. Then you would suggest the words " a combine."


Charles Gavan Power: Yes, and I move accordingly.


James Samuel Taylor: How would that affect line 15 in the same section?


Richard Bedford Bennett: It does not touch that at all.


Norman McLeod Rogers: I do not think there is any necessary protection there. The combine is by definition a disadvantage to the public.


Charles Gavan Power: It would then read that if there " exists a combine."


Richard Bedford Bennett: Quite, as defined by the act.


Charles Gavan Power: "And if it appears to the governor in council that such disadvantage to the public is facilitated by the duties of customs imposed on the article " and so on.
Supply-Justice


Richard Bedford Bennett: Yes.


Charles Gavan Power: And then we go on to the words " and if."


Richard Bedford Bennett: Yes.


[Stage Direction]
Amendment agreed to.
Section as amended agreed to.
Bill reported.
[Stage Direction]
The house in committee of supply, Mr. Sanderson in the chair.

[Stage Direction]
Justice, salaries, $230,047.25; contingencies, $45,000.
Richard Bedford Bennett: What changes in personnel have been made?


Ernest Lapointe: There is a reduction, as a matter of fact, from S173,450 to 5170,410.


Richard Bedford Bennett: And the number on the staff is reduced.


Ernest Lapointe: Through combination between the Solicitor General's Department and the Department of Justice.


[Stage Direction]
Item agreed to.
Exchequer court of Canada.-
Contingencies - judges' and court officials' travelling expenses; remuneration to sheriffs, et cetera, printing, stationery, et cetera, and $150 for judges' books, $6,200.
Printing, binding and distribution court reports, $2,000.
Richard Bedford Bennett: What is the per diem
allowance for judges travelling on circuit or out of town?


Ernest Lapointe: It is $10 in the cities and $6 in other municipalities. This allowance certainly is not adequate under present conditions. For instance, the judges of the appeal court in the province of Quebec sit only in Montreal and Quebec, and with an allowance of only $10 per diem they have to be watchful of their expenses.


John Ritchie MacNicol: We should give the same rates to those gentlemen who travel around with commissions.


Ernest Lapointe: That can be taken up when the other ministers are dealing with their estimates.


[Stage Direction]
Item agreed to.

Yukon Territory

Miscellaneous expenditure, including salaries and allowances of court officers, et cetera, $8,000.
Richard Bedford Bennett: Could the minister give us an explanation of the increase in this item?


Ernest Lapointe: There was a murder trial held at a distant point in the Yukon which required an additional amount.


[Stage Direction]
Item agreed to.

[Stage Direction]
Salaries and contingent expenses of the several ports of the dominion, including pay for overtime of officers, notwithstanding anything in the Civil Service Act; and temporary buildings and rentals, $6,583,000.
Salaries and travelling expenses of officers of the inspection, investigation, audit, and the preventive service undervaluation services, $1,008,000.
Miscellaneous, including printing and stationery; subscriptions to commercial papers; flags; dating stamps; locks; instruments; express charges on samples; premiums on guarantee bonds; uniforms for customs-excise officers; laboratory equipment and supplies, etc., $600,000.
Amount to be paid to the Department of Justice to be disbursed by and accounted for to it for customs-excise secret investigation service, $15,000.
To provide for the administration of the Income War Tax Act, 1917, and amendments thereof, and authority for this purpose to create positions and make appointments notwithstanding anything contained in the Civil Service Act and the said positions and staff so appointed are hereby wholly excluded from the operation of the said act; and salary of $9,000 (less statutory deduction) for the commissioner of income tax, $2,270,000.
Amount to be paid to the Department of Justice to be disbursed by and accounted for to it for the income tax secret investigation service, $10,000.
Ernest Lapointe: This item really belongs to the Department of National Revenue. One of the items covers an amount to be paid to the Department of Justice, to be disbursed by and accounted for to it by the income tax secret investigation service.


Richard Bedford Bennett: It might as well be
passed now.


[Stage Direction]
Item agreed to.
DEPARTMENT OF JUSTICE Royal Canadian Mounted Police-
Pay of force and allowances, arms and ammunition, barrack buildings, repairs and renewals and furnishings, clothing and equipment, communication services, court and legal expenses, criminal investigation branch, enforcement of federal statutes, fuel and light, transport horse and dogs, transport mechanical, dental, medical and hospital, miscellaneous (including grants to Royal Canadian Mounted Police messes and publication of Royal Canadian Mounted Police Quarterly for instructional

Supply-Justice-Mounted Police
purposes), special services Opium and Narcotic Drug Act, printing and stationery, transport railway, rations, rents, travelling expenses, transport water, $6,005,000.
To compensate members of the Royal Canadian Mounted Police for injuries received in the performance of duty, $12,000.
Richard Bedford Bennett: Perhaps the minister
would explain what he meant when he said that it was necessary to discontinue the services of 50 men because of a shortage of funds.


Ernest Lapointe: Last year the estimates were reduced by $300,000 and that reduction was apportioned among the various services.


Richard Bedford Bennett: That was at the beginning of the year?


Ernest Lapointe: Yes.


Richard Bedford Bennett: I thought the minister was referring to the end of the year when his money was running short. I wondered where the governor general's warrants were which were good enough to get money to run a royal commission but which apparently were not good enough to get money with which to protect the country.


Ernest Lapointe: The police are very scrupulous in these matters.


Richard Bedford Bennett: That is the reason I mention it. A governor general's warrant was in order to provide $15,000 for investigating counsel, but it was not good enough to provide the money with which to maintain 50 additional policemen to protect the lives and property of the citizens of the country. We were so scrupulous about the one and, I suppose, so unscrupulous about the other.


Major James William Coldwell: I had intended to say something last session when these estimates were before the committee but was unavoidably absent from the house. I was interested the other day in hearing the Minister of Justice (Mr. Lapointe) say that the mounted police is a splendid force. I think there are a large number of fine men in that force, which has a remarkable tradition dating from the old days of the Royal Northwest Mounted Police force; but I am nut sure whether the minister and hon. members are aware that at times there are to be found in this force men who are no credit either to the police or to the country. I intend to be quite explicit.
I have in mind the case of Sergeant Leopold, which is fairly well known in Canada. I understand this officer joined the force in 1918 as a special investigating officer. He came to Canada from Austria shortly before the
outbreak of the great war. According to his own evidence given at Regina some months ago, he was not a British subject when he joined the force, but he was doing investigating work which sometimes, no doubt, required his making reports on people who were British subjects. I have some personal knowledge of the work of this particular officer. When from 1921 I was active in endeavouring to form in Regina a constitutional labour party organized within our democratic institutions, this particular individual, who was known to me at that time under an assumed name, the name of Esselwein, was actively engaged in assisting in the organization of what was then known as the Workers' party, which was frankly a communist organization. He came to Regina in 1921 and joined the painters' union there. I am not going into all the details; suffice it to say that he was subsequently a member of the trades and labour council of that city, president of the trades and labour council, a delegate to the trades union congress of Canada, and subsequently I regarded him as the most active communist in the city and had many an argument with him on those grounds.
The point I am making is this, that here we had a man who was associated with and ostensibly participating in the active formation of a party which at that time was regarded by many as being more or less illegal, yet during the whole of that time he was a police officer. All through those years from 1921 at least to 1927, while he was in Regina, he was in reality a police officer, and I know at least one man who has told me on more than one occasion that Esselwein, as he called him, urged him to join the communist party. Moreover, I know of my own knowledge that Mr. Esselwein asserted from time to time that nothing but a mass movement-which could be interpreted only in one way-could bring the working people of this country into their own.
That kind of police officer is not a credit either to the government of Canada or to the department. I hesitate to believe that any of the successive ministers were aware of the activities of this particular type of investigator. Let me add that when he first came to the city, where I knew him in 1921, he was not even a British subject; indeed, coming as he did from Austria, he was quite recently an enemy alien.
The reason I raise this matter at the present time is in order that the minister may look into the mounted police force and eliminate from it police spies of this type. A great deal of distress and resentment is caused to good citizens when they discover

Supply-Justice-Mounted Police
that operators of this sort exist. I know that this individual was not the only one engaged in this particular kind of work. Another man, who to-day is a friend of mine, was employed in similar activities for six months some years ago. Subsequently he left the police force in disgust, and years later told me the whole story. Under our British institutions most people believed we were free from this kind of police spy, and I am bringing the case to the attention of the house because some few weeks ago I happened to see Sergeant Leopold in this city wearing the stripes of a sergeant of the mounted police, and I say that he should be able to do so is a reflection not only upon the entire police force but upon the Dominion of Canada.
The facts that I have mentioned thus briefly-I do not want to elaborate them, although I could-can be found substantiated in the sworn evidence of the officer himself taken at Regina a year ago last October during the riot investigation, and I have had some personal knowledge of his case throughout the years. He was not only active in the matters to which I refer but was active politically in Regina in other directions. Consequently I suggest to the house and to the Minister of Justice that a thorough investigation be made by the department into the police force and its operations. To my mind an officer of that type is of necessity unreliable, because his own sworn statements prove that from time to time he had not acted in a manner which I would call straightforward and honest; and when people are reported upon by persons of such a type there is a danger that innocent people may suffer. I urge the minister to look into the personnel of the force and see whether officers of this type are still operating in the manner indicated, and if they are, then see that in conformity with British justice and British traditions the police force be purged of such individuals and such methods.


Ernest Lapointe: Mr. Chairman, I am not acquainted with all the details concerning the gentleman to whom the hon. member has referred; he is at present a member-an ordinary member-of the force in Ottawa, and a very good man indeed.
Touching his activities in the secret service force, my hon. friend says that these proceedings are not in accordance with British justice and traditions. According to my information, there is a department of secret service in every police force in the world, even at Scotland Yard, where surely British traditions and British justice are honoured. This man,
(Mr. Cold well.]
I understand, was first engaged to work for the mounted police because of his perfect knowledge of many languages. Of course, he could not be a member of the force without taking the oath of allegiance under the law, and he certainly was a subject of His Majesty during the time he was working in the police service. My hon. friend says that he incited somebody to join the communists. I would agree with the hon. member that if this information is correct the man went too far, and I shall take the trouble to inquire into it. Apart from that, I am not in agreement with the protest of the hon. member against having a branch of the force occupied all over Canada in work of a secret nature; I think secrecy is most necessary and useful in dealing with confidential matters which I am not always at liberty to divulge in answer to questions which are sometimes asked. But everything of the kind that is done is done for the purpose, not of hurting or harming anybody, but of maintaining conditions in Canada as orderly and as peaceful as possible. I may assure my hon. friend that the work that is being done by the Royal Canadian Mounted Police is a most valuable one. However, I will secure all the information about the man he has mentioned.


Major James William Coldwell: This particular man acted for several years as the secretary of the communist party and received applications for membership in that party. The minister will agree that that kind of activity is hardly within the meaning of the police term which he used a few moments ago, the secret service. I realize that in every country, under every form of government, governments do use secret service men; but I submit that this is going beyond anything that I, at any rate, regard as coming within the accepted meaning of the .term. The facts that I have given this afternoon are largely from first-hand knowledge, for throughout these years I have been active in the labour and progressive movements of western Canada and have never in any way been affiliated with the communist party. I know that this particular man was quite active in preventing the organization some years ago of what I call the constitutional democratic labour movement. That is the point that I would impress upon the minister. It is going far beyond what we may regard as the purpose of a secret investigation to utilize men of this particular type and in such a manner.


Jean-François Pouliot: Would the hon. gentleman be kind enough to define "constitutional democratic movement"?

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Mr. COLD WELL:: A constitutional democratic movement is one that aims at utilizing the democratic institutions of the country in order to bring about necessary reforms or changes in our social structure in a constitutional manner. The party is organized to use democratic institutions rather than what is sometimes called revolutionary mass movement.


Jean-François Pouliot: I thank my hon. friend, but his definition is cloudy.


Mr. WOODSWORTH:: I support the protest which my colleague has made. I do not know that I could now recognize this particular person, Sergeant Leopold, but some years ago I did meet him on a number of occasions and I believe was investigated by him. I would say with regard to this sort of thing that the labour unions across the country deeply resent the intrusion of such people into their business meetings. I think we have a right to protest against it. I wonder what the Canadian Manufacturers' Association or the Bankers' Association would think if their board meetings were invaded by the secret police.


Ernest Lapointe: These
secret agents have special definite, formal instructions neither to go near nor to visit the trade union or labour meetings.


James Shaver Woodsworth: The instructions
have been changed then, because as my colleague says this man did go into the trade union movement, which had nothing to do with communism. He went as an industrial worker, secured a position, and became president of the local trade union in the city of Regina. I visited that trade union some years ago and addressed the members at their invitation, and this particular man wanted to take me to his home to talk things over, and so on. I happened to be too busy and I did not go.
He has acted throughout the years as agent provocateur. We cannot justify that sort of thing from the standpoint of the trade unions. The trade union, as is well recognized, is a business institution so far as labour is concerned, and we have no right either as a government or as a parliament to allow these institutions to be invaded by anybody of this type. If the minister is correct in the statement that under general instructions these secret service men are forbidden to go into the trade unions, that is a regulation that has come in force only in recent years, because I know that not only this man but others in the pay of the government have insinuated themselves into these organizations.
The Cooperative Commonwealth Federation is known in this house and has been for years. It incorporated what was known as the labour party, or rather the labour party is one of the affiliations. I have been known in this house for fifteen or sixteen years, and I believe the house will take my statements at their face value when it comes to matters of fact; and I assure the minister that in the course of an endeavour to organize the labour party I have been followed by police agents of the government. They have sat in my political meetings and asked leading questions, trying to trap me into some unguarded statement. More than that, one of our rivals in the political field has been the communist party, and that party has again and again gained entrance into our group. Somebody comes along and wants to join the labour party. He is willing to sign our constitution, to take pledges of loyalty, and to accept our manifesto. He comes in, and after a few weeks or months we find that he is an agent of the communist party, paid by that party, and trying to disrupt our organization. That is bad enough in all conscience; but when we . know that such a man is paid by the government to do that kind of work the situation becomes serious indeed.
What would the Minister of Justice say, what would the leader of the opposition say, if the secret police went into the Conservative party, found their way into the party's conventions, took office in the party and tried to disrupt the Conservative constituency organization in order that a Liberal candidate might be elected? Yet that is the kind of thing that has been done. As one who has been connected with trade unions and is still closely associated with their membership, and as one who is chairman of a recognized political party in this country, I protest against this sort of thing. I think we have a right to ask that the Minister of Justice look more carefully into the whole matter and give definite instructions that there shall be no political intrigue on the part of agents sent out by his department.
At six o'clock the committee took recess.
After Recess
The committee resumed at eight o'clock.


James Shaver Woodsworth: I was hoping that we might have from the Minister of Justice (Mr. Lapointe) a statement that the secret police would not be used to spy into the activities of trade unions, or intrigue in political matters.

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Ernest Lapointe: As far as trade unions are concerned I can assure my hon. friend that there will be nothing of that kind. The mounted police will be used only for the purpose of checking any subversive activities, and the trade unions are not in that class.


[Stage Direction]
Item agreed to.
Mounted police, Prince Albert volunteers and oolice scouts, on account of the rebellion of 1885, $587.55.
Ernest Lapointe: This is the usual grant to the Prince Albert volunteers and police scouts on account of the rebellion of 1885.


Richard Bedford Bennett: And it is getting less as the number is reduced.


[Stage Direction]
Item agreed to.
Families of members of the mounted police force who lost their lives while on duty:
Mrs. Mary Emma Bossange, $156.25.
Mrs. Margaret Johnson Brooke, $821.25.
Mrs. Margaret Cox, $470.63.
Mrs. Elizabeth Fitzgerald. $525.
Mrs. Georgina Harrison. $676.50.
Mrs. Letitia Kennedy, $423.50.
Mrs. Nora Jean Massan, $300.
Mrs. MaTy Miller, $667.38.
Mrs. Margaret Nicholson, $596.83.
Mrs. Catharine Mildred Ralls, $788.23.
Mrs. Myrtle L. Richards, $799.50.
Mrs. Doris Freda Sampson, $816.
Mrs. Amy Lillian Searle, $406.98.
Mrs. Madeleine Mary Shoebothom, $810.
Mrs. Eunice Wainwright, $602.50.
Ernest Lapointe: The usual pensions for widows of members of the police force who lost their lives while on duty.


[Stage Direction]
Item agreed to.
Expenses of litigated matters-Department of Justice, $25,000.

Charles Hazlitt Cahan: At a meeting of the Canadian Bar Association held in August last, having in mind the references which had been made to the Supreme Court of Canada with regard to certain statutes enacted by this parliament in 1935, which were then on appeal to the Judicial Committee of the Privy Council, I suggested that the final decision in those appeals might possibly create grave problems with regard to the administration of the external affairs of Canada, as well as its intraprovincial affairs. Upon reading the recent decisions of the judicial committee, that apprehension has been realized to a very considerable extent. I therefore wish to refer as briefly as I may to certain parts of those decisions which I regard as of grave import. 
Lord Chelmsford, in delivering a privy council decision and referring to a previous decision of the same tribunal, remarked that, upon turning to the report of the case, " Their lordships are not satisfied that the subject received that full and deliberate consideration which the great importance of it demanded." And I think that many hon. members of this house and many members of the bar association have the same feeling with regard to one or two of these recent decisions.
It is unfortunate that upon the hearing by the judicial committee of the recent appeals from the Supreme Court of Canada in the matter of the references relating to the legislative jurisdiction of the Parliament of Canada, the judicial committee did not consist of members who had had long experience in dealing with issues arising out of the interpretation of the British North America Act, 1867. In fact, not a single member of the board was appointed to the privy council prior to 1928, and not a single member, who in 1932 heard the appeal in re The Regulation and Control of Radio Communication in Canada, sat as a member of the committee which recently heard the appeals in respect of certain acts of parliament enacted during the session of 1935. Two of the members of the judicial committee who heard and decided the recent appeals had practically no experience whatever in Canadian constitutional matters, and two others, who heard the appeal in the aeronautics case, appear to have disregarded the significant ruling affirmed by the judicial committee in that case-" It is always advisable to get back to the words of the act itself and to remember the object with which it was passed." That committee added these memorable words:
But while the courts should be zealous in upholding the charter of the provinces as enacted in section 92, it must no less be borne in mind that the real object of the act was to give the central government those high functions and almost sovereign powers by which uniformity of legislation might be secured on all questions which were of common concern to all the provinces as members of a constituent whole.
As I wish to emphasize the advisability of getting back to the exact words of the British North America Act, let me quote the exact text of the statute:
92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say:
13. Property and civil rights in the province.
16. Generally all matters of a merely local or private nature in the province.
You will note that the exact words of the statute are that each provincial legislature may exclusively " make laws in relation to

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matters coming within the classes of subjects " thereinafter enumerated, namely, " property and civil rights in the province," and " generally all matters of a merely local or private nature in the province."
We have had a very clear and definite interpretation of the words " in relation to." The chief justice, then Mr. Justice Duff, who for nearly a third of a century, as a judge of the Supreme Court of Canada, has had judicial experience in dealing with these constitutional questions, in the Gold Seal case drew a clear distinction between legislation affecting civil rights, and legislation " in relation to " civil rights. I quote:
The fallacy lies in failing to distinguish between legislation affecting civil rights and legislation "in relation to" civil rights. Most legislation of a repressive character does incidentally or consequentially affect civil rights. But if in its true character it is not legislation "in relation to" the subject matter of property and civil rights within the provinces within the meaning of section 92 of the British North America Act, then there is no objection, although it be passed in exercise of the residuary authority conferred by the introductory clause.
The reference was to the residuary authority, expressed in the introductory clause of section 91 of the British North America Act, which provides that the parliament of Canada may:
-make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces.
And, as was said by Sir Montague Smith in delivering the judgment of the judicial committee in Russel v. The Queen, 7 A.C. 838:
Few, if any, laws could be made by parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights; and it could not have been intended when assuring to the provinces exclusive legislative authority on the subjects of property and civil rights, to exclude the parliament from the exercise of this general power whenever any such incidental interference would result from it. The true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class of subject to which it really belongs.
The real issue does not properly arise as to whether an act of this parliament "affects" property and civil rights in the province, but whether the subject matter of the act pf parliament, in "pith and ini substance", relates to "property and civil rights in the provinces." The framers of the constitution had a clear conception of what property in the province embraced and what civil rights in the province embraced, and it was not their intention by using those words in section 92 to exclude the powers under the residuary clause in
section 91, upon which they laid great stress as emphasizing one of the radical differences between the constitution of Canada and the constitution of the United States. Nevertheless. these recent decisions of the judicial committee persistently misquote the relevant words of clause No. 13 of section 91.
In dealing with the Employment and Social Insurance Act, the judicial committee say:
It may still be legislation affecting the classes of subjects enumerated in section 92, and, if so, would be ultra vires.
Again they say:
This act is an insurance act affecting the civil rights of employers and employed in each province, and as such is invalid.
In dealing with the acts of parliament to carry into effect the terms of certain Geneva conventions, the judicial committee say:
It was admitted at the bar that each statute affects property and civil rights within each province ...	,
The dominion could not initiate legislation, however desirable, which affected civil rights, in the provinces . . .
If the new functions affect the classes of subjects enumerated in section 92, legislation to support the new functions is in the competence of the provincial legislatures only . . .
If the statements I have quoted had been made by counsel, however eminent, in the argument of a similar case in court and I were counsel on the other side, I should feel justified in stating that those quotations represented persistent perversions of the text of the British North America Act, and in the connection in which they were used I think the members of the judicial committee failed on this occasion to refresh their memories as to the exact words of section 91, or it may be that they decided to nullify the obvious import of that section of the British North America Act by sanctioning a variant text. Certainly they dealt with the actual text in a casual and conversational way that can not fail to weaken, if not nullify, public confidence in the reliability of privy council decisions.
In the unemployment insurance case the judicial committee express the opinion that, though the parliament of Canada may raise money for the consolidated revenue fund by any mode or system of taxation, there are grave doubts as to whether parliament may appropriate or the dominion government may expend such moneys upon objects which are not within the legislative jurisdiction of the dominion. I quote:
But assuming that the dominion has collected by means of taxation a fund, it by no means follows that any legislation which disposes of it is necessarily within dominion competence. It may still be legislation affecting the classes of subjects enumerated in section 92, and, if so, would be ultra vires. In other
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words, dominion legislation, even though it deals with dominion property, may yet be so framed as to invade civil rights within the province; or encroach upon the classes of subjects which are reserved by provincial competence.
It is not necessary that it should be a colourable device, or a pretence. If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the province or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid.
This opinion, if it is Valid, raises grave doubt as to the validity of appropriations by this dominion parliament of current revenues for such objects as old age pensions, unemployment relief, or for giving assistance to provincial undertakings of any description. If these appropriations are illegal and beyond the competence of the dominion, grave consequences may follow, and the government would be well advised to obtain a direct decision upon this issue at a very early date.
But the established foundations of dominion autonomy are insidiously undermined by the decision of the judicial committee to the effect that the dominion parliament has not complete legislative jurisdiction to carry into effect treaties which his majesty may enter into with foreign states, on the advice of his majesty's privy council in Canada.
Section 132 of the British North America Act provides:
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.
What are the indicia of treaties between the "empire" and foreign countries? The governments of the empire, represented at the imperial conference of 1923 and 1926, clearly indicate by their joint resolution that:
The word "treaty" is used in the sense of an agreement which, in accordance with the normal practice of diplomacy, would take the form of a treaty between heads of states, signed by plenipotentiaries provided with full powers issued by the heads of the states, and authorizing the holders to conclude a treaty.
The form of an empire treaty, as for instance the form of the treaty relating to boundary waters between Canada and the United States signed at Washington on January 11, 1909, which was confirmed and sanctioned by the parliament of Canada by chapter 28 of the statutes of Canada, 1911, was as follows:
His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas, Emperor of India, and the United States of America, being equally desirous . . .
:.Mr. Cahaa.]
Certainly treaties in that form have always been deemed to be "Empire" treaties within the proper meaning and application of section 132 of the British North America Act. It was never asserted or contended, even in more remote times, that an "Empire" treaty applied equally to all parts of the empire. The form has recently been changed to conform to a change in the royal title, and now "Empire" treaties are negotiated in the name of "His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India."
I confidently submit that whenever a treaty with the official head of any foreign state is negotiated and ratified in the name of His Majesty, the one and only sovereign of the British Empire, it is an "Empire" treaty within the true meaning and application of section 132 of the British North America Act. In this empire there is only one king and emperor, although he may be advised by more than one privy council, yet it is in his name that all treaties are negotiated and ratified.
The executive function of negotiating treaties, which was formerly vested in the government of the United Kingdom, is no longer exclusively so vested. The ratification of treaties was formerly effected by His Majesty exclusively at the instance and upon the advice of the government of the United Kingdom, but it has been more recently agreed, by all the government of all parts of the empire, at the imperial conferences of 1923 and 1926 that, thereafter, the following should be the constitutional procedure:
(a)	The ratification of treaties imposing obligations on one part of the empire is effected at the instance of the government of that part;
(b)	the ratification of treaties imposing obligations on more than one part of the empire is effected after consultation between the governments of those parts of the empire concerned.
The imperial conference resolutions of 1926 made a distinction between treaties made between heads of states and agreements made between governments, and it was agreements of the latter class which were under consideration, and to which the recent opinion of the judicial committee should be deemed to have restricted application. But the language so casually employed by the judicial committee has so wide an application that the government and parliament of Canada should enter a firm protest against its continued and captious use, for such language would undoubtedly nullify the constitutional and conventional usage, which was agreed upon at the conference of 1926 by the governments of all parts of the empire.
The judicial committee emphasizes its opinion that section 132 of the British North

America Act is restricted in its application to the obligations of Canada or of any province thereof, which are alleged to be imposed by treaty upon Canada by a so-called "Imperial Executive" responsible to the so-called "Imperial Parliament," and excludes similar obligations which are created by the terms of a treaty that has been ratified by His Majesty on the advice of a dominion executive which is responsible to the dominion parliament. I quote from their lordships' opinion:
The obligations are not obligations of Canada as part of the British Empire, but of Canada, by virtue of her new status as an international person, and do not arise under a treaty between the British Empire and foreign countries. . . . It is unnecessary, therefore, to dwell upon the distinction between legislative powers given to the dominion to perform obligations imposed upon Canada as part of the empire by an imperial executive responsible to and controlled by the imperial parliament, and the legislative power of the dominion to perform obligations created by the dominion executive responsible to and controlled by the dominion parliament. While it is true, as was pointed out in the Radio case, that it was not contemplated in 1867 that the dominion would possess treatymaking powers it is impossible to strain the section so as to cover the uncontemplated event.
But though Canada has assumed the status of an international person, this dominion has not ceased to be a part of the British Empire, notwithstanding the flippant remark which I have quoted.
Their lordships flout the declaration of the imperial conference of 1926 that:
There is, however, one most important element in it (i.e., the constitution of the British Empire) which, from a strictly constitutional point of view, has now, as regards all vital matters, reached its full development-we refer to the group of self-governing communities composed of Great Britain and the dominions. Their position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown, and freely associated as members of the British Commonwealth of Nations.
The Statute of Westminster, 1931, recognizes the constitution of the British Empire as defined in that resolution, by declaring that the crown is the "symbol of the free association of members of the British commonwealth in relation to one another"; and again by referring to "the established constitutional position of all the members of the commonwealth in relation to one another." The established constitutional position is declared by the statute.
Yet, in the face of these constitutional pronouncements which were made unanimously by all the governments of the empire, the judicial committee has the temerity 31111-163
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not only to frame a new and novel constitution for the empire, which they assert is dominated by an "Imperial Executive" that is now, as hitherto, unknown to English law, but they also presume, by their decision, to invest that "Imperial Executive" with paramount authority to impose upon this dominion obligations of a more far-reaching extent and gravity than the parliament of the United Kingdom can now impose, except on the formal request and consent of Canada.
It is undoubtedly subversive of the constitutional convention and policy declared and accepted by the imperial conference of 1926 and the provisions of the Statute of Westminster, 1931, to hold that there exists any "Imperial Executive" responsible to the parliament of the United Kingdom, which may now, by treaty or otherwise, arbitrarily impose any obligations upon the Dominion of Canada.
Viscount Sankey, then Lord Chancellor of England, who sat as chairman of the committee of the. imperial conference which dealt with inter-imperial relations in 1930, and whose exceptional judicial and political experience qualify him to speak with authority, in delivering a judgment of the judicial committee in 1929, which is reported in 1930 appeal cases, page 136, said:-
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the act was to grant a constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.
Their Lordships do not conceive it to be the duty of this board-it is certainly not their desire-to cut down the provisions of the act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.
Again, upon the reference in re the convention on the regulation and control of radio, 1932 appeal cases, page 306, which was admittedly not a treaty between heads of states, Lord Dunedin, in delivering the judgment of the judicial committee, said:
Canada as a dominion is one of the signatories to the convention. In a question with foreign powers the persons who might infringe some of the stipulations in the convention would not be the Dominion of Canada as a whole but would be individual persons residing in Canada. These persons must so to speak be kept in order by legislation and the only legislation that can deal with them all at once is dominion legislation. This idea of Canada as a dominion being bound by a convention equivalent to a treaty with foreign powers was quite unthought of in 1867. It is the outcome of the gradual development of the position of Canada vis-a-vis to the mother country Great Britain, which is

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found in these later days expressed in the Statute of Westminster. It is not, therefore, to be expected that such a matter should be dealt with in explicit words in either section 91 or section 92. The only class of treaty which would bind Canada was thought of as a treaty by Great Britain, and that w'as provided for by section 132. Being, therefore, not mentioned explicitly in either section 91 or section 92, such legislation falls within the general words of the opening of section 91 which assign to the government of the dominion the power to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces.
The result is in their Lordships' opinion clear. It is Canada as a whole which is amenable to the other powers for the proper carrying out of the convention; and to prevent individuals in Canada infringing the stipulations of the convention it is necessary that the dominion should pass legislation which should apply to all the dwellers in Canada.
Again, on the appeal of the British Coal Corporation, v. The King, 1935 appeal cases, 518 at page 520, Viscount Samkey said:
It is doubtless true that the power of the imperial parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the imperial parliament could, as a matter of abstract law, repeal or disregard section 4 of the statute.
That is. the Statute of Westminster.
But that is theory and has no relation to realities. In truth Canada is in enjoyment of the full scope of self-government; its legislature-
That is, our parliament:
-was invested with all necessary powers for that purpose by the act, and what the Statute-
Of Westminster:
-did w'as to remove the two fetters which have already been discussed.
Those decisions, which confirmed the autonomous status of Canada as a member of the British commonwealth within the empire, have now been wantonly disregarded and, in fact, over-ridden and set aside. I again respectfully submit that in respect of treaties between His Majesty the King, as the sovereign head of the British Empire, and the heads of foreign states, there is no "Imperial Executive" which is known to any law which now extends to the several dominions of the British commonwealth of nations. There is the executive government of the United Kingdom and there is an executive government of each of the dominions of the British commonwealth of nations, but "Imperial Executive" is a term, coined for the nonce by the judicial committee, which is unknown to any law which now has force and effect in this dominion.

By section 9 of the British North America Act the executive government of Canada is declared to be vested in the King, and it is also provided in section 11 that the constitutional advisers of His Majesty in respect of Canada are the King's privy council for Canada. In respect of the negotiation and ratification of treaties which extend to and apply to Canada as part of the British Empire, His Majesty now acts through plenipotentiaries appointed by him on the sole advice of His Majesty's privy council for Canada.
The clear demarcation, made by the imperial conference of 1926, between the constitutional powers of the government of the United Kingdom and the constitutional powers of the government of a dominion, did not require the legislative confirmation of the parliament of the United Kingdom, and, therefore, without any legislative enactment of that parliament, His Majesty the King, in respect of treaties relating to one or more parts of the empire, now acts exclusively on the advice of the one or more privy councils for that part or those parts of the empire to which such treaties apply. But such treaties, I submit, remain as heretofore, empire treaties within the meaning of section 132.
Any effective decision of the judicial committee to the contrary can only tend to hasten and to ensure the dissolution of this second British Empire, a catastrophe more tragic and more far-reaching in its dire consequences than the dissolution of the first British Empire in the years preceding 1783, which was induced by a similar disregard for constitutional realities. The Lord Chancellor of England, who is entitled by virtue of his office to preside over the judicial committee, and whose functions are political as well as judicial, but who wTas unfortunately absent through illness at this momentous hearing, would be well advised to take notice accordingly.
At the Versailles conference at the close of the great war, the representatives of Canada and of the other dominions successfully insisted upon a change in the form of the treaty of peace so that the representatives of the dominions, who were plenipotentiaries appointed by His Majesty on the advice of the several dominion governments, should, as advisers of His Majesty, be signatories to that treaty with the representatives of the United Kingdom. A constitutional change was thereby affected, which has since been confirmed by all the governments concerned, and if the members of the judicial committee, as now constituted, are not aware of that fact, they should be so informed forthwith

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in no unequivocal terms. That constitutional change cannot reasonably nor lawfully be held to nullify the provisions of section 132, to the effect that the parliament and government of Canada have all powers necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, toward foreign countries, arising under treaties which are negotiated and ratified in the name of His Majesty, as head of the empire, in the form which prevailed for a century prior to the date of the treaty of Versailles.
The judicial committee of the privy council, I respectfully submit, have neither constitutional nor legal authority to decide that treaties, negotiated by plenipotentiaries appointed by His Majesty, applying to any part or parts of the empire, are not within the purview of section 132 of the British North America Act. Nevertheless, the judicial committee, in the most casual manner possible, have presumed to decide an all-important issue, which was not within the scope of the reference submitted, and they have attempted to nullify section 132 by deciding that "as a treaty deals with a particular class of subjects, so will the legislative power of performing it be ascertained."
The judicial committee obviously see no incongruity, in their interpretation of section 132 to the effect that in the case of a treaty negotiated and ratified in the name of His Majesty on the advice of the Privy Council of the United Kingdom, the parliament of Canada has legislative jurisdiction to carry its provisions into full effect, while, in the case of a treaty negotiated and ratified in the name of His Majesty on the advice of His Majesty's Privy Council for Canada, the dominion parliament, by this decision of the judicial committee, is now declared to be deprived of such legislative competence. When His Majesty is advised by the privy council of the United Kingdom, the parliament of Canada has legislative jurisdiction to perform all obligations arising under the treaty; but when His Majesty is advised by the privy council for Canada, the parliament of Canada is deprived of such legislative jurisdiction! That novel contention, if insisted upon, can only serve to disrupt the existing cohesive attachments of empire, which all the dominions desire to maintain.
It would appear that the judicial committee, forsaking the judicial arena, have sought to enunciate principles of high political policy, which are obviously inconsistent with the constitutional reforms adopted unanimously by the imperial conference of 1926, and to which, at the time, certain members of the House
of Lords were undoubtedly opposed, and they did not refrain from expressing their opposition when the matter was up for discussion. I quote from the opinion of the committee:
It would be remarkable that while the dominion could not initiate legislation however desirable which affected civil rights in the provinces, yet its government not responsible to the provinces-
The federal government of Canada never was responsible to the provinces; it is responsible to the people of the whole dominion: -nor controlled by provincial parliament need only agree with a foreign country to enact such legislation: and its parliament would be forthwith clothed with authority to affect provincial rights to the full extent of such agreement. Such a result would appear to undermine the constitutional safeguards of provincial constitutional autonomy.
I have already suggested that there can be no reasonable distinction between the force and effect of treaties made by His Majesty, as official head of the empire, in the one case, on the advice of the executive government of the United Kingdom, and, in the other case, on the advice of the executive government of Canada, which, in dealing with all external affairs, represents the whole people of Canada; and that there is no valid legal ground for restricting the application of section 132 to treaties made by His Majesty on the advice of his government of the United Kingdom. The judicial committee is certainly not vested with any legislative or judicial authority to override the constitutional conventions of 1926; and, therefore, I trust that the Prime Minister and his colleagues in this government will either repudiate or, at least, refrain from paying undue heed to this extra-judicial opinion. I again quote from the opinion of the judicial committee:
It is true, as pointed out in the judgment of the chief justice-
Referring to Chief Justice Duff.
-that as the executive is now clothed with the powers of making treaties, so the parliament of Canada, to which the executive is responsible, has imposed upon it responsibilities in connection with such treaties, for if it were to disapprove of them they would either not be made or the ministers would meet their constitutional fate. But this is true of all executive functions in their relation to parliament.
There is no existing constitutional ground for stretching the competence of the dominion parliament so that it becomes enlarged to keep pace with enlarged functions of the dominion executive. If the new functions affect the classes of subjects enumerated in section 92, legislation to support the new functions is in the competence of the provincial legislatures only. If they do not, the competence of the dominion legislature is declared by section 91 and existed
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ab origine. In other words, the dominion cannot merely by making promises to foreign countries clothe itself with legislative authority inconsistent with the constitution which gave it birth.
You will note that as the basis of this argument, the judicial committee again misquoted the words of section 92 of the British North America Act. But they overlook the fact that section 132 of the British North America Act, the act which provides for the apportionment and division of legislative powers between the provinces and the dominion, expressly vests in the parliament of Canada legislative authority to carry treaties into effect. It is the government of Canada, responsible to the whole people of Canada, which has the administration of the external affairs of Canada in relation to treaties made between the head of this empire and the heads of foreign states.
Therefore, in respect of treaties negotiated in the name of His Majesty as the official head of the empire, there is no desire on the part of this parliament to enlarge the legislative jurisdiction of parliament beyond the bounds set by section 132 of the British North America Act, which gave birth to this dominion. The so-called "executive" government of Canada, by virtue of constitutional provisions adopted by all the governments of the empire, now exercise certain functions, in respect of advising His Majesty in the negotiation and ratification of treaties, which were formerly exercised exclusively by the government of the United Kingdom; but the fact that His Majesty's privy council for Canada now act in the place and stead of His Majesty's privy council of the United Kingdom, and that to that extent His Majesty's advisers have changed, may not be deemed, without grave protest, to annul or circumscribe the legislative jurisdiction vested in the parliament of Canada by section 132 of the British North America Act, to enact all legislative measures which are necessary or proper to provide for the performance by Canada, as a part of the British empire, of all obligations of Canada, or of any province thereof, arising under treaties between His Majesty as head of the empire and the head of any foreign state.
Although the functions of the government of Canada have been enlarged by constitutional conventions, or, in other words, by constitutional customs and usages, which have been approved and accepted by all governments of all paints of the British Empire, nevertheless, the legal, legislative competence of the Canadian parliament remains now as for the past seventy years, that which is expressed in

section 132 of the British North America Act, and the judicial committee have no authority to override the constitutional convention nor to nullify this provision of the British North America Act.
I sincerely trust that effective measures will speedily be taken to frustrate all such futile efforts of this committee of His Majesty's privy council of the United Kingdom to revive and reassert reactionary policies over which the members of the judicial committee have neither legal nor constitutional control.
The members of the judicial committee should be made fully aware that in the opinion of this parliament His Majesty's privy council in Canada, by a solemn convention, in which the government of the United Kingdom has unconditionally concurred, is now vested with the constitutional right to advise its sovereign in the making of treaties and in other matters which especially concern Canada, and that any extrajudicial attempt to circumscribe that right, by a factitious interpretation of one section of the British North America Act, cannot serve to induce and maintain inter-imperial understanding and cooperation.
The judicial committee is constituted by statutes of the parliament of the United Kingdom. Its members are appointed by the government of the United Kingdom. Its nominal president is a member of that government. A number of its active members are also members of one legislative branch of the parliament of the United Kingdom. The report of the judicial committee cannot be enforced as a judgment until it has been adopted by an order of the privy council of the United Kingdom; and the government of the United Kingdom must assume full responsibility for that committee's obtrusions into the political arena.
Therefore, this vital issue should now be dealt with by the government of the United Kingdom. Does that government concur in this judgment of the judicial committee, now that its full import is clearly disclosed?
Canada is, undoubtedly, a part of the British Empire, and any treaty, made and ratified by His Majesty with the head of a foreign state, which extends to Canada, extends and applies to Canada as a part of the empire and not otherwise. But, except in breach of the most solemn engagements, to which the government of the United Kingdom and all other governments of the British Commonwealth are firmly committed, no treaty which extends to Canada can now be negotiated and ratified except on the advice of His Majesty's privy council of Canada.

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The clear implication of the decision of the judicial committee is that Canada can only remain a part of the empire so long as the parliament of Canada is prepared to accept and perform obligations imposed upon this dominion by an "Imperial Executive," responsible to an "Imperial Parliament," and, by those terms, the judicial committee clearly have in mind obligations imposed upon Canada by the executive of the United Kingdom which is responsible solely to the parliament of the United Kingdom.
When their lordships of the judicial committee assume that in case Canada, by virtue of her new status as an international person, acting through the privy council of Canada, advises His Majesty in respect of the ratification of a treaty, which extends to Canada, then, ipso facto, the obligations thereunder are not assumed by this dominion as a part of the empire, their lordships thereby force upon the attention of this parliament two vital questions: Shall Canada continue as a dominion forming a part of the empire under the limitations so prescribed by the judicial committee? Or, shall Canada assume an entirely autonomous and independent status?
May I respectfully, yet emphatically, express the opinion that Canada is not willing to accept obligations, either domestic or international, which are arbitrarily imposed or sought to be arbitrarily imposed upon this dominion by the government of the United Kingdom. For Canada, the colonial era has vanished forever. The ominous fact that this question of dominion subserviency is now again deliberately raised by the judicial committee of the privy council of the United Kingdom demands the careful consideration of this government and of this parliament.
If that issue, so raised, is not withdrawn or over-ridden there is only one answer possible. This dominion is not willing to accept any treaty or other obligations which are imposed upon its government and people by an "Imperial Executive," so-called, who are not responsible to this parliament of Canada, and this vital fact should again be brought to the attention of the conference of dominion delegates which is about to assemble at London, before this parliament takes final action in this matter.


Joseph Thorarinn Thorson: I welcome the opportunity which this debate affords of discussing a question which is of vital concern to the whole of Canada. I listened with much interest to the splendid address of the hon. member for St. Lawrence-St. George (Mr. Cahan). I do not agree with his statement that the recent decisions of the judicial committee of the privy council are extra-judicial, but I do agree with his conclusion that these decisions have denied the national status of Canada.
The privy council decisions have denied that the parliament of Canada has any control over such important subjects as unemployment insurance, hours of labour, wages, and industry generally. This parliament has no power, according to these decisions, to control or regulate industry, except where an act of industry may amount to a crime. There is also a limited control of industry through tariffs and through the dominion power to incorporate companies.
We are left with this practical difficulty: Control over the matters which I have mentioned is by law left to the provinces; but in reality there is no control at all, for even if a single province were to desire to regulate industry it would not dare to do so for fear that industry would desert that province. In the net result, therefore, there are many matters that are left above and outside the law. They are not subject to the jurisdiction and control of the dominion by reason of the decisions of the judicial committee of the privy council, and they are not in reality subject to the jurisdiction or control of the provinces, because no province by itself would dare to exercise the jurisdiction which it has. An outstanding illustration of what I mean is the situation in which the recent decisions of the judicial committee leave the subject of unemployment insurance. It is denied to this parliament to deal with that subject, and yet everyone knows that no proper system of unemployment insurance could be initiated in Canada unless it were of a national nature.
The time has come, Mr. Chairman, for us to face an important decision, and I submit that appeals to the Judicial Committee of tht Privy Council should be abolished. Indeed, it is inconsistent with the national status of Canada that we should retain such appeals any longer. The right to prohibit appeals to the judicial committee was denied some years ago in the famous Nadan case, but since the Statute of Westminster our right to take such a step is beyond dispute.


Richard Bedford Bennett: That only dealt with criminal cases.


Joseph Thorarinn Thorson: We have exercised the right in respect of criminal matters, and should now exercise it in respect of civil matters. It is anomalous that it should still remain with respect to civil matters when it no longer remains with respect to criminal matters. The Judicial Committee of the Privy Council is a tribunal outside of Canada, without adequate

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knowledge of Canadian conditions and without sympathetic appreciation of Canadian national aspirations. It is contrary to the fundamental principle of the British constitution that our court of last resort in civil matters should be located outside our own country. It is contrary to the first paragraph of the preamble of the British North America Act, which recites that there was a desire on the part of the provinces that came into confederation to have a constitution similar in principle to that of the United Kingdom. It is of the essence of the British constitution that the people who live under it should have the right to determine in every respect their course of action and to exercise full and sovereign powers of self-government-legislative, executive and judicial. That is the principle underlying the Balfour declaration of equality of status and complete autonomy enunciated at the Imperial Conference of 1926. It is also the principle that underlies the Statute of Westminster.
Not only is it the right of the Canadian people to determine for themselves their own policies, whether external or internal, but it is also their duty to do so, if they are to be worthy of the great traditions of the British constitution which they have inherited. Appeals to the Judicial Committee of the Privy Council are now an anachronism. They are a survival of colonial inferiority and contrary to the essential principle of the British constitution-the right and the duty of all people living under it to determine their own affairs without any hindrance or control by any extraneous body.
My attitude towards the Judicial Committee of the Privy Council and the retention of appeals to that body would be very different if I could feel that its decisions had served any useful purpose, either in the maintenance of the basic principles of our constitution or in aiding the development of the Canadian nation along the lines laid down by the fathers of confederation, or in protecting minority rights or the welfare of the Canadian people. But they have failed to serve the purposes which they ought to have served.
There are a number of charges that may be made against the Judicial Committee of the Privy Council, and I am very glad of this opportunity of expressing my views in that regard. The truth should be told and it should be stated fearlessly.
In the first place the Judicial Committee of the Privy Council has proved itself to be, as the hon. member for St. Lawrence-St. George has stated, a court not of law but of political expediency. There has been no continuity in its interpretations of the British

North America Act, no uniformity in the canons of construction that it has applied to that statute. Occasionally, as in the case cited by the hon. member for St. Lawrence-St. George, the judicial committee has adopted a broad view of the act. In the Senate case to which reference was made, Lord Sankey spoke of the British North America Act as a living tree, but on the other hand in a number of cases, perhaps most notably in the Barrett case, the judicial committee has adopted a very narrow rule of interpretation. In most cases the judicial committee has applied to the British North America Act the canons of construction that are applicable to an ordinary statute. And on occasions the judicial committee has not hesitated to use a Canadian case, not for Canadian purposes, but in order to create a precedent for other purposes. I refer to the Nadan case, an outstanding example of what I have just stated. In that case the judicial committee decided that Canada had no right to prohibit appeals in criminal cases. That was not done for the people of Canada, but was done so that there might be a precedent for subsequent Irish use, for the constitution of the Free State is declared to be similar in principle to that of Canada, and it was felt that if there were a decision from the judicial committee that the Canadian people had no right to prohibit appeals to the Judicial Committee of the Privy Council, that would be a useful precedent to follow in the event of the Irish people attempting to do the same thing.
In the second place the judicial committee has mutilated the structure of our federal system and changed its basic character. Canada was built as a centralized federalism with the residue of legislative power in the dominion, as opposed to a decentralized federalism such as that which exists in the United States, where the residue of legislative power is in the individual states. The fathers of confederation were men of broad vision. They intended to build a great new nation, and at the same time to preserve local autonomy in local matters. The second resolution passed at the Quebec conference of 1864 clearly shows that this was in their minds. They desired to have a -general government charged with matters of common interest to the whole country,
and
-local governments charged with the control of local matters in their respective sections.
That was in their minds, and it was of the essence of confederation that national matters should be assigned to the jurisdiction of the dominion parliament, and that local matters

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should be dealt with by the provincial legislature: It was certainly the intention of Sir John A. Macdonald and the other fathers of confederation that a living constitution was being born for this new country, and that it would adjust itself to changing conditions through the interpretation of the constitution by the courts.
That, indeed, was the early tendency of the decisions of the courts. Certainly it was the tendency of the earlier decisions of the Supreme Court of Canada, until that tendency was diverted by subsequent decisions of the Judicial Committee of the Privy Council. It was also the view held by the judicial committee in its earlier years, when that body was presided over by Lord Watson. In the Local Prohibition case, for example, Lord Watson used this significant language: (1896 A.C. 348):
Their lordships do not doubt that some matters in their origin local and provincial might attain such dimensions as to affect the body politic of the dominion and to justify the Canadian parliament in passing laws for their regulation or abolition in the interest of the dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada.
Lord Watson recognized and understood the underlying spirit of confederation, that there might be a shift of jurisdiction from the provinces to the dominion when matters had ceased to be local or provincial in their nature and had become matters of national concern. Had that attitude towards the British North America Act been continued, and had later interpretations of our constitution been rendered in that light, there would have been no need for amendment of the British North America Act; for with the aid of the courts it would have adjusted itself to changing conditions and changing needs. Then in truth the constitution of Canada would have been a living tree. It was intended that certain specified matters should be assigned to the exclusive jurisdiction of the legislatures of the provinces and that all other matters not so specified should be assigned to the exclusive jurisdiction of the dominion parliament. Section 92 of the British North America Act makes this abundantly clear. It reads:
In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated-
Then follows a list of sixteen classes of subjects, of which subsection 13, "property and civil rights in the province" and subsection 16, "generally all matters of a merely local or private nature in the province," are the most important for the purposes of this debate. Section 91, on the other hand, sets out the jurisdiction of the dominion parliament. It reads:
It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this act) the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say-
Then follows a list of twenty-nine classes of subjects particularly specified and the section concludes with these words:
And 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.
It is as clear, I submit, as language can make it that it was intended to leave the residue of legislative power with the parliament of Canada, and that the words "peace, order and good government of Canada " should receive a broad and generous interpretation and should include all matters not specifically assigned to the provinces when such matters are not merely local or private in their nature but are national in their scope.
Yet the Judicial Committee of the Privy Council has reduced the meaning of the words " peace, order and good government of Canada " so that they are almost meaningless. Contrast the language used by Lord Watson in one of the earlier cases with the language used by Lord Haldane in some of the later cases. In the Local Prohibition case Lord Watson dealt with these words, and said that they:
-ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance.
These are broad words, and I have no quarrel with this interpretation. Then Lord Haldane brought his great mind to bear upon the subject. I shall not refer to his earliest remarks upon the meaning of these words, but
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I shall make reference to what he said in re Board of Commerce Act (1922, 1 A.C. 197). There Lord Haldane used these words:
Circumstances are conceivable such as those of war or famine when the peace, order and good government of the dominion might be imperilled under conditions so exceptional that they require legislation of a character in reality beyond anything provided for by the enumerated heads in either section 92 or section 91 itself. Such a case if it were to arise would have to be considered closely before the conclusion could properly be reached that it was one which could not he treated as falling under any of the heads enumerated.
Then in the case of Toronto Electric Commissioners v. Snider (1925 A.C. 396), which held invalid the Industrial Disputes Act of 1907, which had been drawn by the present Prime Minister (Mr. Mackenzie King) when he was deputy Minister of Labour, Viscount Haldane, as he then was, referred again to the words "peace, order and good government of Canada" in these words:-
No doubt there may be cases arising out of some extraordinary peril to the national life of Canada as a whole, such as cases arising out of a war, where legislation is required of an order that passes beyond the heads of exclusive provincial competency. Such cases may be dealt with under the words at the commencement of section 91 conferring general powers in relation to peace, order and good government, simply because such cases are not otherwise provided for. But instances of this . . . are highly exceptional.
Then follows a reference to the famous case of Russell v. The Queen, which cannot be characterized otherwise than as absurd.
The final blow to the broad doctrine enunciated by Lord Watson has now been given by the judicial committee of the privy council in the reference dealing with minimum wages and the limitation of hours of work. There Lord Atkin approves of the language of Lord Haldane in the cases that I have mentioned. By that decision the judicial committee of the privy council put an end to any hope we might have had that the courts would assist us in adjusting the British North America Act to changing conditions and changing needs by shifting jurisdiction from the provinces to the dominion as matters cease to be local and provincial in their nature and become national in their character and importance.
When the Judicial Committee of the Privy Council cut down the meaning of the words "peace, order and good government of Canada" in the manner I have indicated, their interpretation of the constitution of Canada was perverse. Furthermore, who are they that they should decide questions of fact

which are not before them, and which it is for the parliament of Canada to decide? It is for this parliament to determine whether the welfare of Canada is imperilled, whether circumstances are abnormal or conditions are exceptional, even if we accept the narrow interpretation of these words with which Lord Haldane has left us saddled. What right has the judicial committee of the privy council to decide such questions of fact for us, particularly when the members of that committee have only a slight knowledge of Canadian conditions, and had no evidence whatever before them as to the facts?
Not content with cutting down the meaning of the words "peace, order and good government of Canada," the judicial committee has also substantially cut down the ordinary meaning of the words "the regulation of trade and commerce" as set forth in subsection 2 of section 91 of the British North America Act.
The judicial committee has gone still further, for it has placed within the terms "property and civil rights in the province" as set forth in subsection 13 of section 92 many matters that were never contemplated by the fathers of confederation as properly coming within these terms; and many matters that are of national importance and concern have now been allocated to the exclusive jurisdiction of the provinces. What is the sense, for example, of now regarding the subject of insurance as being still a matter solely and exclusively local or private in its nature, or solely and exclusively a matter of property and civil rights in the province? By the growth and development of the subject of insurance and the business of insurance, insurance has become one of our national institutions, of almost as great importance to the people of Canada as the institution of banking itself. How can the subject of unemployment insurance be properly held to be purely a matter of property and civil rights in the province, when no unemployment insurance scheme can be set up unless it is national in its character?
It is not an unreasonable criticism of the judicial committee of the privy council to say that their decisions have now in reality placed the residue of legislative power with the provinces under the heads of "property and civil rights in the province," and "generally all matters of a local or private nature in the province." In that manner they have mutilated the constitution. They have changed it from a centralized federalism, with the residue of legislative power in the dominion parliament, to a decentralized federalism with

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the residue of legislative power in the provinces-contrary to the Quebec resolutions, contrary to the ideas that were in the minds of the fathers of confederation, contrary to the spirit of confederation itself, and contrary to the earlier decisions of the courts. We have Lord Haldane largely to blame for the damage that has been done to our constitution.
My third charge against the judicial committee of the privy council is that its decisions have done serious harm to Canadian national development. A very interesting and useful lecture could be given upon the subject of the harm which the decisions of the Judicial Committee of the Privy Council have done to Canada; this is neither the time nor the place to deliver such a lecture, but I do wish, however, to give one illustration of what I have in mind. Let me refer to the case of Bonanza Creek Gold Mining Company v. The King (1916 1 A.C. 567). Under subsection 11, of section 92 of the British North America Act, the provinces are given exclusive power to incorporate companies with provincial objects. It follows, therefore, that it is within the dominion jurisdiction to incorporate companies with objects that are not provincial. The company in question in this case had been incorporated in Ontario by the issue of letters patent. It was carrying on mining operations in the Yukon, and brought legal proceedings by way of petition of right against the crown, in the Exchequer Court of Canada, in respect of certain transactions relating to mining leases in the Yukon. The crown challenged the right of the corporation to bring these proceedings, and indeed challenged the existence of the corporation outside the province of incorporation. The Supreme Court of Canada held by a majority judgment that the company had no existence in law beyond the boundaries of the province of incorporation, and must therefore fail in the petition of right which it had brought. This is the statement of the reasons of the Supreme Court of Canada for their decision, as set out by the judicial committee:
Section 92 confers exclusive power upon the provincial legislature to make laws in relation to the incorporation of companies with provincial objects. The interpretation of this provision, which has been adopted by the majority of the judges of the supreme court is that the introduction of the words "with provincial objects" imposes a territorial limit on legislation conferring the power of incorporation so completely that by or under provincial legislation no company can be incorporated with an existence in law that extends beyond the boundaries of the province.
It is very unfortunate that the decision of the Supreme Court of Canada in that case
was not sustained; if it had been sustained we would have seen practically an end to provincial incorporation. Only those companies would have sought provincial charters that intended to operate only in one province; and if any company desired to operate in more than one province it would have sought a dominion charter. The dominion would then have had, through the power to incorporate companies, control over business perhaps as great as it would be wise for the dominion parliament to have. But Lord Haldane came again upon the scene. He delivered the judgment of the Judicial Committee of the Privy Council, which reversed the judgment of the Supreme Court of Canada. He mixed his law with metaphysics and gave birth to the strangest corporate entity ever known to the law. He held that a letters patent company derived its existence from the act of the sovereign-that is, the exercise by the sovereign of the royal prerogative- and not merely from the words of the regulating statute. This, according to Lord Haldane, gave a letters patent company a status resembling that of a corporation at common law. What did this mean? Simply this, that while the corporation was created in the province and had such powers in the province as the province gave to it, yet when it went outside that province it could not exercise any of the powers which the province of incorporation had given to it, but it had a capacity to receive such powers from an outside province as that province was willing to confer upon it. Never before had the law known such a form of corporate entity. I submit that Lord Haldane was entirely wrong in his views, for he attributed to the royal prerogative greater powers than the province itself possessed and greater power than the sovereign himself could exercise. In addition, by his decision he threw utter chaos and confusion into the whole realm of company law. If the supreme court decision had prevailed, the dominion parliament, through its control over incorporation, would have had a reasonably adequate control over business and industry, for all concerns carrying on business in more than one province would have sought dominion charters; insurance companies would have done the same thing, and in that way the dominion would have advanced in the direction of obtaining control over so important a national institution as the business of insurance. This would have been as it should be, and it would have been the result if the decision of the Supreme Court of Canada had prevailed. The Supreme Court of Canada decision was given irr accord-

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ance with the letter and the spirit of the constitution; but a legal fiction applied by the Judicial Committee of the Privy Council gave us chaos instead.
The fourth charge in the indictment against the Judicial Committee of the Privy Council is that it has failed to preserve minority rights. Let those who look to the Judicial Committee of the Privy Council for the preservation of minority rights recall the case of The City of Winnipeg v. Barrett (1892 A.C. 445). That was the first of the Manitoba school question cases. The validity of the Public Schools Act, 1890, was called into question. Section 22 of the Manitoba Act had assigned exclusive jurisdiction to the province of Manitoba to enact laws in relation to education, but that exclusive jurisdiction was subject to an important proviso reading as follows:-
Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the province at the union.
The Supreme Court of Canada was unanimous in finding that the statute passed by the province of Manitoba, the Public Schools Act, 1890, was invalid as contravening section 22 of the Manitoba act. The Judicial Committee of the Privy Council reversed the decision of the Supreme Court of Canada. I submit that the language used by the judicial commitee in that case gave as narrow an interpretation of the meaning of words as it was possible to give. This decision caused an intense feeling that an injustice had been done. If the Supreme Court of Canada decision had prevailed, the Manitoba school question would never have assumed the national proportions which it did. The judgment of the Judicial Committee of the Privy Council in that case was upon narrow and technical grounds, and as a result there was a deep sense of injustice, not only in the province of Manitoba but in other parts of the dominion of Canada. Because of that deep sense of injustice the Remedial bill of 1896 was introduced into this parliament. That remedial bill would never have been introduced if the judgment of the Supreme Court of Canada had prevailed. I submit that the whole Manitoba school question with all the religious hatred and bitterness which it engendered should be placed at the door of the Judicial Committee of the Privy Council.
I hope the government of Canada will at an early date take effective steps to abolish appeals to the Judicial Committee of the Privy Council. That body has been inconsistent in its decisions; it has failed to adjust our constitution to changing conditions and

changing needs; it has mutilated the constitution and changed its basic character; it has done serious harm to the cause of our national development and it has failed to protect religious minorities. We in Canada can work out our own differences. We have judges in our courts quite the equals of those who compose very frequently the Judicial Committee of the Privy Council, and infinitely superior in their knowledge and understanding of Canadian conditions.
It will not, however, be sufficient to abolish appeals to the Judicial Committee of the Privy Council, for the harm which their decisions have done will still remain. We must repair the damage that has been done; we must restore to our constitution the essential spirit of confederation, and we must devise ways and means whereby the principles laid down by Lord Watson can be applied so that when matters cease to be local or provincial and become national in their character, they shall come within the jurisdiction of this parliament. That was the aim of the fathers of confederation, and it ought to be kept in mind if we are to build a great nation.
How are we to accomplish this purpose? Several suggestions have been made in this house. The right hon. leader of the opposition (Mr. Bennett), earlier in this session, suggested the calling of a constitutional convention. There is considerable merit in that suggestion, but I am somewhat afraid that it might result in confusion. We have also heard from the Minister of Justice (Mr. Lapointe) of the progress that is being made in devising machinery for the amending of our own constitution. But there are some specific amendments that ought to be made, immediately. I suggest that this parliament should find some way whereby dominion jurisdiction could be secured over the general subject of the financial structure of this country. This parliament should have control over the financial interests of Canada. We might get such control by having exclusive jurisdiction over the incorporation of companies that operate in more than one province and over the subject of insurance. There ought also to be wider control in this parliament over the subject of industry. I recognize that there are difficulties in this regard, but certainly this dominion parliament should have control over such subjects as employment insurance. It should also have control ovfer such social security legislation as is national in scope, such as hours of labour, wages of workmen and fair dealings between employer and employed, so that there may be " humanity in industry " and a fair distribution of the fruits of its production. Then, also, this parliament should

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have control over the subject of unemployment relief and assume responsibility for that subject in so far as unemployment is due to causes that are national rather than provincial.
Recently the Prime Minister announced that it was his intention to appoint a national royal commission. He made this statement:
In these circumstances, we propose to appoint a royal commission of inquiry to investigate the whole system of taxation in the dominion; to study the division of financial powers and financial responsibilities between the dominion and the provinces, and to make recommendations as to what should be done to secure a more equitable and practical division of the burden to enable all governments to function more effectively-and I may add more independently -within the spheres of their respective jurisdictions.
It is desirable that there should be a realignment of the spheres of jurisdiction. How can the national royal commission adequately divide the fields of revenue or allocate the sources of taxation as between the dominion and the provinces without reviewing their respective spheres of responsibility? I suggest that there should be referred to the national royal commission that is to be appointed the question as to what amendments to the British North America Act should be made immediately, to meet the necessities of the occasion, so that in the light of such necessary amendments they may make a proper division of the fields of revenue, and a fair allocation of the sources of taxation. I suggest that if the national royal commission is to accomplish its purposes the best men available should be appointed to the membership of that commission-men of brains, with a wide knowledge of Canadian-


Frederick George Sanderson: I regret to have to interrupt the hon. member, but he has exceeded his forty minutes.


Joseph Thorarinn Thorson: I should like just a few minutes more, if I may.


An hon. MEMBER:: Go ahead.


Joseph Thorarinn Thorson: The personnel of this commission should consist of men of brains, with a wide knowledge of Canadian history and conditions, and with broad human understanding and sympathy; they should be men desirous of contributing to the building of a united and a great nation. Let these men, then, in their capacity as national royal commissioners, study the problem and suggest concrete amendments to the British North America Act that are of immediate and vital importance, so that if their recommendations are approved concrete amendments to the British North America Act may be submitted to parliament in the form of an address. Then if there is controversy, let the people of Canada decide.
The decisions of the Judicial Committee of the Privy Council offer a challenge to the nationhood of Canada, but perhaps they have also done a great service, for they have focussed our attention upon the necessity of amending the British North America Act.


Ernest Lapointe: Did my hon. friend mention who would appoint this commission he suggests?


Joseph Thorarinn Thorson: The dominion government has already announced the appointment of a national royal commission, and I am suggesting that to this commission should be assigned, in addition to the subjects that have already been judicial committee a challenge to the House ments of responsibility there should be as between the dominion and the provinces.
There is in the recent decisions of the judicial committee a challenge to the Hoarse of Commons; there is a challenge to the government of Canada. Our constitution ought not to be a straitjacket to fetter and confine our activities; it should be an instrument for progress and should be adjustable to changing conditions and changing needs.


Richard Bedford Bennett: I do not propose to trespass at any length upon the time of the committee with respect to this matter, but I desire to point out two things. First, that our right generally to discuss the judgments of the privy council in the recent cases is abundantly justified by the observations made by the solicitor-general in England as reported in Hansard of that day as long ago as August, 1855. Some instances had occurred in which the House of Lords, sitting as a court of appeal, had failed to discharge satisfactorily its proper functions. The then Sir Richard Bethell, afterwards Lord Westbury, chancellor, in discussing what had taken place in the House of Lords, said:
And the result was that that court, the decisions of which ought to be as unalterable as the laws of the Medes and Persians, was felt to be unsatisfactory in its constitution and inferior to the lowest tribunal in what ought to be the accompaniments of a court of justice.
That is abundant reason, given by one of the most eminent lawyers of the Victorian era, why we have the right to consider these judgments.
The second point to which I desire to direct attention is that the hon. member for Selkirk (Mr. Thorson), who in the main has made an admirable speech, the extreme views of which I cannot accept, has failed to realize that in the Nadan case all that was decided was that it is the right of any subject of the king to present his grievances to the throne

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and that any legislation enacted by the parliament of Canada in conflict with that right, which was then statutory, was an invalid exercise of our powers as a parliament unless we did it in a certain definite way.
In that regard I think it well to point out that no appeal goes to the privy council of England unless it is by petition, and not otherwise. The subject has a right to petition the king alleging that wrong has been done to him by judgment of a court in any part of the empire; and it is not a question of residence, but as it happens that the king lives in England the petition is presented to him there. The petition is, in fact, presented to him. But inasmuch as for centuries the king has been unable to deal personally with these matters he refers the petition, by a direct order of His Majesty in council, to his Judicial Committee of that Privy Council, and that committee hears arguments and determines whether or not in the first instance the petition should be heard at all; and secondly, what the merits of the case are. It does not deliver judgment as we understand it, but makes a report to His Majesty expressing the opinion that he should either say yea or nay to the allegations contained in the petition and the prayer for relief.


Joseph Thorarinn Thorson: It gives advice to His Majesty.


Richard Bedford Bennett: And that constitutes the advice upon which he acts. The lord president of the council then convenes a privy council at the instance of His Majesty, and that privy council makes an order which is the order of the king in council, giving effect to the opinion which has been given to him by those members of his committee who have held or hold judicial office. If one bears that in mind, one realizes that the exercise of the right of appeal to the privy council is something that the subject enjoys, and it is not a question of right as between the body politic and the sovereign. It is the right of the individual to present his grievance to his king, and this parliament cannot deprive the subject of his right in civil matters which are determined by provincial legislatures. The appeals which are taken to the privy council to-day in most of the provinces of Canada are taken in consequent of an order made by his late Majesty King Edward the Seventh, whereby the courts of last resort in Ontario or Alberta or British Columbia give leave to appeal to the king in council on a petition being presented to them for that purpose. For example, I hold in my hand a copy of the final order in council 
dealing with the aeronautics case, and it is worth while for a moment to look at the language:
Whereas there was this day read at the board a report from the judicial committee of the privy council dated the 22nd day of October 1931 in the words following, viz:
Whereas by virtue of His late Majesty King Edward the Seventh's order in council of the 18th day of October, 1909 there was referred unto this committee the matter of an appeal from the supreme court of Canada in the matter of a reference as to the respective legislative powers under the British North America Act 1867 of the parliament of Canada and the legislatures of the provinces in relation to the regulation and control of aeronautics in Canada between the attorney general of Canada, appellant, and the attorney general of the province of Ontario, the attorney general of the province of Quebec, and the attorney general of the province of Manitoba, respondents (privy council appeal number 38 of 1931), and likewise a humble petition of the appellant setting forth that under an order dated the 15th April, 1929, his excellency the governor general in council referred to the supreme court for hearing and consideration pursuant to section 55 of the Supreme Court Act certain questions touching the respective powers under the British North America Act of 1867 of the parliament and government of Canada and the legislatures of the provinces in relation to the regulation and control of aeronautics in Canada: that the questions were as follows:-(1) Have the parliament and government of Canada exclusive legislative and executive authority for performing the obligations of Canada or of any province thereof under the convention entitled "Convention relating to the regulation of aerial navigation"? (2) Is legislation of the parliament of Canada providing for the regulation and control of aeronautics generally within Canada including flying operations carried on entirely within the limits of a province necessary or proper for performing the obligations of Canada or of any province thereof under the convention aforementioned within the meaning of section 132 of the British North America Act 1867? (3) Has the parliament of Canada legislative authority to enact in whole or in part the provisions of section 4 of the Aeronautics Act, chapter 3, Revised Statutes of Canada 1927? (4) Has the parliament of Canada legislative authority to sanction the making and enforcement in whole or in part of the regulations contained in the air regulations 1920 respecting (a) the granting of certificates or licences authorizing persons to act as pilots, navigators, engineers, or inspectors of aircraft and the suspension or revocation of such licences; (b) the regulation, identification, inspection, certification and licensing of all aircraft; and (c) the licensing, inspection and regulation of all aerodromes and air stations?: that the supreme court having heard arguments on behalf of the appellant and the respondents by judgment dated the 7th October, 1930, answered the questions as follows:-To question No. 1 as framed the court unanimously answers "No";-
I direct the attention of the hon. member for Selkirk to the point that in the aeronautics case, notwithstanding what he has said with

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respect to the supreme court and the privy council, the supreme court answered negatively that all important question respecting the convention relating to the regulation of aerial navigation, and thereby determined that this parliament had no power to legislate with respect to aeronautics.
-to question No. 2 the answer of the majority of the court (the Chief Justice Duff, Rinfret, Lamont, Smith and Cannon JJ.) is "Construing the word 'generally' in the question as equivalent to 'in every respect' the answer is 'No'"; to question No. 3 the answer of the majority of thq court (the Chief Justice Duff, Newcombe, Rinfret, Lamont and Cannon JJ.) is "Construing the question as meaning 'Is the section mentioned as it stands validly enacted?' the answer is 'No' but if the question requires the court to consider the matters in the enumerated subheads of section 4 of the statute as severable fields of legislative jurisdiction then the answers are to be ascertained from the individual opinions or reasons certified by the judges": as to question No. 4 the answers are to be ascertained from the individual opinions or reasons certified by the judges: that the appellant on the 20th March, 1931, obtained special leave to appeal to Your Majesty in council: and humbly praying Your Majesty in council to take this appeal into consideration and that the judgment of the supreme court dated the 7th October, 1930, may be reversed, altered or varied or for further and other relief:
"The Lords of the Committee in obedience to His late Majesty's said order in council have taken the appeal and humble petition into consideration and having heard counsel on behalf of the appellant and for the attorney-general of the province of Quebec, their Lordships do this day agree humbly to report to Your Majesty as their opinion that this appeal ought to be allowed the judgment of the Supreme Court of Canada dated the 7th day of October, 1930, set aside and in lieu thereof that questions Nos. 1, 3 and 4 (to which alone answers are desired) should be answered in the affirmative."
His Majesty having taken the said report into consideration was pleased by and with the advice of His privy council to approve thereof and to order as it is hereby ordered that the same be punctually observed, obeyed and carried into execution.
Whereof the governor general or officer administering the government of the Dominion of Canada for the time being and all other persons whom it may concern are to take notice and govern themselves accordingly.
(signed) M. P. A. Hankey.
The effect of that judgment in the aeronautics case was to reverse the judgment of the Supreme Court of Canada and to confer upon this parliament exclusive jurisdiction to deal with the whole problem connected with aeronautics. But the essential thing to remember is that question No. 1 was answered in the affirmative. That question was:
Have the parliament and government of Canada exclusive legislative and executive authority for performing the obligations of Canada or of any province thereof under the convention entitled, "Convention relating to the regulation of aerial navigation"?
So that since 1931 we have believed that under a convention such as that in the aeronautics case this dominion had exclusive jurisdiction to deal with all matters relating thereto.


Joseph Thorarinn Thorson: Does not that indicate
that you never can tell what the Judicial Committee of the Privy Council will do with a case that goes before it?


Richard Bedford Bennett: My learned friend being also a member of the legal profession knows better than I do that if there were unanimity of opinion in all cases there would not be any legal profession. I make these statements by way of introduction because of the attack made by the Minister of Labour (Mr. Rogers) the other evening. If he will take the trouble to read the speech that has just been made in this house by the hon. member for Selkirk he will perhaps realize that he was on very unsafe ground in speaking as he did.
I now proceed to the other point in this case to which I wish to direct particular attention. In 1928, in this chamber, I had occasion to challenge the position taken by the Minister of Justice and the Prime Minister, first with respect to a sanitary convention made at Paris, and secondly with respect to a Spanish treaty. I contended then that the mere signing of a convention and the mere making of a treaty did not expand our constitutional powers nor permit us to interfere in any sense with the jurisdiction of provincial legislatures. I did that on the basis of the law as it stood then, as I understood it; and it was because in 1935 I believed that the privy council, in the aeronautics case, had taken what the hon. member for Selkirk describes as the wider view, that I made the observations I did at that time, and which I think were wholly warranted.
I wish to point out that the Minister of Justice and the Prime Minister in 1928 supported the position that under the British North America Act we had power, when making treaties or conventions, to deal with them in every sense as effectively and fully as though the provinces did not, for these purposes, exist. The discussion of the question will be found reported first of all in Hansard of April 12. 1928. Without going into it in great detail I may say that the reference is at page 1954. After listening to the
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questions which were propounded to the then Prime Minister by my friend and colleague from St. Lawrence-St. George (Mr. Cahan) I began my observations at page 1967, and I pointed out that after this convention was made I thought it was doubtful whether Canada should have executed any such convention because it impinged upon the powers which under our constitution were exclusively within the jurisdiction of the provinces. I said:
The provinces and the provinces only are concerned with the question of smallpox, and if an epidemic of smallpox should break out in Quebec or in Alberta the province of Quebec or the province of Alberta, as the case may be, must deal with it. The dominion can do nothing at all in the matter. What is more, neither this parliament nor this government has the right under the constitution to impose upon any provincial government the necessity of making any return to the Minister of Health that sits yonder.
A further discussion took place with respect to the ratification of conventions and we proceeded at some length to discuss the general character of such legislation.
There is just one other matter that I should like to mention arising out of this debate, or rather out of the answer made by the Prime Minister to a question asked by my friend the hon. member for St. Lawrence-St. George. The question was whether this was part of the public law of Canada when the convention had been approved by parliament and ratified by His Majesty, and I said: That question has not yet been answered. Then I proceeded:
The question was very simple; it was simply whether or not this became part of the public law of Canada after its approval and ratification, and it was answered by a long address on how treaties have been and will now be signed.
Then the Minister of Justice, then and now, said to me:
My friend knows the answer; it is the simplest thing possible, and the answer is obvious.
Mr. Bennett: What is it?
Mr. Lapointe (Quebec East): My hon. friend knows very well that if this house approves of this convention and it is ratified, the convention will be binding upon Canada. If there is need of statutes or legislation, the house will be called upon to pass that legislation.
I then asked this question:
I wonder if the minister realizes just what he has said? To carry into effect what he has just said involves an amendment to the British North America Act.
I was speaking in 1928 in the terms of the decision of the Supreme Court of Canada on the labour questions that were referred to then. Then I proceeded at page 1971:
However, now we have the answer of the Minister of Justice that this convention, when approved by this parliament and ratified by

the sovereign, will become a part of the public law of Canada, binding this country and imposing upon our people the necessity of passing such legislation as may be necessary to give effect to it, if need be. I point out to him that that involves changes in the constitution of Canada, because it places upon this parliament a power which parliament cannot exercise, having regard to the constitutional provisions of the British North America Act which confer those powers upon the provinces and not upon the dominion. Let there be no misunderstanding about this question to which the hon. member for St. Lawrence-St. George vainly sought an answer, and which is now answered by the Minister of Justice. Does the Prime Minister wish to ask a question?
Mr. Mackenzie King: I was going to say to my hon. friend that I think he is entirely wrong on that point, and I would like to give him my reasons later.
We then proceeded and discussed this matter at some length. A question was then asked by the Solicitor General, Mr. Cannon, and the Prime Minister closed the debate. Apparently he then thought that section 132 was broad enough to enable this parliament to deal with the whole situation, for at page 1973 he said:
My attention has just been drawn to section 132 of the British North America Act, which provides:
"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."
Mr. Bennett: That does not cover this.
Mr. Mackenzie King: My hon. friend might there say that we have again a question of interpretation of what is and what is not the British Empire. I hope he will be able to see that under that clause the last vestige of his argument fades away.
At that time the Prime Minister and myself were holding divergent views; divergent because I accepted the opinion of the Supreme Court of Canada as conferring upon the provinces only the jurisdiction to deal with questions that might arise under labour conventions, whereas the Prime Minister at that time held the view that section 132 was ample to enable this parliament to deal with any matter that might arise by reason of Canada becoming a party to a convention or treaty.
After the aeronautics and radio cases to which I shall presently refer, I held and now hold the opinion which the Prime Minister then held, because I believe the judgment of the privy council in the aeronautics case was ample justification for the position that we had powers as ample and as plenary and complete as any parliament could have for the purpose of implementing any obligation

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created by treaty or convention. That was the position when we had to deal with the sanitary convention. And I really expressed the view that I was uncertain in my opinion with respect to the matter-a very unusual thing-because I felt that there was no body of jurisprudence to which one could turn for the purpose of ascertaining what construction should be placed upon section 132 or the general powers of this parliament when dealing with conventions and treaties.
Then a few days later, namely on April 16, the then Minister of Finance, Mr. Robb, moved a resolution with respect to a treaty with Spain. Great Britain made a treaty with Spain, and a provision was inserted in it whereby Canada could avail herself of the benefit of it if she so desired. And the Minister of Finance said: We desire to do so; and we were approving of that exercise of discretion. On looking at the treaty I saw that it imposed upon us obligations which were solely within the jurisdiction of the provinces. So I raised this question, at page 2053:
I wonder, Mr. Chairman, if the attention of the Prime Minister has been directed to this bill. The other day I had occasion to draw attention to the fact that some of these conventions which were submitted for our approval had the effect of placing obligations upon the provinces, and that under our constitution exclusive power to deal with certain matters was vested in the legislatures of the provinces and not in the federal parliament. My right hon. friend the Prime Minister referred me to the section of the British North America Act dealing with this matter. I was perfectly aware of the section, but I do not apprehend that it could ever be taken as enabling us to amend our constitution by the aid of a convention made between Great Britain and a foreign state and approved by us. I do^not think that even the credulity of the Prime Minister could be imposed upon to that extent, although the other day he said that he did not happen to be a lawyer.
Then we dealt with several questions which arose under that treaty. One was in connection with succession duties. And I said:-
This article purports to put the residents of Spain in the same position and upon the same basis as the residents of any other foreign state, and I think it might be important to consider whether we are not taking an obligation with regard to the provinces that was never contemplated in connection with a treaty, because not only does that article deal with this matter, but there are other articles that deal with military obligations, which clearly are within the power of this parliament.
Then having further reviewed section 132 I took the position that the constitution could not be amended in that way, and I suggested that it was desirable that the matter should be carefully studied. The then Solicitor General intervened and suggested that the true interpretation of section 132, namely, dealing with our treaty making power, was ample for all purposes, and at page 2055 I asked whether:-
(A treaty) negotiated between a foreign state and Great Britain, to which we give our approval, could deprive the legislature of any province of its plenary powers. Such a contention is certainly at variance with the statement of the law made by Lord Loreburn in the privy council. It would simply imply that the plenipotentiaries of Canada and of some other country might sign a treaty which, without reference to a province, could deprive that province of its legislative power with respect to every subject matter that might be dealt with in that treaty. It is perfectly clear that this is not the law; it is not at any rate the law heretofore understood by jurists of repute . . . Surely no treaty can take away from any provincial body its legislative power; it can affect only those powers which the dominion may exercise in the province. That is to say, this parliament might denude itself of every power which it has a right to exercise in every one of the nine provinces. and the provinces would thereby be bound. But the legislative jurisdiction of the legislatures, conferred on them by the British North America Act, cannot be limited .	.
The Prime Minister of that day and of to-day took another view. He intervened with a question, and I said to him:-
I quite agree with the Prime Minister that there must be a national entity, and that national entity is Canada. Canada is composed of several provinces; but the national entity has power to make laws for the national well being. These laws thus made for the national well being, however, must not conflict with the exclusive jurisdiction conferred upon the provinces by the constitution with respect to those enumerated classes of subjects in section 92 of the act. and some of the articles of the treaty deal in terms with matters solely within the exclusive jurisdiction of provincial legislatures, being designated and named classes of subjects over which the legislature alone has jurisdiction-not jurisdiction concurrently with this parliament but exclusive jurisdiction in the terms of the constitution itself.
Then we proceeded to discuss the matter further, and I concluded what I had to say at page 2060. I stated that I had no certainty in my views, but suggested that it was desirable that the matter should engage the attention of the law officers of the crown.
That was in 1928. In 1931-32 we had the judgments in the radio and aeronautics cases. I read the questions which were submitted to the courts and subsequently to the privy council, on which it was held that the parliament and government of Canada had power to deal with the problems that were raised by the convention made with respect to aeronautics, to which Canada was a party. That

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modified my entire view of the law of this country. That made me believe in Lord Sankey's judgment in the Senate case, as to " person " including a woman. It made me conclude that this " growing tree " to which Lord Sankey referred had made the constitution of this country broad enough to cover the very situation with which he dealt there, and of course as a lawyer that decision was binding upon me. It is now asserted by the Minister of Justice (Mr. Lapointe) that because we enacted legislation based upon conventions, which are recited, the same as the convention with respect to aeronautics, we have thereby lessened and curtailed the powers of this parliament to deal, under our constitution, with the problems that are before us. I cannot agree with that view, and I hardly think the minister would agree with it if he had heard the hon. member for Selkirk, which he did not.
I shall not again traverse the ground, but it is perfectly clear that the privy council has now taken the view that the construction to be placed upon the conventions and treaties that we make is a construction wholly at variance with the construction placed upon it by the combined weight of the aeronautics and radio cases. That is fairly clear. It is at variance with the view which the Prime Minister and the Minister of Justice expressed in this house in 1928 as being the true construction. It is in accordance with the view I presented to this house in 1928, because those cases had not then been decided, and the language I used might almost be taken to be the language of Lord Atkin himself in the cases we are now considering. Social insurance, unemployment insurance, hours of labour, wages, and matters of that kind, other than the first mentioned, were the subject matters of conventions but, as was pointed out by the hon. member for Selkirk, that received no consideration at the hands of the judicial committee. Adopting in every respect the language used by my colleague from St. Lawrence-St. George, I cannot and do not understand how that committee decided those cases on the citation of a section in language which is wholly at variance with the language used.
The British North America Act contemplates conflict between provincial legislatures and the parliament of Canada. It contemplates that legislation enacted by this parliament may lessen and curtail and restrict the power of the provincial legislatures with respect to property and civil rights. In that connection the old case of Tennant and the Union Bank; the old case of the Grand Trunk employees and their pension fund, and other
jMr. Bennett.]
cases come at once to one's mind. Since the very inception of judicial decisions on our constitution it has always been admitted and taken for granted that of necessity there would be a conflict in relation to property and civil rights in the exercise of almost any legislative power that we as a parliament possess.


Joseph Thorarinn Thorson: When it is ancillary or necessarily incidental.


Richard Bedford Bennett: Quite so; but, as was said as early as the Tennant case, those are powers that are ancillary to the general power and its exercise. What have the privy council done now? They have used the language to which my hon. friend from St. Lawrence-St. George referred; in every instance, instead of differentiating between the words "in relation to" and "affecting" they have adopted the word "affecting." The word "affecting" does not appear in the British North America Act at all, so far as I know. It is taken for granted that in the very nature of things legislation enacted by this parliament will affect property and civil rights. Chief Justice Duff, in the Gold Seal case, drew the distinction so clearly when he pointed out the fallacy of endeavouring to read the words "in relation to" and "affecting" as being similar that it does strike one as being a pitiful sort of thing that we should have eminent jurists reading a section casually, without any reference to its exact language, and predicating upon that a decision which I submit is wholly at variance with the previous decisions of that court.
Leaving that, I come to the next point I desire to make. The other day my hon. friend the Minister of Justice was annoyed at an observation I made in connection with these cases. Everything that was said with respect to the committee by the hon. member for St. Lawrence-St. George is more than applicable to the cases themselves. At the end of the social legislation cases counsel for the dominion, on the record, admitted that in every instance they affected property and civil rights. The judicial committee at once jumped to the conclusion and said, "That is conclusive; he admits it." Well, you see, that is wholly at variance with the proper argument that should be placed before that court, and that leads me to the last point I desire to make.
That point is this: We should not have submitted to the court the question of the validity or invalidity of the statutes as a whole when they involved questions which could be properly solved only in the light of concrete facts that might arise with respect to them. It is quite clear that with respect to questions as to the extent of jurisdiction it

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is quite a proper exercise of power to submit a case to the supreme court and the privy council; there is no difficulty about that. But when the Lemieux Act was passed, its author to a large extent being the right hon. Prime Minister (Mr. Mackenzie King), that statute remained in operation in Canada for twenty years and more.


Joseph Thorarinn Thorson: Eighteen years.


Richard Bedford Bennett: I thought it was more than twenty years; my hon. friend from Selkirk corrects me. However, it was in operation during each of those eighteen years. It was not referred to the Supreme Court of Canada or the judicial committee for determination as to its legality, but one day in Toronto a lawyer said, "I am going to test the validity of this act in the light of the facts of this case." He did so, and the statute was held to be bad.


Joseph Thorarinn Thorson: He had the good luck to draw Lord Haldane.


Richard Bedford Bennett: Well, my hon. friend from Selkirk seems to have little confidence in Lord Haldane as a jurist; he thinks it was a matter of good luck drawing Lord Haldane, but after all he was only one member of a court of five, I think, in that case. They decided that the statute was bad, but they did so in the light of the facts that were referable to the provisions of the statute.
Take the unemployment insurance case. It is quite clear, Mr. Chairman, that the power must lie either with the provincial legislature or with this parliament.
There are only two questions of importance with respect to it. First of all the judicial committee said: We regard this statute as bad because it affects property and civil rights. That is an erroneous quotation of the section.
Then they dealt with the question of compulsion. Now I simply put this to the minister: The compulsion to which the court refers was a compulsion as to payment of levies by employers for the employee and themselves. Only a few short months before that, the privy council had decided that a province could not do it. Since a province could not do it, there does not seem to be any doubt that this parliament must have the power.
The Crystal Dairy case was the basis of our legislation on the question of levy, and that case was decided in 1932-long after 1928. In that the court decided two things: (a) that levies made on dairy farmers were taxes, and (b) that they were indirect taxes and therefore beyond the competence of the province 'to impose. In the light of that,
311X1-164
how could the privy council decide other than that levies of a similar character made by this parliament were within its jurisdiction?
I am not going to traverse the legality or illegality of the judgments. The Minister of Justice will very properly say to me: You are bound by the judgment of your courts. But that leads me to make clear the point which I desire to make. Had the facts with respect to the character of the levies been brought to their lordships' attention, had it been brought to their attention that these other matters were conditions which had to be preserved in order that the workman could get benefits, and were not in any sense compulsory powers imposed upon him by the statute, there would not have been any such submission to the court as was made in that instance; and there would not have been any possible conflict between the decision in the Crystal Dairy case and the judgments here. Because here we have a court seriously deciding a case in 1912-and I dare say some hon. members of the committee will recall that it was to that case I directed attention when we submitted the unemployment insurance measure to the house. I well remember the Minister of National Revenue (Mr. Ilsley) making some observations at that time, and seeing him in his seat brings the matter to my mind. We submitted our measure to the house because the judicial committee had decided that it was illegal for a province to make those levies against the farmers as they constituted indirect taxation, and taxes.
All you had to do was to apply that principle to this case. You have levies, taxes. The taxes were indirect, and therefore within the jurisdiction of this parliament. I can add nothing to what the hon. member for St. Lawrence-St. George has said in that connection. I can only adopt what he has said; and I would add to it what was said by the hon. member for Selkirk and thereby obviate the necessity of my repeating.
Now let us see where we are. By reason of referring the whole statute to the court, without any concrete facts, and without any knowledge of the surrounding circumstances, we have the court giving judgments for reasons which on-well, the most careless consideration-will be regarded as inadequate, because there is a misinterpretation of the statute, and that misinterpretation is made the basis of an erroneous judgment. That very same court said that an opinion-and this is an opinion-of the judicial committee is no better than that of the Minister of Justice. That is, as a law officer of the crown and as Minister of Justice he has

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expressed his opinion that this was bad. The judicial committee has done the same. The opinion of the one is as good as that of the other. The judicial committee say so.
And they go further. They say that these opinions would be worthless as being speculative opinions on hypothetical questions. Then they go further and say that it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down and override the operation of particular words, when the concrete case is not before it. They said that away back in 1903. in connection with the Hamilton Street Railway case.
Again in 1914, in a case from British Columbia, they said how unsatisfactory it was, and used the words, "it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied."
Now that is certainly strikingly true in this case, and what is true with respect to the judicial committee is equally true with respect to the supreme court. There are other decisions in which the same observations are made. I do suggest that in view of the fact that the present government expressed its opinion so strongly before it came into office, it should have been extremely careful to see to it that every precaution was taken to secure a decision which at least would carry the confidence of everyone, and that it would be a decision on concrete facts.
That not being so, now, after all these months, we are in the position we were in when we first launched the reference to the supreme court. The opinion of the judicial committee is exactly that which was given by the Minister of Justice before the reference was made. I think that is unsound, and I submit to the minister that it is unsound. It is at variance with what was done in the Lemieux case.
Certainly I have no difficulty in saying to the minister that I wholly agree with him that in many cases where it is purely a question of jurisdiction, and facts have no reference to the matter, it may be very helpful to have opinions on questions of law. But when the law and the facts are so closely interwoven as to necessitate the statement of a principle being applied to exact facts, with the result that the application to the facts may bring one result or may bring another result, depending upon the character of the facts to which the principle is applied, it is very erroneous to have a case of this kind and of this magnitude left for decision in the

form in which it was. I do not make that statement in any sense to annoy the Minister of Justice, but I would point out that counsel representing us in these cases, in his closing observations, according to the record of the argument, said. "Yes, in all these cases, in every instance, this legislation affects property and civil rights."


Ernest Lapointe: And it was true.


Richard Bedford Bennett: Of course it is true, but the phrase in section 92 is not "affect" but "in relation to." There is no legislation that can be passed by this parliament which does not affect property and civil rights. If the British North America Act had said "affecting" I would not be criticizing it now. But the British North America Act said that it shall have exclusive power "in relation to" and our chief justice, with the approval of the other members of the court, has pointed out the fallacious reasoning that was applied when there was an endeavour to give the same meaning to the word "affecting" and the expression "in relation to." For that reason I join with the hon. member for St. Lawrence-St. George in his criticism of these judgments. I think they are most unfortunate having regard to what has transpired in the days that are past. I cannot agree with the hon. member for Selkirk. I believe that the judicial committee has rendered a great service to this country. One reason is that you have but a single judgment or a single opinion; that is, -there can be no diversity of opinion.


Joseph Thorarinn Thorson: What is the good of having a single opinion if that opinion is bad?


Richard Bedford Bennett: But there are always at least two sides to every case, and it depends which side you are on, whether you think the decision is bad or good. That is one of the real difficulties. The fact that there can be no dissenting opinion in the advice given to the sovereign has had an excellent effect in many instances in this country, because it has been the opinion that close proximity to the subject matter has had an effect upon the minds of men. I wonder if the hon. member for Selkirk has forgotten the Hayes and Tilden election? I wonder if he has forgotten that the political decision given in that case had a direct bearing on the presidency? I wonder if he realizes the conflict now going on in the United States because of majority opinions as against minority views?
I do think that on that account alone there has been an extreme value attached to the decisions of the privy council, but I'think it

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was most unfortunate that in these cases, above all others, that abstract proposition should have been submitted to the judicial committee without any facts being before them upon which a decision could be based.
I agree with what was said by the hon. member for Selkirk as to questions of fact. I think there is no doubt that when men many thousands of miles away have to conjecture as to the facts, perhaps you will have a miscarriage of justice. But when you present facts, as they did in the marketing case in British Columbia and in the Lemieux case, then you get a decision based upon facts disclosed by evidence to which principles are applied. In these cases the principles were applied to facts that unfortunately were imaginary. The judicial committee did not have before them the evidence of any witnesses; they had nothing to indicate what the operation of the statutes really meant, and so they assumed facts and applied principles with results disastrous to the legislation.
We all know that you cannot have various provinces enacting legislation of this character, for the reasons given by the hon. member for Selkirk. You will have one province doing it, and another trying to outbid it. There will be an effort to get industry to move from one province to another. The legislation must be national and universal in its character.


William Lyon Mackenzie King: That is what they have been doing.


Richard Bedford Bennett: They have been doing that, and we know perfectly well the type of discussion that has taken place in connection with it. I have been reading how some of them are contending that they are going to get this industry, while another contends that they are going to get it. Sometimes it is partly a question of power; sometimes it is partly a question of labour; sometimes it is partly a question of cost or partly a question of legislation; but all this conflict should not be. You cannot have conflict among eight or nine provinces. Suppose the provinces all agree to pass the same legislation? You still have the possibility of its being amended or changed.
Then you have the all important matter of administration, as has been demonstrated in connection with old age pensions. Administration will be all important in connection with many of these matters if you are going to have fairness, continuity and stability.


William Lyon Mackenzie King: Is not that really an argument for a change in the constitution?


Richard Bedford Bennett: I am coming to that.
It is quite clear that in view of these decisions -we are accepting them as they are, as the minister suggested the other day-there is only one way to deal with them, and that is by amending the constitution. There is no doubt about that. As it stands now, unless the minister feels disposed to take a concrete case and get the facts before the court, which I feel sure he is not prepared to do, it resolves itself into a question of amending the constitution. As to how that is to be accomplished there are differing views. My own personal view is that we can accomplish, it more quickly, and more in accordance with our democratic institutions, if we hold a convention representing the provinces and the dominion and all shades of political opinion. There could then be presented to this parliament a petition which could be passed through the Commons and the Senate after the legislatures of the provinces have dealt with it.
It does not require much of an amendment to deal with many of these matters. An amendment of a couple of lines to section 91 would do it. There is no doubt about it, whatever may be our differences of opinion with respect to these cases and these decisions, and as to the method and manner by which the judicial committee were technically seized of their importance, we can secure uniform national laws only by an amendment to our constitution. I am not going to cover that ground beyond what I said the other evening. I still cling to the idea that if we are going to do it, we should do it in the same manner I indicated. As the constitution was created, so it should be amended. The convention that brought about the creation of the constitution should be duplicated for the purpose of providing its amendment. I cannot think that a commission dealing with problems of taxation is the proper body to deal with the question of amending the constitution itself.


Ernest Lapointe: Mr. Chairman, I hope I shall be
able to say what I have to say in the few minutes that remain to-night. My right hon. friend (Mr. Bennett) said that he differs from the hon. member for Selkirk (Mr. Thorson) for my right hon. friend is in favour of the institution of the privy council although he criticizes the decisions which were rendered in these special cases. I differ from my right hon. friend as I have not changed the views which I have expressed quite frequently in the house with regard to the advisability of Canada being able to decide in our own country on the cases which come before our courts. I do not hold that view because of the judgments which were delivered recently.
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Richard Bedford Bennett: You have held that view for a long time.


Ernest Lapointe: Yes. I
would direct the attention of the hon. member for Selkirk, who has said that these decisions are a challenge to the parliament of Canada. to Canadian autonomy and Canadian sovereignty, to the fact that, after all, these decisions conform to the views which were expressed in this house by quite a number of us when the acts were enacted. The decisions are also in harmony with the views of the representatives of the various provinces of Canada-


Richard Bedford Bennett: Not all of them.


Ernest Lapointe: -which have the right to be heard on a matter of this kind. And above all these decisions are in conformity with the views of a majority of the Supreme Court of Canada.


Richard Bedford Bennett: Based on previous decisions.


Ernest Lapointe: Well, say as you like, but when the hon. member for Selkirk says that the privy council has deprived us of the right of having unemployment insurance in Canada, they have not done anything of the kind; because the Supreme Court of Canada, which my friend wants to be the final authority in judicial matters, decided four to two that we had not such right of establishing unemployment insurance. In all the decisions that have been rendered by the privy council they merely confirm the views of the Supreme Court of Canada, except in one matter, namely, the labour conventions-the minimum wage legislation, the eight hour day and day of rest laws; and even there the Supreme Court of Canada divided three judges on one side, and three on the other. So to talk of those decisions of the privy council as a terrible encroachment upon the rights of the people of Canada is, if my hon. friend will permit me to say so, a slight exaggeration.
As to the advisability of these references, and in this respect my right hon. friend was very strong in his criticism, they were made in fulfilment of a pledge that had been given by the Prime Minister (Mr. Mackenzie King).


Richard Bedford Bennett: Not all of them.


Ernest Lapointe: These references were made after the constitutionality and validity of every one of these enactments had been challenged on the floor of the house and by most of the provinces, at any rate by those which had expressed themselves on the matter. Would it have been the right thing, would it have been good policy on the part of

the government of Canada to launch into a tremendous expenditure of public money on unemployment insurance organization, on the marketing of natural products, and upon other things without having the views of the court? Not that it should be done normally, ordinarily, under usual circumstances; but because of the fact that these laws had been attacked from the very start as being without the sphere of jurisdiction of this parliament. My right hon. friend says it would have been different had it been a case coming ordinarily between parties; but I do not see wherein it would have been different. My right hon. friend says that facts were withheld. What facts?


Richard Bedford Bennett: The facts which they misstated.


Ernest Lapointe: On the question whether the eight hour day legislation was or was not within the sphere of the parliamentary authority of Canada, what facts could be set out? The same applies to the minimum wage law. I admit that I asked for a report from one- of the counsel in the case with regard to this contention, and this is what he tells me:
I do not think the result would have been any different. For instance, all of the facts which could have any bearing upon the validity of the Employment and Social Insurance Act were fully set out in the appendix to the dominion's factum, and were-


Richard Bedford Bennett: Not any of them.


Ernest Lapointe: -and were fully brought out in argument.


Richard Bedford Bennett: They set out the circumstances as to how we had powers to sign treaties, and what took place after the war; but the question of the assessments, and how the money is collected, that is not set out.


Ernest Lapointe: This was given to me by the officer of the department who has been, more than any other, instrumental in the preparation of the factums and the appendices, both in the supreme court and in the privy council:
All of the facts which could have any bearing upon the validity of the three acts based upon labour conventions, namely, the Weekly Rest in Industrial Undertakings Act, the Minimum Wages Act, and the Limitation of Hours of Work Act were fully set out in the appendix to the dominion's factum and were also fully presented in argument. Moreover, in the case of the Marketing Act, counsel who argued in support of the legislation made the board fully acquainted with the operations which were being carried on under the act, although no material in this regard was set out in the record of proceedings.


Richard Bedford Bennett: You see, British Columbia supported that.

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Ernest Lapointe: If it is wrong, I know it does not make it right to say that it was done by himself; but I use the illustration because I believed it was right and I believe it is right now. My right hon. friend bases most of his argument on the decisions in the aeronautics case and in the radio case. Both those decisions were rendered under exactly the same circumstances.


Richard Bedford Bennett: Quite so.


Ernest Lapointe: The government of my right hon. friend did not wait for parties to institute actions. They took the proper steps to refer those two acts to the Supreme Court of Canada.


Richard Bedford Bennett: That had been agreed upon at the start.


Ernest Lapointe: Very important it was, and obviously the then government was well satisfied with what happened, because my right hon. friend based his contentions mainly on the decisions in the radio and the aeronautics cases.


Richard Bedford Bennett: That is right.


Ernest Lapointe: And it is the purpose of this section of the Supreme Court Act to enable the government, when legislation may be doubtful or when it is claimed by other parties, and more particularly by the provinces, that it infringes upon their rights, to ascertain before such legislation is carried into effect the views of the court. The courts have not to decide what the parliament of Canada ought to have in the way of powers; their duty is to decide what we actually possess.


Richard Bedford Bennett: That is right. No doubt about that.


Ernest Lapointe: There is a leading proposition in Lefroy's Canada's Federal System which, I think, applies very well to this situation:
The British North America Act although upon it is established the constitution of a vast dominion, is, after all, a statute, and courts of law must treat its provisions by the same methods of construction and exposition which they apply to other statutes, no matter how great the constitutional importance of questions which may be raised.


Richard Bedford Bennett: Lord Sankey went a little further than that in the Senate case.


Ernest Lapointe: As I said, the privy council merely upheld the decision of the supreme court. It may be said that this particular judge of the supreme court was on one side, and some other judge on the
other; but I do not think it is proper to weigh the abilities or the experience of judges one against another, for nothing could shake the confidence of the people and of litigants so much as comparisons of that kind. After all, what we have to do under the circumstances is what my hon. friend from St. Lawrence-St. George (Mr. Cahan) advised in a learned speech of his in Montreal, which was reported in the Montreal Star of March 8, in which he said:
It is a proper matter for intelligent discussion as to whether it is in the national interest that the exclusive power of the provincial legislatures, as now judicially defined, in matters of social and economic reform, should not be somewhat curtailed and the powers of the dominion parliament correspondingly extended; but, in the meantime, until the British North America Act is amended by constitutional methods, no good purpose can be served by either the dominion parliament or the provincial legislatures attempting illegally to exercise the powers now fully vested in the other or others of them.
I fully agree with my hon. friend from St. Lawrence-St. George that we have attained national status, but the charter has not been changed yet. We have grown up, but the garment in various respects has not been altered; and this, I believe, is what is necessary at the present time.


Richard Bedford Bennett: We thought it was elastic, but it turns out to be a strait-jacket.


Ernest Lapointe: I do not want to present a legal argument to-night, but section 132 refers to treaties between the British empire and foreign countries. My hon. friend from St. Lawrence-St. George says that Canada is a part of the British Empire. Yes; but that was not what was contemplated at the time by section 132. I believe that a change in the wording of section 132 would bring about what my hon. friend wishes and what I, too, wish.


Charles Hazlitt Cahan: The change required is not a change in the statute but in the official advisers of His Majesty.


Ernest Lapointe: That is something that might very well be argued.


Richard Bedford Bennett: The minister thought so in 1928.


Ernest Lapointe: The leader of the opposition, when he introduced the Statute of Westminster in this house, took good care to point out that nothing had been changed in the way of taking away any rights from the provinces. He had taken good care to protect that.
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Richard Bedford Bennett: Hardly that. The provinces of Ontario and Quebec had pressed that there should be no change in the method of dealing with the British North America Act.


Ernest Lapointe: I will read what my right hon. friend said:
I think it will be a matter of satisfaction to the house to know that the representatives of the provinces and the dominion unanimously agreed that we should insert as a section of the Statute of Westminster the section which is now before the house: "(1) Nothing in this act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867-1930, or any order, rule or regulation made thereunder." In other words, lest it be concluded by inference that the right of the provinces as defined by the British North America Act had been by reason of this statute curtailed, lessened, modified, or repealed, we made in the statute itself a declaration that such is not the case.
My right hon. friend himself inserted in the statute a provision that made it clear that the new change would not in any way have the effect of taking away from the provinces the same rights which they had before and vesting those rights in the parliament of Canada.


Richard Bedford Bennett: All it did was to say that there would be no change by statute in the status quo.


Ernest Lapointe: But
there would be no change in the status quo, for my right hon. friend said "By reason of our new national status we now have rights that we did not have before."


Richard Bedford Bennett: That is what Lord Sankey said. Lord Sankey said it was an elastic garment.


Ernest Lapointe: After all, the only decision upon which the question of a treaty was raised was with respect to the labour convention, the eight-hour day, minimum wages and so forth, and my right hon. friend says that those conventions were exactly like the aeronautics convention.


Richard Bedford Bennett: In substance.


Ernest Lapointe: He knows that the circumstances are quite different. Those draft conventions-and they were only what are called draft conventions- were not assented to and signed, becoming binding on those who signed them or approved of them at Geneva at the international labour conferences. They had been there for years, one of them for sixteen years, not binding in any way. The Minister of Justice of the time, the late Mr. Doherty, whose words I have here, though I have not time to quote them, said that they imposed 
no obligation upon the Dominion of Canada and merely transferred the subjects to the provinces which were the authorities that could deal with these conventions. And later on, in 1923 or 1924, a reference was made to the Supreme Court of Canada to ascertain the effect of these draft conventions. Both parties in the house, my right hon. friend himself, the then Minister of Justice, and the Right Hon. Arthur Meighen, all took the view that these matters were outside the jurisdiction of the parliament of Canada and were subject matters absolutely within the sphere of the provincial authorities. It was only in 1935 that this parliament was presented with these conventions for approval. I direct the attention of the house and of my right hon. friend to the fact that until 1935 no one claimed or pretended that they were treaties.


Richard Bedford Bennett: After the aeronautics case.


Ernest Lapointe: Even in 1923, if my right hon. friend permits me to say it, on the reference to the supreme court-I have the words of the late Eugene Lafleur who appeared for the dominion at the time-the judges of the supreme court never considered it. So it is only the aviation case and the radio case; and the members of the judicial committee who gave these recent decisions said that they distinguished them. My right hon. friend knows that even on the radio case and the aviation case the judicial committee at the time, although I agree that they considered that those were treaties binding on Canada and giving authority, said that even without those conventions, without section 132, the subject matters of those treaties-


Richard Bedford Bennett: Peace, order and good government.


Ernest Lapointe: -were not matters assigned to the provinces under section 92 of the British North America Act.
I agree entirely with my right hon. friend that of necessity the constitution of Canada should be amended. And I cannot understand how there are still people in this country who cannot realize the necessity of amending it. How it must be done is difficult to say. My right hon. friend suggests a national convention, and there is much in favour of the suggestion. But it would be difficult to secure the necessary approval for that convention. At any rate the provinces must be consulted.


Richard Bedford Bennett: Hear, hear.
Toronto Memorial Service


Ernest Lapointe: I cannot speak for the government because I have not talked the matter over with my leader sufficiently, but I believe that a conference with the provinces is necessary for the purpose of continuing the work that has already been done, especially in the light of the new conditions which exist as a result of those decisions, which settle where the jurisdiction lies in matters which cannot be ignored. The settlement of them is necessary. I agree with the hon. member for Selkirk and my right hon. friend that it is impossible to have an unemployment insurance act which would only be provincial in its scope. It is one of the things which cannot be worked out unless it is national in its scope. And there are other matters, more particularly with regard to labour legislation, on which it would be futile and useless to legislate unless the whole of Canada adopts the same legislation regarding them. I entirely agree with the right hon. gentleman in the claim that it is absolutely necessary to amend the British North America Act. And to those who are afraid to touch this act because of some rights or privileges I say, surely Canadians of to-day are able to settle these matters as the Canadians of 1867 did.


Some hon. MEMBERS:: Hear, hear.


Ernest Lapointe: We are able to deal with every one of these delicate subjects in a way which will ensure peace in Canada and national unity.
As far as the privy council itself is concerned, it is a fine court. My greatest objection to it is this: Canada has now reached the stage where she has eleven millions of population; she is a big country playing a part in international matters; and I find it difficult to reconcile our standing to-day with the idea of going to the other side of the ocean every time we have a case where there is a sufficient amount at stake. But it is not because of any lack of intrinsic merit in the institution itself. I think it is a fine court and they have always done their best in deciding every case that has gone to them. But it will be a difficult matter, I must tell my hon. friends. The right hon. gentleman has mentioned that the provinces are interested. They are more than interested, because-


Richard Bedford Bennett: They have control.


Ernest Lapointe: They have control of the administration of justice in their respective territory, and they have the right to appeal to the privy council. I think it would be a very difficult matter for Canada. We may deal with our own jurisdiction, and
we did it as far as the criminal code is concerned; there is now no appeal to the privy council in criminal matters, but in the other sphere it will be a difficult thing. But when the question is discussed around the table, if I am there I shall vote yes with my friend the hon. member for Selkirk.
This discussion I think has served a good purpose. I am sure it has been very interesting to hon. members and it will be interesting also for the people to read the excellent speeches of the hon. member for St. Law-rence-St. George (Mr. Cahan), of the hon. member for Selkirk (Mr. Thorson), and of my right hon. friend (Mr. Bennett).


Richard Bedford Bennett: No, mine was not a speech.


[Stage Direction]
Item agreed to.
Progress reported.
It being ten minutes after eleven o'clock the house adjourned, without question put, pursuant to standing order.
Tuesday, April 6, 1937